Manual for Courts-Martial; Proposed Amendments, 79453-79455 [E8-30794]
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Federal Register / Vol. 73, No. 249 / Monday, December 29, 2008 / Notices
• Ways to minimize the burden of
collection of information on those who
are to respond, including through the
use of appropriate automated electronic,
mechanical, or other technological
collection techniques or other forms of
information technology; e.g., permitting
electronic submission of responses.
options on the enumerated agricultural
commodities subject to a number of
regulatory requirements 63 FR 18821
(Apr. 16, 1998). Thereafter, the
Commission streamlined the regulatory
and paperwork burdens in order to
increase the utility of agricultural trade
options while maintaining basic
customer protections. 64 FR 68011 (Dec.
6, 1999). Based on its experience in
administering this program, the
Commission has determined that its
estimates of the burden of this
Off-Exchange Agricultural Trade
Options, OMB Control Number 3038–
0048—Extension
In April 1998, the CFTC removed the
prohibition on off-exchange trade
79453
collection of information remains
unchanged based on the number of
firms and individuals that may apply for
registration. Responses to the collection
of information are mandatory pursuant
to Section 4c(b) of the Commodity
Exchange Act.
The Commission estimates the burden
of this collection of information as
follows:
ESTIMATED ANNUAL REPORTING BURDEN
17 CFR
Annual
number of
respondents
Frequency of response
Total annual
responses
Hours per
response
Total hours
17 CFR Part 32 ....................................................
360
On occasion ..................
411
5.59
2,301
There are no capital costs or operating
and maintenance costs associated with
this collection.
Dated: December 22, 2008.
David Stawick,
Secretary of the Commission.
[FR Doc. E8–30906 Filed 12–24–08; 8:45 am]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed
Amendments
dwashington3 on PROD1PC60 with NOTICES
AGENCY: Joint Service Committee on
Military Justice (JSC).
ACTION: Notice of public response to
proposed amendments to the Manual for
Courts-Martial, United States (2008 ed.)
(MCM).
SUMMARY: The JSC is forwarding final
proposed amendments to the MCM to
the Department of Defense. The
proposed changes constitute the 2008
annual review required by the MCM and
DoD Directive 5500.17, ‘‘Role and
Responsibilities of the Joint Service
Committee (JSC) on Military Justice,’’
May 3, 2003. The proposed changes
concern the rules of procedure and
evidence and the punitive articles
applicable in trials by courts-martial.
These proposed changes have not been
coordinated within the Department of
Defense under DoD Directive 5500.1,
‘‘Preparation, Processing and
Coordinating Legislation, Executive
Orders, Proclamations, Views Letters
Testimony,’’ June 15, 2007, and do not
constitute the official position of the
Department of Defense, the Military
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13:19 Dec 24, 2008
Jkt 217001
Departments, or any other Government
agency.
ADDRESSES: Comments and materials
received from the public are available
for inspection or copying at the Air
Force Legal Operations Agency, Military
Justice Division, 112 Luke Avenue,
Room 202, Bolling Air Force Base,
District of Columbia between 9 a.m. and
4 p.m., Monday through Friday, except
Federal Holidays.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Colonel Tom Wand,
Executive Secretary, Joint Service
Committee on Military Justice, 112 Luke
Avenue, Suite 343, Bolling Air Force
Base, District of Columbia 20032, (202)
767–1539, (202) 404–8755 fax.
SUPPLEMENTARY INFORMATION:
Background
On 19 September 2008, the JSC
published a Notice of Proposed
Amendments to the Manual for CourtsMartial and a Notice of Public Meeting
to receive comments on these proposals.
The public meeting was held on October
30, 2008. One individual representing
an organization spoke at the public
meeting to announce that the
organization would be submitting
written comments. One individual and
one organization submitted comments
through the Federal Register electronic
bulletin board.
