80 FR 63204 - Manual for Courts-Martial; Proposed Amendments

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 201 (October 19, 2015)

Page Range		63204-63212
FR Document		2015-26485
The Department of Defense requests comments on proposed changes to the Manual for Courts-Martial, United States (2012 ed.) (MCM). The proposed changes concern the rules of procedure and evidence and the punitive articles applicable in trials by courts-martial. The approval authority for these changes is the President. These proposed changes have not been coordinated within the Department of Defense under DoD Directive 5500.01, ``Preparing, Processing and 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. The proposed changes also concern supplementary materials that accompany the rules of procedure and evidence and punitive articles. The Department of Defense, in conjunction with the Department of Homeland Security, publishes these supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, and the Punitive Articles), an Analysis, and various appendices. The approval authority for changes to the supplementary materials is the General Counsel, Department of Defense; changes to these items do not require Presidential approval. The proposed amendments would change military justice practice by implementing recommendations made by the Response Systems to Adult Sexual Assault Crimes Panel, incorporating recent amendments to the Federal Rules of Evidence into the Military Rules of Evidence, and modifying the Rules for Courts-Martial, Military Rules of Evidence, and Punitive Articles explanation to reflect recent statutory amendments and developments in case law. 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. The JSC invites members of the public to comment on the proposed changes; such comments should address specific recommended changes and provide supporting rationale. This notice also sets forth the date, time, and location for a public meeting of the JSC to discuss the proposed changes. 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.
Federal Register, Volume 80 Issue 201 (Monday, October 19, 2015)
[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Notices]
[Pages 63204-63212]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-26485]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2015-OS-0099]


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC), Department 
of Defense.

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States (2012 ed.) and Notice of Public Meeting.

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SUMMARY: The Department of Defense requests comments on proposed 
changes to the Manual for Courts-Martial, United States (2012 ed.) 
(MCM). The proposed changes concern the rules of procedure and evidence 
and the punitive articles applicable in trials by courts-martial. The 
approval authority for these changes is the President. These proposed 
changes have not been coordinated within the Department of Defense 
under DoD Directive 5500.01, ``Preparing, Processing and 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.
    The proposed changes also concern supplementary materials that 
accompany the rules of procedure and evidence and punitive articles. 
The Department of Defense, in conjunction with the Department of 
Homeland Security, publishes these supplementary materials to accompany 
the Manual for Courts-Martial. These materials consist of a Discussion 
(accompanying the Preamble, the Rules for Courts-Martial, the Military 
Rules of Evidence, and the Punitive Articles), an Analysis, and various 
appendices. The approval authority for changes to the supplementary 
materials is the General Counsel, Department of Defense; changes to 
these items do not require Presidential approval.
    The proposed amendments would change military justice practice by 
implementing recommendations made by the Response Systems to Adult 
Sexual Assault Crimes Panel, incorporating recent amendments to the 
Federal Rules of Evidence into the Military Rules of Evidence, and 
modifying the Rules for Courts-Martial, Military Rules of Evidence, and 
Punitive Articles explanation to reflect recent statutory amendments 
and developments in case law.
    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.
    The JSC invites members of the public to comment on the proposed 
changes; such comments should address specific recommended changes and 
provide supporting rationale.
    This notice also sets forth the date, time, and location for a 
public meeting of the JSC to discuss the proposed changes.
    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.

DATES: Comments on the proposed changes must be received no later than 
December 18, 2015. A public meeting for comments will be held on 
November 5, 2015, at 10 a.m. in the United States Court of Appeals for 
the Armed Forces building, 450 E Street NW., Washington DC 20442-0001.

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: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    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: Captain Harlye S. Carlton, USMC, 
Executive Secretary, JSC, (703) 693-9299, [email protected]. The 
JSC Web site is located at http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows:

Annex

    Section 1. Part II of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) A new R.C.M. 103(22) is inserted and reads as follows:
    ``(22) The definition of ``signature'' below includes a digital or 
electronic signature.''
    (b) The title of R.C.M. 104(b)(1) is amended to read as follows:
    ``(1) Evaluation of member, defense counsel, or special victims' 
counsel.''
    (c) R.C.M. 104(b)(1)(B) is amended to read as follows:
    ``(B) Give a less favorable rating or evaluation of any defense 
counsel or special victims' counsel because of the zeal with which such 
counsel represented any client. As used in this rule, ``special 
victims' counsel'' are judge advocates who, in accordance with 10 
U.S.C. 1044e, are designated as Special Victims' Counsel by the Judge 
Advocate General of the armed force in which the judge advocates are 
members, and within the Marine Corps, by the Staff Judge Advocate to 
the Commandant of the Marine Corps.''
    (d) A new R.C.M. 305(i)(2)(A)(v) is inserted and reads as follows:
    ``(v) Victim's right to be reasonably protected from the prisoner. 
A victim of

[[Page 63205]]

an alleged offense committed by the prisoner has the right to be 
reasonably protected from the prisoner.''
    (e) R.C.M. 306(b) is amended to read as follows:
    ``(b) Policy.
    (1) Generally. Allegations of offenses should be disposed of in a 
timely manner at the lowest appropriate level of disposition listed in 
subsection (c) of this rule.''
    (f) A new R.C.M. 306(b)(2) is inserted and reads as follows:
    ``(2) Victims of a sex-related offense.
    (A) For purposes of this subsection, a ``sex-related offense'' 
means any allegation of a violation of Article 120, 120a, 120b, 120c, 
or 125 or any attempt thereof under Article 80, UCMJ.
    (B) Under such regulations as the Secretary concerned may 
prescribe, for alleged sex-related offenses committed in the United 
States, the victim of the sex-related offense shall be provided an 
opportunity to express views as to whether the offense should be 
prosecuted by court-martial or in a civilian court with jurisdiction 
over the offense. The commander shall consider such views as to the 
victim's preference for jurisdiction, if available, prior to making an 
initial disposition decision. For purposes of this rule, ``victim'' is 
defined as an individual who has suffered direct physical, emotional, 
or pecuniary harm as a result of the commission of an alleged sex-
related offense as defined in subsection (A).
    (C) Under such regulations as the Secretary concerned may 
prescribe, if the victim of an alleged sex-related offense expresses a 
preference for prosecution of the offense in a civilian court, the 
convening authority shall ensure that the civilian authority with 
jurisdiction over the offense is notified of the victim's preference 
for civilian prosecution. If the convening authority learns of any 
decision by the civilian authority to prosecute or not prosecute the 
offense in civilian court, the convening authority shall ensure the 
victim is notified.''
    (g) R.C.M. 405(i)(2)(A) is amended to read as follows:
    ``(2) Notice to and presence of the victim(s).
    (A) The victim(s) of an offense under the UCMJ has the right to 
reasonable, accurate, and timely notice of a preliminary hearing 
relating to the alleged offense, the right to be reasonably protected 
from the accused, and the reasonable right to confer with counsel for 
the government during the preliminary hearing. For the purposes of this 
rule, a ``victim'' is a person who is alleged to have suffered a direct 
physical, emotional, or pecuniary harm as a result of the matters set 
forth in a charge or specification under consideration and is named in 
one of the specifications under consideration.''
    (h) R.C.M. 705(c)(2)(A) is amended to read as follows:
    ``(A) A promise to enter into a stipulation of fact concerning 
offenses to which a plea of guilty or a confessional stipulation will 
be entered;''
    (i) A new R.C.M. 705(d)(3) is inserted and reads as follows:
    ``(3) Victim consultation. Whenever practicable, prior to the 
convening authority accepting a pretrial agreement the victim shall be 
provided an opportunity to express views concerning the pretrial 
agreement terms and conditions in accordance with regulations 
prescribed by the Secretary concerned. The convening authority shall 
consider any such views provided prior to accepting a pretrial 
agreement. For purposes of this rule, a ``victim'' is an individual who 
is alleged to have suffered direct physical, emotional, or pecuniary 
harm as a result of the matters set forth in a charge or specification 
under consideration and is named in one of the specifications under 
consideration.''
    (j) R.C.M. 705(d)(3) is renumbered as R.C.M. 705(d)(4).
    (k) R.C.M. 705(d)(4) is renumbered as R.C.M. 705(d)(5).
    (l) A new R.C.M. 806(b)(2) is inserted and reads as follows:
    ``(2) Right of victim to notice. A victim of an alleged offense 
committed by the accused has the right to reasonable, accurate, and 
timely notice of court-martial proceedings relating to the offense.''
    (m) R.C.M. 806(b)(2) is renumbered as R.C.M. 806(b)(3).
    (n) R.C.M. 806(b)(3) is renumbered as R.C.M. 806(b)(4).
    (o) R.C.M. 806(b)(4) is renumbered as R.C.M. 806(b)(5).
    (p) A new R.C.M. 806(b)(6) is inserted and reads as follows:
    ``(b)(6) Right of victim to be reasonably protected from the 
accused. A victim of an alleged offense committed by the accused has 
the right to be reasonably protected from the accused.''
    (q) R.C.M. 907(b)(1) is amended to read as follows:
    ``(1) Nonwaivable grounds. A charge or specification shall be 
dismissed at any stage of the proceedings if the court-martial lacks 
jurisdiction to try the accused for the offense.''
    (r) R.C.M. 907(b)(1)(A)-(B) is deleted.
    (s) R.C.M. 907(b)(3) is amended to read as follows:
    ``(3) Permissible grounds. A specification may be dismissed upon 
timely motion by the accused if:
    (A) The specification is so defective that it substantially misled 
the accused, and the military judge finds that, in the interest of 
justice, trial should proceed on remaining charges and specifications 
without undue delay;
    (B) The specification is multiplicious with another specification, 
is unnecessary to enable the prosecution to meet the exigencies of 
proof through trial, review, and appellate action, and should be 
dismissed in the interest of justice; or
    (C) The specification fails to state an offense.''
    (t) R.C.M. 910(f)(4) is amended to read as follows:
    ``(4) Inquiry. The military judge shall inquire to ensure:
    (A) That the accused understands the agreement;
    (B) That the parties agree to the terms of the agreement; and
    (C) That the victim was provided an opportunity to express views as 
to the terms and conditions of the agreement as provided in R.C.M. 
705.''
    (u) R.C.M. 1002 is amended to read as follows:
    ``(a) Generally. Subject to limitations in this Manual, the 
sentence to be adjudged is a matter within the discretion of the court-
martial; except when a mandatory minimum sentence is prescribed by the 
code, a court-martial may adjudge any punishment authorized in this 
Manual, including the maximum punishment or any lesser punishment, or 
may adjudge a sentence of no punishment.
    (b) Unitary Sentencing. Sentencing by a court-martial is unitary. 
The court will adjudge a single sentence for all the offenses of which 
the accused was found guilty. A court-martial may not impose separate 
sentences for each finding of guilty, but may impose only a single, 
unitary sentence covering all of the guilty findings in their 
entirety.''
    (v) R.C.M. 1103(b)(2)(B)(i) is amended to read as follows:
    ``(i) Any part of the sentence adjudged exceeds twelve months 
confinement, forfeiture of pay greater than two-thirds pay per month, 
or any forfeiture of pay for more than twelve months or other 
punishments that may be adjudged by a special court-martial; or''
    (w) The Note currently located immediately following the title of 
R.C.M. 1107 and prior to R.C.M. 1107(a) is amended to read as follows:
    ``[Note: R.C.M. 1107(b)-(f) apply to offenses committed on or after 
24 June 2014; however, if at least one offense resulting in a finding 
of guilty in a case occurred prior to 24 June 2014, then the prior 
version of R.C.M. 1107 applies to all offenses in the case, except that

