Presidential DocumentExecutive Order 1326202-9536

2002 Amendments to the Manual for Courts-Martial, United States

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Published

April 17, 2002

Signed

April 11, 2002

Issuing agencies

Executive Office of the President

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<title>Federal Register, Volume 67 Issue 74 (Wednesday, April 17, 2002)</title>
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[Federal Register Volume 67, Number 74 (Wednesday, April 17, 2002)]
[Presidential Documents]
[Pages 18773-18792]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 02-9536]

Presidential Documents

Federal Register / Vol. 67, No. 74 / Wednesday, April 17, 2002 /
Presidential Documents

___________________________________________________________________

Title 3--
The President

[[Page 18773]]

Executive Order 13262 of April 11, 2002

2002 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. Thirty days after the date of this Executive
Order, the provisions of Federal Rule of Evidence 415,
adopted September 13, 1994, will no longer be
applicable to the Military Rules of Evidence. This
evidentiary rule became applicable to courts-martial on
January 6, 1996, pursuant to Military Rule of Evidence
1102.

Sec. 2. The last subparagraph of paragraph 4, of Part
I, of the Manual for Courts-Martial, United States, is
amended as follows:

``The Manual shall be identified as ``Manual for
Courts-Martial, United States (2002 edition).'' Any
amendments to the Manual made by Executive Order shall
be identified as ``2002'' Amendments to the Manual for
Courts-Martial, United States'' ; ``2002'' being the
year the Executive Order was signed. If two or more
Executive Orders amending the Manual are signed during
the same year, then the second and any subsequent
Executive Orders will be identified by placing a small
case letter of the alphabet after the last digit of the
year beginning with ``a'' for the second Executive
Order and continuing in alphabetic order for subsequent
Executive Orders.''.

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

a. R.C.M. 201(f)(2)(B) is amended to read as
follows:

``(i) Upon a finding of guilty, special courts-martial may adjudge,
under limitations prescribed by this Manual, any punishment authorized
under R.C.M. 1003 except death, dishonorable discharge, dismissal,
confinement for more than 1 year, hard labor without confinement for more
than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any
forfeiture of pay for more than 1 year.

``(ii) A bad-conduct discharge, confinement for more than six months, or
forfeiture of pay for more than six months, may not be adjudged by a
special court-martial unless:

``(a) Counsel qualified under Article 27(b) is
detailed to represent the accused; and
``(b) A military judge is detailed to the trial,
except in a case in which a military judge could
not be detailed because of physical conditions or
military exigencies. Physical conditions or
military exigencies, as the terms are here used,
may exist under rare circumstances, such as on an
isolated ship on the high seas or in a unit in an
inaccessible area, provided compelling reasons
exist why the trial must be held at that time and
at that place. Mere inconvenience does not
constitute a physical condition or military
exigency and does not excuse a failure to detail a
military judge. If a military judge cannot be
detailed because of physical conditions or military
exigencies, a bad-conduct discharge, confinement
for more than six months, or forfeiture of pay for
more than

[[Page 18774]]

six months, may be adjudged provided the other
conditions have been met. In that event, however,
the convening authority shall, prior to trial, make
a written statement explaining why a military judge
could not be obtained. This statement shall be
appended to the record of trial and shall set forth
in detail the reasons why a military judge could
not be detailed, and why the trial had to be held
at that time and place.''

b. R.C.M. 701(b)(4) is amended to read as follows:

``(4) Reports of examination and tests. If the defense requests
disclosure under subsection (a)(2)(B) of this rule, upon compliance with
such request by the Government, the defense, on request of trial counsel,
shall (except as provided in R.C.M. 706, Mil. R. Evid. 302, and Mil. R.
Evid. 513) permit the trial counsel to inspect any results or reports of
physical or mental examinations and of scientific tests or experiments made
in connection with the particular case, or copies thereof, that are within
the possession, custody, or control of the defense that the defense intends
to introduce as evidence in the defense case-in-chief at trial or that were
prepared by a witness whom the defense intends to call at trial when the
results or reports relate to that witness' testimony.''

c. R.C.M. 806 is amended by adding at the end the
following new subsection (d):

``(d) Protective orders. The military judge may, upon request of any
party or sua sponte, issue an appropriate protective order, in writing, to
prevent parties and witnesses from making extrajudicial statements that
present a substantial likelihood of material prejudice to a fair trial by
impartial members. For purposes of this subsection, ``military judge'' does
not include the president of a special court-martial without a military
judge.''.

d. R.C.M. 1001(b)(3)(A) is amended to read as
follows:

``(A) In general. The trial counsel may introduce evidence of military
or civilian convictions of the accused. For purposes of this rule, there is
a ``conviction'' in a court-martial case when a sentence has been adjudged.
In a civilian case, a ``conviction'' includes any disposition following an
initial judicial determination or assumption of guilt, such as when guilt
has been established by guilty plea, trial, or plea of nolo contendere,
regardless of the subsequent disposition, sentencing procedure, or final
judgment. However, a ``civilian conviction'' does not include a diversion
from the judicial process without a finding or admission of guilt; expunged
convictions; juvenile adjudications; minor traffic violations; foreign
convictions; tribal court convictions; or convictions reversed, vacated,
invalidated or pardoned because of errors of law or because of subsequently
discovered evidence exonerating the accused.''.

e. R.C.M. 1003(b)(3) is amended to read as follows:

``(3) Fine. Any court-martial may adjudge a fine in lieu of or in
addition to forfeitures. Special and summary 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 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;''

f. R.C.M. 1003(b)(7) is amended to read as follows:

``(7) Confinement. The place of confinement shall not be designated by
the court-martial. When confinement for life is authorized, it may be with
or without eligibility for parole. A court-martial shall not adjudge a
sentence to solitary confinement or to confinement without hard labor;''.

g. R.C.M. 1004(e) is amended to read as follows:

``(e) Other penalties. Except for a violation of Article 106, when death
is an authorized punishment for an offense, all other punishments
authorized under R.C.M. 1003 are also authorized for that offense,
including

[[Page 18775]]

confinement for life, with or without eligibility for parole, and may be
adjudged in lieu of the death penalty, subject to limitations specifically
prescribed in this Manual. A sentence of death includes a dishonorable
discharge or dismissal as appropriate. Confinement is a necessary incident
of a sentence of death, but not a part of it.''

h. R.C.M. 1006(d)(4)(B) is amended to read as
follows:

``(B) Confinement for life, with or without eligibility for parole, or
more than 10 years. A sentence that includes confinement for life, with or
without eligibility for parole, or more than 10 years may be adjudged only
if at least three-fourths of the members present vote for that sentence.''

i. R.C.M. 1009(e)(3)(B)(ii) is amended to read as
follows:

``(ii) In the case of a sentence which includes confinement for life,
with or without eligibility for parole, or more than 10 years, more than
one-fourth of the members vote to reconsider; or''.

j. R.C.M. 1103(b)(2)(B)(i) is amended to read as
follows:

``(i) Any part of the sentence adjudged exceeds six months confinement,
forfeiture of pay greater than two-thirds pay per month, or any forfeiture
of pay for more than six months or other punishments that may be adjudged
by a special court-martial; or''.

k. R.C.M. 1103(c) is amended to read as follows:

``(c) Special courts-martial.

