[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Notices]
[Pages 27494-27497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12631]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
Manual for Courts-Martial
AGENCY: Joint Service Committee on Military Justice (JSC).
ACTION: Notice of proposed amendment.
-----------------------------------------------------------------------
SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States, 1984, Executive Order
No. 12473, as amended by Executive Order Nos. 12484, 12550, 12586,
12708, 12767, 12888, and 12936. The proposed changes are part of the
1995 annual review required by the Manual for Courts-Martial and DoD
Directive 5500.17. ``Review of the Manual for Courts-Martial,'' January
23, 1985.
The proposed changes have not been coordinated within the
Department of Defense under DoD Directive 5500.1, ``Preparation and
Processing of Legislation, Executive Orders, Proclamations, and Reports
and Comments Thereon'', May 21, 1964, and do not constitute the
official position of the Department of Defense, the Military
Departments, or any other government agency.
This notice is provided in accordance with DoD Directive 5500.17,
``Review of the Manual for Courts-Martial'', January 23, 1985. This
notice is intended only to improve the internal management of the
Federal government. It is not intended to create any right or benefit,
substantive or procedural, enforceable at [[Page 27495]] law by a party
against the United States, its agencies, its officers, or any person.
The proposed changes follow in their entirety: R.C.M. 305(g), et
seq., is amended to read as follows: (g) Who may direct release from
confinement. Any commander of a prisoner, an officer appointed under
regulations of the Secretary concerned to conduct the review under
subsections (i) and/or (j) of this rule, or, once charges have been
referred, a military judge detailed to the court-martial to which the
charges against the accused have been referred may direct release from
pretrial confinement. For the purposes of this subsection, ``any
commander'' includes the immediate or higher commander of the prisoner
and the commander of the installation on which the confinement facility
is located. (h) Notification and action by commander.
(1) Report. Unless the commander of the prisoner ordered the
pretrial confinement, the commissioned, warrant, noncommissioned, or
petty officer in to whose charge the prisoner was committed shall,
within 24 hours after that commitment, cause to be made a report to the
commander which shall contain the name of the prisoner, the offenses
charged against the prisoner, an the name of the person who ordered or
authorized confinement.
(2) Action by commander.
(A) Decision. Not later than 72 hours after the commander's
ordering of a prisoner into pretrial confinement, or after receipt of a
report that a member of the commander's unit or organization has been
confined, whichever situation is applicable, the commander shall decide
whether pretrial confinement will continue. A commander complying with
RCM 305(d), or this subsection, may also satisfy the probable cause
review of subsection RCM (i)(1) and (2) below, provided the commander
is a neutral and detached officer and acts within 48 hours of the
imposition of confinement under the military's control.
(B) Requirements for confinement. The commander shall direct the
prisoner's release from pretrial confinement unless the commander
believes upon probable cause, that is, upon reasonable grounds, that:
(i) An offense triable by a court-martial has been committed;
(ii) The prisoner committed it; and
(iii) Confinement is necessary because it is foreseeable that:
(a) The prisoner will not appear at trial, pretrial hearing, or
investigation, or
(b) The prisoner will engage in serious criminal misconduct; and
(iv) Less severe forms of restraint are inadequate.
Serious criminal misconduct includes intimidation of witnesses or
other obstruction of justice, seriously injuring others, or other
offenses which pose a serious threat to the safety of the community or
to the effectiveness, morale, discipline, readiness, or safety of the
command, or to the national security of the United States. As used in
this rule, ``national security'' means the national defense and foreign
relations of the United States and specifically includes: military or
defense advantage over any foreign nation or group of nations; a
favorable foreign relations position; or a defense posture capable of
successfully resisting hostile or destructive action from within or
without, overt or covert.
(C) Memorandum. If continued pretrial confinement is approved, the
commander shall prepare a written memorandum which states the reasons
for the conclusion that the requirements for confinement in subsection
(h)(2)(B) of this rule have been met. This memorandum may include
hearsay and may incorporate by reference other documents, such as
witness statements, investigative reports, or official records. This
memorandum shall be forwarded to the 7 day reviewing officer under
subsection (i) of this rule. If such a memorandum was prepared by the
commander before ordering confinement, a second memorandum need not be
prepared, however, additional information may be added to the
memorandum at any time.
(i) Procedures for review of pretrial confinement.
(1) Preliminary review. Review of the adequacy of probable cause to
continue pretrial confinement shall be made by a neutral and detached
officer within 48 hours of imposition of confinement under military
control. If the prisoner was apprehended by civilian authorities and
remains in civilian custody at the request of military authorities,
reasonable efforts will be made to bring the prisoner under military
control in a timely fashion. In calculating the number of days of
confinement for purposes of this rule, the initial date of confinement
shall count as one day and the date of the review shall also count as
one day.
