Manual for Courts-Martial; Proposed Amendments, 59937-59959 [2014-23546]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 79, Number 192 (Friday, October 3, 2014)]
[Notices]
[Pages 59937-59959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23546]



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Vol. 79

Friday,

No. 192

October 3, 2014

Part III





 Department of Defense





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Office of the Secretary





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Manual for Courts-Martial; Proposed Amendments; Notice

Federal Register / Vol. 79 , No. 192 / Friday, October 3, 2014 / 
Notices

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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2014-OS-0140]


Manual for Courts-Martial; Proposed Amendments

AGENCY: Joint Service Committee on Military Justice (JSC), DoD.

ACTION: Notice of Proposed Amendments to the Manual for Courts-Martial, 
United States (2012 ed.) and Notice of Public Meeting.

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SUMMARY: The Department of Defense is proposing changes to the Manual 
for Courts-Martial, United States (2012 ed.) (MCM). 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 5500.01, ``Preparing, Processing and Coordinating 
Legislation, Executive Orders, Proclamations, Views Letters, and 
Testimony,'' June 15, 2007, and do not constitute the official position 
of the Department of Defense, the Military Departments, or any other 
Government agency.
    This notice also sets forth the date, time and location for a 
public meeting of the JSC to discuss the proposed changes.
    This notice is provided in accordance with DoD Directive 5500.17, 
``Role and Responsibilities of the Joint Service Committee (JSC) on 
Military Justice,'' May 3, 2003.
    This notice is intended only to improve the internal management of 
the Federal Government. It is not intended to create any right or 
benefit, substantive or procedural, enforceable at law by any party 
against the United States, its agencies, its officers, or any person.
    The JSC also invites members of the public to suggest changes to 
the Manual for Courts-Martial and address specific recommended changes 
with supporting rationale.

DATES: Comments on the proposed changes must be received no later than 
December 2, 2014. A public meeting for comments will be held on October 
29, 2014, at 10:00 a.m. in the United States Court of Appeals for the 
Armed Forces, 450 E Street NW., Washington, DC 20442-0001.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at https://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Capt Allison A. DeVito, Executive 
Secretary, Joint Service Committee on Military Justice, 1500 West 
Perimeter Road, Suite 1130, Joint Base Andrews, Maryland 20762, 240-
612-4820, email- allison.a.devito.mil@mail.mil">allison.a.devito.mil@mail.mil.

SUPPLEMENTARY INFORMATION: The proposed amendments to the MCM are as 
follows:

Annex

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

    (a) R.C.M. 201(f)(1) is amended to insert the following:

[Note: R.C.M. 201(f)(1) and (f)(2) apply to offenses committed on or 
after 24 June 2014. The previous version of R.C.M. 201(f)(1) and (f)(2) 
is located in Appendix 29.]

    (b) R.C.M. 201(f)(1)(D) is inserted to read as follows:
    ``(D) Jurisdiction for Certain Sexual Offenses. Only a general 
court-martial has jurisdiction to try offenses under Articles 120(a), 
120(b), 120b(a), and 120b(b), UCMJ, forcible sodomy under Article 125, 
UCMJ, and attempts thereof under Article 80, UCMJ.''
    (c) R.C.M. 201(f)(2)(D) is inserted to read as follows:
    ``(D) Certain Offenses under Articles 120, 120b, and 125. 
Notwithstanding subsection (f)(2)(A), special courts-martial do not 
have jurisdiction over offenses under Articles 120(a), 120(b), 120b(a), 
and 120b(b), forcible sodomy under Article 125, UCMJ, and attempts 
thereof under Article 80, UCMJ. Such offenses shall not be referred to 
a special court-martial.''
    (d) R.C.M. 305(i)(2)(A)(i) is amended to read as follows:
    ``(i) Matters considered. The review under this subsection shall 
include a review of the memorandum submitted by the prisoner's 
commander under subsection (h)(2)(C) of this rule. Additional written 
matters may be considered, including any submitted by the prisoner. The 
prisoner and the prisoner's counsel, if any, shall be allowed to appear 
before the 7-day reviewing officer and make a statement, if 
practicable. A representative of the command may also appear before the 
reviewing officer to make a statement.''
    (e) R.C.M. 305(i)(2)(A)(iv) is inserted to read as follows:
    ``(iv) Victim's right to be reasonably heard. A victim of an 
alleged offense committed by the prisoner has the right to reasonable, 
accurate, and timely notice of the 7-day review; the right to consult 
with the representative of the command and counsel for the government, 
if any, present during the review; and the right to be reasonably heard 
during the review. The right to be heard under this rule includes the 
right to be heard through counsel. Inability to reasonably afford a 
victim these rights shall not delay the proceedings.''
    (f) R.C.M. 305(i)(2)(C) is amended to read as follows:
    ``(C) Action by 7-day reviewing officer. Upon completion of review, 
the reviewing officer shall approve continued confinement or order 
immediate release. If the reviewing officer orders immediate release, a 
victim of an alleged offense committed by the prisoner has the right to 
reasonable, accurate, and timely notice of the release, unless such 
notice may endanger the safety of any person.''
    (g) R.C.M. 305(n) is inserted to read as follows:
    ``(n) Notice to victim of escaped prisoner. A victim of an alleged 
offense committed by the prisoner for which the prisoner has been 
placed in pretrial confinement has the right to reasonable, accurate, 
and timely notice of the escape of the prisoner, unless such notice may 
endanger the safety of any person.''
    (h) R.C.M. 404(e) is amended to read as follows:
    ``(e) Unless otherwise prescribed by the Secretary concerned, 
direct a preliminary hearing under R.C.M. 405, and, if appropriate, 
forward the report of preliminary hearing with the charges to a 
superior commander for disposition.''
    (i) A new rule, R.C.M. 404A, is inserted to read as follows:

``Rule 404A. Disclosure of matters following direction of preliminary 
hearing

    (a) When a convening authority directs a preliminary hearing under 
R.C.M. 405, counsel for
    the government shall, subject to R.C.M. 404A(b)-(d) below, within 5 
days of issuance of the Article 32 appointing order, provide to the 
defense the following information or matters:
    (1) Charge sheet;

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    (2) Article 32 appointing order;
    (3) Documents accompanying the charge sheet on which the preferral 
decision was based;
    (4) Documents provided to the convening authority when deciding to 
direct the preliminary hearing;
    (5) Documents the counsel for the government intends to present at 
the preliminary hearing; and
    (6) Access to tangible objects counsel for the government intends 
to present at the preliminary hearing.
    (b) Contraband. If items covered by subsection 404A(a) above are 
contraband, the disclosure required under this rule is a reasonable 
opportunity to inspect said contraband prior to the hearing.
    (c) Privilege. If items covered by subsection 404A(a) above are 
privileged, classified or otherwise protected under Section V of Part 
III, no disclosure of those items is required under this rule. However, 
counsel for the government may disclose privileged, classified or 
otherwise protected information covered by subsection 404A(a) above if 
authorized by the holder of the privilege, or in the case of Mil. R. 
Evid. 505 or 506, if authorized by a competent authority.
    (d) Protective order if privileged information is disclosed. If the 
government agrees to disclose to the accused information to which the 
protections afforded by Section V of Part III may apply, the convening 
authority, or other person designated by regulation of the Secretary 
concerned, may enter an appropriate protective order, in writing, to 
guard against the compromise of information disclosed to the accused. 
The terms of any such protective order may include prohibiting the 
disclosure of the information except as authorized by the authority 
issuing the protective order, as well as those terms specified by Mil. 
R. Evid. 505(g)(2)-(6) or 506(g)(2)(5).''
    (j) R.C.M. 405 is amended in its entirety to read as follows:

``Rule 405. Preliminary hearing

[Note: This rule applies to offenses committed on or after 26 December 
2014. The previous version of R.C.M. 405 is located in Appendix 30]

    (a) In general. Except as provided in subsection (k) of this rule, 
no charge or specification may be referred to a general court-martial 
for trial until completion of a preliminary hearing in substantial 
compliance with this rule. A preliminary hearing conducted under this 
rule is not intended to serve as a means of discovery and will be 
limited to an examination of those issues necessary to determine 
whether there is probable cause to conclude that an offense or offenses 
have been committed and whether the accused committed it; to determine 
whether a court-martial would have jurisdiction over the offense(s) and 
the accused; to consider the form of the charge(s); and to recommend 
the disposition that should be made of the charge(s). Failure to comply 
with this rule shall have no effect on the disposition of the charge(s) 
if the charge(s) is not referred to a general court-martial.
    (b) Earlier preliminary hearing. If a preliminary hearing of the 
subject matter of an offense has been conducted before the accused is 
charged with an offense, and the accused was present at the preliminary 
hearing and afforded the rights to counsel, cross-examination, and 
presentation of evidence required by this rule, no further preliminary 
hearing is required.
    (c) Who may direct a preliminary hearing. Unless prohibited by 
regulations of the Secretary concerned, a preliminary hearing may be 
directed under this rule by any court-martial convening authority. That 
authority may also give procedural instructions not inconsistent with 
these rules.
    (d) Personnel.
    (1) Preliminary hearing officer. Whenever practicable, the 
convening authority directing a preliminary hearing under this rule 
shall detail an impartial judge advocate certified under Article 27(b), 
not the accuser, as a preliminary hearing officer, who shall conduct 
the preliminary hearing and make a report that addresses whether there 
is probable cause to believe that an offense or offenses have been 
committed and that the accused committed the offense(s); whether a 
court-martial would have jurisdiction over the offense(s) and the 
accused; the form of the charges(s); and a recommendation as to the 
disposition of the charge(s).
    When the appointment of a judge advocate as the preliminary hearing 
officer is not practicable, or in exceptional circumstances in which 
the interest of justice warrants, the convening authority directing the 
preliminary hearing may detail an impartial commissioned officer, who 
is not the accuser, as the preliminary hearing officer. If the 
preliminary hearing officer is not a judge advocate, an impartial judge 
advocate certified under Article 27(b) shall be available to provide 
legal advice to the preliminary hearing officer.
    When practicable, the preliminary hearing officer shall be equal or 
senior in grade to the military counsel detailed to represent the 
accused and the government at the preliminary hearing. The Secretary 
concerned may prescribe additional limitations on the appointment of 
preliminary hearing officers.
    The preliminary hearing officer shall not depart from an impartial 
role and become an advocate for either side. The preliminary hearing 
officer is disqualified to act later in the same case in any other 
capacity.
    (2) Counsel to represent the United States. A judge advocate, not 
the accuser, shall serve as counsel to represent the United States, and 
shall present evidence on behalf of the government relevant to the 
limited scope and purpose of the preliminary hearing as set forth in 
subsection (a) of this rule.
    (3) Defense counsel.
    (A) Detailed counsel. Except as provided in subsection (d)(3)(B) of 
this rule, military counsel certified in accordance with Article 27(b) 
shall be detailed to represent the accused.
    (B) Individual military counsel. The accused may request to be 
represented by individual military counsel. Such requests shall be 
acted on in accordance with R.C.M. 506(b).
    (C) Civilian counsel. The accused may be represented by civilian 
counsel at no expense to the United States. Upon request, the accused 
is entitled to a reasonable time to obtain civilian counsel and to have 
such counsel present for the preliminary hearing. However, the 
preliminary hearing shall not be unduly delayed for this purpose. 
Representation by civilian counsel shall not limit the rights to 
military counsel under subsections (d)(3)(A) and (B) of this rule.
    (4) Others. The convening authority who directed the preliminary 
hearing may also, as a matter of discretion, detail or request an 
appropriate authority to detail:
    (A) A reporter; and
    (B) An interpreter.
    (e) Scope of preliminary hearing.
    (1) The preliminary hearing officer shall limit the inquiry to the 
examination of evidence, including witnesses, necessary to:
    (A) Determine whether there is probable cause to believe an offense 
or offenses have been committed and whether the accused committed it;
    (B) Determine whether a court-martial would have jurisdiction over 
the offense(s) and the accused;
    (C) Consider whether the form of the charge(s) is proper; and
    (D) Make a recommendation as to the disposition of the charge(s).
    (2) If evidence adduced during the preliminary hearing indicates 
that the accused committed any uncharged

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offense(s), the preliminary hearing officer may examine evidence and 
hear witnesses relating to the subject matter of such offense(s) and 
make the findings and recommendations enumerated in subsection (e)(1) 
of this rule regarding such offense(s) without the accused first having 
been charged with the offense. The accused's rights under subsection 
(f)(2) of this rule, and, where it would not cause undue delay to the 
proceedings, subsection (g) of this rule, are the same with regard to 
both charged and uncharged offenses. When considering uncharged 
offenses identified during the preliminary hearing, the preliminary 
hearing officer shall inform the accused of the general nature of each 
uncharged offense considered, and otherwise afford the accused the same 
opportunity for representation, cross examination, and presentation 
afforded during the preliminary hearing of any charged offense.
    (f) Rights of the accused.
    (1) Prior to any preliminary hearing under this rule the accused 
shall have the right to:
    (A) Notice of any witnesses that the government intends to call at 
the preliminary hearing and copies of or access to any written or 
recorded statements made by those witnesses that relate to the subject 
matter of any charged offense;
    (i) For purposes of this rule, a ``written statement'' is one that 
is signed or otherwise adopted or approved by the witness that is 
within the possession or control of counsel for the government; and
    (ii) For purposes of this rule, a ``recorded statement'' is an oral 
statement made by the witness that is recorded contemporaneously with 
the making of the oral statement and contained in a digital or other 
recording or a transcription thereof that is within the possession or 
control of counsel for the government.
    (B) Notice of, and reasonable access to, any other evidence that 
the government intends to offer at the preliminary hearing; and
    (C) Notice of, and reasonable access to, evidence that is within 
the possession or control of counsel for the government that negates or 
reduces the degree of guilt of the accused for an offense charged.
    (2) At any preliminary hearing under this rule the accused shall 
have the right to:
    (A) Be represented by counsel;
    (B) Be informed of the purpose of the preliminary hearing;
    (C) Be informed of the right against self-incrimination under 
Article 31;
    (D) Except in the circumstances described in R.C.M. 804(c)(2), be 
present throughout the taking of evidence;
    (E) Cross-examine witnesses on matters relevant to the limited 
scope and purpose of the preliminary hearing;
    (F) Present matters in defense and mitigation relevant to the 
limited scope and purpose of the preliminary hearing; and
    (G) Make a statement relevant to the limited scope and purpose of 
the preliminary hearing.
    (g) Production of Witnesses and Other Evidence.
    (1) Military Witnesses.
    (A) Prior to the preliminary hearing, defense counsel shall provide 
to counsel for the government the names of proposed military witnesses 
whom the accused requests that the government produce to testify at the 
preliminary hearing, and the requested form of the testimony, in 
accordance with the timeline established by the preliminary hearing 
officer. Counsel for the government shall respond that either (1) the 
government agrees that the witness testimony is relevant, not 
cumulative, and necessary for the limited scope and purpose of the 
preliminary hearing and will seek to secure the witness's testimony for 
the hearing; or (2) the government objects to the proposed defense 
witness on the grounds that the testimony would be irrelevant, 
cumulative, or unnecessary based on the limited scope and purpose of 
the preliminary hearing.
    (B) If the government objects to the proposed defense witness, 
defense counsel may request that the preliminary hearing officer 
determine whether the witness is relevant, not cumulative, and 
necessary based on the limited scope and purpose of the preliminary 
hearing.
    (C) If the government does not object to the proposed defense 
military witness or the preliminary hearing officer determines that the 
military witness is relevant, not cumulative, and necessary, counsel 
for the government shall request that the commanding officer of the 
proposed military witness make that person available to provide 
testimony. The commanding officer shall determine whether the 
individual is available based on operational necessity or mission 
requirements, except that a victim, as defined in this rule, who 
declines to testify shall be deemed to be not available. If the 
commanding officer determines that the military witness is available, 
counsel for the government shall make arrangements for that 
individual's testimony. The commanding officer's determination of 
unavailability due to operational necessity or mission requirements is 
final. The military witness's commanding officer determines the 
availability of the witness and, if there is a dispute among the 
parties, determines whether the witness testifies in person, by 
videoteleconference, by telephone, or similar means of remote 
testimony.
    (2) Civilian Witnesses.
    (A) Defense counsel shall provide to counsel for the government the 
names of proposed civilian witnesses whom the accused requests that the 
government produce to testify at the preliminary hearing, and the 
requested form of the testimony, in accordance with the timeline 
established by the preliminary hearing officer. Counsel for the 
government shall respond that either (1) the government agrees that the 
witness testimony is relevant, not cumulative, and necessary for the 
limited scope and purpose of the preliminary hearing and will seek to 
secure the witness's testimony for the hearing; or (2) the government 
objects to the proposed defense witness on the grounds that the 
testimony would be irrelevant, cumulative, or unnecessary based on the 
limited scope and purpose of the preliminary hearing.
    (B) If the government objects to the proposed defense witness, 
defense counsel may request that the preliminary hearing officer 
determine whether the witness is relevant, not cumulative, and 
necessary based on the limited scope and purpose of the preliminary 
hearing.
    (C) If the government does not object to the proposed civilian 
witness or the preliminary hearing officer determines that the civilian 
witness testimony is relevant, not cumulative, and necessary, counsel 
for the government shall invite the civilian witness to provide 
testimony and, if the individual agrees, shall make arrangements for 
that witness's testimony. If expense to the government is to be 
incurred, the convening authority who directed the preliminary hearing, 
or the convening authority's delegate, shall determine whether the 
witness testifies in person, by videoteleconference, by telephone, or 
similar means of remote testimony.
    (3) Other evidence.
    (A) Evidence under the control of the government.
    (i) Prior to the preliminary hearing, defense counsel shall provide 
to counsel for the government a list of evidence under the control of 
the government the accused requests the government produce to the 
defense for introduction at the preliminary hearing. The preliminary 
hearing officer may set a deadline by which defense requests

