Presidential Documents

30065

Federal Register

Vol. 63, No. 105

Tuesday, June 2, 1998

Title 3—

The President

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
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(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.
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(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.’’
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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.’’
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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.’’
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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’’
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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
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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.
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(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
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(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 crossexamine 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
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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 courtmartial 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 courtmartial 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.
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(e) Vacation of a suspended special court-martial sentence wherein a

bad-conduct discharge was not adjudged.

(1) In general. Before vacating the suspension of a special court-martial

punishment that does not include a bad-conduct discharge, the special courtmartial convening 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.
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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.
30078 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

(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;
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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;
30080 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

(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 courtmartial may direct.’’
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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 posttrial confinement, add the following element]

(d) That the confinement was the result of a court-martial conviction.

c. Explanation.

(1) Resisting apprehension.

(a) Apprehension. Apprehension is the taking of a person into custody.

See R.C.M. 302.

(b) Authority to apprehend. See R.C.M. 302(b) concerning who may

apprehend. Whether the status of a person authorized that person to apprehend the accused is a question of law to be decided by the military judge.

Whether the person who attempted to make an apprehension had such

a status is a question of fact to be decided by the factfinder.

(c) Nature of the resistance. The resistance must be active, such as

assaulting the person attempting to apprehend. Mere words of opposition,

argument, or abuse, and attempts to escape from custody after the apprehension is complete, do not constitute the offense of resisting apprehension

although they may constitute other offenses.

(d) Mistake. It is a defense that the accused held a reasonable belief

that the person attempting to apprehend did not have authority to do so.

However, the accused’s belief at the time that no basis existed for the

apprehension is not a defense.

(e) Illegal apprehension. A person may not be convicted of resisting

apprehension if the attempted apprehension is illegal, but may be convicted

of other offenses, such as assault, depending on all the circumstances. An

attempted apprehension by a person authorized to apprehend is presumed
30082 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

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
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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 lllllll (personal jurisdiction data), did (at/on board—

location) (subject-matter jurisdiction data, if required), on or about

lllll, 19ll, resist being apprehended by lllll, (an armed force

policeman) (lllll), a person authorized to apprehend the accused.

(2) Flight from apprehension.

In that lllllll (personal jurisdiction data), did (at/on board—

location) (subject matter jurisdiction data, if required), on or about

lllllllll 19ll, flee apprehension by llllllll (an armed

force policeman) (lllllllll), a person authorized to apprehend

the accused.

(3) Breaking arrest.

In that lllllll (personal jurisdiction data), having been placed

in arrest (in quarters) (in his/her company area) ( lllllllll )

by a person authorized to order the accused into arrest, did, (at/on board—

location) on or about llllllllll 19ll, break said arrest.

(4) Escape from custody.

In that lllllllllll (personal jurisdiction data), did, (at/on

board—location) (subject-matter jurisdiction data, if required), on or about
30084 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

lllllllll 19ll, escape from the custody of lllllllll,

a person authorized to apprehend the accused.

(5) Escape from confinement.

In that lllllllll (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) (subjectmatter jurisdiction data, if required), on or about llllllll 19ll,

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 llllllllll (personal jurisdiction data), a prisoner on

parole, did, (at/on board—location), on or about llllll, 19ll, violate

the conditions of his/her parole by lllllllllllllll.’’

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
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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.
30086 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

(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

[FR Doc. 98–14688

been prescribed.

THE WHITE HOUSE,

May 27, 1998.

œ–

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
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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.
30088 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

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 CourtsMartial (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 § 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
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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
30090 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

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,
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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).’’
30092 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

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
Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents 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 § § 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 § § 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
30094 Federal Register / Vol. 63, No. 105 /Tuesday, June 2, 1998 / Presidential Documents

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