[[Page 63206]]

mandatory minimum sentences under Article 56(b) and applicable rules 
under R.C.M. 1107(d)(1)(D)-(E) still apply.]''
    (x) R.C.M. 1107(b)(5) is amended to remove the last sentence 
starting with ``Nothing'' and ending with ``sentence.''
    (y) R.C.M. 1107(c) is amended to read as follows:
    ``(c) Action on findings. Action on the findings is not required. 
However, the convening authority may take action subject to the 
following limitations:
    (1) Where a court-martial includes a finding of guilty for an 
offense listed in (c)(1)(A), the convening authority may not take the 
actions listed in subsection (c)(1)(B):
    (A) Offenses
    (i) Article 120(a) or (b), Article 120b, or Article 125;
    (ii) Offenses for which the maximum sentence of confinement that 
may be adjudged exceeds two years without regard to the jurisdictional 
limits of the court; or
    (iii) Offenses where the adjudged sentence for the case includes 
dismissal, dishonorable discharge, bad-conduct discharge, or 
confinement for more than six months.
    (B) Prohibited actions
    (i) Dismiss a charge or specification by setting aside a finding of 
guilty thereto; or
    (ii) Change a finding of guilty to a charge or specification to a 
finding of guilty to an offense that is a lesser included offense of 
the offense stated in the charge or specification.
    (2) The convening authority may direct a rehearing in accordance 
with subsection (e) of this rule.
    (3) For offenses other than those listed in subsection (c)(1)(A):
    (A) The convening authority may change a finding of guilty to a 
charge or specification to a finding of guilty to an offense that is a 
lesser included offense of the offense stated in the charge or 
specification; or
    (B) Set aside any finding of guilty and:
    (i) Dismiss the specification and, if appropriate, the charge; or
    (ii) Direct a rehearing in accordance with subsection (e) of this 
rule.
    (4) If the convening authority acts to dismiss or change any charge 
or specification for an offense, the convening authority shall provide, 
at the same time, a written explanation of the reasons for such action. 
The written explanation shall be made a part of the record of trial and 
action thereon.''
    (z) R.C.M. 1107(d) is amended to read as follows:
    ``(d) Action on the sentence.
    (1) The convening authority shall take action on the sentence 
subject to the following:
    (A) The convening authority may disapprove, commute, or suspend, in 
whole or in part, any portion of an adjudged sentence not explicitly 
prohibited by this rule, to include reduction in pay grade, forfeitures 
of pay and allowances, fines, reprimands, restrictions, and hard labor 
without confinement.
    (B) Except as provided in subsection (d)(1)(C), the convening 
authority may not disapprove, commute, or suspend, in whole or in part, 
that portion of an adjudged sentence that includes:
    (i) confinement for more than six months; or
    (ii) dismissal, dishonorable discharge, or bad-conduct discharge.
    (C) Exceptions
    (i) Trial counsel recommendation. Upon the recommendation of the 
trial counsel, in recognition of the substantial assistance by the 
accused in the investigation or prosecution of another person who has 
committed an offense, the convening authority or another person 
authorized to act under this section shall have the authority to 
disapprove, commute, or suspend the adjudged sentence, in whole or in 
part, even with respect to an offense for which a mandatory minimum 
sentence exists.
    (ii) Pretrial agreement. If a pretrial agreement has been entered 
into by the convening authority and the accused, as authorized by 
R.C.M. 705, the convening authority or another person authorized to act 
under this section shall have the authority to approve, disapprove, 
commute, or suspend a sentence, in whole or in part, pursuant to the 
terms of the pretrial agreement. However, if a mandatory minimum 
sentence of a dishonorable discharge applies to an offense for which an 
accused has been convicted, the convening authority or another person 
authorized to act under this section may commute the dishonorable 
discharge to a bad-conduct discharge pursuant to the terms of the 
pretrial agreement.
    (D) If the convening authority acts to disapprove, commute, or 
suspend, in whole or in part, the sentence of the court-martial for an 
offense listed in subsection (c)(1)(A), the convening authority shall 
provide, at the same time, a written explanation of the reasons for 
such action. The written explanation shall be made a part of the record 
of trial and action thereon.''
    (aa) R.C.M. 1107(e) is amended to read as follows:
    ``(e) Ordering rehearing or other trial.
    (1) Rehearings not permitted. A rehearing may not be ordered by the 
convening authority where the adjudged sentence for the case includes a 
sentence of dismissal, dishonorable discharge, or bad-conduct discharge 
or confinement for more than six months.
    (2) Rehearings permitted.
    (A) In general. Subject to subsection (e)(1) and subsections 
(e)(2)(B) through (e)(2)(E) of this rule, the convening authority may 
in the convening authority's discretion order a rehearing. A rehearing 
may be ordered as to some or all offenses of which findings of guilty 
were entered and the sentence, or as to sentence only.
    (B) When the convening authority may order a rehearing. The 
convening authority may order a rehearing:
    (i) When taking action on the court-martial under this rule. Prior 
to ordering a rehearing on a finding, the convening authority must 
disapprove the applicable finding and the sentence and state the 
reasons for disapproval of said finding. Prior to ordering a rehearing 
on the sentence, the convening authority must disapprove the sentence.
    (ii) When authorized to do so by superior competent authority. If 
the convening authority finds a rehearing as to any offenses 
impracticable, the convening authority may dismiss those specifications 
and, when appropriate, charges.
    (iii) Sentence reassessment. If a superior competent authority has 
approved some of the findings of guilty and has authorized a rehearing 
as to other offenses and the sentence, the convening authority may, 
unless otherwise directed, reassess the sentence based on the approved 
findings of guilty and dismiss the remaining charges. Reassessment is 
appropriate only where the convening authority determines that the 
accused's sentence would have been at least of a certain magnitude had 
the prejudicial error not been committed and the reassessed sentence is 
appropriate in relation to the affirmed findings of guilty.''
    (C) Limitations.
    (i) Sentence approved. A rehearing shall not be ordered if, in the 
same action, a sentence is approved.
    (ii) Lack of sufficient evidence. A rehearing may not be ordered as 
to findings of guilty when there is a lack of sufficient evidence in 
the record to support the findings of guilty of the offense charged or 
of any lesser included offense. A rehearing may be ordered, however, if 
the proof of guilt consisted of inadmissible evidence for which there 
is available an admissible substitute. A rehearing may be ordered as to 
any lesser offense included in an offense of which the accused was 
found guilty, provided there is sufficient

[[Page 63207]]

evidence in the record to support the lesser included offense.
    (iii) Rehearing on sentence only. A rehearing on sentence only 
shall not be referred to a different kind of court-martial from that 
which made the original findings. If the convening authority determines 
a rehearing on sentence is impracticable, the convening authority may 
approve a sentence of no punishment without conducting a rehearing.
    (D) Additional charges. Additional charges may be referred for 
trial together with charges as to which a rehearing has been directed.
    (E) Lesser included offenses. If at a previous trial the accused 
was convicted of a lesser included offense, a rehearing may be ordered 
only as to that included offense or as to an offense included in that 
found. If, however, a rehearing is ordered improperly on the original 
offense charged and the accused is convicted of that offense at the 
rehearing, the finding as to the lesser included offense of which the 
accused was convicted at the original trial may nevertheless be 
approved.
    (3) ``Other'' trial. The convening or higher authority may order an 
``other'' trial if the original proceedings were invalid because of 
lack of jurisdiction or failure of a specification to state an offense. 
The authority ordering an ``other'' trial shall state in the action the 
basis for declaring the proceedings invalid.''
    (bb) The Note currently located immediately following the title of 
R.C.M. 1108(b) and prior to the first line, ``The convening authority 
may. . .'' is amended to read as follows:
    ``[Note: R.C.M. 1108(b) applies to offenses committed on or after 
24 June 2014; however, if at least one offense in a case occurred prior 
to 24 June 2014, then the prior version of R.C.M. 1108(b) applies to 
all offenses in the case.]''
    (cc) R.C.M. 1109(a) is amended to read as follows:
    _``(a) In general. Suspension of execution of the sentence of a 
court-martial may be vacated for violation of any condition of the 
suspension as provided in this rule.''
    (dd) R.C.M. 1109(c)(4)(A) is amended to read as follows:
    ``(A) Rights of probationer. Before the preliminary hearing, the 
probationer shall be notified in writing of:''
    (ee) R.C.M. 1109(c)(4)(C) is amended to read as follows:
    ``(C) Decision. The hearing officer shall determine whether there 
is probable cause to believe that the probationer violated the 
conditions of the probationer's suspension. If the hearing officer 
determines that probable cause is lacking, the hearing officer shall 
issue a written order directing that the probationer be released from 
confinement. If the hearing officer determines that there is probable 
cause to believe that the probationer violated a condition of 
suspension, the hearing officer shall set forth this determination in a 
written memorandum that details therein the evidence relied upon and 
reasons for making the decision. The hearing officer shall forward the 
original memorandum or release order to the probationer's commander and 
forward a copy to the probationer and the officer in charge of the 
confinement facility.''
    (ff) A new sentence is added to the end of R.C.M. 1109(d)(1)(A) and 
reads as follows:
    ``The purpose of the hearing is for the hearing officer to 
determine whether there is probable cause to believe that the 
probationer violated a condition of the probationer's suspension.''
    (gg) R.C.M. 1109(d)(1)(C) is amended to read as follows:
    ``(C) Hearing. The procedure for the vacation hearing shall follow 
that prescribed in subsection (h) of this rule.''
    (hh) A new sentence is added to the end of R.C.M. 1109(d)(1)(D) and 
reads as follows:
    ``This record shall include the recommendation, the evidence relied 
upon, and reasons for making the decision.''
    (ii) R.C.M. 1109(d)(2)(A) is amended to read as follows:
    ``(A) In general. The officer exercising general court-martial 
jurisdiction over the probationer shall review the record produced by 
and the recommendation of the officer exercising special court-martial 
jurisdiction over the probationer, decide whether there is probable 
cause to believe that the probationer violated a condition of the 
probationer's suspension, and, if so, decide whether to vacate the 
suspended sentence. If the officer exercising general court-martial 
jurisdiction decides to vacate the suspended sentence, that officer 
shall prepare a written statement of the evidence relied on and the 
reasons for vacating the suspended sentence.''
    (jj) A new sentence is added to the end of R.C.M. 1109(e)(1) and 
reads as follows:
    ``The purpose of the hearing is for the hearing officer to 
determine whether there is probable cause to believe that the 
probationer violated the conditions of the probationer's suspension.''
    (kk) R.C.M. 1109(e)(3) is amended to read as follows:
    ``(3) Hearing. The procedure for the vacation hearing shall follow 
that prescribed in subsection (h) of this rule.''
    (ll) A new sentence is added to the end of R.C.M. 1109(e)(5) and 
reads as follows:
    ``This record shall include the recommendation, the evidence relied 
upon, and reasons for making the decision.''
    (mm) R.C.M. 1109(e)(6) is amended to read as follows:
    ``(6) Decision. The special court-martial convening authority shall 
review the record produced by and the recommendation of the person who 
conducted the vacation proceeding, decide whether there is probable 
cause to believe that the probationer violated a condition of the 
probationer's suspension, and, if so, decide whether to vacate the 
suspended sentence. If the officer exercising jurisdiction decides to 
vacate the suspended sentence, that officer shall prepare a written 
statement of the evidence relied on and the reasons for vacating the 
suspended sentence.''
    (nn) A new sentence is added to the end of R.C.M. 1109(g)(1) and 
reads as follows:
    ``The purpose of the hearing is for the hearing officer to 
determine whether there is probable cause to believe that the 
probationer violated the conditions of the probationer's suspension.''
    (oo) R.C.M. 1109(g)(3) is amended to read as follows:
    ``(3) Hearing. The procedure for the vacation hearing shall follow 
that prescribed in subsection (h) of this rule.''
    (pp) A new sentence is added to the end of R.C.M. 1109(g)(5) and 
reads as follows:
    ``This record shall include the recommendation, the evidence relied 
upon, and reasons for making the decision.''
    (qq) R.C.M. 1109(g)(6) is amended to read as follows:
    ``(6) Decision. A commander with authority to vacate the suspension 
shall review the record produced by and the recommendation of the 
person who conducted the vacation proceeding, decide whether there is 
probable cause to believe that the probationer violated a condition of 
the probationer's suspension, and, if so, decide whether to vacate the 
suspended sentence. If the officer exercising jurisdiction decides to 
vacate the suspended sentence, that officer shall prepare a written 
statement of the evidence relied on and the reasons for vacating the 
suspended sentence.''
    (rr) A new R.C.M. 1109(h) is inserted and reads as follows:
    ``(h) Hearing procedure