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must be received. Counsel for the government shall respond that either 
(1) the government agrees that the evidence is relevant, not 
cumulative, and necessary for the limited scope and purpose of the 
preliminary hearing and shall make reasonable efforts to obtain the 
evidence; or (2) the government objects to production of the evidence 
on the grounds that the evidence would be irrelevant, cumulative, or 
unnecessary based on the limited scope and purpose of the preliminary 
hearing.
    (ii) If the government objects to production of the evidence, 
defense counsel may request that the preliminary hearing officer 
determine whether the evidence should be produced. The preliminary 
hearing officer shall determine whether the evidence is relevant, not 
cumulative, and necessary based on the limited scope and purpose of the 
hearing. If the preliminary hearing officer determines that the 
evidence shall be produced, counsel for the government shall make 
reasonable efforts to obtain the evidence.
    (B) Evidence not under the control of the government.
    (i) Evidence not under the control of the government may be 
obtained through noncompulsory means or by subpoenas duces tecum issued 
by counsel for the government in accordance with the process 
established by R.C.M. 703.
    (ii) Prior to the preliminary hearing, defense counsel shall 
provide to counsel for the government a list of evidence not under the 
control of the government that the accused requests the government 
obtain. The preliminary hearing officer may set a deadline by which 
defense requests must be received. Counsel for the government shall 
respond that either (1) the government agrees that the evidence is 
relevant, not cumulative, and necessary for the limited scope and 
purpose of the preliminary hearing and shall issue subpoenas duces 
tecum for the evidence; or (2) the government objects to production of 
the evidence on the grounds that the evidence would be irrelevant, 
cumulative, or unnecessary based on the limited scope and purpose of 
the preliminary hearing.
    (iii) If the government objects to production of the evidence, 
defense counsel may request that the preliminary hearing officer 
determine whether the evidence should be produced. If the preliminary 
hearing officer determines that the evidence is relevant, not 
cumulative, and necessary based on the limited scope and purpose of the 
preliminary hearing and that the issuance of subpoenas duces tecum 
would not cause undue delay to the preliminary hearing, the preliminary 
hearing officer shall direct counsel for the government to issue 
subpoenas duces tecum for the defense-requested evidence. Failure on 
the part of counsel for the government to issue subpoenas duces tecum 
directed by the preliminary hearing officer shall be noted by the 
preliminary hearing officer in the report of preliminary hearing.
    (h) Military Rules of Evidence. The Military Rules of Evidence do 
not apply in preliminary hearings under this rule except as follows:
    (1) Mil. R. Evid. 301-303 and 305 shall apply in their entirety.
    (2) Mil. R. Evid. 412 shall apply in any case that includes a 
charge defined as a sexual offense in Mil. R. Evid. 412(d), except that 
Mil. R. Evid. 412(b)(1)(C) shall not apply.
    (3) Mil. R. Evid., Section V, Privileges, shall apply, except that 
Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k), and (m); 
513(d)(8); and 514(d)(6) shall not apply.
    (4) In applying these rules to a preliminary hearing, the term 
``military judge,'' as used in these rules shall mean the preliminary 
hearing officer, who shall assume the military judge's authority to 
exclude evidence from the preliminary hearing, and who shall, in 
discharging this duty, follow the procedures set forth in the rules 
cited in subsections (h)(1)-(3) of this rule.
    (5) Failure to meet the procedural requirements of the applicable 
rules of evidence shall result in exclusion of that evidence from the 
preliminary hearing, unless good cause is shown.
    (i) Procedure.
    (1) Generally. The preliminary hearing shall begin with the 
preliminary hearing officer informing the accused of the accused's 
rights under subsection (f) of this rule. Counsel for the government 
will then present evidence. Upon the conclusion of counsel for the 
government's presentation of evidence, defense counsel may present 
matters in defense and mitigation consistent with subsection (f) of 
this rule. For the purposes of this rule, ``matters in mitigation'' are 
defined as matters that may serve to explain the circumstances 
surrounding a charged offense. Both counsel for the government and 
defense shall be afforded an opportunity to cross-examine adverse 
witnesses. The preliminary hearing officer may also question witnesses 
called by the parties. If the preliminary hearing officer determines 
that additional evidence is necessary to satisfy the requirements of 
subsection (e) above, the preliminary hearing officer may provide the 
parties an opportunity to present additional testimony or evidence 
relevant to the limited scope and purpose of the preliminary hearing. 
The preliminary hearing officer shall not consider evidence not 
presented at the preliminary hearing. The preliminary hearing officer 
shall not call witnesses sua sponte.
    (2) Notice to and presence of the victim(s).
    (A) The victim(s) of an offense under the UCMJ has the right to 
reasonable, accurate, and timely notice of a preliminary hearing 
relating to the alleged offense. For the purposes of this rule, a 
``victim'' is a person who is alleged to have suffered a direct 
physical, emotional, or pecuniary harm as a result of the matters set 
forth in a charge or specification under consideration and is named in 
one of the specifications under consideration.
    (B) A victim of an offense under consideration at the preliminary 
hearing is not required to testify at the preliminary hearing.
    (C) A victim has the right not to be excluded from any portion of a 
preliminary hearing related to the alleged offense, unless the 
preliminary hearing officer, after receiving clear and convincing 
evidence, determines the testimony by the victim would be materially 
altered if the victim heard other testimony at the proceeding.
    (D) A victim shall be excluded if a privilege set forth in Mil. R. 
Evid. 505 or 506 is invoked or if evidence is offered under Mil. R. 
Evid. 412, 513, or 514, for charges other than those in which the 
victim is named.
    (3) Presentation of evidence.
    (A) Testimony. Witness testimony may be provided in person, by 
videoteleconference, by telephone, or similar means of remote 
testimony. All testimony shall be taken under oath, except that the 
accused may make an unsworn statement. The preliminary hearing officer 
shall only consider testimony that is relevant to the limited scope and 
purpose of the preliminary hearing.
    (B) Other evidence. If relevant to the limited scope and purpose of 
the preliminary hearing, and not cumulative, a preliminary hearing 
officer may consider other evidence, in addition to or in lieu of 
witness testimony, including statements, tangible evidence, or 
reproductions thereof, offered by either side, that the preliminary 
hearing officer determines is reliable. This other evidence need not be 
sworn.
    (4) Access by spectators. Access by spectators to all or part of 
the proceedings may be restricted or foreclosed in the discretion of 
the convening authority who directed the

[[Page 59942]]

preliminary hearing or the preliminary hearing officer. Preliminary 
hearings are public proceedings and should remain open to the public 
whenever possible. When an overriding interest exists that outweighs 
the value of an open preliminary hearing, the preliminary hearing may 
be closed to spectators. Any closure must be narrowly tailored to 
achieve the overriding interest that justified the closure. Convening 
authorities or preliminary hearing officers must conclude that no 
lesser methods short of closing the preliminary hearing can be used to 
protect the overriding interest in the case. Convening authorities or 
preliminary hearing officers must conduct a case-by-case, witness-by-
witness, circumstance-by-circumstance analysis of whether closure is 
necessary. If a convening authority or preliminary hearing officer 
believes closing the preliminary hearing is necessary, the convening 
authority or preliminary hearing officer must make specific findings of 
fact in writing that support the closure. The written findings of fact 
must be included in the report of preliminary hearing. Examples of 
overriding interests may include: preventing psychological harm or 
trauma to a child witness or an alleged victim of a sexual crime, 
protecting the safety or privacy of a witness or alleged victim, 
protecting classified material, and receiving evidence where a witness 
is incapable of testifying in an open setting.
    (5) Presence of accused. The further progress of the taking of 
evidence shall not be prevented and the accused shall be considered to 
have waived the right to be present whenever the accused:
    (A) After being notified of the time and place of the proceeding is 
voluntarily absent; or
    (B) After being warned by the preliminary hearing officer that 
disruptive conduct will cause removal from the proceeding, persists in 
conduct which is such as to justify exclusion from the proceeding.
    (6) Recording of the preliminary hearing. Counsel for the 
government shall ensure that the preliminary hearing is recorded by a 
suitable recording device. A victim, as defined by subsection (i)(2)(A) 
of this rule, may request access to, or a copy of, the recording of the 
proceedings. Upon request, counsel for the government shall provide the 
requested access to, or a copy of, the recording to the victim not 
later than a reasonable time following dismissal of the charges, unless 
charges are dismissed for the purpose of re-referral, or court-martial 
adjournment. A victim is not entitled to classified information or 
closed sessions in which the victim did not have the right to attend 
under subsections (i)(2)(C) or (i)(2)(D) of this rule.
    (7) Objections. Any objection alleging failure to comply with this 
rule shall be made to the convening authority via the preliminary 
hearing officer.
    (8) Sealed exhibits and proceedings. The preliminary hearing 
officer has the authority to order exhibits, proceedings, or other 
matters sealed as described in R.C.M. 1103A.
    (j) Report of preliminary hearing.
    (1) In general. The preliminary hearing officer shall make a timely 
written report of the preliminary hearing to the convening authority 
who directed the preliminary hearing.
    (2) Contents. The report of preliminary hearing shall include:
    (A) A statement of names and organizations or addresses of defense 
counsel and whether defense counsel was present throughout the taking 
of evidence, or if not present the reason why;
    (B) The substance of the testimony taken on both sides;
    (C) Any other statements, documents, or matters considered by the 
preliminary hearing officer, or recitals of the substance or nature of 
such evidence;
    (D) A statement that an essential witness may not be available for 
trial;
    (E) An explanation of any delays in the preliminary hearing;
    (F) A notation if counsel for the government failed to issue a 
subpoena duces tecum that was directed by the preliminary hearing 
officer;
    (G) The preliminary hearing officer's determination as to whether 
there is probable cause to believe the offense(s) listed on the charge 
sheet or otherwise considered at the preliminary hearing occurred;
    (H) The preliminary hearing officer's determination as to whether 
there is probable cause to believe the accused committed the offense(s) 
listed on the charge sheet or otherwise considered at the preliminary 
hearing;
    (I) The preliminary hearing officer's determination as to whether a 
court-martial has jurisdiction over the offense(s) and the accused;
    (J) The preliminary hearing officer's determination as to whether 
the charge(s) and specification(s) are in proper form; and
    (K) The recommendations of the preliminary hearing officer 
regarding disposition of the charge(s).
    (3) Sealed exhibits and proceedings. If the report of preliminary 
hearing contains exhibits, proceedings, or other matters ordered sealed 
by the preliminary hearing officer in accordance with R.C.M. 1103A, 
counsel for the government shall cause such materials to be sealed so 
as to prevent unauthorized viewing or disclosure.
    (4) Distribution of the report. The preliminary hearing officer 
shall cause the report to be delivered to the convening authority who 
directed the preliminary hearing. That convening authority shall 
promptly cause a copy of the report to be delivered to each accused.
    (5) Objections. Any objection to the report shall be made to the 
convening authority who directed the preliminary hearing, via the 
preliminary hearing officer, within 5 days of its receipt by the 
accused. This subsection does not prohibit a convening authority from 
referring the charge(s) or taking other action within the 5-day period.
    (k) Waiver. The accused may waive a preliminary hearing under this 
rule. In addition, failure to make a timely objection under this rule, 
including an objection to the report, shall constitute waiver of the 
objection. Relief from the waiver may be granted by the convening 
authority who directed the preliminary hearing, a superior convening 
authority, or the military judge, as appropriate, for good cause 
shown.''
    (k) R.C.M. 601(g) is inserted to read as follows:
    ``(g) Parallel convening authorities. If it is impracticable for 
the original convening authority to continue exercising authority over 
the charges, the convening authority may cause the charges, even if 
referred, to be transmitted to a parallel convening authority. This 
transmittal must be in writing and in accordance with such regulations 
as the Secretary concerned may prescribe. Subsequent actions taken by 
the parallel convening authority are within the sole discretion of that 
convening authority.''
    (l) R.C.M. 703(e)(2)(B) is amended to read as follows:
    ``(B) Contents. A subpoena shall state the command by which the 
proceeding is directed, and the title, if any, of the proceeding. A 
subpoena shall command each person to whom it is directed to attend and 
give testimony at the time and place specified therein. A subpoena may 
also command the person to whom it is directed to produce books, 
papers, documents, data, or other objects or electronically stored 
information designated therein at the proceeding or at an earlier time 
for inspection by the parties. A subpoena issued for a preliminary 
hearing pursuant to Article 32 shall not command any person to attend 
or give testimony at an Article 32 preliminary hearing.''

[[Page 59943]]

    (m) R.C.M. 703(e)(2)(C) is amended to read as follows:
    ``(C) Who may issue.
    (1) A subpoena to secure evidence may be issued by:
    (a) The summary court-martial;
    (b) Detailed counsel for the government at an Article 32 
preliminary hearing;
    (c) After referral to a court-martial, detailed trial counsel;
    (d) The president of a court of inquiry; or
    (e) An officer detailed to take a deposition.''
    (n) R.C.M. 703(f)(4)(B) is amended to read as follows:
    (B) Evidence not under the control of the government. Evidence not 
under the control of the government may be obtained by a subpoena 
issued in accordance with subsection (e)(2) of this rule. A subpoena 
duces tecum to produce books, papers, documents, data, or other objects 
or electronically stored information for a preliminary hearing pursuant 
to Article 32 may be issued, following the convening authority's order 
directing such preliminary hearing, by counsel for the government. A 
person in receipt of a subpoena duces tecum for an Article 32 hearing 
need not personally appear in order to comply with the subpoena.''
    (o) R.C.M. 801(a)(g) is inserted to read as follows:
    ``(6) In the case of a victim of an offense under the UCMJ who is 
under 18 years of age and not a member of the armed forces, or who is 
incompetent, incapacitated, or deceased, designate in writing, a family 
member, a representative of the estate of the victim, or another 
suitable individual to assume the victim's rights under the UCMJ.
    (A) For the purposes of this rule, the individual is designated for 
the sole purpose of assuming the legal rights of the victim as they 
pertain to the victim's status as a victim of any offense(s) properly 
before the court.
    (B) Procedure to determine appointment of designee.
    (i) As soon as practicable, trial counsel shall notify the military 
judge, counsel for the accused and the victim(s) of any offense(s) 
properly before the court when there is an apparent requirement to 
appoint a designee under this rule.
    (ii) The military judge will determine if the appointment of a 
designee is required under this rule.
    (iii) At the discretion of the military judge, victim(s), trial 
counsel, and the accused may be given the opportunity to recommend to 
the military judge individual(s) for appointment.
    (iv) The military judge is not required to hold a hearing before 
determining whether a designation is required or making such an 
appointment under this rule.
    (v) If the military judge determines a hearing pursuant to Article 
39(a), UCMJ, is necessary, the following shall be notified of the 
hearing and afforded the right to be present at the hearing: trial 
counsel, accused, and the victim(s).
    (vi) The individual designated shall not be the accused.
    (C) At any time after appointment, a designee shall be excused upon 
request by the designee or a finding of good cause by the military 
judge.
    (D) If the individual appointed to assume the victim's rights is 
excused, the military judge shall appoint a successor consistent with 
this rule.''
    (p) R.C.M. 806(b)(2) is insert following R.C.M. 806(b)(1) and 
before the Discussion section to read as follows:
    ``(2) Right of victim to attend. A victim of an alleged offense 
committed by the accused may not be excluded from a court-martial 
relating to the offense, unless the military judge, after receiving 
clear and convincing evidence, determines that testimony by the victim 
would be materially altered if the victim heard other testimony at that 
hearing or proceeding.''
    (q) R.C.M. 806(b)(2) is renumbered as R.C.M. 806(b)(3).
    (r) R.C.M. 906(b)(8) is amended to read as follows:
    ``(8) Relief from pretrial confinement. Upon a motion for release 
from pretrial confinement, a victim of an alleged offense committed by 
the accused has the right to reasonable, accurate, and timely notice of 
the motion and any hearing, the right to consult with trial counsel, 
and the right to be reasonably heard. Inability to reasonably afford a 
victim these rights shall not delay the proceedings. The right to be 
heard under this rule includes the right to be heard through counsel.''
    (s) R.C.M. 912(i)(3) is amended to read as follows:
    ``(3) Preliminary hearing officer. For purposes of this rule, 
``preliminary hearing officer'' includes any person who has examined 
charges under R.C.M. 405 and any person who was counsel for a member of 
a court of inquiry, or otherwise personally has conducted an 
investigation of the general matter involving the offenses charged.''
    (t) R.C.M. 1001(a)(1)(B) is amended to read as follows:
    ``(B) Victim's right to be reasonably heard. See R.C.M. 1001A.''
    (u) R.C.M. 1001(a)(C)-(G) are re-lettered to read as follows:
    ``(C) Presentation by the defense of evidence in extenuation or 
mitigation or both.
    (D) Rebuttal.
    (E) Argument by trial counsel on sentence.
    (F) Argument by defense counsel on sentence.
    (G) Rebuttal arguments in the discretion of the military judge.''
    (v) A new rule, R.C.M.1001A is inserted to read as follows:
    ``A victim of an offense of which the accused has been found guilty 
has the right to be reasonably heard at a sentencing hearing relating 
to that offense. For the purposes of this rule, the right to be 
reasonably heard means the right to testify under oath. Trial counsel 
shall ensure the victim has the opportunity to exercise that right. As 
used in this rule a ``victim'' is a person who has suffered direct 
physical, emotional, or pecuniary harm as a result of the commission of 
an offense. If the victim exercises the right to be reasonably heard, 
the victim shall be called by the court.''
    (w) R.C.M. 1103A(a) is amended to read as follows:
    ``(a) In general. If the report of preliminary hearing or record of 
trial contains exhibits, proceedings, or other matter ordered sealed by 
the military judge, counsel for the government or trial counsel shall 
cause such materials to be sealed so as to prevent unauthorized viewing 
or disclosure. Counsel for the government or 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 
report of preliminary hearing or record of trial shall contain 
appropriate annotations that matters were sealed by order of the 
preliminary hearing officer or military judge and have been inserted in 
the report of preliminary hearing or original record of trial.''
    (x) R.C.M. 1103A(b)(1) is amended to read as follows:
    ``(1) Prior to referral. The following individuals may examine 
sealed materials only if necessary for proper fulfillment of their 
responsibilities under the UCMJ, the MCM, governing directives, 
instructions, regulations, applicable rules for practice and procedure, 
or rules of professional responsibility: the judge advocate advising 
the convening authority who directed the Article 32 preliminary 
hearing; the convening authority who directed the Article 32 
preliminary hearing; the staff judge advocate to the general court-
martial convening

