[Federal Register Volume 63, Number 105 (Tuesday, June 2, 1998)]
[Presidential Documents]
[Pages 30065-30095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14688]



[[Page 30063]]

_______________________________________________________________________

Part V





The President





_______________________________________________________________________



Executive Order 13086--1998 Amendments to the Manual for Courts-
Martial, United States



Executive Order 13087--Further Amendment to Executive Order 11478, 
Equal Employment Opportunity in the Federal Government


                        Presidential Documents 



Federal Register / Vol. 63, No. 105 / Tuesday, June 2, 1998 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 30065]]

                Executive Order 13086 of May 27, 1998

                
1998 Amendments to the Manual for Courts-Martial, 
                United States

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including chapter 47 of title 10, United 
                States Code (Uniform Code of Military Justice, 10 
                U.S.C. 801-946), in order to prescribe amendments to 
                the Manual for Courts-Martial, United States, 
                prescribed by Executive Order No. 12473, as amended by 
                Executive Order No. 12484, Executive Order No. 12550, 
                Executive Order No. 12586, Executive Order No. 12708, 
                Executive Order No. 12767, Executive Order No. 12888, 
                Executive Order No. 12936, and Executive Order No. 
                12960, it is hereby ordered as follows:

                Section 1. Part II of the Manual for Courts-Martial, 
                United States, is amended as follows:

                a. R.C.M. 305(g) through 305(k) are amended to read as 
                follows:

                    ``(g) Who may direct release from confinement. Any 
                commander of a prisoner, an officer appointed under 
                regulations of the Secretary concerned to conduct the 
                review under subsections (i) and/or (j) of this rule 
                or, once charges have been referred, a military judge 
                detailed to the court-martial to which the charges 
                against the accused have been referred, may direct 
                release from pretrial confinement. For the purposes of 
                this subsection, ``any commander'' includes the 
                immediate or higher commander of the prisoner and the 
                commander of the installation on which the confinement 
                facility is located.
                    (h) Notification and action by commander.
                      (1) Report. Unless the commander of the prisoner 
                ordered the pretrial confinement, the commissioned, 
                warrant, noncommissioned, or petty officer into whose 
                charge the prisoner was committed shall, within 24 
                hours after that commitment, cause a report to be made 
                to the commander that shall contain the name of the 
                prisoner, the offenses charged against the prisoner, 
                and the name of the person who ordered or authorized 
                confinement.
                      (2) Action by commander.
                        (A) Decision. Not later than 72 hours after the 
                commander's ordering of a prisoner into pretrial 
                confinement or, after receipt of a report that a member 
                of the commander's unit or organization has been 
                confined, whichever situation is applicable, the 
                commander shall decide whether pretrial confinement 
                will continue. A commander's compliance with this 
                subsection may also satisfy the 48-hour probable cause 
                determination of subsection R.C.M. 305(i)(1) below, 
                provided the commander is a neutral and detached 
                officer and acts within 48 hours of the imposition of 
                confinement under military control. Nothing in 
                subsections R.C.M. 305(d), R.C.M. 305(i)(1), or this 
                subsection prevents a neutral and detached commander 
                from completing the 48-hour probable cause 
                determination and the 72-hour commander's decision 
                immediately after an accused is ordered into pretrial 
                confinement.
                        (B) Requirements for confinement. The commander 
                shall direct the prisoner's release from pretrial 
                confinement unless the commander believes upon probable 
                cause, that is, upon reasonable grounds, that:
                          (i) An offense triable by a court-martial has 
                been committed;
                          (ii) The prisoner committed it; and

[[Page 30066]]

                          (iii) Confinement is necessary because it is 
                foreseeable that:
                            (a) The prisoner will not appear at trial, 
                pretrial hearing, or investigation, or
                            (b) The prisoner will engage in serious 
                criminal misconduct; and
                          (iv) Less severe forms of restraint are 
                inadequate.
                        Serious criminal misconduct includes 
                intimidation of witnesses or other obstruction of 
                justice, serious injury to others, or other offenses 
                that pose a serious threat to the safety of the 
                community or to the effectiveness, morale, discipline, 
                readiness, or safety of the command, or to the national 
                security of the United States. As used in this rule, 
                ``national security'' means the national defense and 
                foreign relations of the United States and specifically 
                includes: military or defense advantage over any 
                foreign nation or group of nations; a favorable foreign 
                relations position; or a defense posture capable of 
                successfully resisting hostile or destructive action 
                from within or without, overt or covert.
                        (C) 72-hour memorandum. If continued pretrial 
                confinement is approved, the commander shall prepare a 
                written memorandum that states the reasons for the 
                conclusion that the requirements for confinement in 
                subsection (h)(2)(B) of this rule have been met. This 
                memorandum may include hearsay and may incorporate by 
                reference other documents, such as witness statements, 
                investigative reports, or official records. This 
                memorandum shall be forwarded to the 7-day reviewing 
                officer under subsection (i)(2) of this rule. If such a 
                memorandum was prepared by the commander before 
                ordering confinement, a second memorandum need not be 
                prepared; however, additional information may be added 
                to the memorandum at any time.
                    (i) Procedures for review of pretrial confinement.
                      (1) 48-hour probable cause determination. Review 
                of the adequacy of probable cause to continue pretrial 
                confinement shall be made by a neutral and detached 
                officer within 48 hours of imposition of confinement 
                under military control. If the prisoner is apprehended 
                by civilian authorities and remains in civilian custody 
                at the request of military authorities, reasonable 
                efforts will be made to bring the prisoner under 
                military control in a timely fashion.
                      (2) 7-day review of pretrial confinement. Within 
                7 days of the imposition of confinement, a neutral and 
                detached officer appointed in accordance with 
                regulations prescribed by the Secretary concerned shall 
                review the probable cause determination and necessity 
                for continued pretrial confinement. In calculating the 
                number of days of confinement for purposes of this 
                rule, the initial date of confinement under military 
                control shall count as one day and the date of the 
                review shall also count as one day.
                        (A) Nature of the 7-day review.
                          (i) Matters considered. The review under this 
                subsection shall include a review of the memorandum 
                submitted by the prisoner's commander under subsection 
                (h)(2)(C) of this rule. Additional written matters may 
                be considered, including any submitted by the accused. 
                The prisoner and the prisoner's counsel, if any, shall 
                be allowed to appear before the 7-day reviewing officer 
                and make a statement, if practicable. A representative 
                of the command may also appear before the reviewing 
                officer to make a statement.
                          (ii) Rules of evidence. Except for Mil. R. 
                Evid., Section V (Privileges) and Mil. R. Evid. 302 and 
                305, the Military Rules of Evidence shall not apply to 
                the matters considered.
                          (iii) Standard of proof. The requirements for 
                confinement under subsection (h)(2)(B) of this rule 
                must be proved by a preponderance of the evidence.

[[Page 30067]]

                        (B) Extension of time limit. The 7-day 
                reviewing officer may, for good cause, extend the time 
                limit for completion of the review to 10 days after the 
                imposition of pretrial confinement.
                        (C) Action by 7-day reviewing officer. Upon 
                completion of review, the reviewing officer shall 
                approve continued confinement or order immediate 
                release.
                        (D) Memorandum. The 7-day reviewing officer's 
                conclusions, including the factual findings on which 
                they are based, shall be set forth in a written 
                memorandum. A copy of the memorandum and of all 
                documents considered by the 7-day reviewing officer 
                shall be maintained in accordance with regulations 
                prescribed by the Secretary concerned and provided to 
                the accused or the Government on request.
                        (E) Reconsideration of approval of continued 
                confinement. The 7-day reviewing officer shall upon 
                request, and after notice to the parties, reconsider 
                the decision to confine the prisoner based upon any 
                significant information not previously considered.
                    (j) Review by military judge. Once the charges for 
                which the accused has been confined are referred to 
                trial, the military judge shall review the propriety of 
                the pretrial confinement upon motion for appropriate 
                relief.
                      (1) Release. The military judge shall order 
                release from pretrial confinement only if:
                        (A) The 7-day reviewing officer's decision was 
                an abuse of discretion, and there is not sufficient 
                information presented to the military judge justifying 
                continuation of pretrial confinement under subsection 
                (h)(2)(B) of this rule;
                        (B) Information not presented to the 7-day 
                reviewing officer establishes that the prisoner should 
                be released under subsection (h)(2)(B) of this rule; or
                        (C) The provisions of subsection (i)(1) or (2) 
                of this rule have not been complied with and 
                information presented to the military judge does not 
                establish sufficient grounds for continued confinement 
                under subsection (h)(2)(B) of this rule.
                      (2) Credit. The military judge shall order 
                administrative credit under subsection (k) of this rule 
                for any pretrial confinement served as a result of an 
                abuse of discretion or failure to comply with the 
                provisions of subsections (f), (h), or (i) of this 
                rule.
                    (k) Remedy. The remedy for noncompliance with 
                subsections (f), (h), (i), or (j) of this rule shall be 
                an administrative credit against the sentence adjudged 
                for any confinement served as the result of such 
                noncompliance. Such credit shall be computed at the 
                rate of 1 day credit for each day of confinement served 
                as a result of such noncompliance. The military judge 
                may order additional credit for each day of pretrial 
                confinement that involves an abuse of discretion or 
                unusually harsh circumstances. This credit is to be 
                applied in addition to any other credit to which the 
                accused may be entitled as a result of pretrial 
                confinement served. This credit shall be applied first 
                against any confinement adjudged. If no confinement is 
                adjudged, or if the confinement adjudged is 
                insufficient to offset all the credit to which the 
                accused is entitled, the credit shall be applied 
                against adjudged hard labor without confinement, 
                restriction, fine, and forfeiture of pay, in that 
                order, using the conversion formula under R.C.M. 
                1003(b)(6) and (7). For purposes of this subsection, 1 
                day of confinement shall be equal to 1 day of total 
                forfeitures or a like amount of fine. The credit shall 
                not be applied against any other form of punishment.''

[[Page 30068]]

                b. R.C.M. 405(e) is amended to read as follows:

                    ``(e) Scope of investigation. The investigating 
                officer shall inquire into the truth and form of the 
                charges, and such other matters as may be necessary to 
                make a recommendation as to the disposition of the 
                charges. If evidence adduced during the investigation 
                indicates that the accused committed an uncharged 
                offense, the investigating officer may investigate the 
                subject matter of such offense and make a 
                recommendation as to its disposition, without the 
                accused first having been charged with the offense. The 
                accused's rights under subsection (f) are the same with 
                regard to investigation of both charged and uncharged 
                offenses.''

                c. R.C.M. 706(c)(2)(D) is amended to read as follows:

                        ``(D) Is the accused presently suffering from a 
                mental disease or defect rendering the accused unable 
                to understand the nature of the proceedings against the 
                accused or to conduct or cooperate intelligently in the 
                defense of the case?''

                d. R.C.M. 707(b)(3) is amended by adding subsection (E) 
                which reads as follows:

                        ``(E) Commitment of the incompetent accused. If 
                the accused is committed to the custody of the Attorney 
                General for hospitalization as provided in R.C.M. 
                909(f), all periods of such commitment shall be 
                excluded when determining whether the period in 
                subsection (a) of this rule has run. If, at the end of 
                the period of commitment, the accused is returned to 
                the custody of the general court-martial convening 
                authority, a new 120-day time period under this rule 
                shall begin on the date of such return to custody.''

                e. R.C.M. 707(c) is amended to read as follows:

                    ``(c) Excludable delay. All periods of time during 
                which appellate courts have issued stays in the 
                proceedings, or the accused is hospitalized due to 
                incompetence, or is otherwise in the custody of the 
                Attorney General, shall be excluded when determining 
                whether the period in subsection (a) of this rule has 
                run. All other pretrial delays approved by a military 
                judge or the convening authority shall be similarly 
                excluded.''

                f. R.C.M. 809(b)(1) is amended by deleting the last 
                sentence, which reads:

                    ``In such cases, the regular proceedings shall be 
                suspended while the contempt is disposed of.''

                g. R.C.M. 809(c) is amended to read as follows:

                    ``(c) Procedure. The military judge shall in all 
                cases determine whether to punish for contempt and, if 
                so, what the punishment shall be. The military judge 
                shall also determine when during the court-martial the 
                contempt proceedings shall be conducted; however, if 
                the court-martial is composed of members, the military 
                judge shall conduct the contempt proceedings outside 
                the members' presence. The military judge may punish 
                summarily under subsection (b)(1) only if the military 
                judge recites the facts for the record and states that 
                they were directly witnessed by the military judge in 
                the actual presence of the court-martial. Otherwise, 
                the provisions of subsection (b)(2) shall apply.''

                h. R.C.M. 908(a) is amended to read as follows:

                    ``(a) In general. In a trial by a court-martial 
                over which a military judge presides and in which a 
                punitive discharge may be adjudged, the United States 
                may appeal an order or ruling that terminates the 
                proceedings with respect to a charge or specification, 
                or excludes evidence that is substantial proof of a 
                fact material in the proceedings, or directs the 
                disclosure of classified information, or that imposes 
                sanctions for nondisclosure of classified information. 
                The United States may also appeal a refusal by the 
                military judge to issue a protective order sought by 
                the United States to prevent the disclosure of 
                classified information or to enforce such an order that 
                has previously been issued by the appropriate 
                authority. However, the United States may not appeal an 
                order or ruling that is, or amounts to, a finding of 
                not guilty with respect to the charge or 
                specification.''