Discussion of Comments and Changes
The JSC considered the public
comments and, coupled with the United
States Court of Appeals for the Armed
Forces recently hearing arguments on
issues of child pornography with
decisions pending, decided to withdraw
the proposed addition of a paragraph
addressing child pornography under
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Fmt 4703
Sfmt 4703
Article 134 in Part IV of the MCM. The
child pornography proposal will
continue to be considered as part of the
2009 annual review. The JSC is satisfied
the other proposed amendments are
appropriate to implement without
modification. The JSC will forward the
public comments and proposed
amendments to the Department of
Defense.
The public comments regarding the
proposed changes follow:
a. Recommended adding, ‘‘or
knowingly, wrongfully, and
purposefully facilitated such conduct’’
to the element of the proposed Article
134 offense of possessing, receiving or
viewing child pornography. Since the
proposed paragraph is being withdrawn
from the 2008 annual review, this
comment will be considered in the 2009
annual review.
b. Recommended deleting or
redrafting the explanation of the child
pornography paragraph requiring
awareness of the contraband nature of
the visual depictions in the offenses of
possessing, receiving, viewing,
distributing, or producing child
pornography. Since the proposed
paragraph is being withdrawn from the
2008 annual review, this comment will
be considered in the 2009 annual
review.
c. Recommended deleting the
affirmative defense that all of the
persons engaging in sexually explicit
conduct in a visual depiction were in
fact persons at least 18 years old. Since
the proposed paragraph is being
withdrawn from the 2008 annual
review, this comment will be
considered in the 2009 annual review.
d. Noted the high maximum fines for
civilians at summary and special courts-
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79454
Federal Register / Vol. 73, No. 249 / Monday, December 29, 2008 / Notices
dwashington3 on PROD1PC60 with NOTICES
martial. The JSC considered that
civilians are not subject to all the forms
of punishment applicable to
servicemembers. The JSC also
considered that maximums must take
into account the highest paid civilians,
including contractors, and that
maximums are potential only, and not
necessarily appropriate to every case or
accused. In addition, the JSC considered
that an accused has a right to decline
trial by a summary court-martial.
e. Noted no difference between the
proposed Part IV, paragraph 44, Article
119, Manslaughter, paragraph b.(2)(d),
and what appears in the MCM (2008
ed.). While this is correct, the problem
arose in the July 24, 2008 Executive
Order 13468 amending the MCM. This
was explained in the proposed
additions to Appendix 23, Analysis of
Punitive Articles.
f. Suggested that Staff Judge Advocate
Recommendations be required to
address whether corrective action
should be taken in response to R.C.M.
1105 submissions. The proposed rule
makes clear that such is required. The
reason for restating the rule was
explained in the proposed addition to
Appendix 21, Analysis of Rules for
Courts-Martial.
g. Raised several concerns regarding
the adequacy of the rulemaking process
itself. The JSC considered these
concerns and determined that the
rulemaking process is adequate, satisfies
statutory requirements, and provides
meaningful opportunity for public
participation. However, the JSC
particularly noted a concern that the
Federal Register notice invited
members to suggest changes to the MCM
in accordance with a format purportedly
described in an internal operating
procedure. The reference should have
been to a format described in DoD
Directive 5500.17, ‘‘Role and
Responsibilities of the Joint Service
Committee (JSC) on Military Justice,’’
May 3, 2003, Enclosure 2, paragraph
E2.4.6, which is included in Appendix
26 of the MCM.
Proposed Amendments After Period for
Public Comment
The proposed recommended
amendments to the MCM to be
forwarded through the DoD for action by
Executive Order of the President of the
United States are as follows:
Section 1. Part II of the Manual for
Courts-Martial, United States, is
amended as follows:
(a) R.C.M. 1003(b)(3) is amended to
read as follows:
‘‘(3) Fine. Any court-martial may
adjudge a fine in lieu of or in addition
to forfeitures. In the case of a member
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13:19 Dec 24, 2008
Jkt 217001
of the armed forces, summary and
special courts-martial may not adjudge
any fine or combination of fine and
forfeitures in excess of the total amount
of forfeitures that may be adjudged in
that case. In the case of a person serving
with or accompanying an armed force in
the field, a summary court-martial may
not adjudge a fine in excess of twothirds of one month of the highest rate
of enlisted pay, and a special courtmartial may not adjudge a fine in excess
of two-thirds of one year of the highest
rate of officer pay. In order to enforce
collection, a fine may be accompanied
by a provision in the sentence that, in
the event the fine is not paid, the person
fined shall, in addition to any period of
confinement adjudged, be further
confined until a fixed period considered
an equivalent punishment to the fine
has expired. The total period of
confinement so adjudged shall not
exceed the jurisdictional limitations of
the courts-martial;’’
(b) R.C.M. 1003(c) is amended by
renumbering subparagraph (4) as
subparagraph (5) and adding a new
subparagraph (4) as follows:
‘‘(4) Based on status as a person
serving with or accompanying an armed
force in the field. In the case of a person
serving with or accompanying an armed
force in the field, no court-martial may
adjudge forfeiture of pay and
allowances, reduction in pay grade,
hard labor without confinement, or a
punitive separation.’’
