Presidential Documents

60697 

Federal Register 

Vol. 70, No. 200 

Tuesday, October 18, 2005 

Title 3— 

The President 

Executive Order 13387 of October 14, 2005 

2005 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), 

and in order to prescribe amendments to the Manual for Courts-Martial, 

United States, prescribed by Executive Order 12473, as amended, 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. 103(2) is amended by replacing the word ‘‘without’’ with the 

word ‘‘with’’ and by replacing the word ‘‘noncapital’’ with the word ‘‘capital’’. 

(b) R.C.M. 201(e)(2)(B) is amended by adding the word ‘‘general’’ between 

the words ‘‘convene’’ and ‘‘courts-martial’’ and by inserting the following 

words after ‘‘armed forces’’: 

‘‘assigned or attached to a combatant command or joint command’’. 

(c) R.C.M. 201(e)(2)(C) is amended by inserting the words ‘‘assigned or 

attached to a joint command or joint task force,’’ immediately before the 

words ‘‘under regulations which the superior command may prescribe’’. 

(d) R.C.M. 201(e)(3) is amended by inserting the following immediately 

after the words ‘‘armed force’’: 

‘‘, using the implementing regulations and procedures prescribed by the 

Secretary concerned of the military service of the accused,’’. 

(e) R.C.M. 201(e)(4) is amended by adding the words ‘‘, member, or counsel’’ after the words ‘‘military judge’’. 

(f) R.C.M. 201(f)(1)(A)(iii)(b) is amended to read as follows: 

‘‘(b) The case has not been referred with a special instruction that the 

case is to be tried as capital.’’ 

(g) R.C.M. 307(c)(4) is amended by inserting the following at the end 

thereof: 

‘‘What is substantially one transaction should not be made the basis for 

an unreasonable multiplication of charges against one person.’’ 

(h) R.C.M. 501(a)(1) is amended to read as follows: 

‘‘(1) General courts-martial. 

(A) Except in capital cases, general courts-martial shall consist of a military 

judge and not less than five members, or of the military judge alone if 

requested and approved under R.C.M. 903. 

(B) In all capital cases, general courts-martial shall consist of a military 

judge and no fewer than 12 members, unless 12 members are not reasonably 

available because of physical conditions or military exigencies. If 12 members 

are not reasonably available, the convening authority shall detail the next 

lesser number of reasonably available members under 12, but in no event 

fewer than five. In such a case, the convening authority shall state in 

the convening order the reasons why 12 members are not reasonably available.’’ 

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(i) R.C.M. 503(a)(3) is amended by deleting ‘‘court-martial’’ and inserting 

‘‘courts-martial’’ in lieu thereof. 

(j) R.C.M. 503(b)(3) is amended by inserting the words ‘‘, a combatant 

command or joint command’’ after the words ‘‘A military judge from one 

armed force may be detailed to a court-martial convened in a different 

armed force’’. 

(k) R.C.M. 503(c)(3) is amended by inserting the words ‘‘, a combatant 

command or joint command’’ after the words ‘‘A person from one armed 

force may be detailed to serve as counsel in a court-martial in a different 

armed force’’. 

(l) R.C.M. 504, (b)(2)(A) is amended by inserting the following at the 

end thereof: 

‘‘A subordinate joint command or joint task force is ordinarily considered 

to be ‘‘separate or detached.’’’’

(m) R.C.M. 504, (b)(2)(B) is amended by deleting the word ‘‘or’’ at the 

end of the first element thereof, by deleting the period and adding ‘‘ ; 

or’’ at the end of the second element thereof, and by inserting the following 

as a third element: 

‘‘(iii) In a combatant command or joint command, by the officer exercising 

general court-martial jurisdiction over the command.’’

(n) R.C.M. 805(b) is amended by replacing the current second sentence 

with the following: 

‘‘No general court-martial proceeding requiring the presence of members 

may be conducted unless at least five members are present, or in capital 

cases, at least 12 members are present except as provided in R.C.M. 

501(a)(1)(B), where 12 members are not reasonably available because of 

physical conditions or military exigencies. No special court-martial proceeding requiring the presence of members may be conducted unless at 

least three members are present except as provided in R.C.M. 912(h).’’