[[Page 59944]]

authority; and the general court-martial convening authority.''
    (y) R.C.M. 1103A(b)(5) is inserted to read as follows:
    ``(5) Examination of sealed matters. For the purpose of this rule, 
``examination'' includes reading, viewing, photocopying, photographing, 
disclosing, or manipulating the sealed matters in any way.''
    (z) R.C.M. 1105 is amended to read as follows:

[Note: R.C.M. 1105(b)(1) and (b)(2) apply to offenses committed on or 
after 24 June 2014. The previous version of R.C.M. 1105(b)(1) and 
(b)(2) is located in Appendix 29.]

    (aa) R.C.M. 1105(b)(1) is amended to read as follows:
    ``(1) The accused may submit to the convening authority any matters 
that may reasonably tend to affect the convening authority's decision 
whether to disapprove any findings of guilty or to approve the 
sentence, except as may be limited by R.C.M. 1107(b)(3)(C). The 
convening authority is only required to consider written submissions.''
    (bb) R.C.M. 1105(b)(2)(C) is amended to read as follows:
    ``(C) Matters in mitigation which were not available for 
consideration at the court-martial, except as may be limited by R.C.M. 
1107(b)(3)(B); and''
    (cc) R.C.M. 1107 is amended to read as follows:

[Note: R.C.M. 1107(b)-(d) and (f) apply to offenses committed on or 
after 24 June 2014. The previous version of R.C.M. 1107(b) is located 
in Appendix 29.]

    (dd) R.C.M. 1107(b)(1) is amended to read as follows:
    ``(1) Discretion of convening authority. Any action to be taken on 
the findings and sentence is within the sole discretion of the 
convening authority. The convening authority is not required to review 
the case for legal errors or factual sufficiency.''
    (ee) R.C.M. 1107(b)(3)(A)(iii) is amended to read as follows:
    ``(iii) Any matters submitted by the accused under R.C.M. 1105 or, 
if applicable, R.C.M. 1106(f);
    (ff) R.C.M. 1107(b)(3)(A)(iv) is inserted to read as follows:
    ``(iv) Any statement submitted by a crime victim pursuant to R.C.M. 
1105A and subsection (C) below.''
    (gg) R.C.M. 1107(b)(3)(B)(i) is amended to read as follows:
    ``(i) The record of trial, subject to the provisions of R.C.M. 
1103A and subsection (C) below;''
    (hh) R.C.M. 1107(c) is amended to read as follows:
    ``(c) Action on findings. Action on the findings is not required. 
However, the convening authority may take action subject to the 
following limitations:
    (1) For offenses charged under subsection (a) or (b) of Article 
120; offenses charged under Article 120b; and offenses charged under 
Article 125.
    (A) The convening authority is prohibited from:
    (i) Setting aside any finding of guilt or dismissing a 
specification; or
    (ii) Changing a finding of guilty to a charge or specification to a 
finding of guilty to an offense that is a lesser included offense of 
the offense stated in the charge or specification.
    (B) The convening authority may direct a rehearing in accordance 
with subsection (e) of this rule.
    (2) For offenses other than those listed in subsection (c)(1), for 
which the maximum sentence of confinement that may be adjudged does not 
exceed two years without regard to the jurisdictional limits of the 
court; and the sentence adjudged does not include dismissal, a 
dishonorable discharge, bad-conduct discharge, or confinement for more 
than six months:
    (A) The convening authority may change a finding of guilty to a 
charge or specification to a finding of guilty to an offense that is a 
lesser included offense of the offense stated in the charge or 
specification; or
    (B) Set aside any finding of guilty and:
    (i) Dismiss the specification and, if appropriate, the charge; or
    (ii) Direct a rehearing in accordance with subsection (e) of this 
rule.
    (3) If the convening authority acts to dismiss or change any charge 
or specification for an offense, the convening authority shall provide, 
at the same time, a written explanation of the reasons for such action. 
The written explanation shall be made a part of the record of trial and 
action thereon.''
    (ii) R.C.M. 1107(d)(1) is amended to read as follows:
    ``(1) In general.
    (A) The convening authority may not disapprove, commute, or 
suspend, in whole or in part, any portion of an adjudged sentence of 
confinement for more than six months.
    (B) The convening authority may not disapprove, commute, or suspend 
that portion of an adjudged sentence that includes a dismissal, 
dishonorable discharge, or bad-conduct discharge.
    (C) The convening authority may disapprove, commute, or suspend, in 
whole or in part, any portion of an adjudged sentence not explicitly 
prohibited by this rule, to include reduction in pay grade, forfeitures 
of pay and allowances, fines, reprimands, restrictions, and hard labor 
without confinement.
    (D) The convening authority shall not disapprove, commute, or 
suspend any mandatory minimum sentence except in accordance with 
subsection (E) below.
    (E) Exceptions.
    (i) Trial counsel recommendation. Upon the recommendation of the 
trial counsel, in recognition of the substantial assistance by the 
accused in the investigation or prosecution of another person who has 
committed an offense, the convening authority or another person 
authorized to act under this section shall have the authority to 
disapprove, commute, or suspend the adjudged sentence, in whole or in 
part, even with respect to an offense for which a mandatory minimum 
sentence exists.
    (ii) Pretrial agreement. If a pretrial agreement has been entered 
into by the convening authority and the accused as authorized by R.C.M. 
705, the convening authority shall have the authority to approve, 
disapprove, commute, or suspend a sentence, in whole or in part, 
pursuant to the terms of the pretrial agreement. The convening 
authority may commute a mandatory sentence of a dishonorable discharge 
to a bad-conduct discharge pursuant to the terms of the pretrial 
agreement.
    (F) If the convening authority acts to disapprove, commute, or 
suspend, in whole or in part, the sentence of the court-martial for an 
offense, the convening authority shall provide, at the same time, a 
written explanation of the reasons for such action. The written 
explanation shall be made a part of the record of trial and action 
thereon.''
    (jj) R.C.M. 1107(d)(2) is amended to read as follows:
    ``(2) Determining what sentence should be approved. The convening 
authority shall, subject to the limitations in subsection (d)(1) above, 
approve that sentence which is warranted by the circumstances of the 
offense and appropriate for the accused.''
    (kk) R.C.M. 1107(f)(2) is amended to read as follows:
    ``(2) Modification of initial action. Subject to the limitations in 
subsections (c) and (d) above, 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 may also 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

[[Page 59945]]

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 Articles 64, 66, 67, or examination of the 
record of trial under Article 69. The convening authority shall 
personally sign any supplementary or corrective action. A written 
explanation is required for any modification of initial action which: 
1) sets aside any finding of guilt or dismisses or changes any charge 
or specification for an offense; or 2) disapproves, commutes, or 
suspends, in whole or in part, the sentence. The written explanation 
shall be made a part of the record of trial and action thereon.''
    (ll) R.C.M. 1107(g) is amended to read as follows:
    ``(g) Incomplete, ambiguous, or erroneous action. When the action 
of the convening authority or of a higher authority is incomplete, 
ambiguous, or contains error, the authority who took the incomplete, 
ambiguous, or erroneous action may be instructed by an authority acting 
under Articles 64, 66, 67, or 69 to withdraw the original action and 
substitute a corrected action.''
    (mm) R.C.M. 1108 is amended to read as follows:

[Note: R.C.M. 1108(b) applies to offenses committed on or after 24 June 
2014. The previous version of R.C.M. 1108(b) is located in Appendix 
29.]

    (nn) 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 or as 
prohibited under R.C.M. 1107. The general court-martial convening 
authority over the accused at the time of the court-martial may, when 
taking 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 or a sentence of confinement for life without 
eligibility for parole that has been ordered executed. The Secretary 
concerned may, however, suspend or remit the unexecuted part of a 
sentence of confinement for life without eligibility for parole only 
after the service of a period of confinement of not less than 20 years. 
The commander of the accused who has the authority to convene a court-
martial of the kind that adjudged the sentence may suspend or remit any 
part of the unexecuted part of any sentence by summary court-martial or 
of any sentence by special court-martial that does not include a bad-
conduct discharge regardless of whether the person acting has 
previously approved the sentence. The ``unexecuted part of any 
sentence'' is that part that has been approved and ordered executed but 
that has not actually been carried out.''
    (oo) R.C.M. 1301(c) is amended to read as follows:

[Note: R.C.M. 1301(c) applies to offenses committed on or after 24 June 
2014. The previous version of R.C.M. 1301(c) is located in Appendix 
29.]

    (pp) R.C.M. 1301(c) is amended to number the current paragraph as 
(1) and insert a new second paragraph after the current Discussion as 
follows:
    ``(2) Notwithstanding subsection (c)(1) above, summary courts-
martial do not have jurisdiction over offenses under Articles 120(a), 
120(b), 120b(a), 120b(b), forcible sodomy under Article 125, and 
attempts thereof under Article 80, UCMJ. Such offenses shall not be 
referred to a summary court-martial.''
    (qq) R.C.M. 406(b)(2) and R.C.M. 1103 are amended by changing 
``report of investigation'' to ``report of preliminary hearing'' for 
offenses committed on or after 26 December 2014.
    (rr) R.C.M. 603(b) and R.C.M. 912(f)(1)(F) are amended by changing 
``an investigating officer'' to ``a preliminary hearing officer'' for 
offenses committed on or after 26 December 2014.
    (ss) R.C.M. 705(c)(2)(E), R.C.M. 905(b)(1), and R.C.M. 906(b)(3) 
are amended by changing ``Article 32 investigation'' to ``Article 32 
preliminary hearing'' for offenses committed on or after 26 December 
2014.
    (tt) R.C.M. 706(a), R.C.M. 706(c)(3)(A), R.C.M. 902(b)(2), R.C.M. 
912(a)(1)(K), R.C.M. 1106(b), and R.C.M. 1112(c) are amended by 
changing ``investigating officer'' to ``preliminary hearing officer'' 
for offenses committed on or after 26 December 2014.
    Sec. 2. Part III of the Manual for Courts-Martial, United States, 
is amended as follows:
    (a) Mil. R. Evid. 412(c)(2) is amended to read as follows:
    ``(2) Before admitting evidence under this rule, the military judge 
must conduct a hearing, which shall be closed. At this hearing, the 
parties may call witnesses, including the alleged victim, and offer 
relevant evidence. The alleged victim must be afforded a reasonable 
opportunity to attend and be heard. The right to be heard under this 
rule includes the right to be heard through counsel. In a case before a 
court-martial comprised of a military judge and members, the military 
judge shall conduct the hearing outside the presence of the members 
pursuant to Article 39(a). The motion, related papers, and the record 
of the hearing must be sealed in accordance with R.C.M. 1103A and 
remain under seal unless the military judge or an appellate court 
orders otherwise.''
    (b) Mil. R. Evid. 513(e)(2) is amended to read as follows:
    ``(2) Before ordering the production or admission of evidence of a 
patient's records or communication, the military judge shall conduct a 
hearing. Upon the motion of counsel for either party and upon good 
cause shown, the military judge may order the hearing closed. At the 
hearing, the parties may call witnesses, including the patient, and 
offer other relevant evidence. The patient shall be afforded a 
reasonable opportunity to attend the hearing and be heard at the 
patient's own expense unless the patient has been otherwise subpoenaed 
or ordered to appear at the hearing. The right to be heard under this 
rule includes the right to be heard through counsel. However, the 
proceedings shall not be unduly delayed for this purpose. In a case 
before a court-martial comprised of a military judge and members, the 
military judge shall conduct the hearing outside the presence of the 
members.''
    (c) The title of Mil. R. Evid. 514 is amended to read as follows:
    ``Victim advocate-victim and DoD Safe Helpline staff-victim 
privilege.''
    (d) Mil. R. Evid. 514(a) is amended to read as follows:
    ``(a) General Rule. A victim has a privilege to refuse to disclose 
and to prevent any other person from disclosing a confidential 
communication made between the alleged victim and a victim advocate or 
between the alleged victim and DoD Safe Helpline staff, in a case 
arising under the Uniform Code of Military Justice, if such 
communication was made for the purpose of facilitating advice or 
assistance to the alleged victim.''
    (e) Mil. R. Evid. 514(b)(3)-(5) is amended to read as follows
    ``(3) ``DoD Safe Helpline staff'' is a person who is designated by 
competent

