2005 Amendments to the Manual for Courts-Martial, United States, 60697-60714 [05-20944]
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60697
Presidential Documents
Federal Register
Vol. 70, No. 200
Tuesday, October 18, 2005
Title 3—
Executive Order 13387 of October 14, 2005
The President
2005 Amendments to the Manual for Courts-Martial, United
States
By the authority vested in me as President by the Constitution and the
laws of the United States of America, including chapter 47 of title 10,
United States Code (Uniform Code of Military Justice, 10 U.S.C. 801–946),
and in order to prescribe amendments to the Manual for Courts-Martial,
United States, prescribed by Executive Order 12473, as amended, it is hereby
ordered as follows:
Section 1. Part II of the Manual for Courts-Martial, United States, is
amended as follows:
(a) R.C.M. 103(2) is amended by replacing the word ‘‘without’’ with the
word ‘‘with’’ and by replacing the word ‘‘noncapital’’ with the word ‘‘capital’’.
(b) R.C.M. 201(e)(2)(B) is amended by adding the word ‘‘general’’ between
the words ‘‘convene’’ and ‘‘courts-martial’’ and by inserting the following
words after ‘‘armed forces’’:
‘‘assigned or attached to a combatant command or joint command’’.
(c) R.C.M. 201(e)(2)(C) is amended by inserting the words ‘‘assigned or
attached to a joint command or joint task force,’’ immediately before the
words ‘‘under regulations which the superior command may prescribe’’.
(d) R.C.M. 201(e)(3) is amended by inserting the following immediately
after the words ‘‘armed force’’:
‘‘, using the implementing regulations and procedures prescribed by the
Secretary concerned of the military service of the accused,’’.
(e) R.C.M. 201(e)(4) is amended by adding the words ‘‘, member, or counsel’’ after the words ‘‘military judge’’.
(f) R.C.M. 201(f)(1)(A)(iii)(b) is amended to read as follows:
‘‘(b) The case has not been referred with a special instruction that the
case is to be tried as capital.’’
(g) R.C.M. 307(c)(4) is amended by inserting the following at the end
thereof:
‘‘What is substantially one transaction should not be made the basis for
an unreasonable multiplication of charges against one person.’’
(h) R.C.M. 501(a)(1) is amended to read as follows:
‘‘(1) General courts-martial.
(A) Except in capital cases, general courts-martial shall consist of a military
judge and not less than five members, or of the military judge alone if
requested and approved under R.C.M. 903.
(B) In all capital cases, general courts-martial shall consist of a military
judge and no fewer than 12 members, unless 12 members are not reasonably
available because of physical conditions or military exigencies. If 12 members
are not reasonably available, the convening authority shall detail the next
lesser number of reasonably available members under 12, but in no event
fewer than five. In such a case, the convening authority shall state in
the convening order the reasons why 12 members are not reasonably available.’’
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(i) R.C.M. 503(a)(3) is amended by deleting ‘‘court-martial’’ and inserting
‘‘courts-martial’’ in lieu thereof.
(j) R.C.M. 503(b)(3) is amended by inserting the words ‘‘, a combatant
command or joint command’’ after the words ‘‘A military judge from one
armed force may be detailed to a court-martial convened in a different
armed force’’.
(k) R.C.M. 503(c)(3) is amended by inserting the words ‘‘, a combatant
command or joint command’’ after the words ‘‘A person from one armed
force may be detailed to serve as counsel in a court-martial in a different
armed force’’.
(l) R.C.M. 504, (b)(2)(A) is amended by inserting the following at the
end thereof:
‘‘A subordinate joint command or joint task force is ordinarily considered
to be ‘‘separate or detached.’’’’
(m) R.C.M. 504, (b)(2)(B) is amended by deleting the word ‘‘or’’ at the
end of the first element thereof, by deleting the period and adding ‘‘ ;
or’’ at the end of the second element thereof, and by inserting the following
as a third element:
‘‘(iii) In a combatant command or joint command, by the officer exercising
general court-martial jurisdiction over the command.’’
(n) R.C.M. 805(b) is amended by replacing the current second sentence
with the following:
‘‘No general court-martial proceeding requiring the presence of members
may be conducted unless at least five members are present, or in capital
cases, at least 12 members are present except as provided in R.C.M.
501(a)(1)(B), where 12 members are not reasonably available because of
physical conditions or military exigencies. No special court-martial proceeding requiring the presence of members may be conducted unless at
least three members are present except as provided in R.C.M. 912(h).’’
(o) R.C.M. 912(f)(4) is amended by deleting the fifth sentence and by
inserting the following words immediately after the words ‘‘When a challenge
for cause has been denied’’ in the fourth sentence:
‘‘the successful use of a peremptory challenge by either party, excusing
the challenged member from further participation in the court-martial, shall
preclude further consideration of the challenge of that excused member
upon later review. Further,’’
(p) R.C.M. 1003(b)(2) is amended by replacing the word ‘‘foreign’’ with
the word ‘‘hardship.’’
