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###### Department of Defense

###### Office of the Secretary 

          - [Docket ID: DoD-2008-OS-0112] 

# AGENCY:

Joint Service Committee on Military Justice (JSC), DoD. 

# ACTION:

Notice of Proposed Amendments to the Manual for Courts-Martial, United States (2008 ed.) and Notice of Public Meeting.

# SUMMARY:

                        The Department of Defense is considering recommending changes to the                         *Manual for Courts-Martial, United States*                         (2008 ed.) (MCM). The proposed changes constitute the 2008 annual review required by the MCM and DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003. The proposed changes concern the rules of procedure and evidence and the punitive articles applicable in trials by courts-martial. These proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, “Preparation, Processing and                               ( print page 54388)                            Coordinating Legislation, Executive Orders, Proclamations, Views Letters and Testimony,” June 15, 2007, and do not constitute the official position of the Department of Defense, the Military Departments, or any other Government agency.                     

This notice also sets forth the date, time and location for the public meeting of the JSC to discuss the proposed changes. 

This notice is provided in accordance with DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice,” May 3, 2003. This notice is intended only to improve the internal management of the Federal Government. It is not intended to create any right or benefit, substantive or procedural, enforceable at law by any party against the United States, its agencies, its officers, or any person. 

In accordance with paragraph III.B.4 of the Internal Organization and Operating Procedures of the JSC, the committee also invites members of the public to suggest changes to the Manual for Courts-Martial in accordance with the described format. 

# DATES:

Comments on the proposed changes must be received no later than November 18, 2008, to be assured consideration by the JSC. A public meeting for comments will be held on October 30, 2008, at 10 a.m. in the 14th Floor Conference Room, 1777 N. Kent St., Rosslyn, VA 22209-2194. 

# ADDRESSES:

You may submit comments, identified by docket number and title, by any of the following methods: 
      -  Federal eRulemaking Portal: http://www.regulations.gov . Follow the instructions for submitting comments.                     
      -  Mail:                          Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160.                     

*Instructions:*                         All submissions received must include the agency name and docket number for this                         **Federal Register**                         document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at                         *http://www.regulations.gov*                         as they are received without change, including any personal identifiers or contact information.                     

# FOR FURTHER INFORMATION CONTACT:

                        Lieutenant Colonel Thomas E. Wand, Executive Secretary, Joint Service Committee on Military Justice, Air Force Legal Operations Agency, Military Justice Division, 112 Luke Avenue, Suite 343, Bolling Air Force Base, DC 20032, (202) 767-1539, e-mail                         *Thomas.wand@pentagon.af.mil*.                     

# SUPPLEMENTARY INFORMATION:

The proposed amendments to the MCM are as follows: 

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

(a) R.C.M. 1003 is amended to read as follows: 

                    “(3)                     *Fine.*                     Any court-martial may adjudge a fine in lieu of or in addition to forfeitures. In the case of a member of the armed forces, summary and special courts-martial may not adjudge any fine or combination of fine and forfeitures in excess of the total amount of forfeitures that may be adjudged in that case. In the case of a person serving with or accompanying an armed force in the field, a summary court-martial may not adjudge a fine in excess of two-thirds of one month of the highest rate of enlisted pay, and a special court-martial may not adjudge a fine in excess of two-thirds of one year of the highest rate of officer pay. In order to enforce collection, a fine may be accompanied by a provision in the sentence that, in the event the fine is not paid, the person fined shall, in addition to any period of confinement adjudged, be further confined until a fixed period considered an equivalent punishment to the fine has expired. The total period of confinement so adjudged shall not exceed the jurisdictional limitations of the court-martial.”                 

(b) R.C.M. 1003(c) is amended by renumbering subparagraph (4) as subparagraph (5) and adding a new subparagraph (4) as follows: 

                    “(4)                     *Based on status as a person serving with or accompanying an armed force in the field.*                     In the case of a person serving with or accompanying an armed force in the field, no court-martial may adjudge forfeiture of pay and allowances, reduction in pay grade, hard labor without confinement, or a punitive separation.”                 

(c) R.C.M. 1106(d) is amended to read as follows: 

                    “(d)                     *Form and content of recommendation*.                 