``(1) Involving a bad-conduct discharge,
confinement for more than six months, or forfeiture
of pay for more than six months. The requirements
of subsections (b)(1), (b)(2)(A), (b)(2)(B),
(b)(2)(D), and (b)(3) of this rule shall apply in a
special court-martial in which a bad-conduct
discharge, confinement for more than six months, or
forfeiture of pay for more than six months, has
been adjudged.
``(2) All other special courts-martial. If the
special court-martial resulted in findings of
guilty but a bad-conduct discharge, confinement for
more than six months, or forfeiture of pay for more
than six months, was not adjudged, the requirements
of subsections (b)(1), (b)(2)(D), and (b)(3)(A)-(F)
and (I)-(M) of this rule shall apply.''.

l. R.C.M. 1103(f)(1) is amended to read as follows:

``(1) Approve only so much of the sentence that could be adjudged by a
special court-martial, except that a bad-conduct discharge, confinement for
more than six months, or forfeiture of two-thirds pay per month for more
than six months, may not be approved; or''.

m. R.C.M. 1104(a)(2)(A) is amended to read as
follows:

``(A) Authentication by the military judge. In special courts-martial in
which a bad-conduct discharge, confinement for more than six months, or
forfeiture of pay for more than six months, has been adjudged and in
general courts-martial, except as provided in subsection (a)(2)(B) of this
rule, the military judge present at the end of the proceedings shall
authenticate the record of trial, or that portion over which the military
judge presided. If more than one military judge presided over the
proceedings, each military judge shall authenticate the record of the
proceedings over which that military judge presided, except as provided in
subsection (a)(2)(B) of this rule. The record of trial of special courts-
martial in which a bad-conduct discharge, confinement for more than six
months, or forfeiture of pay for more than six months, was not adjudged
shall be authenticated in accordance with regulations of the Secretary
concerned.''

n. R.C.M. 1104(e) is amended to read as follows:

``(e) Forwarding. After every court-martial, including a rehearing and
new and other trials, the authenticated record shall be forwarded to the
convening authority for initial review and action, provided that in case of
a special court-martial in which a bad-conduct discharge or confinement for
one year was adjudged or a general court-martial, the convening authority
shall refer the record to the staff judge advocate or legal officer for

[[Page 18776]]

recommendation under R.C.M. 1106 before the convening authority takes
action.''.

o. R.C.M. 1106(a) is amended to read as follows:

``(a) In general. Before the convening authority takes action under
R.C.M. 1107 on a record of trial by general court-martial or a record of
trial by special court-martial that includes a sentence to a bad-conduct
discharge or confinement for one year, that convening authority's staff
judge advocate or legal officer shall, except as provided in subsection (c)
of this rule, forward to the convening authority a recommendation under
this rule.''.

p. R.C.M. 1107(d)(4) is amended to read as follows:

``(4) Limitations on sentence based on record of trial. If the record of
trial does not meet the requirements of R.C.M. 1103(b)(2)(B) or (c)(1), the
convening authority may not approve a sentence in excess of that which may
be adjudged by a special court-martial, or one that includes a bad-conduct
discharge, confinement for more than six months, forfeiture of pay
exceeding two-thirds pay per month, or any forfeiture of pay for more than
six months.''.

q. R.C.M. 1107(d) is amended by adding at the end
the following new paragraph:

``(5) Limitations on sentence of a special court-martial where a fine
has been adjudged. A convening authority may not approve in its entirety a
sentence adjudged at a special court-martial when, if approved, the
cumulative impact of the fine and forfeitures, whether adjudged or by
operation of Article 58b, would exceed the jurisdictional maximum dollar
amount of forfeitures that may be adjudged at that court-martial.''.

r. R.C.M. 1109(e) and (e)(1) are amended to read as
follows:

``(e) Vacation of a suspended special court-martial sentence wherein a
bad-conduct discharge or confinement for one year was not adjudged.

``(1) In general. Before vacating the suspension
of a special court-martial punishment that does not
include a bad-conduct discharge or confinement for
one year, the special court-martial convening
authority for the command in which the probationer
is serving or assigned shall cause a hearing to be
held on the alleged violation(s) of the conditions
of suspension.''.

s. R.C.M. 1109(f) and (f)(1) are amended to read as
follows:

``(f) Vacation of a suspended special court-martial sentence that
includes a bad-conduct discharge or confinement for one year.

``(1) The procedure for the vacation of a
suspended approved bad-conduct discharge or of any
suspended portion of an approved sentence to
confinement for one year, shall follow that set
forth in subsection (d) of this rule.''.

t. R.C.M. 1110(a) is amended to read as follows:

``(a) In general. After any general court-martial, except one in which
the approved sentence includes death, and after any special court-martial
in which the approved sentence includes a bad-conduct discharge or
confinement for one year, the accused may waive or withdraw appellate
review.''.

u. R.C.M. 1111(b) is amended to read as follows:

``(1) Cases including an approved bad-conduct discharge or confinement
for one year. If the approved sentence of a special court-martial includes
a bad-conduct discharge or confinement for one year, the record shall be
disposed of as provided in subsection (a) of this rule.

``(2) Other cases. The record of trial by a special court-martial in
which the approved sentence does not include a bad-conduct discharge or
confinement for one year shall be forwarded directly to a judge advocate
for review under R.C.M. 1112. Four copies of the order promulgating the
result of trial shall be forwarded with the record of trial, unless
otherwise prescribed by regulations of the Secretary concerned.''.

[[Page 18777]]

v. R.C.M. 1112(a)(2) is amended to read as follows:

``(2) Each special court-martial in which the accused has waived or
withdrawn appellate review under R.C.M. 1110 or in which the approved
sentence does not include a bad-conduct discharge or confinement for one
year; and''.

w. R.C.M 1305(d)(2) is amended to read as follows:

``(2) Forwarding to the convening authority. The original and one copy
of the record of trial shall be forwarded to the convening authority after
compliance with subsection (d)(1) of this rule.''.

Sec. 4. Part III of the Manual for Courts-Martial,
United States, is amended in Mil. R. Evid. 615 by
striking the period at the end of the rule and adding
``, or (4) a person authorized by statute to be present
at courts-martial, or (5) any victim of an offense from
the trial of an accused for that offense because such
victim may testify or present any information in
relation to the sentence or that offense during the
presentencing proceedings.''.

Sec. 5. Part IV of the Manual for Courts-Martial,
United States, is amended as follows:

a. All ``Sample specification(s)'' subparagraphs in
the Punitive Articles (Part IV, M.C.M.) are amended by
striking ``-------------- 19----'' and inserting ``----
---------- 20----.''.
b. Paragraph 27e(1)(a) is amended to read as
follows:

``(a) of a value of $500.00 or less. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 6 months.''.

c. Paragraph 27e(1)(b) is amended to read as
follows:

``(b) of a value of more than $500.00 or any firearm or explosive.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.''.

d. Paragraph 27f(3) is amended to read as follows:

``(3) Dealing in captured or abandoned property. In that ----------
(personal jurisdiction data), did, (at/on board - location), on or about --
-------- 20 ----------, (buy) (sell) (trade) (deal in) (dispose of) (------
----------) certain (captured) (abandoned) property, to wit: ----------, (a
firearm) (an explosive), of a value of (about) $----------, thereby
(receiving) (expecting) a (profit) (benefit) (advantage) to (himself/
herself) (----------, his/her accomplice) (----------, his/her brother) (--
--------------).''.

e. Strike paragraph 31c(6).
f. Paragraph 43e(1), is amended to read as follows:

``(1) Article 118(1) or (4)--death. Mandatory minimum--imprisonment for
life with eligibility for parole.''.

g. Paragraph 45e(3) is amended to read as follows:

``(3) Carnal knowledge with a child under the age of 12 years at the
time of the offense. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for life without eligibility for parole.''.

