[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]
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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).
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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 [email protected]. 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.
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(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.
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(h) Article 134 Indecent conduct is inserted to read as follows:
----------------------------------------------------------------------------------------------------------------
Offense Discharge Confinement Forfeiture
----------------------------------------------------------------------------------------------------------------
134 Indecent conduct................ DD, BCD................ 5 yrs.................. Total.''
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(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