(1) The purpose of the recommendation of the staff judge advocate or legal officer is to assist the convening authority to decide what action to take on the sentence in the exercise of command prerogative. The staff judge advocate or legal officer shall use the record of trial in the preparation of the recommendation, and may also use the personnel records of the accused or other matters in advising the convening authority whether clemency is warranted. 

                    (2)                     *Form.*                     The recommendation of the staff judge advocate or legal officer shall be a concise written communication.                 

                    (3)                     *Required contents.*                     The staff judge advocate or legal advisor shall provide the convening authority with a copy of the report of results of trial, setting forth the findings, sentence, and confinement credit to be applied, a copy or summary of the pretrial agreement, if any, any recommendation for clemency by the sentencing authority made in conjunction with the announced sentence, and the staff judge advocate's concise recommendation.                 

                    (4)                     *Legal errors*. The staff judge advocate or legal officer is not required to examine the record for legal errors. However, when the recommendation is prepared by a staff judge advocate, the staff judge advocate shall state whether, in the staff judge advocate's opinion, corrective action on the findings or sentence should be taken when an allegation of legal error is raised in matters submitted under R.C.M. 1105 or when otherwise deemed appropriate by the staff judge advocate. The response may consist of a statement of agreement or disagreement with the matter raised by the accused. An analysis or rationale for the staff judge advocate's statement, if any, concerning legal error is not required.                 

                    (5)                     *Optional matters*. The recommendation of the staff judge advocate or legal officer may include, in addition to matters included under subsection (d)(3) and (4) of this rule, any additional matters deemed appropriate by the staff judge advocate or legal officer. Such matter may include matters outside the record.                 

                    (6)                     *Effect of error*. In case of error in the recommendation not otherwise waived under subsection (f)(6) of this rule, appropriate corrective action shall be taken by appellate authorities without returning the case for further action by a convening authority.”                 

(d) R.C.M. 1113(d)(2)(A)(iii) is amended to read as follows: 

“(iii) Periods during which the accused is in custody of civilian or foreign authorities after the convening authority, pursuant to Article 57a(b)(1), has postponed the service of a sentence to confinement.” 

(e) R.C.M. 1113(d)(2)(C) is amended by deleting the last two sentences, and replacing them with the following: 

                    “No member of the armed forces, or person serving with or accompanying an armed force in the field, may be placed in confinement in immediate association with enemy prisoners or with other foreign nationals not subject to the code. The Secretary concerned may prescribe regulations governing the place and conditions of confinement.”                           ( print page 54389)    

*Section 2*. Part IV of the Manual for Courts-Martial, United States, is amended as follows:                 

(a) Paragraph 32, Article 108, Military Property of the United States—sale, loss, damage, destruction, or wrongful disposition, paragraph c.(1) is amended to read as follows: 

                    “(1)                     *Military Property*. Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Military property is a term of art, and should not be confused with government property. The terms are not interchangeable. While all military property is government property, all government property is not military property. An item of government property is not military property unless the item in question meets the definition provided above. It is immaterial whether the property sold, disposed, destroyed, lost, or damaged had been issued to the accused, to someone else, or even issued at all. If it is proved by either direct or circumstantial evidence that items of individual issue were issued to the accused, it may be inferred, depending on all the evidence, that the damage, destruction, or loss proved was due to the neglect of the accused. Retail merchandise of service exchange stores is not military property under this article.”                 

(b) Paragraph 44, Article 119, Manslaughter, paragraph b.(2)(d) is amended to read as follows: 

“(d) That this act or omission of the accused constituted culpable negligence, or occurred while the accused was perpetrating or attempting to perpetrate an offense directly affecting the person other than burglary, sodomy, rape, rape of a child, aggravated sexual assault, aggravated sexual assault of a child, aggravated sexual contact, aggravated sexual abuse of a child, aggravated sexual contact with a child, robbery, or aggravated arson.” 