[[Page 63208]]

    (1) Generally. The hearing shall begin with the hearing officer 
informing the probationer of the probationer's rights. The government 
will then present evidence. Upon the conclusion of the government's 
presentation of evidence, the probationer may present evidence. The 
probationer shall have full opportunity to present any matters in 
defense, extenuation, or mitigation. Both the government and 
probationer shall be afforded an opportunity to cross-examine adverse 
witnesses. The hearing officer may also question witnesses called by 
the parties.
    (2) Rules of evidence. The Military Rules of Evidence--other than 
Mil. R. Evid. 301, 302, 303, 305, 412, and Section V--shall not apply. 
Nor shall Mil. R. Evid. 412(b)(1)(C) apply. In applying these rules to 
a vacation hearing, the term ``military judge,'' as used in these 
rules, shall mean the hearing officer, who shall assume the military 
judge's authority to exclude evidence from the hearing, and who shall, 
in discharging this duty, follow the procedures set forth in these 
rules. However, the hearing officer is not authorized to order 
production of communications covered by Mil. R. Evid. 513 or 514.
    (3) Production of witnesses and other evidence. The procedure for 
the production of witnesses and other evidence shall follow that 
prescribed in R.C.M. 405(g), except that R.C.M. 405(g)(3)(B) shall not 
apply. The hearing officer shall only consider testimony and other 
evidence that is relevant to the limited purpose of the hearing.
    (4) Presentation of testimony. Witness testimony may be provided in 
person, by video teleconference, by telephone, or by similar means of 
remote testimony. All testimony shall be taken under oath, except that 
the probationer may make an unsworn statement.
    (5) Other evidence. If relevant to the limited purpose of the 
hearing, and not cumulative, a hearing officer may consider other 
evidence, in addition to or in lieu of witness testimony, including 
statements, tangible evidence, or reproductions thereof, offered by 
either side, that the hearing officer determines is reliable. This 
other evidence need not be sworn.
    (6) Presence of probationer. The taking of evidence shall not be 
prevented and the probationer shall be considered to have waived the 
right to be present whenever the probationer:
    (i) After being notified of the time and place of the proceeding is 
voluntarily absent; or
    (ii) After being warned by the hearing officer that disruptive 
conduct will cause removal from the proceeding, persists in conduct 
that is such as to justify exclusion from the proceeding.
    (7) Objections. Any objection alleging failure to comply with these 
rules shall be made to the convening authority via the hearing officer. 
The hearing officer shall include a record of all objections in the 
written recommendations to the convening authority.
    (8) Access by spectators. Vacation hearings are public proceedings 
and should remain open to the public whenever possible. The convening 
authority who directed the hearing or the hearing officer may restrict 
or foreclose access by spectators to all or part of the proceedings if 
an overriding interest exists that outweighs the value of an open 
hearing. Examples of overriding interests may include: Preventing 
psychological harm or trauma to a child witness or an alleged victim of 
a sexual crime, protecting the safety or privacy of a witness or 
alleged victim, protecting classified material, and receiving evidence 
where a witness is incapable of testifying in an open setting. Any 
closure must be narrowly tailored to achieve the overriding interest 
that justified the closure. Convening authorities or hearing officers 
must conclude that no lesser methods short of closing the hearing can 
be used to protect the overriding interest in the case. Convening 
authorities or hearing officers must conduct a case-by-case, witness-
by-witness, circumstance-by-circumstance analysis of whether closure is 
necessary. If a convening authority or hearing officer believes closing 
the hearing is necessary, the convening authority or hearing officer 
must make specific findings of fact in writing that support the 
closure. The written findings of fact must be included in the record.
    (9) Victim's rights. Any victim of the underlying offense for which 
the probationer received the suspended sentence, or any victim of the 
alleged offense that is the subject of the vacation hearing, has the 
right to reasonable, accurate, and timely notice of the vacation 
hearing. For purposes of this rule, the term ``victim'' is defined as 
an individual who has suffered direct physical, emotional, or pecuniary 
harm as a result of the commission of an offense.''
    Section 2. Part III of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) Mil. R. Evid. 304(c) is amended to read as follows:
    ``(c) Corroboration of a Confession or Admission.
    (1) An admission or a confession of the accused may be considered 
as evidence against the accused on the question of guilt or innocence 
only if independent evidence, either direct or circumstantial, has been 
admitted into evidence that would tend to establish the trustworthiness 
of the admission or confession.
    (2) Other uncorroborated confessions or admissions of the accused 
that would themselves require corroboration may not be used to supply 
this independent evidence. If the independent evidence raises an 
inference of the truth of the admission or confession, then it may be 
considered as evidence against the accused. Not every element or fact 
contained in the confession or admission must be independently proven 
for the confession or admission to be admitted into evidence in its 
entirety.
    (3) Corroboration is not required for a statement made by the 
accused before the court by which the accused is being tried, for 
statements made prior to or contemporaneously with the act, or for 
statements offered under a rule of evidence other than that pertaining 
to the admissibility of admissions or confessions.
    (4) Quantum of Evidence Needed. The independent evidence necessary 
to establish corroboration need not be sufficient of itself to 
establish beyond a reasonable doubt the truth of facts stated in the 
admission or confession. The independent evidence need raise only an 
inference of the truth of the admission or confession. The amount and 
type of evidence introduced as corroboration is a factor to be 
considered by the trier of fact in determining the weight, if any, to 
be given to the admission or confession.
    (5) Procedure. The military judge alone is to determine when 
adequate evidence of corroboration has been received. Corroborating 
evidence must be introduced before the admission or confession is 
introduced unless the military judge allows submission of such evidence 
subject to later corroboration.''
    (b) Mil. R. Evid. 311(a) is amended to read as follows:
    ``(a) General rule. Evidence obtained as a result of an unlawful 
search or seizure made by a person acting in a governmental capacity is 
inadmissible against the accused if:
    (1) The accused makes a timely motion to suppress or an objection 
to the evidence under this rule;
    (2) the accused had a reasonable expectation of privacy in the 
person, place or property searched; the accused had a legitimate 
interest in the property or evidence seized when challenging a seizure; 
or the accused would otherwise have grounds to object to the search or

[[Page 63209]]

