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Executive Order 12960

Issued by William J. Clinton on Friday 12 May 1995


Amendments to the Manual for Courts-Martial, United States, 1984

Federal Register, Volume 60 Issue 95 (Wednesday, May 17, 1995)

[Federal Register Volume 60, Number 95 (Wednesday, May 17, 1995)]
[Presidential Documents]
[Pages 26647-26666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12285]




[[Page 26645]]

_______________________________________________________________________

Part IX





The President





_______________________________________________________________________



 Executive Order 12960--Amendments to the Manual For Courts-Martial, 
United States, 1984


                        Presidential Documents 



Federal Register / Vol. 60, No. 95 / Wednesday, May 17, 1995 / 
Presidential Documents

___________________________________________________________________

Title 3--
The President  
[[Page 26647]] 
                Executive Order 12960 of May 12, 1995

                
Amendments to the Manual for Courts-Martial, 
                United States, 1984

                By the authority vested in me as President by the 
                Constitution and the laws of the United States of 
                America, including chapter 47 of title 10, United 
                States Code (Uniform Code of Military Justice, 10 
                U.S.C. 801-946), in order to prescribe amendments to 
                the Manual for Courts-Martial, United States, 1984, 
                prescribed by Executive Order No. 12473, as amended by 
                Executive Order No. 12484, Executive Order No. 12550, 
                Executive Order No. 12586, Executive Order No. 12708, 
                Executive Order No. 12767, Executive Order No. 12888, 
                and Executive Order No. 12936, it is hereby ordered as 
                follows:

                 Section 1. Part I of the Manual for Courts-Martial, 
                United States, 1984, is amended as follows:

                Preamble, paragraph 4, is amended to read as follows:

                    ``4. Structure and application of the Manual for 
                Courts-Martial.

                The Manual for Courts-Martial shall consist of this 
                Preamble, the Rules for Courts-Martial, the Military 
                Rules of Evidence, the Punitive Articles, and the 
                Nonjudicial Punishment Procedures (Parts I-V). The 
                Manual shall be applied consistent with the purpose of 
                military law.

                The Manual shall be identified as ``Manual for Courts-
                Martial, United States (19xx edition).'' Any amendments 
                to the Manual made by Executive Order shall be 
                identified as ``19xx Amendments to the Manual for 
                Courts-Martial, United States.''''

                Sec. 2. Part II of the Manual for Courts-Martial, 
                United States, 1984, is amended to read as follows:

                a. R.C.M. 810(d) is amended to read as follows:

                    ``(d) Sentence limitations.
                      (1) In general. Sentences at rehearings, new 
                trials, or other trials shall be adjudged within the 
                limitations set forth in R.C.M. 1003. Except as 
                otherwise provided in subsection (d)(2) of this rule, 
                offenses on which a rehearing, new trial, or other 
                trial has been ordered shall not be the basis for an 
                approved sentence in excess of or more severe than the 
                sentence ultimately approved by the convening or higher 
                authority following the previous trial or hearing, 
                unless the sentence prescribed for the offense is 
                mandatory. When a rehearing or sentencing is combined 
                with trial on new charges, the maximum punishment that 
                may be approved by the convening authority shall be the 
                maximum punishment under R.C.M. 1003 for the offenses 
                being reheard as limited above, plus the total maximum 
                punishment under R.C.M. 1003 for any new charges of 
                which the accused has been found guilty. In the case of 
                an ``other trial'' no sentence limitations apply if the 
                original trial was invalid because a summary or special 
                court-martial improperly tried an offense involving a 
                mandatory punishment or one otherwise considered 
                capital.
                      (2) Pretrial agreement. If, after the earlier 
                court-martial, the sentence was approved in accordance 
                with a pretrial agreement and at the rehearing the 
                accused fails to comply with the pretrial agreement, by 
                failing to enter a plea of guilty or otherwise, the 
                approved sentence resulting at a rehearing of the 
                affected charges and specifications may include any 
                otherwise lawful [[Page 26648]] punishment not in 
                excess of or more serious than lawfully adjudged at the 
                earlier court-martial.''

                b. R.C.M. 924(a) is amended to read as follows:

                    ``(a) Time for reconsideration. Members may 
                reconsider any finding reached by them before such 
                finding is announced in open session.''

                c. R.C.M. 924(c) is amended to read as follows:

                    ``(c) Military judge sitting alone. In a trial by 
                military judge alone, the military judge may reconsider 
                any finding of guilty at any time before announcement 
                of sentence and may reconsider the issue of the finding 
                of guilty of the elements in a finding of not guilty 
                only by reason of lack of mental responsibility at any 
                time before announcement of sentence or authentication 
                of the record of trial in the case of a complete 
                acquittal.''

                d. R.C.M. 1003(b)(9) and the accompanying discussion 
                are deleted.

                e. R.C.M. 1003(b)(10), (11), and (12) are redesignated 
                as subsections (9), (10), and (11), respectively.

                f. R.C.M. 1009 is amended to read as follows:

                    ``(a) Reconsideration. Subject to this rule, a 
                sentence may be reconsidered at any time before such 
                sentence is announced in open session of the court.
                    (b) Exceptions.
                      (1) If the sentence announced in open session was 
                less than the mandatory minimum prescribed for an 
                offense of which the accused has been found guilty, the 
                court that announced the sentence may reconsider such 
                sentence after it has been announced, and may increase 
                the sentence upon reconsideration in accordance with 
                subsection (e) of this rule.
                      (2) If the sentence announced in open session 
                exceeds the maximum permissible punishment for the 
                offense or the jurisdictional limitation of the court-
                martial, the sentence may be reconsidered after 
                announcement in accordance with subsection (e) of this 
                rule.
                    (c) Clarification of sentence. A sentence may be 
                clarified at any time prior to action of the convening 
                authority on the case.
                      (1) Sentence adjudged by the military judge. When 
                a sentence adjudged by the military judge is ambiguous, 
                the military judge shall call a session for 
                clarification as soon as practical after the ambiguity 
                is discovered.
                      (2) Sentence adjudged by members. When a sentence 
                adjudged by members is ambiguous, the military judge 
                shall bring the matter to the attention of the members 
                if the matter is discovered before the court-martial is 
                adjourned. If the matter is discovered after 
                adjournment, the military judge may call a session for 
                clarification by the members who adjudged the sentence 
                as soon as practical after the ambiguity is discovered.
                    (d) Action by the convening authority. When a 
                sentence adjudged by the court-martial is ambiguous, 
                the convening authority may return the matter to the 
                court-martial for clarification. When a sentence 
                adjudged by the court-martial is apparently illegal, 
                the convening authority may return the matter to the 
                court-martial for reconsideration or may approve a 
                sentence no more severe than the legal, unambiguous 
                portions of the adjudged sentence.
                    (e) Reconsideration procedure. Any member of the 
                court-martial may propose that a sentence reached by 
                the members be reconsidered.
                      (1) Instructions. When a sentence has been 
                reached by members and reconsideration has been 
                initiated, the military judge shall instruct the 
                members on the procedure for reconsideration.
                      (2) Voting. The members shall vote by secret 
                written ballot in closed session whether to reconsider 
                a sentence already reached by them.
                      (3) Number of votes required. [[Page 26649]] 
                      (A) With a view to increasing. Subject to 
                subsection (b) of this rule, members may reconsider a 
                sentence with a view of increasing it only if at least 
                a majority of the members vote for reconsideration.
                      (B) With a view to decreasing. Members may 
                reconsider a sentence with a view to decreasing it only 
                if:
                      (i) In the case of a sentence which includes 
                death, at least one member votes to reconsider;
                      (ii) In the case of a sentence which includes 
                confinement for life or more than 10 years, more than 
                one-fourth of the members vote to reconsider; or
                      (iii) In the case of any other sentence, more 
                than one-third of the members vote to reconsider.
                      (4) Successful vote. If a vote to reconsider a 
                sentence succeeds, the procedures in R.C.M. 1006 shall 
                apply.''

                g. R.C.M. 1103(b)(3)(L) is deleted.

                h. R.C.M. 1103(b)(3)(M) and (N) are redesignated as 
                subsections (L) and (M), respectively.