(c) R.C.M. 1106(d) is amended to read
as follows:
‘‘(d) Form and content of
recommendation.
(1) The purpose of the
recommendation of the staff judge
advocate or legal officer is to assist the
convening authority to decide what
action to take on the sentence in the
exercise of command prerogative. The
staff judge advocate or legal officer shall
use the record of trial in the preparation
of the recommendation, and may also
use the personnel records of the accused
or other matters in advising the
convening authority whether clemency
is warranted.
(2) Form. The recommendation of the
staff judge advocate or legal officer shall
be a concise written communication.
(3) Required contents. The staff judge
advocate or legal advisor shall provide
the convening authority with a copy of
the report of results of trial, setting forth
the findings, sentence, and confinement
credit to be applied, a copy or summary
of the pretrial agreement, if any, any
recommendation for clemency by the
sentencing authority made in
conjunction with the announced
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Fmt 4703
Sfmt 4703
sentence, and the staff judge advocate’s
concise recommendation.
(4) Legal errors. The staff judge
advocate or legal officer is not required
to examine the record for legal errors.
However, when the recommendation is
prepared by a staff judge advocate, the
staff judge advocate shall state whether,
in the staff judge advocate’s opinion,
corrective action on the findings or
sentence should be taken when an
allegation of legal error is raised in
matters submitted under R.C.M. 1105 or
when otherwise deemed appropriate by
the staff judge advocate. The response
may consist of a statement of agreement
or disagreement with the matter raised
by the accused. An analysis or rationale
for the staff judge advocate’s statement,
if any, concerning legal error is not
required.
(5) Optional matters. The
recommendation of the staff judge
advocate or legal officer may include, in
addition to matters included under
subsection (d)(3) and (4) of this rule, any
additional matters deemed appropriate
by the staff judge advocate or legal
officer. Such matter may include
matters outside the record.
(6) Effect of error. In case of error in
the recommendation not otherwise
waived under subsection (f)(6) of this
rule, appropriate corrective action shall
be taken by appellate authorities
without returning the case for further
action by a convening authority.’’
(d) R.C.M. 1113(d)(2)(A)(iii) is
amended to read as follows:
‘‘(iii) Periods during which the
accused is in custody of civilian or
foreign authorities after the convening
authority, pursuant to Article 57a(b)(1),
has postponed the service of a sentence
to confinement.’’
(e) R.C.M. 1113(d)(2)(c) is amended by
deleting the last two sentences, and
replacing them with the following:
‘‘No member of the armed forces, or
person serving with or accompanying an
armed force in the field, may be placed
in confinement in immediate
association with enemy prisoners or
with other foreign nationals not subject
to the code. The Secretary concerned
may prescribe regulations governing the
place and conditions of confinement.’’
Section 2. Part IV of the Manual for
Courts-Martial, United States, is
amended as follows:
(a) Paragraph 32, Article 108, Military
Property of the United States—sale, loss,
damage, destruction, or wrongful
disposition, paragraph c.(1) is amended
to read as follows:
‘‘(1) Military Property. Military
property is all property, real or personal,
owned, held, or used by one of the
armed forces of the United States.
