83 FR 23907 - Manual for Courts-Martial; Proposed Amendments
DEPARTMENT OF DEFENSE
Office of the Secretary Federal Register Volume 83, Issue 100 (May 23, 2018)
Office of the Secretary
Federal Register Volume 83, Issue 100 (May 23, 2018)
| Page Range | 23907-23908 | |
| FR Document | 2018-09949 |
[Federal Register Volume 83, Number 100 (Wednesday, May 23, 2018)] [Notices] [Pages 23907-23908] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-09949] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DoD-2018-OS-0024] Manual for Courts-Martial; Proposed Amendments AGENCY: Joint Service Committee on Military Justice (JSC), Department of Defense. ACTION: Notice of response to public comments on proposed amendments to the Manual for Courts-Martial, United States (2016 ed.). ----------------------------------------------------------------------- SUMMARY: The Joint Service Committee on Military Justice (JSC) is publishing the response to public comments concerning amendments to the Manual for Courts-Martial, United States (MCM). These amendments include provisions implementing the Military Justice Act of 2016 and subsequent amendments necessitated by follow-on legislation. The changes concern the rules of procedure and evidence applicable in trials by court-martial, nonjudicial punishment proceedings, and the punitive articles of the Uniform Code of Military Justice. Also included is a proposed revision of Appendix 12A of the Manual for Courts-Martial concerning lesser included offenses. 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. FOR FURTHER INFORMATION CONTACT: LT Alexandra Nica, JAGC, USN, (202) 685-7058 or [email protected]. SUPPLEMENTARY INFORMATION: Background On July 11, 2017 (79 FR 59938-59959), the JSC published a Notice of Proposed Amendments concerning procedure and evidence applicable in trials by court-martial, non-judicial punishment proceedings, and the punitive articles of the Uniform Code of Military Justice as amended by the Military Justice Act of 2016, Division E of the National Defense Authorization Act for Fiscal Year 2017 and follow-on changes made by the National Defense Authorization Act for Fiscal Year 2018. The Notice also included a proposed revision of Appendix 12A of the Manual for Courts-Martial concerning lesser included offenses and a Notice of Public Meeting to receive comments on these proposals. The public meeting was held on August 3, 2017. Two members of the public provided oral comments at the public meeting, and both members of the public also submitted written comments electronically. Several additional written comments were received electronically. All comments were considered by the JSC. Public Comments Comments and materials received from the public are available under Docket ID Number DOD-2017-OS-0032, and at the following link https://www.regulations.gov/docket?D=DOD-2017-OS-0032. Discussion of Comments and Changes The JSC considered each public comment and made some modifications to the proposed amendments accordingly. a. Several comments concerning orthography, grammar, and syntax were received and reviewed, and corrections were made throughout the Manual for Courts-Martial. b. The extensive nature of the proposed changes necessitated the reproduction, in full, of Parts I-V of the Manual for Courts-Martial and, although not a part of the proposed Executive Order or issued by the President, the Analyses and Discussions were set forth immediately following the provisions and paragraphs to which they pertained to facilitate review and comment on the proposed amendments. Additionally, Appendix 2.1 provided proposed non-binding guidance to be issued by the Secretary of Defense, in consultation with the Secretary of Homeland Security, pursuant to Article 33 (Disposition Guidance) of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 833. Comments were received suggesting changes to Analyses, Discussions, and the Appendices. These comments are being considered by the JSC and the Department of Defense in the preparation of the supplementary materials. c. The Department of Defense published several proposals concerning impaneling and excusing excess members and specifically solicited comments as to the optimal rule for removing excess members consistent with Article 36 of the Uniform Code of Military Justice. Several comments were received regarding the different proposals. Proposal #1, providing for the random assignment of numbers to remaining members by the military judge, was incorporated. d. A comment proposing a change to R.C.M. 804 to ensure that court- martial attendance by the accused constitutes the accused's appointed place of duty for purposes of pay and allowance was received. The comment highlighted that multiple courts had granted confinement credit for accused who did not receive normal pay and allowances or had to pay for their own travel and housing during the pendency of the court- martial. The JSC has adopted this proposal as follows: --R.C.M. 