Vol. 79 Friday, 

No. 192 October 3, 2014 

Part III 

Department of Defense 

Office of the Secretary 

Manual for Courts-Martial; Proposed Amendments; Notice 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59938 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[Docket ID: DoD–2014–OS–0140] 

Manual for Courts-Martial; Proposed 

Amendments 

AGENCY: Joint Service Committee on 

Military Justice (JSC), DoD. 

ACTION: Notice of Proposed 

Amendments to the Manual for CourtsMartial, United States (2012 ed.) and 

Notice of Public Meeting. 

SUMMARY: The Department of Defense is 

proposing changes to the Manual for 

Courts-Martial, United States (2012 ed.) 

(MCM). The proposed changes concern 

the rules of procedure and evidence and 

the punitive articles applicable in trials 

by courts-martial. These proposed 

changes have not been coordinated 

within the Department of Defense under 

DoD Directive 5500.01, ‘‘Preparing, 

Processing and Coordinating 

Legislation, Executive Orders, 

Proclamations, Views Letters, and 

Testimony,’’ June 15, 2007, and do not 

constitute the official position of the 

Department of Defense, the Military 

Departments, or any other Government 

agency. 

This notice also sets forth the date, 

time and location for a public meeting 

of the JSC to discuss the proposed 

changes. 

This notice is provided in accordance 

with DoD Directive 5500.17, ‘‘Role and 

Responsibilities of the Joint Service 

Committee (JSC) on Military Justice,’’ 

May 3, 2003. 

This notice is intended only to 

improve the internal management of the 

Federal Government. It is not intended 

to create any right or benefit, 

substantive or procedural, enforceable at 

law by any party against the United 

States, its agencies, its officers, or any 

person. 

The JSC also invites members of the 

public to suggest changes to the Manual 

for Courts-Martial and address specific 

recommended changes with supporting 

rationale. 

DATES: Comments on the proposed 

changes must be received no later than 

December 2, 2014. A public meeting for 

comments will be held on October 29, 

2014, at 10:00 a.m. in the United States 

Court of Appeals for the Armed Forces, 

450 E Street NW., Washington, DC 

20442–0001. 

ADDRESSES: You may submit comments, 

identified by docket number and title, 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Federal Docket Management 

System Office, 4800 Mark Center Drive, 

East Tower, Suite 02G09, Alexandria, 

VA 22350–3100. 

Instructions: All submissions received 

must include the agency name and 

docket number for this Federal Register 

document. The general policy for 

comments and other submissions from 

members of the public is to make these 

submissions available for public 

viewing on the Internet at http://

www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Capt 

Allison A. DeVito, Executive Secretary, 

Joint Service Committee on Military 

Justice, 1500 West Perimeter Road, Suite 

1130, Joint Base Andrews, Maryland 

20762, 240–612–4820, emailallison.a.devito.mil@mail.mil. 

SUPPLEMENTARY INFORMATION: The 

proposed amendments to the MCM are 

as follows: 

Annex 

Section 1. Part II of the Manual for 

Courts-Martial, United States, is 

amended as follows: 

(a) R.C.M. 201(f)(1) is amended to 

insert the following: 

[Note: R.C.M. 201(f)(1) and (f)(2) apply 

to offenses committed on or after 24 

June 2014. The previous version of 

R.C.M. 201(f)(1) and (f)(2) is located in 

Appendix 29.] 

(b) R.C.M. 201(f)(1)(D) is inserted to 

read as follows: 

‘‘(D) Jurisdiction for Certain Sexual 

Offenses. Only a general court-martial 

has jurisdiction to try offenses under 

Articles 120(a), 120(b), 120b(a), and 

120b(b), UCMJ, forcible sodomy under 

Article 125, UCMJ, and attempts thereof 

under Article 80, UCMJ.’’ 

(c) R.C.M. 201(f)(2)(D) is inserted to 

read as follows: 

‘‘(D) Certain Offenses under Articles 

120, 120b, and 125. Notwithstanding 

subsection (f)(2)(A), special courtsmartial do not have jurisdiction over 

offenses under Articles 120(a), 120(b), 

120b(a), and 120b(b), forcible sodomy 

under Article 125, UCMJ, and attempts 

thereof under Article 80, UCMJ. Such 

offenses shall not be referred to a special 

court-martial.’’ 

(d) R.C.M. 305(i)(2)(A)(i) is amended 

to read as follows: 

‘‘(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 prisoner. 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.’’ 

(e) R.C.M. 305(i)(2)(A)(iv) is inserted 

to read as follows: 

‘‘(iv) Victim’s right to be reasonably 

heard. A victim of an alleged offense 

committed by the prisoner has the right 

to reasonable, accurate, and timely 

notice of the 7-day review; the right to 

consult with the representative of the 

command and counsel for the 

government, if any, present during the 

review; and the right to be reasonably 

heard during the review. The right to be 

heard under this rule includes the right 

to be heard through counsel. Inability to 

reasonably afford a victim these rights 

shall not delay the proceedings.’’ 

(f) R.C.M. 305(i)(2)(C) is amended to 

read as follows: 

‘‘(C) Action by 7-day reviewing officer. 

Upon completion of review, the 

reviewing officer shall approve 

continued confinement or order 

immediate release. If the reviewing 

officer orders immediate release, a 

victim of an alleged offense committed 

by the prisoner has the right to 

reasonable, accurate, and timely notice 

of the release, unless such notice may 

endanger the safety of any person.’’ 

(g) R.C.M. 305(n) is inserted to read as 

follows: 

‘‘(n) Notice to victim of escaped 

prisoner. A victim of an alleged offense 

committed by the prisoner for which the 

prisoner has been placed in pretrial 

confinement has the right to reasonable, 

accurate, and timely notice of the escape 

of the prisoner, unless such notice may 

endanger the safety of any person.’’ 

(h) R.C.M. 404(e) is amended to read 

as follows: 

‘‘(e) Unless otherwise prescribed by 

the Secretary concerned, direct a 

preliminary hearing under R.C.M. 405, 

and, if appropriate, forward the report of 

preliminary hearing with the charges to 

a superior commander for disposition.’’ 

(i) A new rule, R.C.M. 404A, is 

inserted to read as follows: 

‘‘Rule 404A. Disclosure of matters 

following direction of preliminary 

hearing 

(a) When a convening authority 

directs a preliminary hearing under 

R.C.M. 405, counsel for 

the government shall, subject to 

R.C.M. 404A(b)-(d) below, within 5 days 

of issuance of the Article 32 appointing 

order, provide to the defense the 

following information or matters: 

(1) Charge sheet; 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59939 

(2) Article 32 appointing order; 

(3) Documents accompanying the 

charge sheet on which the preferral 

decision was based; 

(4) Documents provided to the 

convening authority when deciding to 

direct the preliminary hearing; 

(5) Documents the counsel for the 

government intends to present at the 

preliminary hearing; and 

(6) Access to tangible objects counsel 

for the government intends to present at 

the preliminary hearing. 

(b) Contraband. If items covered by 

subsection 404A(a) above are 

contraband, the disclosure required 

under this rule is a reasonable 

opportunity to inspect said contraband 

prior to the hearing. 

(c) Privilege. If items covered by 

subsection 404A(a) above are privileged, 

classified or otherwise protected under 

Section V of Part III, no disclosure of 

those items is required under this rule. 

However, counsel for the government 

may disclose privileged, classified or 

otherwise protected information 

covered by subsection 404A(a) above if 

authorized by the holder of the 

privilege, or in the case of Mil. R. Evid. 

505 or 506, if authorized by a competent 

authority. 

(d) Protective order if privileged 

information is disclosed. If the 

government agrees to disclose to the 

accused information to which the 

protections afforded by Section V of Part 

III may apply, the convening authority, 

or other person designated by regulation 

of the Secretary 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)(2)–(6) or 506(g)(2)(5).’’ 

(j) R.C.M. 405 is amended in its 

entirety to read as follows: 

‘‘Rule 405. Preliminary hearing 

[Note: This rule applies to offenses 

committed on or after 26 December 

2014. The previous version of R.C.M. 

405 is located in Appendix 30] 

(a) In general. Except as provided in 

subsection (k) of this rule, no charge or 

specification may be referred to a 

general court-martial for trial until 

completion of a preliminary hearing in 

substantial compliance with this rule. A 

preliminary hearing conducted under 

this rule is not intended to serve as a 

means of discovery and will be limited 

to an examination of those issues 

necessary to determine whether there is 

probable cause to conclude that an 

offense or offenses have been committed 

and whether the accused committed it; 

to determine whether a court-martial 

would have jurisdiction over the 

offense(s) and the accused; to consider 

the form of the charge(s); and to 

recommend the disposition that should 

be made of the charge(s). Failure to 

comply with this rule shall have no 

effect on the disposition of the charge(s) 

if the charge(s) is not referred to a 

general court-martial. 

(b) Earlier preliminary hearing. If a 

preliminary hearing of the subject 

matter of an offense has been conducted 

before the accused is charged with an 

offense, and the accused was present at 

the preliminary hearing and afforded 

the rights to counsel, cross-examination, 

and presentation of evidence required 

by this rule, no further preliminary 

hearing is required. 

(c) Who may direct a preliminary 

hearing. Unless prohibited by 

regulations of the Secretary concerned, 

a preliminary hearing may be directed 

under this rule by any court-martial 

convening authority. That authority may 

also give procedural instructions not 

inconsistent with these rules. 

(d) Personnel. 

(1) Preliminary hearing officer. 

Whenever practicable, the convening 

authority directing a preliminary 

hearing under this rule shall detail an 

impartial judge advocate certified under 

Article 27(b), not the accuser, as a 

preliminary hearing officer, who shall 

conduct the preliminary hearing and 

make a report that addresses whether 

there is probable cause to believe that an 

offense or offenses have been committed 

and that the accused committed the 

offense(s); whether a court-martial 

would have jurisdiction over the 

offense(s) and the accused; the form of 

the charges(s); and a recommendation as 

to the disposition of the charge(s). 

When the appointment of a judge 

advocate as the preliminary hearing 

officer is not practicable, or in 

exceptional circumstances in which the 

interest of justice warrants, the 

convening authority directing the 

preliminary hearing may detail an 

impartial commissioned officer, who is 

not the accuser, as the preliminary 

hearing officer. If the preliminary 

hearing officer is not a judge advocate, 

an impartial judge advocate certified 

under Article 27(b) shall be available to 

provide legal advice to the preliminary 

hearing officer. 

When practicable, the preliminary 

hearing officer shall be equal or senior 

in grade to the military counsel detailed 

to represent the accused and the 

government at the preliminary hearing. 

The Secretary concerned may prescribe 

additional limitations on the 

appointment of preliminary hearing 

officers. 

The preliminary hearing officer shall 

not depart from an impartial role and 

become an advocate for either side. The 

preliminary hearing officer is 

disqualified to act later in the same case 

in any other capacity. 

(2) Counsel to represent the United 

States. A judge advocate, not the 

accuser, shall serve as counsel to 

represent the United States, and shall 

present evidence on behalf of the 

government relevant to the limited 

scope and purpose of the preliminary 

hearing as set forth in subsection (a) of 

this rule. 

(3) Defense counsel. 

(A) Detailed counsel. Except as 

provided in subsection (d)(3)(B) of this 

rule, military counsel certified in 

accordance with Article 27(b) shall be 

detailed to represent the accused. 

(B) Individual military counsel. The 

accused may request to be represented 

by individual military counsel. Such 

requests shall be acted on in accordance 

with R.C.M. 506(b). 

(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 preliminary hearing. 

However, the preliminary hearing shall 

not be unduly delayed for this purpose. 

Representation by civilian counsel shall 

not limit the rights to military counsel 

under subsections (d)(3)(A) and (B) of 

this rule. 

(4) Others. The convening authority 

who directed the preliminary hearing 

may also, as a matter of discretion, 

detail or request an appropriate 

authority to detail: 

(A) A reporter; and 

(B) An interpreter. 

(e) Scope of preliminary hearing. 

(1) The preliminary hearing officer 

shall limit the inquiry to the 

examination of evidence, including 

witnesses, necessary to: 

(A) Determine whether there is 

probable cause to believe an offense or 

offenses have been committed and 

whether the accused committed it; 

(B) Determine whether a court-martial 

would have jurisdiction over the 

offense(s) and the accused; 

(C) Consider whether the form of the 

charge(s) is proper; and 

(D) Make a recommendation as to the 

disposition of the charge(s). 

(2) If evidence adduced during the 

preliminary hearing indicates that the 

accused committed any uncharged 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59940 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

offense(s), the preliminary hearing 

officer may examine evidence and hear 

witnesses relating to the subject matter 

of such offense(s) and make the findings 

and recommendations enumerated in 

subsection (e)(1) of this rule regarding 

such offense(s) without the accused first 

having been charged with the offense. 

The accused’s rights under subsection 

(f)(2) of this rule, and, where it would 

not cause undue delay to the 

proceedings, subsection (g) of this rule, 

are the same with regard to both charged 

and uncharged offenses. When 

considering uncharged offenses 

identified during the preliminary 

hearing, the preliminary hearing officer 

shall inform the accused of the general 

nature of each uncharged offense 

considered, and otherwise afford the 

accused the same opportunity for 

representation, cross examination, and 

presentation afforded during the 

preliminary hearing of any charged 

offense. 

(f) Rights of the accused. 

(1) Prior to any preliminary hearing 

under this rule the accused shall have 

the right to: 

(A) Notice of any witnesses that the 

government intends to call at the 

preliminary hearing and copies of or 

access to any written or recorded 

statements made by those witnesses that 

relate to the subject matter of any 

charged offense; 

(i) For purposes of this rule, a 

‘‘written statement’’ is one that is signed 

or otherwise adopted or approved by the 

witness that is within the possession or 

control of counsel for the government; 

and 

(ii) For purposes of this rule, a 

‘‘recorded statement’’ is an oral 

statement made by the witness that is 

recorded contemporaneously with the 

making of the oral statement and 

contained in a digital or other recording 

or a transcription thereof that is within 

the possession or control of counsel for 

the government. 

(B) Notice of, and reasonable access 

to, any other evidence that the 

government intends to offer at the 

preliminary hearing; and 

(C) Notice of, and reasonable access 

to, evidence that is within the 

possession or control of counsel for the 

government that negates or reduces the 

degree of guilt of the accused for an 

offense charged. 

(2) At any preliminary hearing under 

this rule the accused shall have the right 

to: 

(A) Be represented by counsel; 

(B) Be informed of the purpose of the 

preliminary hearing; 

(C) Be informed of the right against 

self-incrimination under Article 31; 

(D) Except in the circumstances 

described in R.C.M. 804(c)(2), be present 

throughout the taking of evidence; 

(E) Cross-examine witnesses on 

matters relevant to the limited scope 

and purpose of the preliminary hearing; 

(F) Present matters in defense and 

mitigation relevant to the limited scope 

and purpose of the preliminary hearing; 

and 

(G) Make a statement relevant to the 

limited scope and purpose of the 

preliminary hearing. 

(g) Production of Witnesses and Other 

Evidence. 

(1) Military Witnesses. 

(A) Prior to the preliminary hearing, 

defense counsel shall provide to counsel 

for the government the names of 

proposed military witnesses whom the 

accused requests that the government 

produce to testify at the preliminary 

hearing, and the requested form of the 

testimony, in accordance with the 

timeline established by the preliminary 

hearing officer. Counsel for the 

government shall respond that either (1) 

the government agrees that the witness 

testimony is relevant, not cumulative, 

and necessary for the limited scope and 

purpose of the preliminary hearing and 

will seek to secure the witness’s 

testimony for the hearing; or (2) the 

government objects to the proposed 

defense witness on the grounds that the 

testimony would be irrelevant, 

cumulative, or unnecessary based on the 

limited scope and purpose of the 

preliminary hearing. 

