MANUAL FOR
COURTS-MARTIAL
UNITED STATES
(2024 EDITION)
MANUAL
FOR
COURTS-MARTIAL
UNITED STATES
(2024 EDITION)
PREFACE
The Manual for Courts-Martial (MCM), United States (2024 edition) updates the MCM
(2019 edition) and MCM (2023 edition). It is a complete republishing and incorporates the
promulgation of and amendments to the Preamble, Rules for Courts-Martial, Military Rules of
Evidence, Punitive Articles, Nonjudicial Punishment Procedure, and Appendices 12A-D made
by the President in Executive Orders (E.O.) 12473 of April 13, 1984, to present and specifically
including E.O. 14062 (January 26, 2022) and E.O. 14103 (July 28, 2023). This edition also
contains amendments to the Uniform Code of Military Justice made by the National Defense
Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198 (2019); the William
M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No.
116-283, 134 Stat. 3388 (2020); the National Defense Authorization Act for Fiscal Year 2022,
Pub. L. No. 117-81, 135 Stat. 1541 (2021); and the James M. Inhofe National Defense
Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263, 136 Stat. 2395 (2022). Finally,
this edition incorporates amendments to the Appendices and the supplementary materials
accompanying the MCM. These items are available at the Joint Service Committee on Military
Justice’s website at https://jsc.defense.gov.
JOINT SERVICE COMMITTEE ON MILITARY JUSTICE
i
CONTENTS
Page
PART I PREAMBLE
1. Sources of military jurisdiction ....................................................... I-1
2. Exercise of military jurisdiction ...................................................... I-1
(a) Kinds. ......................................................................... I-1
(b) Agencies. ....................................................................... I-1
3. Nature and purpose of military law .................................................... I-1
4. The Evolving Military Justice System ................................................. I-1
5. Structure and application of the Manual for Courts-Martial ............................... I-2
PART II RULES FOR COURTS–MARTIAL
CHAPTER I GENERAL PROVISIONS
Rule 101. Scope, title.................................................................. II-1
(a) In general ....................................................................... II-1
(b) Title ........................................................................... II-1
Rule 102. Purpose and construction ..................................................... II-1
(a) Purpose ......................................................................... II-1
(b) Construction .................................................................... II-1
Rule 103. Denitions and rules of construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-1
Rule 104. Command inuence .......................................................... II-7
............................................................... II-7
.
..................................... II-7
.................................................. II-8
(a) General prohibitions
(b) Communication between superiors and subordinates
(c) Prohibitions concerning evaluations
(d) Command discretion
.............................................................. II-8
Rule 105. Direct communications: convening authorities and sta judge advocates;
among sta judge advocates; with special trial counsel ...................................... II-8
(a) Conveningauthoritiesandstajudgeadvocates ........................................ II-8
(b)AmongstajudgeadvocatesandwiththeJudgeAdvocateGeneral.......................... II-8
(c) Communicationsamongspecialtrialcounsel,stajudgeadvocates,andconveningauthorities ... II-8
Rule 106. Delivery of military oenders to civilian authorities ................................ II-9
Rule 107. Dismissed ocer’s right to request trial by court-martial ........................... II-9
Rule 108. Rules of court ............................................................... II-9
Rule 109. Professional supervision of military judges and counsel ............................ II-9
(a) In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... II-9
(b) Action after suspension or disbarment ................................................. II-9
(c) Investigationofjudges ............................................................ II-9
CHAPTER II. JURISDICTION
Rule 201. Jurisdiction in general . ....................................................... II-12
(a) Natureofcourts-martialjurisdiction .................................................. II-12
(b) Requisitesofcourt-martialjurisdiction................................................. II-12
(c) [Reserved] ...................................................................... II-13
(d) Exclusiveandnonexclusivejurisdiction ............................................... II-13
(e) Reciprocaljurisdiction ............................................................. II-13
(f) Types of courts-martial ............................................................. II-14
(g) Concurrentjurisdictionofothermilitarytribunals ....................................... II-16
Rule 202. Persons subject to the jurisdiction of courts-martial ............................... II-16
ii
(a) In general....................................................................... II-16
(b) Oensesunderthelawofwar....................................................... II-18
(c) Attachmentofjurisdictionovertheperson ............................................. II-18
Rule 203. Jurisdiction over the oense ................................................... II-18
Rule 204. Jurisdiction over certain reserve component personnel ............................. II-18
(a) Service regulations ................................................................ II-18
(b) Courts-Martial ................................................................... II-18
(c) Applicability ..................................................................... II-19
(d) Changes in type of service.......................................................... II-19
CHAPTER III. INITIATION OF CHARGES; APPREHENSION; PRETRIAL RESTRAINT;
RELATED MATTERS
Rule 301. Report of offense..
...........................................................
II-20
.................................................................. II-20
.
.
.
.
.
...............................................
. II-20
(a) Who may report
(b) To whom reports are conveyed
(c) Special trial counsel.
.............................................................. II-20
Rule 302. Apprehension ............................................................... II-20
(a) Denitionandscope ..............................................................
II-20
(b) Who may apprehend .............................................................. II-21
(c) Grounds for apprehension .......................................................... II-21
(d) How an apprehension may be made .................................................. II-21
(e) Where an apprehension may be made................................................. II-21
Rule 303. Preliminary inquiry into reported oenses........................................ II-22
Rule 303A. Determination by special trial counsel to exercise authority ........................ II-23
(a) Initial determination .............................................................. II-23
(b) Coveredoense.................................................................. II-23
(c) Relatedoenses.................................................................. II-23
(d) Knownoenses .................................................................. II-23
(e) Noticationtocommand ........................................................... II-23
Rule 304. Pretrial restraint ............................................................ II-23
.
.......................................................... II-23
..................................................... II-23
.................................................... II-24
.............................................. II-24
......................................................... II-24
............................................................ II-24
......................................................................... II-24
(a) Types of pretrial restraint
(b)
Who may order pretrial restraint
(c) When a person may be restrained
(d) Procedures for ordering pretrial restraint
(e) Notice of basis for restraint
(f) Punishment prohibited.
(g) Release
(h) Administrative restraint............................................................ II-24
Rule 305. Pretrial connement ......................................................... II-25
(a) In general ....................................................................... II-25
(b) Whomaybeconned.............................................................. II-25
(c) Whomayorderconnement ........................................................ II-25
(d) Whenapersonmaybeconned ..................................................... II-25
(e)Advicetotheaccuseduponconnement ............................................... II-25
(f) NoticationtoSpecialTrialCounsel.................................................. II-25
(g) Military counsel .................................................................. II-25
(h) Whomaydirectreleasefromconnement ............................................. II-25
(i) Noticationandactionbycommander. ................................................ II-26
(j) Proceduresforreviewofpretrialconnement........................................... II-27
iii
(k) Reviewbymilitaryjudge. .......................................................... II-28
(l) Remedy ........................................................................ II-28
(m) Connementafterrelease .......................................................... II-28
(n) Exceptions ...................................................................... II-28
(o) Noticetovictimofescapedconnee ................................................. II-29
Rule 306. Initial disposition of oenses over which special trial counsel does not exercise authority II-29
(a) Whomaydisposeofoenses. ....................................................... II-29
(b) Policy.......................................................................... II-29
(c) Dispositionofoenses ............................................................ II-29
(d) National security matters........................................................... II-30
(e)
Sex-relatedoffenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II-30
Rule 306A. Initial disposition of oenses over which a special trial counsel exercises authority..... II-31
(a) Dispositionofoensesthatarenotthesubjectofpreferredcharges.......................... II-31
(b) Dispositionofapreferredspecication................................................ II-31
(c) National security matters........................................................... II-31
(d) Sex-relatedoenses............................................................... II-31
Rule 307. Preferral of charges .......................................................... II-31
....................................................................... II-31
....