h. Paragraph 46c(1)(h) is amended by adding at the
end the following new clause:

``(vi) Credit, Debit, and Electronic Transactions. Wrongfully engaging
in a credit, debit, or electronic transaction to obtain goods or money is
an obtaining- type larceny by false pretense. Such use to obtain goods is
usually a larceny of those goods from the merchant offering them. Such use
to obtain money or a negotiable instrument (e.g., withdrawing cash from an
automated teller or a cash advance from a bank) is usually a larceny of
money from the entity presenting the money or a negotiable instrument. For
the purpose of this section, the term 'credit, debit, or electronic
transaction' includes the use of an instrument or device, whether known as
a credit card, debit card, automated teller machine (ATM) card or by any
other name, including access devices such as code, account

[[Page 18778]]

number, electronic serial number or personal identification number, issued
for the use in obtaining money, goods, or anything else of value.''.

i. Paragraph 51e(1) is amended to read as follows:

``(1) By force and without consent. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for life without eligibility for
parole.''.

j. Paragraph 51e(3) is amended to read as follows:

``(3) With a child under the age of 12 years at the time of the offense.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for life without eligibility for parole.''

k. Paragraph 62c is amended to read as follows:

``c. Explanation.

``(1) Nature of offense. Adultery is clearly unacceptable conduct, and
it reflects adversely on the service record of the military member.

``(2) Conduct prejudicial to good order and discipline or of a nature to
bring discredit upon the armed forces. To constitute an offense under the
UCMJ, the adulterous conduct must either be directly prejudicial to good
order and discipline or service discrediting. Adulterous conduct that is
directly prejudicial includes conduct that has an obvious, and measurably
divisive effect on unit or organization discipline, morale, or cohesion, or
is clearly detrimental to the authority or stature of or respect toward a
servicemember. Adultery may also be service discrediting, even though the
conduct is only indirectly or remotely prejudicial to good order and
discipline. Discredit means to injure the reputation of the armed forces
and includes adulterous conduct that has a tendency, because of its open or
notorious nature, to bring the service into disrepute, make it subject to
public ridicule, or lower it in public esteem. While adulterous conduct
that is private and discreet in nature may not be service discrediting by
this standard, under the circumstances, it may be determined to be conduct
prejudicial to good order and discipline. Commanders should consider all
relevant circumstances, including but not limited to the following factors,
when determining whether adulterous acts are prejudicial to good order and
discipline or are of a nature to bring discredit upon the armed forces:

``(a) The accused's marital status, military
rank, grade, or position;
``(b) The co-actor's marital status, military
rank, grade, and position, or relationship to the
armed forces;
``(c) The military status of the accused's
spouse or the spouse of co-actor, or their
relationship to the armed forces;
``(d) The impact, if any, of the adulterous
relationship on the ability of the accused, the co-
actor, or the spouse of either to perform their
duties in support of the armed forces;
``(e) The misuse, if any, of government time and
resources to facilitate the commission of the
conduct;
``(f) Whether the conduct persisted despite
counseling or orders to desist; the flagrancy of
the conduct, such as whether any notoriety ensued;
and whether the adulterous act was accompanied by
other violations of the UCMJ;
``(g) The negative impact of the conduct on the
units or organizations of the accused, the co-actor
or the spouse of either of them, such as a
detrimental effect on unit or organization morale,
teamwork, and efficiency;
``(h) Whether the accused or co-actor was
legally separated; and
``(i) Whether the adulterous misconduct involves
an ongoing or recent relationship or is remote in
time.

``(3) Marriage. A marriage exists until it is dissolved in accordance
with the laws of a competent state or foreign jurisdiction.

[[Page 18779]]

``(4) Mistake of fact. A defense of mistake of fact exists if the
accused had an honest and reasonable belief either that the accused and the
co-actor were both unmarried, or that they were lawfully married to each
other. If this defense is raised by the evidence, then the burden of proof
is upon the United States to establish that the accused's belief was
unreasonable or not honest.''.

l. Paragraph 92e is amended to read as follows:

``e. Maximum punishment. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for life without eligibility for parole.''.

m. Paragraphs 32e, 33e, 46c(1)(g)(iii), 46e, 49e,
52e, 58e, 78e and 106e are amended by striking
``$100.00'' each place it appears and inserting
``$500.00''.

Sec. 6. These amendments shall take effect on May 15,
2002.

a. The amendments made to Rules for Courts-Martial
806(d) and 1001(b)(3)(A) shall only apply in cases in
which arraignment has been completed on or after May
15, 2002.
b. The amendments made to Rules for Courts- Martial
1003(b)(7), 1004(e), 1006(d)(4)(B), and
1009(e)(3)(B)(ii) shall only apply to offenses
committed after November 18, 1997. In cases not
involving these amendments, the maximum punishment for
an offense committed prior to May 15, 2002, shall not
exceed the applicable maximum in effect at the time of
the commission of such offense. Provided further, that
for offenses committed prior to May 15, 2002, for which
a sentence is adjudged on or after May 15, 2002, if the
maximum punishment authorized in this Manual is less
than that previously authorized, the lesser maximum
authorized punishment shall apply.
c. The amendment made to Military Rules of Evidence
615 shall apply only in cases in which arraignment has
been completed on or after May 15, 2002.
d. Nothing in these amendments shall be construed
to make punishable any act done or omitted prior to May
15, 2002, that was not punishable when done or omitted.
e. 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 15, 2002, 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.

(Presidential Sig.)B

THE WHITE HOUSE,

April 11, 2002.

Billing code 3195-01-P

[[Page 18780]]

CHANGES TO THE DISCUSSION ACCOMPANYING THE MANUAL FOR
COURTS-MARTIAL, UNITED STATES

a. The Discussion following the Preamble is amended by
adding the following at the end of the Discussion:

``The amendment to paragraph 4 of the Preamble is
intended to address the possibility of more frequent
amendments to the Manual and the arrival of the 21st
century. In the event that multiple editions of the
Manual are published in the same year, the numbering
and lettering of the edition should match that of the
most recent Executive Order included in the
publication.''

b. The seventh paragraph of the Discussion following
R.C.M. 601(e)(1) is amended to read as follows:

``The convening authority should acknowledge by an
instruction that a bad-conduct discharge, confinement
for more than six months, or forfeiture of pay for more
than six months, may not be adjudged when the
prerequisites under Article 19 will not be met. See
R.C.M. 201(f)(2)(B)(ii). For example, this instruction
should be given when a court reporter is not
detailed.''.

c. The Discussion following R.C.M. 701(a)(2)(B) is
amended to read as follows:

``For specific rules concerning certain mental
examinations of the accused or third party patients,
see R.C.M. 701(f), R.C.M. 706, Mil. R. Evid. 302, and
Mil. R. Evid. 513.''

d. The ninth paragraph of the Discussion following
R.C.M. 806(b) is amended to read as follows:

``There are other methods of protecting the
proceedings from harmful effects of publicity,
including a thorough voir dire (see R.C.M. 912), and,
if necessary, a continuance to allow the harmful
effects of publicity to dissipate. See R.C.M.
906(b)(1). Other methods that may occasionally be
appropriate and which are usually preferable to closing
a session include: directing members not to read,
listen to, or watch any accounts concerning the case;
issuing a protective order under R.C.M. 806(d); and
selecting members from recent arrivals in the command,
or from outside the immediate area. See R.C.M.
503(a)(3). In more extreme cases, the place of trial
may be changed (see R.C.M. 906(b)(11), or members may
be sequestered.

e. The following Discussion is added after R.C.M.
806(d):