[[Page 30069]]

                i. R.C.M. 909 is amended to read as follows:

                    ``(a) In general. No person may be brought to trial 
                by court-martial if that person is presently suffering 
                from a mental disease or defect rendering him or her 
                mentally incompetent to the extent that he or she is 
                unable to understand the nature of the proceedings 
                against them or to conduct or cooperate intelligently 
                in the defense of the case.
                    (b) Presumption of capacity. A person is presumed 
                to have the capacity to stand trial unless the contrary 
                is established.
                    (c) Determination before referral. If an inquiry 
                pursuant to R.C.M. 706 conducted before referral 
                concludes that an accused is suffering from a mental 
                disease or defect that renders him or her mentally 
                incompetent to stand trial, the convening authority 
                before whom the charges are pending for disposition may 
                disagree with the conclusion and take any action 
                authorized under R.C.M. 401, including referral of the 
                charges to trial. If that convening authority concurs 
                with the conclusion, he or she shall forward the 
                charges to the general court-martial convening 
                authority. If, upon receipt of the charges, the general 
                court-martial convening authority similarly concurs, 
                then he or she shall commit the accused to the custody 
                of the Attorney General. If the general court-martial 
                convening authority does not concur, that authority may 
                take any action that he or she deems appropriate in 
                accordance with R.C.M. 407, including referral of the 
                charges to trial.
                    (d) Determination after referral. After referral, 
                the military judge may conduct a hearing to determine 
                the mental capacity of the accused, either sua sponte 
                or upon request of either party. If an inquiry pursuant 
                to R.C.M. 706 conducted before or after referral 
                concludes that an accused is suffering from a mental 
                disease or defect that renders him or her mentally 
                incompetent to stand trial, the military judge shall 
                conduct a hearing to determine the mental capacity of 
                the accused. Any such hearing shall be conducted in 
                accordance with paragraph (e) of this rule.
                    (e) Incompetence determination hearing.
                      (1) Nature of issue. The mental capacity of the 
                accused is an interlocutory question of fact.
                      (2) Standard. Trial may proceed unless it is 
                established by a preponderance of the evidence that the 
                accused is presently suffering from a mental disease or 
                defect rendering him or her mentally incompetent to the 
                extent that he or she is unable to understand the 
                nature of the proceedings or to conduct or cooperate 
                intelligently in the defense of the case. In making 
                this determination, the military judge is not bound by 
                the rules of evidence except with respect to 
                privileges.
                      (3) If the military judge finds the accused is 
                incompetent to stand trial, the judge shall report this 
                finding to the general court-martial convening 
                authority, who shall commit the accused to the custody 
                of the Attorney General.
                    (f) Hospitalization of the accused. An accused who 
                is found incompetent to stand trial under this rule 
                shall be hospitalized by the Attorney General as 
                provided in section 4241(d) of title 18, United States 
                Code. If notified that the accused has recovered to 
                such an extent that he or she is able to understand the 
                nature of the proceedings and to conduct or cooperate 
                intelligently in the defense of the case, then the 
                general court-martial convening authority shall 
                promptly take custody of the accused. If, at the end of 
                the period of hospitalization, the accused's mental 
                condition has not so improved, action shall be taken in 
                accordance with section 4246 of title 18, United States 
                Code.
                    (g) Excludable delay. All periods of commitment 
                shall be excluded as provided by R.C.M. 707(c). The 
                120-day time period under R.C.M. 707 shall begin anew 
                on the date the general court-martial convening 
                authority takes custody of the accused at the end of 
                any period of commitment.''

[[Page 30070]]

                j. R.C.M. 916(b) is amended to read as follows:

                    ``(b) Burden of proof. Except for the defense of 
                lack of mental responsibility and the defense of 
                mistake of fact as to age as described in Part IV, 
                para. 45c.(2) in a prosecution for carnal knowledge, 
                the prosecution shall have the burden of proving beyond 
                a reasonable doubt that the defense did not exist. The 
                accused has the burden of proving the defense of lack 
                of mental responsibility by clear and convincing 
                evidence, and has the burden of proving mistake of fact 
                as to age in a carnal knowledge prosecution by a 
                preponderance of the evidence.''

                k. R.C.M. 916(j) is amended to read as follows:

                    ``(j) Ignorance or mistake of fact.
                      (1) Generally. Except as otherwise provided in 
                this subsection, it is a defense to an offense that the 
                accused held, as a result of ignorance or mistake, an 
                incorrect belief of the true circumstances such that, 
                if the circumstances were as the accused believed them, 
                the accused would not be guilty of the offense. If the 
                ignorance or mistake goes to an element requiring 
                premeditation, specific intent, willfulness, or 
                knowledge of a particular fact, the ignorance or 
                mistake need only have existed in the mind of the 
                accused. If the ignorance or mistake goes to any other 
                element requiring only general intent or knowledge, the 
                ignorance or mistake must have existed in the mind of 
                the accused and must have been reasonable under all the 
                circumstances. However, if the accused's knowledge or 
                intent is immaterial as to an element, then ignorance 
                or mistake is not a defense.
                      (2) Carnal knowledge. It is a defense to a 
                prosecution for carnal knowledge that, at the time of 
                the sexual intercourse, the person with whom the 
                accused had sexual intercourse was at least 12 years of 
                age, and the accused reasonably believed the person was 
                at least 16 years of age. The accused must prove this 
                defense by a preponderance of the evidence.''

                l. R.C.M. 920(e)(5)(D) is amended to read as follows:

                        ``(D) The burden of proof to establish the 
                guilt of the accused is upon the Government. [When the 
                issue of lack of mental responsibility is raised, add: 
                The burden of proving the defense of lack of mental 
                responsibility by clear and convincing evidence is upon 
                the accused. When the issue of mistake of fact as to 
                age in a carnal knowledge prosecution is raised, add: 
                The burden of proving the defense of mistake of fact as 
                to age in carnal knowledge by a preponderance of the 
                evidence is upon the accused.]''

                m. R.C.M. 1005(e) is amended to read as follows:

                    ``(e) Required Instructions. Instructions on 
                sentence shall include:
                      (1) A statement of the maximum authorized 
                punishment that may be adjudged and of the mandatory 
                minimum punishment, if any;
                      (2) A statement of the effect any sentence 
                announced including a punitive discharge and 
                confinement, or confinement in excess of six months, 
                will have on the accused's entitlement to pay and 
                allowances;
                      (3) A statement of the procedures for 
                deliberation and voting on the sentence set out in 
                R.C.M. 1006;
                      (4) A statement informing the members that they 
                are solely responsible for selecting an appropriate 
                sentence and may not rely on the possibility of any 
                mitigating action by the convening or higher authority; 
                and
                      (5) A statement that the members should consider 
                all matters in extenuation, mitigation, and 
                aggravation, whether introduced before or after 
                findings, and matters introduced under R.C.M. 
                1001(b)(1), (2), (3), and (5).''

                n. The heading for R.C.M. 1101 is amended as follows:

                ``Rule 1101. Report of result of trial; post-trial 
                restraint; deferment of confinement, forfeitures and 
                reduction in grade; waiver of Article 58b forfeitures''

[[Page 30071]]

                o. R.C.M. 1101(c) is amended as follows:

                    ``(c) Deferment of confinement, forfeitures or 
                reduction in grade.
                      (1) In general. Deferment of a sentence to 
                confinement, forfeitures, or reduction in grade is a 
                postponement of the running of a sentence.
                      (2) Who may defer. The convening authority or, if 
                the accused is no longer in the convening authority's 
                jurisdiction, the officer exercising general court-
                martial jurisdiction over the command to which the 
                accused is assigned, may, upon written application of 
                the accused at any time after the adjournment of the 
                court-martial, defer the accused's service of a 
                sentence to confinement, forfeitures, or reduction in 
                grade that has not been ordered executed.
                      (3) Action on deferment request. The authority 
                acting on the deferment request may, in that 
                authority's discretion, defer service of a sentence to 
                confinement, forfeitures, or reduction in grade. The 
                accused shall have the burden of showing that the 
                interests of the accused and the community in deferral 
                outweigh the community's interest in imposition of the 
                punishment on its effective date. Factors that the 
                authority acting on a deferment request may consider in 
                determining whether to grant the deferment request 
                include, where applicable: the probability of the 
                accused's flight; the probability of the accused's 
                commission of other offenses, intimidation of 
                witnesses, or interference with the administration of 
                justice; the nature of the offenses (including the 
                effect on the victim) of which the accused was 
                convicted; the sentence adjudged; the command's 
                immediate need for the accused; the effect of deferment 
                on good order and discipline in the command; the 
                accused's character, mental condition, family 
                situation, and service record. The decision of the 
                authority acting on the deferment request shall be 
                subject to judicial review only for abuse of 
                discretion. The action of the authority acting on the 
                deferment request shall be in writing and a copy shall 
                be provided to the accused.
                      (4) Orders. The action granting deferment shall 
                be reported in the convening authority's action under 
                R.C.M. 1107(f)(4)(E) and shall include the date of the 
                action on the request when it occurs prior to or 
                concurrently with the action. Action granting deferment 
                after the convening authority's action under R.C.M. 
                1107 shall be reported in orders under R.C.M. 1114 and 
                included in the record of trial.
                      (5) Restraint when deferment is granted. When 
                deferment of confinement is granted, no form of 
                restraint or other limitation on the accused's liberty 
                may be ordered as a substitute form of punishment. An 
                accused may, however, be restricted to specified limits 
                or conditions may be placed on the accused's liberty 
                during the period of deferment for any other proper 
                reason, including a ground for restraint under R.C.M. 
                304.
                      (6) End of deferment. Deferment of a sentence to 
                confinement, forfeitures, or reduction in grade ends 
                when:
                        (A) The convening authority takes action under 
                R.C.M. 1107, unless the convening authority specifies 
                in the action that service of confinement after the 
                action is deferred;
                        (B) The confinement, forfeitures, or reduction 
                in grade are suspended;
                        (C) The deferment expires by its own terms; or
                        (D) The deferment is otherwise rescinded in 
                accordance with subsection (c)(7) of this rule. 
                Deferment of confinement may not continue after the 
                conviction is final under R.C.M. 1209.
                      (7) Rescission of deferment.
                        (A) Who may rescind. The authority who granted 
                the deferment or, if the accused is no longer within 
                that authority's jurisdiction, the officer exercising 
                general court-martial jurisdiction over the command to 
                which the accused is assigned, may rescind the 
                deferment.
                        (B) Action. Deferment of confinement, 
                forfeitures, or reduction in grade may be rescinded 
                when additional information is presented to a proper

[[Page 30072]]

                authority which, when considered with all other 
                information in the case, that authority finds, in that 
                authority's discretion, is grounds for denial of 
                deferment under subsection (c)(3) of this rule. The 
                accused shall promptly be informed of the basis for the 
                rescission and of the right to submit written matters 
                on the accused's behalf and to request that the 
                rescission be reconsidered. However, the accused may be 
                required to serve the sentence to confinement, 
                forfeitures, or reduction in grade pending this action.
                        (C) Execution. When deferment of confinement is 
                rescinded after the convening authority's action under 
                R.C.M. 1107, the confinement may be ordered executed. 
                However, no such order to rescind a deferment of 
                confinement may be issued within 7 days of notice of 
                the rescission of a deferment of confinement to the 
                accused under subsection (c)(7)(B) of this rule, to 
                afford the accused an opportunity to respond. The 
                authority rescinding the deferment may extend this 
                period for good cause shown. The accused shall be 
                credited with any confinement actually served during 
                this period.
                        (D) Orders. Rescission of a deferment before or 
                concurrently with the initial action in the case shall 
                be reported in the action under R.C.M. 1107(f)(4)(E), 
                which action shall include the dates of the granting of 
                the deferment and the rescission. Rescission of a 
                deferment of confinement after the convening 
                authority's action shall be reported in supplementary 
                orders in accordance with R.C.M. 1114 and shall state 
                whether the approved period of confinement is to be 
                executed or whether all or part of it is to be 
                suspended.''

                p. R.C.M. 101 is amended by adding the following new 
                subparagraph (d):

                    ``(d) Waiving forfeitures resulting from a sentence 
                to confinement to provide for dependent support.
                      (1) With respect to forfeiture of pay and 
                allowances resulting only by operation of law and not 
                adjudged by the court, the convening authority may 
                waive, for a period not to exceed six months, all or 
                part of the forfeitures for the purpose of providing 
                support to the accused's dependent(s). The convening 
                authority may waive and direct payment of any such 
                forfeitures when they become effective by operation of 
                Article 57(a).
                      (2) Factors that may be considered by the 
                convening authority in determining the amount of 
                forfeitures, if any, to be waived include, but are not 
                limited to, the length of the accused's confinement, 
                the number and age(s) of the accused's family members, 
                whether the accused requested waiver, any debts owed by 
                the accused, the ability of the accused's family 
                members to find employment, and the availability of 
                transitional compensation for abused dependents 
                permitted under 10 U.S.C. 1059.
                      (3) For the purposes of this Rule, a 
                ``dependent'' means any person qualifying as a 
                ``dependent'' under 37 U.S.C. 401.''

                q. The following new rule is added after R.C.M. 1102:

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

                    (a) In general. The military judge shall conduct a 
                hearing not later than forty days following the finding 
                that an accused is not guilty only by reason of a lack 
                of mental responsibility.
                    (b) Psychiatric or psychological examination and 
                report. Prior to the hearing, the military judge or 
                convening authority shall order a psychiatric or 
                psychological examination of the accused, with the 
                resulting psychiatric or psychological report 
                transmitted to the military judge for use in the post-
                trial hearing.
                    (c) Post-trial hearing.
                      (1) The accused shall be represented by defense 
                counsel and shall have the opportunity to testify, 
                present evidence, call witnesses on his or her behalf, 
                and to confront and cross-examine witnesses who appear 
                at the hearing.

