Manual for Courts-Martial; Publication of Supplementary Materials, 78576-78589 [2016-26947]

Download as PDF 78576 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Federal Officer, via electronic mail, the preferred mode of submission, at the address listed in the FOR FURTHER INFORMATION CONTACT section. Written comments or statements being submitted in response to the agenda set forth in this notice must be received by the Designated Federal Official at least seven business days prior to the meeting to be considered by the committee. The Designated Federal Official will review all timely submitted written comments or statements with the committee Chairperson and ensure the comments are provided to all members of the committee before the meeting. Written comments or statements received after this date may not be provided to the committee until its next meeting. Pursuant to 41 CFR § 102–3.140d, the committee is not obligated to allow a member of the public to speak or otherwise address the committee during the meeting. However, the committee Designated Federal Official and Chairperson may choose to invite certain submitters to present their comments verbally during the open portion of this meeting or at a future meeting. The Designated Federal Officer, in consultation with the committee Chairperson, may allot a specific amount of time for submitters to present their comments verbally. Brenda S. Bowen, Army Federal Register Liaison Officer. [FR Doc. 2016–26928 Filed 11–7–16; 8:45 am] BILLING CODE 5001–03–P applied earlier than the date of publication in the Federal Register. DEPARTMENT OF DEFENSE Office of the Secretary These Supplementary Materials are effective as of November 8, 2016. DATES: [Docket ID: DOD–2016–OS–0110] Manual for Courts-Martial; Publication of Supplementary Materials Joint Service Committee on Military Justice (JSC), Department of Defense. ACTION: Publication of Discussion and Analysis (Supplementary Materials) accompanying the Manual for CourtsMartial, United States (2012 ed.) (MCM). AGENCY: The JSC hereby publishes Supplementary Materials accompanying the MCM as amended by Executive Orders 13643, 13669, 13696, 13730, and 13740. These changes have not been coordinated within the Department of Defense under DoD Directive 5500.1, ‘‘Preparation, Processing and Coordinating Legislation, Executive Orders, Proclamations, Views Letters 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. These Supplementary Materials have been approved by the JSC and the General Counsel of the Department of Defense, and shall be applied in conjunction with the rule with which they are associated. The Discussions are effective insofar as the Rules they supplement are effective, but may not be SUMMARY: FOR FURTHER INFORMATION CONTACT: Major Harlye S. Carlton, USMC, (703) 963–9299 or harlye.carlton@usmc.mil. The JSC Web site is located at: http:// jsc.defense.gov. SUPPLEMENTARY INFORMATION: Public Comments: The JSC solicited public comments for these changes to the MCM via the Federal Register on October 23, 2012 (77 FR 64854–64887, Docket ID: DoD–2012–OS–0129), held a public meeting on December 11, 2012, and published the JSC response to public comments via the Federal Register on March 5, 2013 (78 FR 14271–14272, Docket ID: DoD–2012– OS–0129). The amendments to the Discussion and Analysis of the MCM are as follows: Annex Section 1. Appendix 12 of the Manual for Courts-Martial, United States, is amended as follows: (a) Article 120 is amended to read as follows: ‘‘120 Rape and sexual assault generally Offense Discharge Confinement Forfeiture Rape ........................................................................................... Sexual Assault ............................................................................ Aggravated Sexual Contact ....................................................... Abusive Sexual Contact ............................................................. Mandatory DD 5 ....................... Mandatory DD 5 ....................... DD, BCD ................................. DD, BCD ................................. Life 4 ........................................ 30 yrs ...................................... 20 yrs ...................................... 7 yrs ........................................ Offense Discharge Confinement Rape of a Child .......................................................................... Sexual Assault of a Child ........................................................... Sexual Abuse of a Child: Cases Involving Sexual Contact ......................................... Other Cases ........................................................................ Mandatory DD 5 ....................... Mandatory DD 5 ....................... Life 4 ........................................ 30 yrs ...................................... Total. Total. DD, BCD ................................. DD, BCD ................................. 20 yrs ...................................... 15 yrs ...................................... Total. Total.’’ Total. Total. Total. Total.’’ mstockstill on DSK3G9T082PROD with NOTICES (b) Article 120b is inserted to read as follows: ‘‘120b Rape and sexual assault of a child (c) Article 120c is inserted to read as follows: ‘‘120c Other sexual misconduct Offense Discharge Confinement Indecent Viewing ........................................................................ Indecent Recording .................................................................... Broadcasting or Distributing of an Indecent Recording ............. DD, BCD ................................. DD, BCD ................................. DD, BCD ................................. 1 yr .......................................... 5 yrs ........................................ 7 yrs ........................................ VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 PO 00000 Forfeiture Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\08NON1.SGM 08NON1 Forfeiture Total. Total. Total. Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Offense Discharge Confinement Forcible Pandering ..................................................................... Indecent Exposure ..................................................................... DD, BCD ................................. DD, BCD ................................. 12 yrs ...................................... 1 yr .......................................... ‘‘125 offenses committed after 28 June 2012. See Appendices 23, 27, and 28.]’’ (e) Article 125 is amended to read as follows: (d) The following Note is inserted after Article 120c to read as follows: ‘‘[Note: The Article 120, 120b, and 120c maximum punishments apply to Offense Discharge Forcible sodomy ......................................................................... Bestiality ..................................................................................... (f) Article 134 abusing public animal is amended to read as follows: ‘‘134 Mandatory ....................... DD, BCD ................................. Life 4 ........................................ 5 yrs ........................................ Total. Total.’’ Forfeiture Total. Total.’’ Animal abuse Offense Discharge Confinement Abuse, neglect, or abandonment of an animal .......................... Abuse, neglect, or abandonment of a public animal ................. Sexual act with an animal or cases where the accused caused the serious injury or death of the animal. BCD ......................................... BCD ......................................... DD, BCD ................................. 1 yr .......................................... 2yrs .......................................... 5 yrs ........................................ (g) Article 134 Assault with intent to commit voluntary manslaughter, Forfeiture Forcible sodomy; bestiality Confinement DD 5 78577 Forfeiture Total. Total. Total.’’ robbery, sodomy, arson, or burglary is amended to read as follows: Offense Discharge Confinement 134 With intent to commit voluntary manslaughter, robbery, forcible sodomy, arson, or burglary. DD, BCD ................................. 10 yrs ...................................... Discharge Confinement DD, BCD ................................. 5 yrs ........................................ Forfeiture Total.’’ (h) Article 134 Indecent conduct is inserted to read as follows: Offense 134 Indecent conduct .............................................................. (i) The Notes are amended by adding note 5 after note 4. ‘‘ 5. A dishonorable discharge can be reduced to a bad-conduct discharge by the convening authority in accordance with a pretrial agreement.’’ Section 2. Appendix 12A of the Manual for Courts-Martial, United States, is inserted to read as follows: mstockstill on DSK3G9T082PROD with NOTICES Article 77 78 79 80 81 82 83 84 85 86 .................. .................. .................. .................. .................. .................. .................. .................. .................. .................. VerDate Sep<11>2014 ‘‘APPENDIX 12A LESSER INCLUDED OFFENSES This chart was compiled for convenience purposes only and is not the ultimate authority for specific lesser included offenses. Lesser offenses are those which are necessarily included in the offense charged. See Article 79. Depending on the factual circumstances in each case, the offenses listed below may be considered lesser included. The Lesser included offense 16:27 Nov 07, 2016 Jkt 241001 PO 00000 Frm 00013 Fmt 4703 See See See See See Part Part Part Part Part IV, IV, IV, IV, IV, Para. Para. Para. Para. Para. 1. 2. 3. 4. 5. Art. 86. Sfmt 4703 Total.’’ elements of the proposed lesser included offense should be compared with the elements of the greater offense to determine if the elements of the lesser offense are derivative of the greater offense and vice versa. The ‘‘elements test’’ is the proper method for determining lesser included offenses. See Appendix 23. Attempts to commit an offense may constitute a lesser included offense and are not listed. See Article 80. Offense Principals ..................................................................................... Accessory after the fact .............................................................. Conviction of lesser included offenses ....................................... Attempts ...................................................................................... Conspiracy .................................................................................. Solicitation. Fraudulent enlistment, appointment, or separation. Effecting unlawful enlistment, appointment, or separation. Desertion ..................................................................................... Absence without leave. Forfeiture E:\FR\FM\08NON1.SGM 08NON1 78578 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Article Offense 87 .................. Missing movement. —Design ..................................................................................... —Neglect .................................................................................... Contempt toward officials. Disrespect toward a superior commissioned officer ................... Assaulting or willfully disobeying superior commissioned officer. —Striking superior commissioned officer in execution of office 88 .................. 89 .................. 90 .................. Lesser included offense —Drawing or lifting up a weapon or offering violence to superior commissioned officer in execution of office. 91 .................. 92 .................. 93 .................. 94 .................. 95 .................. 96 .................. 97 .................. 98 .................. 99 .................. —Willfully disobeying lawful order of superior commissioned officer. Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer. —Striking or assaulting warrant, noncommissioned, or petty officer in the execution of office. —Disobeying a warrant, noncommissioned, or petty officer ...... —Treating with contempt or being disrespectful in language or deportment toward warrant, noncommissioned, or petty officer in the execution of office. Failure to obey order or regulation. Cruelty and maltreatment. Mutiny and sedition. —Mutiny by creating violence or disturbance ............................ —Mutiny by refusing to obey orders or perform duties .............. —Sedition .................................................................................... Resistance, flight, breach of arrest, and escape. —Resisting apprehension ........................................................... Releasing prisoner without proper authority. —Suffering a prisoner to escape through design ....................... Unlawful detention. Noncompliance with procedural rules. Misbehavior before the enemy. —Running away .......................................................................... —Endangering safety of a command, unit, place, ship, or military property. —Casting away arms or ammunition ......................................... —Cowardly conduct .................................................................... 100 ................ 101 ................ 102 ................ 103 ................ 104 ................ 105 ................ 106 ................ 106a .............. 107 ................ 108 ................ —Quitting place of duty to plunder or pillage ............................. Subordinate compelling surrender. Improper use of a countersign. Forcing a safeguard. Captured or abandoned property. Aiding the enemy. Misconduct as a prisoner. Spies. Espionage. False official statement. Military property of the United States—sale, loss, damage, destruction, or wrongful disposition. —Willfully damaging military property ........................................ mstockstill on DSK3G9T082PROD with NOTICES —Willfully suffering military property to be damaged ................. —Willfully destroying military property ........................................ —Willfully suffering military property to be destroyed ................ —Willfully losing military property ............................................... —Willfully suffering military property to be lost .......................... VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 PO 00000 Frm 00014 Fmt 4703 Art. 87 (neglect); Art. 86. Art. 86. Art. 117. Art. 90 (drawing or lifting up a weapon or offering violence to superior commissioned officer); Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault or assault consummated by a battery upon commissioned officer not in the execution of office). Art. 128 (simple assault; assault with a dangerous weapon; assault upon a commissioned officer not in the execution of office). Art. 92; Art. 89. Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault upon warrant, noncommissioned, or petty officer not in the execution of office). Art. 92. Art. 117. Art. 90; Art. 116; Art. 128 (simple assault). Art. 90 (willful disobedience of commissioned officer); Art. 91 (willful disobedience of warrant, noncommissioned, or petty officer); Art. 92. Art. 116; Art. 128 (assault). Art. 128 (simple assault; assault consummated by a battery). Art. 96 (neglect). Art. 85 (desertion with intent to avoid hazardous duty or important service); Art. 86 (absence without authority; going from appointed place of duty). Art. 92. Art. 108. Art. 85 (desertion with intent to avoid hazardous duty or important service); Art. 86; Art. 99 (running away). Art. 86 (going from appointed place of duty). Art. 108 (damaging military property through neglect); Art. 109 (willfully damaging non-military property). Art. 108 (through neglect suffering military property to be damaged). Art. 108 (through neglect destroying military property; willfully damaging military property; through neglect damaging military property); Art. 109 (willfully destroying non-military property; willfully damaging non-military property). Art. 108 (through neglect suffering military property to be destroyed; willfully suffering military property to be damaged; through neglect suffering military property to be damaged). Art. 108 (through neglect losing military property). Art. 108 (through neglect suffering military property to be lost). Sfmt 4703 E:\FR\FM\08NON1.SGM 08NON1 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Article 109 ................ 110 ................ 111 ................ 112 ................ 112a .............. 113 ................ 114 ................ 115 ................ 116 ................ 117 ................ 118 ................ Offense Lesser included offense —Willfully suffering military property to be sold ......................... —Willfully suffering military property to be wrongfully disposed of. Property other than military property of the United States— waste, spoilage, or destruction. Improper hazarding of vessel. —Willfully and wrongfully hazarding a vessel ............................ —Willfully and wrongfully suffering a vessel to be hazarded ..... Drunken or reckless operation of vehicle, aircraft, or vessel. —Reckless, wanton, or impaired operation or physical control of a vessel. —Drunken operation of a vehicle, vessel, or aircraft while drunk or with a blood or breath alcohol concentration in violation of the described per se standard. Drunk on Duty. Wrongful use, possession, etc., of controlled substances. —Wrongful use of controlled substance ..................................... —Wrongful manufacture of controlled substance ...................... —Wrongful introduction of controlled substance ........................ —Wrongful possession, manufacture, or introduction of a controlled substance with intent to distribute. Misbehavior of sentinel or lookout. —Drunk on post .......................................................................... —Sleeping on post ..................................................................... —Leaving post ............................................................................ Art. 108 (through neglect suffering military property to be sold). Art. 108 (through neglect suffering military property to be wrongfully disposed of in the manner alleged). Dueling. Malingering. Riot or breach of peace. —Riot .......................................................................................... Provoking speeches or gestures. Murder. —Premeditated murder and murder during certain offenses ..... —All murders under Article 118 ................................................. 119 ................ 119a .............. 120 1 .............. —Murder as defined in Article 118(1), (2), and (4) .................... Manslaughter. —Voluntary manslaughter .......................................................... —Involuntary manslaughter ........................................................ Death or injury of an unborn child. —Killing an unborn child ............................................................. —Intentionally killing an unborn child ......................................... Rape and sexual assault generally. —Rape. —By unlawful force .............................................................. —By force causing or likely to cause death or grievous bodily harm to any person. mstockstill on DSK3G9T082PROD with NOTICES —By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. —By first rendering that other person unconscious ............ —By administering to that person a drug, intoxicant, or other similar substance. —Sexual Assault. —By threatening or placing that other person in fear ......... —By causing bodily harm to that other person ................... —By making a fraudulent representation that the sexual act serves a professional purpose. —Inducing a belief by any artifice, pretense, or concealment that the person is another person. —Upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring. —When the other person is incapable of consenting ......... —Aggravated sexual contact. VerDate Sep<11>2014 78579 16:27 Nov 07, 2016 Jkt 241001 PO 00000 Frm 00015 Fmt 4703 Art. 110 (negligently hazarding a vessel). Art. 110 (negligently suffering a vessel to be hazarded). Art. 110. Art. 110; Art. 112. Art. 112a (wrongful possession of controlled substance). Art. 112a (wrongful possession of controlled substance). Art. 112a (wrongful possession of controlled substance). Art. 112a (wrongful possession, manufacture, or introduction of controlled substance). Art. 112; Art. 92 (dereliction of duty). Art. 92 (dereliction of duty). Art. 92 (dereliction of duty); Art. 86 (going from appointed place of duty). Art. 116 (breach of peace). Art. 118 (intent to kill or inflict great bodily harm; act inherently dangerous to another). Art. 119 (involuntary manslaughter); Art. 128 (simple assault; assault consummated by a battery; aggravated assault). Art. 119 (voluntary manslaughter). Art. 119 (involuntary manslaughter); Art. 128 (simple assault; assault consummated by a battery; aggravated assault). Art. 128 (simple assault; assault consummated by a battery). Art. 119a (injuring an unborn child). Art. 119a (killing an unborn child; injuring an unborn child). Art. 120(b)(1)(B); Art. 120(c); Art. 120(d); Art. 128 (simple assault; assault consummated by a battery). Art. 120(a)(1); Art. 120(b)(1)(B); Art. 120(c); Art. 120(d); Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm; assault intentionally inflicting grievous bodily harm). Art. 120(b)(1)(B); Art. 120(c); Art. 120(d). Art. 120(b)(2); Art. 120(c); Art. 120(d). Art. 120(c); Art. 128 (simple assault; assault consummated by a battery). Art. Art. a Art. 120(d). 120(d); Art. 128 (simple assault; assault consummated by battery). 120(d). Art. 120(d). Art. 120(d). Art. 120(d). Sfmt 4703 E:\FR\FM\08NON1.SGM 08NON1 78580 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Article Offense Lesser included offense —By unlawful force .............................................................. —By force causing or likely to cause death or grievous bodily harm to any person. —By threatening or placing that other person in fear that any person would be subjected to death, grievous bodily harm, or kidnapping. —By first rendering that person unconscious ..................... 120a .............. 120b .............. 120c .............. 121 ................ —By administering to that person a drug, intoxicant, or other similar substance. —Abusive sexual contact .................................................... Stalking. Rape and sexual assault of a child. —Rape of a child. —Of a child who has not attained the age of 12 ................ —By force of a child who has attained the age of 12 ........ —By threatening or placing in fear a child who has attained the age of 12. —By rendering unconscious a child who has attained the age of 12. —By administering a drug, intoxicant, or other similar substance to a child who has attained the age of 12. —Sexual assault of a child. —Sexual assault of a child who has not attained the age of 12 involving contact between penis and vulva or anus or mouth. —Sexual assault of a child who has attained the age of 12 involving penetration of vulva or anus or mouth by any part of the body or any object. Other sexual misconduct. Larceny and wrongful appropriation. —Larceny .................................................................................... —Larceny of military property ..................................................... 122 ................ Robbery ....................................................................................... 123 ................ 123a .............. Forgery. Making, drawing, or uttering check, draft, or order without sufficient funds. Maiming ....................................................................................... 124 ................ 125 ................ 126 ................ 127 ................ 128 ................ Forcible sodomy; bestiality. —Forcible sodomy ...................................................................... Arson. —Aggravated arson .................................................................... Extortion. Assault. —Assault consummated by a battery ......................................... —Assault upon a commissioned, warrant, noncommissioned, or petty officer. —Assault upon a sentinel or lookout in the execution of duty ... —Assault consummated by a battery upon a child under 16 years. —Assault with a dangerous weapon or other means of force likely to produce death or grievous bodily harm. mstockstill on DSK3G9T082PROD with NOTICES —Assault in which grievous bodily harm is intentionally inflicted. 129 130 131 132 133 134 134 ................ ................ ................ ................ ................ ................ ................ VerDate Sep<11>2014 Burglary ....................................................................................... Housebreaking. Perjury. Frauds against the United States. Conduct unbecoming an officer and a gentleman. Animal abuse. Adultery. 16:27 Nov 07, 2016 Jkt 241001 PO 00000 Frm 00016 Fmt 4703 Art. a Art. a Art. 120(d); Art. 128 (simple assault; assault consummated by battery). 120(d); Art. 128 (simple assault; assault consummated by battery). 120(d). Art. a Art. a Art. 120(d); Art. 128 (simple assault; assault consummated by battery). 120(d); Art. 128 (simple assault; assault consummated by battery). 128 (simple assault; assault consummated by a battery). Art. 120b(c); Art. 120c. Art. 120b(b); Art. 120b(c); Art. 128 (assault consummated by a battery upon a child under 16 years). Art. 120b(b); Art. 120b(c). Art. 120b(b); Art. 120b(c); Art. 128 (assault consummated by a battery upon a child under 16 years). Art. 120b(b); Art. 120b(c); Art. 128 (assault consummated by a battery upon a child under 16 years). Art. 120b(c). Art. 120b(c). Art. 121 (wrongful appropriation). Art. 121 (wrongful appropriation; larceny of property other than military property). Art. 121 (larceny; wrongful appropriation); Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm) Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm) Art. 128 (simple assault; assault consummated by a battery). Art. 126 (simple arson). Art. 128 (simple assault). Art. 128 (simple assault; assault consummated by a battery). Art. 128 (simple assault; assault consummated by a battery). Art. 128 (simple assault; assault consummated by a battery). Art. 128 (simple assault; assault consummated by a battery; (when committed upon a child under the age of 16 years; assault consummated by a battery upon a child under the age of 16 years)). Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon (when committed upon a child under the age of 16 years; assault consummated by a battery upon a child under the age of 16 years)). Art. 130 (housebreaking). Sfmt 4703 E:\FR\FM\08NON1.SGM 08NON1 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Article Offense 134 ................ Assault—with intent to commit murder, voluntary manslaughter, rape, robbery, forcible sodomy, arson, burglary, or housebreaking. —Assault with intent to murder .................................................. Lesser included offense —Assault with intent to commit voluntary manslaughter ........... —Assault with intent to commit rape or forcible sodomy ........... —Assault with intent to commit burglary .................................... 134 ................ 134 ................ 134 ................ 134 ................ 134 ................ 134 ................ 134 134 134 134 134 134 134 134 ................ ................ ................ ................ ................ ................ ................ ................ 134 ................ ................ ................ ................ ................ 134 134 134 134 134 ................ ................ ................ ................ ................ 134 134 134 134 134 134 mstockstill on DSK3G9T082PROD with NOTICES 134 134 134 134 ................ ................ ................ ................ ................ ................ 134 ................ 134 ................ 134 ................ 134 134 134 134 ................ ................ ................ ................ 134 ................ VerDate Sep<11>2014 —Assault with intent to commit robbery, arson, or housebreaking. Bigamy. Bribery and graft. —Bribery ..................................................................................... Burning with intent to defraud. Check, worthless, making and uttering—by dishonorably failing to maintain funds. Child endangerment. —Child endangerment by design ............................................... Child pornography. —Possessing child pornography with intent to distribute ........... —Distributing child pornography ................................................. —Producing child pornography .................................................. Cohabitation, wrongful. Correctional custody—offenses against. Debt, dishonorably failing to pay. Disloyal statements. Disorderly conduct, drunkenness. Drinking liquor with prisoner. Drunk prisoner. Drunkenness—incapacitation for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug. False or unauthorized pass offenses. —Wrongful use or possession of false or unauthorized military or official pass, permit, discharge certificate, or identification card, with the intent to defraud or deceive. False pretenses, obtaining services under. False swearing. Firearm, discharging—through negligence. Firearm, discharging—willfully, under such circumstances as to endanger human life. Fleeing scene of accident. Fraternization. Gambling with a subordinate. Homicide, negligent. Impersonating a commissioned, warrant, noncommissioned, or petty officer, or an agent or official. Indecent conduct. Indecent language ...................................................................... Jumping from vessel into the water. Kidnapping. Mail: Taking, opening, secreting, destroying, or stealing ........... Mails: Depositing or causing to be deposited obscene matters in. Misprision of serious offense. Obstructing justice. Wrongful interference with an adverse administrative proceeding. Pandering and prostitution. Parole, violation of. Perjury: Subornation of. Public record: Altering, concealing, removing, mutilating, obliterating, or destroying. Quarantine: Medical, breaking .................................................... 16:27 Nov 07, 2016 Jkt 241001 PO 00000 78581 Frm 00017 Fmt 4703 Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm); Art. 134 (assault with intent to commit voluntary manslaughter; willful or careless discharge of a firearm). Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon; assault intentionally inflicting grievous bodily harm); Art. 134 (willful or careless discharge of a firearm). Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon). Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon); Art. 134 (assault with intent to commit housebreaking). Art. 128 (simple assault; assault consummated by a battery; assault with a dangerous weapon). Art. 134 (graft). Art. 134 (child endangerment by culpable negligence). Art. 134 (possessing child pornography). Art. 134 (possessing child pornography; possessing child pornography with intent to distribute) Art. 134 (possessing child pornography). Art. 134 (same offenses, except without the intent to defraud or deceive). Art. 134 (firearm, discharging—through negligence). Art. 117 (provoking speeches). Art. 121. Art. 134 (breaking restriction). Sfmt 4703 E:\FR\FM\08NON1.SGM 08NON1 78582 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Article Offense 134 ................ 134 ................ 134 ................ Reckless endangerment. Restriction, breaking. Seizure: Destruction, removal, or disposal of property to prevent. Self-injury without intent to avoid service. Sentinel or lookout: Offenses against or by. Soliciting another to commit an offense. Stolen property: Knowingly receiving, buying, concealing. Straggling. Testify: Wrongful refusal. Threat or hoax designed or intended to cause panic or public fear. —Threat ...................................................................................... Threat, communicating. Unlawful entry. Weapon: Concealed, carrying. Wearing unauthorized insignia, decoration, badge, ribbon, device or lapel button’’. 134 134 134 134 134 134 134 ................ ................ ................ ................ ................ ................ ................ 134 134 134 134 ................ ................ ................ ................ mstockstill on DSK3G9T082PROD with NOTICES 1 This Lesser included offense Art. 134 (communicating a threat); Art. 128 (assault). chart only includes the 2012 version of Art. 120. See Appendix 27 and 28 for prior versions. Section 3. The Discussion to Part I of the Manual for Courts-Martial, United States, is amended as follows: (a) The Discussion immediately following paragraph 4 is amended to read as follows: ‘‘The Department of Defense, in conjunction with the Department of Homeland Security, has published supplementary materials to accompany the Manual for Courts-Martial. These materials consist of a Discussion (accompanying the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, and the Punitive Articles), an Analysis, and various appendices. These supplementary materials do not constitute the official views of the Department of Defense, the Department of Homeland Security, the Department of Justice, the military departments, the United States Court of Appeals for the Armed Forces, or any other authority of the Government of the United States, and they do not constitute rules. Cf., e.g., 5 U.S.C. 551(4). The supplementary materials do not create rights or responsibilities that are binding on any person, party, or other entity (including any authority of the Government of the United States whether or not included in the definition of ‘‘agency’’ in 5 U.S.C. 551(1)). Failure to comply with matter set forth in the supplementary materials does not, of itself, constitute error, although these materials may refer to requirements in the rules set forth in the Executive Order or established by other legal authorities (for example, binding judicial precedents applicable to courtsmartial) that are based on sources of authority independent of the supplementary materials. See Appendix 21 in this Manual. The 1995 amendment to paragraph 4 of the Preamble eliminated the practice of identifying the Manual for Courts- VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 Martial, United States, by a particular year. Historically the Manual had been published in its entirety sporadically (e.g., 1917, 1921, 1928, 1949, 1951, 1969, and 1984) with amendments to it published piecemeal. It was therefore logical to identify the Manual by the calendar year of publication, with periodic amendments identified as ‘‘Changes’’ to the Manual. Beginning in 1995, however, a new edition of the Manual was published in its entirety and a new naming convention was adopted. See Exec. Order No. 12960 of May 12, 1995. Beginning in 1995, the Manual was to be referred to as ‘‘Manual for Courts-Martial, United States (19xx edition).’’ In 2013, the Preamble was amended to identify new Manuals based on their publication date. Amendments made to the Manual can be researched in the relevant Executive Order as referenced in Appendix 25. Although the Executive Orders were removed from Appendix 25 of the Manual in 2012 to reduce printing requirements, they can be accessed online. See Appendix 25. Section 4. The Discussion to Part II of the Manual for Courts-Martial, United States, is amended as follows: (a) The Discussion immediately following R.C.M. 307(c)(3) is amended by deleting the first two Notes. (b) The Discussion immediately following R.C.M. 307(c)(3) is amended by inserting the words ‘‘For Article 134 offenses, also refer to paragraph 60c(6) in Part IV.’’ after the words ‘‘How to draft specifications.’’ (c) The Discussion immediately following R.C.M. 307(c)(3) is amended by deleting the Note directly following the words ‘‘(G) Description of offense.’’ (d) Part (G)(i) in the Discussion immediately following R.C.M. 307(c)(3) is amended to read as follows: PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 ‘‘(i) Elements. The elements of the offense must be alleged, either expressly or by necessary implication, except that Article 134 specifications must expressly allege the terminal element. See paragraph 60.c.(6) in Part IV. If a specific intent, knowledge, or state of mind is an element of the offense, it must be alleged.’’ (e) Part (G)(v) in the Discussion immediately following R.C.M. 307(c)(3) is inserted to read as follows: ‘‘(v) Lesser Included Offenses. The elements of the contemplated lesser included offense should be compared with the elements of the greater offense to determine if the elements of the lesser offense are derivative of the greater offense and vice versa. See discussion following paragraph 3.b.(1)(c) in Part IV and the related analysis in Appendix 23.’’ (f) The note immediately following R.C.M. 307(c)(4) is deleted and Discussion is inserted to read as follows: ‘‘The prohibition against unreasonable multiplication of charges addresses those features of military law that increase the potential for overreaching in the exercise of prosecutorial discretion. It is based on reasonableness, and has no foundation in Constitutional rights. To determine if charges are unreasonably multiplied, see R.C.M. 906(b)(12). Because prosecutors are free to charge in the alternative, it may be reasonable to charge two or more offenses that arise from one transaction if sufficient doubt exists as to the facts or the law. In no case should both an offense and a lesser included offense thereof be separately charged. See also Part IV, paragraph 3, and R.C.M. 601(e)(2) concerning referral of several offenses.’’ (g) The Discussion immediately following R.C.M. 701(e) is amended by E:\FR\FM\08NON1.SGM 08NON1 mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices adding the following after ‘‘retribution for such testimony’’: ‘‘Counsel must remain cognizant of professional responsibility rules regarding communicating with represented persons.’’ (h) The Discussion immediately following R.C.M. 809(a) is amended to read as follows: ‘‘Article 48 makes punishable ‘‘direct’’ contempt, as well as ‘‘indirect’’ or ‘‘constructive’’ contempt. ‘‘Direct’’ contempt is that which is committed in the presence of the court-martial or its immediate proximity. ‘‘Presence’’ includes those places outside the courtroom itself, such as waiting areas, deliberation rooms, and other places set aside for the use of the court-martial while it is in session. ‘‘Indirect’’ or ‘‘constructive’’ contempt is noncompliance with lawful writs, processes, orders, rules, decrees, or commands of the court-martial. A ‘‘direct’’ or ‘‘indirect’’ contempt may be actually seen or heard by the courtmartial, in which case it may be punished summarily. See subsection (b)(1) of this Rule. A ‘‘direct’’ or ‘‘indirect’’ contempt may also be a contempt not actually observed by the court-martial, for example, when an unseen person makes loud noises, whether inside or outside the courtroom, which impede the orderly progress of the proceedings. In such a case the procedures for punishing contempt are more extensive. See subsection (b)(2) of this Rule. The words ‘‘any person,’’ as used in Article 48, include all persons, whether or not subject to military law, except the military judge and foreign nationals outside the territorial limits of the United States who are not subject to the code. The military judge may order the offender removed whether or not contempt proceedings are held. It may be appropriate to warn a person whose conduct is improper that persistence in a course of behavior may result in removal or punishment for contempt. See R.C.M. 804, 806. Each finding of contempt may be separately punished. A person subject to the code who commits contempt may be tried by court-martial or otherwise disciplined under Article 134 for such misconduct in addition to or instead of punishment for contempt. See paragraph 108, Part IV; see also Article 98. The 2011 amendment of Article 48 expanded the contempt power of military courts to enable them to enforce orders, such as discovery orders or protective orders regarding evidence, against military or civilian attorneys. Persons not subject to military jurisdiction under Article 2, VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 having been duly subpoenaed, may be prosecuted in Federal civilian court under Article 47 for neglect or refusal to appear or refusal to qualify as a witness or to testify or to produce evidence.’’ (i) The Discussion immediately following R.C.M. 906(b)(5) is amended to read as follows: ‘‘Each specification may state only one offense. R.C.M. 307(c)(4). A duplicitous specification is one which alleges two or more separate offenses. Lesser included offenses (see paragraph 3, Part IV) are not separate, nor is a continuing offense involving separate acts. The sole remedy for a duplicitous specification is severance of the specification into two or more specifications, each of which alleges a separate offense contained in the duplicitous specification. However, if the duplicitousness is combined with or results in other defects, such as misleading the accused, other remedies may be appropriate. See subsection (b)(3) of this rule. See also R.C.M. 907(b)(3).’’ (j) The Discussion immediately following R.C.M. 906(b)(12) is amended to read as follows: ‘‘Unreasonable multiplication of charges as applied to findings and sentence is a limitation on the military’s discretion to charge separate offenses and does not have a foundation in the Constitution. The concept is based on reasonableness and the prohibition against prosecutorial overreaching. In contrast, multiplicity is grounded in the Double Jeopardy Clause of the Fifth Amendment. It prevents an accused from being twice punished for one offense if it is contrary to the intent of Congress. See R.C.M. 907(b)(3). Therefore, a motion for relief from unreasonable multiplication of charges as applied to findings and sentence differs from a motion to dismiss on the grounds of multiplicity. The following non-exhaustive factors should be considered when determining whether two or more offenses are unreasonably multiplied: whether the specifications are aimed at distinctly separate criminal acts; whether they represent or exaggerate the accused’s criminality; whether they unreasonably increase his or her exposure to punishment; and whether they suggest prosecutorial abuse of discretion in drafting of the specifications. Because prosecutors are permitted to charge in the alternative based on exigencies of proof, a ruling on this motion ordinarily should be deferred until after findings are entered.’’ (k) The Discussion immediately following R.C.M. 907(b)(3) is amended to read as follows: PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 78583 ‘‘Multiplicity is a legal concept, arising from the Double Jeopardy Clause of the Fifth Amendment, which provides that no person shall be put in jeopardy twice for the same offense. Absent legislative intent to the contrary, an accused cannot be convicted and punished for violations of two or more statutes if those violations arise from a single act. Where Congress intended to impose multiple punishments for the same act, imposition of such sentence does not violate the Constitution. Multiplicity differs from unreasonable multiplication of charges. If two offenses are not multiplicious, they nonetheless may constitute an unreasonable multiplication of charges as applied to findings or sentence. See R.C.M. 906(b)(12). Unreasonable multiplication of charges is a limitation on the military’s discretion to charge separate offenses. It does not have a foundation in the Constitution; it is based on reasonableness and the prohibition against prosecutorial overreaching. The military judge is to determine, in his or her discretion, whether the charges constitute unreasonable multiplication of charges as applied to findings or sentencing. See R.C.M. 906(b)(12). To determine if two charges are multiplicious, the practitioner should first determine whether they are based on separate acts. If so, the charges are not multiplicious because separate acts may be charged and punished separately. If the charges are based upon a single act, the practitioner should next determine if Congress intended to impose multiple convictions and punishments for the same act. When there is no overt expression of congressional intent in the relevant statutes, such intent may be inferred based on the elements of the charged statutes and their relationship to each other or other principles of statutory interpretation. If each statute contains an element not contained in the other, it may be inferred that Congress intended they be charged and punished separately. Likewise, if each statute contains the same elements, it may be inferred that Congress did not intend they be charged and punished separately. A lesser included offense will always be multiplicious if charged separately, but offenses do not have to be lesser included to be multiplicious. Ordinarily, a specification should not be dismissed for multiplicity before trial. The less serious of any multiplicious specifications shall be dismissed after findings have been reached. Due consideration must be given, however, to possible post-trial or E:\FR\FM\08NON1.SGM 08NON1 mstockstill on DSK3G9T082PROD with NOTICES 78584 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices appellate action with regard to the remaining specification.’’ (l) The Discussion immediately following R.C.M. 910(a)(1) is amended to read as follows: ‘‘See paragraph 3, Part IV, concerning lesser included offenses. When the plea is to a lesser included offense without the use of exceptions and substitutions, the defense counsel should provide a written revised specification to be included in the record as an appellate exhibit. A plea of guilty to a lesser included offense does not bar the prosecution from proceeding on the offense as charged. See also subsection (g) of this rule. A plea of guilty does not prevent the introduction of evidence, either in support of the factual basis for the plea, or, after findings are entered, in aggravation. See R.C.M. 1001(b)(4).’’ (m) The Discussion immediately following R.C.M. 916(j)(2) is amended to read as follows: ‘‘Examples of ignorance or mistake which need only exist in fact include: ignorance of the fact that the person assaulted was an officer; belief that property allegedly stolen belonged to the accused; belief that a controlled substance was really sugar. Examples of ignorance or mistake which must be reasonable as well as actual include: belief that the accused charged with unauthorized absence had permission to go; belief that the accused had a medical ‘‘profile’’ excusing shaving as otherwise required by regulation. Some offenses require special standards of conduct (see, for example, paragraph 68, Part IV, Dishonorable failure to maintain sufficient funds); the element of reasonableness must be applied in accordance with the standards imposed by such offenses. Examples of offenses in which the accused’s intent or knowledge is immaterial include: Any rape of a child, or any sexual assault or sexual abuse of a child when the child is under 12 years old. However, such ignorance or mistake may be relevant in extenuation and mitigation. See subsection (l)(1) of this rule concerning ignorance or mistake of law.’’ (n) The Discussion immediately following R.C.M. 918(a)(1) is amended to read as follows: ‘‘Exceptions and Substitutions. One or more words or figures may be excepted from a specification and, when necessary, others substituted, if the remaining language of the specification, with or without substitutions, states an offense by the accused which is VerDate Sep<11>2014 18:42 Nov 07, 2016 Jkt 241001 punishable by the court-martial. Changing the date or place of the offense may, but does not necessarily, change the nature or identity of an offense. If A and B are joint accused and A is convicted but B is acquitted of an offense charged, A should be found guilty by excepting the name of B from the specification as well as any other words indicating the offense was a joint one. Lesser Included Offenses. If the evidence fails to prove the offense charged but does prove an offense necessarily included in the offense charged, the fact finder may find the accused not guilty of the offense charged but guilty of the lesser included offense. See paragraph 3 of Part IV concerning lesser included offenses. Offenses arising from the same act or transaction. The accused may be found guilty of two or more offenses arising from the same act or transaction, whether or not the offenses are separately punishable. But see R.C.M. 906(b)(12); 907(b)(3)(B); 1003(c)(1)(C).’’ (o) The note immediately following R.C.M. 1003(c)(1)(C) is deleted, and the following is added immediately following the last paragraph of the Discussion: ‘‘Multiplicity is addressed in R.C.M. 907(b)(3)(B). Unreasonable multiplication of charges is addressed in R.C.M. 906(b)(12).’’ Section 5. The Discussion to Part IV of the Manual for Courts-Martial, United States, is amended as follows: (a) The Discussion immediately following paragraph 3.b.(1)(c) is amended to read as follows: ‘‘The ‘‘elements test’’ is the proper method for determining lesser included offenses. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); Schmuck v. United States, 489 U.S. 705 (1989); Appendix 23 of this Manual, Art. 79. Paragraph 3.b.(1) was amended to comport with the elements test, which requires that the elements of the lesser offense must be a subset of the elements of the charged offense. The elements test does not require identical statutory language, and use of normal principles of statutory interpretation is permitted. The elements test is necessary to safeguard the due process requirement of notice to a criminal defendant.’’ (b) The following Discussion is added immediately after paragraph 3.b.(5): ‘‘Practitioners must consider lesser included offenses on a case-by-case basis. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010); discussion following paragraph 3.b.(1)(c) above. The lesser included offenses listed in Appendix 12A were PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 amended in 2016 to comport with the elements test; however, practitioners must analyze each lesser included offense on a case-by-case basis. See Appendix 23 of this Manual, Article 79.’’ (c) The following Discussion is added immediately after paragraph 60.b: ‘‘The terminal element is merely the expression of one of the clauses under Article 134. See paragraph c below for an explanation of the clauses and rules for drafting specifications. More than one clause may be alleged and proven; however, proof of only one clause will satisfy the terminal element. For clause 3 offenses, the military judge may judicially notice whether an offense is capital. See Mil. R. Evid. 202.’’ (d) The following Discussion is added immediately after paragraph 60.c.(6)(a): ‘‘Clauses 1 and 2 are theories of liability that must be expressly alleged in a specification so that the accused will be given notice as to which clause or clauses to defend against. The words ‘‘to the prejudice of good order and discipline in the armed forces’’ encompass both paragraph c.(2)(a), prejudice to good order and discipline, and paragraph c.(2)(b), breach of custom of the Service. A generic sample specification is provided below: ‘‘In that llll, (personal jurisdiction data), did (at/on board location), on or about ll 20ll, (commit elements of Article 134 clause 1 or 2 offense), and that said conduct (was to the prejudice of good order and discipline in the armed forces) (and) (was of a nature to bring discredit upon the armed forces).’’ If clauses 1 and 2 are alleged together in the terminal element, the word ‘‘and’’ should be used to separate them. Any clause not proven beyond a reasonable doubt should be excepted from the specification at findings. See R.C.M. 918(a)(1). See also Appendix 23 of this Manual, Art. 79. Although using the conjunctive ‘‘and’’ to connect the two theories of liability is recommended, a specification connecting the two theories with the disjunctive ‘‘or’’ is sufficient to provide the accused reasonable notice of the charge against him. See Appendix 23 of this Manual, Art. 134.’’ (e) The following replaces the paragraph below ‘‘Discussion’’ following paragraph 60.c.(6)(b): ‘‘The words ‘‘an offense not capital’’ are sufficient to provide notice to the accused that a clause 3 offense has been charged and are meant to include all crimes and offenses not capital. A generic sample specification for clause 3 offenses is provided below: E:\FR\FM\08NON1.SGM 08NON1 mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices ‘‘In that llll, (personal jurisdiction data), did (at/on board location), on or about ll 20ll, (commit: address each element), an offense not capital, in violation of (name or citation of statute).’’ In addition to alleging each element of the federal statute, practitioners should consider including, when appropriate and necessary, words of criminality (e.g., wrongfully, knowingly, or willfully).’’ Section 6. Appendix 21 of the Manual for Courts-Martial, United States, is amended as follows: (a) R.C.M. 306, the last paragraph beginning with ‘‘2016 Amendment,’’ is amended to read as follows: ‘‘2016 Amendment: R.C.M. 306(e) implements Section 534(b) of the National Defense Authorization Act for Fiscal Year 2015, P.L. 113–291, 19 December 2014.’’ (b) R.C.M. 307(c)(3), after the paragraph beginning with the words, ‘‘2012 Amendment,’’ and prior to the line beginning with the words, ‘‘The sources of the lettered subsection’’ add the following: ‘‘2016 Amendment: The two notes added in 2012 are removed. The notes were originally added to address the requirement to expressly state the terminal element in specifications under Article 134 and to address lesser included offenses. See United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). In 2016, the Manual was amended to require the terminal element be expressed in Article 134 specifications and to alter the definition of lesser included offenses under Article 79. See paragraphs 3 and 60.c.(6) in Part IV of this Manual.’’ (c) R.C.M. 307(c)(3)(A), after the paragraph beginning with the words ‘‘Sample specifications’’ delete the paragraph beginning with the words the ‘‘2012 Amendment.’’ (d) R.C.M. 307(c)(3)(G), after the paragraph beginning with the words ‘‘Description of offense.’’ delete the paragraph beginning with the words the ‘‘2012 Amendment,’’ and insert in its place: ‘‘2016 Amendment: The note added in 2012 is removed. The note was originally added to address the requirement to expressly state the terminal element in Article 134 specifications. See United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011).’’ (e) R.C.M. 307(c)(3)(G)(i), insert the following language as a new paragraph after the existing paragraph: VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 ‘‘2016 Amendment: This subparagraph was amended and reflects the removal of a note.’’ (f) R.C.M. 307(c)(3)(G)(v), insert the following language: ‘‘2016 Amendment: Subparagraph (v) was added to address lesser included offenses and refer practitioners to Article 79 and new Appendix 12A. See paragraph 3 in Part IV and Appendix 12A.’’ (g) R.C.M. 307(c)(4), after the paragraph beginning with the words ‘‘2005 Amendment’’ delete the paragraph beginning with the words the ‘‘2012 Amendment,’’ and insert in its place: ‘‘2016 Amendment: The discussion section was added to R.C.M. 307(c)(4) to clarify the ambiguity between the two distinct concepts of multiplicity and unreasonable multiplication of charges. For analysis related to multiplicity, see R.C.M. 907(b)(3)(B) in this Appendix. For analysis related to unreasonable multiplication of charges, see R.C.M. 906(b)(12) in this Appendix. Nothing in the rule or the discussion section should be construed to imply that it would be overreaching for a prosecutor to bring several charges against an accused for what essentially amounts to one transaction if there is a valid legal reason to do so. For example, prosecutors may charge two offenses for exigencies of proof, which is a long accepted practice in military law. See, e.g., United States v. Morton, 69 M.J. 12 (C.A.A.F. 2010). The discussion section emphasizes that a prosecutor is not overreaching or abusing his or her discretion merely because he or she charges what is essentially one act under several different charges or specifications. The language in the discussion section of the 2012 edition of the Manual referring to United States v. Campbell, 71 M.J. 19 (C.A.A.F. 2012), was removed because it is no longer necessary, as the rules themselves have been edited to remove any reference to ‘‘multiplicious for sentencing.’’ The example was removed from the discussion section because it overly generalized the concept of unreasonable multiplication of charges.’’ (h) R.C.M. 701(e), after the paragraph beginning with the words, ‘‘1986 Amendment,’’ and immediately before subparagraph (f), insert the following language: ‘‘2016 Amendment: This rule implements Article 46(b), enacted by section 1704 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113–66, 26 December 2013, as amended by section 531(b) of the Carl Levin and Howard P. ‘‘Buck’’ McKeon PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 78585 National Defense Authorization Act for Fiscal Year 2015, P.L. 113–291, 19 December 2014.’’ (i) R.C.M. 906(b)(12), delete the paragraph beginning with the words the ‘‘2012 Amendment,’’ and insert in its place: ‘‘2016 Amendment: This rule and related discussion is the focal point for addressing unreasonable multiplication of charges. If a practitioner seeks to raise a claim for multiplicity, that concept is addressed in R.C.M. 907(b)(3)(B) and related discussion. This rule has been amended. The Court of Appeals for the Armed Forces has recognized that practitioners and the courts have routinely confused the concepts of multiplicity and unreasonable multiplication of charges. See, e.g., United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (‘‘the terms multiplicity, multiplicity for sentencing, and unreasonable multiplication of charges in military practice are sometimes used interchangeably as well as with uncertain definition’’); United States v. Baker, 14 M.J. 361, 372 (C.M.A. 1983) (Cook, J. dissenting) (‘‘[t]hat multiplicity for sentencing is a mess in the military justice system is a proposition with which I believe few people familiar with our system would take issue’’). Multiplicity and unreasonable multiplication of charges are two distinct concepts. Unreasonable multiplication of charges as applied to findings and sentence is a limitation on the prosecution’s discretion to charge separate offenses. Unreasonable multiplication of charges does not have a foundation in the Constitution but is instead based on the concept of reasonableness and is a prohibition against prosecutorial overreaching. In contrast, multiplicity is based on the Double Jeopardy Clause of the Fifth Amendment and prevents an accused from being twice punished for one offense if it is contrary to the intent of Congress. A charge may be found not to be multiplicious but at the same time it may be dismissed because of unreasonable multiplication. See United States v. Quiroz, 55 M.J. 334, 337–38 (C.A.A.F. 2001). Use of the term ‘‘multiplicity (or multiplicious) for sentencing’’ is inappropriate. If a charge is multiplicious, meaning that it violates the Constitutional prohibition against Double Jeopardy, it necessarily results in dismissal of the multiplied offenses, therefore obviating any issue on sentencing with respect to that charge. Campbell, 71 M.J. at 23. A charge should not be found multiplicious for sentencing but not for findings. Thus, E:\FR\FM\08NON1.SGM 08NON1 mstockstill on DSK3G9T082PROD with NOTICES 78586 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices the more appropriate term for the military judge’s discretionary review of the charges at sentencing is ‘‘unreasonable multiplication of charges as applied to sentence.’’ Id. at 24. The rule was changed to remove ‘‘multiplicity for sentencing’’ from the Manual, eliminating confusion and misuse. Subparagraphs (i) and (ii) were added to the rule. They clarify the distinction between unreasonable multiplication of charges as applied to findings and to sentence. Although these concepts have existed for years (see Michael J. Breslin & LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A.F. L. Rev. 99 (1998) for a history of the terms), they were not defined in previous editions of the Manual. The definitions were adopted from Quiroz, Campbell, and recommendations from Christopher S. Morgan, Multiplicity: Reconciling the Manual for CourtsMartial, 63 A.F. L. Rev. 23 (2009). It is possible that two offenses are not unreasonably multiplied for findings but are so for sentencing; these additions explain how this can be so. See, e.g., Campbell, 71 M.J. at 25 (military judge did not abuse his discretion by finding that there was not an unreasonable multiplication of charges as applied to findings but that there was an unreasonable multiplication of charges as applied to sentence). The discussion sections were added to address concerns that CAAF voiced in dicta in Campbell. In previous editions of the Manual, military judges often used the discussion section in R.C.M. 1003(c)(1) to determine when relief was warranted for unreasonable multiplication of charges as applied to sentence. The Campbell court stated in a footnote: ‘‘It is our view that after Quiroz, the language in the Discussion to R.C.M. 1003(c)(1)(C) regarding ‘a single impulse or intent,’ is dated and too restrictive. The better approach is to allow the military judge, in his or her discretion, to merge the offense for sentencing purposes by considering the Quiroz factors and any other relevant factor. . . .’’ Campbell, 71 M.J. at 24 n.9. The Discussion was changed to address the Quiroz factors and remove any reference to the ‘‘single impulse or intent’’ test, as suggested by CAAF. The committee also decided to move the Discussion section from R.C.M. 1003(b)(8)(C) to this rule because R.C.M. 1003 deals exclusively with sentencing and a motion for appropriate relief due to unreasonable multiplication of charges can be raised as an issue for findings or for sentence under this Rule. VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 Therefore, it is more appropriate to address the issue here. For more information on multiplicity and how it relates to unreasonable multiplication of charges, see Michael J. Breslin & LeEllen Coacher, Multiplicity and Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 A.F. L. Rev. 99 (1998); Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 A.F. L. Rev. 23 (2009); Gary E. Felicetti, Surviving the Multiplicty/LIO Family Vortex, Army Law., Feb. 2011, at 46. The language in the discussion section of the 2012 edition of the Manual referring to the Campbell decision was removed because it is no longer necessary, as the rules themselves have been edited to remove any reference to ‘‘multiplicious for sentencing’’ and additional discussion sections were added to eliminate any confusion with the terms.’’ (j) R.C.M. 907(b)(3)(B), insert the following language as a new paragraph after the existing paragraph: ‘‘2016 Amendment: This rule and related discussion is the focal point for addressing claims of multiplicity. If a practitioner seeks to raise a claim for unreasonable multiplication of charges, that concept is addressed in R.C.M. 906(b)(12) and related discussion. The heading of this rule, which was added in 2016, signifies that this rule deals exclusively with multiplicity, and not unreasonable multiplication of charges. The discussion section of this rule was amended because the committee believed that a more thorough definition of multiplicity was appropriate in light of CAAF’s suggestion in United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012), that the concepts of multiplicity and unreasonable multiplication of charges are often confounded. The discussion of multiplicity is derived from the Supreme Court’s holding in Blockburger v. United States, 284 U.S. 299 (1932), and CMA’s holding in United States v. Teters, 37 M.J. 370 (C.M.A. 1993). The Court in Blockburger wrote: ‘‘[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.’’ Blockburger, 284 U.S. at 304. Military courts departed from the Blockburger analysis; however, the CMA’s decision in Teters clearly re-aligned the military courts with the federal courts, and multiplicity is now determined in the military courts by the Blockburger/ Teters analysis outlined in the discussion section. Any reference to the PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 ‘‘single impulse’’ or ‘‘fairly embraced’’ tests is outdated and should be avoided. Two offenses that arise from the same transaction may not be multiplicious, even if each does not require proof of an element not required to prove the other, if the intent of Congress was that an accused could be convicted of and punished for both offenses arising out of the same act. The Blockburger/Teters analysis applies only when Congress did not intend that the offenses be treated as separate. If Congress intended to subject an accused to multiple punishments for the same transaction, and that intent is clear, the Blockburger/ Teters elements comparison is unnecessary. See, e.g., Missouri v. Hunter, 459 U.S. 359, 368–69 (1983) (‘‘[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. . . . Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.’’). The language in the discussion section of the 2012 edition of the Manual referring to the Campbell decision was removed because it is no longer necessary, as the Rules themselves have been edited to remove any reference to ‘‘multiplicious for sentencing’’ and additional discussion sections were added to eliminate any confusion with the terms.’’ (k) R.C.M. 916(b), insert the following language immediately following the paragraph beginning with the words ‘‘2007 Amendment’’: ‘‘2016 Amendment: Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011, which superseded the previous paragraph 45, ‘‘Rape, sexual assault and other sexual misconduct,’’ in its entirety and replaces paragraph 45 with ‘‘Rape and sexual assault generally.’’ In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, ‘‘Rape and sexual assault of a child,’’ and paragraph 45c, ‘‘Other sexual misconduct.’’ (l) R.C.M. 916(j), insert the following language immediately following the E:\FR\FM\08NON1.SGM 08NON1 mstockstill on DSK3G9T082PROD with NOTICES Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices paragraph beginning with the words ‘‘2007 Amendment’’: ‘‘2016 Amendment: Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011, which superseded the previous paragraph 45, ‘‘Rape, sexual assault and other sexual misconduct,’’ in its entirety and replaces paragraph 45 with ‘‘Rape and sexual assault generally.’’ In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, ‘‘Rape and sexual assault of a child,’’ and paragraph 45c, ‘‘Other sexual misconduct.’’ Paragraph (j)(3) was deleted. The rule reflects changes to Article 120. The Court of Appeals for the Armed Forces ruled that the statutory burden shift to the accused in the 2007 version of Article 120 was unconstitutional and the subsequent burden shift to the government to disprove consent beyond a reasonable doubt once the accused had raised the affirmative defense of consent by a preponderance of the evidence resulted in a legal impossibility. United States v. Prather, 69 M.J. 338 (C.A.A.F. 2011); United States v. Medina, 69 M.J. 462 (C.A.A.F. 2011).’’ (m) R.C.M. 920(e)(5)(D), insert the following language immediately following the paragraph beginning with the words ‘‘2007 Amendment’’: ‘‘2016 Amendment: Changes to this paragraph are based on section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011, which superseded the previous paragraph 45, ‘‘Rape, sexual assault and other sexual misconduct,’’ in its entirety and replaces paragraph 45 with ‘‘Rape and sexual assault generally.’’ In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, ‘‘Rape and sexual assault of a child,’’ and paragraph 45c, ‘‘Other sexual misconduct.’’ ’’ (n) R.C.M. 1003(c)(1)(C), delete the paragraph beginning with the words the ‘‘2012 Amendment’’ and insert in its place: ‘‘2016 Amendment: This rule was amended. The language in previous editions of the Manual seemed to suggest that an accused could not be punished for offenses that were not separate. This is true only if there is no express statement from Congress indicating that an accused can be punished for two or more offenses that are not separate. See R.C.M. 907(b)(3) and related analysis. Subsections (i) and (ii) were added to distinguish between claims of multiplicity and unreasonable VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 multiplication of charges. As the two concepts are distinct, it is important to address them in separate subsections. See R.C.M. 906(b)(12) for claims of unreasonable multiplication of charges and R.C.M. 907(b)(3)(B) for claims of multiplicity. Additionally, the committee decided to move the discussion of the factors in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), from this rule to R.C.M. 906(b)(12) because the factors apply to unreasonable multiplication of charges as applied to findings as well as sentence. Because this Rule refers only to sentencing, it is more appropriate to address the military judge’s determination of unreasonable multiplication in R.C.M. 906(b)(12), because that Rule covers both findings and sentence. See R.C.M. 906(b)(12) and related analysis. The language in the discussion section of the 2012 edition of the Manual referring to the Campbell decision was removed. Such language is no longer necessary, as the Rules themselves have been edited to remove any reference to ‘‘multiplicious for sentencing’’ and the discussion section of R.C.M. 906(b)(12) addresses the Quiroz factors.’’ (o) R.C.M. 1004(c)(7)(B), insert the following language immediately following the paragraph beginning with the words ‘‘1994 Amendment’’ and immediately prior to the paragraph beginning with the words ‘‘1986 Amendment’’: ‘‘2016 Amendment: Changes to this paragraph reflect section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011, which superseded the previous paragraph 45, ‘‘Rape, sexual assault and other sexual misconduct,’’ in its entirety and replaces paragraph 45 with ‘‘Rape and sexual assault generally.’’ In addition, the National Defense Authorization Act for Fiscal Year 2012 added paragraph 45b, ‘‘Rape and sexual assault of a child,’’ and paragraph 45c, ‘‘Other sexual misconduct.’’ ’’ (p) R.C.M. 1004(c)(8), insert the following language immediately following the paragraph beginning with the words ‘‘1991 Amendment’’: ‘‘2016 Amendment: Changes to this paragraph reflect section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011, which superseded the previous paragraph 45, ‘‘Rape, sexual assault and other sexual misconduct,’’ in its entirety and replaces paragraph 45 with ‘‘Rape and sexual assault generally.’’ In addition, the National Defense Authorization Act for Fiscal PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 78587 Year 2012 added paragraph 45b, ‘‘Rape and sexual assault of a child,’’ and paragraph 45c, ‘‘Other sexual misconduct.’’ ’’ Section 7. Appendix 23 of the Manual for Courts-Martial, United States, is amended as follows: (a) Paragraph 3.b.(4), Article 79, Lesser included offenses, Specific lesser included offenses, is amended by deleting the paragraphs beginning with the words ‘‘2012 Amendment’’ and ending with ‘‘(C.A.A.F. 2008).’’ and inserting in their place: ‘‘2016 Amendment: See analysis in paragraph 3.b.(1) above. Lesser included offenses (LIO) listings were removed from each punitive article in paragraphs 1–113 (except paragraphs 1 and 3), Part IV, and were moved to a new Appendix 12A. The LIO listings are determined based on the elements of the greater offense, but are not binding. Therefore, practitioners should use Appendix 12A only as a guide. To determine if an offense is lesser included, the elements test must be used. United States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The offenses are not required to possess identical statutory language; rather, the court uses normal principles of statutory construction to determine the meaning of each element. See id. at 470–73; United States v. Oatney, 45 M.J. 185 (C.A.A.F. 1996); Schmuck v. United States, 489 U.S. 705 (1989). Article 134 offenses generally will not be lesser included offenses of enumerated offenses in Articles 80–133. See United States v. Girouard, 70 M.J. 5 (C.A.A.F. 2011); United States v. McMurrin, 70 M.J. 15 (C.A.A.F. 2011). Article 134 specifications must contain the ‘‘terminal element.’’ See paragraphs 60.b and 60.c.(6)(a) in Part IV. See also United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); R.C.M. 307(c)(3).’’ (b) Paragraph 43.a, Article 118, Murder, is amended by adding the following language: ‘‘2012 Amendment: This statute was modified pursuant to section 541 of the National Defense Authorization Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011, to conform to renamed sexual assault offenses in Article 120 and Article 120b. The changes took effect on 28 June 2012.’’ (c) Paragraph 45, Article 120, Rape and sexual assault generally, the first paragraph of the analysis beginning with the word ‘‘2012’’ and ending with the number ‘‘28’’ is amended to read as follows: ‘‘2012 Amendment: This paragraph was substantially revised by section 541 of the National Defense Authorization E:\FR\FM\08NON1.SGM 08NON1 mstockstill on DSK3G9T082PROD with NOTICES 78588 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices Act for Fiscal Year 2012, P.L. 112–81, 31 December 2011. Amendments contained in this section took effect on 28 June 2012. Sec. 541(f), P.L. 112–81. On 28 June 2012, a modified paragraph 45, ‘‘Rape and sexual assault generally,’’ replaced the 2007 version of paragraph 45, ‘‘Rape, sexual assault, and other sexual misconduct.’’ The analysis related to prior versions of Article 120 is located as follows: For offenses committed prior to 1 October 2007, see Appendix 27; for offenses committed during the period 1 October 2007 through 27 June 2012, see Appendix 28.’’ (d) Paragraph 45, Article 120, Rape and sexual assault generally, is amended by deleting subparagraphs b, c, d, e, and f. (e) Paragraph 45, Article 120b, Rape and sexual assault of a child, is amended by inserting ‘‘b’’ after ‘‘45’’. (f) Paragraph 45b, Article 120b, Rape and sexual assault of a child, is amended by deleting subparagraphs b, c, d, e, and f. (g) Paragraph 45c, Article 120c, Other sexual misconduct, is amended by deleting subparagraphs b, c, d, e, and f. (h) Paragraph 51, Article 125, Sodomy, is amended by changing the title to ‘‘Forcible Sodomy’’ and adding the following language at the beginning: ‘‘2016 Amendment: Paragraph 51 was amended pursuant to section 1707 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113–66, 26 December 2013. Additionally, all applicable references to sodomy throughout the Manual were changed to ‘‘forcible sodomy’’ to reflect the decriminalization of consensual sodomy under the UCMJ.’’ (i) Paragraph 60.c.(6)(a) is amended to read as follows: ‘‘2016 Amendment: In 2012 the Manual was amended to address the changes in practice resulting from the holding in United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2016, the President required that the terminal element be expressly alleged in every Article 134 specification. The President ended the historical practice of allowing the terminal element to be inferred from Article 134 specifications, see, e.g. United States v. Mayo, 12 M.J. 286 (C.M.A. 1982), and required the terminal element be expressly alleged to provide sufficient notice to the accused and for uniformity and consistency in practice. See Fosler, 70 M.J. at 227–28. In general, when drafting specifications, the Government must allege every element, either expressly or by necessary implication. See R.C.M. 307(c)(3). However, in Article 134 specifications, the accused VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 must be given notice as to which clause or clauses he must defend against; therefore, the terminal element may not be inferred from a specification. Although a single terminal element is required, there are three theories of liability that would satisfy the terminal element: a disorder or neglect to the prejudice of good order and discipline (under clause 1); conduct of a nature to bring discredit upon the armed forces (under clause 2); or a crime or offense not capital (under clause 3). The three clauses are ‘‘distinct and separate.’’ Fosler, 70 M.J. at 230. A single theory may be alleged, or clauses 1 and 2 may be combined. While it is not prohibited to combine clauses 1, 2, and 3 in one specification, such a combination is not practical. When charging both clauses 1 and 2, practitioners are encouraged to use the word ‘‘and’’ to separate the theories in one specification, rather than using the word ‘‘or’’ to separate the theories. Practitioners may also allege two separate specifications. At findings, the Trial Counsel or Military Judge must make certain that the record is clear as to whether the trier of fact found that clause 1, clause 2, or both clauses were proven beyond a reasonable doubt. Using the word ‘‘and’’ to separate clauses 1 and 2 in the terminal element allows the trier of fact to except the unproven clause from the specification. This approach forces intellectual rigor in analyzing each clause as distinct and separate. Nothing in this analysis should be read to suggest that a specification connecting the two theories with the disjunctive ‘‘or’’ necessarily fails to give the accused reasonable notice of the charge against him. See United States v. Rauscher, 71 M.J. 225, 226 (C.A.A.F. 2012) (per curiam) (citing Russell v. United States, 369 U.S. 749, 765 (1962)).’’ (j) Paragraph 60.c.(6)(b) is amended by deleting the paragraph beginning with the words ‘‘2012 Amendment’’ and ending ‘‘above.’’, and inserting in its place: ‘‘2016 Amendment: New discussion was added in 2012 to address United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2016, that discussion was removed after paragraph 60 was amended by Executive Order. See analysis under subparagraph c.(6)(a) above.’’ (k) Paragraph 62.c.(2) is amended to read as follows: ‘‘(2) When determining whether adulterous acts constitute the offense of adultery under Article 134, commanders should consider the listed factors. The offense of adultery is intended to prohibit extramarital sexual behavior PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 that directly affects the discipline of the armed forces, respect for the chain of command, or maintenance of unit cohesion. The intent of this provision is to limit the crime of adultery to those situations where the negative impact to the unit is real rather than theorized. This provision should not be interpreted to criminalize sexual practices between two adults with full and mutual consent from each other, but rather, to punish the collateral negative effects of extramarital sexual activity when there exists a genuine nexus between that activity and the efficiency and effectiveness of the armed forces. Cf. United States v. Marcum, 60 M.J. 198, 204–08 (C.A.A.F. 2004) (despite constitutionally protected liberty interest in private sexual behavior between consenting adults, military may regulate sexual conduct to the extent it could affect military order and discipline). While each commander has discretion to dispose of offenses by members of the command, wholly private and consensual sexual conduct between adults is generally not punishable under this paragraph. The right to engage in such conduct, however, is tempered in a military context by the mission of the military, the need for cohesive teams, and the need for obedience to orders. Cases involving fraternization or other unprofessional relationships may be more appropriately charged under Article 92 or Article 134— Fraternization. Cases involving abuse of authority by officers may be more appropriately charged under Article 133. Rule for Courts-Martial 306(b) advises commanders to dispose of alleged offenses at the lowest appropriate level. As the R.C.M. 306(b) discussion states, many factors must be taken into consideration and balanced, including, to the extent practicable, the nature of the offense, any mitigating or extenuating circumstances, any recommendations made by subordinate commanders, the interests of justice, military exigencies, and the effect of the decision on the military member and the command. The goal should be a disposition that is warranted, appropriate, and fair. In the case of officers, also consult the explanation to paragraph 59 of Part IV in deciding how to dispose of an allegation of adultery.’’ (l) Paragraph 90 is amended to read as follows: ‘‘90. Article 134—(Indecent Conduct) Introduction. This offense is new to the Manual for Courts-Martial and was promulgated pursuant to Executive Order 13740 of 16 September 2016. It E:\FR\FM\08NON1.SGM 08NON1 Federal Register / Vol. 81, No. 216 / Tuesday, November 8, 2016 / Notices includes offenses previously proscribed by ‘‘Indecent acts with another,’’ which was deleted pursuant to Executive Order 13447 of 1 October 2007, except that the presence of another person is not required. (m) Paragraph 97, Article 134 (Pandering and prostitution) is amended by adding the following language: ‘‘2016 Amendment: Paragraph 97 was amended to broaden the definition of prostitution and pandering to include all sexual acts, not just sexual intercourse. This amendment included the removal of the language in paragraph 97.c suggesting that engaging in sodomy for money or compensation could be charged under paragraph 51 (Article 125—Sodomy). Pursuant to section 1707 of the National Defense Authorization Act for Fiscal Year 2014, P.L. 113–66, 26 December 2013, consensual sodomy is no longer a crime under the UCMJ and Article 125 is not an appropriate charge for the consensual exchange of money for sodomy. The definition of prostitution for this offense differs from the definition of prostitution in Article 120c. Congress provided a broader definition of prostitution when criminalizing forcible pandering. Dated: November 3, 2016. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2016–26947 Filed 11–7–16; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF EDUCATION [Docket No.: ED–2016–ICCD–0125] Agency Information Collection Activities; Comment Request; Implementation of Title I/II–A Program Initiatives Institute of Education Sciences (IES), Department of Education (ED). ACTION: Notice. AGENCY: In accordance with the Paperwork Reduction Act of 1995, ED is proposing a reinstatement of a previously approved information collection. SUMMARY: Interested persons are invited to submit comments on or before January 9, 2017. ADDRESSES: To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED– 2016–ICCD–0125. Comments submitted in response to this notice should be mstockstill on DSK3G9T082PROD with NOTICES DATES: VerDate Sep<11>2014 16:27 Nov 07, 2016 Jkt 241001 submitted electronically through the Federal eRulemaking Portal at http:// www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 2E–343, Washington, DC 20202–4537. FOR FURTHER INFORMATION CONTACT: For specific questions related to collection activities, please contact Erica Johnson, 202–245–7676. SUPPLEMENTARY INFORMATION: The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public’s reporting burden. It also helps the public understand the Department’s information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records. Title of Collection: Implementation of Title I/II–A Program Initiatives. OMB Control Number: 1850–0902. Type of Review: A reinstatement of a previously approved information collection. Respondents/Affected Public: State, Local, or Tribal Governments. Total Estimated Number of Annual Responses: 621. Total Estimated Number of Annual Burden Hours: 672. PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 78589 Abstract: The second round of data collection for the Implementation of Title I/II–A Program Initiatives study will continue to examine the implementation of policies promoted through the Elementary and Secondary Education Act (ESEA) at the state and district levels, in four core areas: School accountability and support for lowperforming schools, teacher and principal evaluation, state content standards, and assessments. The first round of data collection for this study was conducted in Spring and Summer 2014. The purpose of this follow-up data collection is to provide policy makers with detailed information on the core policies promoted by Title I and Title II–A being implemented at the state and district levels, and the resources and supports they provide to schools and teachers. The timing of the data collection is critical to provide information prior to the full implementation of the Every Student Succeeds Act (ESSA) in the 2017–18 school year. Although other research studies cover similar topics on recent federal education policy, the breadth of research questions and the depth of responses from all states and a nationally representative sample of 570 school districts sets the Title I/II study apart from other studies. This study will rely on information collected from existing sources, for which there are no respondents or burden, and on a set of revised state and district surveys, based on the 2014 data collection, in order to address the study’s research questions. Extant data sources include (a) the National Assessment of Educational Progress (NAEP) and (b) EDFacts data. The revised surveys of states and school districts will begin in April 2017. All respondents will have the opportunity to complete an electronic (e.g., web-based) survey (or paper survey, if preferred). The survey respondents are described briefly below: State Surveys: The state survey will be sent to the chief state school officer in each of the 50 states and the District of Columbia. The state surveys will be administered using an electronic instrument divided into modules corresponding to the four core areas. School District Surveys. The school district survey will be sent to school superintendents from the same nationally representative sample of 570 school districts that participated in the 2014 survey. The district survey will be web-based and modularized, corresponding to the four core areas, to allow for completion by one or multiple respondents. E:\FR\FM\08NON1.SGM 08NON1