(q) R.C.M. 1004(b) is amended by inserting the following after ‘‘(1) Notice.’’
and before the word ‘‘Before’’:
‘‘(A) Referral. The convening authority shall indicate that the case is
to be tried as a capital case by including a special instruction in the referral
block of the charge sheet. Failure to include this special instruction at
the time of the referral shall not bar the convening authority from later
adding the required special instruction, provided:
(i) that the convening authority has otherwise complied with the notice
requirement of subsection (B); and
(ii) that if the accused demonstrates specific prejudice from such failure
to include the special instruction, a continuance or a recess is an adequate
remedy.
(B) Arraignment.’’
(r) Insert the following new R.C.M. 1103A after R.C.M. 1103:
‘‘Rule 1103A. Sealed exhibits and proceedings.
(a) In general. If the record of trial contains exhibits, proceedings, or
other matter ordered sealed by the military judge, the trial counsel shall
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cause such materials to be sealed so as to prevent indiscriminate viewing
or disclosure. Trial counsel shall ensure that such materials are properly
marked, including an annotation that the material was sealed by order
of the military judge, and inserted at the appropriate place in the original
record of trial. Copies of the record shall contain appropriate annotations
that matters were sealed by order of the military judge and have been
inserted in the original record of trial. This Rule shall be implemented
in a manner consistent with Executive Order 12958, as amended, concerning
classified national security information.
(b) Examination of sealed exhibits and proceedings. Except as provided
in the following subsections to this rule, sealed exhibits may not be examined.
(1) Examination of sealed matters. For the purpose of this rule, ‘‘examination’’ includes reading, viewing, photocopying, photographing, disclosing,
or manipulating the documents in any way.
(2) Prior to authentication. Prior to authentication of the record by the
military judge, sealed materials may not be examined in the absence of
an order from the military judge based on good cause shown.
(3) Authentication through action. After authentication and prior to disposition of the record of trial pursuant to Rule for Courts-Martial 1111, sealed
materials may not be examined in the absence of an order from the military
judge upon a showing of good cause at a post-trial Article 39a session
directed by the Convening Authority.
(4) Reviewing and appellate authorities.
(A) Reviewing and appellate authorities may examine sealed matters when
those authorities determine that such action is reasonably necessary to a
proper fulfillment of their responsibilities under the Uniform Code of Military
Justice, the Manual for Courts-Martial, governing directives, instructions,
regulations, applicable rules for practice and procedure, or rules of professional responsibility.
(B) Reviewing and appellate authorities shall not, however, disclose sealed
matter or information in the absence of:
(i) Prior authorization of the Judge Advocate General in the case of review
under Rule for Courts-Martial 1201(b); or
(ii) Prior authorization of the appellate court before which a case is pending
review under Rules for Courts-Martial 1203 and 1204.
(C) In those cases in which review is sought or pending before the United
States Supreme Court, authorization to disclose sealed materials or information shall be obtained under that Court’s rules of practice and procedure.
(D) The authorizing officials in paragraph (B)(ii) above may place conditions on authorized disclosures in order to minimize the disclosure.
(E) For purposes of this rule, reviewing and appellate authorities are
limited to:
(i) Judge advocates reviewing records pursuant to Rule for Courts-Martial
1112;
(ii) Officers and attorneys in the office of the Judge Advocate General
reviewing records pursuant to Rule for Courts-Martial 1201(b);
(iii) Appellate government counsel;
(iv) Appellate defense counsel;
(v) Appellate judges of the Courts of Criminal Appeals and their professional staffs;
(vi) The judges of the United States Court of Appeals for the Armed
Forces and their professional staffs;
(vii) The Justices of the United States Supreme Court and their professional
staffs; and
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(viii) Any other court of competent jurisdiction.’’
(s) R.C.M. 1301(a) is amended by inserting the following after the second
sentence:
‘‘Summary courts-martial shall be conducted in accordance with the regulations of the military service to which the accused belongs.’’
Sec. 2. Part III of the Manual for Courts-Martial, United States, is amended
as follows:
Mil. R. Evid. 317(b) is amended by replacing the word ‘‘Transportation’’
with the words ‘‘Homeland Security.’’
Sec. 3. Part IV of the Manual for Courts-Martial, United States, is amended
as follows:
(a) Paragraph 14c(2)(a) is amended by inserting the following new subparagraph (ii) and renumbering existing subparagraphs (a)(ii) through (iv) as
(a)(iii) through (v):
‘‘(ii) Determination of lawfulness. The lawfulness of an order is a question
of law to be determined by the military judge.’’