[[Page 59946]]

authority in writing as DoD Safe Helpline staff.
    (4) A communication is ``confidential'' if made in the course of 
the victim advocate-victim relationship or DoD Safe Helpline staff-
victim relationship and not intended to be disclosed to third persons 
other than those to whom disclosure is made in furtherance of the 
rendition of advice or assistance to the alleged victim or those 
reasonably necessary for such transmission of the communication.
    (5) ``Evidence of a victim's records or communications'' means 
testimony of a victim advocate or DoD Safe Helpline staff, or records 
that pertain to communications by a victim to a victim advocate or DoD 
Safe Helpline staff, for the purposes of advising or providing 
assistance to the victim.''
    (g) Mil. R. Evid. 514(c) is amended to read as follows:
    ``(c) Who May Claim the Privilege. The privilege may be claimed by 
the victim or the guardian or conservator of the victim. A person who 
may claim the privilege may authorize trial counsel or a counsel 
representing the victim to claim the privilege on his or her behalf. 
The victim advocate or DoD Safe Helpline staff who received the 
communication may claim the privilege on behalf of the victim. The 
authority of such a victim advocate, DoD Safe Helpline staff, guardian, 
conservator, or a counsel representing the victim to so assert the 
privilege is presumed in the absence of evidence to the contrary.''
    (h) Mil. R. Evid. 514(d)(2)-(4) is amended to read as follows:
    ``(2) When federal law, state law, Department of Defense 
regulation, or service regulation imposes a duty to report information 
contained in a communication;
    (3) When a victim advocate or DoD Safe Helpline staff believes that 
a victim's mental or emotional condition makes the victim a danger to 
any person, including the victim;
    (4) If the communication clearly contemplated the future commission 
of a fraud or crime, or if the services of the victim advocate or DoD 
Safe Helpline staff are sought or obtained to enable or aid anyone to 
commit or plan to commit what the victim knew or reasonably should have 
known to be a crime or fraud;''
    (j) Mil. R. Evid. 514(e)(2) is amended to read as follows:
    ``(2) Before ordering the production or admission of evidence of a 
victim's records or communication, the military judge must conduct a 
hearing. Upon the motion of counsel for either party and upon good 
cause shown, the military judge may order the hearing closed. At the 
hearing, the parties may call witnesses, including the victim, and 
offer other relevant evidence. The victim must be afforded a reasonable 
opportunity to attend the hearing and be heard at the victim's own 
expense unless the victim has been otherwise subpoenaed or ordered to 
appear at the hearing. The right to be heard under this rule includes 
the right to be heard through counsel. However, the proceedings may not 
be unduly delayed for this purpose. In a case before a court-martial 
composed of a military judge and members, the military judge must 
conduct the hearing outside the presence of the members.''
    (k) Mil. R. Evid. 615(e) is amended to read as follows:
    ``(e) A victim of an offense from the trial of an accused for that 
offense, unless the military judge, after receiving clear and 
convincing evidence, determines that testimony by the victim would be 
materially altered if the victim heard other testimony at that hearing 
or proceeding.''
    Sec. 3. Part IV of the Manual for Courts-Martial, United States, is 
amended as follows:
    (a) Paragraph 5, Article 81--Conspiracy, subsection a. is amended 
to read as follows:
    ``a. Text of statute.
    (a) Any person subject to this chapter who conspires with any other 
person to commit an offense under this chapter shall, if one or more of 
the conspirators does an act to effect the object of the conspiracy, be 
punished as a court-martial may direct.
    (b) Any person subject to this chapter who conspires with any other 
person to commit an offense under the law of war, and who knowingly 
does an overt act to effect the object of the conspiracy, shall be 
punished, if death results to one or more of the victims, by death or 
such other punishment as a court-martial or military commission may 
direct, and, if death does not result to any of the victims, by such 
punishment, other than death, as a court-martial or military commission 
may direct.''
    (b) Paragraph 5, Article 81--Conspiracy, subsection b. is amended 
to read as follows:
    ``b. Elements.
    (1) Conspiracy.
    (a) That the accused entered into an agreement with one or more 
persons to commit an offense under the UCMJ; and
    (b) That, while the agreement continued to exist, and while the 
accused remained a party to the agreement, the accused or at least one 
of the co-conspirators performed an overt act for the purpose of 
bringing about the object of the conspiracy.
    (2) Conspiracy when offense is an offense under the law of war 
resulting in the death of one or more victims.
    (a) That the accused entered into an agreement with one or more 
persons to commit an offense under the law of war;
    (b) That, while the agreement continued to exist, and while the 
accused remained a party to the agreement, the accused knowingly 
performed an overt act for the purpose of bringing about the object of 
the conspiracy; and
    (c) That death resulted to one or more victims.''
    (c) Paragraph 5, Article 81--Conspiracy, paragraph e. is amended by 
adding ``However, if the offense is also an offense under the law of 
war, the person knowingly performed an overt act for the purpose of 
bringing about the object of the conspiracy, and death results to one 
or more victims, the death penalty shall be an available punishment.'' 
to the end of the paragraph.
    (d) Paragraph 5, Article 81--Conspiracy, paragraph f. is amended to 
read as follows:
    ``f. Sample specifications.
    (1) Conspiracy.
    In that ____-- (personal jurisdiction data), did, (at/on board--
location) (subject-matter jurisdiction data, if required), on or about 
___-- 20 _ __--, conspired with _ __-- (and _ ___--) to commit an 
offense under the Uniform Code of Military Justice, to wit: (larceny of 
_ ___--, of a value of (about) $ _ ___--, the property of _ ___--), and 
in order to effect the object of the conspiracy the said _ ___-- (and _ 
___--) did _ ___--.
    (2) Conspiracy when offense is an offense under the law of war 
resulting in the death of one or more victims.
    In that _ ____ __-- (personal jurisdiction data), did, (at/on 
board--location) (subject-matter jurisdiction data, if required), on or 
about _ __-- 20 _ __--, conspired with _ __-- (and _ ___--) to commit 
an offense under the law of war, to wit: (murder of _ ___--), and in 
order to effect the object of the conspiracy the said _ ___-- knowingly 
did _ ___-- resulting in the death of _ ____ __--.''
    (e) Paragraph 16, Article 92--Failure to obey order or regulation, 
is amended by inserting the following text after subparagraph b(3)(c) 
and adding a new subparagraph b(3)(d):

``(Note: In cases where the dereliction of duty resulted in death or 
grievous bodily harm, add the following as applicable)


[[Page 59947]]


    (d) That such dereliction of duty resulted in death or grievous 
bodily harm to a person other than the accused.''
    (f) Paragraph 16, Article 92--Failure to obey order or regulation, 
is amended by inserting new subparagraphs c(3)(e) and (f) as follows:
    ``(e) Grievous bodily harm. ``Grievous bodily harm'' means serious 
bodily injury. It does not include minor injuries, such as a black eye 
or a bloody nose, but does include fractured or dislocated bones, deep 
cuts, torn members of the body, serious damage to internal organs, and 
other serious bodily injuries.
    (f) Where the dereliction of duty resulted in death or grievous 
bodily harm, an intent to cause death or grievous bodily harm is not 
required.''
    (g) Paragraph 16, Article 92--Failure to obey order or regulation, 
is amended by inserting new subparagraph e(3)(B), re-lettering the 
existing subparagraph e(3)(B) as subparagraph e(3)(C) and inserting a 
new subparagraph e(3)(D) as follows:
    ``(B) Through neglect or culpable inefficiency resulting in death 
or grievous bodily harm. Bad-conduct discharge, forfeiture of all pay 
and allowances, and confinement for 18 months.
    (C) Willful. Bad-conduct discharge, forfeiture of all pay and 
allowances, and confinement for 6 months.
    (D) Willful dereliction of duty resulting in death or grievous 
bodily harm. Dishonorable discharge, forfeiture of all pay and 
allowances, and confinement for 2 years.''
    (h) Paragraph 16, Article 92--Failure to obey order or regulation, 
is amended by inserting new subparagraph f(4) as follows:
    ``(4) Dereliction in the performance of duties.
    In that, _ ____ __-- (personal jurisdiction data), who (knew) 
(should have known) of his/her duties (at/on board--location) (subject-
matter jurisdiction data, if required), (on or about _ 20 _) (from 
about _ __-- 20 _ -- to about _ __--20_--), was derelict in the 
performance of those duties in that he/she (negligently) (willfully) 
(by culpable inefficiency) failed _ ___--, as it was his/her duty to do 
(, and that such dereliction of duty resulted in (grievous bodily harm, 
to wit: (broken leg) (deep cut) (fractured skull) to) (the death of) _ 
____ __--.)
    (Note: For (1) and (2) above, the punishment set forth does not 
apply in the following cases: if, in the absence of the order or 
regulation which was violated or not obeyed, the accused would on the 
same facts be subject to conviction for another specific offense for 
which a lesser punishment is prescribed; or, if the violation or 
failure to obey is a breach of restraint imposed as a result of an 
order. In these instances, the maximum punishment is that specifically 
prescribed elsewhere for that particular offense.)''
    (i) Paragraph 17, Article 93--Cruelty and maltreatment, paragraph 
e. is amended to read as follows:
    `` e. Maximum punishment. Dishonorable discharge, forfeiture of all 
pay and allowances, and confinement for 2 years.''
    (j) Paragraph 57, Article 131--Perjury, paragraphs c. is amended by 
changing ``an investigation conducted under Article 32'' to ``a 
preliminary hearing conducted under Article 32'' and by changing ``an 
Article 32 investigation'' to ``an Article 32 preliminary hearing'' for 
offenses occurring on or after 26 December 2014.
    (k) Paragraph 96, Article 134--Obstructing justice, paragraph f. is 
amended by changing ``an investigating officer'' to ``a preliminary 
hearing officer'' and by changing ``before such investigating officer'' 
to ``before such preliminary hearing officer'' for offenses occurring 
on or after 26 December 2014.
    (l) Paragraph 96a, Article 134--Wrongful interference with an 
adverse administrative proceeding, paragraph f. is amended by changing 
``an investigating officer'' to ``a preliminary hearing officer'' and 
by changing ``before such investigating officer'' to ``before such 
preliminary hearing officer'' for offenses occurring on or after 26 
December 2014.
    Sec. 4. Appendix 12, Maximum Punishment Chart is amended and reads 
as follows:
    (a) Article 92, Failure to obey order, regulation, Dereliction in 
performance of duties is amended to read as follows:

``Through neglect or culpable           None...................  3 mos..................  2/3 3 mos.
 inefficiency.
Through neglect or culpable             BCD....................  18 mos.................  Total
 inefficiency resulting in death or
 grievous bodily harm.
Willful...............................  BCD....................  6 mos..................  Total
Willful dereliction of duty resulting   DD, BCD................  3 yrs..................  Total''
 in death or grievous bodily harm.
 

    (b) Article 93, Cruelty & maltreatment of subordinates is amended 
to read as follows:

``Cruelty & maltreatment of             DD, BCD................  2 yrs..................  Total''
 subordinates.
 

    (c) Article 118, Murder is amended to delete the superscript 
``\4\'' attached to ``Life'' under the heading ``Confinement'' for 
``article 118(1) or (4)''.
    (d) Article 134 is amended by inserting a new section ``Stolen 
property: knowingly receiving, buying, concealing'' before the entry 
for Article 134 ``Straggling'' as follows:

``Stolen property: knowingly receiving, buying, concealing
    Of a value of $500.00 or less.....  BCD....................  6 mos..................  Total
    Of a value of more than $500.00...  DD.....................  3 yrs..................  Total''
 


[[Page 59948]]

    Sec. 5. Appendix 21, Analysis of Rules for Courts-Martial is 
amended as follows:
    (a) Rule 201 is amended to insert the following at the end:
    ``2014 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. The struck language was inadvertently left in 
prior revisions of the Manual.''
    (b) Rule 201(f) is amended to insert the following at the end:
    ``2014 Amendment: R.C.M. 201(f)(2)(D) was created to implement 
Section 1705 of the National Defense Authorization Act for Fiscal Year 
2014, P.L. 113-66, 26 December 2013, and applies to offenses occurring 
on or after 24 June 2014. Sec. 1705(c), P.L. 113-66.''
    (c) Rule 305(i) is amended to insert the following at the end:
    ``2014 Amendment: R.C.M. 305(i)(2) was revised to implement 
Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013.''
    (d) Rule 305 is amended to insert the following at the end:
    ``(n) 2014 Amendment: R.C.M. 305(n) was created to implement 
Article 6b(a)(2)(E), UCMJ, as created by Section 1701 of the National 
Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 
December 2013.''
    (e) A new Analysis section is inserted for Rule 404A and reads as 
follows:
    ``2014 Amendment. This is a new rule created to implement Section 
1702 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013, and applies to offenses occurring on or 
after 26 December 2014. Sec. 1702(d)(1), P.L. 113-66.
    (f) The existing analysis to Rule 405 is removed and new analysis 
is inserted to read as follows:
    ``2014 Amendment. This rule was substantially revised by Section 
1702 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013. This new rule takes effect on 26 
December 2014. Sec. 1702(d)(1), P.L. 113-66. For offenses occurring 
prior to 26 December 2014, refer to prior versions of R.C.M. 405. For 
Article 32 hearings covering offenses occurring both before and on or 
after 26 December 2014, rules contained within prior versions of R.C.M. 
405 should be used for offenses before 26 December 2014, and this rule 
should be used for offenses occurring on or after 26 December 2014.'' 
The analysis related to the prior version of R.C.M. 405 is located in 
Appendix 30.
    (g) Rule 601(f) is amended by removing the word ``new'' before 
``provision''
    (h) Rule 601 is amended by inserting the following at the end:
    ``(g) Parallel convening authorities. The intent of this new 
provision is to allow a successor convening authority to exercise full 
authority over charges, without having to effectuate re-referral or 
potentially a new trial. The subsection incorporates a recommendation 
of the May 2013 report of the Defense Legal Policy Board (DLPB), Report 
of the Subcommittee on Military Justice in Combat Zones. The DLPB is a 
Federal Advisory Committee established to provide independent advice to 
the Secretary of Defense. The DLPB found that an inhibition to 
retaining cases in an area of operations is the inability of a 
convening authority to transmit a case to another convening authority 
after referral of charges without having to withdraw the charges.''
    (i) Rule 801(a) is amended to insert the following at the end:
    ``2014 Amendment: R.C.M. 801(a)(6) was created to implement Section 
1701 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013.''
    (j) Rule 806(b) is amended by inserting the following at the end:
    ``2014 Amendment: R.C.M. 806(b)(2) was revised to implement Article 
6b(a)(3), UCMJ, as created by Section 1701 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 
2013.''
    (k) Rule 906(b) is amended to insert the following at the end:
    ``2014 Amendment: R.C.M. 906(b)(8) was revised to implement 
Articles 6b(a)(2)(E) and 6b(a)(4)(A), UCMJ, as created by Section 1701 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013.''
    (l) Rule 1001(a) is amended by inserting the following at the end:
    ``2014 Amendment: R.C.M. 1001(a)(1) was revised to implement 
Article 6b(a)(4)(B), UCMJ, as created by Section 1701 of the National 
Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 
December 2013.''
    (m) A new Analysis section is inserted for Rule 1001A and reads as 
follows:
    ``2014 Amendment. R.C.M. 1001A was added to implement Article 
6b(a)(4)(B), UCMJ, as created by Section 1701 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013.
    (n) Rule 1103A is amended to insert the following:
    ``This rule shall be implemented in a manner consistent with 
Executive Order 12958, as amended, concerning classified national 
security information.''
    (o) Rule 1105(b) is amended to insert the following at the end:
    ``2014 Amendment: R.C.M. 1105(b) was revised to implement Section 
1706 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013, and applies to offenses occurring on or 
after 24 June 2014.''
    (p) Rule 1107(b) is amended to insert the following at the end:
    ``2014 Amendment: This subsection was revised to implement Article 
60(c), UCMJ, as amended by Section 1702 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
as well as Section 1706 of the National Defense Authorization Act for 
Fiscal Year 2014, P.L. 113-66, 26 December 2013, and applies to 
offenses occurring on or after 24 June 2014. For offenses occurring 
prior to 24 June 2014, refer to prior versions of R.C.M. 1107(b).''
    (q) The existing analysis to Rule 1107(c) is removed and new 
analysis is inserted as follows:
    ``2014 Amendment: This subsection was substantially revised to 
implement Article 60(c), UCMJ, as amended by Section 1702 of the 
National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 
26 December 2013, and applies to offenses occurring on or after 24 June 
2014. For offenses occurring prior to 24 June 2014, refer to prior 
versions of R.C.M. 1107(c).''
    (r) The existing analysis to Rule 1107(d) is removed and new 
analysis is inserted as follows:
    ``2014 Amendment: This subsection was substantially revised to 
implement Article 60(c), UCMJ, as amended by Section 1702 of the 
National Defense Authorization Act for Fiscal Year 2014, P.L. 113-66, 
26 December 2013, and applies to offenses occurring on or after 24 June 
2014. For offenses occurring prior to 24 June 2014, refer to prior 
versions of R.C.M. 1107(d).''
    (s) Rule 1107(f) is amended by inserting the following at the end:
    ``2014 Amendment: This subsection was revised to implement Article 
60(c), UCMJ, as amended by Section 1702 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
and applies to offenses occurring on or after 24 June 2014. For 
offenses occurring prior to 24 June 2014,