seizure under the Constitution of the United States as applied to 
members of the Armed Forces; and
    (3) exclusion of the evidence results in appreciable deterrence for 
future Fourth Amendment violations and the benefits of such deterrence 
outweigh the costs to the justice system.''
    (c) A new Mil. R. Evid. 311(c)(4) is inserted and reads as follows:
    ``(4) Reliance on Statute. Evidence that was obtained as a result 
of an unlawful search or seizure may be used when the official seeking 
the evidence acts in objectively reasonable reliance on a statute later 
held violative of the Fourth Amendment.''
    (d) Mil. R. Evid. 414(d)(2)(A) is amended to read as follows:
    ``(A) any conduct prohibited by Article 120 and committed with a 
child, or prohibited by Article 120b.''
    (e) Mil. R. Evid. 504 is amended to read as follows:
    ``Rule 504. Marital privilege
    (a) Spousal Incapacity. A person has a privilege to refuse to 
testify against his or her spouse. There is no privilege under 
subdivision (a) when, at the time of the testimony, the parties are 
divorced, or the marriage has been annulled.
    (b) Confidential Communication Made During the Marriage.
    (1) General Rule. A person has a privilege during and after the 
marital relationship to refuse to disclose, and to prevent another from 
disclosing, any confidential communication made to the spouse of the 
person while they were married and not separated as provided by law.
    (2) Who May Claim the Privilege. The privilege may be claimed by 
the spouse who made the communication or by the other spouse on his or 
her behalf. The authority of the latter spouse to do so is presumed in 
the absence of evidence of a waiver. The privilege will not prevent 
disclosure of the communication at the request of the spouse to whom 
the communication was made if that spouse is an accused regardless of 
whether the spouse who made the communication objects to its 
disclosure.
    (c) Exceptions.
    (1) To Confidential Communications Only. Where both parties have 
been substantial participants in illegal activity, those communications 
between the spouses during the marriage regarding the illegal activity 
in which they have jointly participated are not marital communications 
for purposes of the privilege in subdivision (b) and are not entitled 
to protection under the privilege in subdivision (b).
    (2) To Spousal Incapacity and Confidential Communications. There is 
no privilege under subdivisions (a) or (b):
    (A) In proceedings in which one spouse is charged with a crime 
against the person or property of the other spouse or a child of 
either, or with a crime against the person or property of a third 
person committed in the course of committing a crime against the other 
spouse;
    (B) When the marital relationship was entered into with no 
intention of the parties to live together as spouses, but only for the 
purpose of using the purported marital relationship as a sham, and with 
respect to the privilege in subdivision (a), the relationship remains a 
sham at the time the testimony or statement of one of the parties is to 
be introduced against the other; or with respect to the privilege in 
subdivision (b), the relationship was a sham at the time of the 
communication; or
    (C) In proceedings in which a spouse is charged, in accordance with 
Article 133 or 134, with importing the other spouse as an alien for 
prostitution or other immoral purpose in violation of 8 U.S.C. 1328; 
with transporting the other spouse in interstate commerce for 
prostitution, immoral purposes, or another offense in violation of 18 
U.S.C. 2421-2424; or with violation of such other similar statutes 
under which such privilege may not be claimed in the trial of criminal 
cases in the United States district courts.
    (d) Definitions. As used in this rule:
    (1) ``A child of either'' means a biological child, adopted child, 
or ward of one of the spouses and includes a child who is under the 
permanent or temporary physical custody of one of the spouses, 
regardless of the existence of a legal parent-child relationship. For 
purposes of this rule only, a child is:
    (A) an individual under the age of 18; or
    (B) an individual with a mental handicap who functions under the 
age of 18.
    (2) ``Temporary physical custody'' means a parent has entrusted his 
or her child with another. There is no minimum amount of time necessary 
to establish temporary physical custody, nor is a written agreement 
required. Rather, the focus is on the parent's agreement with another 
for assuming parental responsibility for the child. For example, 
temporary physical custody may include instances where a parent 
entrusts another with the care of his or her child for recurring care 
or during absences due to temporary duty or deployments.
    (3) As used in this rule, a communication is ``confidential'' if 
made privately by any person to the spouse of the person and is not 
intended to be disclosed to third persons other than those reasonably 
necessary for transmission of the communication.''
    (f) Mil. R. Evid. 801(d)(1)(B) is amended to read as follows:
    ``(B) is consistent with the declarant's testimony and is offered:
    (i) to rebut an express or implied charge that the declarant 
recently fabricated it or acted from a recent improper influence or 
motive in so testifying; or
    (ii) to rehabilitate the declarant's credibility as a witness when 
attacked on another ground; or''
    (g) The first sentence of Mil. R. Evid. 803(6)(E) is amended to 
read as follows:
    ``(E) the opponent does not show that the source of information or 
the method or circumstance of preparation indicate a lack of 
trustworthiness.''
    (h) Mil. R. Evid. 803(7)(C) is amended to read as follows
    ``(C) the opponent does not show that the possible source of the 
information or other circumstances indicate a lack of 
trustworthiness.''
    (i) The first sentence of Mil. R. Evid. 803(8)(B) is amended to 
read as follows:
    ``(B) the opponent does not show that the source of information or 
other circumstances indicate a lack of trustworthiness.''
    (j) Mil. R. Evid. 803(10)(B) is amended to read as follows:
    ``(B) a counsel for the government who intends to offer a 
certification provides written notice of that intent at least 14 days 
before trial, and the accused does not object in writing within 7 days 
of receiving the notice--unless the military judge sets a different 
time for the notice or the objection.''
    Section 3. Part IV of the Manual for Courts-Martial, United States, 
is amended as follows: Paragraph 110, Article 134--Threat, 
communicating, subparagraph c. is amended to read as follows:
    ``c. Explanation. For purposes of this paragraph, to establish that 
the communication was wrongful it is necessary that the accused 
transmitted the communication for the purpose of issuing a threat, with 
the knowledge that the communication would be viewed as a threat, or 
acted recklessly with regard to whether the communication would be 
viewed as a threat. However, it is not necessary to establish that the 
accused actually intended to do the injury threatened. Nor is the 
offense committed by the mere statement of intent to commit an unlawful 
act not involving injury to another. See also paragraph 109, Threat

[[Page 63210]]

or hoax designed or intended to cause panic or public fear.''
    Section 4. Appendix 21, Analysis of Rules for Courts-Martial is 
amended as follows:
    (a) Rule 306 is amended by inserting the following at the end:
    ``2016 Amendment: R.C.M. 306(b)(2) was added to implement Section 
534(b) of the National Defense Authorization Act for Fiscal Year 2015, 
P.L. 113-291, 19 December 2014.''
    (b) Rule 401 is amended by inserting the following at the end:
    ``2016 Amendment: The first paragraph of the R.C.M. 401(c) 
Discussion was added in light of the recommendation in the Response 
Systems to Adult Sexual Assault Crimes Panel's (RSP) June 2014 report 
for trial counsel to convey victims' preferences as to disposition to 
the convening authority. This discussion implements this recommendation 
by allowing Service regulations to determine the appropriate authority 
responsible for communicating the victims' views to the convening 
authority. The RSP was a congressionally mandated panel tasked to 
conduct an independent review and assessment of the systems used to 
investigate, prosecute, and adjudicate crimes involving adult sexual 
assault and related offenses.''
    (c) Rule 604 is amended by inserting the following at the end:
    ``2016 Amendment: The fourth paragraph of the R.C.M. 604(a) 
Discussion was added to align the Discussion with R.C.M. 705(d)(3).''
    (d) Rule 907 is amended inserting the following at the end:
    ``2016 Amendment: R.C.M. 907(b) was amended in light of United 
States v. Humphries, 71 M.J. 209 (C.A.A.F. 2012), where the court held 
that a defective specification does not constitute structural error or 
warrant automatic dismissal.''
    (e) Rule 910 is amended by inserting the following at the end:
    ``2016 Amendment: R.C.M. 910(f)(4)(C) was added in light of the 
recommendation in the Response Systems to Adult Sexual Assault Crimes 
Panel's (RSP) June 2014 report for victims to be consulted regarding a 
pretrial agreement. The RSP was a congressionally mandated panel tasked 
to conduct an independent review and assessment of the systems used to 
investigate, prosecute, and adjudicate crimes involving adult sexual 
assault and related offenses.''
    (f) Rule 1002 is amended by inserting the following at the end:
    ``2016 Amendment: R.C.M. 1002(b) was added to clarify the 
military's unitary sentencing concept. See United States v. Gutierrez, 
11 M.J. 122, 123 (C.M.A. 1981). See generally Jackson v. Taylor, 353 
U.S. 569 (1957).''
    (g) Rule 1103(b) is amended by inserting the following immediately 
before the paragraph beginning with ``Subsection 2(C)'':
    ``2016 Amendment: R.C.M. 1103(b)(2)(B)(i) was amended to align the 
requirement for a verbatim transcript with special courts-martial 
jurisdictional maximum punishments.''
    (h) Rule 1108 is amended by inserting the following at the end:
    ``2016 Amendment: The R.C.M. 1107(b) Discussion was amended to 
clarify that the limitations contained in Article 60 apply to the 
convening authority or other commander acting under Article 60.''
    (i) Rule 1109 is amended by inserting the following at the end:
    ``2016 Amendment: R.C.M. 1109 was revised in light of the National 
Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 
December 2013, amendments to Article 32 and the resulting changes to 
R.C.M. 405 as promulgated by Executive Order 13696. It was further 
revised to clarify throughout the rule that the purpose of vacation 
hearings is to determine whether there is probable cause that the 
probationer violated any condition of the probationer's suspension.''
    Section 5. Appendix 22, Analysis of the Military Rules of Evidence 
is amended as follows:
    (a) Rule 304(c) is amended by inserting the following at the end:
    ``2016 Amendment: This change was adopted to bring military 
practice in line with federal practice. See Opper v. United States, 348 
U.S. 84 (1954), and Smith v. United States, 348 U.S. 147 (1954).''
    (b) Rule 311 is amended by inserting the following at the end:
    ``2016 Amendment: Rule 311(a)(3) was added to incorporate the 
balancing test limiting the application of the exclusionary rule set 
forth in Herring v. United States, 555 U.S. 135 (2009), where the 
Supreme Court held that to trigger the exclusionary rule, ``the 
deterrent effect of suppression must be substantial and outweigh any 
harm to the justice system.'' Id. at 147; see also United States v. 
Wicks, 73 M.J. 93, 104 (C.A.A.F. 2014) (``The exclusionary rule applies 
only where it results in appreciable deterrence for future Fourth 
Amendment violations and where the benefits of deterrence must outweigh 
the costs'' (internal quotation marks omitted)).
    Rule 311(c)(4) was added to adopt the expansion of the ``good 
faith'' exception to the exclusionary rule set forth in Illinois v. 
Krull, 480 U.S. 340 (1987), where the Supreme Court held that the 
exclusionary rule is inapplicable to evidence obtained by an officer 
acting in objectively reasonable reliance on a statute later held 
violative of the Fourth Amendment.''
    (c) Rule 504 is amended by inserting the following at the end:
    ``2016 Amendment: References to gender were removed throughout the 
Rule. Rule 504(c)(1) was amended to make clear that the exception only 
applies to confidential communications. The definition of 
``confidential communications'' was moved to Rule 504(d).''
    (d) Rule 801 is amended by inserting the following at the end:
    ``2016 Amendment. Rule 801(d)(1)(B)(ii) was added in accordance 
with an identical change to Federal Rule of Evidence 801(d)(1)(B). The 
amendment retains the requirement set forth in Tome v. United States, 
513 U.S. 150 (1995): that under Rule 801(d)(1)(B), a consistent 
statement offered to rebut a charge of recent fabrication of improper 
influence or motive must have been made before the alleged fabrication 
or improper inference or motive arose. The intent of the amendment is 
to extend substantive effect to consistent statements that rebut other 
attacks on a witness--such as the charges of inconsistency or faulty 
memory. The amendment does not change the traditional and well-accepted 
limits on bringing prior consistent statements before the factfinder 
for credibility purposes. It does not allow impermissible bolstering of 
a witness. As before, prior consistent statements under the amendment 
may be brought before the factfinder only if they properly rehabilitate 
a witness whose credibility has been attacked. As before, to be 
admissible for rehabilitation, a prior consistent statement must 
satisfy the strictures of Rule 403. As before, the trial court has 
ample discretion to exclude prior consistent statements that are 
cumulative accounts of an event. The amendment does not make any 
consistent statement admissible that was not admissible previously--the 
only difference is that prior consistent statements otherwise 
admissible for rehabilitation are now admissible substantively as 
well.''
    (e) The fourth paragraph of Rule 803(6), beginning with, 
``Paragraph 144 d'' is amended to read as follows:
    ``Paragraph 144 d prevented a record ``made principally with a view 
to prosecution, or other disciplinary or legal action;'' from being 
admitted as a business record.''