(o) R.C.M. 912(f)(4) is amended by deleting the fifth sentence and by 

inserting the following words immediately after the words ‘‘When a challenge 

for cause has been denied’’ in the fourth sentence: 

‘‘the successful use of a peremptory challenge by either party, excusing 

the challenged member from further participation in the court-martial, shall 

preclude further consideration of the challenge of that excused member 

upon later review. Further,’’

(p) R.C.M. 1003(b)(2) is amended by replacing the word ‘‘foreign’’ with 

the word ‘‘hardship.’’

(q) R.C.M. 1004(b) is amended by inserting the following after ‘‘(1) Notice.’’

and before the word ‘‘Before’’: 

‘‘(A) Referral. The convening authority shall indicate that the case is 

to be tried as a capital case by including a special instruction in the referral 

block of the charge sheet. Failure to include this special instruction at 

the time of the referral shall not bar the convening authority from later 

adding the required special instruction, provided: 

(i) that the convening authority has otherwise complied with the notice 

requirement of subsection (B); and 

(ii) that if the accused demonstrates specific prejudice from such failure 

to include the special instruction, a continuance or a recess is an adequate 

remedy. 

(B) Arraignment.’’

(r) Insert the following new R.C.M. 1103A after R.C.M. 1103: 

‘‘Rule 1103A. Sealed exhibits and proceedings. 

(a) In general. If the record of trial contains exhibits, proceedings, or 

other matter ordered sealed by the military judge, the trial counsel shall 

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cause such materials to be sealed so as to prevent indiscriminate viewing 

or disclosure. Trial counsel shall ensure that such materials are properly 

marked, including an annotation that the material was sealed by order 

of the military judge, and inserted at the appropriate place in the original 

record of trial. Copies of the record shall contain appropriate annotations 

that matters were sealed by order of the military judge and have been 

inserted in the original record of trial. This Rule shall be implemented 

in a manner consistent with Executive Order 12958, as amended, concerning 

classified national security information. 

(b) Examination of sealed exhibits and proceedings. Except as provided 

in the following subsections to this rule, sealed exhibits may not be examined. 

(1) Examination of sealed matters. For the purpose of this rule, ‘‘examination’’ includes reading, viewing, photocopying, photographing, disclosing, 

or manipulating the documents in any way. 

(2) Prior to authentication. Prior to authentication of the record by the 

military judge, sealed materials may not be examined in the absence of 

an order from the military judge based on good cause shown. 

(3) Authentication through action. After authentication and prior to disposition of the record of trial pursuant to Rule for Courts-Martial 1111, sealed 

materials may not be examined in the absence of an order from the military 

judge upon a showing of good cause at a post-trial Article 39a session 

directed by the Convening Authority. 

(4) Reviewing and appellate authorities. 

(A) Reviewing and appellate authorities may examine sealed matters when 

those authorities determine that such action is reasonably necessary to a 

proper fulfillment of their responsibilities under the Uniform Code of Military 

Justice, the Manual for Courts-Martial, governing directives, instructions, 

regulations, applicable rules for practice and procedure, or rules of professional responsibility. 

(B) Reviewing and appellate authorities shall not, however, disclose sealed 

matter or information in the absence of: 

(i) Prior authorization of the Judge Advocate General in the case of review 

under Rule for Courts-Martial 1201(b); or 

(ii) Prior authorization of the appellate court before which a case is pending 

review under Rules for Courts-Martial 1203 and 1204. 

(C) In those cases in which review is sought or pending before the United 

States Supreme Court, authorization to disclose sealed materials or information shall be obtained under that Court’s rules of practice and procedure. 

(D) The authorizing officials in paragraph (B)(ii) above may place conditions on authorized disclosures in order to minimize the disclosure. 