(B) If the government objects to the 

proposed defense witness, defense 

counsel may request that the 

preliminary hearing officer determine 

whether the witness is relevant, not 

cumulative, and necessary based on the 

limited scope and purpose of the 

preliminary hearing. 

(C) If the government does not object 

to the proposed defense military witness 

or the preliminary hearing officer 

determines that the military witness is 

relevant, not cumulative, and necessary, 

counsel for the government shall request 

that the commanding officer of the 

proposed military witness make that 

person available to provide testimony. 

The commanding officer shall 

determine whether the individual is 

available based on operational necessity 

or mission requirements, except that a 

victim, as defined in this rule, who 

declines to testify shall be deemed to be 

not available. If the commanding officer 

determines that the military witness is 

available, counsel for the government 

shall make arrangements for that 

individual’s testimony. The 

commanding officer’s determination of 

unavailability due to operational 

necessity or mission requirements is 

final. The military witness’s 

commanding officer determines the 

availability of the witness and, if there 

is a dispute among the parties, 

determines whether the witness testifies 

in person, by videoteleconference, by 

telephone, or similar means of remote 

testimony. 

(2) Civilian Witnesses. 

(A) Defense counsel shall provide to 

counsel for the government the names of 

proposed civilian witnesses whom the 

accused requests that the government 

produce to testify at the preliminary 

hearing, and the requested form of the 

testimony, in accordance with the 

timeline established by the preliminary 

hearing officer. Counsel for the 

government shall respond that either (1) 

the government agrees that the witness 

testimony is relevant, not cumulative, 

and necessary for the limited scope and 

purpose of the preliminary hearing and 

will seek to secure the witness’s 

testimony for the hearing; or (2) the 

government objects to the proposed 

defense witness on the grounds that the 

testimony would be irrelevant, 

cumulative, or unnecessary based on the 

limited scope and purpose of the 

preliminary hearing. 

(B) If the government objects to the 

proposed defense witness, defense 

counsel may request that the 

preliminary hearing officer determine 

whether the witness is relevant, not 

cumulative, and necessary based on the 

limited scope and purpose of the 

preliminary hearing. 

(C) If the government does not object 

to the proposed civilian witness or the 

preliminary hearing officer determines 

that the civilian witness testimony is 

relevant, not cumulative, and necessary, 

counsel for the government shall invite 

the civilian witness to provide 

testimony and, if the individual agrees, 

shall make arrangements for that 

witness’s testimony. If expense to the 

government is to be incurred, the 

convening authority who directed the 

preliminary hearing, or the convening 

authority’s delegate, shall determine 

whether the witness testifies in person, 

by videoteleconference, by telephone, or 

similar means of remote testimony. 

(3) Other evidence. 

(A) Evidence under the control of the 

government. 

(i) Prior to the preliminary hearing, 

defense counsel shall provide to counsel 

for the government a list of evidence 

under the control of the government the 

accused requests the government 

produce to the defense for introduction 

at the preliminary hearing. The 

preliminary hearing officer may set a 

deadline by which defense requests 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59941 

must be received. Counsel for the 

government shall respond that either (1) 

the government agrees that the evidence 

is relevant, not cumulative, and 

necessary for the limited scope and 

purpose of the preliminary hearing and 

shall make reasonable efforts to obtain 

the evidence; or (2) the government 

objects to production of the evidence on 

the grounds that the evidence would be 

irrelevant, cumulative, or unnecessary 

based on the limited scope and purpose 

of the preliminary hearing. 

(ii) If the government objects to 

production of the evidence, defense 

counsel may request that the 

preliminary hearing officer determine 

whether the evidence should be 

produced. The preliminary hearing 

officer shall determine whether the 

evidence is relevant, not cumulative, 

and necessary based on the limited 

scope and purpose of the hearing. If the 

preliminary hearing officer determines 

that the evidence shall be produced, 

counsel for the government shall make 

reasonable efforts to obtain the 

evidence. 

(B) Evidence not under the control of 

the government. 

(i) Evidence not under the control of 

the government may be obtained 

through noncompulsory means or by 

subpoenas duces tecum issued by 

counsel for the government in 

accordance with the process established 

by R.C.M. 703. 

(ii) Prior to the preliminary hearing, 

defense counsel shall provide to counsel 

for the government a list of evidence not 

under the control of the government that 

the accused requests the government 

obtain. The preliminary hearing officer 

may set a deadline by which defense 

requests must be received. Counsel for 

the government shall respond that either 

(1) the government agrees that the 

evidence is relevant, not cumulative, 

and necessary for the limited scope and 

purpose of the preliminary hearing and 

shall issue subpoenas duces tecum for 

the evidence; or (2) the government 

objects to production of the evidence on 

the grounds that the evidence would be 

irrelevant, cumulative, or unnecessary 

based on the limited scope and purpose 

of the preliminary hearing. 

(iii) If the government objects to 

production of the evidence, defense 

counsel may request that the 

preliminary hearing officer determine 

whether the evidence should be 

produced. If the preliminary hearing 

officer determines that the evidence is 

relevant, not cumulative, and necessary 

based on the limited scope and purpose 

of the preliminary hearing and that the 

issuance of subpoenas duces tecum 

would not cause undue delay to the 

preliminary hearing, the preliminary 

hearing officer shall direct counsel for 

the government to issue subpoenas 

duces tecum for the defense-requested 

evidence. Failure on the part of counsel 

for the government to issue subpoenas 

duces tecum directed by the preliminary 

hearing officer shall be noted by the 

preliminary hearing officer in the report 

of preliminary hearing. 

(h) Military Rules of Evidence. The 

Military Rules of Evidence do not apply 

in preliminary hearings under this rule 

except as follows: 

(1) Mil. R. Evid. 301–303 and 305 

shall apply in their entirety. 

(2) Mil. R. Evid. 412 shall apply in 

any case that includes a charge defined 

as a sexual offense in Mil. R. Evid. 

412(d), except that Mil. R. Evid. 

412(b)(1)(C) shall not apply. 

(3) Mil. R. Evid., Section V, Privileges, 

shall apply, except that Mil. R. Evid. 

505(f)–(h) and (j); 506(f)–(h), (j), (k), and 

(m); 513(d)(8); and 514(d)(6) shall not 

apply. 

(4) In applying these rules to a 

preliminary hearing, the term ‘‘military 

judge,’’ as used in these rules shall 

mean the preliminary hearing officer, 

who shall assume the military judge’s 

authority to exclude evidence from the 

preliminary hearing, and who shall, in 

discharging this duty, follow the 

procedures set forth in the rules cited in 

subsections (h)(1)–(3) of this rule. 

(5) Failure to meet the procedural 

requirements of the applicable rules of 

evidence shall result in exclusion of that 

evidence from the preliminary hearing, 

unless good cause is shown. 

(i) Procedure. 

(1) Generally. The preliminary 

hearing shall begin with the preliminary 

hearing officer informing the accused of 

the accused’s rights under subsection (f) 

of this rule. Counsel for the government 

will then present evidence. Upon the 

conclusion of counsel for the 

government’s presentation of evidence, 

defense counsel may present matters in 

defense and mitigation consistent with 

subsection (f) of this rule. For the 

purposes of this rule, ‘‘matters in 

mitigation’’ are defined as matters that 

may serve to explain the circumstances 

surrounding a charged offense. Both 

counsel for the government and defense 

shall be afforded an opportunity to 

cross-examine adverse witnesses. The 

preliminary hearing officer may also 

question witnesses called by the parties. 

If the preliminary hearing officer 

determines that additional evidence is 

necessary to satisfy the requirements of 

subsection (e) above, the preliminary 

hearing officer may provide the parties 

an opportunity to present additional 

testimony or evidence relevant to the 

limited scope and purpose of the 

preliminary hearing. The preliminary 

hearing officer shall not consider 

evidence not presented at the 

preliminary hearing. The preliminary 

hearing officer shall not call witnesses 

sua sponte. 

(2) Notice to and presence of the 

victim(s). 

(A) The victim(s) of an offense under 

the UCMJ has the right to reasonable, 

accurate, and timely notice of a 

preliminary hearing relating to the 

alleged offense. For the purposes of this 

rule, a ‘‘victim’’ is a person who is 

alleged to have suffered a direct 

physical, emotional, or pecuniary harm 

as a result of the matters set forth in a 

charge or specification under 

consideration and is named in one of 

the specifications under consideration. 

(B) A victim of an offense under 

consideration at the preliminary hearing 

is not required to testify at the 

preliminary hearing. 

(C) A victim has the right not to be 

excluded from any portion of a 

preliminary hearing related to the 

alleged offense, unless the preliminary 

hearing officer, after receiving clear and 

convincing evidence, determines the 

testimony by the victim would be 

materially altered if the victim heard 

other testimony at the proceeding. 

(D) A victim shall be excluded if a 

privilege set forth in Mil. R. Evid. 505 

or 506 is invoked or if evidence is 

offered under Mil. R. Evid. 412, 513, or 

514, for charges other than those in 

which the victim is named. 

(3) Presentation of evidence. 

(A) Testimony. Witness testimony 

may be provided in person, by 

videoteleconference, by telephone, or 

similar means of remote testimony. All 

testimony shall be taken under oath, 

except that the accused may make an 

unsworn statement. The preliminary 

hearing officer shall only consider 

testimony that is relevant to the limited 

scope and purpose of the preliminary 

hearing. 

(B) Other evidence. If relevant to the 

limited scope and purpose of the 

preliminary hearing, and not 

cumulative, a preliminary hearing 

officer may consider other evidence, in 

addition to or in lieu of witness 

testimony, including statements, 

tangible evidence, or reproductions 

thereof, offered by either side, that the 

preliminary hearing officer determines 

is reliable. This other evidence need not 

be sworn. 

(4) Access by spectators. Access by 

spectators to all or part of the 

proceedings may be restricted or 

foreclosed in the discretion of the 

convening authority who directed the 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59942 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

preliminary hearing or the preliminary 

hearing officer. Preliminary hearings are 

public proceedings and should remain 

open to the public whenever possible. 

When an overriding interest exists that 

outweighs the value of an open 

preliminary hearing, the preliminary 

hearing may be closed to spectators. 

Any closure must be narrowly tailored 

to achieve the overriding interest that 

justified the closure. Convening 

authorities or preliminary hearing 

officers must conclude that no lesser 

methods short of closing the 

preliminary hearing can be used to 

protect the overriding interest in the 

case. Convening authorities or 

preliminary hearing officers must 

conduct a case-by-case, witness-bywitness, circumstance-by-circumstance 

analysis of whether closure is necessary. 

If a convening authority or preliminary 

hearing officer believes closing the 

preliminary hearing is necessary, the 

convening authority or preliminary 

hearing officer must make specific 

findings of fact in writing that support 

the closure. The written findings of fact 

must be included in the report of 

preliminary hearing. Examples of 

overriding interests may include: 

preventing psychological harm or 

trauma to a child witness or an alleged 

victim of a sexual crime, protecting the 

safety or privacy of a witness or alleged 

victim, protecting classified material, 

and receiving evidence where a witness 

is incapable of testifying in an open 

setting. 

(5) 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; or 

(B) After being warned by the 

preliminary hearing officer that 

disruptive conduct will cause removal 

from the proceeding, persists in conduct 

which is such as to justify exclusion 

from the proceeding. 

(6) Recording of the preliminary 

hearing. Counsel for the government 

shall ensure that the preliminary 

hearing is recorded by a suitable 

recording device. A victim, as defined 

by subsection (i)(2)(A) of this rule, may 

request access to, or a copy of, the 

recording of the proceedings. Upon 

request, counsel for the government 

shall provide the requested access to, or 

a copy of, the recording to the victim 

not later than a reasonable time 

following dismissal of the charges, 

unless charges are dismissed for the 

purpose of re-referral, or court-martial 

adjournment. A victim is not entitled to 

classified information or closed sessions 

in which the victim did not have the 

right to attend under subsections 

(i)(2)(C) or (i)(2)(D) of this rule. 

(7) Objections. Any objection alleging 

failure to comply with this rule shall be 

made to the convening authority via the 

preliminary hearing officer. 

(8) Sealed exhibits and proceedings. 

The preliminary hearing officer has the 

authority to order exhibits, proceedings, 

or other matters sealed as described in 

R.C.M. 1103A. 

(j) Report of preliminary hearing. 

(1) In general. The preliminary 

hearing officer shall make a timely 

written report of the preliminary 

hearing to the convening authority who 

directed the preliminary hearing. 

(2) Contents. The report of 

preliminary hearing 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; 

(C) Any other statements, documents, 

or matters considered by the 

preliminary hearing officer, or recitals of 

the substance or nature of such 

evidence; 

(D) A statement that an essential 

witness may not be available for trial; 

(E) An explanation of any delays in 

the preliminary hearing; 

(F) A notation if counsel for the 

government failed to issue a subpoena 

duces tecum that was directed by the 

preliminary hearing officer; 

(G) The preliminary hearing officer’s 

determination as to whether there is 

probable cause to believe the offense(s) 

listed on the charge sheet or otherwise 

considered at the preliminary hearing 

occurred; 

(H) The preliminary hearing officer’s 

determination as to whether there is 

probable cause to believe the accused 

committed the offense(s) listed on the 

charge sheet or otherwise considered at 

the preliminary hearing; 

(I) The preliminary hearing officer’s 

determination as to whether a courtmartial has jurisdiction over the 

offense(s) and the accused; 

(J) The preliminary hearing officer’s 

determination as to whether the 

charge(s) and specification(s) are in 

proper form; and 

(K) The recommendations of the 

preliminary hearing officer regarding 

disposition of the charge(s). 

(3) Sealed exhibits and proceedings. If 

the report of preliminary hearing 

contains exhibits, proceedings, or other 

matters ordered sealed by the 

preliminary hearing officer in 

accordance with R.C.M. 1103A, counsel 

for the government shall cause such 

materials to be sealed so as to prevent 

unauthorized viewing or disclosure. 

(4) Distribution of the report. The 

preliminary hearing officer shall cause 

the report to be delivered to the 

convening authority who directed the 

preliminary hearing. That convening 

authority shall promptly cause a copy of 

the report to be delivered to each 

accused. 

(5) Objections. Any objection to the 

report shall be made to the convening 

authority who directed the preliminary 

hearing, via the preliminary hearing 

officer, within 5 days of its receipt by 

the accused. This subsection does not 

prohibit a convening authority from 

referring the charge(s) or taking other 

action within the 5-day period. 

(k) Waiver. The accused may waive a 

preliminary hearing 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 convening 

authority who directed the preliminary 

hearing, a superior convening authority, 

or the military judge, as appropriate, for 

good cause shown.’’ 

(k) R.C.M. 601(g) is inserted to read as 

follows: 

‘‘(g) Parallel convening authorities. If 

it is impracticable for the original 

convening authority to continue 

exercising authority over the charges, 

the convening authority may cause the 

charges, even if referred, to be 

transmitted to a parallel convening 

authority. This transmittal must be in 

writing and in accordance with such 

regulations as the Secretary concerned 

may prescribe. Subsequent actions taken 

by the parallel convening authority are 

within the sole discretion of that 

convening authority.’’ 

(l) R.C.M. 703(e)(2)(B) is amended to 

read as follows: 

‘‘(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, data, or other objects or 

electronically stored information 

designated therein at the proceeding or 

at an earlier time for inspection by the 

parties. A subpoena issued for a 

preliminary hearing pursuant to Article 

32 shall not command any person to 

attend or give testimony at an Article 32 

preliminary hearing.’’ 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59943 

(m) R.C.M. 703(e)(2)(C) is amended to 

read as follows: 

‘‘(C) Who may issue. 