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Federal Register / Vol. 73, No. 249 / Monday, December 29, 2008 / Notices
Military property is a term of art, and
should not be confused with
government property. The terms are not
interchangeable. While all military
property is government property, all
government property is not military
property. An item of government
property is not military property unless
the item in question meets the
definition provided above. It is
immaterial whether the property sold,
disposed, destroyed, lost, or damaged
had been issued to the accused, to
someone else, or even issued at all. If it
is proved by either direct or
circumstantial evidence that items of
individual issue were issued to the
accused, it may be inferred, depending
on all the evidence, that the damage,
destruction, or loss proved was due to
the neglect of the accused. Retail
merchandise of service exchange stores
is not military property under this
article.’’
(b) Paragraph 44, Article 119–
Manslaughter, paragraph b.(2)(d) is
amended to read as follows:
‘‘(d) That this act or omission of the
accused constituted culpable
negligence, or occurred while the
accused was perpetrating or attempting
to perpetrate an offense directly
affecting the person other than burglary,
sodomy, rape, rape of a child,
aggravated sexual assault, aggravated
sexual assault of a child, aggravated
sexual contact, aggravated sexual abuse
of a child, aggravated sexual contact
with a child, robbery, or aggravated
arson.’’
(c) Paragraph 46, Article 121–Larceny
and wrongful appropriation, the Note
following paragraph b.(1)(d) is amended
to read as follows:
dwashington3 on PROD1PC60 with NOTICES
Note: ‘‘If the property is alleged to be
military property, as defined in paragraph
46.c.(1)(h), add the following element’’
(d) Paragraph 46, Article 121–Larceny
and wrongful appropriation, is amended
by re-lettering paragraph 46.c.(1)(h) as
paragraph 46.c.(1)(i), and adding a new
paragraph 46.c.(1)(h) as follows:
‘‘(h) Military Property. Military
property is all property, real or personal,
owned, held, or used by one of the
armed forces of the United States.
Military property is a term of art, and
should not be confused with
government property. The terms are not
interchangeable. While all military
property is government property, all
government property is not military
property. An item of government
property is not military property unless
the item in question meets the
definition provided above. Retail
merchandise of service exchange stores
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13:19 Dec 24, 2008
Jkt 217001
is not military property under this
article.’’
Section. 3. These amendments shall
take effect on [30 days after signature].
(a) Nothing in these amendments
shall be construed to make punishable
any act done or omitted prior to [30
days after signature] that was not
punishable when done or omitted.
(b) Nothing in these amendments
shall be construed to invalidate any
nonjudicial punishment proceedings,
restraint, investigation, referral of
charges, trial in which arraignment
occurred, or other action begun prior to
[30 days after signature], 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.
The White House, Changes to the
Discussion Accompanying the Manual
for Courts-Martial, United States
(a) Paragraph (4) of the Discussion
immediately after R.C.M. 202(a) is
amended to read as follows:
‘‘(4) Limitations on jurisdiction over
civilians. Court-martial jurisdiction over
civilians under the code is limited by
judicial decisions. The exercise of
jurisdiction under Article 2(a)(11) in
peace time has been held
unconstitutional by the Supreme Court
of the United States. Before initiating
court-martial proceedings against a
civilian, relevant statutes, decisions,
service regulations, and policy
memoranda should be carefully
examined.’’
(b) The first paragraph of the
Discussion following R.C.M. 1003(b)(3)
is amended to read as follows: ‘‘A fine
is in the nature of a judgment and, when
ordered executed, makes the accused
immediately liable to the United States
for the entire amount of money
specified in the sentence. A fine
normally should not be adjudged
against a member of the armed forces
unless the accused was unjustly
enriched as a result of the offense of
which convicted. In the case of a
civilian subject to military law, a fine,
rather than a forfeiture, is the proper
monetary penalty to be adjudged,
regardless of whether unjust enrichment
is present.
Changes to Appendix 21, Analysis of
Rules for Courts-Martial
(a) Add the following to the Analysis
accompanying R.C.M. 1106(d):
‘‘200_ Amendment: Subsection (d) is
restated in its entirety to clarify that
subsections (d)(4), (d)(5) and (d)(6) were
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79455
not intended to be eliminated by the
2008 Amendment.
2008 Amendment: Subsections (d)(1)
and (d)(3) were modified to simplify the
requirements of the staff judge
advocate’s or legal officer’s
recommendation.’’