(E) For purposes of this rule, reviewing and appellate authorities are 

limited to: 

(i) Judge advocates reviewing records pursuant to Rule for Courts-Martial 

1112; 

(ii) Officers and attorneys in the office of the Judge Advocate General 

reviewing records pursuant to Rule for Courts-Martial 1201(b); 

(iii) Appellate government counsel; 

(iv) Appellate defense counsel; 

(v) Appellate judges of the Courts of Criminal Appeals and their professional staffs; 

(vi) The judges of the United States Court of Appeals for the Armed 

Forces and their professional staffs; 

(vii) The Justices of the United States Supreme Court and their professional 

staffs; and 

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(viii) Any other court of competent jurisdiction.’’

(s) R.C.M. 1301(a) is amended by inserting the following after the second 

sentence: 

‘‘Summary courts-martial shall be conducted in accordance with the regulations of the military service to which the accused belongs.’’

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

as follows: 

Mil. R. Evid. 317(b) is amended by replacing the word ‘‘Transportation’’

with the words ‘‘Homeland Security.’’

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

as follows: 

(a) Paragraph 14c(2)(a) is amended by inserting the following new subparagraph (ii) and renumbering existing subparagraphs (a)(ii) through (iv) as 

(a)(iii) through (v): 

‘‘(ii) Determination of lawfulness. The lawfulness of an order is a question 

of law to be determined by the military judge.’’

(b) Paragraph 16(c)(1)(a) is amended by replacing the word ‘‘Transportation’’ with the words ‘‘Homeland Security’’. 

(c) Paragraph 35a is amended to read as follows: 

‘‘a. Text. 

(a) Any person subject to this chapter who—

(1) operates or physically controls any vehicle, aircraft, or vessel in a 

reckless or wanton manner or while impaired by a substance described 

in section 912a(b) of this title (Article 112a(b)), or 

(2) operates or is in actual physical control of any vehicle, aircraft, or 

vessel while drunk or when the alcohol concentration in the person’s blood 

or breath is equal to or exceeds the level prohibited under subsection (b), 

as shown by chemical analysis, shall be punished as a court-martial may 

direct. 

(b)(1) For purposes of subsection (a), the applicable level of the alcohol 

concentration in a person’s blood or breath is as follows: 

(A) In the case of the operation or control of a vehicle, aircraft, or vessel 

in the United States, the level is the blood alcohol concentration prohibited 

under the law of the State in which the conduct occurred, except as may 

be provided under paragraph (b)(2) for conduct on a military installation 

that is in more than one State, or the prohibited alcohol concentration 

level specified in paragraph (b)(3). 

(B) In the case of the operation or control of a vehicle, aircraft, or vessel 

outside the United States, the level is the blood alcohol concentration specified in paragraph (b)(3) or such lower level as the Secretary of Defense 

may by regulation prescribe. 

(2) In the case of a military installation that is in more than one State, 

if those States have different levels for defining their prohibited blood alcohol 

concentrations under their respective State laws, the Secretary concerned 

for the installation may select one such level to apply uniformly on that 

installation. 

(3) For purposes of paragraph (b)(1), the level of alcohol concentration 

prohibited in a person’s blood is 0.10 grams or more of alcohol per 100 

milliliters of blood and with respect to alcohol concentration in a person’s 

breath is 0.10 grams or more of alcohol per 210 liters of breath, as shown 

by chemical analysis.’’

(4) In this subsection, the term ‘‘United States’’ includes the District of 

Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 

and American Samoa, and the term ‘‘State’’ includes each of those jurisdictions.’’

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(d) Paragraph 35b(2)(c) is amended to read as follows: 

‘‘(c) the alcohol concentration level in the accused’s blood or breath, 

as shown by chemical analysis, was equal to or exceeded the applicable 

level provided in paragraph 35a above.’’

