83 FR 30147 - Manual for Courts-Martial; Proposed Amendments

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 83, Issue 124 (June 27, 2018)

The Department of Defense requests comments on proposed changes to the Manual for Courts-Martial, United States (2016 ed.) (MCM). The proposed changes concern the rules of procedure and evidence applicable in trials by courts-martial as well as amendments to portions of the MCM discussing the punitive articles of the Uniform Code of Military Justice. 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.

[Federal Register Volume 83, Number 124 (Wednesday, June 27, 2018)]
[Notices]
[Pages 30147-30149]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-13783]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DOD-2018-OS-0039]


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 (2016 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 (2016 ed.) 
(MCM). The proposed changes concern the rules of procedure and evidence 
applicable in trials by courts-martial as well as amendments to 
portions of the MCM discussing the punitive articles of the Uniform 
Code of Military Justice. 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.

DATES: Comments on the proposed changes must be received no later than 
August 27, 2018. A public meeting for comments will be held on July 11, 
2018, at 1:30 p.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 for Oversight and Compliance, 4800 Mark 
Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the internet 
at http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Lieutenant Alexandra Nica, JAGC, USN, 
Executive Secretary, JSC, (202) 685-7058, [email protected]. The 
JSC website is located at http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION: This notice is provided in accordance with

[[Page 30148]]

DoD Instruction 5500.17, ``Role and Responsibilities of the Joint 
Service Committee (JSC) on Military Justice,'' February 21, 2018.
    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.
    The proposed amendments to the MCM are as follows:

    Section 1. Part II of the Manual for Courts-Martial, United States 
as amended by E.O. 13825 is further amended as follows:
    (a) R.C.M. 705(d)(1) is amended and reads as follows:
    ``(1) In general. Subject to such limitations as the Secretary 
concerned may prescribe pursuant to R.C.M. 705(a), a plea agreement 
that limits the sentence that can be imposed by the court-martial for 
one or more charges and specifications may contain:
    (A) A limitation on the maximum punishment that can be imposed by 
the court-martial;
    (B) a limitation on the minimum punishment that can be imposed by 
the court-martial;
    (C) limitations on the maximum and minimum punishments that can be 
imposed by the court-martial; or,
    (D) a specified sentence or portion of a sentence that shall be 
imposed by the court-martial.''
    (b) R.C.M. 916(e) is amended and reads as follows:
    ``(e) Self-defense.
    (1) Homicide or assault cases involving deadly force. It is a 
defense to a homicide, assault involving deadly force, or battery 
involving deadly force that the accused:
    (A) Apprehended, on reasonable grounds, that death or grievous 
bodily harm was about to be inflicted wrongfully on the accused; and
    (B) Believed that the force the accused used was necessary for 
protection against death or grievous bodily harm.
    (2) Certain aggravated assault cases. It is a defense to assault 
with a dangerous weapon or assault in which substantial or grievous 
bodily harm is inflicted that the accused:
    (A) Apprehended, on reasonable grounds, that bodily harm was about 
to be inflicted wrongfully on the accused; and
    (B) In order to deter the assailant, offered but did not actually 
inflict or attempt to inflict substantial or grievous bodily harm.
    (3) Other assaults. It is a defense to any assault punishable under 
Article 89, 91, or 128 and not listed in paragraphs (e)(1) or (2) of 
this rule that the accused:
    (A) Apprehended, upon reasonable grounds, that bodily harm was 
about to be inflicted wrongfully on the accused; and
    (B) Believed that the force that the accused used was necessary for 
protection against bodily harm, provided that the force used by the 
accused was less than the force inflicting substantial or grievous 
bodily harm.''
    (c) R.C.M. 920(g) is new and reads as follows:
    ``(g) Waiver. Instructions on a lesser included offense shall not 
be given when both parties waive such an instruction. After receiving 
applicable notification of those lesser included offenses of which an 
accused may be convicted, the parties may waive the reading of a lesser 
included offense instruction. A written waiver is not required. The 
accused must affirmatively acknowledge that he or she understands the 
rights involved and affirmatively waives the instruction on the record. 
The accused's waiver must be made freely, knowingly, and intelligently. 
In the case of a joint or common trial, instructions on a lesser 
included offense shall not be given as to an individual accused when 
that accused and the government agree to waive such an instruction.''
    (d) R.C.M. 1208(c) is new and reads as follows:
    ``(c) Effective date of sentences. The effective date of portions 
of a sentence adjudged at a new trial, other trial, or rehearing shall 
be calculated without regard to any previous adjudged sentence. The 
effective dates shall not relate back to any previously adjudged 
sentence.''
    Section 2. Part III of the Manual for Courts-Martial, United States 
as amended by E.O. 13825 is further amended as follows:
    (a) Mil. R. Evid. 315(b)(3) is new and reads as follows:
    ``(3) ``Warrant for Wire or Electronic Communications'' means a 
warrant issued by a military judge pursuant to 18 U.S.C. 2703(a), 
(b)(1)(A), or (c)(1)(A) in accordance with 10 U.S.C. 846(d)(3) and 
R.C.M. 309(b)(2) and R.C.M. 703A.''
    (b) Mil. R. Evid. 315(d) is amended and reads as follows:
    ``(d) Who May Authorize. A search authorization under this rule is 
valid only if issued by an impartial individual in one of the 
categories set forth in subdivisions (d)(1), (d)(2), and (d)(3). Only a 
military judge may issue a warrant for wire or electronic 
communications under this rule. An otherwise impartial authorizing 
official does not lose impartiality merely because he or she is present 
at the scene of a search or is otherwise readily available to persons 
who may seek the issuance of a search authorization; nor does such an 
official lose impartiality merely because the official previously and 
impartially authorized investigative activities when such previous 
authorization is similar in intent or function to a pretrial 
authorization made by the United States district courts.
    (1) Commander. A commander or other person serving in a position 
designated by the Secretary concerned as either a position analogous to 
an officer in charge or a position of command, who has control over the 
place where the property or person to be searched is situated or found, 
or, if that place is not under military control, having control over 
persons subject to military law or the law of war;
    (2) Military Judge or Magistrate. A military judge or magistrate if 
authorized under regulations prescribed by the Secretary of Defense or 
the Secretary concerned; or
    (3) Other competent search authority. A competent, impartial 
official as designated under regulations by the Secretary of Defense or 
the Secretary concerned as an individual authorized to issue search 
authorizations under this rule.''
    Section 3. Part IV of the Manual for Courts-Martial, United States 
as amended by E.O. 13825 is further amended as follows:
    (a) Paragraph 20.c is amended as follows:
    ``c. Explanation.
    (1) In general. The prevention of inappropriate sexual activity by 
trainers, recruiters, and drill instructors with recruits, trainees, 
students attending service academies, and other potentially vulnerable 
persons in the initial training environment is crucial to the 
maintenance of good order and military discipline. Military law, 
regulation, and custom invest officers, non-commissioned officers, 
drill instructors, recruiters, cadre, and others with the right and 
obligation to exercise control over those they supervise. In this 
context, inappropriate sexual activity