Agencies

[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Notices]
[Pages 78576-78589]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26947]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DOD-2016-OS-0110]


Manual for Courts-Martial; Publication of Supplementary Materials

AGENCY: Joint Service Committee on Military Justice (JSC), Department 
of Defense.

ACTION: Publication of Discussion and Analysis (Supplementary 
Materials) accompanying the Manual for Courts-Martial, United States 
(2012 ed.) (MCM).

-----------------------------------------------------------------------

SUMMARY: The JSC hereby publishes Supplementary Materials accompanying 
the MCM as amended by Executive Orders 13643, 13669, 13696, 13730, and 
13740. These changes have not been coordinated within the Department of 
Defense under DoD Directive 5500.1, ``Preparation, Processing and 
Coordinating Legislation, Executive Orders, Proclamations, Views 
Letters 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. These Supplementary 
Materials have been approved by the JSC and the General Counsel of the 
Department of Defense, and shall be applied in conjunction with the 
rule with which they are associated. The Discussions are effective 
insofar as the Rules they supplement are effective, but may not be 
applied earlier than the date of publication in the Federal Register.

DATES: These Supplementary Materials are effective as of November 8, 
2016.

FOR FURTHER INFORMATION CONTACT: Major Harlye S. Carlton, USMC, (703) 
963-9299 or harlye.carlton@usmc.mil. The JSC Web site is located at: 
http://jsc.defense.gov.