[[Page 30073]]

                      (2) The military judge is not bound by the rules 
                of evidence except with respect to privileges.
                      (3) An accused found not guilty only by reason of 
                a lack of mental responsibility of an offense involving 
                bodily injury to another, or serious damage to the 
                property of another, or involving a substantial risk of 
                such injury or damage, has the burden of proving by 
                clear and convincing evidence that his or her release 
                would not create a substantial risk of bodily injury to 
                another person or serious damage to property of another 
                due to a present mental disease or defect. With respect 
                to any other offense, the accused has the burden of 
                such proof by a preponderance of the evidence.
                      (4) If, after the hearing, the military judge 
                finds the accused has satisfied the standard specified 
                in subsection (3) of this section, the military judge 
                shall inform the general court-martial convening 
                authority of this result and the accused shall be 
                released. If, however, the military judge finds after 
                the hearing that the accused has not satisfied the 
                standard specified in subsection (3) of this section, 
                then the military judge shall inform the general court-
                martial convening authority of this result and that 
                authority may commit the accused to the custody of the 
                Attorney General.''

                r. R.C.M. 1105(b) is amended to read as follows:

                    ``(b) Matters that may be submitted.
                      (1) The accused may submit to the convening 
                authority any matters that may reasonably tend to 
                affect the convening authority's decision whether to 
                disapprove any findings of guilt or to approve the 
                sentence. The convening authority is only required to 
                consider written submissions.
                      (2) Submissions are not subject to the Military 
                Rules of Evidence and may include:
                        (A) Allegations of errors affecting the 
                legality of the findings or sentence;
                        (B) Portions or summaries of the record and 
                copies of documentary evidence offered or introduced at 
                trial;
                        (C) Matters in mitigation that were not 
                available for consideration at the court-martial; and
                        (D) Clemency recommendations by any member, the 
                military judge, or any other person. The defense may 
                ask any person for such a recommendation.''

                s. R.C.M. 1107(b)(4) is amended to read as follows:

                      ``(4) When proceedings resulted in a finding of 
                not guilty or not guilty only by reason of lack of 
                mental responsibility, or there was a ruling amounting 
                to a finding of not guilty. The convening authority 
                shall not take action disapproving a finding of not 
                guilty, a finding of not guilty only by reason of lack 
                of mental responsibility, or a ruling amounting to a 
                finding of not guilty. When an accused is found not 
                guilty only by reason of lack of mental responsibility, 
                the convening authority, however, shall commit the 
                accused to a suitable facility pending a hearing and 
                disposition in accordance with R.C.M. 1102A.''

                t. The subheading for R.C.M. 1107(d)(3) is amended to 
                read as follows:

                      ``(3) Deferring service of a sentence to 
                confinement.''

                u. R.C.M. 1107(d)(3)(A) is amended to read as follows:

                        ``(A) In a case in which a court-martial 
                sentences an accused referred to in subsection (B), 
                below, to confinement, the convening authority may 
                defer service of a sentence to confinement by a court-
                martial, without the consent of the accused, until 
                after the accused has been permanently released to the 
                armed forces by a state or foreign country.''

                v. R.C.M. 1109 is amended to read as follows:

                ``Rule 1109. Vacation of suspension of sentence

[[Page 30074]]

                    (a) In general. Suspension of execution of the 
                sentence of a court-martial may be vacated for 
                violation of the conditions of the suspension as 
                provided in this rule.
                    (b) Timeliness.
                      (1) Violation of conditions. Vacation shall be 
                based on a violation of the conditions of suspension 
                that occurs within the period of suspension.
                      (2) Vacation proceedings. Vacation proceedings 
                under this rule shall be completed within a reasonable 
                time.
                      (3) Order vacating the suspension. The order 
                vacating the suspension shall be issued before the 
                expiration of the period of suspension.
                      (4) Interruptions to the period of suspension. 
                Unauthorized absence of the probationer or the 
                commencement of proceedings under this rule to vacate 
                suspension interrupts the running of the period of 
                suspension.
                    (c) Confinement of probationer pending vacation 
                proceedings.
                      (1) In general. A probationer under a suspended 
                sentence to confinement may be confined pending action 
                under subsection (d)(2) of this rule, in accordance 
                with the procedures in this subsection.
                      (2) Who may order confinement. Any person who may 
                order pretrial restraint under R.C.M. 304(b) may order 
                confinement of a probationer under a suspended sentence 
                to confinement.
                      (3) Basis for confinement. A probationer under a 
                suspended sentence to confinement may be ordered into 
                confinement upon probable cause to believe the 
                probationer violated any conditions of the suspension.
                      (4) Review of confinement. Unless proceedings 
                under subsection (d)(1), (e), (f), or (g) of this rule 
                are completed within 7 days of imposition of 
                confinement of the probationer (not including any 
                delays requested by probationer), a preliminary hearing 
                shall be conducted by a neutral and detached officer 
                appointed in accordance with regulations of the 
                Secretary concerned.
                        (A) Rights of accused. Before the preliminary 
                hearing, the accused shall be notified in writing of:
                          (i) The time, place, and purpose of the 
                hearing, including the alleged violation(s) of the 
                conditions of suspension;
                          (ii) The right to be present at the hearing;
                          (iii) The right to be represented at the 
                hearing by civilian counsel provided by the probationer 
                or, upon request, by military counsel detailed for this 
                purpose; and
                          (iv) The opportunity to be heard, to present 
                witnesses who are reasonably available and other 
                evidence, and the right to confront and cross-examine 
                adverse witnesses unless the hearing officer determines 
                that this would subject these witnesses to risk or 
                harm. For purposes of this subsection, a witness is not 
                reasonably available if the witness requires 
                reimbursement by the United States for cost incurred in 
                appearing, cannot appear without unduly delaying the 
                proceedings or, if a military witness, cannot be 
                excused from other important duties.
                        (B) Rules of evidence. Except for Mil. R. Evid. 
                Section V (Privileges) and Mil. R. Evid. 302 and 305, 
                the Military Rules of Evidence shall not apply to 
                matters considered at the preliminary hearing under 
                this rule.
                        (C) Decision. The hearing officer shall 
                determine whether there is probable cause to believe 
                that the probationer violated the conditions of the 
                probationer's suspension. If the hearing officer 
                determines that probable cause is lacking, the hearing 
                officer shall issue a written order directing that the 
                probationer be released from confinement. If the 
                hearing officer determines that there is probable cause 
                to believe that the probationer violated the conditions 
                of suspension, the hearing officer shall set forth that 
                decision in a written memorandum, detailing therein the 
                evidence relied

[[Page 30075]]

                upon and reasons for making the decision. The hearing 
                officer shall forward the original memorandum or 
                release order to the probationer's commander and 
                forward a copy to the probationer and the officer in 
                charge of the confinement facility.
                    (d) Vacation of suspended general court-martial 
                sentence.
                      (1) Action by officer having special court-
                martial jurisdiction over probationer.
                        (A) In general. Before vacation of the 
                suspension of any general court-martial sentence, the 
                officer having special court-martial jurisdiction over 
                the probationer shall personally hold a hearing on the 
                alleged violation of the conditions of suspension. If 
                there is no officer having special court-martial 
                jurisdiction over the probationer who is subordinate to 
                the officer having general court-martial jurisdiction 
                over the probationer, the officer exercising general 
                court-martial jurisdiction over the probationer shall 
                personally hold a hearing under subsection (d)(1) of 
                this rule. In such cases, subsection (d)(1)(D) of this 
                rule shall not apply.
                        (B) Notice to probationer. Before the hearing, 
                the officer conducting the hearing shall cause the 
                probationer to be notified in writing of:
                          (i) The time, place, and purpose of the 
                hearing;
                          (ii) The right to be present at the hearing;
                          (iii) The alleged violation(s) of the 
                conditions of suspension and the evidence expected to 
                be relied on;
                          (iv) The right to be represented at the 
                hearing by civilian counsel provided by the probationer 
                or, upon request, by military counsel detailed for this 
                purpose; and
                          (v) The opportunity to be heard, to present 
                witnesses and other evidence, and the right to confront 
                and cross-examine adverse witnesses, unless the hearing 
                officer determines that there is good cause for not 
                allowing confrontation and cross-examination.
                        (C) Hearing. The procedure for the vacation 
                hearing shall follow that prescribed in R.C.M. 405(g), 
                (h)(1), and (i).
                        (D) Record and recommendation. The officer who 
                conducts the vacation proceeding shall make a 
                summarized record of the proceeding and forward the 
                record and that officer's written recommendation 
                concerning vacation to the officer exercising general 
                court-martial jurisdiction over the probationer.
                        (E) Release from confinement. If the special 
                court-martial convening authority finds there is not 
                probable cause to believe that the probationer violated 
                the conditions of the suspension, the special court-
                martial convening authority shall order the release of 
                the probationer from confinement ordered under 
                subsection (c) of this rule. The special court-martial 
                convening authority shall, in any event, forward the 
                record and recommendation under subsection (d)(1)(D) of 
                this rule.
                      (2) Action by officer exercising general court-
                martial jurisdiction over probationer.
                        (A) In general. The officer exercising general 
                court-martial jurisdiction over the probationer shall 
                review the record produced by and the recommendation of 
                the officer exercising special court-martial 
                jurisdiction over the probationer, decide whether the 
                probationer violated a condition of suspension, and, if 
                so, decide whether to vacate the suspended sentence. If 
                the officer exercising general court-martial 
                jurisdiction decides to vacate the suspended sentence, 
                that officer shall prepare a written statement of the 
                evidence relied on and the reasons for vacating the 
                suspended sentence.
                        (B) Execution. Any unexecuted part of a 
                suspended sentence ordered vacated under this 
                subsection shall, subject to R.C.M. 1113(c), be ordered 
                executed.