804(a) is amended to read as follows: ``(a) Presence required. The accused shall be present at the arraignment, the time of the plea, every stage of the trial including sessions conducted under Article 39(a), voir dire and challenges of [[Page 23908]] members, the return of the findings, presentencing proceedings, and post-trial sessions, if any, except as otherwise provided by this rule. Attendance at these proceedings shall constitute the accused's appointed place of duty and, with respect to the accused's travel allowances, none of these proceedings shall constitute disciplinary action. This does not in any way limit authority to implement restriction, up to and including confinement, as necessary in accordance with R.C.M. 304 or R.C.M. 305.'' e. A comment was received proposing changes to R.C.M. 703 and R.C.M. 405 to incorporate Fed. R. Crim. Proc. 17 which was created in 2008 to comply with the requirements of the Federal Crime Victims' Rights Act, (``FCVRA''), codified at 18 U.S.C. 3771. The JSC has adopted this proposal in part as follows: --R.C.M. 703(g)(3)(C)(2) is new and reads as follows: ``(2) Subpoenas for personal or confidential information about a victim. After preferral, a subpoena requiring the production of personal or confidential information about a victim named in a specification may be served on an individual or organization by those authorized to issue a subpoena under subparagraph (D) or with the consent of the victim. Before issuing a subpoena under this subparagraph and unless there are exceptional circumstances, the victim must be given notice so that the victim can move for relief under subparagraph (g)(3)(G) or otherwise object.'' f. A comment was received suggesting the addition of a new M.R.E. 501(e) limiting the Government to privileges identified in M.R.E. 505, 506, and 507. These suggested changes were not incorporated; however, the JSC reviewed M.R.E. 505, 506, and 507 and made the following proposed change to M.R.E. 506. --M.R.E. 506(b) is amended to read as follows: ``(b) Scope. ``Government information'' includes official communication and documents and other information within the custody or control of the Federal Government. This rule does not apply to the identity of an informant (Mil. R. Evid. 507).'' g. Comments concerning the proposed changes to M.R.E. 412(c)(3) were received. The JSC considered all comments. As prescribed by the President, upon the effective date of the Executive Order, M.R.E. 412(c)(3) will provide: ``(3) If the military judge determines on the basis of the hearing described in paragraph (2) of this subdivision that the evidence that the accused seeks to offer is relevant for a purpose under subdivision (b)(1) or (2) of this rule and that the probative value of such evidence outweighs the danger of unfair prejudice to the victim's privacy, or that the evidence is described by subdivision (b)(3) of this rule, such evidence shall be admissible under this rule to the extent an order made by the military judge specifies evidence that may be offered and areas with respect to which the victim may be examined or cross-examined. Any evidence introduced under this rule is subject to challenge under Mil. R. Evid. 403.'' h. Comments were received suggesting additional changes to, R.C.M. 1103A in Annex 1 and R.C.M. 103, 110, 305, 405, 701, 705, 809, 910, 1109, 1114, 1202 in Annex 2. These suggested changes were not incorporated. i. Comments suggesting changes to M.R.E. 505 were received. Suggested changes were not incorporated. j. Comments were received suggesting the addition of new punitive articles, elimination of certain defenses, and changes to the terminal element of Article 134. These suggested changes were not incorporated. Dated: May 7, 2018. Shelly E. Finke, Alternate OSD Federal Register, Liaison Officer, Department of Defense. [FR Doc. 2018-09949 Filed 5-22-18; 8:45 am] BILLING CODE 5001-06-P
![Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices 23907
Parties Excluded from Federal (MCM). These amendments include Discussion of Comments and Changes
Procurement and Nonprocurement’’ as provisions implementing the Military The JSC considered each public
being ineligible for award of Defense Justice Act of 2016 and subsequent comment and made some modifications
subcontracts because it is owned or amendments necessitated by follow-on to the proposed amendments
controlled by the government of a legislation. The changes concern the accordingly.
country that is a state sponsor of rules of procedure and evidence a. Several comments concerning
terrorism; applicable in trials by court-martial, orthography, grammar, and syntax were
• Evaluate claims of indemnification nonjudicial punishment proceedings, received and reviewed, and corrections
for losses or damages occurring under a and the punitive articles of the Uniform were made throughout the Manual for
research and development contract; and Code of Military Justice. Also included Courts-Martial.