SUPPLEMENTARY INFORMATION: 
    Public Comments: The JSC solicited public comments for these 
changes to the MCM via the Federal Register on October 23, 2012 (77 FR 
64854-64887, Docket ID: DoD-2012-OS-0129), held a public meeting on 
December 11, 2012, and published the JSC response to public comments 
via the Federal Register on March 5, 2013 (78 FR 14271-14272, Docket 
ID: DoD-2012-OS-0129).
    The amendments to the Discussion and Analysis of the MCM are as 
follows:

Annex

    Section 1. Appendix 12 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) Article 120 is amended to read as follows:
``120 Rape and sexual assault generally

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Rape................................  Mandatory DD \5\.......  Life \4\...............  Total.
Sexual Assault......................  Mandatory DD \5\.......  30 yrs.................  Total.
Aggravated Sexual Contact...........  DD, BCD................  20 yrs.................  Total.
Abusive Sexual Contact..............  DD, BCD................  7 yrs..................  Total.''
----------------------------------------------------------------------------------------------------------------

    (b) Article 120b is inserted to read as follows:

``120b Rape and sexual assault of a child

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Rape of a Child.....................  Mandatory DD \5\.......  Life \4\...............  Total.
Sexual Assault of a Child...........  Mandatory DD \5\.......  30 yrs.................  Total.
Sexual Abuse of a Child:
    Cases Involving Sexual Contact..  DD, BCD................  20 yrs.................  Total.
    Other Cases.....................  DD, BCD................  15 yrs.................  Total.''
----------------------------------------------------------------------------------------------------------------

    (c) Article 120c is inserted to read as follows:

``120c Other sexual misconduct

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Indecent Viewing....................  DD, BCD................  1 yr...................  Total.
Indecent Recording..................  DD, BCD................  5 yrs..................  Total.
Broadcasting or Distributing of an    DD, BCD................  7 yrs..................  Total.
 Indecent Recording.

[[Page 78577]]

 
Forcible Pandering..................  DD, BCD................  12 yrs.................  Total.
Indecent Exposure...................  DD, BCD................  1 yr...................  Total.''
----------------------------------------------------------------------------------------------------------------

    (d) The following Note is inserted after Article 120c to read as 
follows:
    ``[Note: The Article 120, 120b, and 120c maximum punishments apply 
to offenses committed after 28 June 2012. See Appendices 23, 27, and 
28.]''
    (e) Article 125 is amended to read as follows:

``125 Forcible sodomy; bestiality

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Forcible sodomy.....................  Mandatory DD \5\.......  Life \4\...............  Total.
Bestiality..........................  DD, BCD................  5 yrs..................  Total.''
----------------------------------------------------------------------------------------------------------------

    (f) Article 134 abusing public animal is amended to read as 
follows:

``134 Animal abuse

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
Abuse, neglect, or abandonment of an  BCD....................  1 yr...................  Total.
 animal.
Abuse, neglect, or abandonment of a   BCD....................  2yrs...................  Total.
 public animal.
Sexual act with an animal or cases    DD, BCD................  5 yrs..................  Total.''
 where the accused caused the
 serious injury or death of the
 animal.
----------------------------------------------------------------------------------------------------------------

    (g) Article 134 Assault with intent to commit voluntary 
manslaughter, robbery, sodomy, arson, or burglary is amended to read as 
follows:

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
134 With intent to commit voluntary   DD, BCD................  10 yrs.................  Total.''
 manslaughter, robbery, forcible
 sodomy, arson, or burglary.
----------------------------------------------------------------------------------------------------------------

    (h) Article 134 Indecent conduct is inserted to read as follows:

----------------------------------------------------------------------------------------------------------------
               Offense                       Discharge               Confinement               Forfeiture
----------------------------------------------------------------------------------------------------------------
134 Indecent conduct................  DD, BCD................  5 yrs..................  Total.''
----------------------------------------------------------------------------------------------------------------

    (i) The Notes are amended by adding note \5\ after note \4.\
    `` \5.\ A dishonorable discharge can be reduced to a bad-conduct 
discharge by the convening authority in accordance with a pretrial 
agreement.''
    Section 2. Appendix 12A of the Manual for Courts-Martial, United 
States, is inserted to read as follows:
``APPENDIX 12A
LESSER INCLUDED OFFENSES
    This chart was compiled for convenience purposes only and is not 
the ultimate authority for specific lesser included offenses. Lesser 
offenses are those which are necessarily included in the offense 
charged. See Article 79. Depending on the factual circumstances in each 
case, the offenses listed below may be considered lesser included. The 
elements of the proposed lesser included offense should be compared 
with the elements of the greater offense to determine if the elements 
of the lesser offense are derivative of the greater offense and vice 
versa. The ``elements test'' is the proper method for determining 
lesser included offenses. See Appendix 23.
    Attempts to commit an offense may constitute a lesser included 
offense and are not listed. See Article 80.

------------------------------------------------------------------------
       Article                 Offense           Lesser included offense
------------------------------------------------------------------------
77..................  Principals..............  See Part IV, Para. 1.
78..................  Accessory after the fact  See Part IV, Para. 2.
79..................  Conviction of lesser      See Part IV, Para. 3.
                       included offenses.
80..................  Attempts................  See Part IV, Para. 4.
81..................  Conspiracy..............  See Part IV, Para. 5.
82..................  Solicitation............
83..................  Fraudulent enlistment,
                       appointment, or
                       separation.
84..................  Effecting unlawful
                       enlistment,
                       appointment, or
                       separation.
85..................  Desertion...............  Art. 86.
86..................  Absence without leave...

[[Page 78578]]

 
87..................  Missing movement........
                      --Design................  Art. 87 (neglect); Art.
                                                 86.
                      --Neglect...............  Art. 86.
88..................  Contempt toward
                       officials.
89..................  Disrespect toward a       Art. 117.
                       superior commissioned
                       officer.
90..................  Assaulting or willfully
                       disobeying superior
                       commissioned officer.
                      --Striking superior       Art. 90 (drawing or
                       commissioned officer in   lifting up a weapon or
                       execution of office.      offering violence to
                                                 superior commissioned
                                                 officer); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery; assault with
                                                 a dangerous weapon;
                                                 assault or assault
                                                 consummated by a
                                                 battery upon
                                                 commissioned officer
                                                 not in the execution of
                                                 office).
                      --Drawing or lifting up   Art. 128 (simple
                       a weapon or offering      assault; assault with a
                       violence to superior      dangerous weapon;
                       commissioned officer in   assault upon a
                       execution of office.      commissioned officer
                                                 not in the execution of
                                                 office).
                      --Willfully disobeying    Art. 92; Art. 89.
                       lawful order of
                       superior commissioned
                       officer.
91..................  Insubordinate conduct
                       toward warrant officer,
                       noncommissioned
                       officer, or petty
                       officer.
                      --Striking or assaulting  Art. 128 (simple
                       warrant,                  assault; assault
                       noncommissioned, or       consummated by a
                       petty officer in the      battery; assault with a
                       execution of office.      dangerous weapon;
                                                 assault upon warrant,
                                                 noncommissioned, or
                                                 petty officer not in
                                                 the execution of
                                                 office).
                      --Disobeying a warrant,   Art. 92.
                       noncommissioned, or
                       petty officer.
                      --Treating with contempt  Art. 117.
                       or being disrespectful
                       in language or
                       deportment toward
                       warrant,
                       noncommissioned, or
                       petty officer in the
                       execution of office.
92..................  Failure to obey order or
                       regulation.
93..................  Cruelty and maltreatment
94..................  Mutiny and sedition.....
                      --Mutiny by creating      Art. 90; Art. 116; Art.
                       violence or disturbance.  128 (simple assault).
                      --Mutiny by refusing to   Art. 90 (willful
                       obey orders or perform    disobedience of
                       duties.                   commissioned officer);
                                                 Art. 91 (willful
                                                 disobedience of
                                                 warrant,
                                                 noncommissioned, or
                                                 petty officer); Art.
                                                 92.
                      --Sedition..............  Art. 116; Art. 128
                                                 (assault).
95..................  Resistance, flight,
                       breach of arrest, and
                       escape.
                      --Resisting apprehension  Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery).
96..................  Releasing prisoner
                       without proper
                       authority.
                      --Suffering a prisoner    Art. 96 (neglect).
                       to escape through
                       design.
97..................  Unlawful detention......
98..................  Noncompliance with
                       procedural rules.
99..................  Misbehavior before the
                       enemy.
                      --Running away..........  Art. 85 (desertion with
                                                 intent to avoid
                                                 hazardous duty or
                                                 important service);
                                                 Art. 86 (absence
                                                 without authority;
                                                 going from appointed
                                                 place of duty).
                      --Endangering safety of   Art. 92.
                       a command, unit, place,
                       ship, or military
                       property.
                      --Casting away arms or    Art. 108.
                       ammunition.
                      --Cowardly conduct......  Art. 85 (desertion with
                                                 intent to avoid
                                                 hazardous duty or
                                                 important service);
                                                 Art. 86; Art. 99
                                                 (running away).
                      --Quitting place of duty  Art. 86 (going from
                       to plunder or pillage.    appointed place of
                                                 duty).
100.................  Subordinate compelling
                       surrender.
101.................  Improper use of a
                       countersign.
102.................  Forcing a safeguard.....
103.................  Captured or abandoned
                       property.
104.................  Aiding the enemy........
105.................  Misconduct as a prisoner
106.................  Spies...................
106a................  Espionage...............
107.................  False official statement
108.................  Military property of the
                       United States--sale,
                       loss, damage,
                       destruction, or
                       wrongful disposition.
                      --Willfully damaging      Art. 108 (damaging
                       military property.        military property
                                                 through neglect); Art.
                                                 109 (willfully damaging
                                                 non-military property).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       damaged.                  military property to be
                                                 damaged).
                      --Willfully destroying    Art. 108 (through
                       military property.        neglect destroying
                                                 military property;
                                                 willfully damaging
                                                 military property;
                                                 through neglect
                                                 damaging military
                                                 property); Art. 109
                                                 (willfully destroying
                                                 non-military property;
                                                 willfully damaging non-
                                                 military property).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       destroyed.                military property to be
                                                 destroyed; willfully
                                                 suffering military
                                                 property to be damaged;
                                                 through neglect
                                                 suffering military
                                                 property to be
                                                 damaged).
                      --Willfully losing        Art. 108 (through
                       military property.        neglect losing military
                                                 property).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       lost.                     military property to be
                                                 lost).

[[Page 78579]]

 
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       sold.                     military property to be
                                                 sold).
                      --Willfully suffering     Art. 108 (through
                       military property to be   neglect suffering
                       wrongfully disposed of.   military property to be
                                                 wrongfully disposed of
                                                 in the manner alleged).
109.................  Property other than
                       military property of
                       the United States--
                       waste, spoilage, or
                       destruction.
110.................  Improper hazarding of
                       vessel.
                      --Willfully and           Art. 110 (negligently
                       wrongfully hazarding a    hazarding a vessel).
                       vessel.
                      --Willfully and           Art. 110 (negligently
                       wrongfully suffering a    suffering a vessel to
                       vessel to be hazarded.    be hazarded).
111.................  Drunken or reckless
                       operation of vehicle,
                       aircraft, or vessel.
                      --Reckless, wanton, or    Art. 110.
                       impaired operation or
                       physical control of a
                       vessel.
                      --Drunken operation of a  Art. 110; Art. 112.
                       vehicle, vessel, or
                       aircraft while drunk or
                       with a blood or breath
                       alcohol concentration
                       in violation of the
                       described per se
                       standard.
112.................  Drunk on Duty...........
112a................  Wrongful use,
                       possession, etc., of
                       controlled substances.
                      --Wrongful use of         Art. 112a (wrongful
                       controlled substance.     possession of
                                                 controlled substance).
                      --Wrongful manufacture    Art. 112a (wrongful
                       of controlled substance.  possession of
                                                 controlled substance).
                      --Wrongful introduction   Art. 112a (wrongful
                       of controlled substance.  possession of
                                                 controlled substance).
                      --Wrongful possession,    Art. 112a (wrongful
                       manufacture, or           possession,
                       introduction of a         manufacture, or
                       controlled substance      introduction of
                       with intent to            controlled substance).
                       distribute.
113.................  Misbehavior of sentinel
                       or lookout.
                      --Drunk on post.........  Art. 112; Art. 92
                                                 (dereliction of duty).
                      --Sleeping on post......  Art. 92 (dereliction of
                                                 duty).
                      --Leaving post..........  Art. 92 (dereliction of
                                                 duty); Art. 86 (going
                                                 from appointed place of
                                                 duty).
114.................  Dueling.................
115.................  Malingering.............
116.................  Riot or breach of peace.
                      --Riot..................  Art. 116 (breach of
                                                 peace).
117.................  Provoking speeches or
                       gestures.
118.................  Murder..................
                      --Premeditated murder     Art. 118 (intent to kill
                       and murder during         or inflict great bodily
                       certain offenses.         harm; act inherently
                                                 dangerous to another).
                      --All murders under       Art. 119 (involuntary
                       Article 118.              manslaughter); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery; aggravated
                                                 assault).
                      --Murder as defined in    Art. 119 (voluntary
                       Article 118(1), (2),      manslaughter).
                       and (4).
119.................  Manslaughter............
                      --Voluntary manslaughter  Art. 119 (involuntary
                                                 manslaughter); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery; aggravated
                                                 assault).
                      --Involuntary             Art. 128 (simple
                       manslaughter.             assault; assault
                                                 consummated by a
                                                 battery).
119a................  Death or injury of an
                       unborn child.
                      --Killing an unborn       Art. 119a (injuring an
                       child.                    unborn child).
                      --Intentionally killing   Art. 119a (killing an
                       an unborn child.          unborn child; injuring
                                                 an unborn child).
120 \1\.............  Rape and sexual assault
                       generally.
                      --Rape..................
                         --By unlawful force..  Art. 120(b)(1)(B); Art.
                                                 120(c); Art. 120(d);
                                                 Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery).
                         --By force causing or  Art. 120(a)(1); Art.
                          likely to cause        120(b)(1)(B); Art.
                          death or grievous      120(c); Art. 120(d);
                          bodily harm to any     Art. 128 (simple
                          person.                assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon or
                                                 other means or force
                                                 likely to produce death
                                                 or grievous bodily
                                                 harm; assault
                                                 intentionally
                                                 inflicting grievous
                                                 bodily harm).
                         --By threatening or    Art. 120(b)(1)(B); Art.
                          placing that other     120(c); Art. 120(d).
                          person in fear that
                          any person would be
                          subjected to death,
                          grievous bodily
                          harm, or kidnapping.
                         --By first rendering   Art. 120(b)(2); Art.
                          that other person      120(c); Art. 120(d).
                          unconscious.
                         --By administering to  Art. 120(c); Art. 128
                          that person a drug,    (simple assault;
                          intoxicant, or other   assault consummated by
                          similar substance.     a battery).
                         --Sexual Assault.....
                         --By threatening or    Art. 120(d).
                          placing that other
                          person in fear.
                         --By causing bodily    Art. 120(d); Art. 128
                          harm to that other     (simple assault;
                          person.                assault consummated by
                                                 a battery).
                         --By making a          Art. 120(d).
                          fraudulent
                          representation that
                          the sexual act
                          serves a
                          professional purpose.
                         --Inducing a belief    Art. 120(d).
                          by any artifice,
                          pretense, or
                          concealment that the
                          person is another
                          person.
                         --Upon another person  Art. 120(d).
                          when the person
                          knows or reasonably
                          should know that the
                          other person is
                          asleep, unconscious,
                          or otherwise unaware
                          that the sexual act
                          is occurring.
                         --When the other       Art. 120(d).
                          person is incapable
                          of consenting.
                      --Aggravated sexual
                       contact.

[[Page 78580]]

 
                         --By unlawful force..  Art. 120(d); Art. 128
                                                 (simple assault;
                                                 assault consummated by
                                                 a battery).
                         --By force causing or  Art. 120(d); Art. 128
                          likely to cause        (simple assault;
                          death or grievous      assault consummated by
                          bodily harm to any     a battery).
                          person.
                         --By threatening or    Art. 120(d).
                          placing that other
                          person in fear that
                          any person would be
                          subjected to death,
                          grievous bodily
                          harm, or kidnapping.
                         --By first rendering   Art. 120(d); Art. 128
                          that person            (simple assault;
                          unconscious.           assault consummated by
                                                 a battery).
                         --By administering to  Art. 120(d); Art. 128
                          that person a drug,    (simple assault;
                          intoxicant, or other   assault consummated by
                          similar substance.     a battery).
                         --Abusive sexual       Art. 128 (simple
                          contact.               assault; assault
                                                 consummated by a
                                                 battery).
120a................  Stalking................
120b................  Rape and sexual assault
                       of a child.
                      --Rape of a child.......
                         --Of a child who has   Art. 120b(c); Art. 120c.
                          not attained the age
                          of 12.
                         --By force of a child  Art. 120b(b); Art.
                          who has attained the   120b(c); Art. 128
                          age of 12.             (assault consummated by
                                                 a battery upon a child
                                                 under 16 years).
                         --By threatening or    Art. 120b(b); Art.
                          placing in fear a      120b(c).
                          child who has
                          attained the age of
                          12.
                         --By rendering         Art. 120b(b); Art.
                          unconscious a child    120b(c); Art. 128
                          who has attained the   (assault consummated by
                          age of 12.             a battery upon a child
                                                 under 16 years).
                         --By administering a   Art. 120b(b); Art.
                          drug, intoxicant, or   120b(c); Art. 128
                          other similar          (assault consummated by
                          substance to a child   a battery upon a child
                          who has attained the   under 16 years).
                          age of 12.
                      --Sexual assault of a
                       child.
                         --Sexual assault of a  Art. 120b(c).
                          child who has not
                          attained the age of
                          12 involving contact
                          between penis and
                          vulva or anus or
                          mouth.
                         --Sexual assault of a  Art. 120b(c).
                          child who has
                          attained the age of
                          12 involving
                          penetration of vulva
                          or anus or mouth by
                          any part of the body
                          or any object.
120c................  Other sexual misconduct.
121.................  Larceny and wrongful
                       appropriation.
                      --Larceny...............  Art. 121 (wrongful
                                                 appropriation).
                      --Larceny of military     Art. 121 (wrongful
                       property.                 appropriation; larceny
                                                 of property other than
                                                 military property).
122.................  Robbery.................  Art. 121 (larceny;
                                                 wrongful
                                                 appropriation); Art.
                                                 128 (simple assault;
                                                 assault consummated by
                                                 a battery; assault with
                                                 a dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm)
123.................  Forgery.................
123a................  Making, drawing, or
                       uttering check, draft,
                       or order without
                       sufficient funds.
124.................  Maiming.................  Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm)
125.................  Forcible sodomy;
                       bestiality.
                      --Forcible sodomy.......  Art. 128 (simple
                                                 assault; assault
                                                 consummated by a
                                                 battery).
126.................  Arson...................
                      --Aggravated arson......  Art. 126 (simple arson).
127.................  Extortion...............
128.................  Assault.................
                      --Assault consummated by  Art. 128 (simple
                       a battery.                assault).
                      --Assault upon a          Art. 128 (simple
                       commissioned, warrant,    assault; assault
                       noncommissioned, or       consummated by a
                       petty officer.            battery).
                      --Assault upon a          Art. 128 (simple
                       sentinel or lookout in    assault; assault
                       the execution of duty.    consummated by a
                                                 battery).
                      --Assault consummated by  Art. 128 (simple
                       a battery upon a child    assault; assault
                       under 16 years.           consummated by a
                                                 battery).
                      --Assault with a          Art. 128 (simple
                       dangerous weapon or       assault; assault
                       other means of force      consummated by a
                       likely to produce death   battery; (when
                       or grievous bodily harm.  committed upon a child
                                                 under the age of 16
                                                 years; assault
                                                 consummated by a
                                                 battery upon a child
                                                 under the age of 16
                                                 years)).
                      --Assault in which        Art. 128 (simple
                       grievous bodily harm is   assault; assault
                       intentionally inflicted.  consummated by a
                                                 battery; assault with a
                                                 dangerous weapon (when
                                                 committed upon a child
                                                 under the age of 16
                                                 years; assault
                                                 consummated by a
                                                 battery upon a child
                                                 under the age of 16
                                                 years)).
129.................  Burglary................  Art. 130
                                                 (housebreaking).
130.................  Housebreaking...........
131.................  Perjury.................
132.................  Frauds against the
                       United States.
133.................  Conduct unbecoming an
                       officer and a gentleman.
134.................  Animal abuse............
134.................  Adultery................