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

                    ``(2) Not involving a bad-conduct discharge. If the 
                special court-martial resulted in findings of guilty 
                but a bad-conduct discharge was not adjudged, the 
                requirements of subsections (b)(1), (b)(2)(D), and 
                (b)(3)(A)--(F) and (I)--(M) of this rule shall apply.''

                j. R.C.M. 1104(b)(2) is amended to read as follows:

                    ``(2) Summary courts-martial. The summary court-
                martial record of trial shall be disposed of as 
                provided in R.C.M. 1305(d). Subsection (b)(1)(D) of 
                this rule shall apply if classified information is 
                included in the record of trial of a summary court-
                martial.''

                k. R.C.M. 1106(d)(3) is amended by adding a new 
                subsection (B) as follows:

                    ``(B) A recommendation for clemency by the 
                sentencing authority, made in conjunction with the 
                announced sentence;''

                l. R.C.M. 1106(d)(3)(B)--(E) are redesignated as 
                subsections (C)--(F), respectively.

                m. R.C.M. 1107(d) is amended by adding a new 
                subparagraph (3) as follows:

                    ``(3) Postponing service of a sentence to 
                confinement.
                      (A) In a case in which a court-martial sentences 
                an accused referred to in subsection (B), below, to 
                confinement, the convening authority may postpone 
                service of a sentence to confinement by a court-
                martial, without the consent of the accused, until 
                after the accused has been permanently released to the 
                armed forces by a state or foreign country.
                      (B) Subsection (A) applies to an accused who, 
                while in custody of a state or foreign country, is 
                temporarily returned by that state or foreign country 
                to the armed forces for trial by court-martial; and 
                after the court-martial, is returned to that state or 
                foreign country under the authority of a mutual 
                agreement or treaty, as the case may be.
                      (C) As used in subsection (d)(3), the term 
                ``state'' means a state of the United States, the 
                District of Columbia, a territory, and a possession of 
                the United States.''

                n. R.C.M. 1107(d)(3) is redesignated as R.C.M. 
                1107(d)(4).

                o. R.C.M. 1107(e)(1)(C)(iii) is amended to read as 
                follows:

                    ``(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.''

                p. R.C.M. 1107(f)(2) is amended to read as 
                follows: [[Page 26650]] 

                    ``(2) Modification of initial action. The convening 
                authority may recall and modify any action taken by 
                that convening authority at any time before it has been 
                published or before the accused has been officially 
                notified. The convening authority also may recall and 
                modify any action at any time prior to forwarding the 
                record for review, as long as the modification does not 
                result in action less favorable to the accused than the 
                earlier action. In addition, in any special court-
                martial, the convening authority may recall and correct 
                an illegal, erroneous, incomplete, or ambiguous action 
                at any time before completion of review under R.C.M. 
                1112, as long as the correction does not result in 
                action less favorable to the accused than the earlier 
                action. When so directed by a higher reviewing 
                authority or the Judge Advocate General, the convening 
                authority shall modify any incomplete, ambiguous, void, 
                or inaccurate action noted in review of the record of 
                trial under Article 64, 66, 67, or examination of the 
                record of trial under Article 69. The convening 
                authority shall personally sign any supplementary or 
                corrective action.''

                q. R.C.M. 1108(b) is amended to read as follows:

                    ``(b) Who may suspend and remit. The convening 
                authority may, after approving the sentence, suspend 
                the execution of all or any part of the sentence of a 
                court-martial except for a sentence of death. The 
                general court-martial convening authority over the 
                accused at the time of the court-martial may, when 
                taking the action under R.C.M. 1112(f), suspend or 
                remit any part of the sentence. The Secretary concerned 
                and, when designated by the Secretary concerned, any 
                Under Secretary, Assistant Secretary, Judge Advocate 
                General, or commanding officer may suspend or remit any 
                part or amount of the unexecuted part of any sentence 
                other than a sentence approved by the President. The 
                commander of the accused who has the authority to 
                convene a court-martial of the kind which adjudged the 
                sentence may suspend or remit any part or amount of the 
                unexecuted part of any sentence by summary court-
                martial or of any sentence by special court-martial 
                which does not include a bad-conduct discharge 
                regardless of whether the person acting has previously 
                approved the sentence. The ``unexecuted part of any 
                sentence'' includes that part which has been approved 
                and ordered executed but which has not actually been 
                carried out.''

                r. R.C.M. 1113(d)(2)(A) is amended by adding a new 
                subparagraph (iii) as follows:

                    ``(iii) Periods during which the accused is in 
                custody of civilian or foreign authorities after the 
                convening authority, pursuant to Article 57(e), has 
                postponed the service of a sentence to confinement;''

                s. R.C.M. 1113(d)(2)(A)(iii)--(iv) are redesignated 
                1113(d)(A)(iv)--(v), respectively.

                t. R.C.M. 1113(d)(5) is deleted.

                u. R.C.M. 1113(d)(6) is redesignated as subsection (5).

                v. R.C.M. 1201(b)(3)(A) is amended to read as follows:

                    ``(A) In general. Notwithstanding R.C.M. 1209, the 
                Judge Advocate General may, sua sponte or, except when 
                the accused has waived or withdrawn the right to 
                appellate review under R.C.M. 1110, upon application of 
                the accused or a person with authority to act for the 
                accused, vacate or modify, in whole or in part, the 
                findings, sentence, or both of a court-martial that has 
                been finally reviewed, but has not been reviewed either 
                by a Court of Military Review or by the Judge Advocate 
                General under subsection (b)(1) of this rule, on the 
                ground of newly discovered evidence, fraud on the 
                court-martial, lack of jurisdiction over the accused or 
                the offense, error prejudicial to the substantial 
                rights of the accused, or the appropriateness of the 
                sentence.''

                w. R.C.M. 1305(d) is deleted.

                x. R.C.M. 1305(e) is redesignated as subsection (d).

                Sec. 3. Part III of the Manual for Courts-Martial, 
                United States, 1984, is amended as 
                follows: [[Page 26651]] 

                a. M.R.E. 311(g)(2) is amended to read as follows:

                    ``(2) False statements. If the defense makes a 
                substantial preliminary showing that a government agent 
                included a false statement knowingly and intentionally 
                or with reckless disregard for the truth in the 
                information presented to the authorizing officer, and 
                if the allegedly false statement is necessary to the 
                finding of probable cause, the defense, upon request, 
                shall be entitled to a hearing. At the hearing, the 
                defense has the burden of establishing by a 
                preponderance of the evidence the allegation of knowing 
                and intentional falsity or reckless disregard for the 
                truth. If the defense meets its burden, the prosecution 
                has the burden of proving by a preponderance of the 
                evidence, with the false information set aside, that 
                the remaining information presented to the authorizing 
                officer is sufficient to establish probable cause. If 
                the prosecution does not meet its burden, the objection 
                or motion shall be granted unless the search is 
                otherwise lawful under these rules.''

                b. M.R.E. 506(e) and (f) are amended to read as 
                follows:

                    ``(e) Pretrial session. At any time after referral 
                of charges and prior to arraignment, any party may move 
                for a session under Article 39(a) to consider matters 
                relating to government information that may arise in 
                connection with the trial. Following such motion, or 
                sua sponte, the military judge promptly shall hold a 
                pretrial session under Article 39(a) to establish the 
                timing of requests for discovery, the provision of 
                notice under subsection (h), and the initiation of the 
                procedure under subsection (i). In addition, the 
                military judge may consider any other matters that 
                relate to government information or that may promote a 
                fair and expeditious trial.
                    (f) Action after motion for disclosure of 
                information. After referral of charges, if the defense 
                moves for disclosure of government information for 
                which a claim of privilege has been made under this 
                rule, the matter shall be reported to the convening 
                authority. The convening authority may:
                      (1) institute action to obtain the information 
                for use by the military judge in making a determination 
                under subdivision (i);
                      (2) dismiss the charges;
                      (3) dismiss the charges or specifications or both 
                to which the information relates; or
                      (4) take other action as may be required in the 
                interests of justice.

                If, after a reasonable period of time, the information 
                is not provided to the military judge, the military 
                judge shall dismiss the charges or specifications or 
                both to which the information relates.''

                c. M.R.E. 506(h) is amended to read as follows:

                    ``(h) Prohibition against disclosure. The accused 
                may not disclose any information known or believed to 
                be subject to a claim of privilege under this rule 
                unless the military judge authorizes such disclosure.''

                d. M.R.E. 506(i) is amended to read as follows:

                    ``(i) In camera proceedings.
                      (1) Definition. For purposes of this subsection, 
                an ``in camera proceeding'' is a session under Article 
                39(a) from which the public is excluded.
                      (2) Motion for in camera proceeding. Within the 
                time specified by the military judge for the filing of 
                a motion under this rule, the Government may move for 
                an in camera proceeding concerning the use at any 
                proceeding of any government information that may be 
                subject to a claim of privilege. Thereafter, either 
                prior to or during trial, the military judge for good 
                cause shown or otherwise upon a claim of privilege may 
                grant the Government leave to move for an in camera 
                proceeding concerning the use of additional government 
                information.
                      (3) Demonstration of public interest nature of 
                the information. In order to obtain an in camera 
                proceeding under this rule, the Government shall 
                demonstrate, through the submission of affidavits and 
                information for examination only by the military judge, 
                that disclosure of the information reasonably could be 
                expected to cause identifiable damage to the public 
                interest. [[Page 26652]] 
                      (4) In camera proceeding.
                      (A) Finding of identifiable damage. Upon finding 
                that the disclosure of some or all of the information 
                submitted by the Government under subsection (i)(3) 
                reasonably could be expected to cause identifiable 
                damage to the public interest, the military judge shall 
                conduct an in camera proceeding.
                      (B) Disclosure of the information to the defense. 
                Subject to subsection (F), below, the Government shall 
                disclose government information for which a claim of 
                privilege has been made to the accused, for the limited 
                purpose of litigating, in camera, the admissibility of 
                the information at trial. The military judge shall 
                enter an appropriate protective order to the accused 
                and all other appropriate trial participants concerning 
                the disclosure of the information according to 
                subsection (g), above. The accused shall not disclose 
                any information provided under this subsection unless, 
                and until, such information has been admitted into 
                evidence by the military judge. In the in camera 
                proceeding, both parties shall have the opportunity to 
                brief and argue the admissibility of the government 
                information at trial.
                      (C) Standard. Government information is subject 
                to disclosure at the court-martial proceeding under 
                this subsection if the party making the request 
                demonstrates a specific need for information containing 
                evidence that is relevant to the guilt or innocence or 
                to punishment of the accused, and is otherwise 
                admissible in the court-martial proceeding.
                      (D) Ruling. No information may be disclosed at 
                the court-martial proceeding or otherwise unless the 
                military judge makes a written determination that the 
                information is subject to disclosure under the standard 
                set forth in subsection (C), above. The military judge 
                will specify in writing any information that he or she 
                determines is subject to disclosure. The record of the 
                in camera proceeding shall be sealed and attached to 
                the record of trial as an appellate exhibit. The 
                accused may seek reconsideration of the determination 
                prior to or during trial.
                      (E) Alternatives to full disclosure. If the 
                military judge makes a determination under this 
                subsection that the information is subject to 
                disclosure, or if the Government elects not to contest 
                the relevance, necessity, and admissibility of the 
                government information, the Government may proffer a 
                statement admitting for purposes of the court-martial 
                any relevant facts such information would tend to prove 
                or may submit a portion or summary to be used in lieu 
                of the information. The military judge shall order that 
                such statement, portion, summary, or some other form of 
                information which the military judge finds to be 
                consistent with the interests of justice, be used by 
                the accused in place of the government information, 
                unless the military judge finds that use of the 
                government information itself is necessary to afford 
                the accused a fair trial.
                      (F) Sanctions. Government information may not be 
                disclosed over the Government's objection. If the 
                Government continues to object to disclosure of the 
                information following rulings by the military judge, 
                the military judge shall issue any order that the 
                interests of justice require. Such an order may 
                include:
                      (i) striking or precluding all or part of the 
                testimony of a witness;
                      (ii) declaring a mistrial;
                      (iii) finding against the Government on any issue 
                as to which the evidence is relevant and necessary to 
                the defense;
                      (iv) dismissing the charges, with or without 
                prejudice; or
                      (v) dismissing the charges or specifications or 
                both to which the information relates.''

                e. A new M.R.E. 506(j) is added as follows:

                    ``(j) Appeals of orders and rulings. In a court-
                martial in which a punitive discharge may be adjudged, 
                the Government may appeal an order or ruling 
                [[Page 26653]] of the military judge that terminates 
                the proceedings with respect to a charge or 
                specification, directs the disclosure of government 
                information, or imposes sanctions for nondisclosure of 
                government information. The Government also may appeal 
                an order or ruling in which the military judge refuses 
                to issue a protective order sought by the United States 
                to prevent the disclosure of government information, or 
                to enforce such an order previously issued by 
                appropriate authority. The Government may not appeal an 
                order or ruling that is, or amounts to, a finding of 
                not guilty with respect to the charge or 
                specification.''

                f. M.R.E. 506(j) and (k) are redesignated as (k) and 
                (l), respectively.

                Sec. 4. Part IV of the Manual for Courts-Martial, 
                United States, 1984, is amended to read as follows:

                a. Paragraph 4.c. is amended by adding a new 
                subparagraph (4) as follows:

                    ``(4) Voluntary abandonment. It is a defense to an 
                attempt offense that the person voluntarily and 
                completely abandoned the intended crime, solely because 
                of the person's own sense that it was wrong, prior to 
                the completion of the crime. The voluntary abandonment 
                defense is not allowed if the abandonment results, in 
                whole or in part, from other reasons, such as, the 
                person feared detection or apprehension, decided to 
                await a better opportunity for success, was unable to 
                complete the crime, or encountered unanticipated 
                difficulties or unexpected resistance. A person who is 
                entitled to the defense of voluntary abandonment may 
                nonetheless be guilty of a lesser included, completed 
                offense. For example, a person who voluntarily 
                abandoned an attempted armed robbery may nonetheless be 
                guilty of assault with a dangerous weapon.''

                b. Paragraph 4.c.(4), (5), and (6) are redesignated as 
                subparagraphs (5), (6) and (7), respectively.

                c. Paragraph 30a.c(1), is amended to read as follows:

                    ``(1) Intent. ``Intent or reason to believe'' that 
                the information ``is to be used to the injury of the 
                United States or to the advantage of a foreign nation'' 
                means that the accused acted in bad faith and [delete 
                ``or otherwise''] without lawful authority with respect 
                to information that is not lawfully accessible to the 
                public.''

                d. Paragraph 35 is amended to read as follows:

                    ``35. Article 111--Drunken or reckless operation of 
                a vehicle, aircraft, or vessel
                      a. Text.
                      ``Any person subject to this chapter who--
                      (1) operates or physically controls any vehicle, 
                aircraft, or vessel in a reckless or wanton manner or 
                while impaired by a substance described in section 
                912a(b) of this title (Article 112a(b)), or
                      (2) operates or is in actual physical control of 
                any vehicle, aircraft, or vessel while drunk or when 
                the alcohol concentration in the person's blood or 
                breath is 0.10 grams of alcohol per 100 milliliters of 
                blood or 0.10 grams of alcohol per 210 liters of 
                breath, as shown by chemical analysis, shall be 
                punished as a court-martial may direct.''
                      b. Elements.
                      (1) That the accused was operating or in physical 
                control of a vehicle, aircraft, or vessel; and
                      (2) That while operating or in physical control 
                of a vehicle, aircraft, or vessel, the accused:
                      (a) did so in a wanton or reckless manner, or
                      (b) was drunk or impaired, or
                      (c) the alcohol concentration in the accused's 
                blood or breath was 0.10 grams of alcohol per 100 
                milliliters of blood or 0.10 grams of alcohol per 210 
                liters of breath, or greater, as shown by chemical 
                analysis. [[Page 26654]] 
                      [Note: If injury resulted add the following 
                element]
                      (3) That the accused thereby caused the vehicle, 
                aircraft, or vessel to injure a person.
                      c. Explanation.
                      (1) Vehicle. See 1 U.S.C. Sec. 4.
                      (2) Vessel. See 1 U.S.C. Sec. 3.
                      (3) Aircraft. Any contrivance used or designed 
                for transportation in the air.
                      (4) Operates. Operating a vehicle, aircraft, or 
                vessel includes not only driving or guiding a vehicle, 
                aircraft, or vessel while it is in motion, either in 
                person or through the agency of another, but also 
                setting of its motive power in action or the 
                manipulation of its controls so as to cause the 
                particular vehicle, aircraft, or vessel to move.
                      (5) Physical control and actual physical control. 
                These terms as used in the statute are synonymous. They 
                describe the present capability and power to dominate, 
                direct, or regulate the vehicle, vessel, or aircraft, 
                either in person or through the agency of another, 
                regardless of whether such vehicle, aircraft, or vessel 
                is operated. For example, the intoxicated person seated 
                behind the steering wheel of a vehicle with the keys of 
                the vehicle in or near the ignition but with the engine 
                not turned on could be deemed in actual physical 
                control of that vehicle. However, the person asleep in 
                the back seat with the keys in his or her pocket would 
                not be deemed in actual physical control. Physical 
                control necessarily encompasses operation.
                      (6) Drunk or impaired. ``Drunk'' and ``impaired'' 
                mean any intoxication which is sufficient to impair the 
                rational and full exercise of the mental or physical 
                faculties. The term ``drunk'' is used in relation to 
                intoxication by alcohol. The term ``impaired'' is used 
                in relation to intoxication by a substance described in 
                Article 112(a), Uniform Code of Military Justice.
                      (7) Reckless. The operation or physical control 
                of a vehicle, vessel, or aircraft is ``reckless'' when 
                it exhibits a culpable disregard of foreseeable 
                consequences to others from the act or omission 
                involved. Recklessness is not determined solely by 
                reason of the happening of an injury, or the invasion 
                of the rights of another, nor by proof alone of 
                excessive speed or erratic operation, but all these 
                factors may be admissible and relevant as bearing upon 
                the ultimate question: whether, under all the 
                circumstances, the accused's manner of operation or 
                physical control of the vehicle, vessel, or aircraft 
                was of that heedless nature which made it actually or 
                imminently dangerous to the occupants, or to the rights 
                or safety of others. It is operating or physically 
                controlling a vehicle, vessel, or aircraft with such a 
                high degree of negligence that if death were caused, 
                the accused would have committed involuntary 
                manslaughter, at least. The nature of the conditions in 
                which the vehicle, vessel, or aircraft is operated or 
                controlled, the time of day or night, the proximity and 
                number of other vehicles, vessels, or aircraft, and the 
                condition of the vehicle, vessel, or aircraft, are 
                often matters of importance in the proof of an offense 
                charged under this article and, where they are of 
                importance, may properly be alleged.
                      (8) Wanton. ``Wanton'' includes ``reckless'', but 
                in describing the operation or physical control of a 
                vehicle, vessel, or aircraft, ``wanton'' may, in a 
                proper case, connote willfulness, or a disregard of 
                probable consequences, and thus describe a more 
                aggravated offense.
                      (9) Causation. The accused's drunken or reckless 
                driving must be a proximate cause of injury for the 
                accused to be guilty of drunken or reckless driving 
                resulting in personal injury. To be proximate, the 
                accused's actions need not be the sole cause of the 
                injury, nor must they be the immediate cause of the 
                injury; that is, the latest in time and space preceding 
                the injury. A contributing cause is deemed proximate 
                only if it plays a material role in the victim's 
                injury. [[Page 26655]] 
                      (10) Separate offenses. While the same course of 
                conduct may constitute violations of both subsections 
                (1) and (2) of the Article, (e.g., both drunken and 
                reckless operation or physical control), this article 
                proscribes the conduct described in both subsections as 
                separate offenses, which may be charged separately. 
                However, as recklessness is a relative matter, evidence 
                of all the surrounding circumstances that made the 
                operation dangerous, whether alleged or not, may be 
                admissible. Thus, on a charge of reckless driving, for 
                example, evidence of drunkenness might be admissible as 
                establishing one aspect of the recklessness, and 
                evidence that the vehicle exceeded a safe speed, at a 
                relevant prior point and time, might be admissible as 
                corroborating other evidence of the specific 
                recklessness charged. Similarly, on a charge of drunken 
                driving, relevant evidence of recklessness might have 
                probative value as corroborating other proof of 
                drunkenness.
                      d. Lesser included offense.
                      (1) Reckless or wanton or impaired operation or 
                physical control of a vessel. Article 110--improper 
                hazarding of a vessel.
                      (2) Drunken operation of a vehicle, vessel, or 
                aircraft while drunk or with a blood or breath alcohol 
                concentration in violation of the described per se 
                standard.
                      (a) Article 110--improper hazarding of a vessel
                      (b) Article 112--drunk on duty
                      (c) Article 134--drunk on station
                      e. Maximum punishment.
                      (1) Resulting in personal injury. Dishonorable 
                discharge, forfeiture of all pay and allowances, and 
                confinement for 18 months.
                      (2) No personal injury involved. Bad-conduct 
                discharge, forfeiture of all pay and allowances, and 
                confinement for 6 months.
                      f. Sample specification.
                    In that -------------------- (personal jurisdiction 
                data), did (at/onboard--location) (subject-matter 
                jurisdiction data, if required), on or about ----------
                -------- 19--------, (in the motor pool area) (near the 
                Officer's Club)(at the intersection of ------------ and 
                --------------) (while in the Gulf of Mexico)(while in 
                flight over North America) physically control [a 
                vehicle, to wit: (a truck)(a passenger car) (----------
                ----------------)] [an aircraft, to wit: (an AH-64 
                helicopter)(an F-14A fighter) (a KC-135 tanker) (------
                ----------------)] [a vessel, to wit: (the aircraft 
                carrier USS ------------------------) (the Coast Guard 
                Cutter --------------------) (------------------------
                --)], [while drunk] [while impaired by ----------------
                --] [while the alcohol concentration in his (blood was 
                0.10 grams of alcohol per 100 milliliters of blood or 
                greater)(breath was 0.10 grams of alcohol per 210 
                liters of breath or greater) as shown by chemical 
                analysis] [in a (reckless)(wanton) manner by 
                (attempting to pass another vehicle on a sharp 
                curve)(by ordering that the aircraft be flown below the 
                authorized altitude)] [and did thereby cause said 
                (vehicle) (aircraft)(vessel) to (strike and) (injure --
                --------------------------)].''

                e. Paragraph 43.a.(3) is amended to read as follows:

                    ``(3) is engaged in an act that is inherently 
                dangerous to another and evinces a wanton disregard of 
                human life; or''

                f. Paragraph 43.b.(3)(c) is amended to read as follows:

                    ``(c) That this act was inherently dangerous to 
                another and showed a wanton disregard for human life;''

                g. Paragraph 43.c.(4)(a) is amended to read as follows:

                    ``(a) Wanton disregard for human life. 
                Intentionally engaging in an act inherently dangerous 
                to another--although without an intent to cause the 
                death of or great bodily harm to any particular person, 
                or even with a wish that death will not be caused--may 
                also constitute murder if the [[Page 26656]] act shows 
                wanton disregard of human life. Such disregard is 
                characterized by heedlessness of the probable 
                consequences of the act or omission, or indifference to 
                the likelihood of death or great bodily harm. Examples 
                include throwing a live grenade toward another or 
                others in jest or flying an aircraft very low over one 
                or more persons to cause alarm.''

                h. Paragraph 45.a.(a) is amended to read as follows:

                    ``(a) Any person subject to this chapter who 
                commits an act of sexual intercourse by force and 
                without consent, is guilty of rape and shall be 
                punished by death or such other punishment as a court-
                martial may direct.''

                i. Paragraph 45.b.(1) is amended to read as follows:

                    ``(a) That the accused committed an act of sexual 
                intercourse; and
                    (b) That the act of sexual intercourse was done by 
                force and without consent.''

                j. Paragraph 45.c.(1)(a) and (b) are amended as 
                follows:

                    ``(a) Nature of offense. Rape is sexual intercourse 
                by a person, executed by force and without consent of 
                the victim. It may be committed on a victim of any age. 
                Any penetration, however slight, is sufficient to 
                complete the offense.
                    (b) Force and lack of consent. Force and lack of 
                consent are necessary to the offense. Thus, if the 
                victim consents to the act, it is not rape. The lack of 
                consent required, however, is more than mere lack of 
                acquiescence. If a victim in possession of his or her 
                mental faculties fails to make lack of consent 
                reasonably manifest by taking such measures of 
                resistance as are called for by the circumstances, the 
                inference may be drawn that the victim did consent. 
                Consent, however, may not be inferred if resistance 
                would have been futile, where resistance is overcome by 
                threats of death or great bodily harm, or where the 
                victim is unable to resist because of the lack of 
                mental or physical faculties. In such a case there is 
                no consent and the force involved in penetration will 
                suffice. All the surrounding circumstances are to be 
                considered in determining whether a victim gave 
                consent, or whether he or she failed or ceased to 
                resist only because of a reasonable fear of death or 
                grievous bodily harm. If there is actual consent, 
                although obtained by fraud, the act is not rape, but if 
                to the accused's knowledge the victim is of unsound 
                mind or unconscious to an extent rendering him or her 
                incapable of giving consent, the act is rape. Likewise, 
                the acquiescence of a child of such tender years that 
                he or she is incapable of understanding the nature of 
                the act is not consent.''

                k. Paragraph 89.c. is amended to read as follows:

                    ``(c) Explanation. ``Indecent'' language is that 
                which is grossly offensive to modesty, decency, or 
                propriety, or shocks the moral sense, because of its 
                vulgar, filthy, or disgusting nature, or its tendency 
                to incite lustful thought. Language is indecent if it 
                tends reasonably to corrupt morals or incite libidinous 
                thoughts. The language must violate community 
                standards. See paragraph 87 if the communication was 
                made in the physical presence of a child.''

                l. The following new paragraph is added after paragraph 
                103:

                    ``103a. Article 134 (Self-injury without intent to 
                avoid service)
                      a. Text. See paragraph 60.
                      b. Elements.
                      (1) That the accused intentionally inflicted 
                injury upon himself or herself;
                      (2) That, under the circumstances, the conduct of 
                the accused was to the prejudice of good order and 
                discipline in the armed forces or was of a nature to 
                bring discredit upon the armed forces.
                      [Note: If the offense was committed in time of 
                war or in a hostile fire pay zone, add the following 
                element]
                      (3) That the offense was committed (in time of 
                war) (in a hostile fire pay zone). [[Page 26657]] 
                    c. Explanation.
                      (1) Nature of offense. This offense differs from 
                malingering (see paragraph 40) in that for this 
                offense, the accused need not have harbored a design to 
                avoid performance of any work, duty, or service which 
                may properly or normally be expected of one in the 
                military service. This offense is characterized by 
                intentional self-injury under such circumstances as 
                prejudice good order and discipline or discredit the 
                armed forces. It is not required that the accused be 
                unable to perform duties, or that the accused actually 
                be absent from his or her place of duty as a result of 
                the injury. For example, the accused may inflict the 
                injury while on leave or pass. The circumstances and 
                extent of injury, however, are relevant to a 
                determination that the accused's conduct was 
                prejudicial to good order and discipline, or service-
                discrediting.
                      (2) How injury inflicted. The injury may be 
                inflicted by nonviolent as well as by violent means and 
                may be accomplished by any act or omission that 
                produces, prolongs, or aggravates a sickness or 
                disability. Thus, voluntary starvation that results in 
                a debility is a self-inflicted injury. Similarly, the 
                injury may be inflicted by another at the accused's 
                request.
                    d. Lesser included offense. Article 80--attempts
                    e. Maximum punishment.
                      (1) Intentional self-inflicted injury. 
                Dishonorable discharge, forfeiture of all pay and 
                allowances, and confinement for 2 years.
                      (2) Intentional self-inflicted injury in time of 
                war or in a hostile fire pay zone. Dishonorable 
                discharge, forfeiture of all pay and allowances, and 
                confinement for 5 years.
                    f. Sample specification.
                    In that ------------------ (personal jurisdiction 
                data), did, (at/on board--location) (in a hostile fire 
                pay zone) on or about ------------------ 19----, (a 
                time of war,) intentionally injure himself/herself by 
                -------------- (nature and circumstances of injury).''

                Sec. 5. These amendments shall take effect on June 10, 
                1995, subject to the following:

                a. Nothing in these amendments shall be construed to 
                make punishable any act done or omitted prior to June 
                10, 1995.

                b. The maximum punishment for an offense committed 
                prior to June 10, 1995, shall not exceed the applicable 
                maximum in effect at the time of the commission of such 
                offense.

                c. Nothing in these amendments shall be construed to 
                invalidate any nonjudicial punishment proceeding, 
                restraint, investigation, referral of charges, trial in 
                which arraignment occurred, or other action begun prior 
                to June 10, 1995, and any such nonjudicial punishment, 
                restraint, investigation, referral of charges, trial, 
                or other action may proceed in the same manner and with 
                the same effect as if these amendments had not been 
                prescribed.

                    (Presidential Sig.)

                THE WHITE HOUSE,

                    May 12, 1995.

                Billing code 3195-01-P

[[Page 26658]]

                Changes to the Analysis accompanying the Manual for 
                Courts-Martial, United States, 1984.

                1. Changes to Appendix 21, the Analysis accompanying 
                the Rules for Courts-Martial (Part II, MCM, 1984).

                a. R.C.M. 203. The Analysis accompanying R.C.M. 203 is 
                amended by inserting the following at the end thereof:

                    ``1995 Amendment: The discussion was amended in 
                light of Solorio v. United States, 483 U.S. 435 (1987). 
                O'Callahan v. Parker, 395 U.S. 258 (1969), held that an 
                offense under the code could not be tried by court-
                martial unless the offense was ``service connected.'' 
                Solorio overruled O'Callahan.''

                b. R.C.M. 307. The Analysis accompanying R.C.M. 307 is 
                amended by inserting the following at the end thereof:

                    ``1995 Amendment: The discussion was amended in 
                conformance with a concurrent change to R.C.M. 203, in 
                light of Solorio v. United States, 483 U.S. 435 (1987). 
                O'Callahan v. Parker, 395 U.S. 258 (1969), held that an 
                offense under the code could not be tried by court-
                martial unless the offense was ``service connected.'' 
                Solorio overruled O'Callahan.''

                c. R.C.M. 810. The Analysis accompanying R.C.M. 810 is 
                amended by inserting the following at the end thereof:

                    ``1995 Amendment: Subsection (d) was amended in 
                light of the change to Article 63 effected by the 
                National Defense Authorization Act for Fiscal Year 
                1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992). 
                The amendment reflects that subsection (d) sentencing 
                limitations only affect the sentence that may be 
                approved by the convening or higher authority following 
                the rehearing, new trial or other trial. Subsection (d) 
                does not limit the maximum sentence that may be 
                adjudged at the rehearing, new trial, or other trial.''

                d. R.C.M. 924. The Analysis accompanying R.C.M. 924 is 
                amended by inserting the following at the end thereof:

                    ``1995 Amendment: The amendment limits 
                reconsideration of findings by the members to findings 
                reached in closed session but not yet announced in open 
                court and provides for the military judge, in judge 
                alone cases, to reconsider the ``guilty finding'' of a 
                not guilty only by reason of lack of mental 
                responsibility finding.''

                e. R.C.M. 1003(b). The Analysis accompanying R.C.M. 
                1003(b) is amended by inserting the following:

                    ``1995 Amendment: Punishment of confinement on 
                bread and water or diminished rations [R.C.M. 
                1003(d)(9)], as a punishment imposable by a court-
                martial, was deleted. Confinement on bread and water or 
                diminished rations was originally intended as an 
                immediate, remedial punishment. While this is still the 
                case with nonjudicial punishment (Article 15), it is 
                not effective as a court-martial punishment. 
                Subsections (d)(10) through (d)(12) were redesignated 
                (d)(9) through (d)(11), respectively.''

                f. R.C.M. 1009. The Analysis accompanying R.C.M. 1009 
                is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment: This rule was changed to prevent 
                a sentencing authority from reconsidering a sentence 
                announced in open session. Subsection (b) was amended 
                to allow reconsideration if the sentence was less than 
                the mandatory maximum prescribed for the offense or the 
                sentence exceeds the maximum permissible punishment for 
                the offense or the jurisdictional limitation of the 
                court-martial. Subsection (c) is new and provides for 
                the military judge to clarify an announced sentence 
                that is ambiguous. Subsection (d) provides for the 
                convening authority to exercise discretionary authority 
                to return an ambiguous sentence for clarification, or 
                take action consistent with R.C.M. 1107.''

                g. R.C.M. 1103. The Analysis accompanying R.C.M. 1103 
                is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment: Punishment of confinement on 
                bread and water or diminished rations [R.C.M. 
                1003(d)(9)], as a punishment imposable by a 
                [[Page 26659]] court-martial, was deleted. 
                Consequently, the requirement to attach a Medical 
                Certificate to the record of trial [R.C.M. 
                1103(b)(3)(L)] was deleted. Subsections (3)(M) and 
                (3)(N) were redesignated (3)(L) and (3)(M), 
                respectively.''

                h. R.C.M. 1105(b)(4). The Analysis accompanying R.C.M. 
                1105(b) is amended to read as follows:

                    ``1995 Amendment: The Discussion accompanying 
                subsection (b)(4) was amended to reflect the new 
                requirement, under R.C.M. 1106(d)(3)(B), that the staff 
                judge advocate or legal advisor inform the convening 
                authority of a recommendation for clemency by the 
                sentencing authority, made in conjunction with the 
                announced sentence.''

                i. R.C.M. 1106(d)(3). The Analysis accompanying R.C.M. 
                1106(d) is amended to read as follows:

                    ``1995 Amendment: Subsection (d)(3)(B) is new. It 
                requires that the staff judge advocate's or legal 
                advisor's recommendation inform the convening authority 
                of any clemency recommendation made by the sentencing 
                authority in conjunction with the announced sentence, 
                absent a written request by the defense to the 
                contrary. Prior to this amendment, an accused was 
                responsible for informing the convening authority of 
                any such recommendation. The amendment recognizes that 
                any clemency recommendation is so closely related to 
                the sentence that staff judge advocates and legal 
                advisors should be responsible for informing convening 
                authorities of it. The accused remains responsible for 
                informing the convening authority of other 
                recommendations for clemency, including those made by 
                the military judge in a trial with member sentencing 
                and those made by individual members. See United States 
                v. Clear, 34 M.J. 129 (C.M.A. 1992); R.C.M. 1105(b)(4). 
                Subsections (d)(3)(B)--(d)(3)(E) are redesignated as 
                (d)(3)(C)--(d)(3)(F), respectively.''

                j. R.C.M. 1107(d). The Analysis accompanying R.C.M. 
                1107(d) is amended to read as follows:

                    ``1995 Amendment: Subsection (d)(3) is new. It is 
                based on the recently enacted Article 57(e). National 
                Defense Authorization Act for Fiscal Year 1993, Pub. L. 
                No. 102-484, 106 Stat. 2315, 2505 (1992). See generally 
                Interstate Agreement on Detainers Act, 18 U.S.C. App. 
                III. It permits a military sentence to be served 
                consecutively, rather than concurrently, with a 
                civilian or foreign sentence. The prior subsection 
                (d)(3) is redesignated (d)(4).''

                k. R.C.M. 1107(d)(2). The Analysis accompanying R.C.M. 
                1107(d)(2) is amended to read as follows:

                    ``1995 Amendment: The last sentence in the 
                Discussion accompanying subsection (d)(2) is new. It 
                clarifies that forfeitures adjudged at courts-martial 
                take precedence over all debts owed by the accused. 
                Department of Defense Military Pay and Allowances 
                Entitlement Manual, Volume 7, Part A, paragraph 70507a 
                (12 December 1994).''

                l. R.C.M. 1107(e)(1)(C)(iii). The Analysis accompanying 
                R.C.M. 1107(e)(1) is amended to read as follows:

                    ``1995 Amendment: The second sentence in R.C.M. 
                1107(e)(1)(C)(iii) is new. It expressly recognizes that 
                the convening authority may approve a sentence of no 
                punishment if the convening authority determines that a 
                rehearing on sentence is impracticable. This authority 
                has been recognized by the appellate courts. See e.g., 
                United States v. Monetesinos, 28 M.J. 38 (C.M.A. 1989); 
                United States v. Sala, 30 M.J. 813 (A.C.M.R. 1990).''

                m. R.C.M. 1107(f)(2). The Analysis accompanying R.C.M. 
                1107(f)(2) is amended by inserting the following at its 
                end:

                ``1995 Amendment: The amendment allows a convening 
                authority to recall and modify any action after it has 
                been published or after an accused has been officially 
                notified, but before a record has been forwarded for 
                review, as long as the new action is not less favorable 
                to the accused than the prior action. A convening 
                authority is not limited to taking only corrective 
                action, but may also modify the approved findings or 
                sentence provided the modification is not less 
                favorable to the accused than the earlier 
                action.'' [[Page 26660]] 

                n. R.C.M. 1113(d)(2)(A). The Analysis accompanying 
                R.C.M. 1113(d)(2)(A) is amended by inserting the 
                following at the end thereof:

                    ``1995 Amendment: Subsection (d)(2)(A)(iii) is new. 
                It is based on the recently enacted Article 57(e). 
                National Defense Authorization Act for Fiscal Year 
                1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992). 
                See generally Interstate Agreement on Detainers Act, 18 
                U.S.C. App. III. It permits a military sentence to be 
                served consecutively, rather than concurrently, with a 
                civilian or foreign sentence. The prior subsections 
                (d)(2)(A)(iii)--(iv) are redesignated (d)(2)(A)(iv)--
                (v), respectively.''

                o. R.C.M. 1113(d)(5). The Analysis accompanying R.C.M. 
                1113(d)(5) is amended by inserting the following at the 
                end thereof:

                    ``1995 Amendment: Subsection (5) was deleted when 
                the punishment of confinement on bread and water or 
                diminished rations [R.C.M. 1113(d)(9)], as a punishment 
                imposable by a court-martial, was deleted. Subsection 
                (6) was redesignated (5).''

                p. R.C.M. 1201(b)(1). The Analysis accompanying R.C.M. 
                1201(b)(1) is amended to read as follows:

                    ``1995 Amendment: The Discussion accompanying 
                subsection (1) was amended to conform with the language 
                of Article 69(a), as enacted by the Military Justice 
                Amendments of 1989, tit. XIII, sec. 1302(a)(2), 
                National Defense Authorization Act for Fiscal Years 
                1990 and 1991, Pub. L. No. 101-189, 103 Stat. 1352, 
                1576 (1989).''

                2. Changes to Appendix 21, the Analysis accompanying 
                the Punitive Articles (Part IV, MCM, 1984).

                a. Paragraph 4c. The Analysis accompanying paragraph 4c 
                is amended to read as follows:

                    ``1995 Amendment: Subparagraph (4) is new. It 
                recognizes voluntary abandonment as an affirmative 
                defense as established by the case law. See United 
                States v. Byrd, 24 M.J. 286 (C.M.A. 1987). See also 
                United States v. Schoof, 37 M.J. 96, 103-04 (C.M.A. 
                1993); United States v. Rios, 33 M.J. 436, 440-41 
                (C.M.A. 1991); United States v. Miller, 30 M.J. 999 
                (N.M.C.M.R. 1990); United States v. Walther, 30 M.J. 
                829, 829-33 (N.M.C.M.R. 1990). The prior subparagraphs 
                (4)--(6) have been redesignated (5)--(7), 
                respectively.''

                b. Paragraph 30a.c. The Analysis accompanying paragraph 
                30a.c., is amended as follows:

                    ``1995 Amendment: This subparagraph was amended to 
                clarify that the intent element of espionage is not 
                satisfied merely by proving that the accused acted 
                without lawful authority. Article 106a, Uniform Code of 
                Military Justice. The accused must have acted in bad 
                faith. United States v. Richardson, 33 M.J. 127 (C.M.A. 
                1991); see Gorin v. United States, 312 U.S. 19, 21 n.1 
                (1941).''

                c. Paragraph 35. The Analysis accompanying paragraph 35 
                is amended to read as follows:

                    ``1995 Amendment: This paragraph was amended 
                pursuant to the changes to Article 111 included in the 
                National Defense Authorization Act for Fiscal Year 
                1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992). 
                New subparagraphs c(2) and (3) were added to include 
                vessels and aircraft, respectively. Paragraph 35 was 
                also amended to make punishable actual physical control 
                of a vehicle, aircraft, or vessel while drunk or 
                impaired, or in a reckless fashion, or while one's 
                blood or breath alcohol concentration is in violation 
                of the described per se standard. A new subparagraph 
                c(5) was added to define the concept of actual physical 
                control. This change allows drunk or impaired 
                individuals who demonstrate the capability and power to 
                operate a vehicle, aircraft, or vessel to be 
                apprehended if in the vehicle, aircraft, or vessel, but 
                not actually operating it at the time.
                    The amendment also clarifies that culpability 
                extends to the person operating or exercising actual 
                physical control through the agency of another (e.g., 
                the captain of a ship giving orders to a helmsman). The 
                amendment also provides a blood/alcohol blood/breath 
                concentration of 0.10 or greater [[Page 26661]] as a 
                per se standard for illegal intoxication. The change 
                will not, however, preclude prosecution where no 
                chemical test is taken or even where the results of the 
                chemical tests are below the statutory limits, where 
                other evidence of intoxication is available. See United 
                States v. Gholson, 319 F. Supp. 499 (E.D. Va. 1970).
                    A new paragraph c(9) was added to clarify that in 
                order to show that the accused caused personal injury, 
                the government must prove proximate causation and not 
                merely cause-in-fact. Accord United States v. 
                Lingenfelter, 30 M.J. 302 (C.M.A. 1990). The definition 
                of ``proximate cause'' is based on United States v. 
                Romero, 1 M.J. 227, 230 (C.M.A. 1975). Previous 
                subparagraph c(2) is renumbered c(4). Previous 
                subparagraphs c(3)-c(5) are renumbered c(6)-c(8), 
                respectively, and previous subparagraph c(6) is 
                renumbered c(10).
                    Subparagraphs d(1) and (2) are redesignated d(2)(b) 
                and d(2)(c). The new d(2)(a) adds Article 110 (improper 
                hazarding of a vessel) as a lesser included offense of 
                drunken operation or actual physical control of a 
                vessel. The new d(1) adds Article 110 (improper 
                hazarding of a vessel) as a lesser included offense of 
                reckless or wanton or impaired operation or physical 
                control of a vessel.''

                d. Paragraph 43. The Analysis accompanying paragraph 43 
                is amended to read as follows:

                    ``1995 Amendment: The word ``others'' was replaced 
                by the word ``another'' in Article 118(3) pursuant to 
                the National Defense Authorization Act for Fiscal Year 
                1993, Pub. L. No. 102-484, 106 Stat. 2315, 2506 (1992). 
                This change addresses the limited language previously 
                used in Article 118(3) as identified in United States 
                v. Berg, 30 M.J. 195 (C.M.A. 1990).''

                e. Paragraph 45. The Analysis accompanying paragraph 45 
                is amended to read as follows:

                    ``1995 Amendment: The offense of rape was made 
                gender neutral and the spousal exception was removed 
                under Article 120(a). National Defense Authorization 
                Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 
                Stat. 2315, 2506 (1992).
                    Rape may ``be punished by death'' only if 
                constitutionally permissible. In Coker v. Georgia, 322 
                U.S. 585 (1977), the Court held that the death penalty 
                is ``grossly disproportionate and excessive punishment 
                for the rape of an adult woman,'' and is ``therefore 
                forbidden by the Eighth Amendment as cruel and unusual 
                punishment.'' Id. at 592 (plurality opinion). Coker, 
                however, leaves open the question of whether it is 
                permissible to impose the death penalty for the rape of 
                a minor by an adult. See Coker, 433 U.S. at 595. See 
                Leatherwood v. State, 548 So.2d 389 (Miss. 1989) (death 
                sentence for rape of minor by an adult is not cruel and 
                unusual punishment prohibited by the Eighth Amendment). 
                But see Buford v. State, 403 So.2d 943 (Fla. 1981) 
                (sentence of death is grossly disproportionate for 
                sexual assault of a minor by an adult and consequently 
                is forbidden by Eighth Amendment as cruel and unusual 
                punishment).''