``A protective order may proscribe extrajudicial
statements by counsel, parties, and witnesses that
might divulge prejudicial matter not of public record
in the case. Other appropriate matters may also be
addressed by such a protective order. Before issuing a
protective order, the military judge must consider
whether other available remedies would effectively
mitigate the adverse effects that any publicity might
create, and consider such an order's likely
effectiveness in ensuring an impartial court-martial
panel. A military judge should not issue a protective
order without first providing notice to the parties and
an opportunity to be heard. The military judge must
state on the record the reasons for issuing the
protective order. If the reasons for issuing the order
change, the military judge may reconsider the continued
necessity for a protective order.''

f. The first paragraph of the Discussion following
R.C.M. 808 is amended to read as follows:

``Except in a special court-martial not authorized
to adjudge a bad-conduct discharge, confinement for
more than six months, or forfeiture of pay for more
than six months, the trial counsel should ensure that a
qualified court reporter is detailed to the court-
martial. Trial counsel should also ensure that all
exhibits and other documents relating to the case are
properly maintained for later inclusion in the record.
See also R.C.M. 1103(j) as to the use of videotapes,
audiotapes, and similar recordings for the record of
trial. Because of the potential requirement for a
verbatim transcript, all proceedings, including sidebar
conferences, arguments, and rulings and instructions by
the military judge, should be recorded.''

[[Page 18781]]

g. The Discussion following R.C.M. 1001(b)(3)(A) is
amended by adding the following at the end of the
Discussion:

``Whether a civilian conviction is admissible is
left to the discretion of the military judge. As stated
in the rule, a civilian ``conviction'' includes any
disposition following an initial judicial determination
or assumption of guilt regardless of the sentencing
procedure and the final judgment following probation or
other sentence. Therefore, convictions may be
admissible regardless of whether a court ultimately
suspended judgment upon discharge of the accused
following probation, permitted withdrawal of the guilty
plea, or applies some other form of alternative
sentencing. Additionally, the term ``conviction'' need
not be taken to mean a final judgment of conviction and
sentence.''

h. The sixth paragraph of the Discussion following
R.C.M. 1003(b)(2) is amended to read as follows:

``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 (not allowances) during that
period of confinement. If only confinement is adjudged,
and that confinement exceeds six months, then the
operation of Article 58b results in a forfeiture of
two-thirds of pay only (not allowances) during the
period of confinement. If only a bad conduct discharge
is adjudged, Article 58b has no effect on pay.''.

i. The Discussion following R.C.M. 1003(b)(3) is
amended by adding at the end the following paragraph:

``Where the sentence adjudged at a special court-
martial includes a fine, see R.C.M. 1107(d)(5) for
limitations on convening authority action on the
sentence.''

j. The Discussion following R.C.M. 1003(b)(8) is
amended by adding the following at the end of the
Discussion:

``See Article 56a.''

k. The Discussion following R.C.M. 1003(c)(4) is
amended by striking ``R.C.M. 1107(d)(3)'' and inserting
``R.C.M. 1107(d)(4).''

l. The Discussion following R.C.M. 1006(c) is amended
to read as follows:

``A proposal should state completely each kind and,
where appropriate, amount of authorized punishment
proposed by that member. For example, a proposal of
confinement for life would state whether it is with or
without eligibility for parole. See R.C.M. 1003(b).''

m. The second paragraph of the Discussion following
R.C.M. 1107(d)(1) is amended to read as follows:

``When mitigating forfeitures, the duration and
amounts of forfeiture may be changed as long as the
total amount forfeited is not increased and neither the
amount nor duration of the forfeitures exceeds the
jurisdiction of the court-martial. When mitigating
confinement or hard labor without confinement, the
convening authority should use the equivalencies at
R.C.M. 1003(b)(6) and (7), as appropriate. One form of
punishment may be changed to a less severe punishment
of a different nature, as long as the changed
punishment is one that the court-martial could have
adjudged. For example, a bad-conduct discharge adjudged
by a special court-martial could be changed to
confinement for up to one year (but not vice versa). A
pretrial agreement may also affect what punishments may
be changed by the convening authority.''.

n. The Discussion following R.C.M. 1109(f) is amended
to read as follows:

``An officer exercising special court-martial
jurisdiction may vacate any suspended punishments other
than an approved suspended bad-conduct discharge or any
suspended portion of an approved sentence to
confinement for one year, regardless of whether they
are contained in the same sentence as the bad-conduct
discharge or confinement for one year. 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 or confinement for
one year under Article 72, UCMJ, and R.C.M. 1109 (DD
Form 455).''.

[[Page 18782]]

o. The Discussion following R.C.M. 1110(a) is amended
to read as follows:

``Appellate review is not available for special
courts-martial in which a bad-conduct discharge or
confinement for one year was not adjudged or approved
or for summary courts-martial. Cases not subject to
appellate review, or in which appellate review is
waived or withdrawn, are reviewed by a judge advocate
under R.C.M. 1112. Such cases may also be submitted to
the Judge Advocate General for review. See R.C.M.
1201(b)(3). Appellate review is mandatory when the
approved sentence includes death.''.

CHANGES TO APPENDIX 8, GUIDE FOR GENERAL AND
SPECIAL COURTS-MARTIAL, MANUAL FOR COURTS-MARTIAL,
UNITED STATES

Appendix 8, is amended--

a. by amending the left margin entry to Note 100 to
read as follows:

``Advice in GCMs and SPCMs in which BCD or
confinement for one year is adjudged'';

b. by amending Note 100 to read as follows:

``[Note 100. In cases subject to review by a Court
of Criminal Appeals, the following advice should be
given. In other cases proceed to Note 101 or 102 as
appropriate.]'';

c. by amending the left margin entry to Note 102 to
read as follows:

``SPCM not involving a BCD or confinement for one
year''; and

d. by amending Note 102 to read as follows:

[Note 102. In special courts-martial not involving
BCD or confinement for one year, the following advice
should be given.]''.

CHANGES TO THE MAXIMUM PUNISHMENT CHART OF THE
MANUAL FOR COURTS-MARTIAL, UNITED STATES

Appendix 12, the Maximum Punishment Chart, is amended--

a. by striking the item relating to Article 103 and
inserting:

``103 Captured, abandoned property; failure to
secure, etc. Of value of $500.00 or less . . . . . BCD
6 mos. Total
Of value of more than $500.00 . DD, BCD 5 yrs.
Total
Any firearm or explosive . . . . . . DD, BCD 5 yrs.
Total
Looting, pillaging . . . . . . . . . . . . DD, BCD
Life4 Total''; and

b. in the items relating to Articles 108, 109, 121,
123a, 126, 132, and 134 (False Pretenses, obtaining
services under; and Stolen Property, knowingly
receiving, buying, concealing), by striking ``100.00''
each place it appears and inserting ``$500.00''.

CHANGES TO THE GUIDE FOR PREPARATION OF RECORD OF
TRIAL WHEN A VERBATIM RECORD IS NOT REQUIRED, MANUAL
FOR COURTS-MARTIAL, UNITED STATES

Appendix 13 is amended--

a. in the third subparagraph of paragraph a, by
replacing ``1-inch margin'' with ``one-inch margin''
and replacing ``left hand'' with ``left-hand''.

CHANGES TO THE GUIDE FOR PREPARATION OF RECORD OF
TRIAL WHEN A VERBATIM RECORD IS REQUIRED, MANUAL FOR
COURTS-MARTIAL, UNITED STATES

Appendix 14, is amended--

a. at page A14-6, by amending the second bracketed
format under the third note to read as follows:

``[The (court-martial) (session) was (adjourned)
(recessed) at -------- hours, ----------------.]''.