[[Page 78581]]

 
134.................  Assault--with intent to
                       commit murder,
                       voluntary manslaughter,
                       rape, robbery, forcible
                       sodomy, arson,
                       burglary, or
                       housebreaking.
                      --Assault with intent to  Art. 128 (simple
                       murder.                   assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm); Art. 134
                                                 (assault with intent to
                                                 commit voluntary
                                                 manslaughter; willful
                                                 or careless discharge
                                                 of a firearm).
                      --Assault with intent to  Art. 128 (simple
                       commit voluntary          assault; assault
                       manslaughter.             consummated by a
                                                 battery; assault with a
                                                 dangerous weapon;
                                                 assault intentionally
                                                 inflicting grievous
                                                 bodily harm); Art. 134
                                                 (willful or careless
                                                 discharge of a
                                                 firearm).
                      --Assault with intent to  Art. 128 (simple
                       commit rape or forcible   assault; assault
                       sodomy.                   consummated by a
                                                 battery; assault with a
                                                 dangerous weapon).
                      --Assault with intent to  Art. 128 (simple
                       commit burglary.          assault; assault
                                                 consummated by a
                                                 battery; assault with a
                                                 dangerous weapon); Art.
                                                 134 (assault with
                                                 intent to commit
                                                 housebreaking).
                      --Assault with intent to  Art. 128 (simple
                       commit robbery, arson,    assault; assault
                       or housebreaking.         consummated by a
                                                 battery; assault with a
                                                 dangerous weapon).
134.................  Bigamy..................
134.................  Bribery and graft.......
                      --Bribery...............  Art. 134 (graft).
134.................  Burning with intent to
                       defraud.
134.................  Check, worthless, making
                       and uttering--by
                       dishonorably failing to
                       maintain funds.
134.................  Child endangerment......
                      --Child endangerment by   Art. 134 (child
                       design.                   endangerment by
                                                 culpable negligence).
134.................  Child pornography.......
                      --Possessing child        Art. 134 (possessing
                       pornography with intent   child pornography).
                       to distribute.
                      --Distributing child      Art. 134 (possessing
                       pornography.              child pornography;
                                                 possessing child
                                                 pornography with intent
                                                 to distribute)
                      --Producing child         Art. 134 (possessing
                       pornography.              child pornography).
134.................  Cohabitation, wrongful..
134.................  Correctional custody--
                       offenses against.
134.................  Debt, dishonorably
                       failing to pay.
134.................  Disloyal statements.....
134.................  Disorderly conduct,
                       drunkenness.
134.................  Drinking liquor with
                       prisoner.
134.................  Drunk prisoner..........
134.................  Drunkenness--incapacitat
                       ion for performance of
                       duties through prior
                       wrongful indulgence in
                       intoxicating liquor or
                       any drug.
134.................  False or unauthorized
                       pass offenses.
                      --Wrongful use or         Art. 134 (same offenses,
                       possession of false or    except without the
                       unauthorized military     intent to defraud or
                       or official pass,         deceive).
                       permit, discharge
                       certificate, or
                       identification card,
                       with the intent to
                       defraud or deceive.
134.................  False pretenses,
                       obtaining services
                       under.
134.................  False swearing..........
134.................  Firearm, discharging--
                       through negligence.
134.................  Firearm, discharging--    Art. 134 (firearm,
                       willfully, under such     discharging--through
                       circumstances as to       negligence).
                       endanger human life.
134.................  Fleeing scene of
                       accident.
134.................  Fraternization..........
134.................  Gambling with a
                       subordinate.
134.................  Homicide, negligent.....
134.................  Impersonating a
                       commissioned, warrant,
                       noncommissioned, or
                       petty officer, or an
                       agent or official.
134.................  Indecent conduct........
134.................  Indecent language.......  Art. 117 (provoking
                                                 speeches).
134.................  Jumping from vessel into
                       the water.
134.................  Kidnapping..............
134.................  Mail: Taking, opening,    Art. 121.
                       secreting, destroying,
                       or stealing.
134.................  Mails: Depositing or
                       causing to be deposited
                       obscene matters in.
134.................  Misprision of serious
                       offense.
134.................  Obstructing justice.....
134.................  Wrongful interference
                       with an adverse
                       administrative
                       proceeding.
134.................  Pandering and
                       prostitution.
134.................  Parole, violation of....
134.................  Perjury: Subornation of.
134.................  Public record: Altering,
                       concealing, removing,
                       mutilating,
                       obliterating, or
                       destroying.
134.................  Quarantine: Medical,      Art. 134 (breaking
                       breaking.                 restriction).

[[Page 78582]]

 
134.................  Reckless endangerment...
134.................  Restriction, breaking...
134.................  Seizure: Destruction,
                       removal, or disposal of
                       property to prevent.
134.................  Self-injury without
                       intent to avoid service.
134.................  Sentinel or lookout:
                       Offenses against or by.
134.................  Soliciting another to
                       commit an offense.
134.................  Stolen property:
                       Knowingly receiving,
                       buying, concealing.
134.................  Straggling..............
134.................  Testify: Wrongful
                       refusal.
134.................  Threat or hoax designed
                       or intended to cause
                       panic or public fear.
                      --Threat................  Art. 134 (communicating
                                                 a threat); Art. 128
                                                 (assault).
134.................  Threat, communicating...
134.................  Unlawful entry..........
134.................  Weapon: Concealed,
                       carrying.
134.................  Wearing unauthorized
                       insignia, decoration,
                       badge, ribbon, device
                       or lapel button''.
------------------------------------------------------------------------
\1\ This chart only includes the 2012 version of Art. 120. See Appendix
  27 and 28 for prior versions.

    Section 3. The Discussion to Part I of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) The Discussion immediately following paragraph 4 is amended to 
read as follows:
    ``The Department of Defense, in conjunction with the Department of 
Homeland Security, has published supplementary materials to accompany 
the Manual for Courts-Martial. These materials consist of a Discussion 
(accompanying the Preamble, the Rules for Courts-Martial, the Military 
Rules of Evidence, and the Punitive Articles), an Analysis, and various 
appendices. These supplementary materials do not constitute the 
official views of the Department of Defense, the Department of Homeland 
Security, the Department of Justice, the military departments, the 
United States Court of Appeals for the Armed Forces, or any other 
authority of the Government of the United States, and they do not 
constitute rules. Cf., e.g., 5 U.S.C. 551(4). The supplementary 
materials do not create rights or responsibilities that are binding on 
any person, party, or other entity (including any authority of the 
Government of the United States whether or not included in the 
definition of ``agency'' in 5 U.S.C. 551(1)). Failure to comply with 
matter set forth in the supplementary materials does not, of itself, 
constitute error, although these materials may refer to requirements in 
the rules set forth in the Executive Order or established by other 
legal authorities (for example, binding judicial precedents applicable 
to courts-martial) that are based on sources of authority independent 
of the supplementary materials. See Appendix 21 in this Manual.
    The 1995 amendment to paragraph 4 of the Preamble eliminated the 
practice of identifying the Manual for Courts-Martial, United States, 
by a particular year. Historically the Manual had been published in its 
entirety sporadically (e.g., 1917, 1921, 1928, 1949, 1951, 1969, and 
1984) with amendments to it published piecemeal. It was therefore 
logical to identify the Manual by the calendar year of publication, 
with periodic amendments identified as ``Changes'' to the Manual. 
Beginning in 1995, however, a new edition of the Manual was published 
in its entirety and a new naming convention was adopted. See Exec. 
Order No. 12960 of May 12, 1995. Beginning in 1995, the Manual was to 
be referred to as ``Manual for Courts-Martial, United States (19xx 
edition).'' In 2013, the Preamble was amended to identify new Manuals 
based on their publication date.
    Amendments made to the Manual can be researched in the relevant 
Executive Order as referenced in Appendix 25. Although the Executive 
Orders were removed from Appendix 25 of the Manual in 2012 to reduce 
printing requirements, they can be accessed online. See Appendix 25.
    Section 4. The Discussion to Part II of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) The Discussion immediately following R.C.M. 307(c)(3) is 
amended by deleting the first two Notes.
    (b) The Discussion immediately following R.C.M. 307(c)(3) is 
amended by inserting the words ``For Article 134 offenses, also refer 
to paragraph 60c(6) in Part IV.'' after the words ``How to draft 
specifications.''
    (c) The Discussion immediately following R.C.M. 307(c)(3) is 
amended by deleting the Note directly following the words ``(G) 
Description of offense.''
    (d) Part (G)(i) in the Discussion immediately following R.C.M. 
307(c)(3) is amended to read as follows:
    ``(i) Elements. The elements of the offense must be alleged, either 
expressly or by necessary implication, except that Article 134 
specifications must expressly allege the terminal element. See 
paragraph 60.c.(6) in Part IV. If a specific intent, knowledge, or 
state of mind is an element of the offense, it must be alleged.''
    (e) Part (G)(v) in the Discussion immediately following R.C.M. 
307(c)(3) is inserted to read as follows:
    ``(v) Lesser Included Offenses. The elements of the contemplated 
lesser included offense should be compared with the elements of the 
greater offense to determine if the elements of the lesser offense are 
derivative of the greater offense and vice versa. See discussion 
following paragraph 3.b.(1)(c) in Part IV and the related analysis in 
Appendix 23.''
    (f) The note immediately following R.C.M. 307(c)(4) is deleted and 
Discussion is inserted to read as follows:
    ``The prohibition against unreasonable multiplication of charges 
addresses those features of military law that increase the potential 
for overreaching in the exercise of prosecutorial discretion. It is 
based on reasonableness, and has no foundation in Constitutional 
rights. To determine if charges are unreasonably multiplied, see R.C.M. 
906(b)(12). Because prosecutors are free to charge in the alternative, 
it may be reasonable to charge two or more offenses that arise from one 
transaction if sufficient doubt exists as to the facts or the law. In 
no case should both an offense and a lesser included offense thereof be 
separately charged. See also Part IV, paragraph 3, and R.C.M. 601(e)(2) 
concerning referral of several offenses.''
    (g) The Discussion immediately following R.C.M. 701(e) is amended 
by

[[Page 78583]]

adding the following after ``retribution for such testimony'':
    ``Counsel must remain cognizant of professional responsibility 
rules regarding communicating with represented persons.''
    (h) The Discussion immediately following R.C.M. 809(a) is amended 
to read as follows:
    ``Article 48 makes punishable ``direct'' contempt, as well as 
``indirect'' or ``constructive'' contempt. ``Direct'' contempt is that 
which is committed in the presence of the court-martial or its 
immediate proximity. ``Presence'' includes those places outside the 
courtroom itself, such as waiting areas, deliberation rooms, and other 
places set aside for the use of the court-martial while it is in 
session. ``Indirect'' or ``constructive'' contempt is non-compliance 
with lawful writs, processes, orders, rules, decrees, or commands of 
the court-martial. A ``direct'' or ``indirect'' contempt may be 
actually seen or heard by the court-martial, in which case it may be 
punished summarily. See subsection (b)(1) of this Rule. A ``direct'' or 
``indirect'' contempt may also be a contempt not actually observed by 
the court-martial, for example, when an unseen person makes loud 
noises, whether inside or outside the courtroom, which impede the 
orderly progress of the proceedings. In such a case the procedures for 
punishing contempt are more extensive. See subsection (b)(2) of this 
Rule.
    The words ``any person,'' as used in Article 48, include all 
persons, whether or not subject to military law, except the military 
judge and foreign nationals outside the territorial limits of the 
United States who are not subject to the code. The military judge may 
order the offender removed whether or not contempt proceedings are 
held. It may be appropriate to warn a person whose conduct is improper 
that persistence in a course of behavior may result in removal or 
punishment for contempt. See R.C.M. 804, 806.
    Each finding of contempt may be separately punished.
    A person subject to the code who commits contempt may be tried by 
court-martial or otherwise disciplined under Article 134 for such 
misconduct in addition to or instead of punishment for contempt. See 
paragraph 108, Part IV; see also Article 98. The 2011 amendment of 
Article 48 expanded the contempt power of military courts to enable 
them to enforce orders, such as discovery orders or protective orders 
regarding evidence, against military or civilian attorneys. Persons not 
subject to military jurisdiction under Article 2, having been duly 
subpoenaed, may be prosecuted in Federal civilian court under Article 
47 for neglect or refusal to appear or refusal to qualify as a witness 
or to testify or to produce evidence.''
    (i) The Discussion immediately following R.C.M. 906(b)(5) is 
amended to read as follows:
    ``Each specification may state only one offense. R.C.M. 307(c)(4). 
A duplicitous specification is one which alleges two or more separate 
offenses. Lesser included offenses (see paragraph 3, Part IV) are not 
separate, nor is a continuing offense involving separate acts. The sole 
remedy for a duplicitous specification is severance of the 
specification into two or more specifications, each of which alleges a 
separate offense contained in the duplicitous specification. However, 
if the duplicitousness is combined with or results in other defects, 
such as misleading the accused, other remedies may be appropriate. See 
subsection (b)(3) of this rule. See also R.C.M. 907(b)(3).''
    (j) The Discussion immediately following R.C.M. 906(b)(12) is 
amended to read as follows:
    ``Unreasonable multiplication of charges as applied to findings and 
sentence is a limitation on the military's discretion to charge 
separate offenses and does not have a foundation in the Constitution. 
The concept is based on reasonableness and the prohibition against 
prosecutorial overreaching. In contrast, multiplicity is grounded in 
the Double Jeopardy Clause of the Fifth Amendment. It prevents an 
accused from being twice punished for one offense if it is contrary to 
the intent of Congress. See R.C.M. 907(b)(3). Therefore, a motion for 
relief from unreasonable multiplication of charges as applied to 
findings and sentence differs from a motion to dismiss on the grounds 
of multiplicity.
    The following non-exhaustive factors should be considered when 
determining whether two or more offenses are unreasonably multiplied: 
whether the specifications are aimed at distinctly separate criminal 
acts; whether they represent or exaggerate the accused's criminality; 
whether they unreasonably increase his or her exposure to punishment; 
and whether they suggest prosecutorial abuse of discretion in drafting 
of the specifications. Because prosecutors are permitted to charge in 
the alternative based on exigencies of proof, a ruling on this motion 
ordinarily should be deferred until after findings are entered.''
    (k) The Discussion immediately following R.C.M. 907(b)(3) is 
amended to read as follows:
    ``Multiplicity is a legal concept, arising from the Double Jeopardy 
Clause of the Fifth Amendment, which provides that no person shall be 
put in jeopardy twice for the same offense. Absent legislative intent 
to the contrary, an accused cannot be convicted and punished for 
violations of two or more statutes if those violations arise from a 
single act. Where Congress intended to impose multiple punishments for 
the same act, imposition of such sentence does not violate the 
Constitution.
    Multiplicity differs from unreasonable multiplication of charges. 
If two offenses are not multiplicious, they nonetheless may constitute 
an unreasonable multiplication of charges as applied to findings or 
sentence. See R.C.M. 906(b)(12). Unreasonable multiplication of charges 
is a limitation on the military's discretion to charge separate 
offenses. It does not have a foundation in the Constitution; it is 
based on reasonableness and the prohibition against prosecutorial 
overreaching. The military judge is to determine, in his or her 
discretion, whether the charges constitute unreasonable multiplication 
of charges as applied to findings or sentencing. See R.C.M. 906(b)(12).
    To determine if two charges are multiplicious, the practitioner 
should first determine whether they are based on separate acts. If so, 
the charges are not multiplicious because separate acts may be charged 
and punished separately. If the charges are based upon a single act, 
the practitioner should next determine if Congress intended to impose 
multiple convictions and punishments for the same act. When there is no 
overt expression of congressional intent in the relevant statutes, such 
intent may be inferred based on the elements of the charged statutes 
and their relationship to each other or other principles of statutory 
interpretation. If each statute contains an element not contained in 
the other, it may be inferred that Congress intended they be charged 
and punished separately. Likewise, if each statute contains the same 
elements, it may be inferred that Congress did not intend they be 
charged and punished separately. A lesser included offense will always 
be multiplicious if charged separately, but offenses do not have to be 
lesser included to be multiplicious.
    Ordinarily, a specification should not be dismissed for 
multiplicity before trial. The less serious of any multiplicious 
specifications shall be dismissed after findings have been reached. Due 
consideration must be given, however, to possible post-trial or