(1) A subpoena to secure evidence 

may be issued by: 

(a) The summary court-martial; 

(b) Detailed counsel for the 

government at an Article 32 preliminary 

hearing; 

(c) After referral to a court-martial, 

detailed trial counsel; 

(d) The president of a court of inquiry; 

or 

(e) An officer detailed to take a 

deposition.’’ 

(n) R.C.M. 703(f)(4)(B) is amended to 

read as follows: 

(B) Evidence not under the control of 

the government. Evidence not under the 

control of the government may be 

obtained by a subpoena issued in 

accordance with subsection (e)(2) of this 

rule. A subpoena duces tecum to 

produce books, papers, documents, 

data, or other objects or electronically 

stored information for a preliminary 

hearing pursuant to Article 32 may be 

issued, following the convening 

authority’s order directing such 

preliminary hearing, by counsel for the 

government. A person in receipt of a 

subpoena duces tecum for an Article 32 

hearing need not personally appear in 

order to comply with the subpoena.’’ 

(o) R.C.M. 801(a)(g) is inserted to read 

as follows: 

‘‘(6) In the case of a victim of an 

offense under the UCMJ who is under 

18 years of age and not a member of the 

armed forces, or who is incompetent, 

incapacitated, or deceased, designate in 

writing, a family member, a 

representative of the estate of the victim, 

or another suitable individual to assume 

the victim’s rights under the UCMJ. 

(A) For the purposes of this rule, the 

individual is designated for the sole 

purpose of assuming the legal rights of 

the victim as they pertain to the victim’s 

status as a victim of any offense(s) 

properly before the court. 

(B) Procedure to determine 

appointment of designee. 

(i) As soon as practicable, trial 

counsel shall notify the military judge, 

counsel for the accused and the 

victim(s) of any offense(s) properly 

before the court when there is an 

apparent requirement to appoint a 

designee under this rule. 

(ii) The military judge will determine 

if the appointment of a designee is 

required under this rule. 

(iii) At the discretion of the military 

judge, victim(s), trial counsel, and the 

accused may be given the opportunity to 

recommend to the military judge 

individual(s) for appointment. 

(iv) The military judge is not required 

to hold a hearing before determining 

whether a designation is required or 

making such an appointment under this 

rule. 

(v) If the military judge determines a 

hearing pursuant to Article 39(a), UCMJ, 

is necessary, the following shall be 

notified of the hearing and afforded the 

right to be present at the hearing: trial 

counsel, accused, and the victim(s). 

(vi) The individual designated shall 

not be the accused. 

(C) At any time after appointment, a 

designee shall be excused upon request 

by the designee or a finding of good 

cause by the military judge. 

(D) If the individual appointed to 

assume the victim’s rights is excused, 

the military judge shall appoint a 

successor consistent with this rule.’’ 

(p) R.C.M. 806(b)(2) is insert following 

R.C.M. 806(b)(1) and before the 

Discussion section to read as follows: 

‘‘(2) Right of victim to attend. A 

victim of an alleged offense committed 

by the accused may not be excluded 

from a court-martial relating to the 

offense, unless the military judge, after 

receiving clear and convincing 

evidence, determines that testimony by 

the victim would be materially altered 

if the victim heard other testimony at 

that hearing or proceeding.’’ 

(q) R.C.M. 806(b)(2) is renumbered as 

R.C.M. 806(b)(3). 

(r) R.C.M. 906(b)(8) is amended to 

read as follows: 

‘‘(8) Relief from pretrial confinement. 

Upon a motion for release from pretrial 

confinement, a victim of an alleged 

offense committed by the accused has 

the right to reasonable, accurate, and 

timely notice of the motion and any 

hearing, the right to consult with trial 

counsel, and the right to be reasonably 

heard. Inability to reasonably afford a 

victim these rights shall not delay the 

proceedings. The right to be heard 

under this rule includes the right to be 

heard through counsel.’’ 

(s) R.C.M. 912(i)(3) is amended to read 

as follows: 

‘‘(3) Preliminary hearing officer. For 

purposes of this rule, ‘‘preliminary 

hearing officer’’ includes any person 

who has examined charges under 

R.C.M. 405 and any person who was 

counsel for a member of a court of 

inquiry, or otherwise personally has 

conducted an investigation of the 

general matter involving the offenses 

charged.’’ 

(t) R.C.M. 1001(a)(1)(B) is amended to 

read as follows: 

‘‘(B) Victim’s right to be reasonably 

heard. See R.C.M. 1001A.’’ 

(u) R.C.M. 1001(a)(C)–(G) are relettered to read as follows: 

‘‘(C) Presentation by the defense of 

evidence in extenuation or mitigation or 

both. 

(D) Rebuttal. 

(E) Argument by trial counsel on 

sentence. 

(F) Argument by defense counsel on 

sentence. 

(G) Rebuttal arguments in the 

discretion of the military judge.’’ 

(v) A new rule, R.C.M.1001A is 

inserted to read as follows: 

‘‘A victim of an offense of which the 

accused has been found guilty has the 

right to be reasonably heard at a 

sentencing hearing relating to that 

offense. For the purposes of this rule, 

the right to be reasonably heard means 

the right to testify under oath. Trial 

counsel shall ensure the victim has the 

opportunity to exercise that right. As 

used in this rule a ‘‘victim’’ is a person 

who has suffered direct physical, 

emotional, or pecuniary harm as a result 

of the commission of an offense. If the 

victim exercises the right to be 

reasonably heard, the victim shall be 

called by the court.’’ 

(w) R.C.M. 1103A(a) is amended to 

read as follows: 

‘‘(a) In general. If the report of 

preliminary hearing or record of trial 

contains exhibits, proceedings, or other 

matter ordered sealed by the military 

judge, counsel for the government or 

trial counsel shall cause such materials 

to be sealed so as to prevent 

unauthorized viewing or disclosure. 

Counsel for the government or trial 

counsel shall ensure that such materials 

are properly marked, including an 

annotation that the material was sealed 

by order of the military judge, and 

inserted at the appropriate place in the 

original record of trial. Copies of the 

report of preliminary hearing or record 

of trial shall contain appropriate 

annotations that matters were sealed by 

order of the preliminary hearing officer 

or military judge and have been inserted 

in the report of preliminary hearing or 

original record of trial.’’ 

(x) R.C.M. 1103A(b)(1) is amended to 

read as follows: 

‘‘(1) Prior to referral. The following 

individuals may examine sealed 

materials only if necessary for proper 

fulfillment of their responsibilities 

under the UCMJ, the MCM, governing 

directives, instructions, regulations, 

applicable rules for practice and 

procedure, or rules of professional 

responsibility: the judge advocate 

advising the convening authority who 

directed the Article 32 preliminary 

hearing; the convening authority who 

directed the Article 32 preliminary 

hearing; the staff judge advocate to the 

general court-martial convening 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59944 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

authority; and the general court-martial 

convening authority.’’ 

(y) R.C.M. 1103A(b)(5) is inserted to 

read as follows: 

‘‘(5) Examination of sealed matters. 

For the purpose of this rule, 

‘‘examination’’ includes reading, 

viewing, photocopying, photographing, 

disclosing, or manipulating the sealed 

matters in any way.’’ 

(z) R.C.M. 1105 is amended to read as 

follows: 

[Note: R.C.M. 1105(b)(1) and (b)(2) 

apply to offenses committed on or after 

24 June 2014. The previous version of 

R.C.M. 1105(b)(1) and (b)(2) is located in 

Appendix 29.] 

(aa) R.C.M. 1105(b)(1) is amended to 

read as follows: 

‘‘(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, except as may 

be limited by R.C.M. 1107(b)(3)(C). The 

convening authority is only required to 

consider written submissions.’’ 

(bb) R.C.M. 1105(b)(2)(C) is amended 

to read as follows: 

‘‘(C) Matters in mitigation which were 

not available for consideration at the 

court-martial, except as may be limited 

by R.C.M. 1107(b)(3)(B); and’’ 

(cc) R.C.M. 1107 is amended to read 

as follows: 

[Note: R.C.M. 1107(b)–(d) and (f) apply 

to offenses committed on or after 24 

June 2014. The previous version of 

R.C.M. 1107(b) is located in Appendix 

29.] 

(dd) R.C.M. 1107(b)(1) is amended to 

read as follows: 

‘‘(1) Discretion of convening authority. 

Any action to be taken on the findings 

and sentence is within the sole 

discretion of the convening authority. 

The convening authority is not required 

to review the case for legal errors or 

factual sufficiency.’’ 

(ee) R.C.M. 1107(b)(3)(A)(iii) is 

amended to read as follows: 

‘‘(iii) Any matters submitted by the 

accused under R.C.M. 1105 or, if 

applicable, R.C.M. 1106(f); 

(ff) R.C.M. 1107(b)(3)(A)(iv) is 

inserted to read as follows: 

‘‘(iv) Any statement submitted by a 

crime victim pursuant to R.C.M. 1105A 

and subsection (C) below.’’ 

(gg) R.C.M. 1107(b)(3)(B)(i) is 

amended to read as follows: 

‘‘(i) The record of trial, subject to the 

provisions of R.C.M. 1103A and 

subsection (C) below;’’ 

(hh) R.C.M. 1107(c) is amended to 

read as follows: 

‘‘(c) Action on findings. Action on the 

findings is not required. However, the 

convening authority may take action 

subject to the following limitations: 

(1) For offenses charged under 

subsection (a) or (b) of Article 120; 

offenses charged under Article 120b; 

and offenses charged under Article 125. 

(A) The convening authority is 

prohibited from: 

(i) Setting aside any finding of guilt or 

dismissing a specification; or 

(ii) Changing 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. 

(B) The convening authority may 

direct a rehearing in accordance with 

subsection (e) of this rule. 

(2) For offenses other than those listed 

in subsection (c)(1), for which the 

maximum sentence of confinement that 

may be adjudged does not exceed two 

years without regard to the 

jurisdictional limits of the court; and the 

sentence adjudged does not include 

dismissal, a dishonorable discharge, 

bad-conduct discharge, or confinement 

for more than six months: 

(A) The convening authority may 

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 

(B) Set aside any finding of guilty and: 

(i) Dismiss the specification and, if 

appropriate, the charge; or 

(ii) Direct a rehearing in accordance 

with subsection (e) of this rule. 

(3) If the convening authority acts to 

dismiss or change any charge or 

specification for an offense, the 

convening authority shall provide, at 

the same time, a written explanation of 

the reasons for such action. The written 

explanation shall be made a part of the 

record of trial and action thereon.’’ 

(ii) R.C.M. 1107(d)(1) is amended to 

read as follows: 

‘‘(1) In general. 

(A) The convening authority may not 

disapprove, commute, or suspend, in 

whole or in part, any portion of an 

adjudged sentence of confinement for 

more than six months. 

(B) The convening authority may not 

disapprove, commute, or suspend that 

portion of an adjudged sentence that 

includes a dismissal, dishonorable 

discharge, or bad-conduct discharge. 

(C) The convening authority may 

disapprove, commute, or suspend, in 

whole or in part, any portion of an 

adjudged sentence not explicitly 

prohibited by this rule, to include 

reduction in pay grade, forfeitures of 

pay and allowances, fines, reprimands, 

restrictions, and hard labor without 

confinement. 

(D) The convening authority shall not 

disapprove, commute, or suspend any 

mandatory minimum sentence except in 

accordance with subsection (E) below. 

(E) Exceptions. 

(i) Trial counsel recommendation. 

Upon the recommendation of the trial 

counsel, in recognition of the 

substantial assistance by the accused in 

the investigation or prosecution of 

another person who has committed an 

offense, the convening authority or 

another person authorized to act under 

this section shall have the authority to 

disapprove, commute, or suspend the 

adjudged sentence, in whole or in part, 

even with respect to an offense for 

which a mandatory minimum sentence 

exists. 

(ii) Pretrial agreement. If a pretrial 

agreement has been entered into by the 

convening authority and the accused as 

authorized by R.C.M. 705, the 

convening authority shall have the 

authority to approve, disapprove, 

commute, or suspend a sentence, in 

whole or in part, pursuant to the terms 

of the pretrial agreement. The convening 

authority may commute a mandatory 

sentence of a dishonorable discharge to 

a bad-conduct discharge pursuant to the 

terms of the pretrial agreement. 

(F) If the convening authority acts to 

disapprove, commute, or suspend, in 

whole or in part, the sentence of the 

court-martial for an offense, the 

convening authority shall provide, at 

the same time, a written explanation of 

the reasons for such action. The written 

explanation shall be made a part of the 

record of trial and action thereon.’’ 

(jj) R.C.M. 1107(d)(2) is amended to 

read as follows: 

‘‘(2) Determining what sentence 

should be approved. The convening 

authority shall, subject to the limitations 

in subsection (d)(1) above, approve that 

sentence which is warranted by the 

circumstances of the offense and 

appropriate for the accused.’’ 

(kk) R.C.M. 1107(f)(2) is amended to 

read as follows: 

‘‘(2) Modification of initial action. 

Subject to the limitations in subsections 

(c) and (d) above, 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 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59945 

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 

Articles 64, 66, 67, or examination of 

the record of trial under Article 69. The 

convening authority shall personally 

sign any supplementary or corrective 

action. A written explanation is 

required for any modification of initial 

action which: 1) sets aside any finding 

of guilt or dismisses or changes any 

charge or specification for an offense; or 

2) disapproves, commutes, or suspends, 

in whole or in part, the sentence. The 

written explanation shall be made a part 

of the record of trial and action 

thereon.’’ 

(ll) R.C.M. 1107(g) is amended to read 

as follows: 

‘‘(g) Incomplete, ambiguous, or 

erroneous action. When the action of 

the convening authority or of a higher 

authority is incomplete, ambiguous, or 

contains error, the authority who took 

the incomplete, ambiguous, or 

erroneous action may be instructed by 

an authority acting under Articles 64, 

66, 67, or 69 to withdraw the original 

action and substitute a corrected 

action.’’ 

(mm) R.C.M. 1108 is amended to read 

as follows: 

[Note: R.C.M. 1108(b) applies to offenses 

committed on or after 24 June 2014. The 

previous version of R.C.M. 1108(b) is 

located in Appendix 29.] 

(nn) 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 or as prohibited under 

R.C.M. 1107. The general court-martial 

convening authority over the accused at 

the time of the court-martial may, when 

taking 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 or a sentence of confinement 

for life without eligibility for parole that 

has been ordered executed. The 

Secretary concerned may, however, 

suspend or remit the unexecuted part of 

a sentence of confinement for life 

without eligibility for parole only after 

the service of a period of confinement 

of not less than 20 years. The 

commander of the accused who has the 

authority to convene a court-martial of 

the kind that adjudged the sentence may 

suspend or remit any part of the 

unexecuted part of any sentence by 

summary court-martial or of any 

sentence by special court-martial that 

does not include a bad-conduct 

discharge regardless of whether the 

person acting has previously approved 

the sentence. The ‘‘unexecuted part of 

any sentence’’ is that part that has been 

approved and ordered executed but that 

has not actually been carried out.’’ 

(oo) R.C.M. 1301(c) is amended to 

read as follows: 

[Note: R.C.M. 1301(c) applies to offenses 

committed on or after 24 June 2014. The 

previous version of R.C.M. 1301(c) is 

located in Appendix 29.] 

(pp) R.C.M. 1301(c) is amended to 

number the current paragraph as (1) and 

insert a new second paragraph after the 

current Discussion as follows: 

‘‘(2) Notwithstanding subsection (c)(1) 

above, summary courts-martial do not 

have jurisdiction over offenses under 

Articles 120(a), 120(b), 120b(a), 120b(b), 

forcible sodomy under Article 125, and 

attempts thereof under Article 80, 

UCMJ. Such offenses shall not be 

referred to a summary court-martial.’’ 