• Keep track of radio frequencies on is a proposed revision of Appendix 12A b. The extensive nature of the
electronic equipment under research of the Manual for Courts-Martial proposed changes necessitated the
and development contracts so that the concerning lesser included offenses. reproduction, in full, of Parts I–V of the
user does not override or interfere with The approval authority for these Manual for Courts-Martial and, although
the use of that frequency by another changes is the President. These not a part of the proposed Executive
user. proposed changes have not been Order or issued by the President, the
OMB Desk Officer: Ms. Jasmeet coordinated within the Department of Analyses and Discussions were set forth
Seehra. Defense under DoD Directive 5500.01, immediately following the provisions
Comments and recommendations on ‘‘Preparing, Processing and and paragraphs to which they pertained
the proposed information collection Coordinating Legislation, Executive to facilitate review and comment on the
should be sent to Ms. Jasmeet Seehra, Orders, Proclamations, Views Letters, proposed amendments. Additionally,
DoD Desk Officer, at Oira_submission@ and Testimony,’’ June 15, 2007, and do Appendix 2.1 provided proposed non-
omb.eop.gov. Please identify the not constitute the official position of the binding guidance to be issued by the
proposed information collection by DoD Department of Defense, the Military Secretary of Defense, in consultation
Desk Officer and the Docket ID number Departments, or any other Government with the Secretary of Homeland
and title of the information collection. agency. Security, pursuant to Article 33
You may also submit comments, (Disposition Guidance) of the Uniform
FOR FURTHER INFORMATION CONTACT: LT
identified by docket number and title, Code of Military Justice (UCMJ), 10
Alexandra Nica, JAGC, USN, (202) 685–
by the following method: U.S.C. 833. Comments were received
7058 or alexandra.nica@navy.mil.
Federal eRulemaking Portal: http:// suggesting changes to Analyses,
www.regulations.gov. Follow the SUPPLEMENTARY INFORMATION: Discussions, and the Appendices. These
instructions for submitting comments. Background comments are being considered by the
DoD Clearance Officer: Mr. Frederick JSC and the Department of Defense in
C. Licari. On July 11, 2017 (79 FR 59938– the preparation of the supplementary
Written requests for copies of the 59959), the JSC published a Notice of materials.
information collection proposal should Proposed Amendments concerning c. The Department of Defense
be sent to Mr. Licari at: WHS/ESD procedure and evidence applicable in published several proposals concerning
Directives Division, 4800 Mark Center trials by court-martial, non-judicial impaneling and excusing excess
Drive, 2nd Floor, East Tower, Suite punishment proceedings, and the members and specifically solicited
03F09, Alexandria, VA 22350–3100. punitive articles of the Uniform Code of comments as to the optimal rule for
Military Justice as amended by the removing excess members consistent
Amy G. Williams,
Military Justice Act of 2016, Division E with Article 36 of the Uniform Code of
Deputy, Defense Acquisition Regulations
of the National Defense Authorization Military Justice. Several comments were
System.
Act for Fiscal Year 2017 and follow-on received regarding the different
[FR Doc. 2018–10905 Filed 5–22–18; 8:45 am]
changes made by the National Defense proposals. Proposal #1, providing for
BILLING CODE 5001–06–P
Authorization Act for Fiscal Year 2018. the random assignment of numbers to
The Notice also included a proposed remaining members by the military
revision of Appendix 12A of the Manual judge, was incorporated.