[[Page 78584]]

appellate action with regard to the remaining specification.''
    (l) The Discussion immediately following R.C.M. 910(a)(1) is 
amended to read as follows:
    ``See paragraph 3, Part IV, concerning lesser included offenses. 
When the plea is to a lesser included offense without the use of 
exceptions and substitutions, the defense counsel should provide a 
written revised specification to be included in the record as an 
appellate exhibit.
    A plea of guilty to a lesser included offense does not bar the 
prosecution from proceeding on the offense as charged. See also 
subsection (g) of this rule.
    A plea of guilty does not prevent the introduction of evidence, 
either in support of the factual basis for the plea, or, after findings 
are entered, in aggravation. See R.C.M. 1001(b)(4).''
    (m) The Discussion immediately following R.C.M. 916(j)(2) is 
amended to read as follows:
    ``Examples of ignorance or mistake which need only exist in fact 
include: ignorance of the fact that the person assaulted was an 
officer; belief that property allegedly stolen belonged to the accused; 
belief that a controlled substance was really sugar.
    Examples of ignorance or mistake which must be reasonable as well 
as actual include: belief that the accused charged with unauthorized 
absence had permission to go; belief that the accused had a medical 
``profile'' excusing shaving as otherwise required by regulation. Some 
offenses require special standards of conduct (see, for example, 
paragraph 68, Part IV, Dishonorable failure to maintain sufficient 
funds); the element of reasonableness must be applied in accordance 
with the standards imposed by such offenses.
    Examples of offenses in which the accused's intent or knowledge is 
immaterial include: Any rape of a child, or any sexual assault or 
sexual abuse of a child when the child is under 12 years old. However, 
such ignorance or mistake may be relevant in extenuation and 
mitigation.
    See subsection (l)(1) of this rule concerning ignorance or mistake 
of law.''
    (n) The Discussion immediately following R.C.M. 918(a)(1) is 
amended to read as follows:
    ``Exceptions and Substitutions. One or more words or figures may be 
excepted from a specification and, when necessary, others substituted, 
if the remaining language of the specification, with or without 
substitutions, states an offense by the accused which is punishable by 
the court-martial. Changing the date or place of the offense may, but 
does not necessarily, change the nature or identity of an offense.
    If A and B are joint accused and A is convicted but B is acquitted 
of an offense charged, A should be found guilty by excepting the name 
of B from the specification as well as any other words indicating the 
offense was a joint one.
    Lesser Included Offenses. If the evidence fails to prove the 
offense charged but does prove an offense necessarily included in the 
offense charged, the fact finder may find the accused not guilty of the 
offense charged but guilty of the lesser included offense. See 
paragraph 3 of Part IV concerning lesser included offenses.
    Offenses arising from the same act or transaction. The accused may 
be found guilty of two or more offenses arising from the same act or 
transaction, whether or not the offenses are separately punishable. But 
see R.C.M. 906(b)(12); 907(b)(3)(B); 1003(c)(1)(C).''
    (o) The note immediately following R.C.M. 1003(c)(1)(C) is deleted, 
and the following is added immediately following the last paragraph of 
the Discussion:
    ``Multiplicity is addressed in R.C.M. 907(b)(3)(B). Unreasonable 
multiplication of charges is addressed in R.C.M. 906(b)(12).''
    Section 5. The Discussion to Part IV of the Manual for Courts-
Martial, United States, is amended as follows:
    (a) The Discussion immediately following paragraph 3.b.(1)(c) is 
amended to read as follows:
    ``The ``elements test'' is the proper method for determining lesser 
included offenses. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 
2010); Schmuck v. United States, 489 U.S. 705 (1989); Appendix 23 of 
this Manual, Art. 79. Paragraph 3.b.(1) was amended to comport with the 
elements test, which requires that the elements of the lesser offense 
must be a subset of the elements of the charged offense. The elements 
test does not require identical statutory language, and use of normal 
principles of statutory interpretation is permitted. The elements test 
is necessary to safeguard the due process requirement of notice to a 
criminal defendant.''
    (b) The following Discussion is added immediately after paragraph 
3.b.(5):
    ``Practitioners must consider lesser included offenses on a case-
by-case basis. See United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010); 
United States v. Alston, 69 M.J. 214 (C.A.A.F. 2010); discussion 
following paragraph 3.b.(1)(c) above. The lesser included offenses 
listed in Appendix 12A were amended in 2016 to comport with the 
elements test; however, practitioners must analyze each lesser included 
offense on a case-by-case basis. See Appendix 23 of this Manual, 
Article 79.''
    (c) The following Discussion is added immediately after paragraph 
60.b:
    ``The terminal element is merely the expression of one of the 
clauses under Article 134. See paragraph c below for an explanation of 
the clauses and rules for drafting specifications. More than one clause 
may be alleged and proven; however, proof of only one clause will 
satisfy the terminal element. For clause 3 offenses, the military judge 
may judicially notice whether an offense is capital. See Mil. R. Evid. 
202.''
    (d) The following Discussion is added immediately after paragraph 
60.c.(6)(a):
    ``Clauses 1 and 2 are theories of liability that must be expressly 
alleged in a specification so that the accused will be given notice as 
to which clause or clauses to defend against. The words ``to the 
prejudice of good order and discipline in the armed forces'' encompass 
both paragraph c.(2)(a), prejudice to good order and discipline, and 
paragraph c.(2)(b), breach of custom of the Service. A generic sample 
specification is provided below:
    ``In that ____, (personal jurisdiction data), did (at/on board 
location), on or about __ 20__, (commit elements of Article 134 clause 
1 or 2 offense), and that said conduct (was to the prejudice of good 
order and discipline in the armed forces) (and) (was of a nature to 
bring discredit upon the armed forces).''
    If clauses 1 and 2 are alleged together in the terminal element, 
the word ``and'' should be used to separate them. Any clause not proven 
beyond a reasonable doubt should be excepted from the specification at 
findings. See R.C.M. 918(a)(1). See also Appendix 23 of this Manual, 
Art. 79. Although using the conjunctive ``and'' to connect the two 
theories of liability is recommended, a specification connecting the 
two theories with the disjunctive ``or'' is sufficient to provide the 
accused reasonable notice of the charge against him. See Appendix 23 of 
this Manual, Art. 134.''
    (e) The following replaces the paragraph below ``Discussion'' 
following paragraph 60.c.(6)(b):
    ``The words ``an offense not capital'' are sufficient to provide 
notice to the accused that a clause 3 offense has been charged and are 
meant to include all crimes and offenses not capital. A generic sample 
specification for clause 3 offenses is provided below:

[[Page 78585]]

    ``In that ____, (personal jurisdiction data), did (at/on board 
location), on or about __ 20__, (commit: address each element), an 
offense not capital, in violation of (name or citation of statute).''
    In addition to alleging each element of the federal statute, 
practitioners should consider including, when appropriate and 
necessary, words of criminality (e.g., wrongfully, knowingly, or 
willfully).''
    Section 6. Appendix 21 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) R.C.M. 306, the last paragraph beginning with ``2016 
Amendment,'' is amended to read as follows:
    ``2016 Amendment: R.C.M. 306(e) implements Section 534(b) of the 
National Defense Authorization Act for Fiscal Year 2015, P.L. 113-291, 
19 December 2014.''
    (b) R.C.M. 307(c)(3), after the paragraph beginning with the words, 
``2012 Amendment,'' and prior to the line beginning with the words, 
``The sources of the lettered subsection'' add the following:
    ``2016 Amendment: The two notes added in 2012 are removed. The 
notes were originally added to address the requirement to expressly 
state the terminal element in specifications under Article 134 and to 
address lesser included offenses. See United States v. Ballan, 71 M.J. 
28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 225 (C.A.A.F. 
2011); United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010). In 2016, 
the Manual was amended to require the terminal element be expressed in 
Article 134 specifications and to alter the definition of lesser 
included offenses under Article 79. See paragraphs 3 and 60.c.(6) in 
Part IV of this Manual.''
    (c) R.C.M. 307(c)(3)(A), after the paragraph beginning with the 
words ``Sample specifications'' delete the paragraph beginning with the 
words the ``2012 Amendment.''
    (d) R.C.M. 307(c)(3)(G), after the paragraph beginning with the 
words ``Description of offense.'' delete the paragraph beginning with 
the words the ``2012 Amendment,'' and insert in its place:
    ``2016 Amendment: The note added in 2012 is removed. The note was 
originally added to address the requirement to expressly state the 
terminal element in Article 134 specifications. See United States v. 
Ballan, 71 M.J. 28 (C.A.A.F. 2012); United States v. Fosler, 70 M.J. 
225 (C.A.A.F. 2011).''
    (e) R.C.M. 307(c)(3)(G)(i), insert the following language as a new 
paragraph after the existing paragraph:
    ``2016 Amendment: This subparagraph was amended and reflects the 
removal of a note.''
    (f) R.C.M. 307(c)(3)(G)(v), insert the following language:
    ``2016 Amendment: Subparagraph (v) was added to address lesser 
included offenses and refer practitioners to Article 79 and new 
Appendix 12A. See paragraph 3 in Part IV and Appendix 12A.''
    (g) R.C.M. 307(c)(4), after the paragraph beginning with the words 
``2005 Amendment'' delete the paragraph beginning with the words the 
``2012 Amendment,'' and insert in its place:
    ``2016 Amendment: The discussion section was added to R.C.M. 
307(c)(4) to clarify the ambiguity between the two distinct concepts of 
multiplicity and unreasonable multiplication of charges. For analysis 
related to multiplicity, see R.C.M. 907(b)(3)(B) in this Appendix. For 
analysis related to unreasonable multiplication of charges, see R.C.M. 
906(b)(12) in this Appendix.
    Nothing in the rule or the discussion section should be construed 
to imply that it would be overreaching for a prosecutor to bring 
several charges against an accused for what essentially amounts to one 
transaction if there is a valid legal reason to do so. For example, 
prosecutors may charge two offenses for exigencies of proof, which is a 
long accepted practice in military law. See, e.g., United States v. 
Morton, 69 M.J. 12 (C.A.A.F. 2010). The discussion section emphasizes 
that a prosecutor is not overreaching or abusing his or her discretion 
merely because he or she charges what is essentially one act under 
several different charges or specifications.
    The language in the discussion section of the 2012 edition of the 
Manual referring to United States v. Campbell, 71 M.J. 19 (C.A.A.F. 
2012), was removed because it is no longer necessary, as the rules 
themselves have been edited to remove any reference to ``multiplicious 
for sentencing.'' The example was removed from the discussion section 
because it overly generalized the concept of unreasonable 
multiplication of charges.''
    (h) R.C.M. 701(e), after the paragraph beginning with the words, 
``1986 Amendment,'' and immediately before subparagraph (f), insert the 
following language:
    ``2016 Amendment: This rule implements Article 46(b), enacted by 
section 1704 of the National Defense Authorization Act for Fiscal Year 
2014, P.L. 113-66, 26 December 2013, as amended by section 531(b) of 
the Carl Levin and Howard P. ``Buck'' McKeon National Defense 
Authorization Act for Fiscal Year 2015, P.L. 113-291, 19 December 
2014.''
    (i) R.C.M. 906(b)(12), delete the paragraph beginning with the 
words the ``2012 Amendment,'' and insert in its place:
    ``2016 Amendment: This rule and related discussion is the focal 
point for addressing unreasonable multiplication of charges. If a 
practitioner seeks to raise a claim for multiplicity, that concept is 
addressed in R.C.M. 907(b)(3)(B) and related discussion. This rule has 
been amended. The Court of Appeals for the Armed Forces has recognized 
that practitioners and the courts have routinely confused the concepts 
of multiplicity and unreasonable multiplication of charges. See, e.g., 
United States v. Campbell, 71 M.J. 19, 23 (C.A.A.F. 2012) (``the terms 
multiplicity, multiplicity for sentencing, and unreasonable 
multiplication of charges in military practice are sometimes used 
interchangeably as well as with uncertain definition''); United States 
v. Baker, 14 M.J. 361, 372 (C.M.A. 1983) (Cook, J. dissenting) 
(``[t]hat multiplicity for sentencing is a mess in the military justice 
system is a proposition with which I believe few people familiar with 
our system would take issue'').
    Multiplicity and unreasonable multiplication of charges are two 
distinct concepts. Unreasonable multiplication of charges as applied to 
findings and sentence is a limitation on the prosecution's discretion 
to charge separate offenses. Unreasonable multiplication of charges 
does not have a foundation in the Constitution but is instead based on 
the concept of reasonableness and is a prohibition against 
prosecutorial overreaching. In contrast, multiplicity is based on the 
Double Jeopardy Clause of the Fifth Amendment and prevents an accused 
from being twice punished for one offense if it is contrary to the 
intent of Congress. A charge may be found not to be multiplicious but 
at the same time it may be dismissed because of unreasonable 
multiplication. See United States v. Quiroz, 55 M.J. 334, 337-38 
(C.A.A.F. 2001).
    Use of the term ``multiplicity (or multiplicious) for sentencing'' 
is inappropriate. If a charge is multiplicious, meaning that it 
violates the Constitutional prohibition against Double Jeopardy, it 
necessarily results in dismissal of the multiplied offenses, therefore 
obviating any issue on sentencing with respect to that charge. 
Campbell, 71 M.J. at 23. A charge should not be found multiplicious for 
sentencing but not for findings. Thus,

[[Page 78586]]

the more appropriate term for the military judge's discretionary review 
of the charges at sentencing is ``unreasonable multiplication of 
charges as applied to sentence.'' Id. at 24. The rule was changed to 
remove ``multiplicity for sentencing'' from the Manual, eliminating 
confusion and misuse.
    Subparagraphs (i) and (ii) were added to the rule. They clarify the 
distinction between unreasonable multiplication of charges as applied 
to findings and to sentence. Although these concepts have existed for 
years (see Michael J. Breslin & LeEllen Coacher, Multiplicity and 
Unreasonable Multiplication of Charges: A Guide to the Perplexed, 45 
A.F. L. Rev. 99 (1998) for a history of the terms), they were not 
defined in previous editions of the Manual. The definitions were 
adopted from Quiroz, Campbell, and recommendations from Christopher S. 
Morgan, Multiplicity: Reconciling the Manual for Courts-Martial, 63 
A.F. L. Rev. 23 (2009). It is possible that two offenses are not 
unreasonably multiplied for findings but are so for sentencing; these 
additions explain how this can be so. See, e.g., Campbell, 71 M.J. at 
25 (military judge did not abuse his discretion by finding that there 
was not an unreasonable multiplication of charges as applied to 
findings but that there was an unreasonable multiplication of charges 
as applied to sentence).
    The discussion sections were added to address concerns that CAAF 
voiced in dicta in Campbell. In previous editions of the Manual, 
military judges often used the discussion section in R.C.M. 1003(c)(1) 
to determine when relief was warranted for unreasonable multiplication 
of charges as applied to sentence. The Campbell court stated in a 
footnote: ``It is our view that after Quiroz, the language in the 
Discussion to R.C.M. 1003(c)(1)(C) regarding `a single impulse or 
intent,' is dated and too restrictive. The better approach is to allow 
the military judge, in his or her discretion, to merge the offense for 
sentencing purposes by considering the Quiroz factors and any other 
relevant factor. . . .'' Campbell, 71 M.J. at 24 n.9. The Discussion 
was changed to address the Quiroz factors and remove any reference to 
the ``single impulse or intent'' test, as suggested by CAAF. The 
committee also decided to move the Discussion section from R.C.M. 
1003(b)(8)(C) to this rule because R.C.M. 1003 deals exclusively with 
sentencing and a motion for appropriate relief due to unreasonable 
multiplication of charges can be raised as an issue for findings or for 
sentence under this Rule. Therefore, it is more appropriate to address 
the issue here.
    For more information on multiplicity and how it relates to 
unreasonable multiplication of charges, see Michael J. Breslin & 
LeEllen Coacher, Multiplicity and Unreasonable Multiplication of 
Charges: A Guide to the Perplexed, 45 A.F. L. Rev. 99 (1998); 
Christopher S. Morgan, Multiplicity: Reconciling the Manual for Courts-
Martial, 63 A.F. L. Rev. 23 (2009); Gary E. Felicetti, Surviving the 
Multiplicty/LIO Family Vortex, Army Law., Feb. 2011, at 46.
    The language in the discussion section of the 2012 edition of the 
Manual referring to the Campbell decision was removed because it is no 
longer necessary, as the rules themselves have been edited to remove 
any reference to ``multiplicious for sentencing'' and additional 
discussion sections were added to eliminate any confusion with the 
terms.''
    (j) R.C.M. 907(b)(3)(B), insert the following language as a new 
paragraph after the existing paragraph:
    ``2016 Amendment: This rule and related discussion is the focal 
point for addressing claims of multiplicity. If a practitioner seeks to 
raise a claim for unreasonable multiplication of charges, that concept 
is addressed in R.C.M. 906(b)(12) and related discussion. The heading 
of this rule, which was added in 2016, signifies that this rule deals 
exclusively with multiplicity, and not unreasonable multiplication of 
charges. The discussion section of this rule was amended because the 
committee believed that a more thorough definition of multiplicity was 
appropriate in light of CAAF's suggestion in United States v. Campbell, 
71 M.J. 19, 23 (C.A.A.F. 2012), that the concepts of multiplicity and 
unreasonable multiplication of charges are often confounded.
    The discussion of multiplicity is derived from the Supreme Court's 
holding in Blockburger v. United States, 284 U.S. 299 (1932), and CMA's 
holding in United States v. Teters, 37 M.J. 370 (C.M.A. 1993). The 
Court in Blockburger wrote: ``[W]here the same act or transaction 
constitutes a violation of two distinct statutory provisions, the test 
to be applied to determine whether there are two offenses or only one, 
is whether each provision requires proof of a fact which the other does 
not.'' Blockburger, 284 U.S. at 304. Military courts departed from the 
Blockburger analysis; however, the CMA's decision in Teters clearly re-
aligned the military courts with the federal courts, and multiplicity 
is now determined in the military courts by the Blockburger/Teters 
analysis outlined in the discussion section. Any reference to the 
``single impulse'' or ``fairly embraced'' tests is outdated and should 
be avoided.
    Two offenses that arise from the same transaction may not be 
multiplicious, even if each does not require proof of an element not 
required to prove the other, if the intent of Congress was that an 
accused could be convicted of and punished for both offenses arising 
out of the same act. The Blockburger/Teters analysis applies only when 
Congress did not intend that the offenses be treated as separate. If 
Congress intended to subject an accused to multiple punishments for the 
same transaction, and that intent is clear, the Blockburger/Teters 
elements comparison is unnecessary. See, e.g., Missouri v. Hunter, 459 
U.S. 359, 368-69 (1983) (``[S]imply because two criminal statutes may 
be construed to proscribe the same conduct under the Blockburger test 
does not mean that the Double Jeopardy Clause precludes the imposition, 
in a single trial, of cumulative punishments pursuant to those 
statutes. . . . Where . . . a legislature specifically authorizes 
cumulative punishment under two statutes, regardless of whether those 
two statutes proscribe the `same' conduct under Blockburger, a court's 
task of statutory construction is at an end and the prosecutor may seek 
and the trial court or jury may impose cumulative punishment under such 
statutes in a single trial.'').
    The language in the discussion section of the 2012 edition of the 
Manual referring to the Campbell decision was removed because it is no 
longer necessary, as the Rules themselves have been edited to remove 
any reference to ``multiplicious for sentencing'' and additional 
discussion sections were added to eliminate any confusion with the 
terms.''
    (k) R.C.M. 916(b), insert the following language immediately 
following the paragraph beginning with the words ``2007 Amendment'':
    ``2016 Amendment: Changes to this paragraph are based on section 
541 of the National Defense Authorization Act for Fiscal Year 2012, 
P.L. 112-81, 31 December 2011, which superseded the previous paragraph 
45, ``Rape, sexual assault and other sexual misconduct,'' in its 
entirety and replaces paragraph 45 with ``Rape and sexual assault 
generally.'' In addition, the National Defense Authorization Act for 
Fiscal Year 2012 added paragraph 45b, ``Rape and sexual assault of a 
child,'' and paragraph 45c, ``Other sexual misconduct.''
    (l) R.C.M. 916(j), insert the following language immediately 
following the