................................................
. II-32
....
.......................................................... II-32
(a) In general
(b) How charges are
preferred; oath
(c) Howtoallegeoffenses
(d) Harmless error in citation
........................................................... II-35
Rule 308. Notication to accused of charges and required disclosures.......................... II-35
(a) Immediate commander. ............................................................ II-35
(b) Commanders at higher echelons ..................................................... II-35
(c) Disclosures generally .............................................................. II-35
(d) Informationnotsubjecttodisclosure ................................................. II-35
Rule 309. Pre-referral judicial proceedings ............................................... II-36
....................................................................... II-36
............................................................... II-36
..........................................................
II-37
.......................................................................
II-37
.........................................................................
II-37
(a) In general
(b) Pre-referral matters
(c) Procedure for submissions
(d) Hearings
(e) Record
(f) Military magistrate
...............................................................
II-37
CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES
Rule 401. Forwarding and disposition of charges in general ................................. II-38
(a) Who may dispose of charges. ....................................................... II-38
(b) Prompt determination ............................................................. II-38
(c) How charges may be disposed of. .................................................... II-38
Rule 401A. Disposition of charges over which a special trial counsel exercises authority
and has not deferred ................................................................. II-39
(a) Whomaydisposeofpreferredspecications............................................ II-39
(b) Prompt determination ............................................................. II-40
(c) Dispositionofpreferredspecications ................................................ II-40
Rule 402. Action by commander not authorized to convene courts-martial ..................... II-40
Rule 403. Action by commander exercising summary court-martial jurisdiction ................ II-40
(a) Recording receipt ................................................................ II-40
(b) Disposition. ..................................................................... II-41
Rule 404. Action by commander exercising special court-martial jurisdiction .................. II-41
iv
Rule 405. Preliminary hearing.......................................................... II-42
(a) In general....................................................................... II-42
(b) Earlier preliminary hearing ......................................................... II-42
(c) Who may direct a preliminary hearing................................................. II-42
(d) Disclosures after direction of a preliminary hearing. ..................................... II-42
(e) Personnel ....................................................................... II-43
(f) Scope of preliminary hearing. ....................................................... II-44
(g) Rights of the accused. ............................................................. II-44
(h) Notice to and presence of victim..................................................... II-44
(i) Notice, Production of Witnesses, and Production of Other Evidence. ........................ II-45
(j) MilitaryRulesofEvidence ......................................................... II-47
(k) Preliminary hearing procedure ...................................................... II-48
(l) Supplementary information......................................................... II-50
(m) Preliminary hearing report ......................................................... II-50
(n) Waiver ......................................................................... II-51
Rule 406. Pretrial advice and special trial counsel determinations............................. II-52
(a) PretrialAdvicebytheStaJudgeAdvocate ............................................ II-52
(b) Special trial counsel determinations .................................................. II-52
(c) Distribution ..................................................................... II-52
Rule 407. Action by commander exercising general court-martial jurisdiction .................. II-53
(a) Disposition...................................................................... II-53
(b) National security matters........................................................... II-53
CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL;
CONVENING COURTS-MARTIAL
Rule 501. Composition and personnel of courts-martial ..................................... II-55
(a) Composition of courts-martial....................................................... II-55
(b) Counsel in general and special courts-martial. .......................................... II-55
(c) Other personnel ................................................................. II-55
Rule 502. Qualications and duties of personnel of courts-martial ............................ II-55
(a) Members ....................................................................... II-55
(b) President .......................................................................
II-5
6
(c) Qualicationsofmilitaryjudgeandmilitarymagistrate................................... II-56
(d) Counsel......................................................................... II-56
(e) Interpreters,reporters,escorts,bailis,clerks,guards,andorderlies. ........................ II-60
(f) Actionupondiscoveryofdisqualicationorlackofqualications .......................... II-60
Rule 503. Detailing members, military judge, and counsel, and designating military magistrates .. II-60
(a) Members ....................................................................... II-60
(b) Militaryjudge ................................................................... II-61
(c) Counsel ........................................................................ II-61
Rule 504. Convening courts-martial ..................................................... II-62
(a) In general....................................................................... II-62
(b) Who may convene courts-martial .................................................... II-62
(c) Disqualication .................................................................. II-63
(d) Convening orders ................................................................ II-63
(e) Place .......................................................................... II-63
Rule 505. Changes of members, military judge, and counsel ................................. II-63
(a) In general....................................................................... II-63
(b) Procedure....................................................................... II-63
v
(c) Changes of members .............................................................. II-64
(d) Changes of detailed counsel ........................................................ II-64
(e) Changeofmilitaryjudgeormilitarymagistrate. ........................................ II-64
(f) Good cause ..................................................................... II-65
Rule 506. Accused’s rights to counsel .................................................... II-65
(a) In general....................................................................... II-65
(b) Individual military counsel ......................................................... II-65
(c) Excusal or withdrawal ............................................................. II-66
(d) Waiver ......................................................................... II-66
(e) Nonlawyer present................................................................ II-66
CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF CHARGES
Rule 601. Referral .................................................................... II-67
(a) In general. ...................................................................... II-67
(b) Who may refer................................................................... II-67
(c) Disqualication .................................................................. II-67
(d) When charges may be referred ...................................................... II-67
(e) How charges shall be referred ...................................................... II-68
(f) Superior convening authorities ...................................................... II-69
(g) Parallel convening authorities ....................................................... II-69
Rule 602. Service of charges............................................................ II-69
(a) Service of charges ................................................................ II-69
(b) Commencement of trial ............................................................ II-70
Rule 603. Changes to charges and specications ........................................... II-70
(a) In general....................................................................... II-70
(b) Majorandminorchangesdened .................................................... II-70
(c) Majorandminorchangesbeforereferral .............................................. II-70
(d) Majorchangesafterreferralorpreliminaryhearing. ..................................... II-70
(e) Minor changes after referral ........................................................ II-70
Rule 604. Withdrawal of charges........................................................ II-70
(a) Withdrawal ..................................................................... II-70
(b) Referral of withdrawn charges ...................................................... II-71
CHAPTER VII. PRETRIAL MATTERS
Rule 701. Discovery................................................................... II-72
.