[[Page 30076]]

                    (e) Vacation of a suspended special court-martial 
                sentence wherein a bad-conduct discharge was not 
                adjudged.
                      (1) In general. Before vacating the suspension of 
                a special court-martial punishment that does not 
                include a bad-conduct discharge, the special court-
                martial convening authority for the command in which 
                the probationer is serving or assigned shall cause a 
                hearing to be held on the alleged violation(s) of the 
                conditions of suspension.
                      (2) Notice to probationer. The person conducting 
                the hearing shall notify the probationer, in writing, 
                before the hearing of the rights specified in 
                subsection (d)(1)(B) of this rule.
                      (3) Hearing. The procedure for the vacation 
                hearing shall follow that prescribed in R.C.M. 405(g), 
                (h)(1), and (i).
                      (4) Authority to vacate suspension. The special 
                court-martial convening authority for the command in 
                which the probationer is serving or assigned shall have 
                the authority to vacate any punishment that the officer 
                has the authority to order executed.
                      (5) Record and recommendation. If the hearing is 
                not held by the commander with authority to vacate the 
                suspension, the person who conducts the hearing shall 
                make a summarized record of the hearing and forward the 
                record and that officer's written recommendation 
                concerning vacation to the commander with authority to 
                vacate the suspension.
                      (6) Decision. The special court-martial convening 
                authority shall review the record produced by and the 
                recommendation of the person who conducted the vacation 
                proceeding, decide whether the probationer violated a 
                condition of suspension, and, if so, decide whether to 
                vacate the suspended sentence. If the officer 
                exercising jurisdiction decides to vacate the suspended 
                sentence, that officer shall prepare a written 
                statement of the evidence relied on and the reasons for 
                vacating the suspended sentence.
                      (7) Execution. Any unexecuted part of a suspended 
                sentence ordered vacated under this subsection shall be 
                ordered executed.
                    (f) Vacation of a suspended special court-martial 
                sentence that includes a bad-conduct discharge.
                      (1) The procedure for the vacation of a suspended 
                approved bad-conduct discharge shall follow that set 
                forth in subsection (d) of this rule.
                      (2) The procedure for the vacation of the 
                suspension of any lesser special court-martial 
                punishment shall follow that set forth in subsection 
                (e) of this rule.
                    (g) Vacation of a suspended summary court-martial 
                sentence.
                      (1) Before vacation of the suspension of a 
                summary court-martial sentence, the summary court-
                martial convening authority for the command in which 
                the probationer is serving or assigned shall cause a 
                hearing to be held on the alleged violation(s) of the 
                conditions of suspension.
                      (2) Notice to probationer. The person conducting 
                the hearing shall notify the probationer before the 
                hearing of the rights specified in subsections 
                (d)(1)(B)(i), (ii), (iii), and (v) of this rule.
                      (3) Hearing. The procedure for the vacation 
                hearing shall follow that prescribed in R.C.M. 405(g), 
                (h)(1), and (i).
                      (4) Authority to vacate suspension. The summary 
                court-martial convening authority for the command in 
                which the probationer is serving or assigned shall have 
                the authority to vacate any punishment that the officer 
                had the authority to order executed.
                      (5) Record and recommendation. If the hearing is 
                not held by the commander with authority to vacate the 
                suspension, the person who conducts the vacation 
                proceeding shall make a summarized record of the 
                proceeding and forward the record and that officer's 
                written recommendation concerning vacation to the 
                commander with authority to vacate the suspension.

[[Page 30077]]

                      (6) Decision. A commander with authority to 
                vacate the suspension shall review the record produced 
                by and the recommendation of the person who conducted 
                the vacation proceeding, decide whether the probationer 
                violated a condition of suspension, and, if so, decide 
                whether to vacate the suspended sentence. If the 
                officer exercising jurisdiction decides to vacate the 
                suspended sentence, that officer shall prepare a 
                written statement of the evidence relied on and the 
                reasons for vacating the suspended sentence.
                      (7) Execution. Any unexecuted part of a suspended 
                sentence ordered vacated under this subsection shall be 
                ordered executed.''

                w. R.C.M. 1201(b)(3)(A) is amended to read as follows:

                        ``(A) In general. Notwithstanding R.C.M. 1209, 
                the Judge Advocate General may, sua sponte or upon 
                application of the accused or a person with authority 
                to act for the accused, vacate or modify, in whole or 
                in part, the findings, sentence, or both of a court-
                martial that has been finally reviewed, but has not 
                been reviewed either by a Court of Criminal Appeals or 
                by the Judge Advocate General under subsection (b)(1) 
                of this rule, on the ground of newly discovered 
                evidence, fraud on the court-martial, lack of 
                jurisdiction over the accused or the offense, error 
                prejudicial to the substantial rights of the accused, 
                or the appropriateness of the sentence.''

                x. R.C.M. 1203(c)(1) is amended to read as follows:

                      ``(1) Forwarding by the Judge Advocate General to 
                the Court of Appeals for the Armed Forces. The Judge 
                Advocate General may forward the decision of the Court 
                of Criminal Appeals to the Court of Appeals for the 
                Armed Forces for review with respect to any matter of 
                law. In such a case, the Judge Advocate General shall 
                cause a copy of the decision of the Court of Criminal 
                Appeals and the order forwarding the case to be served 
                on the accused and on appellate defense counsel. While 
                a review of a forwarded case is pending, the Secretary 
                concerned may defer further service of a sentence to 
                confinement that has been ordered executed in such a 
                case.''

                y. R.C.M. 1210(a) is amended by adding at the end 
                thereof the following sentence:

                ``A petition for a new trial of the facts may not be 
                submitted on the basis of newly discovered evidence 
                when the petitioner was found guilty of the relevant 
                offense pursuant to a guilty plea.''

                Sec. 2. Part III of the Manual for Courts-Martial, 
                United States, is amended as follows:

                a. M.R.E. 412 is amended to read as follows:

                ``Rule 412. Nonconsensual sexual offenses; relevance of 
                victim's behavior or sexual predisposition

                    (a) Evidence generally inadmissible. The following 
                evidence is not admissible in any proceeding involving 
                alleged sexual misconduct except as provided in 
                subdivisions (b) and (c) of this rule:
                      (1) Evidence offered to prove that any alleged 
                victim engaged in other sexual behavior; and
                      (2) Evidence offered to prove any alleged 
                victim's sexual predisposition.
                    (b) Exceptions.
                      (1) In a proceeding, the following evidence is 
                admissible, if otherwise admissible under these rules:
                        (A) Evidence of specific instances of sexual 
                behavior by the alleged victim offered to prove that a 
                person other than the accused was the source of semen, 
                injury, or other physical evidence;
                        (B) Evidence of specific instances of sexual 
                behavior by the alleged victim with respect to the 
                person accused of the sexual misconduct offered by the 
                accused to prove consent or by the prosecution; and
                        (C) Evidence the exclusion of which would 
                violate the constitutional rights of the accused.

[[Page 30078]]

                    (c) Procedure to determine admissibility.
                      (1) A party intending to offer evidence under 
                subdivision (b) of this rule must:
                        (A) file a written motion at least 5 days prior 
                to entry of pleas specifically describing the evidence 
                and stating the purpose for which it is offered unless 
                the military judge, for good cause shown, requires a 
                different time for filing or permits filing during 
                trial; and
                        (B) serve the motion on the opposing party and 
                the military judge and notify the alleged victim or, 
                when appropriate, the alleged victim's guardian or 
                representative.
                      (2) Before admitting evidence under this rule, 
                the military judge must conduct a hearing, which shall 
                be closed. At this hearing, the parties may call 
                witnesses, including the alleged victim, and offer 
                relevant evidence. The victim must be afforded a 
                reasonable opportunity to attend and be heard. In a 
                case before a court-martial composed of a military 
                judge and members, the military judge shall conduct the 
                hearing outside the presence of the members pursuant to 
                Article 39(a). The motion, related papers, and the 
                record of the hearing must be sealed and remain under 
                seal unless the court orders otherwise.
                      (3) If the military judge determines on the basis 
                of the hearing described in paragraph (2) of this 
                subdivision that the evidence that the accused seeks to 
                offer is relevant and that the probative value of such 
                evidence outweighs the danger of unfair prejudice, such 
                evidence shall be admissible in the trial to the extent 
                an order made by the military judge specifies evidence 
                that may be offered and areas with respect to which the 
                alleged victim may be examined or cross-examined.
                    (d) For purposes of this rule, the term ``sexual 
                behavior'' includes any sexual behavior not encompassed 
                by the alleged offense. The term ``sexual 
                predisposition'' refers to an alleged victim's mode of 
                dress, speech, or lifestyle that does not directly 
                refer to sexual activities or thoughts but that may 
                have a sexual connotation for the factfinder.
                    (e) A ``nonconsensual sexual offense'' is a sexual 
                offense in which consent by the victim is an 
                affirmative defense or in which the lack of consent is 
                an element of the offense. This term includes rape, 
                forcible sodomy, assault with intent to commit rape or 
                forcible sodomy, indecent assault, and attempts to 
                commit such offenses.''

                b. M.R.E. 413 is added to read as follows:

                ``Rule 413. Evidence of Similar Crimes in Sexual 
                Assault Cases

                    (a) In a court-martial in which the accused is 
                charged with an offense of sexual assault, evidence of 
                the accused's commission of one or more offenses of 
                sexual assault is admissible and may be considered for 
                its bearing on any matter to which it is relevant.
                    (b) In a court-martial in which the Government 
                intends to offer evidence under this rule, the 
                Government shall disclose the evidence to the accused, 
                including statements of witnesses or a summary of the 
                substance of any testimony that is expected to be 
                offered, at least 5 days before the scheduled date of 
                trial, or at such later time as the military judge may 
                allow for good cause.
                    (c) This rule shall not be construed to limit the 
                admission or consideration of evidence under any other 
                rule.
                    (d) For purposes of this rule, ``offense of sexual 
                assault'' means an offense punishable under the Uniform 
                Code of Military Justice, or a crime under Federal law 
                or the law of a State that involved--
                      (1) any sexual act or sexual contact, without 
                consent, proscribed by the Uniform Code of Military 
                Justice, Federal law, or the law of a State;

[[Page 30079]]

                      (2) contact, without consent of the victim, 
                between any part of the accused's body, or an object 
                held or controlled by the accused, and the genitals or 
                anus of another person;
                      (3) contact, without consent of the victim, 
                between the genitals or anus of the accused and any 
                part of another person's body;
                      (4) deriving sexual pleasure or gratification 
                from the infliction of death, bodily injury, or 
                physical pain on another person; or
                      (5) an attempt or conspiracy to engage in conduct 
                described in paragraphs (1) through (4).
                    (e) For purposes of this rule, the term ``sexual 
                act'' means:
                      (1) contact between the penis and the vulva or 
                the penis and the anus, and for purposes of this rule, 
                contact occurs upon penetration, however slight, of the 
                penis into the vulva or anus;
                      (2) contact between the mouth and the penis, the 
                mouth and the vulva, or the mouth and the anus;
                      (3) the penetration, however slight, of the anal 
                or genital opening of another by a hand or finger or by 
                any object, with an intent to abuse, humiliate, harass, 
                degrade, or arouse or gratify the sexual desire of any 
                person; or
                      (4) the intentional touching, not through the 
                clothing, of the genitalia of another person who has 
                not attained the age of 16 years, with an intent to 
                abuse, humiliate, harass, degrade, or arouse or gratify 
                the sexual desire of any person.
                    (f) For purposes of this rule, the term ``sexual 
                contact'' means the intentional touching, either 
                directly or through the clothing, of the genitalia, 
                anus, groin, breast, inner thigh, or buttocks of any 
                person with an intent to abuse, humiliate, harass, 
                degrade, or arouse or gratify the sexual desire of any 
                person.
                    (g) For purposes of this rule, the term ``State'' 
                includes a State of the United States, the District of 
                Columbia, Puerto Rico, Guam, the Virgin Islands, and 
                any other territory or possession of the United 
                States.''

                c. M.R.E. 414 is added to read as follows:

                ``Rule 414. Evidence of Similar Crimes in Child 
                Molestation Cases

                    (a) In a court-martial in which the accused is 
                charged with an offense of child molestation, evidence 
                of the accused's commission of one or more offenses of 
                child molestation is admissible and may be considered 
                for its bearing on any matter to which it is relevant.
                    (b) In a court-martial in which the Government 
                intends to offer evidence under this rule, the 
                Government shall disclose the evidence to the accused, 
                including statements of witnesses or a summary of the 
                substance of any testimony that is expected to be 
                offered, at least 5 days before the scheduled date of 
                trial or at such later time as the military judge may 
                allow for good cause.
                    (c) This rule shall not be construed to limit the 
                admission or consideration of evidence under any other 
                rule.
                    (d) For purposes of this rule, ``child'' means a 
                person below the age of sixteen, and ``offense of child 
                molestation'' means an offense punishable under the 
                Uniform Code of Military Justice, or a crime under 
                Federal law or the law of a State that involved--
                      (1) any sexual act or sexual contact with a child 
                proscribed by the Uniform Code of Military Justice, 
                Federal law, or the law of a State;
                      (2) any sexually explicit conduct with children 
                proscribed by the Uniform Code of Military Justice, 
                Federal law, or the law of a State;
                      (3) contact between any part of the accused's 
                body, or an object controlled or held by the accused, 
                and the genitals or anus of a child;

[[Page 30080]]

                      (4) contact between the genitals or anus of the 
                accused and any part of the body of a child;
                      (5) deriving sexual pleasure or gratification 
                from the infliction of death, bodily injury, or 
                physical pain on a child; or
                      (6) an attempt or conspiracy to engage in conduct 
                described in paragraphs (1) through (5) of this 
                subdivision.
                    (e) For purposes of this rule, the term ``sexual 
                act'' means:
                      (1) contact between the penis and the vulva or 
                the penis and the anus, and for purposes of this rule 
                contact occurs upon penetration, however slight, of the 
                penis into the vulva or anus;
                      (2) contact between the mouth and the penis, the 
                mouth and the vulva, or the mouth and the anus;
                      (3) the penetration, however slight, of the anal 
                or genital opening of another by a hand or finger or by 
                any object, with an intent to abuse, humiliate, harass, 
                degrade, or arouse or gratify the sexual desire of any 
                person; or
                      (4) the intentional touching, not through the 
                clothing, of the genitalia of another person who has 
                not attained the age of 16 years, with an intent to 
                abuse, humiliate, harass, degrade, or arouse or gratify 
                the sexual desire of any person.
                    (f) For purposes of this rule, the term ``sexual 
                contact'' means the intentional touching, either 
                directly or through the clothing, of the genitalia, 
                anus, groin, breast, inner thigh, or buttocks of any 
                person with an intent to abuse, humiliate, harass, 
                degrade, or arouse or gratify the sexual desire of any 
                person.
                    (g) For purpose of this rule, the term ``sexually 
                explicit conduct'' means actual or simulated:
                      (1) sexual intercourse, including genital-
                genital, oral-genital, anal-genital, or oral-anal, 
                whether between persons of the same or opposite sex;
                      (2) bestiality;
                      (3) masturbation;
                      (4) sadistic or masochistic abuse; or
                      (5) lascivious exhibition of the genitals or 
                pubic area of any person.
                    (h) For purposes of this rule, the term ``State'' 
                includes a State of the United States, the District of 
                Columbia, Puerto Rico, Guam, the Virgin Islands, and 
                any other territory or possession of the United 
                States.''

                d. M.R.E. 1102 is amended to read as follows:

                    ``Amendments to the Federal Rules of Evidence shall 
                apply to the Military Rules of Evidence 18 months after 
                the effective date of such amendments, unless action to 
                the contrary is taken by the President.''