CHANGES TO APPENDIX 17, FORMS FOR COURT-MARTIAL
ORDERS, MANUAL FOR COURTS-MARTIAL, UNITED STATES

[[Page 18783]]

The first note to paragraph d of Appendix 17 is amended
to read as follows:

``[Note. Orders promulgating the vacation of the
suspension of a dismissal will be published by
departmental orders of the Secretary concerned.
Vacations of any other suspension of a general court-
martial sentence, or of a special court-martial
sentence that as approved and affirmed includes a bad-
conduct discharge or confinement for one year, will be
promulgated by the officer exercising general court-
martial jurisdiction over the probationer (Article
72(b)). The vacation of suspension of any other
sentence may be promulgated by an appropriate convening
authority under Article 72(c). See R.C.M. 1109.]''

CHANGES TO APPENDIX 18, REPORT OF PROCEEDINGS TO
VACATE SUSPENSION OF A GENERAL COURT-MARTIAL OR OF A
SPECIAL COURT-MARTIAL SENTENCE INCLUDING A BAD-CONDUCT
DISCHARGE UNDER ARTICLE 72, UCMJ, AND R.C.M. 1109 (DD
FORM 455), MANUAL FOR COURTS-MARTIAL, UNITED STATES

The title to Appendix 18 is amended to read as follows:

``Report of Proceedings to Vacate Suspension of a
General Court-Martial or of a Special Court-Martial
Sentence Including a Bad-Conduct Discharge or
Confinement for One Year Under Article 72, UCMJ, and
R.C.M. 1109 (DD Form 455).''.

CHANGES TO THE ANALYSIS ACCOMPANYING THE MANUAL FOR
COURTS-MARTIAL, UNITED STATES.

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

a. The Analysis to R.C.M. 201(f) is amended by
inserting after the second paragraph the following new
paragraph:

``2002 Amendment: Subsections (f)(2)(B)(i) and
(f)(2)(B)(ii) were amended to remove previous
limitations and thereby implement the amendment to 10
U.S.C. Sec. 819 (Article 19, UCMJ) contained in
section 577 of the National Defense Authorization Act
for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512
(1999). Subject to limitations prescribed by the
President, the amendment increased the jurisdictional
maximum punishment at special courts-martial to
confinement for one year and forfeitures not exceeding
two-thirds pay per month for one year, vice the
previous six-month jurisdictional limitation.''.

b. The Analysis to R.C.M. 701(b) is amended by
inserting after the discussion of the 1991 Amendment to
subsection (b)(2) the following new paragraph:

``2002 Amendment: Subsection (b)(4) was amended to
take into consideration the protections afforded by the
new psychotherapist-patient privilege under Mil. R.
Evid. 513.''

c. The Analysis to R.C.M. 707(a) is amended by
inserting after the second paragraph the following new
paragraph:

``2002 Amendment: Burton and its progeny were re-
examined in United States v. Kossman, 38 M.J. 258
(C.M.A. 1993), where the Court of Military Appeals
specifically overruled Burton and reinstated the
earlier rule from United States v. Tibbs, 15 C.M.A.
350, 353, 35 C.M.R. 322, 325 (1965). See Kossman, 38
M.J. at 262. In Kossman, the Court reinstated the
``reasonable diligence'' standard in determining
whether the prosecution's progress toward trial for a
confined accused was sufficient to satisfy the speedy
trial requirement of Article 10, UCMJ.''

d. The Analysis accompanying R.C.M. 806 is amended by
adding at the end the following new paragraphs:

``2002 Amendment: Section (d) was added to codify
the military judge's power to issue orders limiting
trial participants' extrajudicial statements in
appropriate cases. See United States v. Garwood, 16
M.J. 863, 868 (N-M.C.M.R. 1983) (finding military judge
was justified in issuing restrictive order prohibiting
extrajudicial statements by trial participants), aff'd
on other grounds, 20 M.J. 148 (C.M.A. 1985), cert.
denied, 474 U.S. 1005 (1985);

[[Page 18784]]

United States v. Clark, 31 M.J. 721, 724 (A.F.C.M.R.
1990) (suggesting, but not deciding, that the military
judge properly limited trial participants'
extrajudicial statements).
``The public has a legitimate interest in the
conduct of military justice proceedings. Informing the
public about the operations of the criminal justice
system is one of the ``core purposes'' of the First
Amendment. In the appropriate case where the military
judge is considering issuing a protective order, absent
exigent circumstances, the military judge must conduct
a hearing prior to issuing such an order. Prior to such
a hearing the parties will have been provided notice.
At the hearing, all parties will be provided an
opportunity to be heard. The opportunity to be heard
may be extended to representatives of the media in the
appropriate case.
``Section (d) is based on the first Recommendation
Relating to the Conduct of Judicial Proceedings in
Criminal Cases, included in the Revised Report of the
Judicial Conference Committee on the Operation of the
Jury System on the ``Free Press--Fair Trial'' Issue, 87
F.R.D. 519, 529 (1980), which was approved by the
Judicial Conference of the United States on September
25, 1980. The requirement that the protective order be
issued in writing is based on Rule for Courts-Martial
405(g)(6). Section (d) adopts a ``substantial
likelihood of material prejudice'' standard in place of
the Judicial Conference recommendation of a ``likely to
interfere'' standard. The Judicial Conference's
recommendation was issued before the Supreme Court's
decision in Gentile v. State Bar of Nev., 501 U.S. 1030
(1991). Gentile, which dealt with a Rule of
Professional Conduct governing extrajudicial
statements, indicates that a lawyer may be disciplined
for making statements that present a substantial
likelihood of material prejudice to an accused's right
to a fair trial. While the use of protective orders is
distinguishable from limitations imposed by a bar's
ethics rule, the Gentile decision expressly recognized
that the ``speech of lawyers representing clients in
pending cases may be regulated under a less demanding
standard than that established for regulation of the
press in Nebraska Press Ass'n v. Stuart, 427 U.S. 539
(1976), and the cases which preceded it.'' 501 U.S. at
1074. The Court concluded that ``the `substantial
likelihood of material prejudice' standard constitutes
a constitutionally permissible balance between the
First Amendment rights of attorneys in pending cases
and the State's interest in fair trials.'' Id. at 1075.
Gentile also supports the constitutionality of
restricting communications of non-lawyer participants
in a court case. Id. at 1072-73 (citing Seattle Times
Co. v. Rhinehart, 467 U.S. 20, 32-33 (1984)).
Accordingly, a protective order issued under the
``substantial likelihood of material prejudice''
standard is constitutionally permissible.
``The first sentence of the discussion is based on
the committee comment to the Recommendations Relating
to the Conduct of Judicial Proceedings in Criminal
Cases. See 87 F.R.D. at 530. For a definition of
``party,'' see R.C.M. 103(16). The second sentence of
the discussion is based on the first of the Judicial
Conference's recommendations concerning special orders.
See 87 F.R.D. at 529. The third sentence of the
discussion is based on the second of the Judicial
Conference's recommendations, id. at 532, and on United
States v. Salameh, 992 F.2d 445, 447 (2d Cir. 1993)
(per curiam), and In re Application of Dow Jones & Co.,
842 F.2d 603, 611 & n.1 (2d Cir.), cert. denied, 488
U.S. 946 (1988). The fourth sentence is based on
Salameh, 992 F.2d at 447. The fifth sentence is based
on Rule for Courts-Martial 905(d).''.