........................................................ II-72
.......................................................... II-73
............................................................. II-74
........................................................ II-74
................................................... II-74
................................................. II-75
............................................................ II-75
(a) Disclosure by trial counsel
(b) Disclosure by the defense
(c) Failure to call witness
(d) Continuing duty to disclose
(e) Access to witnesses and evidence
(f) Informationnotsubjecttodisclosure
(g) Regulation of discovery
(h) Inspect
......................................................................... II-76
Rule 702. Depositions ................................................................. II-76
....................................................................... II-76
.................................................................. II-76
.......................................................... II-76
................................................................. II-77
(a) In general
(b) Who may order
(c) Request to take deposition
(d) Action on request
(e) Dutiesofthe deposition officer. .
.
..................................................
. II-77
vi
(f) Rights of accused................................................................. II-78
(g) Procedure....................................................................... II-78
(h) Objections ...................................................................... II-78
(i) Admissibility and use as evidence.................................................... II-79
(j) Depositionbyagreementnotprecluded ............................................... II-79
Rule 703. Production of witnesses and evidence ........................................... II-79
(a) In general....................................................................... II-79
(b) Right to witnesses ................................................................ II-79
(c) Determining which witness will be produced ........................................... II-80
(d) Employment of expert witnesses and consultants........................................ II-80
(e) Right to evidence................................................................. II-81
(f) Determining what evidence will be produced. .......................................... II-81
(g) Procedures for production of witnesses and evidence. .................................... II-81
Rule 703A. Warrant or order for wire or electronic communications.......................... II-84
(a) In general....................................................................... II-84
(b) Warrant procedures ............................................................... II-85
(c) Order procedures ................................................................. II-85
(d) Non-disclosure orders ............................................................. II-85
(e) No cause of action against a provider disclosing information under this rule .................. II-86
(f) Requirement to preserve evidence ................................................... II-86
Rule 704. Immunity .................................................................. II-86
(a) Types of immunity................................................................ II-86
(b) Scope .......................................................................... II-86
(c) Authority to grant immunity ........................................................ II-86
(d) Procedure....................................................................... II-88
(e) Decision to grant immunity......................................................... II-88
Rule 705. Plea agreements ............................................................. II-88
(a) In general....................................................................... II-88
(b) Nature of agreement .............................................................. II-88
(c) Terms and conditions.............................................................. II-89
(d) Sentence limitations .............................................................. II-90
(e) Procedure....................................................................... II-90
(f) Nondisclosure of existence of a plea agreement. ........................................ II-91
Rule 706. Inquiry into the mental capacity or mental responsibility of the accused .............. II-91
(a) Initial action ..................................................................... II-91
(b) Ordering an inquiry ............................................................... II-92
(c) Inquiry ......................................................................... II-92
Rule 707. Speedy trial ................................................................. II-93
(a) In general ....................................................................... II-93
(b) Accountability ................................................................... II-93
(c) Excludable delay ................................................................. II-94
(d) Remedy ........................................................................ II-94
(e) Waiver ......................................................................... II-94
(f) Priority......................................................................... II-94
CHAPTER VIII. TRIAL PROCEDURE GENERALLY
Rule 801. Military judge’s responsibilities; other matters ................................... II-95
(a)Responsibilitiesofmilitaryjudge .................................................... II-95
(b) Rules of court; contempt ........................................................... II-96
vii
(c) Obtaining evidence ............................................................... II-96
(d) Unchargedoenses ............................................................... II-96
(e) Interlocutory questions and questions of law ........................................... II-96
(f) Rulings on record ................................................................ II-97
(g) Eectoffailuretoraisedefensesorobjections .......................................... II-97
Rule 802. Conferences................................................................. II-97
(a) In general....................................................................... II-97
(b) Matters on record................................................................. II-98
(c) Rights of parties.................................................................. II-98
(d) Accused’s presence ............................................................... II-98
(e) Admission ...................................................................... II-98
(f) Limitations...................................................................... II-98
Rule 803. Court-martial sessions without members under Article 39(a) ........................ II-98
Rule 804. Presence at court-martial proceedings........................................... II-98
(a) Accused ........................................................................ II-98
(b) Militaryjudge ................................................................... II-100
(c) Members........................................................................ II-100
(d) Counsel. ........................................................................ II-100
(e) Victim and Victim’s Counsel ........................................................ II-101
Rule 805. [Reserved] .................................................................. II-101
Rule 806. Public trial .................................................................. II-101
(a) In general ....................................................................... II-101
(b) Control of spectators and closure.....................................................
II-10
1
(c) Photography and broadcasting prohibited .............................................. II-102
(d) Protective orders ................................................................. II-102
Rule 807. Oaths ...................................................................... II-102
(a) Denition ....................................................................... II-102
(b) Oaths in courts-martial............................................................. II-102
Rule 808. Record of trial .............................................................. II-103
Rule 809. Contempt proceedings ........................................................ II-104
(a) In general....................................................................... II-104
(b) Method of disposition ............................................................. II-104
(c) Procedure....................................................................... II-104
(d) Record; review .................................................................. II-104
(e) Sentence........................................................................ II-105
(f) Informing person held in contempt ................................................... II-105
Rule 810. Procedures for rehearings, new trials, other trials, and remands ..................... II-105
(a) In general....................................................................... II-105
(b) Composition .................................................................... II-106
(c) Examination of record of former proceedings .......................................... II-106
(d) Sentence limitations .............................................................. II-106
(e) Denition....................................................................... II-107
(f) Remands ....................................................................... II-107
Rule 811. Stipulations ................................................................. II-107
(a) In general....................................................................... II-107
(b) Authoritytoreject ................................................................ II-107
(c) Requirements .................................................................... II-107
(d) Withdrawal ..................................................................... II-108
viii
(e)Eectofstipulation ............................................................... II-108
(f) Procedure....................................................................... II-108
Rule 812. Joint and common trials ...................................................... II-108
Rule 813. Announcing personnel of the court-martial and the accused ......................... II-108
(a) Opening sessions ................................................................. II-108
(b) Later proceedings ................................................................ II-109
(c) Additions, replacement, and absences of personnel ...................................... II-109
(d) Under R.C.M. 813(a)(1) ........................................................... II-109
CHAPTER IX. TRIAL PROCEDURES THROUGH FINDINGS
Rule 901. Opening session ............................................................. II-110
(a) Call to order..................................................................... II-110
(b) Announcement of parties........................................................... II-110
(c) Swearing reporter and interpreter .................................................... II-110
(d) Counsel ........................................................................ II-110
(e) Presence of members.............................................................. II-111
Rule 902. Disqualication of military judge............................................... II-111
(a) In general....................................................................... II-111
(b)Specicgrounds ................................................................. II-111
(c)Denitions ...................................................................... II-111
(d) Procedure....................................................................... II-112
(e) Waiver ......................................................................... II-112
Rule 903. Accused’s elections on composition of court-martial................................ II-112
(a) In general ....................................................................... II-112
(b) Form of election ................................................................. II-112
(c) Action on election ................................................................ II-112
(d) Right to withdraw request .......................................................... II-113
(e) Untimely requests ................................................................ II-113
Rule 904. Arraignment ................................................................ II-113
Rule 905. Motions generally............................................................ II-113
(a)Denitionsandform .............................................................. II-113
(b) Pretrial motions .................................................................. II-114
(c) Burden of proof .................................................................. II-114
(d) Ruling on motions ................................................................ II-114
(e)Eectoffailuretoraisedefensesorobjections.......................................... II-115
(f) Reconsideration .................................................................. II-115
(g)Eectofnaldeterminations ....................................................... II-115
(h) Written motions.................................................................. II-116
(i) Service ......................................................................... II-116
(j)Applicationtoconveningauthority ................................................... II-116
(k) Production of statements on motion to suppress ......................................... II-116
Rule 906. Motions for appropriate relief .................................................. II-116
(a) In general....................................................................... II-116
(b) Grounds for appropriate relief....................................................... II-116
Rule 907. Motions to dismiss ........................................................... II-119
(a) In general....................................................................... II-119
(b) Grounds for dismissal ............................................................. II-119
Rule 908. Appeal by the United States ................................................... II-120
(a) In general....................................................................... II-120
ix
(b) Procedure....................................................................... II-121
(c) Appellate proceedings ............................................................. II-122
Rule 909. Capacity of the accused to stand trial by court-martial ............................. II-122
(a) In general....................................................................... II-122
(b) Presumption of capacity............................................................ II-122
(c) Determination before referral........................................................ II-122
(d) Determination after referral......................................................... II-123
(e) Incompetence determination hearing ................................................. II-123
(f) Hospitalization of the accused....................................................... II-123
(g) Excludable delay ................................................................. II-123
Rule 910. Pleas ....................................................................... II-123
(a) Types of pleas ................................................................... II-123
(b) Refusal to plead; irregular plea ......................................................