                f. Paragraph 89. The Analysis accompanying paragraph 
                89c is amended to read as follows:

                    ``1995 Amendment: The second sentence is new. It 
                incorporates a test for ``indecent language'' adopted 
                by the Court of Military Appeals in United States v. 
                French, 31 M.J. 57, 60 (C.M.A. 1990). The term ``tends 
                reasonably'' is substituted for the term ``calculated 
                to'' to avoid the misinterpretation that indecent 
                language is a specific intent offense.''

                g. Paragraph 103a. Insert the following after the 
                Analysis of paragraph 103:

                    ``103a. Article 134 (Self-injury without intent to 
                avoid service)
                      c. Explanation. 1995 Amendment. This offense is 
                based on paragraph 183a of MCM, U.S. Army, 1949; United 
                States v. Ramsey, 35 M.J. 733 (A.C.M.R. 1992), aff'd, 
                40 M.J. 71 (C.M.A. 1994); United States v. Taylor, 38 
                C.M.R. 393 (C.M.A. 1968); see generally TJAGSA Practice 
                Note, Confusion About Malingering and Attempted 
                Suicide, The Army Lawyer, June 1992, at 
                38. [[Page 26662]] 
                      e. Maximum punishment. 1995 Amendment. The 
                maximum punishment for subsection (1) reflects the 
                serious effect that this offense may have on readiness 
                and morale. The maximum punishment reflects the range 
                of the effects of the injury, both in degree and 
                duration, on the ability of the accused to perform 
                work, duty, or service. The maximum punishment for 
                subsection (1) is equivalent to that for offenses of 
                desertion, missing movement through design, and certain 
                violations of orders. The maximum punishment for 
                subsection (2) is less than the maximum punishment for 
                the offense of malingering under the same circumstances 
                because of the absence of the specific intent to avoid 
                work, duty, or service. The maximum punishment for 
                subsection (2) is equivalent to that for nonaggravated 
                offenses of desertion, willfully disobeying a superior 
                commissioned officer, and nonaggravated malingering by 
                intentional self-inflicted injury.
                      f. Sample specification. 1995 Amendment. See 
                appendix 4, paragraph 177 of MCM, U.S. Army, 1949. 
                Since incapacitation to perform duties is not an 
                element of the offense, language relating to 
                ``unfitting himself for the full performance of 
                military service'' from the 1949 MCM has been omitted. 
                The phrase ``willfully injure'' has been changed to 
                read ``intentionally injure'' to parallel the language 
                contained in the malingering specification under 
                Article 115.''

                3. Changes to Appendix 22, the Analysis accompanying 
                the Military Rules of Evidence (Part III, MCM, 1984).

                a. M.R.E. 311(g)(2). The Analysis accompanying M.R.E. 
                311(g)(2) is amended by inserting the following at the 
                end thereof:

                    ``1995 Amendment: Subsection (g)(2) was amended to 
                clarify that in order for the defense to prevail on an 
                objection or motion under this rule, it must establish, 
                inter alia, that the falsity of the evidence was 
                ``knowing and intentional'' or in reckless disregard 
                for the truth. Accord Franks v. Delaware, 438 U.S. 154 
                (1978).''

                b. M.R.E. 506(e). The Analysis accompanying M.R.E. 
                506(e) is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment: It is the intent of the Committee 
                that if classified information arises during a 
                proceeding under Rule 506, the procedures of Rule 505 
                will be used.
                    The new subsection (e) was formerly subsection (f). 
                The matters in the former subsection (f) were adopted 
                without change. The former subsection (e) was amended 
                and redesignated as subsection (f) (see below).''

                c. M.R.E. 506(f). The Analysis accompanying M.R.E. 
                506(f) is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment. See generally Rule 505(f) and its 
                accompanying Analysis. Note that unlike Rule 505(f), 
                however, Rule 506(f) does not require a finding that 
                failure to disclose the information in question ``would 
                materially prejudice a substantial right of the 
                accused.'' Dismissal is not required when the relevant 
                information is not disclosed in a ``reasonable period 
                of time.''
                    Subsection (f) was formerly subsection (e). The 
                subsection was amended to cover action after a defense 
                motion for discovery, rather than action after referral 
                of charges. The qualification that the government claim 
                of privilege pertains to information ``that apparently 
                contains evidence that is relevant and necessary to an 
                element of the offense or a legally cognizable defense 
                and is otherwise admissible in evidence in a court-
                martial proceeding'' was deleted as unnecessary. Action 
                by the convening authority is required if, after 
                referral, the defense moves for disclosure and the 
                Government claims the information is privileged from 
                disclosure.''

                d. M.R.E. 506(h). The Analysis accompanying M.R.E. 
                506(h) is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment: Subsection (h) was amended to 
                provide that government information may not be 
                disclosed by the accused unless authorized by the 
                military judge.'' [[Page 26663]] 

                e. M.R.E. 506(i). The Analysis accompanying M.R.E. 
                506(i) is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment: Subsection (i) was amended to 
                clarify the procedure for in camera proceedings. The 
                definition in subsection (i)(1) was amended to conform 
                to the definition of in camera proceedings in M.R.E. 
                505(i)(1). Subsections (i)(2) and (i)(3) were 
                unchanged. Subsection (i)(4)(B), redesignated as 
                (i)(4)(C), was amended to include admissible evidence 
                relevant to punishment of the accused, consistent with 
                Brady v. Maryland, 373 U.S. 83, 87 (1963). Subsection 
                (i)(4)(C) was redesignated as (i)(4)(D), but was 
                otherwise unchanged. The amended procedures provide for 
                full disclosure of the government information in 
                question to the accused for purposes of litigating the 
                admissibility of the information in the protected 
                environment of the in camera proceeding; i.e., the 
                Article 39(a) session is closed to the public and 
                neither side may disclose the information outside the 
                in camera proceeding until the military judge admits 
                the information as evidence in the trial. Under 
                subsection (i)(4)(E), the military judge may authorize 
                alternatives to disclosure, consistent with a military 
                judge's authority concerning classified information 
                under M.R.E. 505. Subsection (i)(4)(F) allows the 
                Government to determine whether the information 
                ultimately will be disclosed to the accused. However, 
                the Government's continued objection to disclosure may 
                be at the price of letting the accused go free, in that 
                subsection (i)(4)(F) adopts the sanctions available to 
                the military judge under M.R.E. 505(i)(4)(E). See U.S. 
                v. Reynolds, 345 U.S. 1, 12 (1953).''

                f. M.R.E. 506(j). The Analysis accompanying M.R.E. 
                506(j) is amended by inserting the following at the end 
                thereof:

                    ``1995 Amendment: Subsection (j) was added to 
                recognize the Government's right to appeal certain 
                rulings and orders. See R.C.M. 908. The former 
                subsection (j) was redesignated as subsection (k). The 
                subsection speaks only to government appeals; the 
                defense still may seek extraordinary relief through 
                interlocutory appeal of the military judge's orders and 
                rulings. See generally, 28 U.S.C. Sec. 1651(a); Waller 
                v. Swift, 30 M.J. 139 (C.M.A. 1990); Dettinger v. 
                United States, 7 M.J. 216 (C.M.A. 1979).''

                g. M.R.E. 506(j) and (k). The Analyses accompanying 
                M.R.E. 506(j) and M.R.E. 506(k) are redesignated as 
                subdivisions (k) and (l), respectively.
                Changes to the Discussion Accompanying the Manual for 
                Courts-Martial, United States, 1984.

                A. The Discussion accompanying Part I., Preamble, 
                paragraph. 4., is amended by inserting the following at 
                the end thereof:

                    ``The 1995 amendment to paragraph 4 of the Preamble 
                is intended to eliminate the practice of identifying 
                the Manual for Courts-Martial, United States, by a 
                particular year. As long as the Manual was published in 
                its entirety sporadically (e.g., 1917, 1921, 1928, 
                1949, 1951, 1969 and 1984), with amendments to it 
                published piecemeal, it was logical to identify the 
                Manual by the calendar year of publication, with 
                periodic amendments identified as ``Changes'' to the 
                Manual. The more frequent publication of a new edition 
                of the Manual, however, means that it is more 
                appropriately identified by the calendar year of 
                edition. Amendments made in a particular calendar year 
                will be identified by publishing the relevant Executive 
                order containing those amendments in its entirety in a 
                Manual appendix.''