(e) Paragraph 35f is amended as follows: 

‘‘In that ______(personal jurisdiction data), did (at/on board—required), 

on or about 20___, (in the motor pool area) (near the Officer’s Club) (at 

the intersection of ___ and ___) (while in the Gulf of Mexico) (while in 

flight over North America) physically control [a vehicle, to wit: (a truck) 

(a passenger car) (___)] [an aircraft, to wit: (an AH–64 helicopter)(an F–

14A fighter)(a KC–135 tanker) (___)] [a vessel, to wit: (the aircraft carrier 

USS ___) (the Coast Guard Cutter) (___)], [while drunk] [while impaired 

by ___] [while the alcohol concentration in his (blood)(breath) was, as shown 

by chemical analysis, equal to or exceeded (.10) (___) grams of alcohol 

per (100 milliliters of blood) (210 liters of breath), which is the limit under 

(cite applicable State law) (cite applicable statute or regulation)] [in a (reckless) (wanton) manner by (attempting to pass another vehicle on a sharp 

curve) (by ordering that the aircraft be flown below the authorized altitude)] 

[and did thereby cause said (vehicle) (aircraft) (vessel) to (strike and) (injure 

______ )].’’

(f) Paragraph 97 is amended by (1) inserting the following new subparagraph (b)(2) and renumbering the existing subparagraphs (b)(2) and (b)(3) 

as (b)(3) and (b)(4); (2) adding the words ‘‘and patronizing a prostitute’’

after the word ‘‘Prostitution’’ in subparagraph (e)(1); and (3) inserting the 

following new subparagraph (f)(2) and renumbering the existing subparagraphs (f)(2) and (f)(3) as (f)(3) and (f)(4): 

‘‘(b)(2) Patronizing a prostitute. 

(a) That the accused had sexual intercourse with another person not 

the accused’s spouse; 

(b) That the accused compelled, induced, enticed, or procured such person 

to engage in an act of sexual intercourse in exchange for money or other 

compensation; and 

(c) That this act was wrongful; and 

(d) That, under the circumstances, the conduct of the accused was to 

the prejudice of good order and discipline in the armed forces or was 

of a nature to bring discredit upon the armed forces.’’

‘‘(f)(2) Patronizing a prostitute. 

In that ___ (personal jurisdiction data), did, (at/on board—location) (subjectmatter jurisdiction data, if required), on or about ___20___, wrongfully (compel) (induce) (entice) (procure) ___ , a person not his/her spouse, to engage 

in (an act) (acts) of sexual intercourse with the accused in exchange for 

(money) (______).’’

(g) Paragraph 109 is amended to read as follows: 

‘‘109. ARTICLE 134—(Threat or hoax designed or intended to cause panic 

or public fear) 

a. Text. See paragraph 60. 

b. Elements. 

(1) Threat. 

(a) That the accused communicated certain language; 

(b) That the information communicated amounted to a threat; 

(c) That the harm threatened was to be done by means of an explosive; 

weapon of mass destruction; biological or chemical agent, substance, or 

weapon; or hazardous material; 

(d) That the communication was wrongful; and 

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(e) That, under the circumstances, the conduct of the accused was to 

the prejudice of good order and discipline in the armed forces or was 

of a nature to bring discredit upon the armed forces. 

(2) Hoax. 

(a) That the accused communicated or conveyed certain information; 

(b) That the information communicated or conveyed concerned an attempt 

being made or to be made by means of an explosive; weapon of mass 

destruction; biological or chemical agent, substance, or weapon; or hazardous 

material, to unlawfully kill, injure, or intimidate a person or to unlawfully 

damage or destroy certain property; 

(c) That the information communicated or conveyed by the accused was 

false and that the accused then knew it to be false; 

(d) That the communication of the information by the accused was malicious; and 

(e) That, under the circumstances, the conduct of the accused was to 

the prejudice of good order and discipline in the armed forces or was 

of a nature to bring discredit upon the armed forces. 

c. Explanation. 

(1) Threat. A ‘‘threat’’ means an expressed present determination or intent 

to kill, injure, or intimidate a person or to damage or destroy certain property 

presently or in the future. Proof that the accused actually intended to kill, 

injure, intimidate, damage, or destroy is not required. 

(2) Explosive. ‘‘Explosive’’ means gunpowder, powders used for blasting, 

all forms of high explosives, blasting materials, fuses (other than electrical 

circuit breakers), detonators, and other detonating agents, smokeless powders, 

any explosive bomb, grenade, missile, or similar device, and any incendiary 

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

compound, mixture, or similar material. 