[[Page 59949]]

refer to prior versions of R.C.M. 1107(f).''
    (t) Rule 1108(b) is amended by inserting the following at the end:
    ``2014 Amendment: This subsection was revised to implement Article 
60(c), UCMJ, as amended by Section 1702 of the National Defense 
Authorization Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, 
and applies to offenses occurring on or after 24 June 2014. For 
offenses occurring prior to 24 June 2014, refer to prior versions of 
R.C.M. 1108(b).''
    (u) Rule 1301(c) is amended by inserting the following at the end:
    ``2014 Amendment: This subsection was revised to implement Section 
1705 of the National Defense Authorization Act for Fiscal Year 2014, 
P.L. 113-66, 26 December 2013, and applies to offenses occurring on or 
after 24 June 2014. Sec. 1705(c), P.L. 113-66.''
    Sec. 6. Appendix 22, Analysis of the Military Rules of Evidence is 
amended as follows:
    (a) Rule 412 is amended by inserting the following at the end:
    ``2014 Amendment. Rule 412(c)(2) was revised in accordance with 
L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013).''
    (b) Rule 513 is amended by inserting the following at the end:
    ``2014 Amendment. Rule 513(e)(2) was revised in accordance with 
L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013).''
    (c) Rule 514 is amended by inserting the following at the end:
    ``2014 Amendment. Rule 514(e)(2) was revised in accordance with 
L.R.M. v. Kastenberg, 72 M.J. 364 (C.A.A.F. 2013). Rule 514 was also 
revised to protect communications made to the DoD Safe Helpline, which 
is a crisis support service for victims of sexual assault in the 
Department of Defense. The DoD Safe Helpline was established in 2011 
under a contract with the Rape, Abuse & Incest National Network.''
    (d) Rule 615 is amended by inserting the following at the end:
    ``2014 Amendment: Rule 615(e) was revised to implement Section 1701 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013.''
    Sec. 7. Appendix 23, Analysis of Punitive Articles is amended as 
follows:
    Paragraph 16, Article 92--Failure to obey order or regulation, is 
amended by inserting the following at the end:
    ``2014 Amendment. Subsection b(3) was amended to increase the 
punishment for dereliction of duty when such dereliction results in 
grievous bodily harm or death. Subsection b(3)(d) incorporates a 
recommendation of the May 2013 report of the Defense Legal Policy Board 
(DLPB), Report of the Subcommittee on Military Justice in Combat Zones. 
The DLPB is a Federal Advisory Committee established to provide 
independent advice to the Secretary of Defense. The DLPB subcommittee 
primarily focused on civilian casualties in a deployed environment, and 
the DLPB found that the maximum punishment for dereliction of duty was 
not commensurate with the potential consequences of dereliction 
resulting in civilian casualties. The DLPB also found that the 
available punishment did not make alternative dispositions to court-
martial a practical option because there was little incentive for an 
accused to accept these alternatives. This rule expands on the 
recommendation of the DLPB and includes elevated maximum punishment for 
dereliction of duty that results in death or grievous bodily harm 
suffered by any person.''
    Sec. 8. The Discussion to Part II of the Manual for Courts-Martial, 
United States, is amended as follows:
    (a) The Discussion following R.C.M. 201(a)(2) is amended to read as 
follows:
    ``Except insofar as required by the Constitution, the Code, or the 
Manual, such as persons listed under Article 2(a)(10), jurisdiction of 
courts-martial does not depend on where the offense was committed.''
    (b) A new Discussion section is added immediately following R.C.M. 
201(f)(2)(D):
    ``Pursuant to the National Defense Authorization Act for Fiscal 
Year 2014, only a general court-martial has jurisdiction over 
penetrative sex offenses under Articles 120, 120b, and 125, UCMJ.''
    (c) A new Discussion section is added immediately after R.C.M. 
305(i)(2)(A)(iv):
    ``Personal appearance by the victim is not required. A victim's 
right to be reasonably heard at a 7-day review may also be accomplished 
telephonically, by videoteleconference, or by written statement.''
    (d) A new Discussion section is added immediately after R.C.M. 
305(j)(1)(C):
    ``Upon a motion for release from pretrial confinement, a victim of 
an alleged offense committed by the prisoner has the right to 
reasonable, accurate, and timely notice of the motion and any hearing, 
the right to consult with counsel representing the government, and the 
right to be reasonably heard. Inability to reasonably afford a victim 
these rights shall not delay the proceedings.''
    (e) A new Discussion section is added immediately after R.C.M. 
305(n):
    ``For purposes of this rule, the term ``victim of an alleged 
offense'' means a person who has suffered direct physical, emotional, 
or pecuniary harm as a result of the commission of an offense under the 
UCMJ.''
    (f) The discussion section following R.C.M. 404(e) is amended to 
read as follows:
    ``A preliminary hearing should be directed when it appears that the 
charges are of such a serious nature that trial by general court-
martial may be warranted. See R.C.M. 405. If a preliminary hearing of 
the subject matter already has been conducted, see R.C.M. 405(b) and 
405(e)(2).''
    (g) A new Discussion section is added immediately following R.C.M. 
404A(d):
    ``The purposes of this rule are to provide the accused with the 
documents used to make the determination to prefer charges and direct a 
preliminary hearing, and to allow the accused to prepare for the 
preliminary hearing. This rule is not intended to be a tool for 
discovery and does not impose the same discovery obligations found in 
R.C.M. 405 prior to amendments required by the National Defense 
Authorization Act for Fiscal Year 2014 or R.C.M. 701. Additional rules 
for disclosure of witnesses and other evidence in the preliminary 
hearing are provided in R.C.M. 405(g).''
    (h) A new Discussion section is added immediately after R.C.M. 
405(a):
    ``The function of the preliminary hearing is to ascertain and 
impartially weigh the facts needed for the limited scope and purpose of 
the preliminary hearing. The preliminary hearing is not intended to 
perfect a case against the accused and is not intended to serve as a 
means of discovery or to provide a right of confrontation required at 
trial. Determinations and recommendations of the preliminary hearing 
officer are advisory.
    Failure to substantially comply with the requirements of Article 
32, which failure prejudices the accused, may result in delay in 
disposition of the case or disapproval of the proceedings. See R.C.M. 
905(b)(1) and 906(b)(3) concerning motions for appropriate relief 
relating to the preliminary hearing.
    The accused may waive the preliminary hearing. See subsection (k) 
of this rule. In such case, no preliminary hearing need be held. 
However, the convening authority authorized to direct the preliminary 
hearing may direct that it be conducted notwithstanding the waiver.''
    (i) A new Discussion section is added immediately after R.C.M. 
405(d)(1):

[[Page 59950]]

    ``The preliminary hearing officer, if not a judge advocate, should 
be an officer in the grade of O-4 or higher. The preliminary hearing 
officer may seek legal advice concerning the preliminary hearing 
officer's responsibilities from an impartial source, but may not obtain 
such advice from counsel for any party or counsel for a victim.''
    (j) A new Discussion section is added immediately after R.C.M. 
405(e)(2):
    ``Except as set forth in subsection (h) below, the Mil. R. Evid. do 
not apply at a preliminary hearing. Except as prohibited elsewhere in 
this rule, a preliminary hearing officer may consider evidence, 
including hearsay, which would not be admissible at trial.''
    (k) A new Discussion section is added immediately after R.C.M. 
405(f)(2)(G):
    ``Unsworn statements by the accused, unlike those made under R.C.M. 
1001(c)(2), shall be limited to matters in defense and mitigation.''
    (l) A new Discussion section is added immediately after R.C.M. 
405(g)(1)(C):
    ``A commanding officer's determination of whether an individual is 
available, as well as the means by which the individual is available, 
is a balancing test. The more important the testimony of the witness, 
the greater the difficulty, expense, delay, or effect on military 
operations must be to deny production of the witness. Based on 
operational necessity and mission requirements, the witness's 
commanding officer may authorize the witness to testify by video 
conference, telephone, or similar means of remote testimony. Factors to 
be considered in making this determination include the costs of 
producing the witness; the timing of the request for production of the 
witness; the potential delay in the proceeding that may be caused by 
the production of the witness; and the likelihood of significant 
interference with operational deployment, mission accomplishment, or 
essential training.''
    (m) A new Discussion section is added immediately after R.C.M. 
405(g)(2)(C):
    ``Factors to be considered in making this determination include the 
costs of producing the witness; the timing of the request for 
production of the witness; the potential delay in the proceeding that 
may be caused by the production of the witness; the willingness of the 
witness to testify in person; and, for child witnesses, the traumatic 
effect of providing in-person testimony. Civilian witnesses may not be 
compelled to provide testimony at a preliminary hearing. Civilian 
witnesses may be paid for travel and associated expenses to testify at 
a preliminary hearing. See Department of Defense Joint Travel 
Regulations.''
    (n) A new Discussion section is added immediately after R.C.M. 
405(g)(3)(B)(iii):
    ``A subpoena duces tecum to produce books, papers, documents, data, 
electronically stored information, or other objects for a preliminary 
hearing pursuant to Article 32 may be issued by counsel for the 
government. The preliminary hearing officer has no authority to issue a 
subpoena duces tecum. However, the preliminary hearing officer may 
direct counsel for the government to issue a subpoena duces tecum for 
defense-requested evidence.''
    (o) A new Discussion section is added immediately after R.C.M. 
405(h)(5):
    ``Before considering evidence offered under subsection (h)(2), the 
preliminary hearing officer must determine that the evidence offered is 
relevant for the limited scope and purpose of the hearing, that the 
evidence is proper under subsection (h)(2), and that the probative 
value of such evidence outweighs the danger of unfair prejudice to the 
alleged victim's privacy. The preliminary hearing officer shall set 
forth any limitations on the scope of such evidence.
    Evidence offered under subsection (h)(2) above must be protected 
pursuant to the Privacy Act of 1974, 5 U.S.C. Sec.  552a. Although Mil. 
R. Evid. 412(b)(1)(C) allows admission of evidence of the victim's 
sexual behavior or predisposition at trial when it is constitutionally 
required, there is no constitutional requirement at an Article 32 
hearing. There is likewise no constitutional requirement for a pretrial 
hearing officer to consider evidence under Mil. R. Evid. 513(d)(8), and 
514(d)(6) at an Article 32 hearing. Evidence deemed admissible by the 
preliminary hearing officer should be made a part of the report of 
preliminary hearing. See subsection (j)(2)(C), infra. Evidence not 
considered, and the testimony taken during a closed hearing, should not 
be included in the report of preliminary hearing but should be 
appropriately safeguarded or sealed. The preliminary hearing officer 
and counsel representing the government are responsible for careful 
handling of any such evidence to prevent unauthorized viewing or 
disclosure.''
    (p) A new Discussion section is added immediately after R.C.M. 
405(i)(1):
    ``A preliminary hearing officer may only consider evidence within 
the limited purpose of the preliminary hearing and shall ensure that 
the scope of the hearing is limited to that purpose. When the 
preliminary hearing officer finds that evidence offered by either party 
is not within the scope of the hearing, he shall inform the parties and 
halt the presentation of that information.''
    (q) A new Discussion section is added immediately after R.C.M. 
405(i)(3)(A):
    ``The following oath may be given to witnesses:
    ``Do you (swear) (affirm) that the evidence you give shall be the 
truth, the whole truth, and nothing but the truth (so help you God)?''
    The preliminary hearing officer is required to include in the 
report of the preliminary hearing a summary of the substance of all 
testimony. See subsection (j)(2)(B) of this rule. After the hearing, 
the preliminary hearing officer should, whenever possible, reduce the 
substance of the testimony of each witness to writing.
    All substantially verbatim notes of testimony and recordings of 
testimony should be preserved until the end of trial.
    If during the preliminary hearing any witness subject to the Code 
is suspected of an offense under the Code, the preliminary hearing 
officer should comply with the warning requirements of Mil. R. Evid. 
305(c), (d), and, if necessary (e).
    Bearing in mind that counsel are responsible for preparing and 
presenting their cases, the preliminary hearing officer may ask a 
witness questions relevant to the limited scope and purpose of the 
hearing. When questioning a witness, the preliminary hearing officer 
may not depart from an impartial role and become an advocate for either 
side.''
    (r) A new Discussion section is added immediately after R.C.M. 
405(i)(6):
    ``Counsel for the government shall provide victims with access to, 
or a copy of, the recording of the proceedings in accordance with such 
regulations as the Secretary concerned may prescribe.''
    (s) A new Discussion section is added immediately after R.C.M. 
405(j)(1):
    ``If practicable, the charges and the report of preliminary hearing 
should be forwarded to the general court-martial convening authority 
within 8 days after an accused is ordered into arrest or confinement. 
See Article 33, UCMJ.''
    (t) A new Discussion section is added immediately after R.C.M. 
405(j)(2)(K):
    ``The preliminary hearing officer may include any additional 
matters useful to the convening authority in determining disposition. 
The preliminary hearing officer may recommend that the charges and 
specifications be amended or that additional charges be preferred. See

[[Page 59951]]

R.C.M. 306 and 401 concerning other possible dispositions.''
    (u) A new Discussion section is added immediately after R.C.M. 
405(k):
    ``See also R.C.M. 905(b)(1); 906(b)(3).
    The convening authority who receives an objection may direct that 
the preliminary hearing be reopened or take other action, as 
appropriate.''
    (v) A new Discussion section is added immediately after R.C.M. 
601(g):
    ``Parallel convening authorities are those convening authorities 
that possess the same court-martial jurisdiction authority. Examples of 
permissible transmittal of charges under this rule include the 
transmittal from a general court-martial convening authority to another 
general court-martial convening authority, or from one special court-
martial convening authority to another special court-martial convening 
authority. It would be impracticable for an original convening 
authority to continue exercising authority over the charges, for 
example, when a command is being decommissioned or inactivated, or when 
deploying or redeploying and the accused is remaining behind. If 
charges have been referred, there is no requirement that the charges be 
withdrawn or dismissed prior to transfer. See R.C.M. 604. In the event 
that the case has been referred, the receiving convening authority may 
adopt the original court-martial convening order, including the court-
martial panel selected to hear the case as indicated in that convening 
order. When charges are transmitted under this rule, no recommendation 
as to disposition may be made.''
    (w) A new Discussion section is added immediately after R.C.M. 
801(a)(6)(A):
    ``The rights that a designee may exercise on behalf of a victim 
include the right to receive notice of public hearings in the case; the 
right to be reasonably heard at such hearings, if permitted by law; and 
the right to confer with counsel representing the government at such 
hearings. The designee may also be the custodial guardian of the child.
    When determining whom to appoint under this rule, the military 
judge may consider the following: the age and maturity, relationship to 
the victim, and physical proximity of any proposed designee; the costs 
incurred in effecting the appointment; the willingness of the proposed 
designee to serve in such a role; the previous appointment of a 
guardian by another court of competent jurisdiction; the preference of 
the victim; any potential delay in any proceeding that may be caused by 
a specific appointment; and any other relevant information.''
    (x) A new Discussion section is added immediately after R.C.M. 
801(a)(6)(B)(i):
    ``In the event a case involves multiple victims who are entitled to 
notice under this rule, each victim is only entitled to notice relating 
to their own designated representative.''
    (y) A new Discussion section is added immediately after R.C.M. 
801(a)(6)(D):
    ``The term ``victim of an offense under the UCMJ'' means a person 
who has suffered direct physical, emotional, or pecuniary harm as a 
result of the commission of an offense under the UCMJ. ``Good Cause'' 
means adequate or reasonable grounds to believe that the individual 
appointed to assume the victim's rights is not acting or does not 
intend to act in the best interest of the victim.''
    (z) The Discussion section following R.C.M. 806(b)(1) is amended to 
read as follows:
    ``The military judge must ensure that the dignity and decorum of 
the proceedings are maintained and that the other rights and interests 
of the parties and society are protected. Public access to a session 
may be limited, specific persons excluded from the courtroom, and, 
under unusual circumstances, a session may be closed.
    Exclusion of specific persons, if unreasonable under the 
circumstances, may violate the accused's right to a public trial, even 
though other spectators remain. Whenever specific persons or some 
members of the public are excluded, exclusion must be limited in time 
and scope to the minimum extent necessary to achieve the purpose for 
which it is ordered. Prevention of overcrowding or noise may justify 
limiting access to the courtroom. Disruptive or distracting appearance 
or conduct may justify excluding specific persons. Specific persons may 
be excluded when necessary to protect witnesses from harm or 
intimidation. Access may be reduced when no other means is available to 
relieve a witness' inability to testify due to embarrassment or extreme 
nervousness. Witnesses will ordinarily be excluded from the courtroom 
so that they cannot hear the testimony of other witnesses. See Mil. R. 
Evid. 615.
    For purposes of this rule, the term ``victim of an alleged 
offense'' means a person who has suffered direct, physical, emotional, 
or pecuniary harm as a result of the commission of an offense under the 
UCMJ.''
    (aa) The discussion section following R.C.M. 906(b)(9) is amended 
to read as follows:
    ``A motion for severance is a request that one or more accused 
against whom charges have been referred to a joint or common trial be 
tried separately. Such a request should be granted if good cause is 
shown. For example, a severance may be appropriate when: the moving 
party wishes to use the testimony of one or more of the coaccused or 
the spouse of a coaccused; a defense of a coaccused is antagonistic to 
the moving party; or evidence as to any other accused will improperly 
prejudice the moving accused.
    If a severance is granted by the military judge, the military judge 
will decide which accused will be tried first. See R.C.M. 801(a)(1). In 
the case of joint charges, the military judge will direct an 
appropriate amendment of the charges and specifications.
    See also R.C.M. 307(c)(5); 601(e)(3); 604; 812.''
    (bb) A new Discussion section is added immediately after R.C.M. 
1103A(b)(3):
    ``A convening authority who has granted clemency based upon review 
of sealed materials in the record of trial is not permitted to disclose 
the contents of the sealed materials when providing a written 
explanation of the reason for such action, as directed under R.C.M. 
1107.''
    (cc) The Discussion section following R.C.M. 1106(d)(3) is amended 
to read as follows:
    ``The recommendation required by this rule need not include 
information regarding other recommendations for clemency. It may 
include a summary of clemency actions authorized under R.C.M. 1107. See 
R.C.M. 1105(b)(2)(D) (pertaining to clemency recommendations that may 
be submitted by the accused to the convening authority).''
    (dd) The Discussion section immediately following R.C.M. 1107(c) is 
deleted.
    (ee) A new Discussion section is added immediately after R.C.M. 
1107(d)(1)(E)(i):
    ``The phrase ``investigation or prosecution of another person who 
has committed an offense'' includes offenses under the UCMJ or other 
Federal, State, local, or foreign criminal statutes.''
    (ff) The Discussion section immediately following R.C.M. 1107(d)(1) 
is deleted.
    (gg) A new Discussion section is added immediately after R.C.M. 
1107(d)(1)(F):
    ``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