(b) Paragraph 16(c)(1)(a) is amended by replacing the word ‘‘Transportation’’ with the words ‘‘Homeland Security’’.
(c) Paragraph 35a is amended to read as follows:
‘‘a. Text.
(a) 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 equal to or exceeds the level prohibited under subsection (b),
as shown by chemical analysis, shall be punished as a court-martial may
direct.
(b)(1) For purposes of subsection (a), the applicable level of the alcohol
concentration in a person’s blood or breath is as follows:
(A) In the case of the operation or control of a vehicle, aircraft, or vessel
in the United States, the level is the blood alcohol concentration prohibited
under the law of the State in which the conduct occurred, except as may
be provided under paragraph (b)(2) for conduct on a military installation
that is in more than one State, or the prohibited alcohol concentration
level specified in paragraph (b)(3).
(B) In the case of the operation or control of a vehicle, aircraft, or vessel
outside the United States, the level is the blood alcohol concentration specified in paragraph (b)(3) or such lower level as the Secretary of Defense
may by regulation prescribe.
(2) In the case of a military installation that is in more than one State,
if those States have different levels for defining their prohibited blood alcohol
concentrations under their respective State laws, the Secretary concerned
for the installation may select one such level to apply uniformly on that
installation.
(3) For purposes of paragraph (b)(1), the level of alcohol concentration
prohibited in a person’s blood is 0.10 grams or more of alcohol per 100
milliliters of blood and with respect to alcohol concentration in a person’s
breath is 0.10 grams or more of alcohol per 210 liters of breath, as shown
by chemical analysis.’’
(4) In this subsection, the term ‘‘United States’’ includes the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
and American Samoa, and the term ‘‘State’’ includes each of those jurisdictions.’’
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(d) Paragraph 35b(2)(c) is amended to read as follows:
‘‘(c) the alcohol concentration level in the accused’s blood or breath,
as shown by chemical analysis, was equal to or exceeded the applicable
level provided in paragraph 35a above.’’
(e) Paragraph 35f is amended as follows:
‘‘In that ______(personal jurisdiction data), did (at/on board—required),
on or about 20___, (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)(breath) was, as shown
by chemical analysis, equal to or exceeded (.10) (___) grams of alcohol
per (100 milliliters of blood) (210 liters of breath), which is the limit under
(cite applicable State law) (cite applicable statute or regulation)] [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
______ )].’’
(f) Paragraph 97 is amended by (1) inserting the following new subparagraph (b)(2) and renumbering the existing subparagraphs (b)(2) and (b)(3)
as (b)(3) and (b)(4); (2) adding the words ‘‘and patronizing a prostitute’’
after the word ‘‘Prostitution’’ in subparagraph (e)(1); and (3) inserting the
following new subparagraph (f)(2) and renumbering the existing subparagraphs (f)(2) and (f)(3) as (f)(3) and (f)(4):
‘‘(b)(2) Patronizing a prostitute.
(a) That the accused had sexual intercourse with another person not
the accused’s spouse;
(b) That the accused compelled, induced, enticed, or procured such person
to engage in an act of sexual intercourse in exchange for money or other
compensation; and
(c) That this act was wrongful; and
(d) 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.’’
‘‘(f)(2) Patronizing a prostitute.
In that ___ (personal jurisdiction data), did, (at/on board—location) (subjectmatter jurisdiction data, if required), on or about ___20___, wrongfully (compel) (induce) (entice) (procure) ___ , a person not his/her spouse, to engage
in (an act) (acts) of sexual intercourse with the accused in exchange for
(money) (______).’’
(g) Paragraph 109 is amended to read as follows:
‘‘109. ARTICLE 134—(Threat or hoax designed or intended to cause panic
or public fear)
a. Text. See paragraph 60.
b. Elements.
(1) Threat.
(a) That the accused communicated certain language;
(b) That the information communicated amounted to a threat;
(c) That the harm threatened was to be done by means of an explosive;
weapon of mass destruction; biological or chemical agent, substance, or
weapon; or hazardous material;
(d) That the communication was wrongful; and
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(e) 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.
(2) Hoax.
(a) That the accused communicated or conveyed certain information;
(b) That the information communicated or conveyed concerned an attempt
being made or to be made by means of an explosive; weapon of mass
destruction; biological or chemical agent, substance, or weapon; or hazardous
material, to unlawfully kill, injure, or intimidate a person or to unlawfully
damage or destroy certain property;
(c) That the information communicated or conveyed by the accused was
false and that the accused then knew it to be false;
(d) That the communication of the information by the accused was malicious; and
(e) 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.
c. Explanation.