Changes to Appendix 23, Analysis of
Punitive Articles
(a) Add the following to the Analysis
accompanying Paragraph 44, Article
119—Manslaughter:
‘‘b. Elements.
200_ Amendment: Paragraph (4) of
the elements is corrected to properly
reflect the 2007 Amendment, which
corrected wording was not included in
the 2008 Amendment.
2008 Amendment: Notes were
included to add an element if the person
killed was a child under the age of 16
years.
e. Maximum punishment.
2008 Amendment: The maximum
confinement for voluntary manslaughter
when the person killed was a child
under the age of 16 years was increased
to 20 years. The maximum confinement
for involuntary manslaughter when the
person killed was a child under the age
of 16 years was increased to 15 years.’’
Dated: December 19, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. E8–30794 Filed 12–24–08; 8:45 am]
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DEPARTMENT OF DEFENSE
Office of the Secretary
Renewal of Department of Defense
Federal Advisory Committees
Department of Defense.
Renewal of Federal Advisory
Committee.
AGENCY:
ACTION:
SUMMARY: Under the provisions of the
Federal Advisory Committee Act of
1972 (5 U.S.C. Appendix, as amended),
the Government in the Sunshine Act of
1976 (5 U.S.C. 552b, as amended), and
41 CFR 102–3.65, the Department of
Defense gives notice that it is renewing
the charter for the Department of
Defense Medicare-Eligible Retiree
Health Care Board of Actuaries
(hereafter referred to as the Board).
The Board is a non-discretionary
federal advisory committee established
under the provisions of 10 U.S.C. 1114,
to advise and assist the Secretary of
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[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Notices]
[Pages 79453-79455]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30794]
=======================================================================
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DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial; Proposed Amendments
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of public response to proposed amendments to the Manual
for Courts-Martial, United States (2008 ed.) (MCM).
-----------------------------------------------------------------------
SUMMARY: The JSC is forwarding final proposed amendments to the MCM to
the Department of Defense. The proposed changes constitute the 2008
annual review required by the MCM and DoD Directive 5500.17, ``Role and
Responsibilities of the Joint Service Committee (JSC) on Military
Justice,'' May 3, 2003. The proposed changes concern the rules of
procedure and evidence and the punitive articles applicable in trials
by courts-martial. These proposed changes have not been coordinated
within the Department of Defense under DoD Directive 5500.1,
``Preparation, Processing and Coordinating Legislation, Executive
Orders, Proclamations, Views Letters Testimony,'' June 15, 2007, and do
not constitute the official position of the Department of Defense, the
Military Departments, or any other Government agency.
ADDRESSES: Comments and materials received from the public are
available for inspection or copying at the Air Force Legal Operations
Agency, Military Justice Division, 112 Luke Avenue, Room 202, Bolling
Air Force Base, District of Columbia between 9 a.m. and 4 p.m., Monday
through Friday, except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: Lieutenant Colonel Tom Wand, Executive
Secretary, Joint Service Committee on Military Justice, 112 Luke
Avenue, Suite 343, Bolling Air Force Base, District of Columbia 20032,
(202) 767-1539, (202) 404-8755 fax.
SUPPLEMENTARY INFORMATION:
Background
On 19 September 2008, the JSC published a Notice of Proposed
Amendments to the Manual for Courts-Martial and a Notice of Public
Meeting to receive comments on these proposals. The public meeting was
held on October 30, 2008. One individual representing an organization
spoke at the public meeting to announce that the organization would be
submitting written comments. One individual and one organization
submitted comments through the Federal Register electronic bulletin
board.
Discussion of Comments and Changes
The JSC considered the public comments and, coupled with the United
States Court of Appeals for the Armed Forces recently hearing arguments
on issues of child pornography with decisions pending, decided to
withdraw the proposed addition of a paragraph addressing child
pornography under Article 134 in Part IV of the MCM. The child
pornography proposal will continue to be considered as part of the 2009
annual review. The JSC is satisfied the other proposed amendments are
appropriate to implement without modification. The JSC will forward the
public comments and proposed amendments to the Department of Defense.