(qq) R.C.M. 406(b)(2) and R.C.M. 1103 

are amended by changing ‘‘report of 

investigation’’ to ‘‘report of preliminary 

hearing’’ for offenses committed on or 

after 26 December 2014. 

(rr) R.C.M. 603(b) and R.C.M. 

912(f)(1)(F) are amended by changing 

‘‘an investigating officer’’ to ‘‘a 

preliminary hearing officer’’ for offenses 

committed on or after 26 December 

2014. 

(ss) R.C.M. 705(c)(2)(E), R.C.M. 

905(b)(1), and R.C.M. 906(b)(3) are 

amended by changing ‘‘Article 32 

investigation’’ to ‘‘Article 32 

preliminary hearing’’ for offenses 

committed on or after 26 December 

2014. 

(tt) R.C.M. 706(a), R.C.M. 706(c)(3)(A), 

R.C.M. 902(b)(2), R.C.M. 912(a)(1)(K), 

R.C.M. 1106(b), and R.C.M. 1112(c) are 

amended by changing ‘‘investigating 

officer’’ to ‘‘preliminary hearing officer’’ 

for offenses committed on or after 26 

December 2014. 

Sec. 2. Part III of the Manual for 

Courts-Martial, United States, is 

amended as follows: 

(a) Mil. R. Evid. 412(c)(2) is amended 

to read as follows: 

‘‘(2) Before admitting evidence under 

this rule, the military judge must 

conduct a hearing, which shall be 

closed. At this hearing, the parties may 

call witnesses, including the alleged 

victim, and offer relevant evidence. The 

alleged victim must be afforded a 

reasonable opportunity to attend and be 

heard. The right to be heard under this 

rule includes the right to be heard 

through counsel. In a case before a 

court-martial comprised 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 in accordance with 

R.C.M. 1103A and remain under seal 

unless the military judge or an appellate 

court orders otherwise.’’ 

(b) Mil. R. Evid. 513(e)(2) is amended 

to read as follows: 

‘‘(2) Before ordering the production or 

admission of evidence of a patient’s 

records or communication, the military 

judge shall conduct a hearing. Upon the 

motion of counsel for either party and 

upon good cause shown, the military 

judge may order the hearing closed. At 

the hearing, the parties may call 

witnesses, including the patient, and 

offer other relevant evidence. The 

patient shall be afforded a reasonable 

opportunity to attend the hearing and be 

heard at the patient’s own expense 

unless the patient has been otherwise 

subpoenaed or ordered to appear at the 

hearing. The right to be heard under this 

rule includes the right to be heard 

through counsel. However, the 

proceedings shall not be unduly delayed 

for this purpose. In a case before a courtmartial comprised of a military judge 

and members, the military judge shall 

conduct the hearing outside the 

presence of the members.’’ 

(c) The title of Mil. R. Evid. 514 is 

amended to read as follows: 

‘‘Victim advocate-victim and DoD 

Safe Helpline staff-victim privilege.’’ 

(d) Mil. R. Evid. 514(a) is amended to 

read as follows: 

‘‘(a) General Rule. A victim has a 

privilege to refuse to disclose and to 

prevent any other person from 

disclosing a confidential 

communication made between the 

alleged victim and a victim advocate or 

between the alleged victim and DoD 

Safe Helpline staff, in a case arising 

under the Uniform Code of Military 

Justice, if such communication was 

made for the purpose of facilitating 

advice or assistance to the alleged 

victim.’’ 

(e) Mil. R. Evid. 514(b)(3)–(5) is 

amended to read as follows 

‘‘(3) ‘‘DoD Safe Helpline staff’’ is a 

person who is designated by competent 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59946 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

authority in writing as DoD Safe 

Helpline staff. 

(4) A communication is 

‘‘confidential’’ if made in the course of 

the victim advocate-victim relationship 

or DoD Safe Helpline staff-victim 

relationship and not intended to be 

disclosed to third persons other than 

those to whom disclosure is made in 

furtherance of the rendition of advice or 

assistance to the alleged victim or those 

reasonably necessary for such 

transmission of the communication. 

(5) ‘‘Evidence of a victim’s records or 

communications’’ means testimony of a 

victim advocate or DoD Safe Helpline 

staff, or records that pertain to 

communications by a victim to a victim 

advocate or DoD Safe Helpline staff, for 

the purposes of advising or providing 

assistance to the victim.’’ 

(g) Mil. R. Evid. 514(c) is amended to 

read as follows: 

‘‘(c) Who May Claim the Privilege. The 

privilege may be claimed by the victim 

or the guardian or conservator of the 

victim. A person who may claim the 

privilege may authorize trial counsel or 

a counsel representing the victim to 

claim the privilege on his or her behalf. 

The victim advocate or DoD Safe 

Helpline staff who received the 

communication may claim the privilege 

on behalf of the victim. The authority of 

such a victim advocate, DoD Safe 

Helpline staff, guardian, conservator, or 

a counsel representing the victim to so 

assert the privilege is presumed in the 

absence of evidence to the contrary.’’ 

(h) Mil. R. Evid. 514(d)(2)–(4) is 

amended to read as follows: 

‘‘(2) When federal law, state law, 

Department of Defense regulation, or 

service regulation imposes a duty to 

report information contained in a 

communication; 

(3) When a victim advocate or DoD 

Safe Helpline staff believes that a 

victim’s mental or emotional condition 

makes the victim a danger to any 

person, including the victim; 

(4) If the communication clearly 

contemplated the future commission of 

a fraud or crime, or if the services of the 

victim advocate or DoD Safe Helpline 

staff are sought or obtained to enable or 

aid anyone to commit or plan to commit 

what the victim knew or reasonably 

should have known to be a crime or 

fraud;’’ 

(j) Mil. R. Evid. 514(e)(2) is amended 

to read as follows: 

‘‘(2) Before ordering the production or 

admission of evidence of a victim’s 

records or communication, the military 

judge must conduct a hearing. Upon the 

motion of counsel for either party and 

upon good cause shown, the military 

judge may order the hearing closed. At 

the hearing, the parties may call 

witnesses, including the victim, and 

offer other relevant evidence. The 

victim must be afforded a reasonable 

opportunity to attend the hearing and be 

heard at the victim’s own expense 

unless the victim has been otherwise 

subpoenaed or ordered to appear at the 

hearing. The right to be heard under this 

rule includes the right to be heard 

through counsel. However, the 

proceedings may not be unduly delayed 

for this purpose. In a case before a courtmartial composed of a military judge 

and members, the military judge must 

conduct the hearing outside the 

presence of the members.’’ 

(k) Mil. R. Evid. 615(e) is amended to 

read as follows: 

‘‘(e) A victim of an offense from the 

trial of an accused for that offense, 

unless the military judge, after receiving 

clear and convincing evidence, 

determines that testimony by the victim 

would be materially altered if the victim 

heard other testimony at that hearing or 

proceeding.’’ 

Sec. 3. Part IV of the Manual for 

Courts-Martial, United States, is 

amended as follows: 

(a) Paragraph 5, Article 81— 

Conspiracy, subsection a. is amended to 

read as follows: 

‘‘a. Text of statute. 

(a) Any person subject to this chapter 

who conspires with any other person to 

commit an offense under this chapter 

shall, if one or more of the conspirators 

does an act to effect the object of the 

conspiracy, be punished as a courtmartial may direct. 

(b) Any person subject to this chapter 

who conspires with any other person to 

commit an offense under the law of war, 

and who knowingly does an overt act to 

effect the object of the conspiracy, shall 

be punished, if death results to one or 

more of the victims, by death or such 

other punishment as a court-martial or 

military commission may direct, and, if 

death does not result to any of the 

victims, by such punishment, other than 

death, as a court-martial or military 

commission may direct.’’ 

(b) Paragraph 5, Article 81— 

Conspiracy, subsection b. is amended to 

read as follows: 

‘‘b. Elements. 

(1) Conspiracy. 

(a) That the accused entered into an 

agreement with one or more persons to 

commit an offense under the UCMJ; and 

(b) That, while the agreement 

continued to exist, and while the 

accused remained a party to the 

agreement, the accused or at least one of 

the co-conspirators performed an overt 

act for the purpose of bringing about the 

object of the conspiracy. 

(2) Conspiracy when offense is an 

offense under the law of war resulting in 

the death of one or more victims. 

(a) That the accused entered into an 

agreement with one or more persons to 

commit an offense under the law of war; 

(b) That, while the agreement 

continued to exist, and while the 

accused remained a party to the 

agreement, the accused knowingly 

performed an overt act for the purpose 

of bringing about the object of the 

conspiracy; and 

(c) That death resulted to one or more 

victims.’’ 

(c) Paragraph 5, Article 81— 

Conspiracy, paragraph e. is amended by 

adding ‘‘However, if the offense is also 

an offense under the law of war, the 

person knowingly performed an overt 

act for the purpose of bringing about the 

object of the conspiracy, and death 

results to one or more victims, the death 

penalty shall be an available 

punishment.’’ to the end of the 

paragraph. 

(d) Paragraph 5, Article 81— 

Conspiracy, paragraph f. is amended to 

read as follows: 

‘‘f. Sample specifications. 

(1) Conspiracy. 

In that lllll (personal 

jurisdiction data), did, (at/on board— 

location) (subject-matter jurisdiction 

data, if required), on or about llll 

20 l lll, conspired with l lll 

(and l llll) to commit an offense 

under the Uniform Code of Military 

Justice, to wit: (larceny of l llll, 

of a value of (about) $ l llll, the 

property of l llll), and in order to 

effect the object of the conspiracy the 

said l llll (and l llll) did 

l llll. 

(2) Conspiracy when offense is an 

offense under the law of war resulting in 

the death of one or more victims. 

In that l llll lll (personal 

jurisdiction data), did, (at/on board— 

location) (subject-matter jurisdiction 

data, if required), on or about l lll 

20 l lll, conspired with l lll 

(and l llll) to commit an offense 

under the law of war, to wit: (murder of 

l llll), and in order to effect the 

object of the conspiracy the 

said l llll knowingly did l 

llll resulting in the death of l 

llll lll.’’ 

(e) Paragraph 16, Article 92—Failure 

to obey order or regulation, is amended 

by inserting the following text after 

subparagraph b(3)(c) and adding a new 

subparagraph b(3)(d): 

‘‘(Note: In cases where the dereliction of 

duty resulted in death or grievous 

bodily harm, add the following as 

applicable) 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59947 

(d) That such dereliction of duty 

resulted in death or grievous bodily 

harm to a person other than the 

accused.’’ 

(f) Paragraph 16, Article 92—Failure 

to obey order or regulation, is amended 

by inserting new subparagraphs c(3)(e) 

and (f) as follows: 

‘‘(e) Grievous bodily harm. ‘‘Grievous 

bodily harm’’ means serious bodily 

injury. It does not include minor 

injuries, such as a black eye or a bloody 

nose, but does include fractured or 

dislocated bones, deep cuts, torn 

members of the body, serious damage to 

internal organs, and other serious bodily 

injuries. 

(f) Where the dereliction of duty 

resulted in death or grievous bodily 

harm, an intent to cause death or 

grievous bodily harm is not required.’’ 

(g) Paragraph 16, Article 92—Failure 

to obey order or regulation, is amended 

by inserting new subparagraph e(3)(B), 

re-lettering the existing subparagraph 

e(3)(B) as subparagraph e(3)(C) and 

inserting a new subparagraph e(3)(D) as 

follows: 

‘‘(B) Through neglect or culpable 

inefficiency resulting in death or 

grievous bodily harm. Bad-conduct 

discharge, forfeiture of all pay and 

allowances, and confinement for 18 

months. 

(C) Willful. Bad-conduct discharge, 

forfeiture of all pay and allowances, and 

confinement for 6 months. 

(D) Willful dereliction of duty 

resulting in death or grievous bodily 

harm. Dishonorable discharge, forfeiture 

of all pay and allowances, and 

confinement for 2 years.’’ 

(h) Paragraph 16, Article 92—Failure 

to obey order or regulation, is amended 

by inserting new subparagraph f(4) as 

follows: 

‘‘(4) Dereliction in the performance of 

duties. 

In that, l llll ll_ (personal 

jurisdiction data), who (knew) (should 

have known) of his/her duties (at/on 

board—location) (subject-matter 

jurisdiction data, if required), (on or 

about l 20 l) (from about l lll 20 

l l to about l lll20ll), was 

derelict in the performance of those 

duties in that he/she (negligently) 

(willfully) (by culpable inefficiency) 

failed l llll, as it was his/her duty 

to do (, and that such dereliction of duty 

resulted in (grievous bodily harm, to 

wit: (broken leg) (deep cut) (fractured 

skull) to) (the death of) l llll 

lll.) 

(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.)’’ 

(i) Paragraph 17, Article 93—Cruelty 

and maltreatment, paragraph e. is 

amended to read as follows: 

‘‘ e. Maximum punishment. 

Dishonorable discharge, forfeiture of all 

pay and allowances, and confinement 

for 2 years.’’ 

(j) Paragraph 57, Article 131—Perjury, 

paragraphs c. is amended by changing 

‘‘an investigation conducted under 

Article 32’’ to ‘‘a preliminary hearing 

conducted under Article 32’’ and by 

changing ‘‘an Article 32 investigation’’ 

to ‘‘an Article 32 preliminary hearing’’ 

for offenses occurring on or after 26 

December 2014. 

(k) Paragraph 96, Article 134— 

Obstructing justice, paragraph f. is 

amended by changing ‘‘an investigating 

officer’’ to ‘‘a preliminary hearing 

officer’’ and by changing ‘‘before such 

investigating officer’’ to ‘‘before such 

preliminary hearing officer’’ for offenses 

occurring on or after 26 December 2014. 

(l) Paragraph 96a, Article 134— 

Wrongful interference with an adverse 

administrative proceeding, paragraph f. 

is amended by changing ‘‘an 

investigating officer’’ to ‘‘a preliminary 

hearing officer’’ and by changing 

‘‘before such investigating officer’’ to 

‘‘before such preliminary hearing 

officer’’ for offenses occurring on or 

after 26 December 2014. 

Sec. 4. Appendix 12, Maximum 

Punishment Chart is amended and reads 

as follows: 

(a) Article 92, Failure to obey order, 

regulation, Dereliction in performance 

of duties is amended to read as follows: 

‘‘Through neglect or culpable inefficiency ............................................................. None ......................... 3 mos. ....................... 2/3 3 mos. 

Through neglect or culpable inefficiency resulting in death or grievous bodily 

harm.

BCD .......................... 18 mos. ..................... Total 

Willful ....................................................................................................................... BCD .......................... 6 mos. ....................... Total 

Willful dereliction of duty resulting in death or grievous bodily harm .............. DD, BCD ................... 3 yrs. ........................ Total’’ 

(b) Article 93, Cruelty & maltreatment 

of subordinates is amended to read as 

follows: 

‘‘Cruelty & maltreatment of subordinates ............................................................... DD, BCD ................... 2 yrs. ........................ Total’’ 

(c) Article 118, Murder is amended to 

delete the superscript ‘‘4’’ attached to 

‘‘Life’’ under the heading 

‘‘Confinement’’ for ‘‘article 118(1) or 

(4)’’. 