[[Page 59952]]

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 forfeitures 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)(5)-(6), as appropriate.
    Unless prohibited by this rule, the convening authority may 
disapprove, mitigate or change to a less severe punishment any 
individual component of a sentence. For example, if an accused is found 
guilty of assault consummated by a battery and sentenced to a bad-
conduct discharge, three months of confinement, and reduction to E-1, 
without a pre-trial agreement and without being able to apply the 
substantial assistance exception, the convening authority may 
disapprove or reduce any part of the sentence except the bad-conduct 
discharge.''
    (hh) The Discussion section following R.C.M. 1107(d)(2) is amended 
to read as follows:
    ``In determining what sentence should be approved, the convening 
authority should consider all relevant and permissible factors 
including the possibility of rehabilitation, the deterrent effect of 
the sentence, and all matters relating to clemency, such as pretrial 
confinement. See also R.C.M. 1001-1004.
    When an accused is not serving confinement, the accused should not 
be deprived of more than two-thirds pay for any month as a result of 
one or more sentences by court-martial and other stoppages or 
involuntary deductions, unless requested by the accused. Since court-
martial forfeitures constitute a loss of entitlement of the pay 
concerned, they take precedence over all debts.''
    (ii) The Discussion section following R.C.M. 1107(d)(1)(E)(i) is 
amended to read as follows:
    ``The phrase ``investigation or prosecution of another person who 
has committed an offense'' includes offenses under the UCMJ or other 
Federal, State, local, or foreign criminal statutes.''
    (jj) A new Discussion section is added immediately after R.C.M. 
1301(c)(2):
    ``Pursuant to the National Defense Authorization Act for Fiscal 
Year 2014, only a general court-martial has jurisdiction to try 
penetrative sex offenses under Articles 120, 120b, and 125, UCMJ.''
    (kk) The Discussion sections to R.C.M. 406(b)(4), R.C.M. 503(a)(1), 
and 707(c)(1) are amended by changing ``investigating officer'' to 
``preliminary hearing officer'' for offenses occurring on or after 26 
December 2014.
    (ll) The Discussion section to R.C.M. 701(a)(6)(c) is amended by 
changing ``report of Article 32 investigation'' to ``report of Article 
32 preliminary hearing'' for offenses occurring on or after 26 December 
2014.
    (mm) The Discussion section to R.C.M. 705(d)(2) and R.C.M. 919(b) 
are amended by changing ``Article 32 investigation'' to ``Article 32 
preliminary hearing'' for offenses occurring on or after 26 December 
2014.
    Sec. 9. The Discussion to Part IV of the Manual for Courts-Martial, 
United States, is amended as follows:
    A new Discussion section is added immediately following Paragraph 
16, Article 92--Failure to obey order or regulation, subsection 
e(3)(d):
    ``If the dereliction of duty resulted in death, the accused may 
also be charged under Article 119 or Article 134 (negligent homicide), 
as applicable.''
    Sec. 10. A new appendix, Appendix 29 is inserted to read as 
follows:

``Appendix 29

Rules for Courts-Martial Applicable to Offenses Committed Before 24 
June 2014

    The Rules for Courts-Martial in this appendix were revised to 
implement Sections 1705, and 1706 of the National Defense 
Authorization Act for Fiscal Year 2014, Public Law 113-66, 26 
December 2013. For offenses committed before 24 June 2014, the 
relevant Rules for Courts-Martial are contained in this appendix and 
listed below.

Rule 201. Jurisdiction in General

    (f) Types of courts-martial.
    (1) General courts-martial.
    (A) Cases under the code.
    (i) Except as otherwise expressly provided, general courts-
martial may try any person subject to the code for any offense made 
punishable under the code. General courts-martial also may try any 
person for a violation of Article 83, 104, or 106.
    (ii) Upon a finding of guilty of an offense made punishable by 
the code, general courts-martial may, within limits prescribed by 
this Manual, adjudge any punishment authorized under R.C.M. 1003.
    (iii) Notwithstanding any other rule, the death penalty may not 
be adjudged if:
    (a) Not specifically authorized for the offenses by the code and 
Part IV of this Manual; or
    (b) The case has not been referred with a special instruction 
that the case is to be tried as capital.
    (B) Cases under the law of war.
    (i) General courts-martial may try any person who by the law of 
war is subject to trial by military tribunal for any crime or 
offense against:
    (a) The law of war; or
    (b) The law of the territory occupied as an incident of war or 
belligerency whenever the local civil authority is superseded in 
whole or part by the military authority of the occupying power. The 
law of the occupied territory includes the local criminal law as 
adopted or modified by competent authority, and the proclamations, 
ordinances, regulations, or orders promulgated by competent 
authority of the occupying power.

Discussion

    Subsection (f)(1)(B)(i)(b) is an exercise of the power of 
military government.
    (ii) When a general court-martial exercises jurisdiction under 
the law of war, it may adjudge any punishment permitted by the law 
of war.

Discussion

    Certain limitations on the discretion of military tribunals to 
adjudge punishment under the law of war are prescribed in 
international conventions. See, for example, Geneva Convention 
Relative to the Protection of Civilian Persons in Time of War, Aug. 
12, 1949, art. 68, 6 U.S.T. 3516, T.I.A.S. No. 3365.
    (C) Limitations in judge alone cases. A general court-martial 
composed only of a military judge does not have jurisdiction to try 
any person for any offense for which the death penalty may be 
adjudged unless the case has been referred to trial as noncapital.
    (2) Special courts-martial.
    (A) In general. Except as otherwise expressly provided, special 
courts-martial may try any person subject to the code for any 
noncapital offense made punishable by the code and, as provided in 
this rule, for capital offenses.
    (B) Punishments.
    (i) Upon a finding of guilty, special courts-martial may 
adjudge, under limitations prescribed by this Manual, any punishment 
authorized under R.C.M. 1003 except death, dishonorable discharge, 
dismissal, confinement for more than 1 year, hard labor without 
confinement for more than 3 months, forfeiture of pay exceeding two-
thirds pay per month, or any forfeiture of pay for more than 1 year.
    (ii) A bad-conduct discharge, confinement for more than six 
months, or forfeiture of pay for more than six months, may not be 
adjudged by a special court-martial unless:
    (a) Counsel qualified under Article 27(b) is detailed to 
represent the accused; and
    (b) A military judge is detailed to the trial, except in a case 
in which a military judge could not be detailed because of physical 
conditions or military exigencies. Physical conditions or military 
exigencies, as the terms are here used, may exist under rare 
circumstances, such as on an isolated ship on the high seas or in a 
unit in an inaccessible area, provided compelling reasons exist why 
trial must be held at that time and at that place. Mere 
inconvenience does not constitute a physical condition or military 
exigency and does not excuse a failure to detail a military judge. 
If a military judge cannot be detailed because of physical 
conditions or military exigencies, a bad-conduct discharge, 
confinement for more

[[Page 59953]]

than six months, or forfeiture of pay for more than six months, may 
be adjudged provided the other conditions have been met. In that 
event, however, the convening authority shall, prior to trial, make 
a written statement explaining why a military judge could not be 
obtained. This statement shall be appended to the record of trial 
and shall set forth in detail the reasons why a military judge could 
not be detailed, and why the trial had to be held at that time and 
place.

Discussion

    See R.C.M. 503 concerning detailing the military judge and 
counsel.
    The requirement for counsel is satisfied when counsel qualified 
under Article 27(b), and not otherwise disqualified, has been 
detailed and made available, even though the accused may not choose 
to cooperate with, or use the services of, such detailed counsel.
    The physical condition or military exigency exception to the 
requirement for a military judge does not apply to the requirement 
for detailing counsel qualified under Article 27(b).
    See also R.C.M. 1103(c) concerning the requirements for a record 
of trial in special courts-martial.
    (C) Capital offenses
    (i) A capital offense for which there is prescribed a mandatory 
punishment beyond the punitive power of a special court-martial 
shall not be referred to such a court-martial.
    (ii) An officer exercising general court-martial jurisdiction 
over the command which includes the accused may permit any capital 
offense other than one described in subsection (f)(2)(C)(i) of this 
rule to be referred to a special court-martial for trial.
    (iii) The Secretary concerned may authorize, by regulation, 
officers exercising special court-martial jurisdiction to refer 
capital offenses, other than those described in subsection 
(f)(2)(C)(i) of this rule, to trial by special court-martial without 
first obtaining the consent of the officer exercising general court-
martial jurisdiction over the command.

Discussion

    See R.C.M. 103(3) for a definition of capital offenses.
    (3) Summary courts-martial. See R.C.M. 1301(c) and (d)(1).

Rule 1105. Matters Submitted by the Accused

    (b) Matters which may be submitted.
    (1) The accused may submit to the convening authority any 
matters that may reasonably tend to affect the convening authority's 
decision whether to disapprove any findings of guilty or to approve 
the sentence. The convening authority is only required to consider 
written submissions.
    (2) Submissions are not subject to the Military Rules of 
Evidence and may include:
* * * * *
    (C) Matters in mitigation which were not available for 
consideration at the court-martial; and

Rule 1107. Action by Convening Authority

    (b) General considerations.
    (1) Discretion of convening authority. The action to be taken on 
the findings and sentence is within the sole discretion of the 
convening authority. Determining what action to take on the findings 
and sentence of a court-martial is a matter of command prerogative. 
The convening authority is not required to review the case for legal 
errors or factual sufficiency.

Discussion

    The action is taken in the interests of justice, discipline, 
mission requirements, clemency, and other appropriate reasons. If 
errors are noticed by the convening authority, the convening 
authority may take corrective action under this rule.
    (2) When action may be taken. The convening authority may take 
action only after the applicable time periods under R.C.M. 1105(c) 
have expired or the accused has waived the right to present matters 
under R.C.M. 1105(d), whichever is earlier, subject to regulations 
of the Secretary concerned.
    (3) Matters considered.
    (A) Required matters. Before taking action, the convening 
authority shall consider:
    (i) The result of trial;

Discussion

See R.C.M. 1101(a).

    (ii) The recommendation of the staff judge advocate or legal 
officer under R.C.M. 1106, if applicable; and
    (iii) Any matters submitted by the accused under R.C.M. 1105 or, 
if applicable,

R.C.M. 1106(f).

    (B) Additional matters. Before taking action the convening 
authority may consider:
    (i) The record of trial;
    (ii) The personnel records of the accused; and
    (iii) Such other matters as the convening authority deems 
appropriate. However, if the convening authority considers matters 
adverse to the accused from outside the record, with knowledge of 
which the accused is not chargeable, the accused shall be notified 
and given an opportunity to rebut.
    (4) When proceedings resulted in finding of not guilty or not 
guilty only by reason of lack of mental responsibility, or there was 
a ruling amounting to a finding of not guilty. The convening 
authority shall not take action disapproving a finding of not 
guilty, a finding of not guilty only by reason of lack of mental 
responsibility, or a ruling amounting to a finding of not guilty. 
When an accused is found not guilty only by reason of lack of mental 
responsibility, the convening authority, however, shall commit the 
accused to a suitable facility pending a hearing and disposition in 
accordance with R.C.M. 1102A.

Discussion

    Commitment of the accused to the custody of the Attorney General 
for hospitalization is discretionary.
    (5) Action when accused lacks mental capacity. The convening 
authority may not approve a sentence while the accused lacks mental 
capacity to understand and to conduct or cooperate intelligently in 
the post-trial proceedings. In the absence of substantial evidence 
to the contrary, the accused is presumed to have the capacity to 
understand and to conduct or cooperate intelligently in the post-
trial proceedings. If a substantial question is raised as to the 
requisite mental capacity of the accused, the convening authority 
may direct an examination of the accused in accordance with R.C.M. 
706 before deciding whether the accused lacks mental capacity, but 
the examination may be limited to determining the accused's present 
capacity to understand and cooperate in the post-trial proceedings. 
The convening authority may approve the sentence unless it is 
established, by a preponderance of the evidence--including matters 
outside the record of trial--that the accused does not have the 
requisite mental capacity. Nothing in this subsection shall prohibit 
the convening authority from disapproving the findings of guilty and 
sentence.
    (c) Action on findings. Action on the findings is not required. 
However, the convening authority may, in the convening authority's 
sole discretion:
    (1) Change a finding of guilty to a charge or specification to a 
finding of guilty to an offense that is a lesser included offense of 
the offense stated in the charge or specification; or
    (2) Set aside any finding of guilty and--
    (A) Dismiss the specification and, if appropriate, the charge, 
or
    (B) Direct a rehearing in accordance with subsection (e) of this 
rule.

Discussion

    The convening authority may for any reason or no reason 
disapprove a finding of guilty or approve a finding of guilty only 
of a lesser offense. However, see subsection (e) of this rule if a 
rehearing is ordered. The convening authority is not required to 
review the findings for legal or factual sufficiency and is not 
required to explain a decision to order or not to order a rehearing, 
except as provided in subsection (e) of this rule. The power to 
order a rehearing, or to take other corrective action on the 
findings, is designed solely to provide an expeditious means to 
correct errors that are identified in the course of exercising 
discretion under the rule.
    (d) Action on the sentence.
    (1) In general. The convening authority may for any or no reason 
disapprove a legal sentence in whole or in part, mitigate the 
sentence, and change a punishment to one of a different nature as 
long as the severity of the punishment is not increased. The 
convening or higher authority may not increase the punishment 
imposed by a court-martial. The approval or disapproval shall be 
explicitly stated.

Discussion

    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 forfeitures 
exceeds the

[[Page 59954]]

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)(5) and (6), 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 up to one year (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.
    (2) Determining what sentence should be approved. The convening 
authority shall approve that sentence which is warranted by the 
circumstances of the offense and appropriate for the accused. When 
the court-martial has adjudged a mandatory punishment, the convening 
authority may nevertheless approve a lesser sentence.

Discussion

    In determining what sentence should be approved the convening 
authority should consider all relevant factors including the 
possibility of rehabilitation, the deterrent effect of the sentence, 
and all matters relating to clemency, such as pretrial confinement. 
See also R.C.M. 1001 through 1004.
    When an accused is not serving confinement, the accused should 
not be deprived of more than two-thirds pay for any month as a 
result of one or more sentences by court-martial and other stoppages 
or involuntary deductions, unless requested by the accused. Since 
court-martial forfeitures constitute a loss of entitlement of the 
pay concerned, they take precedence over all debts.
    (3) Deferring 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 defer 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.

Discussion

    The convening authority's decision to postpone service of a 
court-martial sentence to confinement normally should be reflected 
in the action.
    (4) Limitations on sentence based on record of trial. If the 
record of trial does not meet the requirements of R.C.M. 
1103(b)(2)(B) or (c)(1), the convening authority may not approve a 
sentence in excess of that which may be adjudged by a special court-
martial, or one that includes a bad-conduct discharge, confinement 
for more than six months, forfeiture of pay exceeding two-thirds pay 
per month, or any forfeiture of pay for more than six months.

Discussion

See also R.C.M. 1103(f).

    (5) Limitations on sentence of a special court-martial where a 
fine has been adjudged. A convening authority may not approve in its 
entirety a sentence adjudged at a special court-martial when, if 
approved, the cumulative impact of the fine and forfeitures, whether 
adjudged or by operation of Article 58b, would exceed the 
jurisdictional maximum dollar amount of forfeitures that may be 
adjudged at that court-martial.
    (e) Ordering rehearing or other trial.
    (1) Rehearing.
    (A) In general. Subject to subsections (e)(1)(B) through 
(e)(1)(E) of this rule, the convening authority may in the convening 
authority's discretion order a rehearing. A rehearing may be ordered 
as to some or all offenses of which findings of guilty were entered 
and the sentence, or as to sentence only.