The public comments regarding the proposed changes follow:
a. Recommended adding, ``or knowingly, wrongfully, and purposefully
facilitated such conduct'' to the element of the proposed Article 134
offense of possessing, receiving or viewing child pornography. Since
the proposed paragraph is being withdrawn from the 2008 annual review,
this comment will be considered in the 2009 annual review.
b. Recommended deleting or redrafting the explanation of the child
pornography paragraph requiring awareness of the contraband nature of
the visual depictions in the offenses of possessing, receiving,
viewing, distributing, or producing child pornography. Since the
proposed paragraph is being withdrawn from the 2008 annual review, this
comment will be considered in the 2009 annual review.
c. Recommended deleting the affirmative defense that all of the
persons engaging in sexually explicit conduct in a visual depiction
were in fact persons at least 18 years old. Since the proposed
paragraph is being withdrawn from the 2008 annual review, this comment
will be considered in the 2009 annual review.
d. Noted the high maximum fines for civilians at summary and
special courts-
[[Page 79454]]
martial. The JSC considered that civilians are not subject to all the
forms of punishment applicable to servicemembers. The JSC also
considered that maximums must take into account the highest paid
civilians, including contractors, and that maximums are potential only,
and not necessarily appropriate to every case or accused. In addition,
the JSC considered that an accused has a right to decline trial by a
summary court-martial.
e. Noted no difference between the proposed Part IV, paragraph 44,
Article 119, Manslaughter, paragraph b.(2)(d), and what appears in the
MCM (2008 ed.). While this is correct, the problem arose in the July
24, 2008 Executive Order 13468 amending the MCM. This was explained in
the proposed additions to Appendix 23, Analysis of Punitive Articles.
f. Suggested that Staff Judge Advocate Recommendations be required
to address whether corrective action should be taken in response to
R.C.M. 1105 submissions. The proposed rule makes clear that such is
required. The reason for restating the rule was explained in the
proposed addition to Appendix 21, Analysis of Rules for Courts-Martial.
g. Raised several concerns regarding the adequacy of the rulemaking
process itself. The JSC considered these concerns and determined that
the rulemaking process is adequate, satisfies statutory requirements,
and provides meaningful opportunity for public participation. However,
the JSC particularly noted a concern that the Federal Register notice
invited members to suggest changes to the MCM in accordance with a
format purportedly described in an internal operating procedure. The
reference should have been to a format described in DoD Directive
5500.17, ``Role and Responsibilities of the Joint Service Committee
(JSC) on Military Justice,'' May 3, 2003, Enclosure 2, paragraph
E2.4.6, which is included in Appendix 26 of the MCM.
Proposed Amendments After Period for Public Comment
The proposed recommended amendments to the MCM to be forwarded
through the DoD for action by Executive Order of the President of the
United States are as follows:
Section 1. Part II of the Manual for Courts-Martial, United States,
is amended as follows:
(a) R.C.M. 1003(b)(3) is amended to read as follows:
``(3) Fine. Any court-martial may adjudge a fine in lieu of or in
addition to forfeitures. In the case of a member of the armed forces,
summary and special courts-martial may not adjudge any fine or
combination of fine and forfeitures in excess of the total amount of
forfeitures that may be adjudged in that case. In the case of a person
serving with or accompanying an armed force in the field, a summary
court-martial may not adjudge a fine in excess of two-thirds of one
month of the highest rate of enlisted pay, and a special court-martial
may not adjudge a fine in excess of two-thirds of one year of the
highest rate of officer pay. In order to enforce collection, a fine may
be accompanied by a provision in the sentence that, in the event the
fine is not paid, the person fined shall, in addition to any period of
confinement adjudged, be further confined until a fixed period
considered an equivalent punishment to the fine has expired. The total
period of confinement so adjudged shall not exceed the jurisdictional
limitations of the courts-martial;''
(b) R.C.M. 1003(c) is amended by renumbering subparagraph (4) as
subparagraph (5) and adding a new subparagraph (4) as follows:
``(4) Based on status as a person serving with or accompanying an
armed force in the field. In the case of a person serving with or
accompanying an armed force in the field, no court-martial may adjudge
forfeiture of pay and allowances, reduction in pay grade, hard labor
without confinement, or a punitive separation.''