[[Page 63211]]

    (f) Rule 803(6) is amended by inserting the following at the end:
    ``2016 Amendment: Rule 803(6)(E) was modified based on the 
amendment to Fed. R. Evid. 803(6), effective 1 December 2014. It 
clarifies that if the proponent of a record has established the 
requirements of the exception, then the burden is on the opponent to 
show a lack of trustworthiness. In meeting its burden, the opponent is 
not necessarily required to introduce affirmative evidence of 
untrustworthiness. It is appropriate to impose the burden of proving 
untrustworthiness on the opponent, as the basic admissibility 
requirements are sufficient to establish a presumption that the record 
is reliable.''
    (g) Rule 803(7) is amended by inserting the following at the end:
    ``2016 Amendment: Rule 803(7)(C) was modified based on the 
amendment to Fed. R. Evid. 803(7), effective 1 December 2014. It 
clarifies that if the proponent has established the stated requirements 
of the exception then the burden is on the opponent to show a lack of 
trustworthiness.''
    (h) Rule 803(8) is amended by inserting the following at the end:
    ``2016 Amendment: Rule 803(8)(B) was modified based on the 
amendment to Fed. R. Evid. 803(8)(B), effective 1 December 2014. The 
amendment clarifies that if the proponent has established that the 
record meets the stated requirements of the exception then the burden 
is on the opponent to show a lack of trustworthiness as public records 
have justifiably carried a presumption of reliability. The opponent, in 
meeting its burden is not necessarily required to introduce affirmative 
evidence of untrustworthiness. A determination of untrustworthiness 
necessarily depends on the circumstances.''
    (i) Rule 803(8) is amended by deleting the following:
    ``Rule 803(8)(C) makes admissible, but only against the Government, 
``factual findings resulting from an investigation made pursuant to 
authority granted by law, unless the sources of information or other 
circumstances indicate lack of trustworthiness.'' This provision will 
make factual findings made, for example, by an Article 32 Investigating 
Officer or by a Court of Inquiry admissible on behalf of an accused. 
Because the provision applies only to ``factual findings,'' great care 
must be taken to distinguish such factual determinations from opinions, 
recommendations, and incidental inferences.''
    (j) Rule 803(10) is amended by inserting the following at the end:
    ``2016 Amendment: Rule 803(10) was modified based on the amendment 
to Fed. R. Evid. 803(10), effective 1 December 2013. The amendment of 
the Federal Rules was in response to Melendez-Diaz v. Massachusetts, 
557 U.S. 305 (2009). The Melendez-Diaz Court declared that a 
testimonial certificate could be admitted if the accused is given 
advance notice and does not timely demand the presence of the official 
who prepared the certificate. The amendment to Rule 803(10) is taken 
largely from the amendment to the Fed. R. Evid. 803(10) but has been 
modified to adapt it to the military environment.''
    Section 6. Appendix 23, Analysis of Punitive Articles is amended as 
follows:
    Paragraph 110, Article 134--Threat, communicating, is amended by 
inserting the following at the end:
    ``2016 Amendment: Subparagraph (c) was amended in light of Elonis 
v. United States, 135 S. Ct. 2001 (2015).
    Section 7. The Discussion to Part II of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) A new Discussion is inserted after R.C.M. 306(b)(2)(B) and 
before R.C.M. 306(b)(2)(C) and reads as follows:
    ``Any preferences as to disposition expressed by the victim 
regarding jurisdiction, while not binding, should be considered by the 
cognizant commander prior to making initial disposition.
    The cognizant commander should continue to consider the views of 
the victim as to jurisdiction until final disposition of the case.''
    (b) Section (H)(ii) of the Discussion immediately following 
307(c)(3) is amended to read as follows:
    ``(ii) Victim. In the case of an offense against the person or 
property of a person, the first name, middle initial, and last name or 
first, middle, and last initials of such person should be alleged, if 
known. If the name of the victim is unknown, a general physical 
description may be used. If this cannot be done, the victim may be 
described as ``a person whose name is unknown.'' Military rank or grade 
should be alleged, and must be alleged if an element of the offense, as 
in an allegation of disobedience of the command of a superior officer. 
If the person has no military position, it may otherwise be necessary 
to allege the status as in an allegation of using provoking words 
toward a person subject to the code. See paragraph 42 of Part IV. 
Counsel for the government should be aware that if initials of victims 
are used, additional notice of the identity of victims will be 
required.''
    (c) The Discussion immediately following R.C.M. 401(c) is amended 
by inserting the following new paragraph at the beginning of the 
Discussion:
    ``When an alleged offense involves a victim, the victim should, 
whenever practicable, be provided an opportunity to express views 
regarding the disposition of the charges. The commander with authority 
to dispose of charges should consider such views of the victim prior to 
deciding how to dispose of the charges and should continue to consider 
the views of the victim until final disposition of the case. A 
``victim'' is an individual who is alleged to have suffered direct 
physical, emotional, or pecuniary harm as a result of the matters set 
forth in a charge or specification under consideration and is named in 
one of the specifications under consideration.''
    (d) The Discussion immediately after R.C.M. 604(a) is amended by 
inserting the following new paragraph between the third and fourth 
paragraphs:
    ``When an alleged offense involves a victim, the victim should, 
whenever practicable, be provided an opportunity to express views 
regarding the withdrawal of any charges or specifications in which the 
victim is named. The convening authority or other individual authorized 
to act on the charges should consider such views of the victim prior to 
withdrawing said charges or specifications and should continue to 
consider the views of the victim until final disposition of the case. A 
``victim'' is an individual who is alleged to have suffered direct 
physical, emotional, or pecuniary harm as a result of the matters set 
forth in a charge or specification under consideration and is named in 
one of the specifications under consideration.''
    (e) A new Discussion section is inserted immediately following 
R.C.M. 705(c)(2)(C) and reads as follows:
    ``A promise to provide restitution includes restitution to a victim 
of an alleged offense committed by the accused in accordance with 
Article 6b(a)(6).''
    (f) The Discussion section following R.C.M. 907(b)(1)(B) is 
deleted.
    (g) The Discussion section following R.C.M. 910(f)(4) is amended to 
read as follows:
    ``If the plea agreement contains any unclear or ambiguous terms, 
the military judge should obtain clarification from the parties. If 
there is doubt about the accused's understanding of any terms in the 
agreement, the military judge should explain those terms to the 
accused. See also subsection (e) of this rule. The victim is not a 
party to the agreement.''
    (h) The Discussion immediately after the sole paragraph in R.C.M. 
1002 is

[[Page 63212]]

moved to immediately after R.C.M. 1002(b).
    (i) The Discussion section following R.C.M. 1105(b)(2)(C) is 
amended to read as follows:
    ``For example, post-trial conduct of the accused, such as providing 
restitution to the victim of the accused's offense in accordance with 
Article 6b(a)(6), or exemplary behavior, might be appropriate.''
    (j) The Discussion section following R.C.M. 1107(b)(1) is amended 
to read as follows:
    ``The action is taken in the interests of justice, discipline, 
mission requirements, clemency, and other appropriate reasons. If 
errors are noticed by the convening authority, the convening authority 
may take corrective action under this rule to the extent that the 
convening authority is empowered by Article 60.''
    (k) A new Discussion section is inserted immediately following 
R.C.M. 1107(c)(2) and reads follows:
    ``The military follows a unitary sentencing model where the court-
martial may impose only a single, unitary sentence covering all of the 
offenses for which there was a finding of guilty; courts-martial do not 
impose sentences per offense. See R.C.M. 1002(b). Therefore, where the 
adjudged sentence for the case includes dismissal, dishonorable 
discharge, bad-conduct discharge, or confinement for more than six 
months, the sentence adjudged for the entire case, and not per offense, 
controls when deciding what actions are available to the convening 
authority.''
    (l) A new Discussion section is inserted immediately following 
R.C.M. 1107(e)(1)(C)(ii) and reads as follows:
    ``Per Article 60(c)(4)(A) and subsection (d)(1)(A) and (B) of this 
rule, disapproval of the sentence is not authorized where a court-
martial's adjudged sentence for the case includes confinement for more 
than six months or a sentence of dismissal, dishonorable discharge, or 
bad- conduct discharge. In such cases, the convening authority may not 
order a rehearing because disapproval of the sentence is required for a 
convening authority to order a rehearing. See Article 60(f)(3).''
    (m) The Discussion following R.C.M. 1107(e)(1)(B)(iii) is deleted.
    (n) A new Discussion is inserted after the new R.C.M. 
1107(2)(B)(iii) and reads as follows:
    ``A sentence rehearing, rather than a reassessment, may be more 
appropriate in cases where a significant part of the government's case 
has been dismissed. The convening authority may not take any actions 
inconsistent with directives of superior competent authority. Where 
that directive is unclear, appropriate clarification should be sought 
from the authority issuing the original directive. For purposes of 
R.C.M. 1107(e)(1)(B), the term ``superior competent authority'' does 
not include superior convening authorities but rather, for example, the 
appropriate Judge Advocate General or a court of competent 
jurisdiction.''
    (o) A new Discussion is inserted after the new R.C.M. 
1107(2)(C)(ii) and reads as follows:
    ``For example, if proof of absence without leave was by improperly 
authenticated documentary evidence admitted over the objection of the 
defense, the convening authority may disapprove the findings of guilty 
and sentence and order a rehearing if there is reason to believe that 
properly authenticated documentary evidence or other admissible 
evidence of guilt will be available at the rehearing. On the other 
hand, if no proof of unauthorized absence was introduced at trial, a 
rehearing may not be ordered.''
    (p) A new paragraph is added to the end of the Discussion 
immediately following R.C.M. 1108(b) and reads as follows:
    ``The limitations on suspension of the execution of any sentence or 
part thereof contained in Article 60 apply to a decision by a convening 
authority or other person acting on the case under Article 60, as 
opposed to an individual remitting or suspending a sentence pursuant to 
a different authority, such as Article 74. See R.C.M. 1107(d).''
    (q) A new Discussion section is inserted immediately following the 
new R.C.M. 1109(h)(4) and reads as follows:
    ``The following oath may be given to witnesses:
    ``Do you (swear) (affirm) that the evidence you give shall be the 
truth, the whole truth, and nothing but the truth (so help you God)?''
    The hearing officer is required to include in the record of the 
hearing, at a minimum, a summary of the substance of all testimony.
    All hearing officer notes of testimony and recordings of testimony 
should be preserved until the end of trial.
    If during the hearing any witness subject to the Code is suspected 
of an offense under the Code, the hearing officer should comply with 
the warning requirements of Mil. R. Evid. 305(c), (d), and, if 
necessary, (e).
    Bearing in mind that the probationer and government are responsible 
for preparing and presenting their cases, the hearing officer may ask a 
witness questions relevant to the limited purpose of the hearing. When 
questioning a witness, the hearing officer may not depart from an 
impartial role and become an advocate for either side.''