(1) Threat. A ‘‘threat’’ means an expressed present determination or intent
to kill, injure, or intimidate a person or to damage or destroy certain property
presently or in the future. Proof that the accused actually intended to kill,
injure, intimidate, damage, or destroy is not required.
(2) Explosive. ‘‘Explosive’’ means gunpowder, powders used for blasting,
all forms of high explosives, blasting materials, fuses (other than electrical
circuit breakers), detonators, and other detonating agents, smokeless powders,
any explosive bomb, grenade, missile, or similar device, and any incendiary
bomb or grenade, fire bomb, or similar device, and any other explosive
compound, mixture, or similar material.
(3) Weapon of mass destruction. A weapon of mass destruction means
any device, explosive or otherwise, that is intended, or has the capability,
to cause death or serious bodily injury to a significant number of people
through the release, dissemination, or impact of: toxic or poisonous chemicals, or their precursors; a disease organism; or radiation or radioactivity.
(4) Biological agent. The term ‘‘biological agent’’ means 12 any microorganism (including bacteria, viruses, fungi, rickettsiac, or protozoa), pathogen, or infectious substance, and any naturally occurring, bioengineered,
or synthesized component of any such micro-organism, pathogen, or infectious substance, whatever its origin or method of production, that is capable
of causing—
(a) death, disease, or other biological malfunction in a human, an animal,
a plant, or another living organism;
(b) deterioration of food, water, equipment, supplies, or materials of any
kind; or
(c) deleterious alteration of the environment.
(5) Chemical agent, substance, or weapon. A chemical agent, substance,
or weapon refers to a toxic chemical and its precursors or a munition
or device, specifically designed to cause death or other harm through toxic
properties of those chemicals that would be released as a result of the
employment of such munition or device, and any equipment specifically
designed for use directly in connection with the employment of such munitions or devices.
(6) Hazardous material. A substance or material (including explosive,
radioactive material, etiologic agent, flammable or combustible liquid or
solid, poison, oxidizing or corrosive material, and compressed gas, or mixture
thereof) or a group or class of material designated as hazardous by the
Secretary of Transportation.
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(7) Malicious. A communication is ‘‘malicious’’ if the accused believed
that the information would probably interfere with the peaceful use of
the building, vehicle, aircraft, or other property concerned, or would cause
fear or concern to one or more persons.
d. Lesser included offenses.
(1) Threat
(a) Article 134—communicating a threat
(b) Article 80—attempts
(c) Article 128—assault
(2) Hoax. Article 80—attempts
e. Maximum punishment. Dishonorable discharge, forfeitures of all pay
and allowances, and confinement for 10 years.
f. Sample specifications.
(1) Threat.
In that ______ (personal jurisdiction data) did, (at/on board—location)
on or about _____20___, wrongfully communicate certain information, to
wit: ______, which language constituted a threat to harm a person or property
by means of a(n) [explosive; weapon of mass destruction; biological agent,
substance, or weapon; chemical agent, substance, or weapon; and/or (a)
hazardous material(s)].
(2) Hoax.
In that ______ (personal jurisdiction data) did, (at/on board—location),
on or about ______20____, maliciously (communicate) (convey) certain information concerning an attempt being made or to be made to unlawfully
[(kill) (injure) (intimidate) ______] [(damage) (destroy) ______] by means of
a(n) [explosive; weapon of mass destruction; biological agent, substance,
or weapon; chemical agent, substance, or weapon; and/or (a) hazardous
material(s)], to wit: ___, which information was false and which the accused
then knew to be false.’’
Sec. 4. Part V of the Manual for Courts-Martial, United States, is amended
as follows:
(a) Paragraph 1(h) is amended by redesignating existing paragraph 1(h)
as 1(i) and inserting the following new paragraph 1(h):
‘‘h. Applicable standards. Unless otherwise provided, the service regulations and procedures of the servicemember shall apply.’’
(b) Paragraph 2(a) is amended by replacing the words ‘‘Unless otherwise’’
with the word ‘‘As’’.
(c) Paragraph 2(a) is amended by inserting the following after the second
sentence:
‘‘Commander includes a commander of a joint command.’’
(d) Paragraph 2(a) is amended by inserting the words ‘‘of a commander’’
in the third sentence after the words ‘‘the authority.’’
Sec. 5. These amendments shall take effect 30 days from the date of this
order.
(a) Nothing in these amendments shall be construed to make punishable
any act done or omitted prior to the effective date of this order that was
not punishable when done or omitted.
(b) 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 the effective date of this order, and any such nonjudicial punishment
proceeding, restraint, investigation, referral of charges, trial, or other action
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may proceed in the same manner and with the same effect as if these
amendments had not been prescribed.
W
THE WHITE HOUSE,
October 14, 2005.