(d) Article 134 is amended by 

inserting a new section ‘‘Stolen 

property: knowingly receiving, buying, 

concealing’’ before the entry for Article 

134 ‘‘Straggling’’ as follows: 

‘‘Stolen property: knowingly receiving, buying, concealing 

Of a value of $500.00 or less ............................................................................ BCD .......................... 6 mos. ....................... Total 

Of a value of more than $500.00 ...................................................................... DD ............................ 3 yrs. ........................ Total’’ 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59948 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

Sec. 5. Appendix 21, Analysis of 

Rules for Courts-Martial is amended as 

follows: 

(a) Rule 201 is amended to insert the 

following at the end: 

‘‘2014 Amendment. The discussion 

was amended in light of Solorio v. 

United States, 483 U.S. 435 (1987). 

O’Callahan v. Parker, 395 U.S. 258 

(1969), held that an offense under the 

Code could not be tried by court-martial 

unless the offense was ‘‘service 

connected.’’ Solorio overruled 

O’Callahan. The struck language was 

inadvertently left in prior revisions of 

the Manual.’’ 

(b) Rule 201(f) is amended to insert 

the following at the end: 

‘‘2014 Amendment: R.C.M. 

201(f)(2)(D) was created to implement 

Section 1705 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013, and 

applies to offenses occurring on or after 

24 June 2014. Sec. 1705(c), P.L. 113– 

66.’’ 

(c) Rule 305(i) is amended to insert 

the following at the end: 

‘‘2014 Amendment: R.C.M. 305(i)(2) 

was revised to implement Articles 

6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as 

created by Section 1701 of the National 

Defense Authorization Act for Fiscal 

Year 2014, P.L. 113–66, 26 December 

2013.’’ 

(d) Rule 305 is amended to insert the 

following at the end: 

‘‘(n) 2014 Amendment: R.C.M. 305(n) 

was created to implement Article 

6b(a)(2)(E), UCMJ, as created by Section 

1701 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013.’’ 

(e) A new Analysis section is inserted 

for Rule 404A and reads as follows: 

‘‘2014 Amendment. This is a new rule 

created to implement Section 1702 of 

the National Defense Authorization Act 

for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, and applies to offenses 

occurring on or after 26 December 2014. 

Sec. 1702(d)(1), P.L. 113–66. 

(f) The existing analysis to Rule 405 

is removed and new analysis is inserted 

to read as follows: 

‘‘2014 Amendment. This rule was 

substantially revised by Section 1702 of 

the National Defense Authorization Act 

for Fiscal Year 2014, P.L. 113–66, 26 

December 2013. This new rule takes 

effect on 26 December 2014. Sec. 

1702(d)(1), P.L. 113–66. For offenses 

occurring prior to 26 December 2014, 

refer to prior versions of R.C.M. 405. For 

Article 32 hearings covering offenses 

occurring both before and on or after 26 

December 2014, rules contained within 

prior versions of R.C.M. 405 should be 

used for offenses before 26 December 

2014, and this rule should be used for 

offenses occurring on or after 26 

December 2014.’’ The analysis related to 

the prior version of R.C.M. 405 is 

located in Appendix 30. 

(g) Rule 601(f) is amended by 

removing the word ‘‘new’’ before 

‘‘provision’’ 

(h) Rule 601 is amended by inserting 

the following at the end: 

‘‘(g) Parallel convening authorities. 

The intent of this new provision is to 

allow a successor convening authority 

to exercise full authority over charges, 

without having to effectuate re-referral 

or potentially a new trial. The 

subsection incorporates a 

recommendation of the May 2013 report 

of the Defense Legal Policy Board 

(DLPB), Report of the Subcommittee on 

Military Justice in Combat Zones. The 

DLPB is a Federal Advisory Committee 

established to provide independent 

advice to the Secretary of Defense. The 

DLPB found that an inhibition to 

retaining cases in an area of operations 

is the inability of a convening authority 

to transmit a case to another convening 

authority after referral of charges 

without having to withdraw the 

charges.’’ 

(i) Rule 801(a) is amended to insert 

the following at the end: 

‘‘2014 Amendment: R.C.M. 801(a)(6) 

was created to implement Section 1701 

of the National Defense Authorization 

Act for Fiscal Year 2014, P.L. 113–66, 26 

December 2013.’’ 

(j) Rule 806(b) is amended by 

inserting the following at the end: 

‘‘2014 Amendment: R.C.M. 806(b)(2) 

was revised to implement Article 

6b(a)(3), UCMJ, as created by Section 

1701 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013.’’ 

(k) Rule 906(b) is amended to insert 

the following at the end: 

‘‘2014 Amendment: R.C.M. 906(b)(8) 

was revised to implement Articles 

6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as 

created by Section 1701 of the National 

Defense Authorization Act for Fiscal 

Year 2014, P.L. 113–66, 26 December 

2013.’’ 

(l) Rule 1001(a) is amended by 

inserting the following at the end: 

‘‘2014 Amendment: R.C.M. 1001(a)(1) 

was revised to implement Article 

6b(a)(4)(B), UCMJ, as created by Section 

1701 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013.’’ 

(m) A new Analysis section is 

inserted for Rule 1001A and reads as 

follows: 

‘‘2014 Amendment. R.C.M. 1001A 

was added to implement Article 

6b(a)(4)(B), UCMJ, as created by Section 

1701 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013. 

(n) Rule 1103A is amended to insert 

the following: 

‘‘This rule shall be implemented in a 

manner consistent with Executive Order 

12958, as amended, concerning 

classified national security 

information.’’ 

(o) Rule 1105(b) is amended to insert 

the following at the end: 

‘‘2014 Amendment: R.C.M. 1105(b) 

was revised to implement Section 1706 

of the National Defense Authorization 

Act for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, and applies to offenses 

occurring on or after 24 June 2014.’’ 

(p) Rule 1107(b) is amended to insert 

the following at the end: 

‘‘2014 Amendment: This subsection 

was revised to implement Article 60(c), 

UCMJ, as amended by Section 1702 of 

the National Defense Authorization Act 

for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, as well as Section 1706 

of the National Defense Authorization 

Act for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, and applies to offenses 

occurring on or after 24 June 2014. For 

offenses occurring prior to 24 June 2014, 

refer to prior versions of R.C.M. 

1107(b).’’ 

(q) The existing analysis to Rule 

1107(c) is removed and new analysis is 

inserted as follows: 

‘‘2014 Amendment: This subsection 

was substantially revised to implement 

Article 60(c), UCMJ, as amended by 

Section 1702 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013, and 

applies to offenses occurring on or after 

24 June 2014. For offenses occurring 

prior to 24 June 2014, refer to prior 

versions of R.C.M. 1107(c).’’ 

(r) The existing analysis to Rule 

1107(d) is removed and new analysis is 

inserted as follows: 

‘‘2014 Amendment: This subsection 

was substantially revised to implement 

Article 60(c), UCMJ, as amended by 

Section 1702 of the National Defense 

Authorization Act for Fiscal Year 2014, 

P.L. 113–66, 26 December 2013, and 

applies to offenses occurring on or after 

24 June 2014. For offenses occurring 

prior to 24 June 2014, refer to prior 

versions of R.C.M. 1107(d).’’ 

(s) Rule 1107(f) is amended by 

inserting the following at the end: 

‘‘2014 Amendment: This subsection 

was revised to implement Article 60(c), 

UCMJ, as amended by Section 1702 of 

the National Defense Authorization Act 

for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, and applies to offenses 

occurring on or after 24 June 2014. For 

offenses occurring prior to 24 June 2014, 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59949 

refer to prior versions of R.C.M. 

1107(f).’’ 

(t) Rule 1108(b) is amended by 

inserting the following at the end: 

‘‘2014 Amendment: This subsection 

was revised to implement Article 60(c), 

UCMJ, as amended by Section 1702 of 

the National Defense Authorization Act 

for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, and applies to offenses 

occurring on or after 24 June 2014. For 

offenses occurring prior to 24 June 2014, 

refer to prior versions of R.C.M. 

1108(b).’’ 

(u) Rule 1301(c) is amended by 

inserting the following at the end: 

‘‘2014 Amendment: This subsection 

was revised to implement Section 1705 

of the National Defense Authorization 

Act for Fiscal Year 2014, P.L. 113–66, 26 

December 2013, and applies to offenses 

occurring on or after 24 June 2014. Sec. 

1705(c), P.L. 113–66.’’ 

Sec. 6. Appendix 22, Analysis of the 

Military Rules of Evidence is amended 

as follows: 

(a) Rule 412 is amended by inserting 

the following at the end: 

‘‘2014 Amendment. Rule 412(c)(2) 

was revised in accordance with L.R.M. 

v. Kastenberg, 72 M.J. 364 (C.A.A.F. 

2013).’’ 

(b) Rule 513 is amended by inserting 

the following at the end: 

‘‘2014 Amendment. Rule 513(e)(2) 

was revised in accordance with L.R.M. 

v. Kastenberg, 72 M.J. 364 (C.A.A.F. 

2013).’’ 

(c) Rule 514 is amended by inserting 

the following at the end: 

‘‘2014 Amendment. Rule 514(e)(2) 

was revised in accordance with L.R.M. 

v. Kastenberg, 72 M.J. 364 (C.A.A.F. 

2013). Rule 514 was also revised to 

protect communications made to the 

DoD Safe Helpline, which is a crisis 

support service for victims of sexual 

assault in the Department of Defense. 

The DoD Safe Helpline was established 

in 2011 under a contract with the Rape, 

Abuse & Incest National Network.’’ 

(d) Rule 615 is amended by inserting 

the following at the end: 

‘‘2014 Amendment: Rule 615(e) was 

revised to implement Section 1701 of 

the National Defense Authorization Act 

for Fiscal Year 2014, P.L. 113–66, 26 

December 2013.’’ 

Sec. 7. Appendix 23, Analysis of 

Punitive Articles is amended as follows: 

Paragraph 16, Article 92—Failure to 

obey order or regulation, is amended by 

inserting the following at the end: 

‘‘2014 Amendment. Subsection b(3) 

was amended to increase the 

punishment for dereliction of duty 

when such dereliction results in 

grievous bodily harm or death. 

Subsection b(3)(d) incorporates a 

recommendation of the May 2013 report 

of the Defense Legal Policy Board 

(DLPB), Report of the Subcommittee on 

Military Justice in Combat Zones. The 

DLPB is a Federal Advisory Committee 

established to provide independent 

advice to the Secretary of Defense. The 

DLPB subcommittee primarily focused 

on civilian casualties in a deployed 

environment, and the DLPB found that 

the maximum punishment for 

dereliction of duty was not 

commensurate with the potential 

consequences of dereliction resulting in 

civilian casualties. The DLPB also found 

that the available punishment did not 

make alternative dispositions to courtmartial a practical option because there 

was little incentive for an accused to 

accept these alternatives. This rule 

expands on the recommendation of the 

DLPB and includes elevated maximum 

punishment for dereliction of duty that 

results in death or grievous bodily harm 

suffered by any person.’’ 

Sec. 8. The Discussion to Part II of the 

Manual for Courts-Martial, United 

States, is amended as follows: 

(a) The Discussion following R.C.M. 

201(a)(2) is amended to read as follows: 

‘‘Except insofar as required by the 

Constitution, the Code, or the Manual, 

such as persons listed under Article 

2(a)(10), jurisdiction of courts-martial 

does not depend on where the offense 

was committed.’’ 

(b) A new Discussion section is added 

immediately following R.C.M. 

201(f)(2)(D): 

‘‘Pursuant to the National Defense 

Authorization Act for Fiscal Year 2014, 

only a general court-martial has 

jurisdiction over penetrative sex 

offenses under Articles 120, 120b, and 

125, UCMJ.’’ 

(c) A new Discussion section is added 

immediately after R.C.M. 

305(i)(2)(A)(iv): 

‘‘Personal appearance by the victim is 

not required. A victim’s right to be 

reasonably heard at a 7-day review may 

also be accomplished telephonically, by 

videoteleconference, or by written 

statement.’’ 

(d) A new Discussion section is added 

immediately after R.C.M. 305(j)(1)(C): 

‘‘Upon a motion for release from 

pretrial confinement, a victim of an 

alleged offense committed by the 

prisoner has the right to reasonable, 

accurate, and timely notice of the 

motion and any hearing, the right to 

consult with counsel representing the 

government, and the right to be 

reasonably heard. Inability to reasonably 

afford a victim these rights shall not 

delay the proceedings.’’ 

(e) A new Discussion section is added 

immediately after R.C.M. 305(n): 

‘‘For purposes of this rule, the term 

‘‘victim of an alleged offense’’ means a 

person who has suffered direct physical, 

emotional, or pecuniary harm as a result 

of the commission of an offense under 

the UCMJ.’’ 

(f) The discussion section following 

R.C.M. 404(e) is amended to read as 

follows: 

‘‘A preliminary hearing should be 

directed when it appears that the 

charges are of such a serious nature that 

trial by general court-martial may be 

warranted. See R.C.M. 405. If a 

preliminary hearing of the subject 

matter already has been conducted, see 

R.C.M. 405(b) and 405(e)(2).’’ 

(g) A new Discussion section is added 

immediately following R.C.M. 404A(d): 

‘‘The purposes of this rule are to 

provide the accused with the documents 

used to make the determination to 

prefer charges and direct a preliminary 

hearing, and to allow the accused to 

prepare for the preliminary hearing. 

This rule is not intended to be a tool for 

discovery and does not impose the same 

discovery obligations found in R.C.M. 

405 prior to amendments required by 

the National Defense Authorization Act 

for Fiscal Year 2014 or R.C.M. 701. 

Additional rules for disclosure of 

witnesses and other evidence in the 

preliminary hearing are provided in 

R.C.M. 405(g).’’ 

(h) A new Discussion section is added 

immediately after R.C.M. 405(a): 

‘‘The function of the preliminary 

hearing is to ascertain and impartially 

weigh the facts needed for the limited 

scope and purpose of the preliminary 

hearing. The preliminary hearing is not 

intended to perfect a case against the 

accused and is not intended to serve as 

a means of discovery or to provide a 

right of confrontation required at trial. 

Determinations and recommendations 

of the preliminary hearing officer are 

advisory. 

Failure to substantially comply with 

the requirements of Article 32, which 

failure prejudices the accused, may 

result in delay in disposition of the case 

or disapproval of the proceedings. See 

R.C.M. 905(b)(1) and 906(b)(3) 

concerning motions for appropriate 

relief relating to the preliminary 

hearing. 

The accused may waive the 

preliminary hearing. See subsection (k) 

of this rule. In such case, no preliminary 

hearing need be held. However, the 

convening authority authorized to direct 

the preliminary hearing may direct that 

it be conducted notwithstanding the 

waiver.’’ 

(i) A new Discussion section is added 

immediately after R.C.M. 405(d)(1): 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59950 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

‘‘The preliminary hearing officer, if 

not a judge advocate, should be an 

officer in the grade of O-4 or higher. The 

preliminary hearing officer may seek 

legal advice concerning the preliminary 

hearing officer’s responsibilities from an 

impartial source, but may not obtain 

such advice from counsel for any party 

or counsel for a victim.’’ 

(j) A new Discussion section is added 

immediately after R.C.M. 405(e)(2): 

‘‘Except as set forth in subsection (h) 

below, the Mil. R. Evid. do not apply at 

a preliminary hearing. Except as 

prohibited elsewhere in this rule, a 

preliminary hearing officer may 

consider evidence, including hearsay, 

which would not be admissible at trial.’’ 

(k) A new Discussion section is added 

immediately after R.C.M. 405(f)(2)(G): 

‘‘Unsworn statements by the accused, 

unlike those made under R.C.M. 

1001(c)(2), shall be limited to matters in 

defense and mitigation.’’ 