[[Page 78587]]

paragraph beginning with the words ``2007 Amendment'':
    ``2016 Amendment: Changes to this paragraph are based on section 
541 of the National Defense Authorization Act for Fiscal Year 2012, 
P.L. 112-81, 31 December 2011, which superseded the previous paragraph 
45, ``Rape, sexual assault and other sexual misconduct,'' in its 
entirety and replaces paragraph 45 with ``Rape and sexual assault 
generally.'' In addition, the National Defense Authorization Act for 
Fiscal Year 2012 added paragraph 45b, ``Rape and sexual assault of a 
child,'' and paragraph 45c, ``Other sexual misconduct.''
    Paragraph (j)(3) was deleted. The rule reflects changes to Article 
120. The Court of Appeals for the Armed Forces ruled that the statutory 
burden shift to the accused in the 2007 version of Article 120 was 
unconstitutional and the subsequent burden shift to the government to 
disprove consent beyond a reasonable doubt once the accused had raised 
the affirmative defense of consent by a preponderance of the evidence 
resulted in a legal impossibility. United States v. Prather, 69 M.J. 
338 (C.A.A.F. 2011); United States v. Medina, 69 M.J. 462 (C.A.A.F. 
2011).''
    (m) R.C.M. 920(e)(5)(D), insert the following language immediately 
following the paragraph beginning with the words ``2007 Amendment'':
    ``2016 Amendment: Changes to this paragraph are based on section 
541 of the National Defense Authorization Act for Fiscal Year 2012, 
P.L. 112-81, 31 December 2011, which superseded the previous paragraph 
45, ``Rape, sexual assault and other sexual misconduct,'' in its 
entirety and replaces paragraph 45 with ``Rape and sexual assault 
generally.'' In addition, the National Defense Authorization Act for 
Fiscal Year 2012 added paragraph 45b, ``Rape and sexual assault of a 
child,'' and paragraph 45c, ``Other sexual misconduct.'' ''
    (n) R.C.M. 1003(c)(1)(C), delete the paragraph beginning with the 
words the ``2012 Amendment'' and insert in its place:
    ``2016 Amendment: This rule was amended. The language in previous 
editions of the Manual seemed to suggest that an accused could not be 
punished for offenses that were not separate. This is true only if 
there is no express statement from Congress indicating that an accused 
can be punished for two or more offenses that are not separate. See 
R.C.M. 907(b)(3) and related analysis. Subsections (i) and (ii) were 
added to distinguish between claims of multiplicity and unreasonable 
multiplication of charges. As the two concepts are distinct, it is 
important to address them in separate subsections. See R.C.M. 
906(b)(12) for claims of unreasonable multiplication of charges and 
R.C.M. 907(b)(3)(B) for claims of multiplicity.
    Additionally, the committee decided to move the discussion of the 
factors in United States v. Quiroz, 55 M.J. 334 (C.A.A.F. 2001), from 
this rule to R.C.M. 906(b)(12) because the factors apply to 
unreasonable multiplication of charges as applied to findings as well 
as sentence. Because this Rule refers only to sentencing, it is more 
appropriate to address the military judge's determination of 
unreasonable multiplication in R.C.M. 906(b)(12), because that Rule 
covers both findings and sentence. See R.C.M. 906(b)(12) and related 
analysis.
    The language in the discussion section of the 2012 edition of the 
Manual referring to the Campbell decision was removed. Such language is 
no longer necessary, as the Rules themselves have been edited to remove 
any reference to ``multiplicious for sentencing'' and the discussion 
section of R.C.M. 906(b)(12) addresses the Quiroz factors.''
    (o) R.C.M. 1004(c)(7)(B), insert the following language immediately 
following the paragraph beginning with the words ``1994 Amendment'' and 
immediately prior to the paragraph beginning with the words ``1986 
Amendment'':
    ``2016 Amendment: Changes to this paragraph reflect section 541 of 
the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-
81, 31 December 2011, which superseded the previous paragraph 45, 
``Rape, sexual assault and other sexual misconduct,'' in its entirety 
and replaces paragraph 45 with ``Rape and sexual assault generally.'' 
In addition, the National Defense Authorization Act for Fiscal Year 
2012 added paragraph 45b, ``Rape and sexual assault of a child,'' and 
paragraph 45c, ``Other sexual misconduct.'' ''
    (p) R.C.M. 1004(c)(8), insert the following language immediately 
following the paragraph beginning with the words ``1991 Amendment'':
    ``2016 Amendment: Changes to this paragraph reflect section 541 of 
the National Defense Authorization Act for Fiscal Year 2012, P.L. 112-
81, 31 December 2011, which superseded the previous paragraph 45, 
``Rape, sexual assault and other sexual misconduct,'' in its entirety 
and replaces paragraph 45 with ``Rape and sexual assault generally.'' 
In addition, the National Defense Authorization Act for Fiscal Year 
2012 added paragraph 45b, ``Rape and sexual assault of a child,'' and 
paragraph 45c, ``Other sexual misconduct.'' ''
    Section 7. Appendix 23 of the Manual for Courts-Martial, United 
States, is amended as follows:
    (a) Paragraph 3.b.(4), Article 79, Lesser included offenses, 
Specific lesser included offenses, is amended by deleting the 
paragraphs beginning with the words ``2012 Amendment'' and ending with 
``(C.A.A.F. 2008).'' and inserting in their place:
    ``2016 Amendment: See analysis in paragraph 3.b.(1) above. Lesser 
included offenses (LIO) listings were removed from each punitive 
article in paragraphs 1-113 (except paragraphs 1 and 3), Part IV, and 
were moved to a new Appendix 12A. The LIO listings are determined based 
on the elements of the greater offense, but are not binding. Therefore, 
practitioners should use Appendix 12A only as a guide. To determine if 
an offense is lesser included, the elements test must be used. United 
States v. Jones, 68 M.J. 465, 470 (C.A.A.F. 2010). The offenses are not 
required to possess identical statutory language; rather, the court 
uses normal principles of statutory construction to determine the 
meaning of each element. See id. at 470-73; United States v. Oatney, 45 
M.J. 185 (C.A.A.F. 1996); Schmuck v. United States, 489 U.S. 705 
(1989).
    Article 134 offenses generally will not be lesser included offenses 
of enumerated offenses in Articles 80-133. See United States v. 
Girouard, 70 M.J. 5 (C.A.A.F. 2011); United States v. McMurrin, 70 M.J. 
15 (C.A.A.F. 2011). Article 134 specifications must contain the 
``terminal element.'' See paragraphs 60.b and 60.c.(6)(a) in Part IV. 
See also United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011); United 
States v. Ballan, 71 M.J. 28 (C.A.A.F. 2012); R.C.M. 307(c)(3).''
    (b) Paragraph 43.a, Article 118, Murder, is amended by adding the 
following language:
    ``2012 Amendment: This statute was modified pursuant to section 541 
of the National Defense Authorization Act for Fiscal Year 2012, P.L. 
112-81, 31 December 2011, to conform to renamed sexual assault offenses 
in Article 120 and Article 120b. The changes took effect on 28 June 
2012.''
    (c) Paragraph 45, Article 120, Rape and sexual assault generally, 
the first paragraph of the analysis beginning with the word ``2012'' 
and ending with the number ``28'' is amended to read as follows:
    ``2012 Amendment: This paragraph was substantially revised by 
section 541 of the National Defense Authorization

[[Page 78588]]

Act for Fiscal Year 2012, P.L. 112-81, 31 December 2011. Amendments 
contained in this section took effect on 28 June 2012. Sec. 541(f), 
P.L. 112-81. On 28 June 2012, a modified paragraph 45, ``Rape and 
sexual assault generally,'' replaced the 2007 version of paragraph 45, 
``Rape, sexual assault, and other sexual misconduct.'' The analysis 
related to prior versions of Article 120 is located as follows: For 
offenses committed prior to 1 October 2007, see Appendix 27; for 
offenses committed during the period 1 October 2007 through 27 June 
2012, see Appendix 28.''
    (d) Paragraph 45, Article 120, Rape and sexual assault generally, 
is amended by deleting subparagraphs b, c, d, e, and f.
    (e) Paragraph 45, Article 120b, Rape and sexual assault of a child, 
is amended by inserting ``b'' after ``45''.
    (f) Paragraph 45b, Article 120b, Rape and sexual assault of a 
child, is amended by deleting subparagraphs b, c, d, e, and f.
    (g) Paragraph 45c, Article 120c, Other sexual misconduct, is 
amended by deleting subparagraphs b, c, d, e, and f.
    (h) Paragraph 51, Article 125, Sodomy, is amended by changing the 
title to ``Forcible Sodomy'' and adding the following language at the 
beginning:
    ``2016 Amendment: Paragraph 51 was amended pursuant to section 1707 
of the National Defense Authorization Act for Fiscal Year 2014, P.L. 
113-66, 26 December 2013. Additionally, all applicable references to 
sodomy throughout the Manual were changed to ``forcible sodomy'' to 
reflect the decriminalization of consensual sodomy under the UCMJ.''
    (i) Paragraph 60.c.(6)(a) is amended to read as follows:
    ``2016 Amendment: In 2012 the Manual was amended to address the 
changes in practice resulting from the holding in United States v. 
Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2016, the President required 
that the terminal element be expressly alleged in every Article 134 
specification.
    The President ended the historical practice of allowing the 
terminal element to be inferred from Article 134 specifications, see, 
e.g. United States v. Mayo, 12 M.J. 286 (C.M.A. 1982), and required the 
terminal element be expressly alleged to provide sufficient notice to 
the accused and for uniformity and consistency in practice. See Fosler, 
70 M.J. at 227-28. In general, when drafting specifications, the 
Government must allege every element, either expressly or by necessary 
implication. See R.C.M. 307(c)(3). However, in Article 134 
specifications, the accused must be given notice as to which clause or 
clauses he must defend against; therefore, the terminal element may not 
be inferred from a specification.
    Although a single terminal element is required, there are three 
theories of liability that would satisfy the terminal element: a 
disorder or neglect to the prejudice of good order and discipline 
(under clause 1); conduct of a nature to bring discredit upon the armed 
forces (under clause 2); or a crime or offense not capital (under 
clause 3). The three clauses are ``distinct and separate.'' Fosler, 70 
M.J. at 230. A single theory may be alleged, or clauses 1 and 2 may be 
combined. While it is not prohibited to combine clauses 1, 2, and 3 in 
one specification, such a combination is not practical.
    When charging both clauses 1 and 2, practitioners are encouraged to 
use the word ``and'' to separate the theories in one specification, 
rather than using the word ``or'' to separate the theories. 
Practitioners may also allege two separate specifications. At findings, 
the Trial Counsel or Military Judge must make certain that the record 
is clear as to whether the trier of fact found that clause 1, clause 2, 
or both clauses were proven beyond a reasonable doubt. Using the word 
``and'' to separate clauses 1 and 2 in the terminal element allows the 
trier of fact to except the unproven clause from the specification. 
This approach forces intellectual rigor in analyzing each clause as 
distinct and separate. Nothing in this analysis should be read to 
suggest that a specification connecting the two theories with the 
disjunctive ``or'' necessarily fails to give the accused reasonable 
notice of the charge against him. See United States v. Rauscher, 71 
M.J. 225, 226 (C.A.A.F. 2012) (per curiam) (citing Russell v. United 
States, 369 U.S. 749, 765 (1962)).''
    (j) Paragraph 60.c.(6)(b) is amended by deleting the paragraph 
beginning with the words ``2012 Amendment'' and ending ``above.'', and 
inserting in its place:
    ``2016 Amendment: New discussion was added in 2012 to address 
United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011). In 2016, that 
discussion was removed after paragraph 60 was amended by Executive 
Order. See analysis under subparagraph c.(6)(a) above.''
    (k) Paragraph 62.c.(2) is amended to read as follows:
    ``(2) When determining whether adulterous acts constitute the 
offense of adultery under Article 134, commanders should consider the 
listed factors. The offense of adultery is intended to prohibit 
extramarital sexual behavior that directly affects the discipline of 
the armed forces, respect for the chain of command, or maintenance of 
unit cohesion. The intent of this provision is to limit the crime of 
adultery to those situations where the negative impact to the unit is 
real rather than theorized. This provision should not be interpreted to 
criminalize sexual practices between two adults with full and mutual 
consent from each other, but rather, to punish the collateral negative 
effects of extramarital sexual activity when there exists a genuine 
nexus between that activity and the efficiency and effectiveness of the 
armed forces. Cf. United States v. Marcum, 60 M.J. 198, 204-08 
(C.A.A.F. 2004) (despite constitutionally protected liberty interest in 
private sexual behavior between consenting adults, military may 
regulate sexual conduct to the extent it could affect military order 
and discipline).
    While each commander has discretion to dispose of offenses by 
members of the command, wholly private and consensual sexual conduct 
between adults is generally not punishable under this paragraph. The 
right to engage in such conduct, however, is tempered in a military 
context by the mission of the military, the need for cohesive teams, 
and the need for obedience to orders. Cases involving fraternization or 
other unprofessional relationships may be more appropriately charged 
under Article 92 or Article 134--Fraternization. Cases involving abuse 
of authority by officers may be more appropriately charged under 
Article 133.
    Rule for Courts-Martial 306(b) advises commanders to dispose of 
alleged offenses at the lowest appropriate level. As the R.C.M. 306(b) 
discussion states, many factors must be taken into consideration and 
balanced, including, to the extent practicable, the nature of the 
offense, any mitigating or extenuating circumstances, any 
recommendations made by subordinate commanders, the interests of 
justice, military exigencies, and the effect of the decision on the 
military member and the command. The goal should be a disposition that 
is warranted, appropriate, and fair. In the case of officers, also 
consult the explanation to paragraph 59 of Part IV in deciding how to 
dispose of an allegation of adultery.''
    (l) Paragraph 90 is amended to read as follows:
``90. Article 134--(Indecent Conduct)
    Introduction. This offense is new to the Manual for Courts-Martial 
and was promulgated pursuant to Executive Order 13740 of 16 September 
2016. It

[[Page 78589]]

includes offenses previously proscribed by ``Indecent acts with 
another,'' which was deleted pursuant to Executive Order 13447 of 1 
October 2007, except that the presence of another person is not 
required. (m) Paragraph 97, Article 134 (Pandering and prostitution) is 
amended by adding the following language:
    ``2016 Amendment: Paragraph 97 was amended to broaden the 
definition of prostitution and pandering to include all sexual acts, 
not just sexual intercourse. This amendment included the removal of the 
language in paragraph 97.c suggesting that engaging in sodomy for money 
or compensation could be charged under paragraph 51 (Article 125--
Sodomy). Pursuant to section 1707 of the National Defense Authorization 
Act for Fiscal Year 2014, P.L. 113-66, 26 December 2013, consensual 
sodomy is no longer a crime under the UCMJ and Article 125 is not an 
appropriate charge for the consensual exchange of money for sodomy. The 
definition of prostitution for this offense differs from the definition 
of prostitution in Article 120c. Congress provided a broader definition 
of prostitution when criminalizing forcible pandering.

    Dated: November 3, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-26947 Filed 11-7-16; 8:45 am]
 BILLING CODE 5001-06-P