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[FR Doc. 05–20944
Filed 10–17–05 8:45 am]
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Billing code 5000–04–C
]]>Agencies
[Federal Register Volume 70, Number 200 (Tuesday, October 18, 2005)]
[Presidential Documents]
[Pages 60697-60714]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-20944]
[[Page 60695]]
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Part IV
The President
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Executive Order 13387--2005 Amendments to the Manual for Courts-
Martial, United States
Presidential Documents
Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 /
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 60697]]
Executive Order 13387 of October 14, 2005
2005 Amendments to the Manual for Courts-Martial,
United States
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including chapter 47 of title 10, United
States Code (Uniform Code of Military Justice, 10
U.S.C. 801-946), and in order to prescribe amendments
to the Manual for Courts-Martial, United States,
prescribed by Executive Order 12473, as amended, it is
hereby ordered as follows:
Section 1. Part II of the Manual for Courts-
Martial, United States, is amended as follows:
(a) R.C.M. 103(2) is amended by replacing the word
``without'' with the word ``with'' and by replacing the
word ``noncapital'' with the word ``capital''.
(b) R.C.M. 201(e)(2)(B) is amended by adding the
word ``general'' between the words ``convene'' and
``courts-martial'' and by inserting the following words
after ``armed forces'':
``assigned or attached to a combatant command or
joint command''.
(c) R.C.M. 201(e)(2)(C) is amended by inserting the
words ``assigned or attached to a joint command or
joint task force,'' immediately before the words
``under regulations which the superior command may
prescribe''.
(d) R.C.M. 201(e)(3) is amended by inserting the
following immediately after the words ``armed force'':
``, using the implementing regulations and
procedures prescribed by the Secretary concerned of the
military service of the accused,''.
(e) R.C.M. 201(e)(4) is amended by adding the words
``, member, or counsel'' after the words ``military
judge''.
(f) R.C.M. 201(f)(1)(A)(iii)(b) is amended to read
as follows:
``(b) The case has not been referred with a special
instruction that the case is to be tried as capital.''
(g) R.C.M. 307(c)(4) is amended by inserting the
following at the end thereof:
``What is substantially one transaction should not
be made the basis for an unreasonable multiplication of
charges against one person.''
(h) R.C.M. 501(a)(1) is amended to read as follows:
``(1) General courts-martial.
(A) Except in capital cases, general courts-martial
shall consist of a military judge and not less than
five members, or of the military judge alone if
requested and approved under R.C.M. 903.
(B) In all capital cases, general courts-martial
shall consist of a military judge and no fewer than 12
members, unless 12 members are not reasonably available
because of physical conditions or military exigencies.
If 12 members are not reasonably available, the
convening authority shall detail the next lesser number
of reasonably available members under 12, but in no
event fewer than five. In such a case, the convening
authority shall state in the convening order the
reasons why 12 members are not reasonably available.''
[[Page 60698]]
(i) R.C.M. 503(a)(3) is amended by deleting
``court-martial'' and inserting ``courts-martial'' in
lieu thereof.
(j) R.C.M. 503(b)(3) is amended by inserting the
words ``, a combatant command or joint command'' after
the words ``A military judge from one armed force may
be detailed to a court-martial convened in a different
armed force''.
(k) R.C.M. 503(c)(3) is amended by inserting the
words ``, a combatant command or joint command'' after
the words ``A person from one armed force may be
detailed to serve as counsel in a court-martial in a
different armed force''.
(l) R.C.M. 504, (b)(2)(A) is amended by inserting
the following at the end thereof:
``A subordinate joint command or joint task force
is ordinarily considered to be ``separate or
detached.''''
(m) R.C.M. 504, (b)(2)(B) is amended by deleting
the word ``or'' at the end of the first element
thereof, by deleting the period and adding `` ; or'' at
the end of the second element thereof, and by inserting
the following as a third element:
``(iii) In a combatant command or joint command, by
the officer exercising general court-martial
jurisdiction over the command.''
(n) R.C.M. 805(b) is amended by replacing the
current second sentence with the following:
``No general court-martial proceeding requiring the
presence of members may be conducted unless at least
five members are present, or in capital cases, at least
12 members are present except as provided in R.C.M.
501(a)(1)(B), where 12 members are not reasonably
available because of physical conditions or military
exigencies. No special court-martial proceeding
requiring the presence of members may be conducted
unless at least three members are present except as
provided in R.C.M. 912(h).''
(o) R.C.M. 912(f)(4) is amended by deleting the
fifth sentence and by inserting the following words
immediately after the words ``When a challenge for
cause has been denied'' in the fourth sentence:
``the successful use of a peremptory challenge by
either party, excusing the challenged member from
further participation in the court-martial, shall
preclude further consideration of the challenge of that
excused member upon later review. Further,''
(p) R.C.M. 1003(b)(2) is amended by replacing the
word ``foreign'' with the word ``hardship.''