                Sec. 3. Part IV of the Manual for Courts-Martial, 
                United States, is amended as follows:

                a. Paragraph 19 is amended to read as follows:

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

                    a. Text.
                    ``Any person subject to this chapter who--
                      (1) resists apprehension;
                      (2) flees from apprehension;
                      (3) breaks arrest; or
                      (4) escapes from custody or confinement shall be 
                punished as a court-martial may direct.''

[[Page 30081]]

                    b. Elements.
                      (1) Resisting apprehension.
                        (a) That a certain person attempted to 
                apprehend the accused;
                        (b) That said person was authorized to 
                apprehend the accused; and
                        (c) That the accused actively resisted the 
                apprehension.
                      (2) Flight from apprehension.
                        (a) That a certain person attempted to 
                apprehend the accused;
                        (b) That said person was authorized to 
                apprehend the accused; and
                        (c) That the accused fled from the 
                apprehension.
                      (3) Breaking arrest.
                        (a) That a certain person ordered the accused 
                into arrest;
                        (b) That said person was authorized to order 
                the accused into arrest; and
                        (c) That the accused went beyond the limits of 
                arrest before being released from that arrest by proper 
                authority.
                      (4) Escape from custody.
                        (a) That a certain person apprehended the 
                accused;
                        (b) That said person was authorized to 
                apprehend the accused; and
                        (c) That the accused freed himself or herself 
                from custody before being released by proper authority.
                      (5) Escape from confinement.
                        (a) That a certain person ordered the accused 
                into confinement;
                        (b) That said person was authorized to order 
                the accused into confinement; and
                        (c) That the accused freed himself or herself 
                from confinement before being released by proper 
                authority. [Note: If the escape was from post-trial 
                confinement, add the following element]
                        (d) That the confinement was the result of a 
                court-martial conviction.
                    c. Explanation.
                      (1) Resisting apprehension.
                        (a) Apprehension. Apprehension is the taking of 
                a person into custody. See R.C.M. 302.
                        (b) Authority to apprehend. See R.C.M. 302(b) 
                concerning who may apprehend. Whether the status of a 
                person authorized that person to apprehend the accused 
                is a question of law to be decided by the military 
                judge. Whether the person who attempted to make an 
                apprehension had such a status is a question of fact to 
                be decided by the factfinder.
                        (c) Nature of the resistance. The resistance 
                must be active, such as assaulting the person 
                attempting to apprehend. Mere words of opposition, 
                argument, or abuse, and attempts to escape from custody 
                after the apprehension is complete, do not constitute 
                the offense of resisting apprehension although they may 
                constitute other offenses.
                      (d) Mistake. It is a defense that the accused 
                held a reasonable belief that the person attempting to 
                apprehend did not have authority to do so. However, the 
                accused's belief at the time that no basis existed for 
                the apprehension is not a defense.
                        (e) Illegal apprehension. A person may not be 
                convicted of resisting apprehension if the attempted 
                apprehension is illegal, but may be convicted of other 
                offenses, such as assault, depending on all the 
                circumstances. An attempted apprehension by a person 
                authorized to apprehend is presumed

[[Page 30082]]

                to be legal in the absence of evidence to the contrary. 
                Ordinarily the legality of an apprehension is a 
                question of law to be decided by the military judge.
                      (2) Flight from apprehension. The flight must be 
                active, such as running or driving away.
                      (3) Breaking arrest.
                        (a) Arrest. There are two types of arrest: 
                pretrial arrest under Article 9 (see R.C.M. 304), and 
                arrest under Article 15 (see paragraph 5c.(3), Part V, 
                MCM). This article prohibits breaking any arrest.
                        (b) Authority to order arrest. See R.C.M. 
                304(b) and paragraphs 2 and 5b, Part V, MCM, concerning 
                authority to order arrest.
                        (c) Nature of restraint imposed by arrest. In 
                arrest, the restraint is moral restraint imposed by 
                orders fixing the limits of arrest.
                        (d) Breaking. Breaking arrest is committed when 
                the person in arrest infringes the limits set by 
                orders. The reason for the infringement is immaterial. 
                For example, innocence of the offense with respect to 
                which an arrest may have been imposed is not a defense.
                        (e) Illegal arrest. A person may not be 
                convicted of breaking arrest if the arrest is illegal. 
                An arrest ordered by one authorized to do so is 
                presumed to be legal in the absence of some evidence to 
                the contrary. Ordinarily, the legality of an arrest is 
                a question of law to be decided by the military judge.
                      (4) Escape from custody.
                        (a) Custody. ``Custody'' is restraint of free 
                locomotion imposed by lawful apprehension. The 
                restraint may be physical or, once there has been a 
                submission to apprehension or a forcible taking into 
                custody, it may consist of control exercised in the 
                presence of the prisoner by official acts or orders. 
                Custody is temporary restraint intended to continue 
                until other restraint (arrest, restriction, 
                confinement) is imposed or the person is released.
                        (b) Authority to apprehend. See subparagraph 
                (1)(b) above.
                        (c) Escape. For a discussion of escape, see 
                subparagraph c(5)(c), below.
                        (d) Illegal custody. A person may not be 
                convicted of this offense if the custody was illegal. 
                An apprehension effected by one authorized to apprehend 
                is presumed to be lawful in the absence of evidence to 
                the contrary. Ordinarily, the legality of an 
                apprehension is a question of law to be decided by the 
                military judge.
                        (e) Correctional custody. See paragraph 70.
                      (5) Escape from confinement.
                        (a) Confinement. Confinement is physical 
                restraint imposed under R.C.M. 305, 1101, or paragraph 
                5b, Part V, MCM. For purposes of the element of post-
                trial confinement (subparagraph b(5)(d), above) and 
                increased punishment therefrom (subparagraph e(4), 
                below), the confinement must have been imposed pursuant 
                to an adjudged sentence of a court-martial, and not as 
                a result of pretrial restraint or nonjudicial 
                punishment.
                        (b) Authority to order confinement. See R.C.M. 
                304(b), 1101, and paragraphs 2 and 5b, Part V, MCM, 
                concerning who may order confinement.
                        (c) Escape. An escape may be either with or 
                without force or artifice, and either with or without 
                the consent of the custodian. However, where a prisoner 
                is released by one with apparent authority to do so, 
                the prisoner may not be convicted of escape from 
                confinement. See also paragraph 20c.(l)(b). Any 
                completed casting off of the restraint of confinement, 
                before release by proper authority, is an escape, and 
                lack of effectiveness of the restraint imposed is 
                immaterial. An escape is not complete until the 
                prisoner is momentarily free from the restraint. If the 
                movement toward escape is

[[Page 30083]]

                opposed, or before it is completed, an immediate 
                pursuit follows, there is no escape until opposition is 
                overcome or pursuit is eluded.
                        (d) Status when temporarily outside confinement 
                facility. A prisoner who is temporarily escorted 
                outside a confinement facility for a work detail or 
                other reason by a guard, who has both the duty and 
                means to prevent that prisoner from escaping, remains 
                in confinement.
                        (e) Legality of confinement. A person may not 
                be convicted of escape from confinement if the 
                confinement is illegal. Confinement ordered by one 
                authorized to do so is presumed to be lawful in the 
                absence of evidence to the contrary. Ordinarily, the 
                legality of confinement is a question of law to be 
                decided by the military judge.
                    d. Lesser included offenses.
                      (1) Resisting apprehension. Article 128--assault; 
                assault consummated by a battery
                      (2) Breaking arrest.
                        (a) Article 134--breaking restriction
                        (b) Article 80--attempts
                      (3) Escape from custody. Article 80--attempts
                      (4) Escape from confinement. Article 80--attempts
                    e. Maximum punishment.
                      (1) Resisting apprehension. Bad-conduct 
                discharge, forfeiture of all pay and allowances, and 
                confinement for 1 year.
                      (2) Flight from apprehension. Bad-conduct 
                discharge, forfeiture of all pay and allowances, and 
                confinement for 1 year.
                      (3) Breaking arrest. Bad-conduct discharge, 
                forfeiture of all pay and allowances, and confinement 
                for 6 months.
                      (4) Escape from custody, pretrial confinement, or 
                confinement on bread and water or diminished rations 
                imposed pursuant to Article 15. Dishonorable discharge, 
                forfeiture of all pay and allowances, and confinement 
                for 1 year.
                      (5) Escape from post-trial confinement. 
                Dishonorable discharge, forfeiture of all pay and 
                allowances, and confinement for 5 years.
                    f. Sample specifications.
                      (1) Resisting apprehension.
                      In that ______________ (personal jurisdiction 
                data), did (at/on board--location) (subject-matter 
                jurisdiction data, if required), on or about 
                __________, 19____, resist being apprehended by 
                __________, (an armed force policeman) (__________), a 
                person authorized to apprehend the accused.
                      (2) Flight from apprehension.
                    In that ______________ (personal jurisdiction 
                data), did (at/on board--location) (subject matter 
                jurisdiction data, if required), on or about 
                __________________ 19____, flee apprehension by 
                ________________ (an armed force policeman) 
                (__________________), a person authorized to apprehend 
                the accused.
                      (3) Breaking arrest.
                    In that ______________ (personal jurisdiction 
                data), having been placed in arrest (in quarters) (in 
                his/her company area) ( __________________ ) by a 
                person authorized to order the accused into arrest, 
                did, (at/on board--location) on or about 
                ____________________ 19____, break said arrest.
                      (4) Escape from custody.
                    In that ______________________ (personal 
                jurisdiction data), did, (at/on board--location) 
                (subject-matter jurisdiction data, if required), on or 
                about

[[Page 30084]]

                __________________ 19____, escape from the custody of 
                __________________, a person authorized to apprehend 
                the accused.
                      (5) Escape from confinement.
                    In that __________________ (personal jurisdiction 
                data), having been placed in (post-trial) confinement 
                in (place of confinement), by a person authorized to 
                order said accused into confinement did, (at/on board--
                location) (subject-matter jurisdiction data, if 
                required), on or about ________________ 19____, escape 
                from confinement.''

                b. The following new paragraph is added after paragraph 
                97:

                ``97a. Article 134--(Parole, Violation of)

                    a. Text. See paragraph 60.
                    b. Elements.
                      (1) That the accused was a prisoner as the result 
                of a court-martial conviction or other criminal 
                proceeding;
                      (2) That the accused was on parole;
                      (3) That there were certain conditions of parole 
                that the parolee was bound to obey;
                      (4) That the accused violated the conditions of 
                parole by doing an act or failing to do an act; and
                      (5) That, under the circumstances, the conduct of 
                the accused was to the prejudice of good order and 
                discipline in the armed forces or was of a nature to 
                bring discredit upon the armed forces.
                    c. Explanation.
                      (1) ``Prisoner'' refers only to those in 
                confinement resulting from conviction at a court-
                martial or other criminal proceeding.
                      (2) ``Parole'' is defined as ``word of honor.'' A 
                prisoner on parole, or parolee, has agreed to adhere to 
                a parole plan and conditions of parole. A ``parole 
                plan'' is a written or oral agreement made by the 
                prisoner prior to parole to do or refrain from doing 
                certain acts or activities. A parole plan may include a 
                residence requirement stating where and with whom a 
                parolee will live, and a requirement that the prisoner 
                have an offer of guaranteed employment. ``Conditions of 
                parole'' include the parole plan and other reasonable 
                and appropriate conditions of parole, such as paying 
                restitution, beginning or continuing treatment for 
                alcohol or drug abuse, or paying a fine ordered 
                executed as part of the prisoner's court-martial 
                sentence. In return for giving his or her ``word of 
                honor'' to abide by a parole plan and conditions of 
                parole, the prisoner is granted parole.
                    d. Lesser included offense. Article 80--attempts.
                    e. Maximum punishment. Bad-conduct discharge, 
                confinement for 6 months, and forfeiture of two-thirds 
                pay per month for 6 months.
                    f. Sample specification.
                    In that ____________________ (personal jurisdiction 
                data), a prisoner on parole, did, (at/on board--
                location), on or about ____________, 19____, violate 
                the conditions of his/her parole by 
                ______________________________.''