(l) A new Discussion section is added 

immediately after R.C.M. 405(g)(1)(C): 

‘‘A commanding officer’s 

determination of whether an individual 

is available, as well as the means by 

which the individual is available, 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 deny 

production of the witness. Based on 

operational necessity and mission 

requirements, the witness’s 

commanding officer may authorize the 

witness to testify by video conference, 

telephone, or similar means of remote 

testimony. Factors to be considered in 

making this determination include the 

costs of producing the witness; the 

timing of the request for production of 

the witness; the potential delay in the 

proceeding that may be caused by the 

production of the witness; and the 

likelihood of significant interference 

with operational deployment, mission 

accomplishment, or essential training.’’ 

(m) A new Discussion section is 

added immediately after R.C.M. 

405(g)(2)(C): 

‘‘Factors to be considered in making 

this determination include the costs of 

producing the witness; the timing of the 

request for production of the witness; 

the potential delay in the proceeding 

that may be caused by the production of 

the witness; the willingness of the 

witness to testify in person; and, for 

child witnesses, the traumatic effect of 

providing in-person testimony. Civilian 

witnesses may not be compelled to 

provide testimony at a preliminary 

hearing. Civilian witnesses may be paid 

for travel and associated expenses to 

testify at a preliminary hearing. See 

Department of Defense Joint Travel 

Regulations.’’ 

(n) A new Discussion section is added 

immediately after R.C.M. 

405(g)(3)(B)(iii): 

‘‘A subpoena duces tecum to produce 

books, papers, documents, data, 

electronically stored information, or 

other objects for a preliminary hearing 

pursuant to Article 32 may be issued by 

counsel for the government. The 

preliminary hearing officer has no 

authority to issue a subpoena duces 

tecum. However, the preliminary 

hearing officer may direct counsel for 

the government to issue a subpoena 

duces tecum for defense-requested 

evidence.’’ 

(o) A new Discussion section is added 

immediately after R.C.M. 405(h)(5): 

‘‘Before considering evidence offered 

under subsection (h)(2), the preliminary 

hearing officer must determine that the 

evidence offered is relevant for the 

limited scope and purpose of the 

hearing, that the evidence is proper 

under subsection (h)(2), and that the 

probative value of such evidence 

outweighs the danger of unfair prejudice 

to the alleged victim’s privacy. The 

preliminary hearing officer shall set 

forth any limitations on the scope of 

such evidence. 

Evidence offered under subsection 

(h)(2) above must be protected pursuant 

to the Privacy Act of 1974, 5 U.S.C. 

§ 552a. Although Mil. R. Evid. 

412(b)(1)(C) allows admission of 

evidence of the victim’s sexual behavior 

or predisposition at trial when it is 

constitutionally required, there is no 

constitutional requirement at an Article 

32 hearing. There is likewise no 

constitutional requirement for a pretrial 

hearing officer to consider evidence 

under Mil. R. Evid. 513(d)(8), and 

514(d)(6) at an Article 32 hearing. 

Evidence deemed admissible by the 

preliminary hearing officer should be 

made a part of the report of preliminary 

hearing. See subsection (j)(2)(C), infra. 

Evidence not considered, and the 

testimony taken during a closed hearing, 

should not be included in the report of 

preliminary hearing but should be 

appropriately safeguarded or sealed. 

The preliminary hearing officer and 

counsel representing the government are 

responsible for careful handling of any 

such evidence to prevent unauthorized 

viewing or disclosure.’’ 

(p) A new Discussion section is added 

immediately after R.C.M. 405(i)(1): 

‘‘A preliminary hearing officer may 

only consider evidence within the 

limited purpose of the preliminary 

hearing and shall ensure that the scope 

of the hearing is limited to that purpose. 

When the preliminary hearing officer 

finds that evidence offered by either 

party is not within the scope of the 

hearing, he shall inform the parties and 

halt the presentation of that 

information.’’ 

(q) A new Discussion section is added 

immediately after R.C.M. 405(i)(3)(A): 

‘‘The following oath may be given to 

witnesses: 

‘‘Do you (swear) (affirm) that the 

evidence you give shall be the truth, the 

whole truth, and nothing but the truth 

(so help you God)?’’ 

The preliminary hearing officer is 

required to include in the report of the 

preliminary hearing a summary of the 

substance of all testimony. See 

subsection (j)(2)(B) of this rule. After the 

hearing, the preliminary hearing officer 

should, whenever possible, reduce the 

substance of the testimony of each 

witness to writing. 

All substantially verbatim notes of 

testimony and recordings of testimony 

should be preserved until the end of 

trial. 

If during the preliminary hearing any 

witness subject to the Code is suspected 

of an offense under the Code, the 

preliminary hearing officer should 

comply with the warning requirements 

of Mil. R. Evid. 305(c), (d), and, if 

necessary (e). 

Bearing in mind that counsel are 

responsible for preparing and presenting 

their cases, the preliminary hearing 

officer may ask a witness questions 

relevant to the limited scope and 

purpose of the hearing. When 

questioning a witness, the preliminary 

hearing officer may not depart from an 

impartial role and become an advocate 

for either side.’’ 

(r) A new Discussion section is added 

immediately after R.C.M. 405(i)(6): 

‘‘Counsel for the government shall 

provide victims with access to, or a 

copy of, the recording of the 

proceedings in accordance with such 

regulations as the Secretary concerned 

may prescribe.’’ 

(s) A new Discussion section is added 

immediately after R.C.M. 405(j)(1): 

‘‘If practicable, the charges and the 

report of preliminary hearing should be 

forwarded to the general court-martial 

convening authority within 8 days after 

an accused is ordered into arrest or 

confinement. See Article 33, UCMJ.’’ 

(t) A new Discussion section is added 

immediately after R.C.M. 405(j)(2)(K): 

‘‘The preliminary hearing officer may 

include any additional matters useful to 

the convening authority in determining 

disposition. The preliminary hearing 

officer may recommend that the charges 

and specifications be amended or that 

additional charges be preferred. See 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59951 

R.C.M. 306 and 401 concerning other 

possible dispositions.’’ 

(u) A new Discussion section is added 

immediately after R.C.M. 405(k): 

‘‘See also R.C.M. 905(b)(1); 906(b)(3). 

The convening authority who receives 

an objection may direct that the 

preliminary hearing be reopened or take 

other action, as appropriate.’’ 

(v) A new Discussion section is added 

immediately after R.C.M. 601(g): 

‘‘Parallel convening authorities are 

those convening authorities that possess 

the same court-martial jurisdiction 

authority. Examples of permissible 

transmittal of charges under this rule 

include the transmittal from a general 

court-martial convening authority to 

another general court-martial convening 

authority, or from one special courtmartial convening authority to another 

special court-martial convening 

authority. It would be impracticable for 

an original convening authority to 

continue exercising authority over the 

charges, for example, when a command 

is being decommissioned or inactivated, 

or when deploying or redeploying and 

the accused is remaining behind. If 

charges have been referred, there is no 

requirement that the charges be 

withdrawn or dismissed prior to 

transfer. See R.C.M. 604. In the event 

that the case has been referred, the 

receiving convening authority may 

adopt the original court-martial 

convening order, including the courtmartial panel selected to hear the case 

as indicated in that convening order. 

When charges are transmitted under this 

rule, no recommendation as to 

disposition may be made.’’ 

(w) A new Discussion section is 

added immediately after R.C.M. 

801(a)(6)(A): 

‘‘The rights that a designee may 

exercise on behalf of a victim include 

the right to receive notice of public 

hearings in the case; the right to be 

reasonably heard at such hearings, if 

permitted by law; and the right to confer 

with counsel representing the 

government at such hearings. The 

designee may also be the custodial 

guardian of the child. 

When determining whom to appoint 

under this rule, the military judge may 

consider the following: the age and 

maturity, relationship to the victim, and 

physical proximity of any proposed 

designee; the costs incurred in effecting 

the appointment; the willingness of the 

proposed designee to serve in such a 

role; the previous appointment of a 

guardian by another court of competent 

jurisdiction; the preference of the 

victim; any potential delay in any 

proceeding that may be caused by a 

specific appointment; and any other 

relevant information.’’ 

(x) A new Discussion section is added 

immediately after R.C.M. 801(a)(6)(B)(i): 

‘‘In the event a case involves multiple 

victims who are entitled to notice under 

this rule, each victim is only entitled to 

notice relating to their own designated 

representative.’’ 

(y) A new Discussion section is added 

immediately after R.C.M. 801(a)(6)(D): 

‘‘The term ‘‘victim of an offense under 

the UCMJ’’ means a person who has 

suffered direct physical, emotional, or 

pecuniary harm as a result of the 

commission of an offense under the 

UCMJ. ‘‘Good Cause’’ means adequate or 

reasonable grounds to believe that the 

individual appointed to assume the 

victim’s rights is not acting or does not 

intend to act in the best interest of the 

victim.’’ 

(z) The Discussion section following 

R.C.M. 806(b)(1) is amended to read as 

follows: 

‘‘The military judge must ensure that 

the dignity and decorum of the 

proceedings are maintained and that the 

other rights and interests of the parties 

and society are protected. Public access 

to a session may be limited, specific 

persons excluded from the courtroom, 

and, under unusual circumstances, a 

session may be closed. 

Exclusion of specific persons, if 

unreasonable under the circumstances, 

may violate the accused’s right to a 

public trial, even though other 

spectators remain. Whenever specific 

persons or some members of the public 

are excluded, exclusion must be limited 

in time and scope to the minimum 

extent necessary to achieve the purpose 

for which it is ordered. Prevention of 

overcrowding or noise may justify 

limiting access to the courtroom. 

Disruptive or distracting appearance or 

conduct may justify excluding specific 

persons. Specific persons may be 

excluded when necessary to protect 

witnesses from harm or intimidation. 

Access may be reduced when no other 

means is available to relieve a witness’ 

inability to testify due to embarrassment 

or extreme nervousness. Witnesses will 

ordinarily be excluded from the 

courtroom so that they cannot hear the 

testimony of other witnesses. See Mil. R. 

Evid. 615. 

For purposes of this rule, the term 

‘‘victim of an alleged offense’’ means a 

person who has suffered direct, 

physical, emotional, or pecuniary harm 

as a result of the commission of an 

offense under the UCMJ.’’ 

(aa) The discussion section following 

R.C.M. 906(b)(9) is amended to read as 

follows: 

‘‘A motion for severance is a request 

that one or more accused against whom 

charges have been referred to a joint or 

common trial be tried separately. Such 

a request should be granted if good 

cause is shown. For example, a 

severance may be appropriate when: the 

moving party wishes to use the 

testimony of one or more of the 

coaccused or the spouse of a coaccused; 

a defense of a coaccused is antagonistic 

to the moving party; or evidence as to 

any other accused will improperly 

prejudice the moving accused. 

If a severance is granted by the 

military judge, the military judge will 

decide which accused will be tried first. 

See R.C.M. 801(a)(1). In the case of joint 

charges, the military judge will direct an 

appropriate amendment of the charges 

and specifications. 

See also R.C.M. 307(c)(5); 601(e)(3); 

604; 812.’’ 

(bb) A new Discussion section is 

added immediately after R.C.M. 

1103A(b)(3): 

‘‘A convening authority who has 

granted clemency based upon review of 

sealed materials in the record of trial is 

not permitted to disclose the contents of 

the sealed materials when providing a 

written explanation of the reason for 

such action, as directed under R.C.M. 

1107.’’ 

(cc) The Discussion section following 

R.C.M. 1106(d)(3) is amended to read as 

follows: 

‘‘The recommendation required by 

this rule need not include information 

regarding other recommendations for 

clemency. It may include a summary of 

clemency actions authorized under 

R.C.M. 1107. See R.C.M. 1105(b)(2)(D) 

(pertaining to clemency 

recommendations that may be 

submitted by the accused to the 

convening authority).’’ 

(dd) The Discussion section 

immediately following R.C.M. 1107(c) is 

deleted. 

(ee) A new Discussion section is 

added immediately after R.C.M. 

1107(d)(1)(E)(i): 

‘‘The phrase ‘‘investigation or 

prosecution of another person who has 

committed an offense’’ includes offenses 

under the UCMJ or other Federal, State, 

local, or foreign criminal statutes.’’ 

(ff) The Discussion section 

immediately following R.C.M. 

1107(d)(1) is deleted. 

(gg) A new Discussion section is 

added immediately after R.C.M. 

1107(d)(1)(F): 

‘‘A sentence adjudged by a courtmartial may be approved if it was 

within the jurisdiction of the courtmartial to adjudge (see R.C.M. 201(f)) 

and did not exceed the maximum limits 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59952 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

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 courtmartial. When mitigating confinement 

or hard labor without confinement, the 

convening authority should use the 

equivalencies at R.C.M. 1003(b)(5)–(6), 

as appropriate. 

Unless prohibited by this rule, the 

convening authority may disapprove, 

mitigate or change to a less severe 

punishment any individual component 

of a sentence. For example, if an 

accused is found guilty of assault 

consummated by a battery and 

sentenced to a bad-conduct discharge, 

three months of confinement, and 

reduction to E–1, without a pre-trial 

agreement and without being able to 

apply the substantial assistance 

exception, the convening authority may 

disapprove or reduce any part of the 

sentence except the bad-conduct 

discharge.’’ 

(hh) The Discussion section following 

R.C.M. 1107(d)(2) is amended to read as 

follows: 

‘‘In determining what sentence should 

be approved, the convening authority 

should consider all relevant and 

permissible 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. 

1001–1004. 

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.’’ 

(ii) The Discussion section following 

R.C.M. 1107(d)(1)(E)(i) is amended to 

read as follows: 

‘‘The phrase ‘‘investigation or 

prosecution of another person who has 

committed an offense’’ includes offenses 

under the UCMJ or other Federal, State, 

local, or foreign criminal statutes.’’ 

(jj) A new Discussion section is added 

immediately after R.C.M. 1301(c)(2): 

‘‘Pursuant to the National Defense 

Authorization Act for Fiscal Year 2014, 

only a general court-martial has 

jurisdiction to try penetrative sex 

offenses under Articles 120, 120b, and 

125, UCMJ.’’ 

(kk) The Discussion sections to R.C.M. 

406(b)(4), R.C.M. 503(a)(1), and 

707(c)(1) are amended by changing 

‘‘investigating officer’’ to ‘‘preliminary 

hearing officer’’ for offenses occurring 

on or after 26 December 2014. 

(ll) The Discussion section to R.C.M. 

701(a)(6)(c) is amended by changing 

‘‘report of Article 32 investigation’’ to 

‘‘report of Article 32 preliminary 

hearing’’ for offenses occurring on or 

after 26 December 2014. 

(mm) The Discussion section to 

R.C.M. 705(d)(2) and R.C.M. 919(b) are 

amended by changing ‘‘Article 32 

investigation’’ to ‘‘Article 32 

preliminary hearing’’ for offenses 

occurring on or after 26 December 2014. 

Sec. 9. The Discussion to Part IV of 

the Manual for Courts-Martial, United 

States, is amended as follows: 

A new Discussion section is added 

immediately following Paragraph 16, 

Article 92—Failure to obey order or 

regulation, subsection e(3)(d): 

‘‘If the dereliction of duty resulted in 

death, the accused may also be charged 

under Article 119 or Article 134 

(negligent homicide), as applicable.’’ 

Sec. 10. A new appendix, Appendix 

29 is inserted to read as follows: 

‘‘Appendix 29 

Rules for Courts-Martial Applicable to 

Offenses Committed Before 24 June 

2014 

The Rules for Courts-Martial in this 

appendix were revised to implement 

Sections 1705, and 1706 of the National 

Defense Authorization Act for Fiscal Year 

2014, Public Law 113–66, 26 December 2013. 

For offenses committed before 24 June 2014, 

the relevant Rules for Courts-Martial are 

contained in this appendix and listed below. 

Rule 201. Jurisdiction in General 

(f) Types of courts-martial. 

(1) General courts-martial. 