e. The Analysis accompanying R.C.M. 1001(b)(3)(A) is
amended by inserting the following at the end thereof:

``2002 Amendment: As previously written, R.C.M.
1001(b)(3)(A) offered little guidance about what it
meant by ``civilian convictions.'' See, e.g., United
States v. White, 47 M.J. 139, 140 (C.A.A.F. 1997);
United States v. Barnes, 33 M.J. 468, 472-73 (C.M.A.
1992); United States v. Slovacek, 24 M.J. 140, 141
(CMA), cert. denied, 484 U.S. 855 (1987). The present
rule addresses this void and intends to give the
sentencing authority as

[[Page 18785]]

much information as the military judge determines is
relevant in order to craft an appropriate sentence for
the accused.
``Unlike most civilian courts, this rule does not
allow admission of more extensive criminal history
information, such as arrests. Use of such additional
information is not appropriate in the military setting
where court-martial members, not a military judge,
often decide the sentence. Such information risks
unnecessarily confusing the members.
``The present rule clarifies the term
``conviction'' in light of the complex and varying ways
civilian jurisdictions treat the subject. The military
judge may admit relevant evidence of civilian
convictions without necessarily being bound by the
action, procedure, or nomenclature of civilian
jurisdictions. Examples of judicial determinations
admissible as convictions under this rule include
accepted pleas of nolo contendere, pleas accepted under
North Carolina v. Alford, 400 U.S. 25 (1970), or
deferred sentences. If relevant, evidence of forfeiture
of bail that results in a judicial determination of
guilt is also admissible, as recognized in United
States v. Eady, 35 M.J. 15, 16 (C.M.A. 1992). While no
time limit is placed upon the admissibility of prior
convictions, the military judge should conduct a
balancing test to determine whether convictions older
than ten years should be admitted or excluded on the
basis of relevance and fundamental fairness.
``The two central factors in this rule are (1)
judicial determination of guilt and (2) assumption of
guilt. Assumption of guilt is an all-inclusive term
meaning any act by the accused in a judicial proceeding
accepting, acknowledging, or admitting guilt. As long
as either factor is present, the ``conviction'' is
admissible, if relevant. Consequently, this rule
departs from the holding in United States v. Hughes, 26
M.J. 119, 120 (C.M.A. 1988), where the accused pleaded
guilty in a Texas court, but the judge did not enter a
finding of guilty under state law allowing ``deferred
adjudications.'' Under the present rule, the
``conviction'' would be admissible because the accused
pleaded guilty in a judicial proceeding,
notwithstanding the fact that the state judge did not
enter a finding of guilty.
``In contrast, ``deferred prosecutions,'' where
there is neither an admission of guilt in a judicial
proceeding nor a finding of guilty, would be excluded.
The rule also excludes expunged convictions, juvenile
adjudications, minor traffic violations, foreign
convictions, and tribal court convictions as matters
inappropriate for or unnecessarily confusing to courts-
martial members. What constitutes a ``minor traffic
violation'' within the meaning of this rule is to be
decided with reference only to federal law, and not to
the laws of individual states. See U.S. Sentencing
Guidelines Manual Sec. 4A1.2(c)(2); ``What Constitutes
`Minor Traffic Infraction' Excludable From Calculation
of Defendant's Criminal History under United States
Sentencing Guideline Sec. 4A1.2(c)(2),'' 113 A.L.R.
Fed. 561 (1993).
``Additionally, because of the lack of clarity in
the previous rule, courts sometimes turned to Mil. R.
Evid. 609 for guidance. See, e.g., Slovacek, 24 M.J. at
141. We note that because the policies behind Mil. R.
Evid. 609 and the present rule differ greatly, a
conviction that may not be appropriate for impeachment
purposes under Mil. R. Evid. 609, may nevertheless be
admissible under the present rule.
``The Federal Sentencing Guidelines were consulted
when drafting the present rule. Although informed by
those guidelines, the present rule departs from them in
many respects because of the wide differences between
the courts-martial process and practice in federal
district court.''.

f. The Analysis to R.C.M. 1003(b)(3) is amended by
adding at the end the following new paragraph:

``2002 Amendment: The amendment clearly defines the
authority of special and summary courts-martial to
adjudge both fines and forfeitures. See generally
United States v. Tualla, 52 M.J. 228 (2000).''

g. The Analysis accompanying R.C.M. 1003(b)(7) is
amended by adding at the end the following new
paragraph:

[[Page 18786]]

``2002 Amendment: This change resulted from the
enactment of Article 56a, UCMJ, in section 581 of the
National Defense Authorization Act for Fiscal Year
1998, Pub. L. No. 105-85, 111 Stat. 1629, 1759
(1997).''.

h. The Analysis accompanying R.C.M. 1004(e) is amended
by adding at the end the following new paragraph:

i. The Analysis accompanying R.C.M. 1006(c) is amended
by adding at the end the following new paragraph:

``2002 Amendment: This change to the discussion
resulted from the enactment of Article 56a, UCMJ, in
section 581 of the National Defense Authorization Act
for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat.
1629, 1759 (1997).''.

j. The Analysis accompanying R.C.M. 1006(d) is amended
by inserting after the analysis of subsection 3(A)
following paragraph:

``2002 Amendment: Subsection (d)(4)(B) was amended
as a result of the enactment of Article 56a, UCMJ, in
section 581 of the National Defense Authorization Act
for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat.
1629, 1759 (1997).''.

k. The Analysis accompanying R.C.M. 1009 is amended by
adding at the end the following new paragraph:

``2002 Amendment: Subsection (e)(3)(B)(ii) was
amended as a result of the enactment of Article 56a,
UCMJ, in section 581 of the National Defense
Authorization Act for Fiscal Year 1998, Pub. L. No.
105-85, 111 Stat. 1629, 1759 (1997).''.

l. The Analysis to R.C.M. 1103 (b)(2) is amended by
adding at the end the following new paragraph:

``2002 Amendment: Subsection (b)(2)(B) was amended
to implement the amendment to 10 U.S.C. Sec. 819
(Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year
2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing
the jurisdictional maximum punishment at special
courts-martial. R.C.M. 1103(b)(2)(B) was amended to
prevent an inconsistent requirement for a verbatim
transcript between a general court-martial and a
special court-martial when the adjudged sentence of a
general court-martial does not include a punitive
discharge or confinement greater than six months, but
does include forfeiture of two-thirds pay per month for
more than six months but not more than 12 months.''.

m. The Analysis to R.C.M. 1103(c) is amended by adding
at the end the following new paragraph:

``2002 Amendment: Subsection (c) was amended to
implement the amendment to 10 U.S.C. Sec. 819 (Article
19, UCMJ) contained in section 577 of the National
Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the
jurisdictional maximum punishment at special courts-
martial. R.C.M. 1103(c) was amended to conform the
requirements for a verbatim transcript with the
requirements of Article 19 for a 'complete record' in
cases where the adjudged sentence includes a bad-
conduct discharge, confinement for more than six
months, or forfeiture of pay for more than six
months.''.

n. The Analysis to R.C.M. 1103(f) is amended by adding
at the end the following new paragraph:

``2002 Amendment: Subsection (f)(1) was amended to
implement the amendment to 10 U.S.C. Sec. 819 (Article
19, UCMJ) contained in section 577 of the National
Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106Sec. 65, 113 Stat. 512 (1999) increasing the
jurisdictional maximum punishment at special courts-
martial. R.C.M. 1103(f)(1) was amended to include the
additional limitations on sentence contained in Article
19, UCMJ.''.