II-124
(c) Advice to accused ................................................................ II-124
(d) Ensuring that the plea is voluntary ................................................... II-125
(e) Determining accuracy of plea ....................................................... II-125
(f) Plea agreement inquiry ............................................................ II-125
(g) Findings ........................................................................ II-126
(h) Later action ..................................................................... II-126
(i) [Reserved] ...................................................................... II-126
(j) Waiver ......................................................................... II-126
Rule 911. Randomization and assembly of the court-martial panel ............................ II-126
Rule 912. Challenge of selection of members; examination and challenges of members ........... II-127
(a) Pretrial matters .................................................................. II-127
(b) Challenge of selection of members ................................................... II-127
(c) Stating grounds for challenge ....................................................... II-128
(d) Examination of members........................................................... II-128
(e) Evidence ....................................................................... II-128
(f) Challenges and removal for cause.................................................... II-128
(g) Peremptory challenges ............................................................ II-129
(h) Denitions ...................................................................... II-129
Rule 912A. Impaneling members and alternate members.................................... II-130
(a) In general....................................................................... II-130
(b) Enlisted accused ................................................................. II-130
(c) Numberofmembersinsucient ..................................................... II-130
(d) Impaneling members following the exercise of all challenges ..............................
II-131
(e) Lowest number ..................................................................
II-131
(f) Announcement...................................................................
II-132
Rule 912B. Excusal and replacement of members after impanelment ..........................
II-132
.
....................................................................
. II-132
...................................................... II-132
..................................................... II-132
(a) In general
(b) Alternate members impaneled
(c) Alternate members not available
(d) After the start of deliberations
....................................................... II-132
Rule 913. Presentation of the case on the merits............................................ II-132
(a) Preliminary instructions ........................................................... II-132
(b) Opening statements ............................................................... II-132
(c) Presentation of evidence ........................................................... II-133
Rule 914. Production of statements of witnesses............................................ II-133
x
(a) Motion for production ............................................................. II-133
(b) Production of entire statement....................................................... II-134
(c) Production of excised statement ..................................................... II-134
(d) Recess for examination of the statement............................................... II-134
(e) Remedy for failure to produce statement .............................................. II-134
(f)Denition....................................................................... II-134
914A. Use of remote live testimony of a child .............................................. II-134
(a) General procedures ............................................................... II-134
(b)Denition....................................................................... II-135
(c) Prohibitions ..................................................................... II-135
Rule 914B. Use of remote testimony ..................................................... II-135
(a) General procedures ............................................................... II-135
(b)Denition....................................................................... II-135
Rule 915. Mistrial .................................................................... II-135
(a) In general ....................................................................... II-135
(b) Procedure....................................................................... II-135
(c) Eectofdeclarationofmistrial...................................................... II-135
Rule 916. Defenses .................................................................... II-135
(a) In general....................................................................... II-135
(b) Burden of proof .................................................................. II-136
(c)Justication ..................................................................... II-136
(d) Obedience to orders............................................................... II-136
(e) Self-defense ..................................................................... II-136
(f) Accident ........................................................................ II-137
(g) Entrapment ...................................................................... II-137
(h) Coercion or duress................................................................ II-138
(i) Inability ........................................................................ II-138
(j)Ignoranceormistakeoffact ........................................................ II-138
(k) Lack of mental responsibility ....................................................... II-138
(l) Not defenses generally ............................................................ II-139
Rule 917. Motion for a nding of not guilty ............................................... II-139
(a) In general ....................................................................... II-139
(b) Form of motion .................................................................. II-140
(c) Procedure....................................................................... II-140
(d) Standard........................................................................ II-140
(e) Motionastogreateroense ........................................................ II-140
(f)Eectofruling. .................................................................. II-140
(g)Eectofdenialonreview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-140
Rule 918. Findings.................................................................... II-140
(a)Generalndings ................................................................. II-140
(b)Specialndings .................................................................. II-141
(c)Basisofndings ................................................................. II-141
Rule 919. Argument by counsel on ndings................................................ II-141
(a) In general....................................................................... II-141
(b) Contents........................................................................ II-142
(c)Forfeitureofobjectiontoimproperargument........................................... II-142
Rule 920. Instructions on ndings ....................................................... II-142
(a) In general....................................................................... II-142
xi
(b) When given ..................................................................... II-142
(c) Request for instructions............................................................ II-142
(d) How given ...................................................................... II-143
(e) Required instructions.............................................................. II-143
(f)Forfeitureandobjections........................................................... II-143
Rule 921. Deliberations and voting on ndings............................................. II-144
(a) In general....................................................................... II-144
(b) Deliberations .................................................................... II-144
(c) Voting ......................................................................... II-144
(d)Actionafterndingsarereached..................................................... II-145
Rule 922. Announcement of ndings..................................................... II-145
(a) In general....................................................................... II-145
(b) Findings by members ............................................................. II-145
(c)Findingsbymilitaryjudge ......................................................... II-145
(d) Erroneous announcement .......................................................... II-145
(e) Polling prohibited ................................................................ II-145
Rule 923. Impeachment of ndings ...................................................... II-145
Rule 924. Reconsideration of ndings.................................................... II-145
(a) Time for reconsideration ........................................................... II-145
(b) Procedure....................................................................... II-145
(c)Militaryjudgesittingalone ......................................................... II-146
Rule 925. Application of sentencing rules ................................................ II-146
CHAPTER X. SENTENCING
Rule 1001. Presentencing procedure ..................................................... II-147
(a) In general ....................................................................... II-147
(b) Matter to be presented by the prosecution.............................................. II-147
(c) Crime victim’s right to be reasonably heard ............................................ II-149
(d) Matter to be presented by the defense ................................................. II-150
(e) Rebuttal and surrebuttal............................................................ II-150
(f) Production of witnesses............................................................ II-151
(g) Additional matters to be considered .................................................. II-151
(h) Argument....................................................................... II-151
Rule 1002. Sentence determination ...................................................... II-152
(a) Generally ....................................................................... II-152
(b) Noncapital cases ................................................................. II-152
(c) Imposition of sentence............................................................. II-153
(d) Information that may be considered .................................................. II-153
Rule 1003. Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-153
(a) Generally ....................................................................... II-153
(b) Authorized punishments............................................................ II-153
(c) Limits on punishments ............................................................ II-155
(d) Circumstances permitting increased punishments ....................................... II-157
Rule 1004. Capital cases ............................................................... II-157
(a) In general....................................................................... II-157
(b) Notice ......................................................................... II-157
(c) Aggravating factors ............................................................... II-158
(d) Evidence in extenuation and mitigation ............................................... II-159
(e)Basisforndings................................................................. II-159
xii
(f) Instructions ..................................................................... II-159
(g) Deliberations and voting ........................................................... II-160
(h) Action after a sentence is reached .................................................... II-161
(i) Reconsideration .................................................................. II-162
(j) Sentencingbymilitaryjudge........................................................ II-163
(k) Other penalties................................................................... II-163
(l) Impeachment of determination ...................................................... II-163
Rule 1005. Reconsideration of sentence in noncapital cases .................................. II-163
(a) Reconsideration .................................................................. II-163
(b) Exceptions ...................................................................... II-163
(c) Claricationofsentence ........................................................... II-163
(d) Action by the convening authority or special trial counsel ................................. II-163
(e) Limitation ......................................................................
II-16
4
Rule 1006. [Reserved] ................................................................. II-164
Rule 1007. Announcement of sentence .................................................... II-164
(a) In general....................................................................... II-164
(b) Announcement................................................................... II-164
(c) Erroneous announcement .......................................................... II-164
(d) Polling prohibited ................................................................ II-164
Rule 1008. Impeachment of sentence ..................................................... II-164
Rule 1009. [Reserved] ................................................................. II-164
Rule 1010. Notice concerning post-trial and appellate rights ................................. II-164
Rule 1011. Adjournment............................................................... II-165
CHAPTER XI. POST-TRIAL PROCEDURE
Rule 1101. Statement of trial results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-166
(a) Content ........................................................................ II-166
(b) Not guilty only by reason of lack of mental responsibility ................................. II-166
(c) Abatement ...................................................................... II-166
(d) Distribution ..................................................................... II-166
(e) Modication .................................................................... II-167
Rule 1102. Execution and eective date of sentences ........................................ II-167
(a) In general....................................................................... II-167
(b) Exceptions ...................................................................... II-167
(c) Other considerations concerning the execution of certain sentences ......................... II-169
Rule 1103. Deferment of connement, forfeitures, and reduction in grade; waiver of
Article 58b forfeitures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II-169
....................................................................... II-169
.................................................. II-169
........................................... II-169
........................................................ II-170
.................................................. II-170
................................................................. II-170
(a) In general
(b) Deferment requested by an accused
(c) Deferment without request from the accused
(d) Action of deferment request
(e) Restraint when deferment is granted
(f) End of deferment
(g)
Rescission of deferment............................................................. II-170
(h) Waivingforfeituresresultingfromasentencetoconnementtoprovide
for dependent support ................................................................ II-170
Rule 1104. Post-trial motions and proceedings ............................................ II-171
(a) Post-trial Article 39(a) sessions...................................................... II-171
(b) Post-trial motions ................................................................ II-171
xiii
............................................... II-172
(c) Mattersnotsubjecttopost-trialsessions
(d) Procedure
...................................................................... II-172
Rule 1105. Post-trial hearing for person fond not-guilty only by reason of lack of
mental responsibility .................................................................. II-172
(a) In general....................................................................... II-172
(b) Psychiatric or psychological examination and report ..................................... II-172
(c) Post-trial hearing ................................................................. II-172
Rule 1106. Matters submitted by the accused ............................................. II-172
(a) In general....................................................................... II-172
(b) Matters submitted by the accused .................................................... II-172
(c) Access to court-martial record ...................................................... II-173
(d) Time periods .................................................................... II-173
(e) Waiver ......................................................................... II-173
Rule 1106A. Matters submitted by crime victim............................................ II-173
(a) In general....................................................................... II-173
(b) Notice to crime victim.............................................................