(q) R.C.M. 1004(b) is amended by inserting the
following after ``(1) Notice.'' and before the word
``Before'':
``(A) Referral. The convening authority shall
indicate that the case is to be tried as a capital case
by including a special instruction in the referral
block of the charge sheet. Failure to include this
special instruction at the time of the referral shall
not bar the convening authority from later adding the
required special instruction, provided:
(i) that the convening authority has otherwise
complied with the notice requirement of subsection (B);
and
(ii) that if the accused demonstrates specific
prejudice from such failure to include the special
instruction, a continuance or a recess is an adequate
remedy.
(B) Arraignment.''
(r) Insert the following new R.C.M. 1103A after
R.C.M. 1103:
``Rule 1103A. Sealed exhibits and proceedings.
(a) In general. If the record of trial contains
exhibits, proceedings, or other matter ordered sealed
by the military judge, the trial counsel shall
[[Page 60699]]
cause such materials to be sealed so as to prevent
indiscriminate viewing or disclosure. Trial counsel
shall ensure that such materials are properly marked,
including an annotation that the material was sealed by
order of the military judge, and inserted at the
appropriate place in the original record of trial.
Copies of the record shall contain appropriate
annotations that matters were sealed by order of the
military judge and have been inserted in the original
record of trial. This Rule shall be implemented in a
manner consistent with Executive Order 12958, as
amended, concerning classified national security
information.
(b) Examination of sealed exhibits and proceedings.
Except as provided in the following subsections to this
rule, sealed exhibits may not be examined.
(1) Examination of sealed matters. For the purpose
of this rule, ``examination'' includes reading,
viewing, photocopying, photographing, disclosing, or
manipulating the documents in any way.
(2) Prior to authentication. Prior to
authentication of the record by the military judge,
sealed materials may not be examined in the absence of
an order from the military judge based on good cause
shown.
(3) Authentication through action. After
authentication and prior to disposition of the record
of trial pursuant to Rule for Courts-Martial 1111,
sealed materials may not be examined in the absence of
an order from the military judge upon a showing of good
cause at a post-trial Article 39a session directed by
the Convening Authority.
(4) Reviewing and appellate authorities.
(A) Reviewing and appellate authorities may examine
sealed matters when those authorities determine that
such action is reasonably necessary to a proper
fulfillment of their responsibilities under the Uniform
Code of Military Justice, the Manual for Courts-
Martial, governing directives, instructions,
regulations, applicable rules for practice and
procedure, or rules of professional responsibility.
(B) Reviewing and appellate authorities shall not,
however, disclose sealed matter or information in the
absence of:
(i) Prior authorization of the Judge Advocate
General in the case of review under Rule for Courts-
Martial 1201(b); or
(ii) Prior authorization of the appellate court
before which a case is pending review under Rules for
Courts-Martial 1203 and 1204.
(C) In those cases in which review is sought or
pending before the United States Supreme Court,
authorization to disclose sealed materials or
information shall be obtained under that Court's rules
of practice and procedure.
(D) The authorizing officials in paragraph (B)(ii)
above may place conditions on authorized disclosures in
order to minimize the disclosure.
(E) For purposes of this rule, reviewing and
appellate authorities are limited to:
(i) Judge advocates reviewing records pursuant to
Rule for Courts-Martial 1112;
(ii) Officers and attorneys in the office of the
Judge Advocate General reviewing records pursuant to
Rule for Courts-Martial 1201(b);
(iii) Appellate government counsel;
(iv) Appellate defense counsel;
(v) Appellate judges of the Courts of Criminal
Appeals and their professional staffs;
(vi) The judges of the United States Court of
Appeals for the Armed Forces and their professional
staffs;
(vii) The Justices of the United States Supreme
Court and their professional staffs; and
[[Page 60700]]
(viii) Any other court of competent jurisdiction.''
(s) R.C.M. 1301(a) is amended by inserting the
following after the second sentence:
``Summary courts-martial shall be conducted in
accordance with the regulations of the military service
to which the accused belongs.''
Sec. 2. Part III of the Manual for Courts-Martial,
United States, is amended as follows:
Mil. R. Evid. 317(b) is amended by replacing the
word ``Transportation'' with the words ``Homeland
Security.''
Sec. 3. Part IV of the Manual for Courts-Martial,
United States, is amended as follows:
(a) Paragraph 14c(2)(a) is amended by inserting the
following new subparagraph (ii) and renumbering
existing subparagraphs (a)(ii) through (iv) as (a)(iii)
through (v):
``(ii) Determination of lawfulness. The lawfulness
of an order is a question of law to be determined by
the military judge.''
(b) Paragraph 16(c)(1)(a) is amended by replacing
the word ``Transportation'' with the words ``Homeland
Security''.