                c. Paragraph 45.a and b are amended to read as follows:

                ``45. Article 120--Rape and carnal knowledge

                    a. Text.
                    ``(a) Any person subject to this chapter who 
                commits an act of sexual intercourse by force and 
                without consent, is guilty of rape and shall be 
                punished by death or such other punishment as a court-
                martial may direct.
                    (b) Any person subject to this chapter who, under 
                circumstances not amounting to rape, commits an act of 
                sexual intercourse with a person--
                      (1) who is not his or her spouse; and

[[Page 30085]]

                      (2) who has not attained the age of sixteen 
                years; is guilty of carnal knowledge and shall be 
                punished as a court-martial may direct.
                    (c) Penetration, however slight, is sufficient to 
                complete either of these offenses.
                    (d)(1) In a prosecution under subsection (b), it is 
                an affirmative defense that--
                        (A) the person with whom the accused committed 
                the act of sexual intercourse had at the time of the 
                alleged offense attained the age of twelve years; and
                        (B) the accused reasonably believed that the 
                person had at the time of the alleged offense attained 
                the age of 16 years.
                      (2) The accused has the burden of proving a 
                defense under subparagraph (d)(1) by a preponderance of 
                the evidence.''
                    b. Elements.
                      (1) Rape.
                          (a) That the accused committed an act of 
                sexual intercourse; and
                          (b) That the act of sexual intercourse was 
                done by force and without consent.
                      (2) Carnal knowledge.
                          (a) That the accused committed an act of 
                sexual intercourse with a certain person;
                          (b) That the person was not the accused's 
                spouse; and
                          (c) That at the time of the sexual 
                intercourse the person was under 16 years of age.''

                d. Paragraph 45c.(2) is amended to read as follows:

                      ``(2) Carnal knowledge. ``Carnal knowledge'' is 
                sexual intercourse under circumstances not amounting to 
                rape, with a person who is not the accused's spouse and 
                who has not attained the age of 16 years. Any 
                penetration, however slight, is sufficient to complete 
                the offense. It is a defense, however, which the 
                accused must prove by a preponderance of the evidence, 
                that at the time of the act of sexual intercourse, the 
                person with whom the accused committed the act of 
                sexual intercourse was at least 12 years of age, and 
                that the accused reasonably believed that this same 
                person was at least 16 years of age.''

                e. Paragraph 54e.(l) is amended to read as follows:

                      ``(1) Simple Assault.
                        (A) Generally. Confinement for 3 months and 
                forfeiture of two-thirds pay per month for 3 months.
                        (B) When committed with an unloaded firearm. 
                Dishonorable discharge, forfeiture of all pay and 
                allowances, and confinement for 3 years.''

                Sec. 4. These amendments shall take effect on May 27, 
                1998, subject to the following:

                    (a) The amendments made to Military Rules of 
                Evidence 412, 413, and 414 shall apply only to courts-
                martial in which arraignment has been completed on or 
                after June 26, 1998.
                    (b) Nothing contained in these amendments shall be 
                construed to make punishable any act done or omitted 
                prior to June 26, 1998, which was not punishable when 
                done or omitted.
                    (c) The amendment made to Part IV, para. 45c.(2), 
                authorizing a mistake of fact defense as to age in 
                carnal knowledge prosecutions is effective in all cases 
                in which the accused was arraigned on the offense of 
                carnal knowledge, or for a greater offense that is 
                later reduced to the lesser included offense of carnal 
                knowledge, on or after February 10, 1996.

[[Page 30086]]

                    (d) Nothing in these amendments shall be construed 
                to invalidate any nonjudicial punishment proceeding, 
                restraint, investigation, referral of charges, trial in 
                which arraignment occurred, or other action begun prior 
                to May 27, 1998, and any such nonjudicial punishment 
                proceeding, restraint, investigation, referral of 
                charges, trial or other action may proceed in the same 
                manner and with the same effect as if these amendments 
                had not been prescribed.

                    (Presidential Sig.)<Clinton1><Clinton2>

                THE WHITE HOUSE,

                    May 27, 1998.

[FR Doc. 98-14688
Filed 6-1-98; 8:45 am]

                Billing code 3195-01-P

                Changes to the Discussion Accompanying the Manual for 
                Courts-Martial, United States.

                a. The Discussion following R.C.M. 103 is amended by 
                adding the following two sections at the end of the 
                Discussion:

                    ``(14) ``Classified information'' (A) means any 
                information or material that has been determined by an 
                official of the United States pursuant to law, an 
                Executive Order, or regulation to require protection 
                against unauthorized disclosure for reasons of national 
                security, and (B) any restricted data, as defined in 
                section 2014(y) of title 42, United States Code.
                    (15) ``National security'' means the national 
                defense and foreign relations of the United States.''

                b. The Discussion following R.C.M. 405(e) is amended by 
                adding the following paragraph at the end of the 
                Discussion:

                    ``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.''

                c. The Discussion following R.C.M. 703(e)(2)(G)(i) is 
                amended by adding the following sentence at the end of 
                the second paragraph:

                    ``Failing to comply with such a subpoena is a 
                felony offense, and may result in a fine or 
                imprisonment, or both, at the discretion of the 
                district court.''

                d. The following Discussion is inserted after the first 
                two sentences of R.C.M. 707(c):

                    ``Periods during which the accused is hospitalized 
                due to incompetence or otherwise in the custody of the 
                Attorney General are excluded when determining speedy 
                trial under this rule.''

                e. The following Discussion is added after R.C.M. 
                909(f):

                    ``Under section 4241(d) of title 18, the initial 
                period of hospitalization for an incompetent accused 
                shall not exceed four months. However, in determining 
                whether there is a substantial probability the accused 
                will attain the capacity to permit the trial to proceed 
                in the foreseeable future, the accused may be 
                hospitalized for an additional reasonable period of 
                time.
                    This additional period of time ends either when the 
                accused's mental condition is improved so that trial 
                may proceed, or when the pending

[[Page 30087]]

                charges against the accused are dismissed. If charges 
                are dismissed solely due to the accused's mental 
                condition, the accused is subject to hospitalization as 
                provided in section 4246 of title 18.''

                f. The Discussion following R.C.M. 916(j) is amended by 
                inserting the following paragraph after the third 
                paragraph in the Discussion:

                    ``Examples of offenses in which the accused's 
                intent or knowledge is immaterial include: carnal 
                knowledge (if the victim is under 12 years of age, 
                knowledge or belief as to age is immaterial) and 
                improper use of countersign (mistake as to authority of 
                person to whom disclosed not a defense). However, such 
                ignorance or mistake may be relevant in extenuation and 
                mitigation.''

                g. The Discussion following R.C.M. 1003(b)(2) is 
                amended by inserting the following paragraph after the 
                first paragraph in the Discussion:

                    ``Forfeitures of pay and allowances adjudged as 
                part of a court-martial sentence, or occurring by 
                operation of Article 58b are effective 14 days after 
                the sentence is adjudged or when the sentence is 
                approved by the convening authority, whichever is 
                earlier.''

                h. The Discussion following R.C.M. 1003(b)(2) is 
                amended by adding the following at the end of the 
                Discussion:

                    ``Forfeiture of pay and allowances under Article 
                58b is not a part of the sentence, but is an 
                administrative result thereof.
                    At general courts-martial, if both a punitive 
                discharge and confinement are adjudged, then the 
                operation of Article 58b results in total forfeiture of 
                pay and allowances during that period of confinement. 
                If only confinement is adjudged, then if that 
                confinement exceeds six months, the operation of 
                Article 58b results in total forfeiture of pay and 
                allowances during that period of confinement. If only a 
                punitive discharge is adjudged, Article 58b has no 
                effect on pay and allowances. A death sentence results 
                in total forfeiture of pay and allowances.
                    At a special court-martial, if a bad-conduct 
                discharge and confinement are adjudged, then the 
                operation of Article 58b results in a forfeiture of 
                two-thirds of pay only during that period of 
                confinement. If only confinement is adjudged, however, 
                then Article 58b has no effect on adjudged forfeitures.
                    If the sentence, as approved by the convening 
                authority or other competent authority, does not result 
                in forfeitures by the operation of Article 58b, then 
                only adjudged forfeitures are effective.
                    Article 58b has no effect on summary courts-
                martial.''

                i. The Discussion following R.C.M. 1101(c)(6) is 
                amended to read as follows:

                    ``When the sentence is ordered executed, 
                forfeitures or reduction in grade may be suspended, but 
                may not be deferred; deferral of confinement may 
                continue after action in accordance with R.C.M. 1107. A 
                form of punishment cannot be both deferred and 
                suspended at the same time. When deferment of 
                confinement, forfeitures, or reduction in grade ends, 
                the sentence to confinement, forfeitures, or reduction 
                in grade begins to run or resumes running, as 
                appropriate. When the convening authority has specified 
                in the action that confinement will be deferred after 
                the action, the deferment may not be terminated, except 
                under subsections (6)(B), (C), or (D), until the 
                conviction is final under R.C.M. 1209.
                    See R.C.M. 1203 for deferment of a sentence to 
                confinement pending review under Article 67(a)(2).''

                j. The following Discussion is added after R.C.M. 
                1101(d):

                    ``Forfeitures resulting by operation of law, rather 
                than those adjudged as part of a sentence, may be 
                waived for six months or for the duration of the period 
                of confinement, whichever is less. The waived 
                forfeitures are paid as support to dependent(s) 
                designated by the convening authority. When directing 
                waiver and payment, the convening authority should 
                identify by name the dependent(s) to whom the payments 
                will be made and state the number of months for which 
                the waiver and payment shall apply.

[[Page 30088]]

                In cases where the amount to be waived and paid is less 
                than the jurisdictional limit of the court, the monthly 
                dollar amount of the waiver and payment should be 
                stated.''

                k. The Discussion following R.C.M. 1105(b) is amended 
                by adding the following at the end of the Discussion:

                    ``Although only written submissions must be 
                considered, the convening authority may consider any 
                submission by the accused, including, but not limited 
                to, videotapes, photographs, and oral presentations.''

                l. The following Discussion is added after R.C.M. 
                1107(b)(4):

                    ``Commitment of the accused to the custody of the 
                Attorney General for hospitalization is 
                discretionary.''

                m. The Discussion following R.C.M. 1109(d)(1)(E) is 
                amended to read as follows:

                    ``See Appendix 18 for a sample of a Report of 
                Proceedings to Vacate Suspension of a General Court-
                Martial Sentence under Article 72, UCMJ, and R.C.M. 
                1109 (DD Form 455).''

                n. The following Discussion is added after R.C.M. 
                1109(f):

                    ``An officer exercising special court-martial 
                jurisdiction may vacate any suspended punishments other 
                than an approved suspended bad-conduct discharge, 
                regardless of whether they are contained in the same 
                sentence as a bad-conduct discharge.
                    See Appendix 18 for a sample of a Report of 
                Proceedings to Vacate Suspension of a Special Court-
                Martial Sentence including a bad-conduct discharge 
                under Article 72, UCMJ, and R.C.M. 1109 (DD Form 
                455).''
                Changes to the Analysis Accompanying the Manual for 
                Courts-Martial, United States.