II-17
3
(c) Matters submitted by a crime victim.................................................. II-174
(d) Access to court-martial record ...................................................... II-174
(e) Time periods .................................................................... II-174
(f) Waiver ......................................................................... II-174
Rule 1107. Suspension of execution of sentence; remission................................... II-174
(a) In general....................................................................... II-174
(b) Who may suspend and remit ........................................................ II-175
(c) Conditions of suspension........................................................... II-175
(d) Limitations on suspension .......................................................... II-175
(e) Termination of suspension by remission ............................................... II-175
Rule 1108. Vacation of suspension of sentence ............................................. II-175
(a) In general....................................................................... II-175
(b) Timeliness ...................................................................... II-175
(c) Connementofprobationerpendingvacationproceedings ................................ II-175
(d) Vacation proceedings.............................................................. II-176
(e) Action ......................................................................... II-178
Rule 1109. Reduction of sentence, general and special courts-martial ......................... II-179
(a) In general....................................................................... II-179
(b) Limitationonauthorityonndings................................................... II-179
(c) Limited authority to act on sentence .................................................. II-179
(d) General considerations ............................................................ II-179
(e) Reduction of sentence for substantial assistance by accused ............................... II-180
(f) Suspension...................................................................... II-181
(g) Decision; forwarding of decision and related matters..................................... II-181
(h) Service on accused and crime victim ................................................. II-181
Rule 1110. Action by convening authority in certain general and special courts-martial........... II-181
(a) In general ...................................................................... II-181
(b) Actiononndings ................................................................ II-181
(c) Action on the sentence ............................................................ II-182
(d) Procedures ...................................................................... II-182
(e) Decision; forwarding of decision and related matters..................................... II-182
Rule 1111. Entry of judgment .......................................................... II-182
(a) In general....................................................................... II-182
xiv
(b) Contents........................................................................ II-182
(c) Modicationofjudgment .......................................................... II-183
(d) Rehearings, new trials, and other trials ................................................ II-183
(e) Whenjudgmentisentered.......................................................... II-184
(f) Publication...................................................................... II-184
Rule 1112. Certication of record of trial; general and special courts-martial . . . . . . . . . . . . . . . . . . . II-184
....................................................................... II-184
....................................................... II-184
(a) In general
(b) Contents of the record of trial
(c) Certification
.................................................................... II-184
(d) Loss of record, incomplete record, and correction of record ............................... II-185
(e) Copies of the record of trial......................................................... II-185
(f) Attachments for appellate review .................................................... II-186
(g) Securityclassication ............................................................. II-186
Rule 1113. Sealed exhibits, proceedings, and other materials ................................. II-187
(a) In general....................................................................... II-187
(b) Examination and disclosure of sealed materials ......................................... II-187
Rule 1114. Transcription of proceedings .................................................. II-188
(a) Transcription of complete record .................................................... II-188
(b) Transcription of portions of the record ................................................ II-188
(c) Cost ........................................................................... II-189
(d) Inclusion in the record of trial ....................................................... II-189
(e) Authority ....................................................................... II-189
Rule 1115. Waiver or withdrawal of appellate review ....................................... II-189
(a) In general....................................................................... II-189
(b) Right to counsel.................................................................. II-189
(c) Compulsion, coercion, and inducement prohibited....................................... II-190
(d) Form of waiver or withdrawal ....................................................... II-190
(e) To whom submitted ............................................................... II-190
(f) Eectofwaiverorwithdrawal;substantialcompliancerequired ............................ II-190
Rule 1116. Transmittal of records of trial for general and special courts-martial................. II-190
(a) CasesforwardedtotheJudgeAdvocateGeneral ......................................... II-190
(b) Transmittal of records for cases eligible for appellate review by a Court of Criminal Appeals
..... II-190
(c) General and special courts-martial not reviewed by a Court of Criminal Appeals
.............. II-191
(d) ReviewwhenappellatereviewbyaCourtofCriminalAppealsiswaived,withdrawn,ornotled .. II-191
Rule 1117. Appeal of sentence by the United States ......................................... II-191
(a) In general....................................................................... II-191
(b) Timing ......................................................................... II-192
(c) Approval process................................................................. II-192
(d) Contents of the record of trial ....................................................... II-192
CHAPTER XII. APPEALS AND REVIEW
Rule 1201. Review by the Judge Advocate General......................................... II-193
(a) Review of certain general and special courts-martial ..................................... II-193
(b) Exception....................................................................... II-193
(c) By whom ....................................................................... II-193
(d) Form and content for review of cases not eligible for appellate review at the Court of
Criminal Appeals................................................................. II-193
(e) Form and content for review of cases in which the accused has waived or withdrawn
appellaterevieworfailedtoleanappeal ............................................. II-193
xv
(f) Remedies ....................................................................... II-193
(g) Notication ..................................................................... II-194
(h) ApplicationforrelieftotheJudgeAdvocateGeneralafternalreview....................... II-194
(i) Remission and suspension.......................................................... II-194
(j) Mandatoryreviewofsummarycourts-martialforwardedunderR.C.M.1307 ................. II-194