(c) Paragraph 35a is amended to read as follows:
``a. Text.
(a) 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 equal to or exceeds the level prohibited
under subsection (b), as shown by chemical analysis,
shall be punished as a court-martial may direct.
(b)(1) For purposes of subsection (a), the
applicable level of the alcohol concentration in a
person's blood or breath is as follows:
(A) In the case of the operation or control of a
vehicle, aircraft, or vessel in the United States, the
level is the blood alcohol concentration prohibited
under the law of the State in which the conduct
occurred, except as may be provided under paragraph
(b)(2) for conduct on a military installation that is
in more than one State, or the prohibited alcohol
concentration level specified in paragraph (b)(3).
(B) In the case of the operation or control of a
vehicle, aircraft, or vessel outside the United States,
the level is the blood alcohol concentration specified
in paragraph (b)(3) or such lower level as the
Secretary of Defense may by regulation prescribe.
(2) In the case of a military installation that is
in more than one State, if those States have different
levels for defining their prohibited blood alcohol
concentrations under their respective State laws, the
Secretary concerned for the installation may select one
such level to apply uniformly on that installation.
(3) For purposes of paragraph (b)(1), the level of
alcohol concentration prohibited in a person's blood is
0.10 grams or more of alcohol per 100 milliliters of
blood and with respect to alcohol concentration in a
person's breath is 0.10 grams or more of alcohol per
210 liters of breath, as shown by chemical analysis.''
(4) In this subsection, the term ``United States''
includes the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, and American
Samoa, and the term ``State'' includes each of those
jurisdictions.''
[[Page 60701]]
(d) Paragraph 35b(2)(c) is amended to read as
follows:
``(c) the alcohol concentration level in the
accused's blood or breath, as shown by chemical
analysis, was equal to or exceeded the applicable level
provided in paragraph 35a above.''
(e) Paragraph 35f is amended as follows:
``In that -------- ----(personal jurisdiction
data), did (at/on board--required), on or about 20----
--, (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)(breath) was, as
shown by chemical analysis, equal to or exceeded (.10)
(---- --) grams of alcohol per (100 milliliters of
blood) (210 liters of breath), which is the limit under
(cite applicable State law) (cite applicable statute or
regulation)] [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
------ ------ )].''
(f) Paragraph 97 is amended by (1) inserting the
following new subparagraph (b)(2) and renumbering the
existing subparagraphs (b)(2) and (b)(3) as (b)(3) and
(b)(4); (2) adding the words ``and patronizing a
prostitute'' after the word ``Prostitution'' in
subparagraph (e)(1); and (3) inserting the following
new subparagraph (f)(2) and renumbering the existing
subparagraphs (f)(2) and (f)(3) as (f)(3) and (f)(4):
``(b)(2) Patronizing a prostitute.
(a) That the accused had sexual intercourse with
another person not the accused's spouse;
(b) That the accused compelled, induced, enticed,
or procured such person to engage in an act of sexual
intercourse in exchange for money or other
compensation; and
(c) That this act was wrongful; and
(d) 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.''
``(f)(2) Patronizing a prostitute.
In that ---- -- (personal jurisdiction data), did,
(at/on board--location) (subject-matter jurisdiction
data, if required), on or about ------ 20------,
wrongfully (compel) (induce) (entice) (procure) ---- --
, a person not his/her spouse, to engage in (an act)
(acts) of sexual intercourse with the accused in
exchange for (money) (------ ------).''
(g) Paragraph 109 is amended to read as follows:
``109. ARTICLE 134--(Threat or hoax designed or
intended to cause panic or public fear)
a. Text. See paragraph 60.
b. Elements.
(1) Threat.
(a) That the accused communicated certain language;
(b) That the information communicated amounted to a
threat;
(c) That the harm threatened was to be done by
means of an explosive; weapon of mass destruction;
biological or chemical agent, substance, or weapon; or
hazardous material;
(d) That the communication was wrongful; and
[[Page 60702]]
(e) 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.
(2) Hoax.
(a) That the accused communicated or conveyed
certain information;
(b) That the information communicated or conveyed
concerned an attempt being made or to be made by means
of an explosive; weapon of mass destruction; biological
or chemical agent, substance, or weapon; or hazardous
material, to unlawfully kill, injure, or intimidate a
person or to unlawfully damage or destroy certain
property;
(c) That the information communicated or conveyed
by the accused was false and that the accused then knew
it to be false;
(d) That the communication of the information by
the accused was malicious; and
(e) 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.
c. Explanation.
(1) Threat. A ``threat'' means an expressed present
determination or intent to kill, injure, or intimidate
a person or to damage or destroy certain property
presently or in the future. Proof that the accused
actually intended to kill, injure, intimidate, damage,
or destroy is not required.