    Dated: October 14, 2015.
Morgan F. Park,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-26485 Filed 10-16-15; 8:45 am]
BILLING CODE 5001-06-P
Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Notices 63205

an alleged offense committed by the as a result of the matters set forth in a (A) The specification is so defective
prisoner has the right to be reasonably charge or specification under that it substantially misled the accused,
protected from the prisoner.’’ consideration and is named in one of and the military judge finds that, in the
(e) R.C.M. 306(b) is amended to read the specifications under consideration.’’ interest of justice, trial should proceed
as follows: (h) R.C.M. 705(c)(2)(A) is amended to on remaining charges and specifications
‘‘(b) Policy. read as follows: without undue delay;
(1) Generally. Allegations of offenses ‘‘(A) A promise to enter into a (B) The specification is multiplicious
should be disposed of in a timely stipulation of fact concerning offenses to with another specification, is
manner at the lowest appropriate level which a plea of guilty or a confessional unnecessary to enable the prosecution
of disposition listed in subsection (c) of stipulation will be entered;’’ to meet the exigencies of proof through
this rule.’’ (i) A new R.C.M. 705(d)(3) is inserted trial, review, and appellate action, and
(f) A new R.C.M. 306(b)(2) is inserted and reads as follows: should be dismissed in the interest of
and reads as follows: ‘‘(3) Victim consultation. Whenever justice; or
‘‘(2) Victims of a sex-related offense. practicable, prior to the convening (C) The specification fails to state an
(A) For purposes of this subsection, a authority accepting a pretrial agreement offense.’’
‘‘sex-related offense’’ means any the victim shall be provided an (t) R.C.M. 910(f)(4) is amended to read
allegation of a violation of Article 120, opportunity to express views as follows:
120a, 120b, 120c, or 125 or any attempt concerning the pretrial agreement terms ‘‘(4) Inquiry. The military judge shall
thereof under Article 80, UCMJ. and conditions in accordance with inquire to ensure:
(B) Under such regulations as the regulations prescribed by the Secretary (A) That the accused understands the
Secretary concerned may prescribe, for concerned. The convening authority agreement;
alleged sex-related offenses committed shall consider any such views provided (B) That the parties agree to the terms
in the United States, the victim of the prior to accepting a pretrial agreement. of the agreement; and
sex-related offense shall be provided an For purposes of this rule, a ‘‘victim’’ is (C) That the victim was provided an
opportunity to express views as to an individual who is alleged to have opportunity to express views as to the
whether the offense should be suffered direct physical, emotional, or terms and conditions of the agreement
prosecuted by court-martial or in a pecuniary harm as a result of the as provided in R.C.M. 705.’’
civilian court with jurisdiction over the matters set forth in a charge or (u) R.C.M. 1002 is amended to read as
offense. The commander shall consider specification under consideration and is follows:
such views as to the victim’s preference named in one of the specifications ‘‘(a) Generally. Subject to limitations
for jurisdiction, if available, prior to under consideration.’’ in this Manual, the sentence to be
making an initial disposition decision. (j) R.C.M. 705(d)(3) is renumbered as adjudged is a matter within the
For purposes of this rule, ‘‘victim’’ is R.C.M. 705(d)(4). discretion of the court-martial; except
defined as an individual who has (k) R.C.M. 705(d)(4) is renumbered as when a mandatory minimum sentence
suffered direct physical, emotional, or R.C.M. 705(d)(5). is prescribed by the code, a court-
pecuniary harm as a result of the (l) A new R.C.M. 806(b)(2) is inserted martial may adjudge any punishment
commission of an alleged sex-related and reads as follows: authorized in this Manual, including the
offense as defined in subsection (A). ‘‘(2) Right of victim to notice. A victim maximum punishment or any lesser
(C) Under such regulations as the of an alleged offense committed by the punishment, or may adjudge a sentence
Secretary concerned may prescribe, if accused has the right to reasonable, of no punishment.
the victim of an alleged sex-related accurate, and timely notice of court- (b) Unitary Sentencing. Sentencing by
offense expresses a preference for martial proceedings relating to the a court-martial is unitary. The court will
prosecution of the offense in a civilian offense.’’ adjudge a single sentence for all the
(m) R.C.M. 806(b)(2) is renumbered as offenses of which the accused was
court, the convening authority shall
R.C.M. 806(b)(3).
ensure that the civilian authority with found guilty. A court-martial may not
(n) R.C.M. 806(b)(3) is renumbered as
jurisdiction over the offense is notified impose separate sentences for each
R.C.M. 806(b)(4).
of the victim’s preference for civilian (o) R.C.M. 806(b)(4) is renumbered as finding of guilty, but may impose only
prosecution. If the convening authority R.C.M. 806(b)(5). a single, unitary sentence covering all of
learns of any decision by the civilian (p) A new R.C.M. 806(b)(6) is inserted the guilty findings in their entirety.’’
authority to prosecute or not prosecute and reads as follows: (v) R.C.M. 1103(b)(2)(B)(i) is amended
the offense in civilian court, the ‘‘(b)(6) Right of victim to be to read as follows:
convening authority shall ensure the reasonably protected from the accused. ‘‘(i) Any part of the sentence adjudged
victim is notified.’’ A victim of an alleged offense exceeds twelve months confinement,
(g) R.C.M. 405(i)(2)(A) is amended to committed by the accused has the right forfeiture of pay greater than two-thirds
read as follows: to be reasonably protected from the pay per month, or any forfeiture of pay
‘‘(2) Notice to and presence of the accused.’’ for more than twelve months or other
victim(s). (q) R.C.M. 907(b)(1) is amended to punishments that may be adjudged by a
(A) The victim(s) of an offense under read as follows: special court-martial; or’’
the UCMJ has the right to reasonable, ‘‘(1) Nonwaivable grounds. A charge (w) The Note currently located
accurate, and timely notice of a or specification shall be dismissed at immediately following the title of R.C.M.
preliminary hearing relating to the 1107 and prior to R.C.M. 1107(a) is
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any stage of the proceedings if the court-
alleged offense, the right to be martial lacks jurisdiction to try the amended to read as follows:
reasonably protected from the accused, accused for the offense.’’ ‘‘[Note: R.C.M. 1107(b)–(f) apply to
and the reasonable right to confer with (r) R.C.M. 907(b)(1)(A)–(B) is deleted. offenses committed on or after 24 June
counsel for the government during the (s) R.C.M. 907(b)(3) is amended to 2014; however, if at least one offense
preliminary hearing. For the purposes of read as follows: resulting in a finding of guilty in a case
this rule, a ‘‘victim’’ is a person who is ‘‘(3) Permissible grounds. A occurred prior to 24 June 2014, then the
alleged to have suffered a direct specification may be dismissed upon prior version of R.C.M. 1107 applies to
physical, emotional, or pecuniary harm timely motion by the accused if: all offenses in the case, except that

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mandatory minimum sentences under (A) The convening authority may sentence of dismissal, dishonorable
Article 56(b) and applicable rules under disapprove, commute, or suspend, in discharge, or bad-conduct discharge or
R.C.M. 1107(d)(1)(D)–(E) still apply.]’’ whole or in part, any portion of an confinement for more than six months.
(x) R.C.M. 1107(b)(5) is amended to adjudged sentence not explicitly (2) Rehearings permitted.
remove the last sentence starting with prohibited by this rule, to include (A) In general. Subject to subsection
‘‘Nothing’’ and ending with ‘‘sentence.’’ reduction in pay grade, forfeitures of (e)(1) and subsections (e)(2)(B) through
(y) R.C.M. 1107(c) is amended to read pay and allowances, fines, reprimands, (e)(2)(E) of this rule, the convening
as follows: restrictions, and hard labor without authority may in the convening
‘‘(c) Action on findings. Action on the confinement. authority’s discretion order a rehearing.
findings is not required. However, the (B) Except as provided in subsection A rehearing may be ordered as to some
convening authority may take action (d)(1)(C), the convening authority may or all offenses of which findings of
subject to the following limitations: not disapprove, commute, or suspend, guilty were entered and the sentence, or
(1) Where a court-martial includes a in whole or in part, that portion of an as to sentence only.
finding of guilty for an offense listed in adjudged sentence that includes: (B) When the convening authority
(c)(1)(A), the convening authority may (i) confinement for more than six may order a rehearing. The convening
not take the actions listed in subsection months; or authority may order a rehearing:
(c)(1)(B): (ii) dismissal, dishonorable discharge, (i) When taking action on the court-
(A) Offenses or bad-conduct discharge. martial under this rule. Prior to ordering
(i) Article 120(a) or (b), Article 120b, (C) Exceptions a rehearing on a finding, the convening
or Article 125; (i) Trial counsel recommendation.
authority must disapprove the
(ii) Offenses for which the maximum Upon the recommendation of the trial
applicable finding and the sentence and
sentence of confinement that may be counsel, in recognition of the
state the reasons for disapproval of said
adjudged exceeds two years without substantial assistance by the accused in
finding. Prior to ordering a rehearing on
regard to the jurisdictional limits of the the investigation or prosecution of
the sentence, the convening authority
court; or another person who has committed an
must disapprove the sentence.
(iii) Offenses where the adjudged offense, the convening authority or
(ii) When authorized to do so by
sentence for the case includes dismissal, another person authorized to act under
superior competent authority. If the
dishonorable discharge, bad-conduct this section shall have the authority to
convening authority finds a rehearing as
discharge, or confinement for more than disapprove, commute, or suspend the
to any offenses impracticable, the
six months. adjudged sentence, in whole or in part,
convening authority may dismiss those
(B) Prohibited actions even with respect to an offense for
specifications and, when appropriate,
(i) Dismiss a charge or specification which a mandatory minimum sentence
charges.
by setting aside a finding of guilty exists.
(ii) Pretrial agreement. If a pretrial (iii) Sentence reassessment. If a
thereto; or
(ii) Change a finding of guilty to a agreement has been entered into by the superior competent authority has
charge or specification to a finding of convening authority and the accused, as approved some of the findings of guilty
guilty to an offense that is a lesser authorized by R.C.M. 705, the and has authorized a rehearing as to
included offense of the offense stated in convening authority or another person other offenses and the sentence, the
the charge or specification. authorized to act under this section convening authority may, unless
(2) The convening authority may shall have the authority to approve, otherwise directed, reassess the
direct a rehearing in accordance with disapprove, commute, or suspend a sentence based on the approved
subsection (e) of this rule. sentence, in whole or in part, pursuant findings of guilty and dismiss the
(3) For offenses other than those listed to the terms of the pretrial agreement. remaining charges. Reassessment is
in subsection (c)(1)(A): However, if a mandatory minimum appropriate only where the convening
(A) The convening authority may sentence of a dishonorable discharge authority determines that the accused’s
change a finding of guilty to a charge or applies to an offense for which an sentence would have been at least of a
specification to a finding of guilty to an accused has been convicted, the certain magnitude had the prejudicial
offense that is a lesser included offense convening authority or another person error not been committed and the
of the offense stated in the charge or authorized to act under this section may reassessed sentence is appropriate in
specification; or commute the dishonorable discharge to relation to the affirmed findings of
(B) Set aside any finding of guilty and: a bad-conduct discharge pursuant to the guilty.’’
(i) Dismiss the specification and, if terms of the pretrial agreement. (C) Limitations.
appropriate, the charge; or (D) If the convening authority acts to (i) Sentence approved. A rehearing
(ii) Direct a rehearing in accordance disapprove, commute, or suspend, in shall not be ordered if, in the same
with subsection (e) of this rule. whole or in part, the sentence of the action, a sentence is approved.
(4) If the convening authority acts to court-martial for an offense listed in (ii) Lack of sufficient evidence. A
dismiss or change any charge or subsection (c)(1)(A), the convening rehearing may not be ordered as to
specification for an offense, the authority shall provide, at the same findings of guilty when there is a lack
convening authority shall provide, at time, a written explanation of the of sufficient evidence in the record to
the same time, a written explanation of reasons for such action. The written support the findings of guilty of the
offense charged or of any lesser
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the reasons for such action. The written explanation shall be made a part of the
explanation shall be made a part of the record of trial and action thereon.’’ included offense. A rehearing may be
record of trial and action thereon.’’ (aa) R.C.M. 1107(e) is amended to ordered, however, if the proof of guilt
(z) R.C.M. 1107(d) is amended to read read as follows: consisted of inadmissible evidence for
as follows: ‘‘(e) Ordering rehearing or other trial. which there is available an admissible
‘‘(d) Action on the sentence. (1) Rehearings not permitted. A substitute. A rehearing may be ordered
(1) The convening authority shall take rehearing may not be ordered by the as to any lesser offense included in an
action on the sentence subject to the convening authority where the adjudged offense of which the accused was found
following: sentence for the case includes a guilty, provided there is sufficient