(2) By whom made. The review under subsection (1) shall be made by
a neutral and detached officer. A determination made by a commanding
officer under subsection (d) or (h) of this rule satisfies this
requirement.
(3) 7 Day Review. Within 7 days of the imposition of confinement, a
neutral and detached officer appointed in accordance with regulations
prescribed by the Secretary concerned shall review the probable cause
determination and necessity for continued pretrail confinement.
(4) Nature of the 7 day review.
(A) Matters considered. The review under this subsection shall
include a review of the memorandum submitted by the prisoner's
commander under subsection (h)(2)(C) of this rule. Additional written
matters may be considered, including any submitted by the accused. The
prisoner, and the prisoner's counsel, if any, shall be allowed to
appear before the reviewing officer and make a statement, if
practicable. A representative of the command may appear before the
reviewing officer to make a statement.
(B) Rules of evidence. Except for Mil. R. Evid., Section V
(Privileges) and Mil R. Evid 302 and 305, the Military Rules of
Evidence shall not apply to the matters considered.
(C) Standard of proof. The requirements for confinement under
subsection (h)(2)(B) of this rule must be proved by a preponderance of
the evidence.
(5) Extension of time limit. The reviewing officer may, for good
cause, extend the time limit for completion of the initial review to 10
days after the imposition of pretrial confinement.
(6) Action by reviewing officer. Upon completion of review, the
reviewing officer shall approve continued confinement or order
immediate release.
(7) Memorandum. The reviewing officer's conclusions, including the
factual findings on which they are based, shall be set forth in a
written memorandum. A copy of the memorandum and of all documents
considered by the reviewing officer shall be maintained in accordance
with regulations prescribed by the Secretary concerned and provided to
the accused or the Government on request.
(8) Reconsideration of approval of continued confinement. The
reviewing officer shall, after notice to the parties, reconsider the
decision to confine the prisoner upon request based upon any
significant information not previously considered.
(j) Review by military judge. Once the charges for which the
accussed has been confined are referred to trial, the military judge
shall review the propriety of the pretrial confinement upon motion for
appropriate relief.
(1) Release. The military judge shall order release from pretrial
confinement only if:
(A) The reviewing officer's decision was an abuse of discretion,
and there is not sufficient information presented to [[Page 27496]] the
military judge justifying continuation of pretrial confinement under
subsection (h)(2)(B) of this rule;
(B) Information not presented to the reviewing officer establishes
that the prisoner should be released under subsection (h)(2)(B) of this
rule; or
(C) The provisions of subsection (i) (2) or (3) of this rule have
not been complied with and information presented to the military judge
does not establish sufficient grounds for continued confinement under
subsection (h)(2)(B) of this rule.
(2) Pretrial Confinement Credit. The military judge shall order
administrative credit under subsection (k) of this rule for any
pretrial confinement served. A military judge shall order 1 day credit
for each day of confinement served in anticipation of trial by courts-
martial, and may order more than 1 day credit for each day served as a
result of abuse of discretion or of failure to comply with the
provisions of subsection (f), (h), or (i) of this rule. The military
judge may order additional credit for each day of pretrial confinement
considered illegal or which involves unusually harsh circumstances.
Appendix 21, R.C.M. 305 Amendments be amended by inserting the
following at the end of section R.C.M. 305(i) Amendments:
1995 Amendment: The amendment to subsections (h)(2)(A) and (i)
conforms military practice to the 48-hour probable cause review
required by County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and
United v. Rexroat, 38 M.J. 292 (C.M.A. 1993). Rexroat, which applies
McLaughlin to courts-martial, requires that after an accused is ordered
into pretrial confinement, a neutral and detached official must review
the probable cause for continued pretrial confinement within 48 hours.
Rexroat makes clear that this neutral and detached official may be a
commander, but this is not required. Additionally, nothing in this
amendment prohibits the commander initially ordering an accused into
pretrial confinement under subsection (d) from conducting the 48-hour
probable cause review required by the subsection (i) (1) and (2), or
the 72-hour review required by subsection (h)(2)(A), or all three
actions, provided that commander is neutral and detached within the
meaning of United States v. Ezell, 6 M.J. 307, 318-319 (C.M.A. 1979),
and United States v. Lopex, 35 M.J. 35, 41 Rule 1109. Vacation of
suspension of sentence Rule 1109(d), is amended to read as follows:
(d) Vacation of suspended general court-martial sentence or of a
special court-martial sentence including a suspended bad-conduct
discharge.
Rule 1109(d)(1)(A), is amended to read as follows:
(A) In general. Before vacation of the suspension of any general
court-martial sentence, or of special court-martial sentence which, as
approved, includes a suspended bad-conduct discharge, the officer
having special court-martial jurisdiction over the probationer shall
personally hold a hearing on the alleged violation of the conditions of
suspension. If there is no officer having special court-martial
jurisdiction over the accused, who is subordinate to the officer having
general court-martial jurisdiction over the accused, the officer
exercising general court-marital jurisdiction over the accused shall
personally hold the hearing under subsection (d)(1) of this rule. In
such cases, subsection (d)(1)(D) of this rule shall not apply.