(c) Paragraph 46, Larceny and wrongful appropriation, the Note following paragraph b.(1)(d) is amended to read as follows: 

                    “[                    **Note:**                     If the property is alleged to be military property, as defined in paragraph 46.c.(1)(h), add the following element]”                 

(d) Paragraph 46, Larceny and wrongful appropriation, is amended by re-lettering paragraph 46.c.(1)(h) as paragraph 46.c.(1)(i), and adding a new paragraph 46.c.(1)(h) as follows: 

                    “(h)                     *Military Property*. Military property is all property, real or personal, owned, held, or used by one of the armed forces of the United States. Military property is a term of art, and should not be confused with government property. The terms are not interchangeable. While all military property is government property, all government property is not military property. An item of government property is not military property unless the item in question meets the definition provided above. Retail merchandise of service exchange stores is not military property under this article.”                 

(e) Paragraph 68b. is added as follows: 

“68b. Article 134—(Child pornography)

                    a.                     *Text*.                     *See*                     paragraph 60.                

                    b.                     *Elements*.                 

                    (1)                     *Possessing, receiving, or viewing child pornography*.                 

(a) That the accused knowingly and wrongfully possessed, received, or viewed child pornography; and 

(b) 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)                     *Possessing child pornography with intent to distribute*.                

(a) That the accused knowingly and wrongfully possessed child pornography; 

(b) That the possession was with the intent to distribute; and 

(c) 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. 

                    (3)                     *Distributing child pornography*.                 

(a) That the accused knowingly and wrongfully distributed child pornography to another; and 

(b) 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. 

                    (4)                     *Producing child pornography*.                 

(a) That the accused knowingly and wrongfully produced child pornography; and 

(b) 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) It is not a defense to any offense under this paragraph that the minor depicted was not an actual person or did not actually exist. 

(2) An accused may not be convicted of possessing, receiving, viewing, distributing, or producing child pornography, if he was not aware of the contraband nature of the visual depictions. Awareness may be inferred from circumstantial evidence such as the name of a computer file. 

                    (3) “                    *Child Pornography*                    ” means any visual depiction of a minor, or what appears to be a minor, engaging in sexually explicit conduct.                 

                    (4) “                    *Distributing*                    ” means delivering to the actual or constructive possession of another.                 

                    (5) “                    *Minor*                    ” means any person under the age of 18 years.                 

                    (6) “                    *Possessing*                    ” means exercising control of something. Possession may be direct physical custody like holding an item in one's hand, or it may be constructive, as in the case of a person who hides something in a locker or a car to which that person may return to retrieve it. Possession must be knowing and conscious. Possession inherently includes the power or authority to preclude control by others. It is possible for more than one person to possess an item simultaneously, as when several people share control over an item.                 

                    (7) “                    *Producing*                    ” means creating or manufacturing. As used in this paragraph, it refers to making child pornography that did not previously exist. It does not include reproducing or copying.                 

                    (8) “                    *Sexually explicit conduct*                    ” means actual or simulated:                 

(a) sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; 

(b) bestiality; 

(c) masturbation; 

(d) sadistic or masochistic abuse; or 

(e) lascivious exhibition of the genitals or pubic area of any person. 

                    (9) “                    *Visual depiction*                    ” includes undeveloped film and videotape, and data stored on a computer disk or by electronic means which is capable of conversion into a visual image, and also includes any photograph, film, video, picture, digital image or picture, or computer image or picture, whether made or produced by electronic, mechanical, or other means.                 

(10) Affirmative defenses. 

(a) It shall be an affirmative defense to a charge of possessing child pornography that the accused promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any such visual depiction: 

(i) Took reasonable steps to destroy each such visual depiction; or 

                    (ii) reported the matter to a law enforcement agency and afforded that                           ( print page 54390)                        agency access to each such visual depiction.                 

(b) It shall be an affirmative defense to any offense under this paragraph that all of the persons engaging in sexually explicit conduct in a visual depiction were in fact persons at least 18 years old. 

(11) On motion of the government, in any prosecution under this paragraph, except for good cause shown, the name, address, social security number, or other nonphysical identifying information, other than the age or approximate age, of any minor who is depicted in any child pornography or visual depiction or copy thereof shall not be admissible and may be redacted from any otherwise admissible evidence, and the panel shall be instructed, upon request of the Government, that it can draw no inference from the absence of such evidence.

                    d.                     *Lesser included offenses*.                 

                    (1)                     *Possessing, receiving, or viewing child pornography*

Article 80—attempts. 

                    (2)                     *Possessing child pornography with intent to distribute*

Article 80—attempts. 

Article 134—possessing child pornography. 