(3) Weapon of mass destruction. A weapon of mass destruction means 

any device, explosive or otherwise, that is intended, or has the capability, 

to cause death or serious bodily injury to a significant number of people 

through the release, dissemination, or impact of: toxic or poisonous chemicals, or their precursors; a disease organism; or radiation or radioactivity. 

(4) Biological agent. The term ‘‘biological agent’’ means 12 any microorganism (including bacteria, viruses, fungi, rickettsiac, or protozoa), pathogen, or infectious substance, and any naturally occurring, bioengineered, 

or synthesized component of any such micro-organism, pathogen, or infectious substance, whatever its origin or method of production, that is capable 

of causing—

(a) death, disease, or other biological malfunction in a human, an animal, 

a plant, or another living organism; 

(b) deterioration of food, water, equipment, supplies, or materials of any 

kind; or 

(c) deleterious alteration of the environment. 

(5) Chemical agent, substance, or weapon. A chemical agent, substance, 

or weapon refers to a toxic chemical and its precursors or a munition 

or device, specifically designed to cause death or other harm through toxic 

properties of those chemicals that would be released as a result of the 

employment of such munition or device, and any equipment specifically 

designed for use directly in connection with the employment of such munitions or devices. 

(6) Hazardous material. A substance or material (including explosive, 

radioactive material, etiologic agent, flammable or combustible liquid or 

solid, poison, oxidizing or corrosive material, and compressed gas, or mixture 

thereof) or a group or class of material designated as hazardous by the 

Secretary of Transportation. 

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(7) Malicious. A communication is ‘‘malicious’’ if the accused believed 

that the information would probably interfere with the peaceful use of 

the building, vehicle, aircraft, or other property concerned, or would cause 

fear or concern to one or more persons. 

d. Lesser included offenses. 

(1) Threat 

(a) Article 134—communicating a threat 

(b) Article 80—attempts 

(c) Article 128—assault 

(2) Hoax. Article 80—attempts 

e. Maximum punishment. Dishonorable discharge, forfeitures of all pay 

and allowances, and confinement for 10 years. 

f. Sample specifications. 

(1) Threat. 

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

on or about _____20___, wrongfully communicate certain information, to 

wit: ______, which language constituted a threat to harm a person or property 

by means of a(n) [explosive; weapon of mass destruction; biological agent, 

substance, or weapon; chemical agent, substance, or weapon; and/or (a) 

hazardous material(s)]. 

(2) Hoax. 

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

on or about ______20____, maliciously (communicate) (convey) certain information concerning an attempt being made or to be made to unlawfully 

[(kill) (injure) (intimidate) ______] [(damage) (destroy) ______] by means of 

a(n) [explosive; weapon of mass destruction; biological agent, substance, 

or weapon; chemical agent, substance, or weapon; and/or (a) hazardous 

material(s)], to wit: ___, which information was false and which the accused 

then knew to be false.’’

Sec. 4. Part V of the Manual for Courts-Martial, United States, is amended 

as follows: 

(a) Paragraph 1(h) is amended by redesignating existing paragraph 1(h) 

as 1(i) and inserting the following new paragraph 1(h): 

‘‘h. Applicable standards. Unless otherwise provided, the service regulations and procedures of the servicemember shall apply.’’

(b) Paragraph 2(a) is amended by replacing the words ‘‘Unless otherwise’’

with the word ‘‘As’’. 

(c) Paragraph 2(a) is amended by inserting the following after the second 

sentence: 

‘‘Commander includes a commander of a joint command.’’

(d) Paragraph 2(a) is amended by inserting the words ‘‘of a commander’’

in the third sentence after the words ‘‘the authority.’’

Sec. 5. These amendments shall take effect 30 days from the date of this 

order. 

(a) Nothing in these amendments shall be construed to make punishable 

any act done or omitted prior to the effective date of this order that was 

not punishable when done or omitted. 

(b) 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 the effective date of this order, and any such nonjudicial punishment 

proceeding, restraint, investigation, referral of charges, trial, or other action 

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may proceed in the same manner and with the same effect as if these 

amendments had not been prescribed. 

W 

THE WHITE HOUSE, 

October 14, 2005. 

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