[[Page 30149]]

between recruits/trainees and their respective recruiters/trainers is 
inherently destructive to good order and discipline.
    (2) Prohibited activity. The responsibility for identifying 
relationships subject to this offense and those outside the scope of 
this offense is entrusted to the individual Services to determine and 
specify by appropriate regulations. This offense is intended to cover 
those situations which involve the improper use of authority by virtue 
of an individual's position in either a training or recruiting 
environment. Not all contact or associations are prohibited by this 
article. Service regulations must consider circumstances where pre-
existing relationships (for example, marriage relationships) exist. 
Additionally, this offense only criminalizes activity occurring when 
there is a training or recruiting relationship between the accused and 
the alleged victim of this offense.
    (3) Knowledge. The accused must have actual or constructive 
knowledge that a person was a ``specially protected junior member of 
the armed forces'' or an ``applicant for military service'' (as those 
terms are defined in this offense). Knowledge may be proved by 
circumstantial evidence.
    (4) Consent. Consent is not a defense to this offense.''
    (d) Paragraph 69.c.(1) is amended and reads as follows:
    ``(1) ``Access'' means to gain entry to, instruct, cause input to, 
cause output from, cause data processing with, or communicate with, the 
logical, arithmetical, or memory function resources of a computer, 
computer system, or computer network.''
    (e) Paragraph 89.c.(2) is amended and reads as follows:
    ``(2) Personnel action. For purposes of this offense, ``personnel 
action'' means--
    (a) any action taken against a Servicemember that affects, or has 
the potential to affect, that Servicemember's current position or 
career, including promotion, disciplinary or other corrective action, 
transfer or reassignment, performance evaluations, decisions concerning 
pay, benefits, awards, or training, relief or removal, separation, 
discharge, referral for mental health evaluations, and any other 
personnel actions as defined by law or regulation, such as DoD 
Directive 7050.06 (17 April 2015); or,
    (b) any action taken against a civilian employee that affects, or 
has the potential to affect, that person's current position or career, 
including promotion, disciplinary or other corrective action, transfer 
or reassignment, performance evaluations, decisions concerning pay, 
benefits, awards, or training, relief and removal, discharge, and any 
other personnel actions as defined by law or regulation such as 5 
U.S.C. 2302.''


    Dated: June 21, 2018.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-13783 Filed 6-26-18; 8:45 am]
 BILLING CODE 5001-06-P