                    (3)                     *Distributing child pornography*

Article 80—attempts. 

Article 134—possessing child pornography. 

Article 134—possessing child pornography with intent to distribute. 

                    (4)                     *Producing child pornography*

Article 80—attempts. 

Article 134—possessing child pornography. 

Article 134—possessing child pornography with intent to distribute. 

                    e.                     *Maximum punishment.*

                    (1)                     *Possessing, receiving, or viewing child pornography.*                     Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years.                 

                    (2)                     *Possessing child pornography with intent to distribute.*                     Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 15 years.                 

                    (3)                     *Distributing child pornography.*                     Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 20 years.                 

                    (4)                     *Producing child pornography.*                     Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 30 years.                 

                    f.                     *Sample specification.*

*Possessing, receiving, viewing, possessing with intent to distribute, distributing or producing child pornography.*

In that ____ (personal jurisdiction data), did, at ____, on or about ____ knowingly and wrongfully (possess)(receive)(view)(distribute) (produce) child pornography, to wit: A (photograph)(video)(film)(picture)(digital image)(computer image) of a minor, or what appears to be a minor, engaging in sexually explicit conduct (, with intent to distribute the said child pornography).” 

*Section 3.*                     These amendments shall take effect on [30 days after signature].                 

(a) Nothing in these amendments shall be construed to make punishable any act done or omitted prior to [30 days after signature] that was not punishable when done or omitted. 

(b) Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceedings, restraint, investigation, referral of charges, trial in which arraignment occurred, or other action begun prior to [30 days after signature], and any such nonjudicial punishment, restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same effect as if these amendments had not been prescribed. 

## The White House 

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

(a) Paragraph (4) of the Discussion immediately after R.C.M. 202(a) is amended to read as follows: 

                    “(4)                     *Limitations on jurisdiction over civilians.*                     Court-martial jurisdiction over civilians under the code is limited by judicial decisions. The exercise of jurisdiction under Article 2(a)(11) in peace time has been held unconstitutional by the Supreme Court of the United States. Before initiating court-martial proceedings against a civilian, relevant statutes, decisions, service regulations, and policy memoranda should be carefully examined.”                 

(b) The first paragraph of the Discussion following R.C.M. 1003(b)(3) is amended to read as follows: 

A fine is in the nature of a judgment and, when ordered executed, makes the accused immediately liable to the United States for the entire amount of money specified in the sentence. A fine normally should not be adjudged against a member of the armed forces unless the accused was unjustly enriched as a result of the offense of which convicted. In the case of a civilian subject to military law, a fine, rather than a forfeiture, is the proper monetary penalty to be adjudged, regardless of whether unjust enrichment is present.

### Changes to Appendix 21, Analysis of Rules for Courts-Martial 

(a) Add the following to the Analysis accompanying R.C.M. 1106(d): 

                    “                    *200_ Amendment:*                     Subsection (d) is restated in its entirety to clarify that subsections (d)(4), (d)(5) and (d)(6) were not intended to be eliminated by the 2008 Amendment.                 

*2008 Amendment:*                     Subsections (d)(1) and (d)(3) were modified to simplify the requirements of the staff judge advocate's or legal officer's recommendation.”                 

### Changes to Appendix 23, Analysis of Punitive Articles 

(a) Add the following to the Analysis accompanying Paragraph 44, Article 119—Manslaughter: 

                    “b.                     *Elements.*

*200_ Amendment:*                     The 2008 Amendment inadvertently omitted the change to this paragraph in the 2007 Amendment. Paragraph (2)(d) of the elements is corrected to restore the 2007 Amendment.                 

*2008 Amendment:*                     Notes were included to add an element if the person killed was a child under the age of 16 years.                 

                    e.                     *Maximum punishment.*

*2008 Amendment:*                     The maximum authorized confinement for voluntary manslaughter was increased from 15 years to 20 years when the person killed was a child under the age of 16 years. The maximum authorized confinement for involuntary manslaughter was increased from 10 years to 15 years when the person killed was a child under the age of 16 years.”                 

September 15, 2008. 

Morgan Frazier, 

Alternate OSD Federal Register, Liaison Officer,  Department of Defense.

[FR Doc. E8-21965 Filed 9-18-08; 8:45 am] 

BILLING CODE 5001-06-P