                B. Subsection 2(B)(ii) of the Discussion following 
                R.C.M. 202(a) is amended to read as follows:

                    ``(ii) Effect of discharge and reenlistment. For 
                offenses occurring on or after 23 October 1992, under 
                the 1992 Amendment to Article 3(a), a person who 
                reenlists following a discharge may be tried for 
                offenses committed during the earlier term of service. 
                For offenses occurring prior to 23 October 1992, a 
                person who reenlists following a discharge may be tried 
                for offenses committed during the earlier term of 
                service only if the offense was punishable by 
                confinement for five (5) years or more and could not be 
                tried [[Page 26664]] in the courts of the United States 
                or of a State, a Possession, a Territory, or the 
                District of Columbia. However, see (iii)(a) below.''

                C. Subsections 2(B)(iii) and 2(B)(iii)(a) of the 
                Discussion following R.C.M. 202(a) are amended to read 
                as follows:

                    ``(iii) Exceptions. There are several exceptions to 
                the general principle that court-martial jurisdiction 
                terminates on discharge or its equivalent.
                      (a) A person who was subject to the code at the 
                time an offense was committed may be tried by court-
                martial for that offense despite a later discharge or 
                other termination of that status if:
                      (1) For offenses occurring on or after 23 October 
                1992, the person is, at the time of the court-martial, 
                subject to the code, by reentry into the armed forces 
                or otherwise. See Article 3(a) as amended by the 
                National Defense Authorization Act for Fiscal Year 
                1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992);
                      (2) For offenses occurring before 23 October 
                1992,
                      (A) The offense is one for which a court-martial 
                may adjudge confinement for five (5) or more years;
                      (B) The person cannot be tried in the courts of 
                the United States or of a State, a Possession, a 
                Territory, or the District of Columbia; and
                      (C) The person is, at the time of the court-
                martial, subject to the code, by reentry into the armed 
                forces or otherwise. See Article 3(a) prior to the 1992 
                amendment.''

                D. The Discussion following R.C.M. 203 is amended to 
                read as follows:

                    ``(a) In general. Courts-martial have power to try 
                any offense under the code except when prohibited from 
                so doing by the Constitution. The rule enunciated in 
                Solorio v. United States, 483 U.S. 435 (1987) is that 
                jurisdiction of courts-martial depends solely on the 
                accused's status as a person subject to the Uniform 
                Code of Military Justice, and not on the ``service 
                connection'' of the offense charged.
                    (b) Pleading and proof. Normally, the inclusion of 
                the accused's rank or grade will be sufficient to plead 
                the service status of the accused. Ordinarily, no 
                allegation of the accused's armed force or unit is 
                necessary for military members on active duty. See 
                R.C.M. 307 regarding required specificity of 
                pleadings.''

                E. Subparagraph (F) of the Discussion following R.C.M. 
                307(c)(3) is amended to read as follows:

                    ``(F) Subject-matter jurisdiction allegations. 
                Pleading the accused's rank or grade along with the 
                proper elements of the offense normally will be 
                sufficient to establish subject-matter jurisdiction.''

                F. The first two sentences of the Discussion following 
                R.C.M. 810(d)(1) are amended to read as follows:

                    ``In approving a sentence not in excess of one more 
                severe than one approved previously, a convening 
                authority is not limited to approving the same or 
                lesser amount of the same type of punishment formerly 
                approved. An appropriate sentence on a retried or 
                reheard offense should be adjudged without regard to 
                any credit to which the accused may be entitled.''

                G. The following Discussion is inserted after R.C.M. 
                902(d)(2):

                    ``Nothing in this rule prohibits the military judge 
                from reasonably limiting the presentation of evidence, 
                the scope of questioning, and argument on the subject 
                so as to ensure that only matters material to the 
                central issue of the military judge's possible 
                disqualification are considered, thereby, preventing 
                the proceedings from becoming a forum for unfounded 
                opinion, speculation or innuendo.''

                H. The Discussion following R.C.M. 1003(b)(6) is 
                amended to read as follows:

                      ``Restriction does not exempt the person on whom 
                it is imposed from any military duty. Restriction and 
                hard labor without confinement may be adjudged in the 
                same case provided they do not exceed the maximum 
                [[Page 26665]] limits for each. See subsection 
                (c)(1)(A)(ii) of this rule. The sentence adjudged 
                should specify the limits of the restriction.''

                I. The Discussion following R.C.M. 1105(b)(4) is 
                amended by adding the following sentence at the end 
                thereof:

                      ``If the sentencing authority makes a clemency 
                recommendation in conjunction with the announced 
                sentence, see R.C.M. 1106(d)(3)(B).''

                J. The following Discussion is inserted after R.C.M. 
                1106(d)(3)(B):

                      ``The recommendation required by this rule need 
                not include information regarding other recommendations 
                for clemency. See R.C.M. 1105(b)(5), which pertains to 
                clemency recommendations that may be submitted by the 
                accused to the convening authority.''

                K. The Discussion following R.C.M. 1107(d)(1) is 
                amended to read as follows:

                      ``A sentence adjudged by a court-martial may be 
                approved if it was within the jurisdiction of the 
                court-martial to adjudge (see R.C.M. 201(f)) and did 
                not exceed the maximum limits prescribed in Part IV and 
                Chapter X of this Part for the offense(s) of which the 
                accused legally has been found guilty.
                      When mitigating forfeitures, the duration and 
                amounts of forfeiture may be changed as long as the 
                total amount forfeited is not increased and neither the 
                amount nor duration of the forfeiture exceeds the 
                jurisdiction of the court-martial. When mitigating 
                confinement or hard labor without confinement, the 
                convening authority should use the equivalencies at 
                R.C.M. 1003(b)(6) and (7), as appropriate. One form of 
                punishment may be changed to a less severe punishment 
                of a different nature, as long as the changed 
                punishment is one that the court-martial could have 
                adjudged. For example, a bad-conduct discharge adjudged 
                by a special court-martial could be changed to 
                confinement for 6 months (but not vice versa). A 
                pretrial agreement may also affect what punishments may 
                be changed by the convening authority.
                      See also R.C.M. 810(d) concerning sentence 
                limitations upon a rehearing or new or other trial.''

                L. The Discussion following R.C.M. 1107(d)(2) is 
                amended by adding the following sentence at the end 
                thereof:

                      ``Since court-martial forfeitures constitute a 
                loss of entitlement of the pay concerned, they take 
                precedence over all debts.''

                M. The Discussion following R.C.M. 1107(d)(3) is 
                amended to read as follows:

                      ``The convening authority's decision to postpone 
                service of a court-martial sentence to confinement 
                normally should be reflected in the action.''

                N. The following Discussion is inserted after R.C.M. 
                1107(f)(2):

                      ``For purposes of this rule, a record is 
                considered to have been forwarded for review when the 
                convening authority has either delivered it in person 
                or has entrusted it for delivery to a third party over 
                whom the convening authority exercises no lawful 
                control (e.g., the United States Postal Service).''

                O. The following Discussion is inserted after R.C.M. 
                1113(d)(2)(A)(iii):

                      ``The convening authority's decision to postpone 
                service of a court-martial sentence to confinement 
                normally should be reflected in the action.''

                P. The Discussion following R.C.M. 1201(b)(1) is 
                amended to read as follows:

                      ``A case forwarded to a Court of Military Review 
                under this subsection is subject to review by the Court 
                of Military Appeals upon petition by the accused under 
                Article 67(a)(3) or when certified by the Judge 
                Advocate General under Article 67(a)(2).''

                Q. The Discussion following R.C.M. 1301(d)(1) is 
                amended to read as follows:

                    ``The maximum penalty which can be adjudged in a 
                summary court-martial is confinement for 30 days, 
                forfeiture of two-thirds pay per month for one month, 
                and reduction to the lowest pay grade. See subsection 
                (2) below for additional limits on enlisted persons 
                serving in pay grades above the fourth enlisted pay 
                grade.
                    A summary court-martial may not suspend all or part 
                of a sentence, although the summary court-martial may 
                recommend to the convening au [[Page 26666]] thority 
                that all or part of a sentence be suspended. If a 
                sentence includes both reduction in grade and 
                forfeitures, the maximum forfeiture is calculated at 
                the reduced pay grade. See also R.C.M. 1003 concerning 
                other punishments which may be adjudged, the effects of 
                certain types of punishment, and combination of certain 
                types of punishment. The summary court-martial should 
                ascertain the effect of Article 58a in that armed 
                force.''
                Changes to the Maximum Punishment Chart of the Manual 
                for Courts-Martial, United States, 1984.

                Appendix 12, the Maximum Punishment Chart, is amended 
                by adding after Art. 134 (Seizure, destruction, 
                removal, or disposal of property to prevent) the 
                following:

                    ``Self-injury without intent to avoid service In 
                time of war, or while receiving special pay under
                    37 U.S.C. 310.... DD    5 yrs.    Total
                    Other................. DD    2 yrs.    Total''

[FR Doc. 95-12285
Filed 5-15-95; 2:56 pm]
Billing code 5000-04-P

Citation: 60 FR 26647
 

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