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evidence in the record to support the cause is lacking, the hearing officer shall prescribed in subsection (h) of this
lesser included offense. issue a written order directing that the rule.’’
(iii) Rehearing on sentence only. A probationer be released from (ll) A new sentence is added to the
rehearing on sentence only shall not be confinement. If the hearing officer end of R.C.M. 1109(e)(5) and reads as
referred to a different kind of court- determines that there is probable cause follows:
martial from that which made the to believe that the probationer violated ‘‘This record shall include the
original findings. If the convening a condition of suspension, the hearing recommendation, the evidence relied
authority determines a rehearing on officer shall set forth this determination upon, and reasons for making the
sentence is impracticable, the convening in a written memorandum that details decision.’’
authority may approve a sentence of no therein the evidence relied upon and (mm) R.C.M. 1109(e)(6) is amended to
punishment without conducting a reasons for making the decision. The read as follows:
rehearing. hearing officer shall forward the original ‘‘(6) Decision. The special court-
(D) Additional charges. Additional memorandum or release order to the martial convening authority shall
charges may be referred for trial together probationer’s commander and forward a review the record produced by and the
with charges as to which a rehearing has copy to the probationer and the officer recommendation of the person who
been directed. in charge of the confinement facility.’’ conducted the vacation proceeding,
(E) Lesser included offenses. If at a (ff) A new sentence is added to the decide whether there is probable cause
previous trial the accused was convicted end of R.C.M. 1109(d)(1)(A) and reads to believe that the probationer violated
of a lesser included offense, a rehearing as follows: a condition of the probationer’s
may be ordered only as to that included ‘‘The purpose of the hearing is for the suspension, and, if so, decide whether
offense or as to an offense included in hearing officer to determine whether to vacate the suspended sentence. If the
that found. If, however, a rehearing is there is probable cause to believe that officer exercising jurisdiction decides to
ordered improperly on the original the probationer violated a condition of vacate the suspended sentence, that
offense charged and the accused is the probationer’s suspension.’’ officer shall prepare a written statement
convicted of that offense at the (gg) R.C.M. 1109(d)(1)(C) is amended of the evidence relied on and the
rehearing, the finding as to the lesser to read as follows: reasons for vacating the suspended
included offense of which the accused ‘‘(C) Hearing. The procedure for the sentence.’’
was convicted at the original trial may vacation hearing shall follow that (nn) A new sentence is added to the
nevertheless be approved. prescribed in subsection (h) of this end of R.C.M. 1109(g)(1) and reads as
(3) ‘‘Other’’ trial. The convening or rule.’’ follows:
higher authority may order an ‘‘other’’ (hh) A new sentence is added to the ‘‘The purpose of the hearing is for the
trial if the original proceedings were end of R.C.M. 1109(d)(1)(D) and reads hearing officer to determine whether
invalid because of lack of jurisdiction or as follows: there is probable cause to believe that
failure of a specification to state an ‘‘This record shall include the the probationer violated the conditions
offense. The authority ordering an recommendation, the evidence relied of the probationer’s suspension.’’
‘‘other’’ trial shall state in the action the upon, and reasons for making the (oo) R.C.M. 1109(g)(3) is amended to
basis for declaring the proceedings decision.’’ read as follows:
invalid.’’ (ii) R.C.M. 1109(d)(2)(A) is amended ‘‘(3) Hearing. The procedure for the
(bb) The Note currently located to read as follows: vacation hearing shall follow that
immediately following the title of R.C.M. ‘‘(A) In general. The officer exercising prescribed in subsection (h) of this
1108(b) and prior to the first line, ‘‘The general court-martial jurisdiction over rule.’’
convening authority may. . .’’ is the probationer shall review the record (pp) A new sentence is added to the
amended to read as follows: produced by and the recommendation end of R.C.M. 1109(g)(5) and reads as
‘‘[Note: R.C.M. 1108(b) applies to of the officer exercising special court- follows:
offenses committed on or after 24 June martial jurisdiction over the ‘‘This record shall include the
2014; however, if at least one offense in probationer, decide whether there is recommendation, the evidence relied
a case occurred prior to 24 June 2014, probable cause to believe that the upon, and reasons for making the
then the prior version of R.C.M. 1108(b) probationer violated a condition of the decision.’’
applies to all offenses in the case.]’’ probationer’s suspension, and, if so, (qq) R.C.M. 1109(g)(6) is amended to
(cc) R.C.M. 1109(a) is amended to decide whether to vacate the suspended read as follows:
read as follows: sentence. If the officer exercising ‘‘(6) Decision. A commander with
l‘‘(a) In general. Suspension of general court-martial jurisdiction authority to vacate the suspension shall
execution of the sentence of a court- decides to vacate the suspended review the record produced by and the
martial may be vacated for violation of sentence, that officer shall prepare a recommendation of the person who
any condition of the suspension as written statement of the evidence relied conducted the vacation proceeding,
provided in this rule.’’ on and the reasons for vacating the decide whether there is probable cause
(dd) R.C.M. 1109(c)(4)(A) is amended suspended sentence.’’ to believe that the probationer violated
to read as follows: (jj) A new sentence is added to the a condition of the probationer’s
‘‘(A) Rights of probationer. Before the end of R.C.M. 1109(e)(1) and reads as suspension, and, if so, decide whether
preliminary hearing, the probationer follows: to vacate the suspended sentence. If the
officer exercising jurisdiction decides to
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shall be notified in writing of:’’ ‘‘The purpose of the hearing is for the
(ee) R.C.M. 1109(c)(4)(C) is amended hearing officer to determine whether vacate the suspended sentence, that
to read as follows: there is probable cause to believe that officer shall prepare a written statement
‘‘(C) Decision. The hearing officer the probationer violated the conditions of the evidence relied on and the
shall determine whether there is of the probationer’s suspension.’’ reasons for vacating the suspended
probable cause to believe that the (kk) R.C.M. 1109(e)(3) is amended to sentence.’’
probationer violated the conditions of read as follows: (rr) A new R.C.M. 1109(h) is inserted
the probationer’s suspension. If the ‘‘(3) Hearing. The procedure for the and reads as follows:
hearing officer determines that probable vacation hearing shall follow that ‘‘(h) Hearing procedure

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63210 Federal Register / Vol. 80, No. 201 / Monday, October 19, 2015 / Notices