DEPARTMENT OF DEFENSE d. A comment proposing a change to
for Courts-Martial concerning lesser
Office of the Secretary included offenses and a Notice of Public R.C.M. 804 to ensure that court-martial
Meeting to receive comments on these attendance by the accused constitutes
[Docket ID: DoD–2018–OS–0024] proposals. The public meeting was held the accused’s appointed place of duty
on August 3, 2017. Two members of the for purposes of pay and allowance was
Manual for Courts-Martial; Proposed public provided oral comments at the received. The comment highlighted that
Amendments public meeting, and both members of multiple courts had granted
AGENCY: Joint Service Committee on the public also submitted written confinement credit for accused who did
Military Justice (JSC), Department of comments electronically. Several not receive normal pay and allowances
Defense. additional written comments were or had to pay for their own travel and
received electronically. All comments housing during the pendency of the
ACTION: Notice of response to public
were considered by the JSC. court-martial. The JSC has adopted this
comments on proposed amendments to
proposal as follows:
the Manual for Courts-Martial, United Public Comments
daltland on DSKBBV9HB2PROD with NOTICES
States (2016 ed.). —R.C.M. 804(a) is amended to read as
Comments and materials received follows:
SUMMARY: The Joint Service Committee from the public are available under ‘‘(a) Presence required. The accused
on Military Justice (JSC) is publishing Docket ID Number DOD–2017–OS– shall be present at the arraignment, the
the response to public comments 0032, and at the following link https:// time of the plea, every stage of the trial
concerning amendments to the Manual www.regulations.gov/docket?D=DOD- including sessions conducted under
for Courts-Martial, United States 2017-OS-0032. Article 39(a), voir dire and challenges of
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![23908 Federal Register / Vol. 83, No. 100 / Wednesday, May 23, 2018 / Notices
members, the return of the findings, the evidence that the accused seeks to who are eminent authorities in the
presentencing proceedings, and post- offer is relevant for a purpose under fields of national defense, geopolitical
trial sessions, if any, except as otherwise subdivision (b)(1) or (2) of this rule and and national security affairs, WMD,
provided by this rule. Attendance at that the probative value of such nuclear physics, chemistry, and biology.
these proceedings shall constitute the evidence outweighs the danger of unfair Members who are not full-time or
accused’s appointed place of duty and, prejudice to the victim’s privacy, or that permanent part-time Federal officers or
with respect to the accused’s travel the evidence is described by subdivision employees are appointed as experts or
allowances, none of these proceedings (b)(3) of this rule, such evidence shall be consultants pursuant to 5 U.S.C. 3109 to
shall constitute disciplinary action. This admissible under this rule to the extent serve as special government employee
does not in any way limit authority to an order made by the military judge members. Members who are full-time or
implement restriction, up to and specifies evidence that may be offered permanent part-time Federal officers or
including confinement, as necessary in and areas with respect to which the employees are appointed pursuant to 41
accordance with R.C.M. 304 or R.C.M. victim may be examined or cross- CFR 102–3.130(a) to serve as regular
305.’’ examined. Any evidence introduced government employee members. Each
e. A comment was received proposing under this rule is subject to challenge member is appointed to provide advice
changes to R.C.M. 703 and R.C.M. 405 under Mil. R. Evid. 403.’’ on behalf of the Government on the
to incorporate Fed. R. Crim. Proc. 17 h. Comments were received basis of their best judgment without
which was created in 2008 to comply suggesting additional changes to, R.C.M. representing any particular point of
with the requirements of the Federal 1103A in Annex 1 and R.C.M. 103, 110, view and in a manner that is free from
Crime Victims’ Rights Act, (‘‘FCVRA’’), 305, 405, 701, 705, 809, 910, 1109, 1114, conflict of interest. Except for
codified at 18 U.S.C. 3771. The JSC has 1202 in Annex 2. These suggested reimbursement of official Committee-
adopted this proposal in part as follows: changes were not incorporated. related travel and per diem, members
—R.C.M. 703(g)(3)(C)(2) is new and i. Comments suggesting changes to serve without compensation. The DoD,
reads as follows: M.R.E. 505 were received. Suggested as necessary and consistent with the
‘‘(2) Subpoenas for personal or changes were not incorporated. Committee’s mission and DoD policies
confidential information about a victim. j. Comments were received suggesting and procedures, may establish
After preferral, a subpoena requiring the the addition of new punitive articles, subcommittees, task forces, or working
production of personal or confidential elimination of certain defenses, and groups to support the Committee, and
information about a victim named in a changes to the terminal element of all subcommittees must operate under
specification may be served on an Article 134. These suggested changes the provisions of FACA and the
were not incorporated. Government in the Sunshine Act.