(A) Cases under the code. 

(i) Except as otherwise expressly provided, 

general courts-martial may try any person 

subject to the code for any offense made 

punishable under the code. General courtsmartial 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 courtsmartial 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 

offenses by the code and Part IV of this 

Manual; or 

(b) The case has not been referred with a 

special instruction that the case is to be tried 

as capital. 

(B) Cases under the law of war. 

(i) General courts-martial may try any 

person who by the law of war is subject to 

trial by military tribunal for any crime or 

offense against: 

(a) The law of war; or 

(b) The law of the territory occupied as an 

incident of war or belligerency whenever the 

local civil authority is superseded in whole 

or part by the military authority of the 

occupying power. The law of the occupied 

territory includes the local criminal law as 

adopted or modified by competent authority, 

and the proclamations, ordinances, 

regulations, or orders promulgated by 

competent authority of the occupying power. 

Discussion 

Subsection (f)(1)(B)(i)(b) is an exercise of 

the power of military government. 

(ii) When a general court-martial exercises 

jurisdiction under the law of war, it may 

adjudge any punishment permitted by the 

law of war. 

Discussion 

Certain limitations on the discretion of 

military tribunals to 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 1 year, hard labor 

without confinement for more than 3 months, 

forfeiture of pay exceeding two-thirds pay 

per month, or any forfeiture of pay for more 

than 1 year. 

(ii) A bad-conduct discharge, confinement 

for more than six months, or forfeiture of pay 

for more than six months, may not be 

adjudged by a special court-martial unless: 

(a) Counsel qualified under Article 27(b) is 

detailed to represent the accused; and 

(b) A military judge is detailed to the trial, 

except in a case in which a military judge 

could not be detailed because of physical 

conditions or military exigencies. Physical 

conditions or military exigencies, as the 

terms are here used, may exist under rare 

circumstances, such as on an isolated ship on 

the high seas or in a unit in an inaccessible 

area, provided compelling reasons exist why 

trial must be held at that time and at that 

place. Mere inconvenience does not 

constitute a physical condition or military 

exigency and does not excuse a failure to 

detail a military judge. If a military judge 

cannot be detailed because of physical 

conditions or military exigencies, a badconduct discharge, confinement for more 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59953 

than six months, or forfeiture of pay for more 

than six months, may be adjudged provided 

the other conditions have been met. In that 

event, however, the convening authority 

shall, prior to trial, make a written statement 

explaining why a military judge could not be 

obtained. This statement shall be appended 

to the record of trial and shall set forth in 

detail the reasons why a military judge could 

not be detailed, and why the trial had to be 

held at that time and place. 

Discussion 

See R.C.M. 503 concerning detailing the 

military judge and counsel. 

The requirement for counsel is satisfied 

when counsel qualified under Article 27(b), 

and not otherwise disqualified, has been 

detailed and made available, even though the 

accused may not choose to cooperate with, or 

use the services of, such detailed counsel. 

The physical condition or military 

exigency exception to the requirement for a 

military judge does not apply to the 

requirement for detailing counsel qualified 

under Article 27(b). 

See also R.C.M. 1103(c) concerning the 

requirements for a record of trial in special 

courts-martial. 

(C) Capital offenses 

(i) A capital offense for which there is 

prescribed a mandatory punishment beyond 

the punitive power of a special court-martial 

shall not be referred to such a court-martial. 

(ii) An officer exercising general courtmartial jurisdiction over the command which 

includes the accused may permit any capital 

offense other than one described in 

subsection (f)(2)(C)(i) of this rule to be 

referred to a special court-martial for trial. 

(iii) The Secretary concerned may 

authorize, by regulation, officers exercising 

special court-martial jurisdiction to refer 

capital offenses, other than those described 

in subsection (f)(2)(C)(i) of this rule, to trial 

by special court-martial without first 

obtaining the consent of the officer exercising 

general court-martial jurisdiction over the 

command. 

Discussion 

See R.C.M. 103(3) for a definition of capital 

offenses. 

(3) Summary courts-martial. See R.C.M. 

1301(c) and (d)(1). 

Rule 1105. Matters Submitted by the 

Accused 

(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: 

* * * * * 

(C) Matters in mitigation which were not 

available for consideration at the courtmartial; and 

Rule 1107. Action by Convening Authority 

(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) When action may be taken. The 

convening authority may take action only 

after the applicable time periods under 

R.C.M. 1105(c) have expired or the accused 

has waived the right to present matters under 

R.C.M. 1105(d), whichever is earlier, subject 

to regulations of the Secretary concerned. 

(3) Matters considered. 

(A) Required matters. Before taking action, 

the convening authority shall consider: 

(i) The result of trial; 

Discussion 

See R.C.M. 1101(a). 

(ii) The recommendation of the staff judge 

advocate or legal officer under R.C.M. 1106, 

if applicable; and 

(iii) Any matters submitted by the accused 

under R.C.M. 1105 or, if applicable, 

R.C.M. 1106(f). 

(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 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 authority may, in the convening 

authority’s sole discretion: 

(1) Change a finding of guilty to a charge 

or specification to a finding of guilty to an 

offense that is a lesser included offense of the 

offense stated in the charge or specification; 

or 

(2) Set aside any finding of guilty and— 

(A) Dismiss the specification and, if 

appropriate, the charge, or 

(B) Direct a rehearing in accordance with 

subsection (e) of this rule. 

Discussion 

The convening authority may for any 

reason or no reason disapprove a finding of 

guilty or approve a finding of guilty only of 

a 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 courtmartial. 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 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59954 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

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)(5) 

and (6), as appropriate. One form of 

punishment may be changed to a less severe 

punishment of a different nature, as long as 

the changed punishment is one that the 

court-martial could have adjudged. For 

example, a bad-conduct discharge adjudged 

by a special court-martial could be changed 

to confinement for up to one year (but not 

vice versa). A pretrial agreement may also 

affect what punishments may be changed by 

the convening authority. 

See also R.C.M. 810(d) concerning 

sentence limitations upon a rehearing or new 

or other trial. 

(2) 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 courtmartial 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 courtmartial, 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 confinement normally should be reflected 

in the action. 

(4) Limitations on sentence based on 

record of trial. If the record of trial does not 

meet the requirements of R.C.M. 

1103(b)(2)(B) or (c)(1), the convening 

authority may not approve a sentence in 

excess of that which may be adjudged by a 

special court-martial, or one that includes a 

bad-conduct discharge, confinement for more 

than six months, forfeiture of pay exceeding 

two-thirds pay per month, or any forfeiture 

of pay for more than six months. 

Discussion 

See also R.C.M. 1103(f). 

(5) Limitations on sentence of a special 

court-martial where a fine has been 

adjudged. A convening authority may not 

approve in its entirety a sentence adjudged 

at a special court-martial when, if approved, 

the cumulative impact of the fine and 

forfeitures, whether adjudged or by operation 

of Article 58b, would exceed the 

jurisdictional maximum dollar amount of 

forfeitures that may be adjudged at that courtmartial. 

(e) Ordering rehearing or other trial. 

(1) Rehearing. 

(A) In general. Subject to subsections 

(e)(1)(B) through (e)(1)(E) of this rule, the 

convening authority may in the convening 

authority’s discretion order a rehearing. A 

rehearing may be ordered as to some or all 

offenses of which findings of guilty were 

entered and the sentence, or as to sentence 

only. 

Discussion 

A rehearing may be appropriate when an 

error substantially affecting the findings or 

sentence is noticed by the convening 

authority. The severity of the findings or the 

sentence of the original court-martial may not 

be increased at a rehearing unless the 

sentence prescribed for the offense is 

mandatory. See R.C.M. 810(d). If the accused 

is placed under restraint pending a rehearing, 

see R.C.M. 304; 305. 

(B) When the convening authority may 

order a 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. 1111(a)(1) or (b)(1), 

but only as to any sentence which was 

approved or findings of guilty which were 

not disapproved in any earlier action. In such 

a case, a supplemental action disapproving 

the sentence and some or all of the findings, 

as appropriate, shall be taken; or 

(iii) When authorized to do so by superior 

competent authority. If the convening 

authority finds a rehearing as to any offenses 

impracticable, the convening authority may 

dismiss those specifications and, when 

appropriate, charges. 

Discussion 

A sentence rehearing, rather than a 

reassessment, may be more appropriate in 

cases where a significant part of the 

government’s case has been dismissed. The 

convening authority may not take any actions 

inconsistent with directives of superior 

competent authority. Where that directive is 

unclear, appropriate clarification should be 

sought from the authority issuing the original 

directive. 

(iv) Sentence reassessment. If a superior 

authority has approved some of the findings 

of guilty and has authorized a rehearing as 

to other offenses and the sentence, the 

convening authority may, unless otherwise 

directed, reassess the sentence based on the 

approved findings of guilty and dismiss the 

remaining charges. Reassessment is 

appropriate only where the convening 

authority determines that the accused’s 

sentence would have been at least of a certain 

magnitude had the prejudicial error not been 

committed and the reassessed sentence is 

appropriate in relation to the affirmed 

findings of guilty. 

(C) Limitations. 

(i) Sentence approved. A rehearing shall 

not be ordered if, in the same action, a 

sentence is approved. 

(ii) Lack of sufficient evidence. A rehearing 

may not be ordered as to findings of guilty 

when there is a lack of sufficient evidence in 

the record to support the findings of guilty 

of the offense charged or of any lesser 

included offense. A rehearing may be 

ordered, however, if the proof of guilt 

consisted of inadmissible evidence for which 

there is available an admissible substitute. A 

rehearing may be ordered as to any lesser 

offense included in an offense of which the 

accused was found guilty, provided there is 

sufficient evidence in the record to support 

the lesser included offense. 

Discussion 

For example, if proof of absence without 

leave was by improperly authenticated 

documentary evidence admitted over the 

objection of the defense, the convening 

authority may disapprove the findings of 

guilty and sentence and order a rehearing if 

there is reason to believe that properly 

authenticated documentary evidence or other 

admissible evidence of guilt will be available 

at the rehearing. On the other hand, if no 

proof of unauthorized absence was 

introduced at trial, a rehearing may not be 

ordered. 

(iii) Rehearing on sentence only. A 

rehearing on sentence only shall not be 

referred to a different kind of court-martial 

from that which made the original findings. 

If the convening authority determines a 

rehearing on sentence is impracticable, the 

convening authority may approve a sentence 

of no punishment without conducting a 

rehearing. 

(D) 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 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59955 

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. 

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. 

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 courtmartial 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. 1113(e)(2)(C) concerning the 

place of confinement. 

(D) Custody or confinement pending 

appellate review; capital cases. When a 

record of trial involves an approved sentence 

to death, the convening authority shall, 

unless any approved sentence of confinement 

has been ordered into execution and a place 

of confinement designated, provide in the 

action for the temporary custody or 

confinement of the accused pending final 

disposition of the case on appellate review. 

(E) Deferment of service of sentence to 

confinement. Whenever the service of the 

sentence to confinement is deferred by the 

convening authority under R.C.M. 1101(c) 

before or concurrently with the initial action 

in the case, the action shall include the date 

on which the deferment became effective. 

The reason for the deferment need not be 

stated in the action. 

(F) Credit for illegal pretrial confinement. 

When the military judge has directed that the 

accused receive credit under R.C.M. 305(k), 

the convening authority shall so direct in the 

action. 

(G) Reprimand. The convening authority 

shall include in the action any reprimand 

which the convening authority has ordered 

executed. 

Discussion 

See R.C.M. 1003(b)(1) concerning 

reprimands. 

(5) Action on rehearing or new or other 

trial. 

(A) Rehearing or other trial. In acting on a 

rehearing or other trial the convening 

authority shall be subject to the sentence 

limitations prescribed in R.C.M. 810(d). 

Except when a rehearing or other trial is 

combined with a trial on additional offenses 

and except as otherwise provided in R.C.M. 

810(d), if any part of the original sentence 

was suspended and the suspension was not 

properly vacated before the order directing 

the rehearing, the convening authority shall 

take the necessary suspension action to 

prevent an increase in the same type of 

punishment as was previously suspended. 

The convening authority may approve a 

sentence adjudged upon a rehearing or other 

trial regardless whether any kind or amount 

of the punishment adjudged at the former 

trial has been served or executed. However, 

in computing the term or amount of 

punishment to be actually served or executed 

under the new sentence, the accused shall be 

credited with any kind or amount of the 

former sentence included within the new 

sentence that was served or executed before 

the time it was disapproved or set aside. The 

convening authority shall, if any part of a 

sentence adjudged upon a rehearing or other 

trial is approved, direct in the action that any 

part or amount of the former sentence served 

or executed between the date it was adjudged 

and the date it was disapproved or set aside 

shall be credited to the accused. If, in the 

action on the record of a rehearing, the 

convening authority disapproves the findings 

of guilty of all charges and specifications 

which were tried at the former hearing and 

that part of the sentence which was based on 

these findings, the convening authority shall, 

unless a further rehearing is ordered, provide 

in the action that all rights, privileges, and 

property affected by any executed portion of 

the sentence adjudged at the former hearing 

shall be restored. The convening authority 

shall take the same restorative action if a 

court-martial at a rehearing acquits the 

accused of all charges and specifications 

which were tried at the former hearing. 

(B) New trial. The action of the convening 

authority on a new trial shall, insofar as 

practicable, conform to the rules prescribed 

for rehearings and other trials in subsection 

(f)(5)(A) of this rule. 

Discussion 

See R.C.M. 810 for procedures at other trials. 

In approving a sentence not in excess of or 

more severe than one previously approved 

(see R.C.M. 810(d)), a convening authority is 

prohibited from approving a punitive 

discharge more severe than one formerly 

approved, e.g., a convening authority is 

prohibited from approving a dishonorable 

discharge if a bad conduct discharge had 

formerly been approved. Otherwise, in 

approving a sentence not in excess of or more 

severe than one previously imposed, a 

convening authority is not limited to 

approving the same or lesser type of ‘‘other 

punishments’’ formerly approved. 

Rule 1108. Suspension of Execution of 

Sentence; Remission 

(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 courtmartial convening authority over the accused 

at the time of the court-martial may, when 

taking the action under R.C.M. 1112(f), 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59956 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

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 or 

a sentence of confinement for life without 

eligibility for parole that has been ordered 

executed. The Secretary concerned may, 

however, suspend or remit the unexecuted 

part of a sentence of confinement for life 

without eligibility for parole only after the 

service of a period of confinement of not less 

than 20 years. The commander of the accused 

who has the authority to convene a courtmartial of the kind that adjudged the 

sentence may suspend or remit any part of 

the unexecuted part of any sentence by 

summary court-martial or of any sentence by 

special court- martial that does not include 

a bad-conduct discharge regardless of 

whether the person acting has previously 

approved the sentence. The ‘‘unexecuted part 

of any sentence’’ is that part that has been 

approved and ordered executed but that has 

not actually been carried out. 

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. 

Rule 1301. Summary courts-martial 

generally 

(c) Jurisdiction. Subject to Chapter II, 

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.’’ 

Sec. 10. A new appendix, Appendix 

30 is inserted and reads as follows: 

‘‘Appendix 30 

Rules for Courts-Martial 405 

Applicable to Offenses Committed 

Before 26 December 2014 

Rule for Courts-Martial 405 in this 

appendix was revised to implement Section 

1702 of the National Defense Authorization 

Act for Fiscal Year 2014, Public Law 113–66, 

26 December 2013.’’ For offenses committed 

before 26 December 2014, the relevant R.C.M. 

405 is contained in this appendix and listed 

below: 

Rule 405. Pretrial investigation 

(a) In general. Except as provided in 

subsection (k) of this rule, no charge or 

specification may be referred to a general 

court-martial for trial until a thorough and 

impartial investigation of all the matters set 

forth therein has been made in substantial 

compliance with this rule. Failure to comply 

with this rule shall have no effect if the 

charges are not referred to a general courtmartial. 