(k) Cases referred or submitted to the Court of Criminal Appeals .............................. II-195
Rule 1202. Appellate counsel ........................................................... II-195
(a) In general ....................................................................... II-195
(b) Duties.......................................................................... II-195
(c) Counsel in capital cases ........................................................... II-196
Rule 1203. Review by a Court of Criminal Appeals ........................................ II-196
(a) In general ....................................................................... II-196
(b) Cases reviewed by a Court of Criminal Appeals–Automatic review ......................... II-196
(c) Cases eligible for review by a Court of Criminal Appeals—Appeal by the accused . . . .......... II-196
(d) Timeliness ...................................................................... II-197
(e) Action on cases reviewed by a Court of Criminal Appeals................................. II-197
(f) Noticationtoaccused ............................................................ II-198
(g) Cases not reviewed by the Court of Appeals for the Armed Forces .......................... II-199
Rule 1204. Review by the Court of Appeals for the Armed Forces ............................ II-199
(a) Cases reviewed by the Court of Appeals for the Armed Forces ............................. II-199
(b) Petition by the accused for review by the Court of Appeals for the Armed Forces .............. II-199
(c) Action on decision by the Court of Appeals for the Armed Forces .......................... II-200
Rule 1205. Review by the Supreme Court ................................................ II-200
(a) CasessubjecttoreviewbytheSupremeCourt .......................................... II-200
(b) Action by the Supreme Court ....................................................... II-201
Rule 1206. Powers and responsibilities of the Secretary ..................................... II-201
(a) Sentences requiring approval by the Secretary .......................................... II-201
(b) Remission and suspension.......................................................... II-201
Rule 1207. Sentences requiring approval by the President ................................... II-201
Rule 1208. Restoration ................................................................ II-201
(a) New trial ....................................................................... II-201
(b) Other cases ..................................................................... II-201
(c) Eectivedateofsentences ......................................................... II-201
Rule 1209. Finality of courts-martial .................................................... II-202
(a)Whenaconvictionisnal .......................................................... II-202
(b)Eectofnality.................................................................. II-202
Rule 1210. New trial .................................................................. II-202
(a) In general....................................................................... II-202
(b) Who may petition ................................................................ II-202
(c) Form of petition.................................................................. II-202
(d)Eectofpetition ................................................................. II-203
(e) Who may act on petition ........................................................... II-203
(f) Grounds for new trial ............................................................. II-203
(g) Action on the petition ............................................................. II-203
(h) Action when new trial is granted..................................................... II-204
CHAPTER XIII. SUMMARY COURTS-MARTIAL
Rule 1301. Summary courts-martial generally ............................................ II-205
(a) Composition .................................................................... II-205
(b) Function........................................................................ II-205
(c) Jurisdiction ..................................................................... II-205
(d) Punishments..................................................................... II-205
(e) Counsel ........................................................................ II-206
(f) Power to obtain witnesses and evidence ............................................... II-206
(g) Secretarial limitations ............................................................. II-206
Rule 1302. Convening a summary court-martial........................................... II-206
(a) Who may convene summary courts-martial ............................................ II-206
(b) When convening authority is accuser ................................................. II-206
(c) Procedure....................................................................... II-206
Rule 1303. Right to object to trial by summary court-martial ................................ II-206
Rule 1304. Trial procedure............................................................. II-207
(a) Pretrial duties.................................................................... II-207
(b) Summary court-martial procedure. ................................................... II-207
Rule 1305. Record of trial ............................................................. II-209
(a) In general....................................................................... II-209
(b) Contents........................................................................ II-209
(c) Certication ..................................................................... II-209
(d) Forwarding copies of the record ..................................................... II-209
(e) Loss of record; defective record; correction of record .................................... II-210
Rule 1306. Post-trial procedure, summary court-martial.................................... II-210
(a) Matters submitted ................................................................ II-210
(b) Convening authority’s action........................................................ II-210
(c) Ordering rehearing or other trial ..................................................... II-211
(d) Contents of action and related matters ................................................ II-211
(e) Incomplete, ambiguous, or erroneous action............................................ II-211
(f) Service ......................................................................... II-211
(g) Subsequent action ................................................................ II-212
(h) Reviewbyajudgeadvocate ........................................................ II-212
Rule 1307. Review of a summary court-marital by a judge advocate .......................... II-212
(a) In general....................................................................... II-212
(b) Exception....................................................................... II-212
(c) Disqualication .................................................................. II-212
(d) Form and content of review......................................................... II-212
(e) Forwardingtoocerexercisinggeneralcourt-martialjurisdiction .......................... II-212
(f) Actionbyocerexercisinggeneralcourt-martialjurisdiction.............................. II-212
(g) RecordsforwardedtotheJudgeAdvocateGeneral ...................................... II-212
(h) Applicationforpost-nalreviewbytheJudgeAdvocateGeneral ........................... II-213
(i) Review by a Court of Criminal Appeals ............................................... II-213
(j) OtherRecords ................................................................... II-213
PART III MILITARY RULES OF EVIDENCE
SECTION I GENERAL PROVISIONS
Rule 101. Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-1
.......................................................................... III-1
.................................................................. III-1
(a) Scope
(b)
Sources of Law
(c) Rule of
Construction
.