individual or organization by those
Dated: May 7, 2018. Subcommittees will not work
authorized to issue a subpoena under
independently of the Committee and
subparagraph (D) or with the consent of Shelly E. Finke,
must report all recommendations and
the victim. Before issuing a subpoena Alternate OSD Federal Register, Liaison
advice solely to the Committee for full
under this subparagraph and unless Officer, Department of Defense.
deliberation and discussion.
there are exceptional circumstances, the [FR Doc. 2018–09949 Filed 5–22–18; 8:45 am]
Subcommittees, task forces, or working
victim must be given notice so that the BILLING CODE 5001–06–P
groups have no authority to make
victim can move for relief under
decisions and recommendations,
subparagraph (g)(3)(G) or otherwise
DEPARTMENT OF DEFENSE verbally or in writing, on behalf of the
object.’’
f. A comment was received suggesting Committee. No subcommittee or any of
the addition of a new M.R.E. 501(e) Office of the Secretary its members can update or report,
limiting the Government to privileges verbally or in writing, directly to the
identified in M.R.E. 505, 506, and 507. Charter Renewal of Department of DoD or any Federal officers or
These suggested changes were not Defense Federal Advisory Committees employees. The Committee’s DFO,
incorporated; however, the JSC pursuant to DoD policy, must be a full-
AGENCY:Department of Defense.
reviewed M.R.E. 505, 506, and 507 and time or permanent part-time DoD
Renewal of Federal Advisory
ACTION: employee, and must be in attendance for
made the following proposed change to Committee.
M.R.E. 506. the duration of each and every
SUMMARY: The Department of Defense Committee/subcommittee meeting. The
—M.R.E. 506(b) is amended to read as
(DoD) is publishing this notice to public or interested organizations may
follows:
announce that it is renewing the charter submit written statements to the
‘‘(b) Scope. ‘‘Government Committee membership about the
information’’ includes official for the Threat Reduction Advisory
Committee (‘‘the Committee’’). Committee’s mission and functions.
communication and documents and Such statements may be submitted at
other information within the custody or FOR FURTHER INFORMATION CONTACT: Jim
Freeman, Advisory Committee any time or in response to the stated
control of the Federal Government. This agenda of planned Committee meetings.
rule does not apply to the identity of an Management Officer for the Department
of Defense, 703–692–5952. All written statements must be
informant (Mil. R. Evid. 507).’’ submitted to the Committee’s DFO who
g. Comments concerning the proposed SUPPLEMENTARY INFORMATION: The
will ensure the written statements are
changes to M.R.E. 412(c)(3) were Committee provides the Secretary of
provided to the membership for their
received. The JSC considered all Defense and the Deputy Secretary of
daltland on DSKBBV9HB2PROD with NOTICES
consideration.
comments. As prescribed by the Defense, through the Under Secretary of
President, upon the effective date of the Defense for Acquisition, and Dated: May 17, 2018.
Executive Order, M.R.E. 412(c)(3) will Sustainment, independent advice and Aaron T. Siegel,
provide: recommendations on matters relating to Alternate OSD Federal Register, Liaison
‘‘(3) If the military judge determines combating Weapons of Mass Destruction Officer, Department of Defense.
on the basis of the hearing described in (WMD). The Committee shall be [FR Doc. 2018–10952 Filed 5–22–18; 8:45 am]
paragraph (2) of this subdivision that composed of no more than 25 members BILLING CODE 5001–06–P
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Document Created: 2018-05-22 23:49:03
Document Modified: 2018-05-22 23:49:03
| 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 response to public comments on proposed amendments to the Manual for Courts-Martial, United States (2016 ed.). | |
| Contact | LT Alexandra Nica, JAGC, USN, (202) 685-7058 or [email protected] | |
| FR Citation | 83 FR 23907 |
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