(c) R.C.M. 1106(d) is amended to read as follows:
``(d) Form and content of recommendation.
(1) The purpose of the recommendation of the staff judge advocate
or legal officer is to assist the convening authority to decide what
action to take on the sentence in the exercise of command prerogative.
The staff judge advocate or legal officer shall use the record of trial
in the preparation of the recommendation, and may also use the
personnel records of the accused or other matters in advising the
convening authority whether clemency is warranted.
(2) Form. The recommendation of the staff judge advocate or legal
officer shall be a concise written communication.
(3) Required contents. The staff judge advocate or legal advisor
shall provide the convening authority with a copy of the report of
results of trial, setting forth the findings, sentence, and confinement
credit to be applied, a copy or summary of the pretrial agreement, if
any, any recommendation for clemency by the sentencing authority made
in conjunction with the announced sentence, and the staff judge
advocate's concise recommendation.
(4) Legal errors. The staff judge advocate or legal officer is not
required to examine the record for legal errors. However, when the
recommendation is prepared by a staff judge advocate, the staff judge
advocate shall state whether, in the staff judge advocate's opinion,
corrective action on the findings or sentence should be taken when an
allegation of legal error is raised in matters submitted under R.C.M.
1105 or when otherwise deemed appropriate by the staff judge advocate.
The response may consist of a statement of agreement or disagreement
with the matter raised by the accused. An analysis or rationale for the
staff judge advocate's statement, if any, concerning legal error is not
required.
(5) Optional matters. The recommendation of the staff judge
advocate or legal officer may include, in addition to matters included
under subsection (d)(3) and (4) of this rule, any additional matters
deemed appropriate by the staff judge advocate or legal officer. Such
matter may include matters outside the record.
(6) Effect of error. In case of error in the recommendation not
otherwise waived under subsection (f)(6) of this rule, appropriate
corrective action shall be taken by appellate authorities without
returning the case for further action by a convening authority.''
(d) R.C.M. 1113(d)(2)(A)(iii) is amended to read as follows:
``(iii) Periods during which the accused is in custody of civilian
or foreign authorities after the convening authority, pursuant to
Article 57a(b)(1), has postponed the service of a sentence to
confinement.''
(e) R.C.M. 1113(d)(2)(c) is amended by deleting the last two
sentences, and replacing them with the following:
``No member of the armed forces, or person serving with or
accompanying an armed force in the field, may be placed in confinement
in immediate association with enemy prisoners or with other foreign
nationals not subject to the code. The Secretary concerned may
prescribe regulations governing the place and conditions of
confinement.''
Section 2. Part IV of the Manual for Courts-Martial, United States,
is amended as follows:
(a) Paragraph 32, Article 108, Military Property of the United
States--sale, loss, damage, destruction, or wrongful disposition,
paragraph c.(1) is amended to read as follows:
``(1) Military Property. Military property is all property, real or
personal, owned, held, or used by one of the armed forces of the United
States.
[[Page 79455]]
Military property is a term of art, and should not be confused with
government property. The terms are not interchangeable. While all
military property is government property, all government property is
not military property. An item of government property is not military
property unless the item in question meets the definition provided
above. It is immaterial whether the property sold, disposed, destroyed,
lost, or damaged had been issued to the accused, to someone else, or
even issued at all. If it is proved by either direct or circumstantial
evidence that items of individual issue were issued to the accused, it
may be inferred, depending on all the evidence, that the damage,
destruction, or loss proved was due to the neglect of the accused.
Retail merchandise of service exchange stores is not military property
under this article.''