............................................................
. III-1
Rule 102. Purpose
xvi
.
................................................................... III-1
xvii
Rule 103. Ruling on evidence ........................................................... III-1
.....
..................................................
.
. III-1
.................................... III-1
(a) Preserving a Claim of Error
(b) NotNeedingtoRenewanObjectionorOfferofProof
(c) Review of Constitutional Error..
..................................................... III-1
(d) MilitaryJudge’sStatementabouttheRuling;DirectinganOerofProof..................... III-1
(e) Preventing the Members from Hearing Inadmissible Evidence ............................. III-1
(f) Taking Notice of Plain error ........................................................ III-1
Rule 104. Preliminary questions ........................................................ III-2
(a) In general ....................................................................... III-2
(b) Relevance that Depends on a Fact.................................................... III-2
................................ III-2
....................................................... III-2
(c) Conducting a Hearing so that the Members Cannot Hear It
(d) Cross-Examining the Accused
(e) Evidence Relevant to Weight and Credibility
........................................... III-2
Rule 105. Limiting evidence that is not admissible against other parties or for other purposes..... III-2
Rule 106. Remainder of or related writings or recorded statements ........................... III-2
SECTION II JUDICIAL NOTICE
Rule 201. Judicial notice of adjudicative facts ............................................. III-2
.......................................................................... III-2
.......................................... III-2
................................................................... III-2
......................................................................... III-2
..
........................................................
. III-2
(a) Scope
(b) KindsofFactsthatMaybeJudiciallyNoticed
(c) Taking Notice
(d) Timing
(e) Opportunity to Be Heard
(f) Instructing the Members ..
.......................................................... III-2
Rule 202. Judicial notice of law ......................................................... III-2
.................................................................... III-2
(a) Domestic Law
(b)
Foreign Law
..................................................................... III-2
SECTION III EXCLUSIONARY RULES AND RELATED MATTERS CONCERNING
SELF-INCRIMINATION, SEARCH AND SEIZURE, AND EYEWITNESS IDENTIFICATION
Rule 301. Privilege concerning compulsory self-incrimination ................................ III-3
(a) General Rule .................................................................... III-3
(b) Standing........................................................................ III-3
(c) Limited Waiver .................................................................. III-3
(d) Exercise of the Privilege ........................................................... III-3
(e) Waiver of the Privilege ............................................................ III-3
(f) EectofClaimingthePrivilege ..................................................... III-3
Rule 302. Privilege concerning mental examination of an accused............................. III-4
(a) General rule ..................................................................... III-4
(b) Exceptions ...................................................................... III-4
(c) Release of evidence from an R.C.M. 706 Examination ................................... III-4
(d) Noncompliance by the Accused ..................................................... III-4
(e) Procedure....................................................................... III-4
Rule 303. Degrading questions.......................................................... III-4
Rule 304. Confessions and admissions ................................................... III-4
(a) General rule ..................................................................... III-4
(b) Evidence Derived from a Statement of the Accused...................................... III-4
(c) Corroboration of a Confession or Admission ........................................... III-5
(d) Disclosure of Statements by the Accused and Derivative Evidence .......................... III-5
xviii
.............................................. III-5
............................................................ III-5
............................................................ III-6
.................................................................... III-6
....................................................... III-6
(e) Limited Use of an Involuntary Statement
(f) MotionsandObjections
(g) Weight of the Evidence
(h) Completeness
(i) Evidence of an Oral Statement
(j) RefusaltoObeyanOrdertoSubmitaBodySubstance
................................... III-6
Rule 305. Warnings about rights ........................................................ III-6
.................................................................... III-6
(a) General rule
(b) Definitions
...................................................................... III-6
(c) Warnings Concerning the Accusation, Right to Remain Silent, and Use of Statements........... III-6
(d) Presence of Counsel .............................................................. III-7
(e) Waiver ......................................................................... III-7
(f) Standards for Nonmilitary Interrogations .............................................. III-7
Rule 306. Statements by one of several accused............................................ III-8
Rule 311. Evidence obtained from unlawful searches and seizures............................. III-8
..................................................................... III-8
....................................................................... III-8
...................................................................... III-8
................................................... III-9
(a) General rule
(b) Definition
(c) Exceptions
(d) MotionstoSuppressandObjections
(e) EffectofGuiltyPlea
............................................................... III-10
Rule 312. Body views and intrusions..................................................... III-10
..................................................................... III-10
...................................................... III-10
......................................................... III-10
........................................................... III-11
........................................................... III-11
................................................. III-11
(a) General rule
(b) Visual examination of the body
(c) Intrusion into Body C
avities
(d) ExtractionofBodyFluids
(e) Other Intrusive Searches
(f) Intrusions for Valid Medical Purposes
(g) MedicalQualifications
............................................................. III-11
Rule 313. Inspections and inventories in the armed forces................................... III-11
..................................................................... III-11
............................................................... III-11
(a) General Rule
(b) Lawful Inspections
(c) Lawful Inventories
................................................................ III-12
Rule 314. Searches not requiring probable cause .......................................... III-12
(a) General Rule .................................................................... III-12
(b) Border Searches.................................................................. III-12
(c) Searches Upon Entry to or Exit from United States Installations, Aircraft, and Vessels Abroad .... III-12
(d) Searches of Government Property.................................................... III-12
(e) Consent Searches................................................................. III-12
(f) Searches Incident to a Lawful Stop................................................... III-13
(g) Searches Incident to Apprehension ................................................... III-13
(h) SearchesWithinJails,ConnementFacilities,orSimilarFacilities.......................... III-14
(i) Emergency Searches to Save Life or For Related Purposes ................................ III-14
(j) SearchesofOpenFieldsorWoodlands................................................ III-14
Rule 315. Probable cause searches ...................................................... III-14
..................................................................... III-14
...................................................................... III-14
......................................................