(1) Action by officer having special court-martial jurisdiction
over probationer.
Rule 1109(e), is amended to read as follows:
(e) Vacation of suspended special court-martial sentence not
including a suspended bad-conduct discharge or of a suspended summary
court-martial sentence.
Rule 1109(e)(1), is amended to read as follows:
(1) In general. Before a vacation of the suspension of the special
court-marital sentence not including a suspended bad-conduct discharge
or of a summary court-martial sentence, the officer having authority to
convene for the command in which the probabtioner is serving or
assigned to same kind of court-martial which imposed the sentence shall
cause a hearing to be held on the alleged violation(s) of the
conditions of suspension.
The following discussion section shall be inserted after R.C.M.
1109(e)(5):
Discussion
If the special court-martial includes an approved bad conduct
discharge, and suspended lesser punishments, the special court-martial
convening authority may approve the vacation of lesser punishments.
Appendix 21, R.C.M. 1109 Amendments be amended by inserting the
following at the end thereof:
1995 Amendment: The Rule is amended to clarify that ``the
suspension of a special court-martial sentence which as approved
includes a bad-conduct discharge,'' permits the officer exercising
special court-martial jurisdiction to vacate any suspended punishments
other than an approved suspended bad conduct discharge.
M.R.E. 1102 is amended to read as follows:
Substantive amendments to the Federal Rules of Evidence, in so far
as they affect criminal proceedings, shall apply to the Military Rules
of Evidence 180 days after the effective date of such amendments unless
action to the contrary is taken by the President.
Appendix 22, Rule 1102 Amendments be amended by inserting the
following at the end thereof:
1995 Amendment: The rule is modified to more clearly reflect the
Committee's original intent that the Federal Rules of Evidence apply to
the armed forces ``to the extent practicable''. The new language is
intended to insure that only changes which affect the substantive
criminal practice, as opposed to technical language of the rule, are
automatically applicable to the armed forces.
Part IV of the Manual for Courts-Martial, United States, 1984, be
amended by inserting the following new paragraph after paragraph 97:
97a. Article 134--(Parole, Violation of)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused was a prisoner as the result of a court-
martial conviction;
(2) That the accused was on parole;
(3) That the conditions of parole were that (____________);
(4) That the accused violated the conditions of his parole by doing
an act or failing to do an act;
(5) That the conduct was to the prejudice of good or discipline in
the armed forces or was of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) ``Prisoner'' refers only to those in confinement resulting from
conviction at a court-martial or other criminal proceedings.
(2) ``Parole'' is defined as ``word or honor.'' A prisoner on
parole, or parolee, has agreed to adhere to a parole plan and
conditions of parole. A ``parole plan'' is a written or oral agreement
made by the prisoner prior to parole to do or refrain from doing
certain acts or activities. A parole plan may include a residence
requirement stating where and with whom a parolee will live, and a
requirement that the prisoner have an offer of guaranteed employment.
``Conditions of parole'' include the parole plan and other reasonable
and appropriate conditions of parole, such as paying restitution,
beginning or continuing treatment for alcohol or drug abuse, or paying
a fine ordered executed as part of the prisoner's court-martial
sentence. In return for giving his or her ``word of honor'' to abide by
a parole [[Page 27497]] plan and conditions of parole, the prisoner is
granted parole.
d. Lesser included offense. Article 80--attempts.
e. Maximum punishment. Bad conduct discharge, confinement for 6
months and forfeiture of two-thirds pay per month for 6 months.
f. Sample specification.
In that ________________ (personal jurisdiction data), a prisoner
on parole, did, (at/on board--location), on or about ____________,
199____, violate the conditions of his parole by ____________.
ADDRESSES: Copies of the proposed changes may be examined at the Office
of the Judge Advocate General, Criminal Law Division, Building 111,
Washington Navy Yard, Washington, DC 20374-1111. A copy of the proposed
changes may be obtained by mail upon request from the foregoing
address, ATTN: LT Kristen M. Henrichsen.
DATES: Comments on the proposed changes must be received no later than
August 7, 1995, for consideration by the Joint Service Committee on
Military Justice.
FOR FURTHER INFORMATION CONTACT: LT Kristen M. Henrichsen, JAGC, USN,
Executive Secretary, Joint Service Committee on Military Justice,
Office of the Judge Advocate General, Criminal Law Division, Building
111, Washington Navy Yard, Washington, DC 20374-1111; (202) 433-5895.
Dated: May 18, 1995.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 95-12631 Filed 5-23-95; 8:45 am]
BILLING CODE 5000-04-M