[[Page 18787]]

o. The Analysis to R.C.M. 1104(a) is amended by adding
at the end the following new paragraph:

``2002 Amendment: Subsection (a)(2)(A) was amended
to implement the amendment to 10 U.S.C. Sec. 819
(Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year
2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing
the jurisdictional maximum punishment at special
courts-martial. R.C.M. 1104(a)(2)(A) was amended to
ensure that the military judge authenticates all
verbatim records of trial at special courts-martial.''.

p. The Analysis to R.C.M. 1104(e) is amended by adding
at the end the following new paragraph:

q. The Analysis to R.C.M. 1106(a) is amended by adding
at the end the following new paragraph:

``2002 Amendment: Subsection (a) was amended to
implement the amendment to 10 U.S.C. Sec. 819 (Article
19, UCMJ) contained in section 577 of the National
Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the
jurisdictional maximum punishment at special courts-
martial. This amendment requires all special courts-
martial cases subject to appellate review to comply
with this rule.''.

r. The Analysis to R.C.M. 1107(d) is amended by
inserting after the first paragraph the following new
paragraph:

``2002 Amendment: The Discussion accompanying
subsection (d)(1) was amended to implement the
amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ)
contained in section 577 of the National Defense
Authorization Act for Fiscal Year 2000, P. L. No. 106-
65, 113 Stat. 512 (1999) increasing the jurisdictional
maximum punishment at special courts-martial. R.C.M.
1107(d)(4) was amended to include the additional
limitations on sentence contained in Article 19,
UCMJ.''.

s. The Analysis accompanying R.C.M. 1107(d) is amended
by adding at the end the following new paragraphs:

``2002 Amendment: Subsection (d)(4) was amended as
a result of the enactment of Article 56a, UCMJ, in
section 581 of the National Defense Authorization Act
for Fiscal Year 1998, Pub. L. No. 105-85, 111 Stat.
1629, 1759 (1997).
``Subsection (d)(5) is new. The amendment addresses
the impact of Article 58b, UCMJ. In special courts-
martial, where the cumulative impact of a fine and
forfeitures, whether adjudged or by operation of
Article 58b, would otherwise exceed the total dollar
amount of forfeitures that could be adjudged at the
special court-martial, the fine and/or adjudged
forfeitures should be disapproved or decreased
accordingly. See generally United States v. Tualla, 52
M.J. 228, 231-32 (2000).''

t. The Analysis to R.C.M. 1109 is amended by adding at
the end the following new paragraphs:

``2002 Amendment: Subsection (e) was amended to
implement the amendment to 10 U.S.C. Sec. 819 (Article
19, UCMJ) contained in section 577 of the National
Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the
jurisdictional maximum punishment at special courts-
martial.
``(f) Vacation of a suspended special court-martial
sentence that includes a bad-conduct discharge or
confinement for one year. Subsection (f) was amended to
implement the amendment to 10 U.S.C. Sec. thnsp;819
(Article 19, UCMJ) contained in section 577 of the
National Defense Authorization Act for Fiscal Year
2000, P. L. No. 106-65, 113 Stat. 512 (1999) increasing

[[Page 18788]]

the jurisdictional maximum punishment at special
courts-martial. This amendment reflects the decision to
treat an approved sentence of confinement for one year,
regardless of whether any period of confinement is
suspended, as a serious offense, in the same manner as
a suspended approved bad-conduct discharge at special
courts-martial under Article 72, UCMJ, and R.C.M.
1109.''.

u. The Analysis to R.C.M. 1110(a) is amended by adding
at the end the following new paragraph:

v. The Analysis to R.C.M. 1111 is amended by adding at
the end the following new paragraph:

``2002 Amendment: R.C.M. 1111(b) was amended to
implement the amendment to 10 U.S.C. Sec. 819 (Article
19, UCMJ) contained in section 577 of the National
Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the
jurisdictional maximum punishment at special courts-
martial. The amendment ensures all special courts-
martial not requiring appellate review are reviewed by
a judge advocate under R.C.M. 1112.''.

w. The Analysis to R.C.M. 1112 is amended by adding at
the end the following new paragraph:

``2002 Amendment: R.C.M. 1112(a)(2) was amended to
implement the amendment to 10 U.S.C. Sec. 819 (Article
19, UCMJ) contained in section 577 of the National
Defense Authorization Act for Fiscal Year 2000, P. L.
No. 106-65, 113 Stat. 512 (1999) increasing the
jurisdictional maximum punishment at special courts-
martial. The amendment ensures all special courts-
martial not requiring appellate review are reviewed by
a judge advocate under R.C.M. 1112.''.

x. The Analysis to R.C.M. 1305 (d) is amended to read
as follows:

``(d) Forwarding copies of the record. Subsection
(1) is based on Article 60(b)(2). Subsection (2) is
based on the third paragraph of paragraph 91c of MCM,
1969 (Rev.). Subsection (3) is self- explanatory.
``2001 Amendment: Subsection (d)(2) was amended to
strike the reference to ``subsection (e)(1)'' and
insert a reference to ``subsection (d)(1)'' to reflect
the 1995 amendment that redesignated R.C.M. 1305(e) as
R.C.M. 1305(d).''.

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

a. The Analysis to Mil. R. Evid. 413 is amended by
adding at the end the following new paragraph:

``2002 Amendment: Federal Rule of Evidence 415
which created a similar character evidence rule for
civil cases, became applicable to the Military Rules of
Evidence on January 6, 1996, pursuant to Rule 1102.
Federal Rule 415, however, is no longer applicable to
the Military Rules of Evidence, as stated in Section 1
of Executive Order , 2002 Amendments to the Manual for
Court-Martial, United States, (date) Rule 415 was
deleted because it applies only to federal civil
proceedings.''.

b. The Analysis to Mil. R. Evid. 414 is amended by
adding at the end the following new paragraph:

c. The analysis to Mil. R. Evid. 615 is amended by
adding at the end the following new paragraph:

[[Page 18789]]

``2002 Amendment: These changes are intended to
extend to victims at courts-martial the same rights
granted to victims by the Victims' Rights and
Restitution Act of 1990, 42 U.S.C. Sec. 10606(b)(4),
giving crime victims '[t]he right to be present at all
public court proceedings related to the offense, unless
the court determines that testimony by the victim would
be materially affected if the victim heard other
testimony at trial,' and the Victim Rights
Clarification Act of 1997, 18 U.S.C. Sec. 3510, which
is restated in subsection (5). For the purposes of this
rule, the term 'victim' includes all persons defined as
victims in 42 U.S.C. Sec. 10607(e)(2), which means 'a
person that has suffered direct physical, emotional, or
pecuniary harm as a result of the commission of a
crime, including'--(A) in the case of a victim that is
an institutional entity, an authorized representative
of the entity; and (B) in the case of a victim who is
under 18 years of age, incompetent, incapacitated, or
deceased, one of the following (in order of
preference): (i) a spouse; (ii) a legal guardian; (iii)
a parent; (iv) a child; (v) a sibling; (vi) another
family member; or (vii) another person designated by
the court. 'The victim's right to remain in the
courtroom remains subject to other rules, such as those
regarding classified information, witness deportment,
and conduct in the courtroom. Subsection (4) is
intended to capture only those statutes applicable to
courts-martial.''.