or hoax designed or intended to cause States v. Gutierrez, 11 M.J. 122, 123 Illinois v. Krull, 480 U.S. 340 (1987),
panic or public fear.’’ (C.M.A. 1981). See generally Jackson v. where the Supreme Court held that the
Section 4. Appendix 21, Analysis of Taylor, 353 U.S. 569 (1957).’’ exclusionary rule is inapplicable to
Rules for Courts-Martial is amended as (g) Rule 1103(b) is amended by evidence obtained by an officer acting in
follows: inserting the following immediately objectively reasonable reliance on a
(a) Rule 306 is amended by inserting before the paragraph beginning with statute later held violative of the Fourth
the following at the end: ‘‘Subsection 2(C)’’: Amendment.’’
‘‘2016 Amendment: R.C.M. 306(b)(2) ‘‘2016 Amendment: R.C.M. (c) Rule 504 is amended by inserting
was added to implement Section 534(b) 1103(b)(2)(B)(i) was amended to align the following at the end:
of the National Defense Authorization the requirement for a verbatim ‘‘2016 Amendment: References to
Act for Fiscal Year 2015, P.L. 113–291, transcript with special courts-martial gender were removed throughout the
19 December 2014.’’ jurisdictional maximum punishments.’’ Rule. Rule 504(c)(1) was amended to
(b) Rule 401 is amended by inserting (h) Rule 1108 is amended by inserting make clear that the exception only
the following at the end: the following at the end: applies to confidential communications.
‘‘2016 Amendment: The first ‘‘2016 Amendment: The R.C.M. The definition of ‘‘confidential
paragraph of the R.C.M. 401(c) 1107(b) Discussion was amended to communications’’ was moved to Rule
Discussion was added in light of the clarify that the limitations contained in 504(d).’’
recommendation in the Response Article 60 apply to the convening (d) Rule 801 is amended by inserting
Systems to Adult Sexual Assault Crimes authority or other commander acting the following at the end:
Panel’s (RSP) June 2014 report for trial under Article 60.’’ ‘‘2016 Amendment. Rule
counsel to convey victims’ preferences (i) Rule 1109 is amended by inserting
801(d)(1)(B)(ii) was added in accordance
as to disposition to the convening the following at the end:
‘‘2016 Amendment: R.C.M. 1109 was with an identical change to Federal Rule
authority. This discussion implements of Evidence 801(d)(1)(B). The
this recommendation by allowing revised in light of the National Defense
Authorization Act for Fiscal Year 2014, amendment retains the requirement set
Service regulations to determine the forth in Tome v. United States, 513 U.S.
appropriate authority responsible for P.L. 113–66, 26 December 2013,
amendments to Article 32 and the 150 (1995): that under Rule 801(d)(1)(B),
communicating the victims’ views to the a consistent statement offered to rebut a
convening authority. The RSP was a resulting changes to R.C.M. 405 as
promulgated by Executive Order 13696. charge of recent fabrication of improper
congressionally mandated panel tasked influence or motive must have been
to conduct an independent review and It was further revised to clarify
throughout the rule that the purpose of made before the alleged fabrication or
assessment of the systems used to improper inference or motive arose. The
investigate, prosecute, and adjudicate vacation hearings is to determine
whether there is probable cause that the intent of the amendment is to extend
crimes involving adult sexual assault substantive effect to consistent
and related offenses.’’ probationer violated any condition of
the probationer’s suspension.’’ statements that rebut other attacks on a
(c) Rule 604 is amended by inserting
Section 5. Appendix 22, Analysis of witness—such as the charges of
the following at the end:
‘‘2016 Amendment: The fourth the Military Rules of Evidence is inconsistency or faulty memory. The
paragraph of the R.C.M. 604(a) amended as follows: amendment does not change the
Discussion was added to align the (a) Rule 304(c) is amended by traditional and well-accepted limits on
Discussion with R.C.M. 705(d)(3).’’ inserting the following at the end: bringing prior consistent statements
(d) Rule 907 is amended inserting the ‘‘2016 Amendment: This change was before the factfinder for credibility
following at the end: adopted to bring military practice in purposes. It does not allow
‘‘2016 Amendment: R.C.M. 907(b) was line with federal practice. See Opper v. impermissible bolstering of a witness.
amended in light of United States v. United States, 348 U.S. 84 (1954), and As before, prior consistent statements
Humphries, 71 M.J. 209 (C.A.A.F. 2012), Smith v. United States, 348 U.S. 147 under the amendment may be brought
where the court held that a defective (1954).’’ before the factfinder only if they
specification does not constitute (b) Rule 311 is amended by inserting properly rehabilitate a witness whose
structural error or warrant automatic the following at the end: credibility has been attacked. As before,
dismissal.’’ ‘‘2016 Amendment: Rule 311(a)(3) to be admissible for rehabilitation, a
(e) Rule 910 is amended by inserting was added to incorporate the balancing prior consistent statement must satisfy
the following at the end: test limiting the application of the the strictures of Rule 403. As before, the
‘‘2016 Amendment: R.C.M. exclusionary rule set forth in Herring v. trial court has ample discretion to
910(f)(4)(C) was added in light of the United States, 555 U.S. 135 (2009), exclude prior consistent statements that
recommendation in the Response where the Supreme Court held that to are cumulative accounts of an event.
Systems to Adult Sexual Assault Crimes trigger the exclusionary rule, ‘‘the The amendment does not make any
Panel’s (RSP) June 2014 report for deterrent effect of suppression must be consistent statement admissible that
victims to be consulted regarding a substantial and outweigh any harm to was not admissible previously—the
pretrial agreement. The RSP was a the justice system.’’ Id. at 147; see also only difference is that prior consistent
congressionally mandated panel tasked United States v. Wicks, 73 M.J. 93, 104 statements otherwise admissible for
to conduct an independent review and (C.A.A.F. 2014) (‘‘The exclusionary rule rehabilitation are now admissible
applies only where it results in substantively as well.’’
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assessment of the systems used to
investigate, prosecute, and adjudicate appreciable deterrence for future Fourth (e) The fourth paragraph of Rule
crimes involving adult sexual assault Amendment violations and where the 803(6), beginning with, ‘‘Paragraph 144
and related offenses.’’ benefits of deterrence must outweigh d’’ is amended to read as follows:
(f) Rule 1002 is amended by inserting the costs’’ (internal quotation marks ‘‘Paragraph 144 d prevented a record
the following at the end: omitted)). ‘‘made principally with a view to
‘‘2016 Amendment: R.C.M. 1002(b) Rule 311(c)(4) was added to adopt the prosecution, or other disciplinary or
was added to clarify the military’s expansion of the ‘‘good faith’’ exception legal action;’’ from being admitted as a
unitary sentencing concept. See United to the exclusionary rule set forth in business record.’’

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(f) Rule 803(6) is amended by ‘‘2016 Amendment: Rule 803(10) was inserting the following new paragraph at
inserting the following at the end: modified based on the amendment to the beginning of the Discussion:
‘‘2016 Amendment: Rule 803(6)(E) Fed. R. Evid. 803(10), effective 1 ‘‘When an alleged offense involves a
was modified based on the amendment December 2013. The amendment of the victim, the victim should, whenever
to Fed. R. Evid. 803(6), effective 1 Federal Rules was in response to practicable, be provided an opportunity
December 2014. It clarifies that if the Melendez-Diaz v. Massachusetts, 557 to express views regarding the
proponent of a record has established U.S. 305 (2009). The Melendez-Diaz disposition of the charges. The
the requirements of the exception, then Court declared that a testimonial commander with authority to dispose of
the burden is on the opponent to show certificate could be admitted if the charges should consider such views of
a lack of trustworthiness. In meeting its accused is given advance notice and the victim prior to deciding how to
burden, the opponent is not necessarily does not timely demand the presence of dispose of the charges and should
required to introduce affirmative the official who prepared the certificate. continue to consider the views of the
evidence of untrustworthiness. It is The amendment to Rule 803(10) is taken victim until final disposition of the case.
appropriate to impose the burden of largely from the amendment to the Fed. A ‘‘victim’’ is an individual who is
proving untrustworthiness on the R. Evid. 803(10) but has been modified alleged to have suffered direct physical,
opponent, as the basic admissibility to adapt it to the military environment.’’ emotional, or pecuniary harm as a result
requirements are sufficient to establish Section 6. Appendix 23, Analysis of of the matters set forth in a charge or
a presumption that the record is Punitive Articles is amended as follows: specification under consideration and is
reliable.’’ Paragraph 110, Article 134—Threat, named in one of the specifications
(g) Rule 803(7) is amended by communicating, is amended by under consideration.’’
inserting the following at the end: inserting the following at the end: (d) The Discussion immediately after
‘‘2016 Amendment: Rule 803(7)(C) ‘‘2016 Amendment: Subparagraph (c) R.C.M. 604(a) is amended by inserting
was modified based on the amendment was amended in light of Elonis v. the following new paragraph between
to Fed. R. Evid. 803(7), effective 1 United States, 135 S. Ct. 2001 (2015). the third and fourth paragraphs:
December 2014. It clarifies that if the Section 7. The Discussion to Part II of ‘‘When an alleged offense involves a
proponent has established the stated the Manual for Courts-Martial, United victim, the victim should, whenever
requirements of the exception then the States, is amended as follows: practicable, be provided an opportunity
burden is on the opponent to show a (a) A new Discussion is inserted after to express views regarding the
lack of trustworthiness.’’ R.C.M. 306(b)(2)(B) and before R.C.M. withdrawal of any charges or
(h) Rule 803(8) is amended by 306(b)(2)(C) and reads as follows: specifications in which the victim is
inserting the following at the end: ‘‘Any preferences as to disposition named. The convening authority or
‘‘2016 Amendment: Rule 803(8)(B) expressed by the victim regarding other individual authorized to act on the
was modified based on the amendment jurisdiction, while not binding, should charges should consider such views of
to Fed. R. Evid. 803(8)(B), effective 1 be considered by the cognizant the victim prior to withdrawing said
December 2014. The amendment commander prior to making initial charges or specifications and should
clarifies that if the proponent has disposition. continue to consider the views of the
established that the record meets the The cognizant commander should victim until final disposition of the case.
stated requirements of the exception continue to consider the views of the A ‘‘victim’’ is an individual who is
then the burden is on the opponent to victim as to jurisdiction until final alleged to have suffered direct physical,
show a lack of trustworthiness as public disposition of the case.’’ emotional, or pecuniary harm as a result
records have justifiably carried a (b) Section (H)(ii) of the Discussion of the matters set forth in a charge or
presumption of reliability. The immediately following 307(c)(3) is specification under consideration and is
opponent, in meeting its burden is not amended to read as follows: named in one of the specifications
necessarily required to introduce ‘‘(ii) Victim. In the case of an offense under consideration.’’
affirmative evidence of against the person or property of a (e) A new Discussion section is
untrustworthiness. A determination of person, the first name, middle initial, inserted immediately following R.C.M.
untrustworthiness necessarily depends and last name or first, middle, and last 705(c)(2)(C) and reads as follows:
on the circumstances.’’ initials of such person should be ‘‘A promise to provide restitution
(i) Rule 803(8) is amended by deleting alleged, if known. If the name of the includes restitution to a victim of an
the following: victim is unknown, a general physical alleged offense committed by the
‘‘Rule 803(8)(C) makes admissible, but description may be used. If this cannot accused in accordance with Article
only against the Government, ‘‘factual be done, the victim may be described as 6b(a)(6).’’
findings resulting from an investigation ‘‘a person whose name is unknown.’’ (f) The Discussion section following
made pursuant to authority granted by Military rank or grade should be alleged, R.C.M. 907(b)(1)(B) is deleted.
law, unless the sources of information and must be alleged if an element of the (g) The Discussion section following
or other circumstances indicate lack of offense, as in an allegation of R.C.M. 910(f)(4) is amended to read as
trustworthiness.’’ This provision will disobedience of the command of a follows:
make factual findings made, for superior officer. If the person has no ‘‘If the plea agreement contains any
example, by an Article 32 Investigating military position, it may otherwise be unclear or ambiguous terms, the
Officer or by a Court of Inquiry necessary to allege the status as in an military judge should obtain
admissible on behalf of an accused. allegation of using provoking words clarification from the parties. If there is
asabaliauskas on DSK5VPTVN1PROD with NOTICES

Because the provision applies only to toward a person subject to the code. See doubt about the accused’s
‘‘factual findings,’’ great care must be paragraph 42 of Part IV. Counsel for the understanding of any terms in the
taken to distinguish such factual government should be aware that if agreement, the military judge should
determinations from opinions, initials of victims are used, additional explain those terms to the accused. See
recommendations, and incidental notice of the identity of victims will be also subsection (e) of this rule. The
inferences.’’ required.’’ victim is not a party to the agreement.’’
(j) Rule 803(10) is amended by (c) The Discussion immediately (h) The Discussion immediately after
inserting the following at the end: following R.C.M. 401(c) is amended by the sole paragraph in R.C.M. 1002 is

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Document Created: 2015-12-15 08:36:09
Document Modified: 2015-12-15 08:36:09
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Notice of Proposed Amendments to the Manual for Courts-Martial, United States (2012 ed.) and Notice of Public Meeting.
Dates		Comments on the proposed changes must be received no later than December 18, 2015. A public meeting for comments will be held on November 5, 2015, at 10 a.m. in the United States Court of Appeals for the Armed Forces building, 450 E Street NW., Washington DC 20442-0001.
Contact		Captain Harlye S. Carlton, USMC, Executive Secretary, JSC, (703) 693-9299, [email protected] The JSC Web site is located at http://jsc.defense.gov.
FR Citation		80 FR 63204
80 FR 63204 - Manual for Courts-Martial; Proposed Amendments

DEPARTMENT OF DEFENSEOffice of the Secretary

Federal Register Volume 80, Issue 201 (October 19, 2015)

DEPARTMENT OF DEFENSE
Office of the Secretary