Discussion

    A rehearing may be appropriate when an error substantially 
affecting the findings or sentence is noticed by the convening 
authority. The severity of the findings or the sentence of the 
original court-martial may not be increased at a rehearing unless 
the sentence prescribed for the offense is mandatory. See R.C.M. 
810(d). If the accused is placed under restraint pending a 
rehearing, see R.C.M. 304; 305.
    (B) When the convening authority may order a rehearing. The 
convening authority may order a rehearing:
    (i) When taking action on the court-martial under this rule;
    (ii) In cases subject to review by the Court of Criminal 
Appeals, before the case is forwarded under R.C.M. 1111(a)(1) or 
(b)(1), but only as to any sentence which was approved or findings 
of guilty which were not disapproved in any earlier action. In such 
a case, a supplemental action disapproving the sentence and some or 
all of the findings, as appropriate, shall be taken; or
    (iii) When authorized to do so by superior competent authority. 
If the convening authority finds a rehearing as to any offenses 
impracticable, the convening authority may dismiss those 
specifications and, when appropriate, charges.

Discussion

    A sentence rehearing, rather than a reassessment, may be more 
appropriate in cases where a significant part of the government's 
case has been dismissed. The convening authority may not take any 
actions inconsistent with directives of superior competent 
authority. Where that directive is unclear, appropriate 
clarification should be sought from the authority issuing the 
original directive.
    (iv) Sentence reassessment. If a superior authority has approved 
some of the findings of guilty and has authorized a rehearing as to 
other offenses and the sentence, the convening authority may, unless 
otherwise directed, reassess the sentence based on the approved 
findings of guilty and dismiss the remaining charges. Reassessment 
is appropriate only where the convening authority determines that 
the accused's sentence would have been at least of a certain 
magnitude had the prejudicial error not been committed and the 
reassessed sentence is appropriate in relation to the affirmed 
findings of guilty.
    (C) Limitations.
    (i) Sentence approved. A rehearing shall not be ordered if, in 
the same action, a sentence is approved.
    (ii) Lack of sufficient evidence. A rehearing may not be ordered 
as to findings of guilty when there is a lack of sufficient evidence 
in the record to support the findings of guilty of the offense 
charged or of any lesser included offense. A rehearing may be 
ordered, however, if the proof of guilt consisted of inadmissible 
evidence for which there is available an admissible substitute. A 
rehearing may be ordered as to any lesser offense included in an 
offense of which the accused was found guilty, provided there is 
sufficient evidence in the record to support the lesser included 
offense.

Discussion

    For example, if proof of absence without leave was by improperly 
authenticated documentary evidence admitted over the objection of 
the defense, the convening authority may disapprove the findings of 
guilty and sentence and order a rehearing if there is reason to 
believe that properly authenticated documentary evidence or other 
admissible evidence of guilt will be available at the rehearing. On 
the other hand, if no proof of unauthorized absence was introduced 
at trial, a rehearing may not be ordered.
    (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.
    (D) Additional charges. Additional charges may be referred for 
trial together with charges as to which a rehearing has been 
directed.
    (E) Lesser included offenses. If at a previous trial the accused 
was convicted of a lesser included offense, a rehearing may be 
ordered only as to that included offense or as to an offense 
included in that found. If, however, a rehearing is ordered 
improperly on the original offense charged and the accused is 
convicted of that offense at the rehearing, the finding as to the 
lesser included offense of which the accused was convicted at the 
original trial may nevertheless be approved.
    (2) ``Other'' trial. The convening or higher authority may order 
an ``other'' trial if the original proceedings were invalid because 
of lack of jurisdiction or failure of a

[[Page 59955]]

specification to state an offense. The authority ordering an 
``other'' trial shall state in the action the basis for declaring 
the proceedings invalid.
    (f) Contents of action and related matters.
    (1) In general. The convening authority shall state in writing 
and insert in the record of trial the convening authority's decision 
as to the sentence, whether any findings of guilty are disapproved, 
and orders as to further disposition. The action shall be signed 
personally by the convening authority. The convening authority's 
authority to sign shall appear below the signature.

Discussion

See Appendix 16 for forms.

    (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 may also 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.

Discussion

    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).
    (3) Findings of guilty. If any findings of guilty are 
disapproved, the action shall so state. If a rehearing is not 
ordered, the affected charges and specifications shall be dismissed 
by the convening authority in the action. If a rehearing or other 
trial is directed the reasons for the disapproval shall be set forth 
in the action.

Discussion

    If a rehearing or other trial is not directed, the reasons for 
disapproval need not be stated in the action, but they may be when 
appropriate. It may be appropriate to state them when the reasons 
may affect administrative disposition of the accused; for example, 
when the finding is disapproved because of the lack of mental 
responsibility of the accused or the running of the statute of 
limitations.
    No express action is necessary to approve findings of guilty.
    See subsection (c) of this rule.
    (4) Action on sentence.
    (A) In general. The action shall state whether the sentence 
adjudged by the court-martial is approved. If only part of the 
sentence is approved, the action shall state which parts are 
approved. A rehearing may not be directed if any sentence is 
approved.

Discussion

See Appendix 16 for forms.

    See R.C.M. 1108 concerning suspension of sentences.
    See R.C.M. 1113 concerning execution of sentences.
    (B) Execution; suspension. The action shall indicate, when 
appropriate, whether an approved sentence is to be executed or 
whether the execution of all or any part of the sentence is to be 
suspended. No reasons need be stated.
    (C) Place of confinement. If the convening authority orders a 
sentence of confinement into execution, the convening authority 
shall designate the place of confinement in the action, unless 
otherwise prescribed by the Secretary concerned. If a sentence of 
confinement is ordered into execution after the initial action of 
the convening authority, the authority ordering the execution shall 
designate the place of confinement unless otherwise prescribed by 
the Secretary concerned.

Discussion

See R.C.M. 1113(e)(2)(C) concerning the place of confinement.

    (D) Custody or confinement pending appellate review; capital 
cases. When a record of trial involves an approved sentence to 
death, the convening authority shall, unless any approved sentence 
of confinement has been ordered into execution and a place of 
confinement designated, provide in the action for the temporary 
custody or confinement of the accused pending final disposition of 
the case on appellate review.
    (E) Deferment of service of sentence to confinement. Whenever 
the service of the sentence to confinement is deferred by the 
convening authority under R.C.M. 1101(c) before or concurrently with 
the initial action in the case, the action shall include the date on 
which the deferment became effective. The reason for the deferment 
need not be stated in the action.
    (F) Credit for illegal pretrial confinement. When the military 
judge has directed that the accused receive credit under R.C.M. 
305(k), the convening authority shall so direct in the action.
    (G) Reprimand. The convening authority shall include in the 
action any reprimand which the convening authority has ordered 
executed.

Discussion

See R.C.M. 1003(b)(1) concerning reprimands.

    (5) Action on rehearing or new or other trial.
    (A) Rehearing or other trial. In acting on a rehearing or other 
trial the convening authority shall be subject to the sentence 
limitations prescribed in R.C.M. 810(d). Except when a rehearing or 
other trial is combined with a trial on additional offenses and 
except as otherwise provided in R.C.M. 810(d), if any part of the 
original sentence was suspended and the suspension was not properly 
vacated before the order directing the rehearing, the convening 
authority shall take the necessary suspension action to prevent an 
increase in the same type of punishment as was previously suspended. 
The convening authority may approve a sentence adjudged upon a 
rehearing or other trial regardless whether any kind or amount of 
the punishment adjudged at the former trial has been served or 
executed. However, in computing the term or amount of punishment to 
be actually served or executed under the new sentence, the accused 
shall be credited with any kind or amount of the former sentence 
included within the new sentence that was served or executed before 
the time it was disapproved or set aside. The convening authority 
shall, if any part of a sentence adjudged upon a rehearing or other 
trial is approved, direct in the action that any part or amount of 
the former sentence served or executed between the date it was 
adjudged and the date it was disapproved or set aside shall be 
credited to the accused. If, in the action on the record of a 
rehearing, the convening authority disapproves the findings of 
guilty of all charges and specifications which were tried at the 
former hearing and that part of the sentence which was based on 
these findings, the convening authority shall, unless a further 
rehearing is ordered, provide in the action that all rights, 
privileges, and property affected by any executed portion of the 
sentence adjudged at the former hearing shall be restored. The 
convening authority shall take the same restorative action if a 
court-martial at a rehearing acquits the accused of all charges and 
specifications which were tried at the former hearing.
    (B) New trial. The action of the convening authority on a new 
trial shall, insofar as practicable, conform to the rules prescribed 
for rehearings and other trials in subsection (f)(5)(A) of this 
rule.

Discussion

See R.C.M. 810 for procedures at other trials.

    In approving a sentence not in excess of or more severe than one 
previously approved (see R.C.M. 810(d)), a convening authority is 
prohibited from approving a punitive discharge more severe than one 
formerly approved, e.g., a convening authority is prohibited from 
approving a dishonorable discharge if a bad conduct discharge had 
formerly been approved. Otherwise, in approving a sentence not in 
excess of or more severe than one previously imposed, a convening 
authority is not limited to approving the same or lesser type of 
``other punishments'' formerly approved.

Rule 1108. Suspension of Execution of Sentence; Remission

    (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),

[[Page 59956]]

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 or a sentence of confinement for life without 
eligibility for parole that has been ordered executed. The Secretary 
concerned may, however, suspend or remit the unexecuted part of a 
sentence of confinement for life without eligibility for parole only 
after the service of a period of confinement of not less than 20 
years. The commander of the accused who has the authority to convene 
a court-martial of the kind that adjudged the sentence may suspend 
or remit any part of the unexecuted part of any sentence by summary 
court-martial or of any sentence by special court- martial that does 
not include a bad-conduct discharge regardless of whether the person 
acting has previously approved the sentence. The ``unexecuted part 
of any sentence'' is that part that has been approved and ordered 
executed but that has not actually been carried out.

Discussion

    See R.C.M. 1113 (execution of sentences); R.C.M. 1201 (action by 
the Judge Advocate General); R.C.M. 1206 (powers and 
responsibilities of the Secretary). The military judge and members 
of courts-martial may not suspend sentences.

Rule 1301. Summary courts-martial generally

    (c) Jurisdiction. Subject to Chapter II, summary courts-martial 
have the power to try persons subject to the code, except 
commissioned officers, warrant officers, cadets, aviation cadets, 
and midshipmen, for any noncapital offense made punishable by the 
code.

Discussion

    See R.C.M. 103(3) for a definition of capital offenses.''
    Sec. 10. A new appendix, Appendix 30 is inserted and reads as 
follows:

``Appendix 30

Rules for Courts-Martial 405 Applicable to Offenses Committed Before 26 
December 2014

    Rule for Courts-Martial 405 in this appendix was revised to 
implement Section 1702 of the National Defense Authorization Act for 
Fiscal Year 2014, Public Law 113-66, 26 December 2013.'' For 
offenses committed before 26 December 2014, the relevant R.C.M. 405 
is contained in this appendix and listed below:

Rule 405. Pretrial investigation

    (a) In general. Except as provided in subsection (k) of this 
rule, no charge or specification may be referred to a general court-
martial for trial until a thorough and impartial investigation of 
all the matters set forth therein has been made in substantial 
compliance with this rule. Failure to comply with this rule shall 
have no effect if the charges are not referred to a general court-
martial.

Discussion

    The primary purpose of the investigation required by Article 32 
and this rule is to inquire into the truth of the matters set forth 
in the charges, the form of the charges, and to secure information 
on which to determine what disposition should be made of the case. 
The investigation also serves as a means of discovery. The function 
of the investigation is to ascertain and impartially weigh all 
available facts in arriving at conclusions and recommendations, not 
to perfect a case against the accused. The investigation should be 
limited to the issues raised by the charges and necessary to proper 
disposition of the case. The investigation is not limited to 
examination of the witnesses and evidence mentioned in the 
accompanying allied papers. See subsection (e) of this rule. 
Recommendations of the investigating officer are advisory.
    If at any time after an investigation under this rule the 
charges are changed to allege a more serious or essentially 
different offense, further investigation should be directed with 
respect to the new or different matters alleged.
    Failure to comply substantially with the requirements of Article 
32, which failure prejudices the accused, may result in delay in 
disposition of the case or disapproval of the proceedings. See 
R.C.M. 905(b)(1) and 906(b)(3) concerning motions for appropriate 
relief relating to the pretrial investigation.
    The accused may waive the pretrial investigation. See subsection 
(k) of this rule. In such case, no investigation need be held. The 
commander authorized to direct the investigation may direct that it 
be conducted notwithstanding the waiver.
    (b) Earlier investigation. If an investigation of the subject 
matter of an offense has been conducted before the accused is 
charged with an offense, and the accused was present at the 
investigation and afforded the rights to counsel, cross-examination, 
and presentation of evidence required by this rule, no further 
investigation is required unless demanded by the accused to recall 
witnesses for further cross-examination and to offer new evidence.

Discussion

    An earlier investigation includes courts of inquiry and similar 
investigations which meet the requirements of this subsection.
    (c) Who may direct investigation. Unless prohibited by 
regulations of the Secretary concerned, an investigation may be 
directed under this rule by any court-martial convening authority. 
That authority may also give procedural instructions not 
inconsistent with these rules.
    (d) Personnel.
    (1) Investigating officer. The commander directing an 
investigation under this rule shall detail a commissioned officer 
not the accuser, as investigating officer, who shall conduct the 
investigation and make a report of conclusions and recommendations. 
The investigating officer is disqualified to act later in the same 
case in any other capacity.

Discussion

    The investigating officer should be an officer in the grade of 
major or lieutenant commander or higher or one with legal training. 
The investigating officer may seek legal advice concerning the 
investigating officer's responsibilities from an impartial source, 
but may not obtain such advice from counsel for any party.
    (2) Defense counsel.
    (A) Detailed counsel. Except as provided in subsection (d)(2)(B) 
of this rule, military counsel certified in accordance with Article 
27(b) shall be detailed to represent the accused.
    (B) Individual military counsel. The accused may request to be 
represented by individual military counsel. Such requests shall be 
acted on in accordance with R.C.M. 506(b). When the accused is 
represented by individual military counsel, counsel detailed to 
represent the accused shall ordinarily be excused, unless the 
authority who detailed the defense counsel, as a matter of 
discretion, approves a request by the accused for retention of 
detailed counsel. The investigating officer shall forward any 
request by the accused for individual military counsel to the 
commander who directed the investigation. That commander shall 
follow the procedures in R.C.M. 506(b).
    (C) Civilian counsel. The accused may be represented by civilian 
counsel at no expense to the United States. Upon request, the 
accused is entitled to a reasonable time to obtain civilian counsel 
and to have such counsel present for the investigation. However, the 
investigation shall not be unduly delayed for this purpose. 
Representation by civilian counsel shall not limit the rights to 
military counsel under subsections (d)(2)(A) and (B) of this rule.

Discussion

See R.C.M. 502(d)(6) concerning the duties of defense counsel.

    (3) Others. The commander who directed the investigation may 
also, as a matter of discretion, detail or request an appropriate 
authority to detail:
    (A) Counsel to represent the United States;
    (B) A reporter; and
    (C) An interpreter.
    (e) Scope of investigation. The investigating officer shall 
inquire into the truth and form of the charges, and such other 
matters as may be necessary to make a recommendation as to the 
disposition of the charges. If evidence adduced during the 
investigation indicates that the accused committed an uncharged 
offense, the investigating officer may investigate the subject 
matter of such offense and make a recommendation as to its 
disposition, without the accused first having been charged with the 
offense. The accused's rights under subsection (f) are the same with 
regard to investigation of both charged and uncharged offenses.

Discussion

    The investigation may properly include such inquiry into issues 
raised directly by the charges as is necessary to make an 
appropriate recommendation. For example, inquiry into the legality 
of a search or the

[[Page 59957]]

admissibility of a confession may be appropriate. However, the 
investigating officer is not required to rule on the admissibility 
of evidence and need not consider such matters except as the 
investigating officer deems necessary to an informed recommendation. 
When the investigating officer is aware that evidence may not be 
admissible, this should be noted in the report. See also subsection 
(i) of this rule.
    In investigating uncharged misconduct identified during the 
pretrial investigation, the investigating officer will inform the 
accused of the general nature of each uncharged offense 
investigated, and otherwise afford the accused the same opportunity 
for representation, cross examination, and presentation afforded 
during the investigation of any charged offense.
    (f) Rights of the accused. At any pretrial investigation under 
this rule the accused shall have the right to:
    (1) Be informed of the charges under investigation;
    (2) Be informed of the identity of the accuser;
    (3) Except in circumstances described in R.C.M. 804(c)(2), be 
present throughout the taking of evidence;
    (4) Be represented by counsel;
    (5) Be informed of the witnesses and other evidence then known 
to the investigating officer;
    (6) Be informed of the purpose of the investigation;
    (7) Be informed of the right against self-incrimination under 
Article 31;
    (8) Cross-examine witnesses who are produced under subsection 
(g) of this rule;
    (9) Have witnesses produced as provided for in subsection (g) of 
this rule;
    (10) Have evidence, including documents or physical evidence, 
within the control of military authorities produced as provided 
under subsection (g) of this rule;
    (11) Present anything in defense, extenuation, or mitigation for 
consideration by the investigating officer; and
    (12) Make a statement in any form.
    (g) Production of witnesses and evidence; alternatives.
    (1) In general.
    (A) Witnesses. Except as provided in subsection (g)(4)(A) of 
this rule, any witness whose testimony would be relevant to the 
investigation and not cumulative, shall be produced if reasonably 
available. This includes witnesses requested by the accused, if the 
request is timely. A witness is ``reasonably available'' when the 
witness is located within 100 miles of the situs of the 
investigation and the significance of the testimony and personal 
appearance of the witness outweighs the difficulty, expense, delay, 
and effect on military operations of obtaining the witness' 
appearance. A witness who is unavailable under Mil. R. Evid. 
804(a)(1)-(6), is not ``reasonably available.''