(2) Explosive. ``Explosive'' means gunpowder,
powders used for blasting, all forms of high
explosives, blasting materials, fuses (other than
electrical circuit breakers), detonators, and other
detonating agents, smokeless powders, any explosive
bomb, grenade, missile, or similar device, and any
incendiary bomb or grenade, fire bomb, or similar
device, and any other explosive compound, mixture, or
similar material.
(3) Weapon of mass destruction. A weapon of mass
destruction means any device, explosive or otherwise,
that is intended, or has the capability, to cause death
or serious bodily injury to a significant number of
people through the release, dissemination, or impact
of: toxic or poisonous chemicals, or their precursors;
a disease organism; or radiation or radioactivity.
(4) Biological agent. The term ``biological agent''
means 12 any micro-organism (including bacteria,
viruses, fungi, rickettsiac, or protozoa), pathogen, or
infectious substance, and any naturally occurring,
bioengineered, or synthesized component of any such
micro-organism, pathogen, or infectious substance,
whatever its origin or method of production, that is
capable of causing--
(a) death, disease, or other biological malfunction
in a human, an animal, a plant, or another living
organism;
(b) deterioration of food, water, equipment,
supplies, or materials of any kind; or
(c) deleterious alteration of the environment.
(5) Chemical agent, substance, or weapon. A
chemical agent, substance, or weapon refers to a toxic
chemical and its precursors or a munition or device,
specifically designed to cause death or other harm
through toxic properties of those chemicals that would
be released as a result of the employment of such
munition or device, and any equipment specifically
designed for use directly in connection with the
employment of such munitions or devices.
(6) Hazardous material. A substance or material
(including explosive, radioactive material, etiologic
agent, flammable or combustible liquid or solid,
poison, oxidizing or corrosive material, and compressed
gas, or mixture thereof) or a group or class of
material designated as hazardous by the Secretary of
Transportation.
[[Page 60703]]
(7) Malicious. A communication is ``malicious'' if
the accused believed that the information would
probably interfere with the peaceful use of the
building, vehicle, aircraft, or other property
concerned, or would cause fear or concern to one or
more persons.
d. Lesser included offenses.
(1) Threat
(a) Article 134--communicating a threat
(b) Article 80--attempts
(c) Article 128--assault
(2) Hoax. Article 80--attempts
e. Maximum punishment. Dishonorable discharge,
forfeitures of all pay and allowances, and confinement
for 10 years.
f. Sample specifications.
(1) Threat.
In that ------ ------ (personal jurisdiction data)
did, (at/on board--location) on or about ---- ------
20-- ----, wrongfully communicate certain information,
to wit: ------ ------, which language constituted a
threat to harm a person or property by means of a(n)
[explosive; weapon of mass destruction; biological
agent, substance, or weapon; chemical agent, substance,
or weapon; and/or (a) hazardous material(s)].
(2) Hoax.
In that ------ ------ (personal jurisdiction data)
did, (at/on board--location), on or about ---- --------
20-- ------, maliciously (communicate) (convey) certain
information concerning an attempt being made or to be
made to unlawfully [(kill) (injure) (intimidate) ------
------] [(damage) (destroy) ------ ------] by means of
a(n) [explosive; weapon of mass destruction; biological
agent, substance, or weapon; chemical agent, substance,
or weapon; and/or (a) hazardous material(s)], to wit:
------, which information was false and which the
accused then knew to be false.''
Sec. 4. Part V of the Manual for Courts-Martial, United
States, is amended as follows:
(a) Paragraph 1(h) is amended by redesignating
existing paragraph 1(h) as 1(i) and inserting the
following new paragraph 1(h):
``h. Applicable standards. Unless otherwise
provided, the service regulations and procedures of the
servicemember shall apply.''
(b) Paragraph 2(a) is amended by replacing the
words ``Unless otherwise'' with the word ``As''.
(c) Paragraph 2(a) is amended by inserting the
following after the second sentence:
``Commander includes a commander of a joint
command.''
(d) Paragraph 2(a) is amended by inserting the
words ``of a commander'' in the third sentence after
the words ``the authority.''
Sec. 5. These amendments shall take effect 30 days from
the date of this order.
(a) Nothing in these amendments shall be construed
to make punishable any act done or omitted prior to the
effective date of this order that was not punishable
when done or omitted.
(b) 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 the effective date of this order, and any such
nonjudicial punishment proceeding, restraint,
investigation, referral of charges, trial, or other
action
[[Page 60704]]
may proceed in the same manner and with the same effect
as if these amendments had not been prescribed.
(Presidential Sig.)B
THE WHITE HOUSE,
October 14, 2005.
Billing code 3195-01-P
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[FR Doc. 05-20944 Filed 10-17-05 8:45 am]
Billing code 5000-04-C