(b) Paragraph 44, Article 119-Manslaughter, paragraph b.(2)(d) is
amended to read as follows:
``(d) That this act or omission of the accused constituted culpable
negligence, or occurred while the accused was perpetrating or
attempting to perpetrate an offense directly affecting the person other
than burglary, sodomy, rape, rape of a child, aggravated sexual
assault, aggravated sexual assault of a child, aggravated sexual
contact, aggravated sexual abuse of a child, aggravated sexual contact
with a child, robbery, or aggravated arson.''
(c) Paragraph 46, Article 121-Larceny and wrongful appropriation,
the Note following paragraph b.(1)(d) is amended to read as follows:
Note: ``If the property is alleged to be military property, as
defined in paragraph 46.c.(1)(h), add the following element''
(d) Paragraph 46, Article 121-Larceny and wrongful appropriation,
is amended by re-lettering paragraph 46.c.(1)(h) as paragraph
46.c.(1)(i), and adding a new paragraph 46.c.(1)(h) as follows:
``(h) Military Property. Military property is all property, real or
personal, owned, held, or used by one of the armed forces of the United
States. Military property is a term of art, and should not be confused
with government property. The terms are not interchangeable. While all
military property is government property, all government property is
not military property. An item of government property is not military
property unless the item in question meets the definition provided
above. Retail merchandise of service exchange stores is not military
property under this article.''
Section. 3. These amendments shall take effect on [30 days after
signature].
(a) Nothing in these amendments shall be construed to make
punishable any act done or omitted prior to [30 days after signature]
that was not punishable when done or omitted.
(b) Nothing in these amendments shall be construed to invalidate
any nonjudicial punishment proceedings, restraint, investigation,
referral of charges, trial in which arraignment occurred, or other
action begun prior to [30 days after signature], 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.
The White House, Changes to the Discussion Accompanying the Manual for
Courts-Martial, United States
(a) Paragraph (4) of the Discussion immediately after R.C.M. 202(a)
is amended to read as follows:
``(4) Limitations on jurisdiction over civilians. Court-martial
jurisdiction over civilians under the code is limited by judicial
decisions. The exercise of jurisdiction under Article 2(a)(11) in peace
time has been held unconstitutional by the Supreme Court of the United
States. Before initiating court-martial proceedings against a civilian,
relevant statutes, decisions, service regulations, and policy memoranda
should be carefully examined.''
(b) The first paragraph of the Discussion following R.C.M.
1003(b)(3) is amended to read as follows: ``A fine is in the nature of
a judgment and, when ordered executed, makes the accused immediately
liable to the United States for the entire amount of money specified in
the sentence. A fine normally should not be adjudged against a member
of the armed forces unless the accused was unjustly enriched as a
result of the offense of which convicted. In the case of a civilian
subject to military law, a fine, rather than a forfeiture, is the
proper monetary penalty to be adjudged, regardless of whether unjust
enrichment is present.
Changes to Appendix 21, Analysis of Rules for Courts-Martial
(a) Add the following to the Analysis accompanying R.C.M. 1106(d):
``200-- Amendment: Subsection (d) is restated in its entirety to
clarify that subsections (d)(4), (d)(5) and (d)(6) were not intended to
be eliminated by the 2008 Amendment.
2008 Amendment: Subsections (d)(1) and (d)(3) were modified to
simplify the requirements of the staff judge advocate's or legal
officer's recommendation.''
Changes to Appendix 23, Analysis of Punitive Articles
(a) Add the following to the Analysis accompanying Paragraph 44,
Article 119--Manslaughter:
``b. Elements.
200-- Amendment: Paragraph (4) of the elements is corrected to
properly reflect the 2007 Amendment, which corrected wording was not
included in the 2008 Amendment.
2008 Amendment: Notes were included to add an element if the person
killed was a child under the age of 16 years.
e. Maximum punishment.
2008 Amendment: The maximum confinement for voluntary manslaughter
when the person killed was a child under the age of 16 years was
increased to 20 years. The maximum confinement for involuntary
manslaughter when the person killed was a child under the age of 16
years was increased to 15 years.''
Dated: December 19, 2008.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E8-30794 Filed 12-24-08; 8:45 am]
BILLING CODE 5001-06-P