                1. Changes to Appendix 21, the Analysis accompanying 
                the Rules for Courts-Martial (Part II, MCM).

                a. R.C.M. 103. The analysis accompanying R.C.M. 103 is 
                amended by inserting the following at the end thereof:

                    ``1998 Amendment:'' The Discussion was amended to 
                include new definitions of ``classified information'' 
                in (14) and ``national security'' in (15). They are 
                identical to those used in the Classified Information 
                Procedures Act (18 U.S.C. App. III Sec. 1, et. seq.). 
                They were added in connection with the change to 
                Article 62(a)(1) (Appeals Relating to Disclosure of 
                Classified Information). See R.C.M. 908 (Appeal by the 
                United States) and M.R.E. 505 (Classified 
                Information).''

                b. R.C.M. 405. The analysis accompanying R.C.M. 405(e) 
                is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' This change is based on the 
                amendments to Article 32 enacted by Congress in section 
                1131, National Defense Authorization Act for Fiscal 
                Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 464 
                (1996). It authorizes the Article 32 investigating 
                officer to investigate uncharged offenses when, during 
                the course of the Article 32 investigation, the 
                evidence indicates that the accused may have committed 
                such offenses. Permitting the investigating officer to 
                investigate uncharged offenses and recommend an 
                appropriate disposition benefits both the government 
                and the accused. It promotes judicial economy while 
                still affording the accused the same rights the accused 
                would have in the investigation of preferred charges.''

                c. R.C.M. 703. The analysis accompanying R.C.M. 
                703(e)(2)(G)(i) is amended by inserting the following 
                at the end thereof:

                    ``1998 Amendment:'' The Discussion was amended to 
                reflect the amendment of Article 47, UCMJ, in section 
                1111 of the National Defense Authorization Act for 
                Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 
                461 (1996). The amendment removes limitations on the 
                punishment that a federal district court may impose for 
                a civilian witness' refusal to honor a subpoena to 
                appear or testify before a court-martial. Previously, 
                the maximum sentence

[[Page 30089]]

                for a recalcitrant witness was ``a fine of not more 
                than $500.00, or imprisonment for not more than six 
                months, or both.'' The law now leaves the amount of 
                confinement or fine to the discretion of the federal 
                district court.''

                d. R.C.M. 706. The analysis accompanying R.C.M. 706 is 
                amended by inserting the following at the end thereof:

                    ``1998 Amendment:'' Subsection (c)(2)(D) was 
                amended to reflect the standard for incompetence set 
                forth in Article 76b, UCMJ.''

                e. R.C.M. 707(c). The analysis accompanying R.C.M. 
                707(c) is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' In creating Article 76b, UCMJ, 
                Congress mandated the commitment of an incompetent 
                accused to the custody of the Attorney General. As an 
                accused is not under military control during any such 
                period of custody, the entire time period is excludable 
                delay under the 120-day speedy trial rule.''

                f. R.C.M. 809. The analysis accompanying R.C.M. 809 is 
                amended by adding the following at the end thereof:

                    ``1998 Amendment:'' R.C.M. 809 was amended to 
                modernize military contempt procedures, as recommended 
                in United States v. Burnett, 27 M.J. 99, 106 (C.M.A. 
                1988). Thus, the amendment simplifies the contempt 
                procedure in trials by courts-martial by vesting 
                contempt power in the military judge and eliminating 
                the members' involvement in the process. The amendment 
                also provides that the court-martial proceedings need 
                not be suspended while the contempt proceedings are 
                conducted. The proceedings will be conducted by the 
                military judge in all cases, outside of the members' 
                presence. The military judge also exercises discretion 
                as to the timing of the proceedings and, therefore, may 
                assure that the court-martial is not otherwise 
                unnecessarily disrupted or the accused prejudiced by 
                the contempt proceedings. See Sacher v. United States, 
                343 U.S. 1, 10, 72 S. Ct. 451, 455, 96 L. Ed. 717, 724 
                (1952). The amendment also brings court-martial 
                contempt procedures into line with the procedure 
                applicable in other courts.''

                g. R.C.M. 908. The analysis accompanying R.C.M. 908 is 
                amended by inserting the following at the end thereof:

                    ``1998 Amendment:'' The change to R.C.M. 908(a) 
                resulted from the amendment to Article 62, UCMJ, in 
                section 1141, National Defense Authorization Act for 
                Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 
                466-67 (1996). It permits interlocutory appeal of 
                rulings disclosing classified information.''

                h. R.C.M. 909. The analysis accompanying R.C.M. 909 is 
                amended by inserting the following at the end thereof:

                    ``1998 Amendment:'' The rule was changed to provide 
                for the hospitalization of an incompetent accused after 
                the enactment of Article 76b, UCMJ, in section 1133 of 
                the National Defense Authorization Act for Fiscal Year 
                1996, Pub. L. No. 104-106, 110 Stat. 186, 464-66 
                (1996).''

                i. R.C.M. 916(b). The analysis accompanying R.C.M. 
                916(b) is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' In enacting section 1113 of the 
                National Defense Authorization Act for Fiscal Year 
                1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996), 
                Congress amended Article 120, UCMJ, to create a mistake 
                of fact defense to a prosecution for carnal knowledge. 
                The accused must prove by a preponderance of the 
                evidence that the person with whom he or she had sexual 
                intercourse was at least 12 years of age, and that the 
                accused reasonably believed that this person was at 
                least 16 years of age. The changes to R.C.M. 916(b) and 
                (j) implement this amendment.''

                j. R.C.M. 916(j). The analysis accompanying R.C.M. 
                916(j) is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' In enacting section 1113 of the 
                National Defense Authorization Act for Fiscal Year 
                1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996), 
                Congress amended Article 120, UCMJ, to create a mistake 
                of fact defense to a prosecution for carnal knowledge. 
                The accused must prove by a preponderance of the 
                evidence that the person with whom he or she had sexual 
                intercourse was at least 12 years of age, and that

[[Page 30090]]

                the accused reasonably believed that this person was at 
                least 16 years of age. The changes to R.C.M. 916(b) and 
                (j) implement this amendment.''

                k. R.C.M. 920(e). The analysis accompanying R.C.M. 
                920(e) is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' This change to R.C.M. 920(e) 
                implemented Congress' creation of a mistake of fact 
                defense for carnal knowledge. Article 120(d), UCMJ, 
                provides that the accused must prove by a preponderance 
                of the evidence that the person with whom he or she had 
                sexual intercourse was at least 12 years of age, and 
                that the accused reasonably believed that this person 
                was at least 16 years of age.''

                l. R.C.M. 1005(e). The analysis accompanying R.C.M. 
                1005(e) is amended by inserting the following at the 
                end thereof:

                    ``1998 Amendment:'' The requirement to instruct 
                members on the effect a sentence including a punitive 
                discharge and confinement, or confinement exceeding six 
                months, may have on adjudged forfeitures was made 
                necessary by the creation of Article 58b, UCMJ, in 
                section 1122, National Defense Authorization Act for 
                Fiscal Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 
                463 (1996).''

                m. R.C.M. 1101. The analysis accompanying R.C.M. 
                1101(c) is amended by inserting the following at the 
                end thereof:

                    ``1998 Amendment:'' In enacting section 1121 of the 
                National Defense Authorization Act for Fiscal Year 
                1996, Pub. L. No. 104-106, 110 Stat. 186, 462, 464 
                (1996), Congress amended Article 57(a) to make 
                forfeitures of pay and allowances and reductions in 
                grade effective either 14 days after being adjudged by 
                a court-martial, or when the convening authority takes 
                action in the case, whichever was earlier in time. 
                Until this change, any forfeiture or reduction in grade 
                adjudged by the court did not take effect until 
                convening authority action, which meant the accused 
                often retained the privileges of his or her rank and 
                pay for up to several months. The intent of the 
                amendment to Article 57(a) was to change this situation 
                so that the desired punitive and rehabilitative impact 
                on the accused occurred more quickly.
                    Congress, however, desired that a deserving accused 
                be permitted to request a deferment of any adjudged 
                forfeitures or reduction in grade, so that a convening 
                authority, in appropriate situations, might mitigate 
                the effect of Article 57(a).
                    This change to R.C.M. 1101 is in addition to the 
                change to R.C.M. 1203. The latter implements Congress' 
                creation of Article 57a, giving the Service Secretary 
                concerned the authority to defer a sentence to 
                confinement pending review under Article 67(a)(2).''

                n. R.C.M. 1101(d). The analysis accompanying R.C.M. 
                1101(d) is added as follows:

                    ``1998 Amendment:'' This new subsection implements 
                Article 58b, UCMJ, created by section 1122, National 
                Defense Authorization Act for Fiscal Year 1996, Pub. L. 
                No. 104-106, 110 Stat. 186, 463 (1996). This article 
                permits the convening authority (or other person acting 
                under Article 60) to waive any or all of the 
                forfeitures of pay and allowances forfeited by 
                operation of Article 58b(a) for a period not to exceed 
                six months. The purpose of such waiver is to provide 
                support to some or all of the accused's dependent(s) 
                when circumstances warrant. The convening authority 
                directs the waiver and identifies those dependent(s) 
                who shall receive the payment(s).''

                o. R.C.M. 1102A. The analysis accompanying R.C.M. 1102A 
                is added as follows:

                    ``1998 Amendment:'' This new Rule implements 
                Article 76b(b), UCMJ. Created in section 1133 of the 
                National Defense Authorization Act for Fiscal Year 
                1996, Pub. L. No. 104-106, 110 Stat. 186, 464-66 
                (1996), it provides for a post-trial hearing within 
                forty days of the finding that the accused is not 
                guilty only by reason of a lack of mental 
                responsibility. Depending on the offense concerned, the 
                accused has the burden of proving either by a 
                preponderance of the evidence, or by clear and 
                convincing evidence,

[[Page 30091]]

                that his or her release would not create a substantial 
                risk of bodily injury to another person or serious 
                damage to property of another due to a present mental 
                disease or defect. The intent of the drafters is for 
                R.C.M. 1102A to mirror the provisions of sections 4243 
                and 4247 of title 18, United States Code.''

                p. R.C.M. 1107(b). The analysis accompanying R.C.M. 
                1107(b) is amended by inserting the following at the 
                end thereof:

                    ``1998 Amendment:'' Congress created Article 76b, 
                UCMJ in section 1133 of the National Defense 
                Authorization Act for Fiscal Year 1996, Pub. L. No. 
                104-106, 110 Stat. 186, 464-66 (1996). It gives the 
                convening authority discretion to commit an accused 
                found not guilty only by reason of a lack of mental 
                responsibility to the custody of the Attorney 
                General.''

                q. R.C.M. 1107(d). The analysis accompanying R.C.M. 
                1107(d) is amended by inserting the following at the 
                end thereof:

                    ``1998 Amendment:'' All references to 
                ``postponing'' service of a sentence to confinement 
                were changed to use the more appropriate term, 
                ``defer.''

                r. R.C.M. 1109. The analysis accompanying R.C.M. 1109 
                is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' The Rule is amended to clarify 
                that ``the suspension of a special court-martial 
                sentence which as approved includes a bad-conduct 
                discharge,'' permits the officer exercising special 
                court-martial jurisdiction to vacate any suspended 
                punishments other than an approved suspended bad-
                conduct discharge.''

                s. R.C.M. 1203(c). The analysis accompanying R.C.M. 
                1203(c) is amended by inserting the following at the 
                end thereof:

                    ``1998 Amendment:'' The change to the rule 
                implements the creation of Article 57a, UCMJ, contained 
                in section 1123 of the National Defense Authorization 
                Act for Fiscal Year 1996, Pub. L. No. 104-106, 110 
                Stat. 186, 463-64 (1996). A sentence to confinement may 
                be deferred by the Secretary concerned when it has been 
                set aside by a Court of Criminal Appeals and a Judge 
                Advocate General certifies the case to the Court of 
                Appeals for the Armed Forces for further review under 
                Article 67(a)(2). Unless it can be shown that the 
                accused is a flight risk or a potential threat to the 
                community, the accused should be released from 
                confinement pending the appeal. See Moore v. Akins, 30 
                M.J. 249 (C.M.A. 1990).''

                t. R.C.M. 1210. The analysis accompanying R.C.M. 1210 
                is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' R.C.M. 1210(a) was amended to 
                clarify its application consistent with interpretations 
                of Fed. R. Crim. P. 33 that newly discovered evidence 
                is never a basis for a new trial of the facts when the 
                accused has pled guilty. See United States v. Lambert, 
                603 F.2d 808, 809 (10th Cir. 1979); see also United 
                States v. Gordon, 4 F.3d 1567, 1572 n.3 (10th Cir. 
                1993), cert. denied, 510 U.S. 1184 (1994); United 
                States v. Collins, 898 F. 2d 103 (9th Cir. 1990)(per 
                curiam); United States v. Prince, 533 F.2d 205 (5th 
                Cir. 1976); Williams v. United States, 290 F.2d 217 
                (5th Cir. 1961). But see United States v. Brown, 11 
                U.S.C.M.A. 207, 211, 29 C.M.R. 23, 27 (1960)(per 
                Latimer, J.)(newly discovered evidence could be used to 
                attack guilty plea on appeal in era prior to the guilty 
                plea examination mandated by United States v. Care, 18 
                U.S.C.M.A. 535, 40 C.M.R. 247 (1969) and R.C.M. 
                910(e)). Article 73 authorizes a petition for a new 
                trial of the facts when there has been a trial. When 
                there is a guilty plea, there is no trial. See R.C.M. 
                910(j). The amendment is made in recognition of the 
                fact that it is difficult, if not impossible, to 
                determine whether newly discovered evidence would have 
                an impact on the trier of fact when there has been no 
                trier of fact and no previous trial of the facts at 
                which other pertinent evidence has been adduced. 
                Additionally, a new trial may not be granted on the 
                basis of newly discovered evidence unless ``[t]he newly 
                discovered evidence, if considered by a court-martial 
                in the light of all other pertinent evidence, would 
                probably produce a substantially more favorable result 
                for the accused.'' R.C.M. 1210(f)(2)(C).''