Discussion

    A witness located beyond the 100-mile limit is not per se 
unavailable. To determine if a witness beyond 100 miles is 
reasonably available, the significance of the witness' live 
testimony must be balanced against the relative difficulty and 
expense of obtaining the witness' presence at the hearing.
    (B) Evidence. Subject to Mil. R. Evid., Section V, evidence, 
including documents or physical evidence, which is under the control 
of the Government and which is relevant to the investigation and not 
cumulative, shall be produced if reasonably available. Such evidence 
includes evidence requested by the accused, if the request is 
timely. As soon as practicable after receipt of a request by the 
accused for information which may be protected under Mil. R. Evid. 
505 or 506, the investigating officer shall notify the person who is 
authorized to issue a protective order under subsection (g)(6) of 
this rule, and the convening authority, if different. Evidence is 
reasonably available if its significance outweighs the difficulty, 
expense, delay, and effect on military operations of obtaining the 
evidence.

Discussion

    In preparing for the investigation, the investigating officer 
should consider what evidence will be necessary to prepare a 
thorough and impartial investigation. The investigating officer 
should consider, as to potential witnesses, whether their personal 
appearance will be necessary. Generally, personal appearance is 
preferred, but the investigating officer should consider whether, in 
light of the probable importance of a witness' testimony, an 
alternative to testimony under subsection (g)(4)(A) of this rule 
would be sufficient.
    After making a preliminary determination of what witnesses will 
be produced and other evidence considered, the investigating officer 
should notify the defense and inquire whether it requests the 
production of other witnesses or evidence. In addition to witnesses 
for the defense, the defense may request production of witnesses 
whose testimony would favor the prosecution.
    Once it is determined what witnesses the investigating officer 
intends to call it must be determined whether each witness is 
reasonably available. That determination is a balancing test. The 
more important the testimony of the witness, the greater the 
difficulty, expense, delay, or effect on military operations must be 
to permit nonproduction. For example, the temporary absence of a 
witness on leave for 10 days would normally justify using an 
alternative to that witness' personal appearance if the sole reason 
for the witness' testimony was to impeach the credibility of another 
witness by reputation evidence, or to establish a mitigating 
character trait of the accused. On the other hand, if the same 
witness was the only eyewitness to the offense, personal appearance 
would be required if the defense requested it and the witness is 
otherwise reasonably available. The time and place of the 
investigation may be changed if reasonably necessary to permit the 
appearance of a witness. Similar considerations apply to the 
production of evidence.
    If the production of witnesses or evidence would entail 
substantial costs or delay, the investigating officer should inform 
the commander who directed the investigation.
    The provision in (B), requiring the investigating officer to 
notify the appropriate authorities of requests by the accused for 
information privileged under Mil. R. Evid. 505 or 506, is for the 
purpose of placing the appropriate authority on notice that an 
order, as authorized under subparagraph (g)(6), may be required to 
protect whatever information the government may decide to release to 
the accused.
    (2) Determination of reasonable availability.
    (A) Military witnesses. The investigating officer shall make an 
initial determination whether a military witness is reasonably 
available. If the investigating officer decides that the witness is 
not reasonably available, the investigating officer shall inform the 
parties. Otherwise, the immediate commander of the witness shall be 
requested to make the witness available. A determination by the 
immediate commander that the witness is not reasonably available is 
not subject to appeal by the accused but may be reviewed by the 
military judge under R.C.M. 906(b)(3).

Discussion

    The investigating officer may discuss factors affecting 
reasonable availability with the immediate commander of the 
requested witness and with others. If the immediate commander 
determined that the witness is not reasonably available, the reasons 
for that determination should be provided to the investigating 
officer.
    (B) Civilian witnesses. The investigating officer shall decide 
whether a civilian witness is reasonably available to appear as a 
witness.

Discussion

    The investigating officer should initially determine whether a 
civilian witness is reasonably available without regard to whether 
the witness is willing to appear. If the investigating officer 
determines that a civilian witness is apparently reasonably 
available, the witness should be invited to attend and when 
appropriate, informed that necessary expenses will be paid.
    If the witness refuses to testify, the witness is not reasonably 
available because civilian witnesses may not be compelled to attend 
a pretrial investigation. Under subsection (g)(3) of this rule, 
civilian witnesses may be paid for travel and associated expenses to 
testify at a pretrial investigation. Except for use in support of 
the deposition of a witness under Article 49, UCMJ, and ordered 
pursuant to R.C.M. 702(b), the investigating officer and any 
government representative to an Article 32, UCMJ, proceeding does 
not possess authority to issue a subpoena to compel against his or 
her will a civilian witness to appear and provide testimony or 
documents.
    (C) Evidence. The investigating officer shall make an initial 
determination whether evidence is reasonably available. If the 
investigating officer decides that it is not reasonably available, 
the investigating officer shall inform the parties. Otherwise, the 
custodian of the evidence shall be requested to provide the 
evidence. A determination by the custodian that the evidence is not 
reasonably available is not subject to appeal

[[Page 59958]]

by the accused, but may be reviewed by the military judge under 
R.C.M. 906(b)(3).

Discussion

    The investigating officer may discuss factors affecting 
reasonable availability with the custodian and with others. If the 
custodian determines that the evidence is not reasonably available, 
the reasons for that determination should be provided to the 
investigating officer.
    (D) Action when witness or evidence is not reasonably available. 
If the defense objects to a determination that a witness or evidence 
is not reasonably available, the investigating officer shall include 
a statement of the reasons for the determination in the report of 
investigation.
    (3) Witness expenses. Transportation expenses and a per diem 
allowance may be paid to civilians requested to testify in 
connection with an investigation under this rule according to 
regulations prescribed by the Secretary of a Department.

Discussion

    See Department of Defense Joint Travel Regulations, Vol 2, 
paragraphs C3054, C6000.
    (4) Alternatives to testimony.
    (A) Unless the defense objects, an investigating officer may 
consider, regardless of the availability of the witness:
    (i) Sworn statements;
    (ii) Statements under oath taken by telephone, radio, or similar 
means providing each party the opportunity to question the witness 
under circumstances by which the investigating officer may 
reasonably conclude that the witness' identity is as claimed;
    (iii) Prior testimony under oath;
    (iv) Depositions;
    (v) Stipulations of fact or expected testimony;
    (vi) Unsworn statements; and
    (vii) Offers of proof of expected testimony of that witness.
    (B) The investigating officer may consider, over objection of 
the defense, when the witness is not reasonably available:
    (i) Sworn statements;
    (ii) Statements under oath taken by telephone, radio, or similar 
means providing each party the opportunity to question the witness 
under circumstances by which the investigating officer may 
reasonably conclude that the witness' identity is a claimed;
    (iii) Prior testimony under oath; and
    (iv) Deposition of that witness; and
    (v) In time of war, unsworn statements.
    (5) Alternatives to evidence.
    (A) Unless the defense objects, an investigating officer may 
consider, regardless of the availability of the evidence:
    (i) Testimony describing the evidence;
    (ii) An authenticated copy, photograph, or reproduction of 
similar accuracy of the evidence;
    (iii) An alternative to testimony, when permitted under 
subsection (g)(4)(B) of this rule, in which the evidence is 
described;
    (iv) A stipulation of fact, document's contents, or expected 
testimony;
    (v) An unsworn statement describing the evidence; or
    (vi) An offer of proof concerning pertinent characteristics of 
the evidence.
    (B) The investigating officer may consider, over objection of 
the defense, when the evidence is not reasonably available:
    (i) Testimony describing the evidence;
    (ii) An authenticated copy, photograph, or reproduction of 
similar accuracy of the evidence; or
    (iii) An alternative to testimony, when permitted under 
subsection (g)(4)(B) of this rule, in which the evidence is 
described.
    (6) Protective order for release of privileged information. If, 
prior to referral, the Government agrees to disclose to the accused 
information to which the protections afforded by Mil. R. Evid. 505 
or 506 may apply, the convening authority, or other person 
designated by regulation of the Secretary of the service concerned, 
may enter an appropriate protective order, in writing, to guard 
against the compromise of information disclosed to the accused. The 
terms of any such protective order may include prohibiting the 
disclosure of the information except as authorized by the authority 
issuing the protective order, as well as those terms specified by 
Mil. R. Evid. 505(g)(1)(B) through (F) or 506(g)(2) through (5).
    (h) Procedure.
    (1) Presentation of evidence.
    (A) Testimony. All testimony shall be taken under oath, except 
that the accused may make an unsworn statement. The defense shall be 
given wide latitude in cross-examining witnesses.

Discussion

    The following oath may be given to witnesses:
    ``Do you (swear) (affirm) that the evidence you give shall be 
the truth, the whole truth, and nothing but the truth (so help you 
God)?''
    The investigating officer is required to include in the report 
of the investigation a summary of the substance of all testimony. 
See subsection (j)(2)(B) of this rule. After the hearing, the 
investigating officer should, whenever possible, reduce the 
substance of the testimony of each witness to writing.
    If the accused testifies, the investigating officer may invite 
but not require the accused to swear to the truth of a summary of 
that testimony. If substantially verbatim notes of a testimony or 
recordings of testimony were taken during the investigation, they 
should be preserved until the end of trial.
    If it appears that material witnesses for either side will not 
be available at the time anticipated for trial, the investigating 
officer should notify the commander who directed the investigation 
so that depositions may be taken if necessary.
    If during the investigation any witness subject to the code is 
suspected of an offense under the code, the investigating officer 
should comply with the warning requirements of Mil. R. Evid.305(c), 
(d), and, if necessary, (e).
    (B) Other evidence. The investigating officer shall inform the 
parties what other evidence will be considered. The parties shall be 
permitted to examine all other evidence considered by the 
investigating officer.
    (C) Defense evidence. The defense shall have full opportunity to 
present any matters in defense, extenuation, or mitigation.
    (2) Objections. Any objection alleging failure to comply with 
this rule, except subsection (j), shall be made to the investigating 
officer promptly upon discovery of the alleged error. The 
investigating officer shall not be required to rule on any 
objection. An objection shall be noted in the report of 
investigation if a party so requests. The investigating officer may 
require a party to file any objection in writing.

Discussion

See also subsection (k) of this rule.

    Although the investigating officer is not required to rule on 
objections, the investigating officer may take corrective action in 
response to an objection as to matters relating to the conduct of 
the proceedings when the investigating officer believes such action 
is appropriate.
    If an objection raises a substantial question about a matter 
within the authority of the commander who directed the investigation 
(for example, whether the investigating officer was properly 
appointed) the investigating officer should promptly inform the 
commander who directed the investigation.
    (3) Access by spectators. Access by spectators to all or part of 
the proceedings may be restricted or foreclosed in the discretion of 
the commander who directed the investigation or the investigating 
officer. Article 32 investigations are public hearings and should 
remain open to the public whenever possible. When an overriding 
interest exists that outweighs the value of an open investigation, 
the hearing may be closed to spectators. Any closure must be 
narrowly tailored to achieve the overriding interest that justified 
the closure. Commanders or investigating officers must conclude that 
no lesser methods short of closing the Article 32 investigation can 
be used to protect the overriding interest in the case. Commanders 
or investigating officers must conduct a case-by-case, witness-by-
witness, circumstance-by-circumstance analysis of whether closure is 
necessary. If a commander or investigating officer believes closing 
the Article 32 investigation is necessary, the commander or 
investigating officer must make specific findings of fact in writing 
that support the closure. The written findings of fact must be 
included in the Article 32 investigating officer's report. Examples 
of overriding interests may include: preventing psychological harm 
or trauma to a child witness or an alleged victim of a sexual crime, 
protecting the safety of a witness or alleged victim, protecting 
classified material, and receiving evidence where a witness is 
incapable of testifying in an open setting.
    (4) Presence of accused. The further progress of the taking of 
evidence shall not be prevented and the accused shall be considered 
to have waived the right to be present, whenever the accused:
    (A) After being notified of the time and place of the proceeding 
is voluntarily absent (whether or not informed by the investigating 
officer of the obligation to be present); or

[[Page 59959]]

    (B) After being warned by the investigating officer that 
disruptive conduct will cause removal from the proceeding, persists 
in conduct which is such as to justify exclusion from the 
proceeding.
    (i) Military Rules of Evidence. The Military Rules of Evidence--
other than Mil. R. Evid. 301, 302, 303, 305, 412 and Section V--
shall not apply in pretrial investigations under this rule.

Discussion

    The investigating officer should exercise reasonable control 
over the scope of the inquiry. See subsection (e) of this rule. An 
investigating officer may consider any evidence, even if that 
evidence would not be admissible at trial. However, see subsection 
(g)(4) of this rule as to limitations on the ways in which testimony 
may be presented.
    Certain rules relating to the form of testimony which may be 
considered by the investigating officer appear in subsection (g) of 
this rule.
    (j) Report of investigation.
    (1) In general. The investigating officer shall make a timely 
written report of the investigation to the commander who directed 
the investigation.

Discussion

    If practicable, the charges and the report of investigation 
should be forwarded to the general court-martial convening authority 
within 8 days after an accused is ordered into arrest or 
confinement. Article 33.
    (2) Contents. The report of investigation shall include:
    (A) A statement of names and organizations or addresses of 
defense counsel and whether defense counsel was present throughout 
the taking of evidence, or if not present the reason why;
    (B) The substance of the testimony taken on both sides, 
including any stipulated testimony;
    (C) Any other statements, documents, or matters considered by 
the investigating officer, or recitals of the substance or nature of 
such evidence;
    (D) A statement of any reasonable grounds for belief that the 
accused was not mentally responsible for the offense or was not 
competent to participate in the defense during the investigation;

Discussion

See R.C.M. 909 (mental capacity); 916(k) (mental responsibility).

    (E) A statement whether the essential witnesses will be 
available at the time anticipated for trial and the reasons why any 
essential witness may not then be available;
    (F) An explanation of any delays in the investigation;
    (G) The investigating officer's conclusion whether the charges 
and specifications are in proper form;
    (H) The investigating officer's conclusion whether reasonable 
grounds exist to believe that the accused committed the offenses 
alleged; and
    (I) The recommendations of the investigating officer, including 
disposition.

Discussion

    For example, the investigating officer may recommend that the 
charges and specifications be amended or that additional charges be 
preferred. See R.C.M. 306 and 401 concerning other possible 
dispositions.
    See Appendix 5 for a sample of the Investigating Officer's 
Report (DD Form 457).
    (3) Distribution of the report. The investigating officer shall 
cause the report to be delivered to the commander who directed the 
investigation. That commander shall promptly cause a copy of the 
report to be delivered to each accused.
    (4) Objections. Any objection to the report shall be made to the 
commander who directed the investigation within 5 days of its 
receipt by the accused. This subsection does not prohibit a 
convening authority from referring the charges or taking other 
action within the 5-day period.
    (k) Waiver. The accused may waive an investigation under this 
rule. In addition, failure to make a timely objection under this 
rule, including an objection to the report, shall constitute waiver 
of the objection. Relief from the waiver may be granted by the 
investigating officer, the commander who directed the investigation, 
the convening authority, or the military judge, as appropriate, for 
good cause shown.

Discussion

See also R.C.M. 905(b)(1); 906(b)(3).

    If the report fails to include reference to objections which 
were made under subsection (h)(2) of this rule, failure to object to 
the report will constitute waiver of such objections in the absence 
of good cause for relief from the waiver.
    The commander who receives an objection may direct that the 
investigation be reopened or take other action, as appropriate.
    Even if the accused made a timely objection to failure to 
produce a witness, a defense request for a deposition may be 
necessary to preserve the issue for later review.''

    Dated: September 29, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-23546 Filed 10-2-14; 8:45 am]
BILLING CODE 5001-06-P