Discussion 

The primary purpose of the investigation 

required by Article 32 and this rule is to 

inquire into the truth of the matters set forth 

in the charges, the form of the charges, and 

to secure information on which to determine 

what disposition should be made of the case. 

The investigation also serves as a means of 

discovery. The function of the investigation 

is to ascertain and impartially weigh all 

available facts in arriving at conclusions and 

recommendations, not to perfect a case 

against the accused. The investigation should 

be limited to the issues raised by the charges 

and necessary to proper disposition of the 

case. The investigation is not limited to 

examination of the witnesses and evidence 

mentioned in the accompanying allied 

papers. See subsection (e) of this rule. 

Recommendations of the investigating officer 

are advisory. 

If at any time after an investigation under 

this rule the charges are changed to allege a 

more serious or essentially different offense, 

further investigation should be directed with 

respect to the new or different matters 

alleged. 

Failure to comply substantially with the 

requirements of Article 32, which failure 

prejudices the accused, may result in delay 

in disposition of the case or disapproval of 

the proceedings. See R.C.M. 905(b)(1) and 

906(b)(3) concerning motions for appropriate 

relief relating to the pretrial investigation. 

The accused may waive the pretrial 

investigation. See subsection (k) of this rule. 

In such case, no investigation need be held. 

The commander authorized to direct the 

investigation may direct that it be conducted 

notwithstanding the waiver. 

(b) Earlier investigation. If an investigation 

of the subject matter of an offense has been 

conducted before the accused is charged with 

an offense, and the accused was present at 

the investigation and afforded the rights to 

counsel, cross-examination, and presentation 

of evidence required by this rule, no further 

investigation is required unless demanded by 

the accused to recall witnesses for further 

cross-examination and to offer new evidence. 

Discussion 

An earlier investigation includes courts of 

inquiry and similar investigations which 

meet the requirements of this subsection. 

(c) Who may direct investigation. Unless 

prohibited by regulations of the Secretary 

concerned, an investigation may be directed 

under this rule by any court-martial 

convening authority. That authority may also 

give procedural instructions not inconsistent 

with these rules. 

(d) Personnel. 

(1) Investigating officer. The commander 

directing an investigation under this rule 

shall detail a commissioned officer not the 

accuser, as investigating officer, who shall 

conduct the investigation and make a report 

of conclusions and recommendations. The 

investigating officer is disqualified to act 

later in the same case in any other capacity. 

Discussion 

The investigating officer should be an 

officer in the grade of major or lieutenant 

commander or higher or one with legal 

training. The investigating officer may seek 

legal advice concerning 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 counsel. The 

accused may request to be represented by 

individual military counsel. Such requests 

shall be acted on in accordance with R.C.M. 

506(b). When the accused is represented by 

individual military counsel, counsel detailed 

to represent the accused shall ordinarily be 

excused, unless the authority who detailed 

the defense counsel, as a matter of discretion, 

approves a request 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 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. 

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 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59957 

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 charged 

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(c)(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 selfincrimination under Article 31; 

(8) Cross-examine witnesses who are 

produced under subsection (g) of this rule; 

(9) Have witnesses produced as provided 

for in subsection (g) of this rule; 

(10) Have evidence, including documents 

or physical evidence, within the control of 

military authorities produced as provided 

under subsection (g) of this rule; 

(11) Present anything in defense, 

extenuation, or mitigation for consideration 

by the investigating officer; and 

(12) Make a statement in any form. 

(g) Production of witnesses and evidence; 

alternatives. 

(1) In general. 

(A) Witnesses. Except as provided in 

subsection (g)(4)(A) of this rule, any witness 

whose testimony would be relevant to the 

investigation and not cumulative, shall be 

produced if reasonably available. This 

includes witnesses requested by the 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.’’ 

Discussion 

A witness located beyond the 100-mile 

limit is not per se unavailable. To determine 

if a witness beyond 100 miles is reasonably 

available, the significance of the witness’ live 

testimony must be balanced against the 

relative difficulty and expense of obtaining 

the witness’ presence at the hearing. 

(B) Evidence. Subject to Mil. R. Evid., 

Section V, evidence, including documents or 

physical evidence, which is under the 

control of the Government and which is 

relevant to the investigation and not 

cumulative, shall be produced if reasonably 

available. Such evidence includes evidence 

requested by the accused, if the request is 

timely. As soon as practicable after receipt of 

a request by the accused for information 

which may be protected under Mil. R. Evid. 

505 or 506, the investigating officer shall 

notify the person who is authorized to issue 

a protective order under subsection (g)(6) of 

this rule, and the convening authority, if 

different. Evidence is reasonably available if 

its significance outweighs the difficulty, 

expense, delay, and effect on military 

operations of obtaining the evidence. 

Discussion 

In preparing for the investigation, the 

investigating officer should consider what 

evidence will be necessary to prepare a 

thorough and impartial investigation. The 

investigating officer should consider, as to 

potential witnesses, whether their personal 

appearance will be necessary. Generally, 

personal appearance is preferred, but the 

investigating officer should consider 

whether, in light of the probable importance 

of a witness’ testimony, an alternative to 

testimony under subsection (g)(4)(A) of this 

rule would be sufficient. 

After making a preliminary determination 

of what witnesses will be produced and other 

evidence considered, the investigating officer 

should notify the defense and inquire 

whether it requests the production of other 

witnesses or evidence. In addition to 

witnesses for the defense, the defense may 

request production of witnesses whose 

testimony would favor the prosecution. 

Once it is determined what witnesses the 

investigating officer intends to call it must be 

determined whether each witness is 

reasonably available. That determination is a 

balancing test. The more important the 

testimony of the witness, the greater the 

difficulty, expense, delay, or effect on 

military operations must be to permit 

nonproduction. For example, the temporary 

absence of a witness on leave for 10 days 

would normally justify using an alternative 

to that witness’ personal appearance if the 

sole reason for the witness’ testimony was to 

impeach the credibility of another witness by 

reputation evidence, or to establish a 

mitigating character trait of the accused. On 

the other hand, if the same witness was the 

only eyewitness to the offense, personal 

appearance would be required if the defense 

requested it and the witness is otherwise 

reasonably available. The time and place of 

the investigation may be changed if 

reasonably necessary to permit the 

appearance of a witness. Similar 

considerations apply to the production of 

evidence. 

If the production of witnesses or evidence 

would entail substantial costs or delay, the 

investigating officer should inform the 

commander who directed the investigation. 

The provision in (B), requiring the 

investigating officer to notify the appropriate 

authorities of requests by the accused for 

information privileged under Mil. R. Evid. 

505 or 506, is for the purpose of placing the 

appropriate authority on notice that an order, 

as authorized under subparagraph (g)(6), may 

be required to protect whatever information 

the government may decide to release to the 

accused. 

(2) Determination of reasonable 

availability. 

(A) Military witnesses. The investigating 

officer shall make an initial determination 

whether a military witness is reasonably 

available. If the investigating officer decides 

that the witness is not reasonably available, 

the investigating officer shall inform the 

parties. Otherwise, the immediate 

commander of the witness shall be requested 

to make the witness available. A 

determination by the immediate commander 

that the witness is not reasonably available 

is not subject to appeal by the accused but 

may be reviewed by the military judge under 

R.C.M. 906(b)(3). 

Discussion 

The investigating officer may discuss 

factors affecting 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. Except for use in 

support of the deposition of a witness under 

Article 49, UCMJ, and ordered pursuant to 

R.C.M. 702(b), the investigating officer and 

any government representative to an Article 

32, UCMJ, proceeding does not possess 

authority to issue a subpoena to compel 

against his or her will a civilian witness to 

appear and provide testimony or documents. 

(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 

mstockstill on DSK4VPTVN1PROD with NOTICES2

59958 Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 

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. 

(D) Action when witness or evidence is not 

reasonably available. If the defense objects to 

a determination that a witness or evidence is 

not reasonably available, the investigating 

officer shall include a statement of the 

reasons for the determination in the report of 

investigation. 

(3) Witness expenses. Transportation 

expenses and a per diem allowance may be 

paid to civilians requested to testify in 

connection with an investigation under this 

rule according to regulations prescribed by 

the Secretary of a Department. 

Discussion 

See Department of Defense Joint Travel 

Regulations, Vol 2, paragraphs C3054, C6000. 

(4) Alternatives to testimony. 

(A) Unless the defense objects, an 

investigating officer may consider, regardless 

of the availability of the witness: 

(i) Sworn statements; 

(ii) Statements under oath taken by 

telephone, radio, or similar means providing 

each party the opportunity to question the 

witness under circumstances by which the 

investigating officer may reasonably 

conclude that the witness’ identity is as 

claimed; 

(iii) Prior testimony under oath; 

(iv) Depositions; 

(v) Stipulations of fact or expected 

testimony; 

(vi) 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 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 

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 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)(1)(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 crossexamining witnesses. 

Discussion 

The following oath may be given to 

witnesses: 

‘‘Do you (swear) (affirm) that the evidence 

you give shall be the truth, the whole truth, 

and nothing but the truth (so help you 

God)?’’ 

The investigating officer is required to 

include in the report of the investigation a 

summary of the substance of all testimony. 

See subsection (j)(2)(B) of this rule. After the 

hearing, the investigating officer should, 

whenever possible, reduce the substance of 

the testimony of each witness to writing. 

If the accused testifies, the investigating 

officer may invite but not require the accused 

to swear to the truth of a summary of that 

testimony. If substantially verbatim notes of 

a testimony or recordings of testimony were 

taken during the investigation, they should 

be preserved until the end of trial. 

If it appears that material witnesses for 

either side will not be available at the time 

anticipated for trial, the investigating officer 

should notify the commander who directed 

the investigation so that depositions may be 

taken if necessary. 

If during the investigation any witness 

subject to the code is suspected of an offense 

under the code, the investigating officer 

should comply with the warning 

requirements of Mil. R. Evid.305(c), (d), and, 

if necessary, (e). 

(B) Other evidence. The investigating 

officer shall inform the parties what other 

evidence will be considered. The parties 

shall be permitted to examine all other 

evidence considered by the investigating 

officer. 

(C) Defense evidence. The defense shall 

have full opportunity to present any matters 

in defense, extenuation, or mitigation. 

(2) Objections. Any objection alleging 

failure to comply with this rule, except 

subsection (j), shall be made to the 

investigating officer promptly upon 

discovery of the alleged error. The 

investigating officer shall not be required to 

rule on any objection. An objection shall be 

noted in the report of investigation if a party 

so requests. The investigating officer may 

require a party to file any objection in 

writing. 

Discussion 

See also subsection (k) of this rule. 

Although the investigating officer is not 

required to rule on objections, the 

investigating officer may take corrective 

action in response to an objection as to 

matters relating to the conduct of the 

proceedings when the investigating officer 

believes such action is appropriate. 

If an objection raises a substantial question 

about a matter within the authority of the 

commander who directed the investigation 

(for example, whether the investigating 

officer was properly appointed) the 

investigating officer should promptly inform 

the commander who directed the 

investigation. 

(3) Access by spectators. Access by 

spectators to all or part of the proceedings 

may be restricted or foreclosed in the 

discretion of the commander who directed 

the investigation or the investigating officer. 

Article 32 investigations are public hearings 

and should remain open to the public 

whenever possible. When an overriding 

interest exists that outweighs the value of an 

open investigation, the hearing may be closed 

to spectators. Any closure must be narrowly 

tailored to achieve the overriding interest 

that justified the closure. Commanders or 

investigating officers must conclude that no 

lesser methods short of closing the Article 32 

investigation can be used to protect the 

overriding interest in the case. Commanders 

or investigating officers must conduct a caseby-case, witness-by-witness, circumstanceby-circumstance analysis of whether closure 

is necessary. If a commander or investigating 

officer believes closing the Article 32 

investigation is necessary, the commander or 

investigating officer must make specific 

findings of fact in writing that support the 

closure. The written findings of fact must be 

included in the Article 32 investigating 

officer’s report. Examples of overriding 

interests may include: preventing 

psychological harm or trauma to a child 

witness or an alleged victim of a sexual 

crime, protecting the safety of a witness or 

alleged victim, protecting classified material, 

and receiving evidence where a witness is 

incapable of testifying in an open setting. 

(4) Presence of accused. The further 

progress of the taking of evidence shall not 

be prevented and the accused shall be 

considered to have waived the right to be 

present, whenever the accused: 

(A) After being notified of the time and 

place of the proceeding is voluntarily absent 

(whether or not informed by the investigating 

officer of the obligation to be present); or 

mstockstill on DSK4VPTVN1PROD with NOTICES2

Federal Register / Vol. 79, No. 192 / Friday, October 3, 2014 / Notices 59959 

(B) After being warned by the investigating 

officer that disruptive conduct will cause 

removal from the proceeding, persists in 

conduct which is such as to justify exclusion 

from the proceeding. 

(i) Military Rules of Evidence. The Military 

Rules of Evidence—other than Mil. R. Evid. 

301, 302, 303, 305, 412 and Section V—shall 

not apply in pretrial investigations under this 

rule. 

Discussion 

The investigating officer should exercise 

reasonable control over the scope of the 

inquiry. See subsection (e) of this rule. An 

investigating officer may consider any 

evidence, even if that evidence would not be 

admissible at trial. However, see subsection 

(g)(4) of this rule as to limitations on the 

ways in which testimony may be presented. 

Certain rules relating to the form of 

testimony which may be considered by the 

investigating officer appear in subsection (g) 

of this rule. 

(j) Report of investigation. 

(1) 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 any delays in the 

investigation; 

(G) The investigating officer’s conclusion 

whether the charges and specifications are in 

proper form; 

(H) The investigating officer’s conclusion 

whether reasonable grounds exist to believe 

that the accused committed the offenses 

alleged; and 

(I) The recommendations of the 

investigating officer, including disposition. 

Discussion 

For example, the investigating officer may 

recommend that the charges and 

specifications be amended or that additional 

charges be preferred. See R.C.M. 306 and 401 

concerning other possible dispositions. 

See Appendix 5 for a sample of the 

Investigating Officer’s Report (DD Form 457). 

(3) Distribution of the report. The 

investigating officer shall cause the report to 

be delivered to the commander who directed 

the investigation. That commander shall 

promptly cause a copy of the report to be 

delivered to each accused. 

(4) Objections. Any objection to the report 

shall be made to the commander who 

directed the investigation within 5 days of its 

receipt by the accused. This subsection does 

not prohibit a convening authority from 

referring the charges or taking other action 

within the 5-day period. 

(k) Waiver. The accused may waive an 

investigation under this rule. In addition, 

failure to make a timely objection under this 

rule, including an objection to the report, 

shall constitute waiver of the objection. 

Relief from the waiver may be granted by the 

investigating officer, the commander who 

directed the investigation, the convening 

authority, or the military judge, as 

appropriate, for good cause shown. 

Discussion 

See also R.C.M. 905(b)(1); 906(b)(3). 

If the report fails to include reference to 

objections which were made under 

subsection (h)(2) of this rule, failure to object 

to the report will constitute waiver of such 

objections in the absence of good cause for 

relief from the waiver. 

The commander who receives an objection 

may direct that the investigation be reopened 

or take other action, as appropriate. 

Even if the accused made a timely 

objection to failure to produce a witness, a 

defense request for a deposition may be 

necessary to preserve the issue for later 

review.’’ 

Dated: September 29, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–23546 Filed 10–2–14; 8:45 am] 

BILLING CODE 5001–06–P 

mstockstill on DSK4VPTVN1PROD with NOTICES2