[[Page 30092]]

                2. Changes to Appendix 22, the Analysis accompanying 
                the Military Rules of Evidence (Part III, MCM).

                a. M.R.E. 412. The analysis accompanying M.R.E. 412 is 
                amended by inserting the following at the end thereof:

                    ``1998 Amendment:'' The revisions to Rule 412 
                reflect changes made to Federal Rule of Evidence 412 by 
                section 40141 of the Violent Crime Control and Law 
                Enforcement Act of 1994, Pub L. No. 103-322, 108 Stat. 
                1796, 1918-19 (1994). The purpose of the amendments is 
                to safeguard the alleged victim against the invasion of 
                privacy and potential embarrassment that is associated 
                with public disclosure of intimate sexual details and 
                the infusion of sexual innuendo into the factfinding 
                process.
                    The terminology ``alleged victim'' is used because 
                there will frequently be a factual dispute as to 
                whether the sexual misconduct occurred. Rule 412 does 
                not, however, apply unless the person against whom the 
                evidence is offered can reasonably be characterized as 
                a ``victim of alleged sexual misconduct.''
                    The term ``sexual predisposition'' is added to Rule 
                412 to conform military practice to changes made to the 
                Federal Rule. The purpose of this change is to exclude 
                all other evidence relating to an alleged victim of 
                sexual misconduct that is offered to prove a sexual 
                predisposition. It is designed to exclude evidence that 
                does not directly refer to sexual activities or 
                thoughts but that the accused believes may have a 
                sexual connotation for the factfinder. Admission of 
                such evidence would contravene Rule 412's objectives of 
                shielding the alleged victim from potential 
                embarrassment and safeguarding the victim against 
                stereotypical thinking. Consequently, unless an 
                exception under (b)(1) is satisfied, evidence such as 
                that relating to the alleged victim's mode of dress, 
                speech, or lifestyle is inadmissible.
                    In drafting Rule 412, references to civil 
                proceedings were deleted, as these are irrelevant to 
                courts-martial practice. Otherwise, changes in 
                procedure made to the Federal Rule were incorporated, 
                but tailored to military practice. The Military Rule 
                adopts a 5-day notice period, instead of the 14-day 
                period specified in the Federal Rule. Additionally, the 
                military judge, for good cause shown, may require a 
                different time for such notice or permit notice during 
                trial. The 5-day period preserves the intent of the 
                Federal Rule that an alleged victim receive timely 
                notice of any attempt to offer evidence protected by 
                Rule 412, however, given the relatively short time 
                period between referral and trial, the 5-day period is 
                deemed more compatible with courts-martial practice.
                    Similarly, a closed hearing was substituted for the 
                in camera hearing required by the Federal Rule. Given 
                the nature of the in camera procedure used in Military 
                Rule of Evidence 505(i)(4), and that an in camera 
                hearing in the district courts more closely resembles a 
                closed hearing conducted pursuant to Article 39(a), the 
                latter was adopted as better suited to trial by courts-
                martial. Any alleged victim is afforded a reasonable 
                opportunity to attend and be heard at the closed 
                Article 39(a) hearing. The closed hearing, combined 
                with the new requirement to seal the motion, related 
                papers, and the record of the hearing, fully protects 
                an alleged victim against invasion of privacy and 
                potential embarrassment.''

                b. M.R.E. 413. The analysis accompanying M.R.E. 413 is 
                added as follows:

                    ``1998 Amendment:'' This amendment is intended to 
                provide for more liberal admissibility of character 
                evidence in criminal cases of sexual assault where the 
                accused has committed a prior act of sexual assault.
                    Rule 413 is nearly identical to its Federal Rule 
                counterpart. A number of changes were made, however, to 
                tailor the Rule to military practice. First, all 
                references to Federal Rule 415 were deleted, as it 
                applies only to civil proceedings. Second, military 
                justice terminology was substituted where appropriate 
                (e.g. accused for defendant, court-martial for case). 
                Third, the 5-day notice requirement in Rule 413(b) 
                replaced a 15-day notice requirement in the Federal 
                Rule. A 5-day requirement is better suited to military

[[Page 30093]]

                discovery practice. This 5-day notice requirement, 
                however, is not intended to restrict a military judge's 
                authority to grant a continuance under R.C.M. 
                906(b)(1). Fourth, Rule 413(d) has been modified to 
                include violations of the Uniform Code of Military 
                Justice. Also, the phrase ``without consent'' was added 
                to Rule 413(d)(1) to specifically exclude the 
                introduction of evidence concerning adultery or 
                consensual sodomy. Last, all incorporation by way of 
                reference was removed by adding subsections (e), (f), 
                and (g). The definitions in those subsections were 
                taken from title 18, United States Code 
                Sec. Sec. 2246(2), 2246(3), and 513(c)(5), 
                respectively.
                    Although the Rule states that the evidence ``is 
                admissible,'' the drafters intend that the courts apply 
                Rule 403 balancing to such evidence. Apparently, this 
                also was the intent of Congress. The legislative 
                history reveals that ``the general standards of the 
                rules of evidence will continue to apply, including the 
                restrictions on hearsay evidence and the court's 
                authority under evidence rule 403 to exclude evidence 
                whose probative value is substantially outweighed by 
                its prejudicial effect.'' 140 Cong. Rec. S12,990 (daily 
                ed. Sept. 20, 1994)(Floor Statement of the Principal 
                Senate Sponsor, Senator Bob Dole, Concerning the Prior 
                Crimes Evidence Rules for Sexual Assault and Child 
                Molestation Cases).
                    When ``weighing the probative value of such 
                evidence, the court may, as part of its rule 403 
                determination, consider proximity in time to the 
                charged or predicate misconduct; similarity to the 
                charged or predicate misconduct; frequency of the other 
                acts; surrounding circumstances; relevant intervening 
                events; and other relevant similarities or 
                differences.'' (Report of the Judicial Conference of 
                the United States on the Admission of Character 
                Evidence in Certain Sexual Misconduct Cases).''

                c. M.R.E. 414. The analysis accompanying M.R.E. 414 is 
                added as follows:

                    ``1998 Amendment:'' This amendment is intended to 
                provide for more liberal admissibility of character 
                evidence in criminal cases of child molestation where 
                the accused has committed a prior act of sexual assault 
                or child molestation.
                    Rule 414 is nearly identical to its Federal Rule 
                counterpart. A number of changes were made, however, to 
                tailor the Rule to military practice. First, all 
                references to Federal Rule 415 were deleted, as it 
                applies only to civil proceedings. Second, military 
                justice terminology was substituted where appropriate 
                (e.g. accused for defendant, court-martial for case). 
                Third, the 5-day notice requirement in Rule 414(b) 
                replaced a 15-day notice requirement in the Federal 
                Rule. A 5-day requirement is better suited to military 
                discovery practice. This 5-day notice requirement, 
                however, is not intended to restrict a military judge's 
                authority to grant a continuance under R.C.M. 
                906(b)(1). Fourth, Rule 414(d) has been modified to 
                include violations of the Uniform Code of Military 
                Justice. Last, all incorporation by way of reference 
                was removed by adding subsections (e), (f), (g), and 
                (h). The definitions in those subsections were taken 
                from title 18, United States Code Sec. Sec. 2246(2), 
                2246(3), 2256(2), and 513(c)(5), respectively.
                    Although the Rule states that the evidence ``is 
                admissible,'' the drafters intend that the courts apply 
                Rule 403 balancing to such evidence. Apparently, this 
                was also the intent of Congress. The legislative 
                history reveals that ``the general standards of the 
                rules of evidence will continue to apply, including the 
                restrictions on hearsay evidence and the court's 
                authority under evidence rule 403 to exclude evidence 
                whose probative value is substantially outweighed by 
                its prejudicial effect.'' 140 Cong. Rec. S12,990 (daily 
                ed. Sept. 20, 1994)(Floor Statement of the Principal 
                Senate Sponsor, Senator Bob Dole, Concerning the Prior 
                Crimes Evidence Rules for Sexual Assault and Child 
                Molestation Cases).
                    When ``weighing the probative value of such 
                evidence, the court may, as part of its rule 403 
                determination, consider proximity in time to the 
                charged or predicate misconduct; similarity to the 
                charged or predicate misconduct; frequency of the other 
                acts; surrounding circumstances; relevant intervening 
                events; and other relevant similarities or 
                differences.'' (Report

[[Page 30094]]

                of the Judicial Conference of the United States on the 
                Admission of Character Evidence in Certain Sexual 
                Misconduct Cases).''

                d. M.R.E. 1102. The analysis accompanying M.R.E. 1102 
                is amended by inserting the following at the end 
                thereof:

                    ``1998 Amendment:'' The Rule is amended to increase 
                to 18 months the time period between changes to the 
                Federal Rules of Evidence and automatic amendment of 
                the Military Rules of Evidence. This extension allows 
                for the timely submission of changes through the annual 
                review process.''

                3. Changes to Appendix 23, the Analysis accompanying 
                the Punitive Articles (Part IV, MCM).

                a. Article 95--Resistance, flight, breach of arrest and 
                escape. The following analysis is inserted after the 
                analysis to Article 95:

                    ``1998 Amendment:'' Subparagraphs a, b, c and f 
                were amended to implement the amendment to 10 U.S.C. 
                Sec. 895 (Article 95, UCMJ) contained in section 1112 
                of the National Defense Authorization Act for Fiscal 
                Year 1996, Pub. L. No. 104-106, 110 Stat. 186, 461 
                (1996). The amendment proscribes fleeing from 
                apprehension without regard to whether the accused 
                otherwise resisted apprehension. The amendment responds 
                to the U.S. Court of Appeals for the Armed Forces 
                decisions in United States v. Harris, 29 M.J. 169 
                (C.M.A. 1989), and United States v. Burgess, 32 M.J. 
                446 (C.M.A. 1991). In both cases, the court held that 
                resisting apprehension does not include fleeing from 
                apprehension, contrary to the then-existing explanation 
                in Part IV, paragraph 19c.(1)(c), MCM, of the nature of 
                the resistance required for resisting apprehension. The 
                1951 and 1969 Manuals for Courts-Martial also explained 
                that flight could constitute resisting apprehension 
                under Article 95, an interpretation affirmed in the 
                only early military case on point, United States v. 
                Mercer, 11 C.M.R. 812 (A.F.B.R. 1953). Flight from 
                apprehension should be expressly deterred and punished 
                under military law. Military personnel are specially 
                trained and routinely expected to submit to lawful 
                authority. Rather than being a merely incidental or 
                reflexive action, flight from apprehension in the 
                context of the armed forces may have a distinct and 
                cognizable impact on military discipline.''

                b. Article 120--Rape and carnal knowledge. The 
                following analysis is inserted after the analysis to 
                Article 120:

                    ``1998 Amendment:'' In enacting section 1113 of the 
                National Defense Authorization Act for Fiscal Year 
                1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996), 
                Congress amended Article 120, UCMJ, to make the offense 
                gender neutral and create a mistake of fact as to age 
                defense to a prosecution for carnal knowledge. The 
                accused must prove by a preponderance of the evidence 
                that the person with whom he or she had sexual 
                intercourse was at least 12 years of age, and that the 
                accused reasonably believed that this person was at 
                least 16 years of age.''

                c. Article 128--Assault. The following analysis is 
                inserted after the analysis to Article 128, para. e:

                    ``1998 Amendment:'' A separate maximum punishment 
                for assault with an unloaded firearm was created due to 
                the serious nature of the offense. Threatening a person 
                with an unloaded firearm places the victim of that 
                assault in fear of losing his or her life. Such a 
                traumatic experience is a far greater injury to the 
                victim than that sustained in the course of a typical 
                simple assault. Therefore, it calls for an increased 
                punishment.''

                d. Article 134--(Parole, Violation of). The following 
                new analysis paragraph is inserted after paragraph 97:

                ``97a. Article 134--(Parole, Violation of)

                    1998 Amendment: The addition of paragraph 97a to 
                Part IV, Punitive Articles, makes clear that violation 
                of parole is an offense under Article 134, UCMJ. Both 
                the 1951 and 1969 Manuals for Courts-Martial listed the 
                offense in their respective Table of Maximum 
                Punishments. No explanatory guidance, however, was 
                contained in the discussion of Article 134, UCMJ in the 
                Manual for Courts-Martial. The drafters added paragraph 
                97a to ensure that an explanation of the offense, to 
                include its elements and a sample

[[Page 30095]]

                specification, is contained in the Manual for Courts-
                Martial, Part IV, Punitive Articles. See generally 
                United States v. Faist, 41 C.M.R. 720 (A.C.M.R. 1970); 
                United States v. Ford, 43 C.M.R. 551 (A.C.M.R. 1970).''
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