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

a. The Analysis to paragraph 27(e) is amended by adding
at the end the following new paragraph:

``2002 Amendment: The monetary amount affecting the
maximum punishments has been revised from $100 to $500
to account for inflation. The last change was in 1969
raising the amount to $100. The value has also been
readjusted to realign it more closely with the division
between felony and misdemeanor penalties in civilian
jurisdictions. See generally American Law Institute,
Model Penal Code and Commentaries Sec. 223.1 (1980)
(suggesting $500 as the value). The amendment also adds
the phrase 'or any firearm or explosive' as an
additional criterion. This is because, regardless of
the intrinsic value of such items, the threat to the
community is substantial when such items are wrongfully
bought, sold, traded, dealt in or disposed.''.

b. The Analysis to paragraph 31(c)(6) is amended to
read as follows:

``2002 Amendment: Subparagraph c(6), 'Statements
made during an interrogation,' was removed in light of
questions raised by the Court of Appeals for the Armed
Forces in United States v. Solis, 46 M.J. 31, 35
(C.A.A.F. 1997). In Solis, the court said subparagraph
c(6) could be viewed as serving at least three
different purposes. It could be (1) an expansive
description of dicta with no intent to limit
prosecutions; (2) protection for an accused against
overcharging; or (3) guidance for the conduct of
investigations. Subparagraph c(6) was never intended to
establish either procedural rights for an accused or
internal guidelines to regulate government conduct.
Subparagraph (c)(6) was based upon United States v.
Aronson, 8 U.S.C.M.A. 525, 25 C.M.R. 29 (1957); United
States v. Washington, 9 U.S.C.M.A. 131, 25 C.M.R. 393
(1958) and United States v. Davenport, 9 M.J. 364
(C.M.A. 1980) and was intended merely to describe the
rule developed in those cases that a false statement to
a law enforcement agent, when made by a servicemember
without an independent duty to speak, was not
'official' and therefore not within the purview of
Article 107. The subparagraph is removed because the
position of the Court of Military Appeals in the three
decisions noted above was abandoned in United States v.
Jackson, 26 M.J. 377 (C.M.A. 1988) and the deleted
paragraph no longer accurately describes the current
state of the law.''.

c. The Analysis to paragraph 32(e) is amended by adding
at the end the following new paragraph:

[[Page 18790]]

and misdemeanor penalties in civilian jurisdictions.
See generally American Law Institute, Model Penal Code
and Commentaries Sec. 223.1 (1980) (suggesting $500 as
the value). Although the monetary amount affecting
punishment in 18 U.S.C. Sec. 1361, Government property
or contracts, and 18 U.S.C. Sec. 641, Public money,
property or records, was increased from $100 to $1000
pursuant to section 606 of the Economic Espionage Act
of 1996, P. L. No. 104-294, 110 Stat. 3488 (1996), a
value of $500 was chosen to maintain deterrence,
simplicity, and uniformity for the Manual's property
offenses.''.

d. The Analysis to paragraph 33(e) is amended by adding
at the end the following new paragraph:

e. The Analysis to paragraph 46(c) is amended by adding
at the end the following new paragraph:

``2002 Amendment: Subparagraph c(1)(h)(vi) is new.
It was added to provide guidance on how unauthorized
credit, debit, or electronic transactions should
usually be charged. See United States v. Duncan, 30
M.J. 1284, 289 (N.M.C.M.R. 1990) (citing United States
v. Jones, 29 C.M.R. 651 (A.B.R. 1960), petition denied,
30 C.M.R. 417 (C.M.A. 1960)) (regarding thefts from ATM
machines). Alternative charging theories are also
available, see United States v. Leslie, 13 M.J. 170
(C.M.A. 1982); United States v. Ragins, 11 M.J. 42
(C.M.A. 1981); United States v. Schaper, 42 M.J. 737
(A.F. Ct. Crim. App. 1995); and United States v.
Christy, 18 M.J. 688 (N.M.C.M.R. 1984). The key under
Article 121 is that the accused wrongfully obtained
goods or money from a person or entity with a superior
possessory interest.''.

f. The Analysis to paragraph 46(e) is amended by adding
at the end the following new paragraph:

``2002 Amendment: The monetary amount affecting the
maximum punishments has been revised from $100 to $500
to account for inflation. The last change was in 1969
raising the amount to $100. The value has also been
readjusted to realign it more closely with the division
between felony and misdemeanor penalties in civilian
jurisdictions. See generally American Law Institute,
Model Penal Code and Commentaries Sec. 223.1 (1980)
(suggesting $500 as the value). Although the monetary
amount effecting punishment in 18 U.S.C. Sec. 1361,
Government property or contracts, and 18 U.S.C. Sec.
641, Public money, property or records, was increased
from $100 to $1000 pursuant to section 606 of the
Economic Espionage Act of 1996, P. L. No. 104-294, 110
Stat. 3488 (1996), a value of $500 was chosen to
maintain deterrence, simplicity, and uniformity for the
Manual's property offenses.''.

g. The Analysis to paragraph 49(e) is amended by adding
at the end the following new paragraph:

h. The Analysis to paragraph 52(e) is amended by adding
at the end the following new paragraph:

[[Page 18791]]

Law Institute, Model Penal Code and Commentaries Sec.
223.1 (1980) (suggesting $500 as the value). A value of
$500 was chosen to maintain deterrence, simplicity, and
uniformity for the Manual's property offenses. 18
U.S.C. Sec. 81, Arson within special maritime and
territorial jurisdiction, no longer grades the offense
on the basis of value.''.

i. The Analysis to paragraph 58(e) is amended by adding
at the end the following new paragraph:

j. The Analysis to paragraph 62. Article 134 '
(Adultery) is amended to read as follows:

``c. Explanation. (1) Subparagraph c(2) is based on
United States. v. Snyder, 4 C.M.R. 15 (1952); United
States v. Ruiz, 46 M.J. 503 (A. F. Ct. Crim. App.
1997); United States v. Green, 39 M.J. 606 (A.C.M.R.
1994); United States v. Collier, 36 M.J. 501
(A.F.C.M.R. 1992); United States v. Perez, 33 M.J. 1050
(A.C.M.R. 1991); United States v. Linnear, 16 M.J. 628
(A.F.C.M.R. 1983); Part IV, paragraph 60c(2)(a) of MCM.
Subparagraph c(3) is based on United States v. Poole,
39 M.J. 819 (A.C.M.R. 1994). Subparagraph c(4) is based
on United States v. Fogarty, 35 M.J. 885 (A.C.M.R.
1992); Military Judges' Benchbook, DA PAM 27-9,
paragraph 3-62-1 and 5-11-2 (30 Sep. 1996). See R.C.M.
916(j) and (l)(1) for a general discussion of mistake
of fact and ignorance, which cannot be based on a
negligent failure to discover the true facts.
``(2) When determining whether adulterous acts
constitute the offense of adultery under Article 134,
commanders should consider the listed factors. Each
commander has discretion to dispose of offenses by
members of the command. As with any alleged offense,
however, under R.C.M. 306(b) commanders should dispose
of an allegation of adultery at the lowest appropriate
level. As the R.C.M. 306(b) discussion states, many
factors must be taken into consideration and balanced,
including, to the extent practicable, the nature of the
offense, any mitigating or extenuating circumstances,
the character and military service of the military
member, any recommendations made by subordinate
commanders, the interests of justice, military
exigencies, and the effect of the decision on the
military member and the command. The goal should be a
disposition that is warranted, appropriate, and fair.
In the case of officers, also consult the explanation
to paragraph 59 in deciding how to dispose of an
allegation of adultery.''.

k. The Analysis to paragraph 78(e) is amended by adding
at the end the following new paragraph:

[[Page 18792]]

l. The Analysis to paragraph 106(e) is amended by
adding at the end the following new paragraph:

[FR Doc. 02-9536
Filed 4-16-02; 8:45 am]
Billing code 5000-04-P

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