III-14
(a) General rule
(b) Definitions
(c) Scope of Search Authorization
(d)
Who May Authorize
.
.............................................................. III-14
xix
................................................................. III-15
...................................................... III-15
(e) Who May Search
(f) Basis for Search Authorizations
(g) Exigencies
...................................................................... III-15
Rule 316. Seizures .................................................................... III-15
..................................................................... III-15
.................................................................... III-15
..................................................... III-15
.................................................................. III-16
(a) General rule
(b) Apprehension
(c) Seizure of Property or Evidence
(d) Who May Seize
(e) Other Seizures
................................................................... III-16
Rule 317. Interception of wire and oral communications .................................... III-16
(a) General rule ..................................................................... III-16
(b) When Authorized by Court Order .................................................... III-16
(c) Regulations ..................................................................... III-16
Rule 321. Eyewitness identication ...................................................... III-16
..................................................................... III-16
............................................................... III-17
............................................. III-17
................................................... III-17
(a) General rule
(b) When Inadmissible
(c) UnlawfulLineuporIdentificationProcess
(d) Motionsto
SuppressandObjections
(e) EffectofGuiltyPleas .............................................................. III-18
SECTION IV RELEVANCY AND ITS LIMITS
Rule 401. Test for relevant evidence ..................................................... III-18
Rule 402. General admissibility of relevant evidence ....................................... III-18
Rule 403. Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons.... III-18
Rule 404. Character evidence, crimes or other acts......................................... III-19
............................................................... III-19
(a) Character Evidence
(b) Other Crimes, Wrongs, or Acts
....
................................................ . III-19
Rule 405. Methods of proving character.................................................. III-19
......................................................... III-19
.................................................... III-19
..................................................................... III-19
(a) By Reputation or Opinion.
(b) BySpecific InstancesofConduct
(c) ByAffidavit
(d) Definitions
...................................................................... III-19
Rule 406. Habit; routine practice ....................................................... III-20
Rule 407. Subsequent remedial measures................................................. III-20
Rule 408. Compromise oers and negotiations ............................................ III-20
(a) Prohibited Uses................................................................... III-20
(b) Exceptions ...................................................................... III-20
Rule 409. Oers to pay medical and similar expenses....................................... III-20
Rule 410. Pleas, plea discussions, and related statements.................................... III-20
.................................................................. III-20
...................................................................... III-20
(a) Prohibited Uses
(b) Exceptions
(c) Request for Administrative Disposition
................................................ III-20
Rule 411. Liability insurance ........................................................... III-20
Rule 412. Sex oense cases: The victim’s sexual behavior or predisposition .................... III-21
(a) Evidence generally inadmissible ..................................................... III-21
(b) Exceptions ...................................................................... III-21
(c) Procedure to determine admissibility ................................................. III-21
(d) Denitions ...................................................................... III-21
xx
Rule 413. Similar crimes in sexual oense cases ........................................... III-21
(a) Permitted Uses................................................................... III-21
(b) Disclosure to the Accused .......................................................... III-21
(c) EectonOtherRules. ............................................................. III-21
(d) Denition. ...................................................................... III-21
Rule 414. Similar crimes in child-molestation cases ........................................ III-22
(a) Permitted Uses................................................................... III-22
(b) Disclosure to the Accused .......................................................... III-22
(c) EectonOtherRules. ............................................................. III-22
(d) Denition. ...................................................................... III-22
SECTION V PRIVILEGES
Rule 501. Privilege in general .......................................................... III-22
Rule 502. Lawyer-client privilege ....................................................... III-23
(a) General rule ..................................................................... III-23
(b) Denitions ...................................................................... III-23
(c) Who May Claim the Privilege....................................................... III-23
(d) Exceptions ...................................................................... III-23
Rule 503. Communications to clergy..................................................... III-23
(a) General Rule .................................................................... III-23
(b) Denitions ...................................................................... III-24
(c) Who May Claim the Privilege ....................................................... III-24
Rule 504. Marital privilege............................................................. III-24
(a) Spousal Incapacity................................................................ III-24
(b) CondentialCommunicationMadeDuringtheMarriage ................................. III-24
(c) Exceptions ...................................................................... III-24
(d) Denitions ...................................................................... III-24
Rule 505. Classied information ........................................................ III-25
.................................................................... III-25
...................................................................... III-25
............................................................... III-25
.................................................................. III-25
.................................................. III-25
...................................................... III-25
................................................................. III-26
................................................ III-26
(a) General Rule
(b) Definitions
(c) Access to Evidence
(d) Declassification
(e) Action Prior to Referral of Charges
(f) Actions after Referral of Charges
(g)
Protective Orders
(h) Discovery and Access by the Accused
(i) Disclosure by the Accused ......................................................... III-27
(j) ProcedureforUseofClassiedInformationinTrialsandPretrialProceedings ................ III-27
(k) IntroductionintoEvidenceofClassiedInformation..................................... III-29
(l) Record of Trial................................................................... III-30
Rule 506. Government information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-30
(a) Protection of Government Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-30
(b) Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-30
(c) Denitions............................................................ .......... III-30
(d)
Who May Claim the Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
........... III-30
(e)
Action prior to R
eferral of Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. III-30
(f) Action after Referral of Charges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-31
(g) Protective Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-31
(h) Discovery and Access by the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-32
xxi
(i) Disclosure by the Accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-32
(j) ProcedureforUseofGovernmentInformationSubjecttoaClaimofPrivilegein
Trials and Pretrial Proceedings ...................................................... III-33
(k) Appeals of Orders and Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-34
(l) IntroductionintoEvidenceofGovernmentInformationSubjecttoaClaimofPrivilege ......... III-34
(m) Record of Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-34
Rule 507. Identity of informants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-35
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-35
(b)Denitions............................................................ .......... III-35
(c) Who May Claim the Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-35
(d) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-35
(e) Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-35
Rule 508. Political vote . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
........ III-36
Rule 509. Deliberations of courts and juries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-36
Rule 510. Waiver of privilege by voluntary disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-36
Rule 511. Privileged matter disclosed under compulsion or without opportunity
to claim privilege ..................................................................... III-36
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-36
(b) Use of Communications Media . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-36
Rule 512. Comment upon or inference from claim of privilege; instruction . . . . . . ............... III-36
(a) Comment or Inference Not Permitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-36
(b) Claiming Privilege Without Knowledge of the Members. . . . . . . . . . . . . . . . . . . . . . . ........... III-36
(c) Instruction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-36
Rule 513. Psychotherapist—patient privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-36
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-36
(b)Denitions............................................................ .......... III-36
(c) Who May Claim the Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............
III-37
(d) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-37
(e) Procedure to Determine Admissibility of Patient Records or Communications. . . . . . ............ III-37
Rule 514. Victim advocate—victim privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-38
(a) General Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-38
(b)Denitions............................................................ .......... III-38
(c)
Who May
C
laim the Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
............ III-38
(d) Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-38
(e)
Procedure to Determine Admissibility of Victim R
ecords or Communications. . . . ................ III-39
SECTION VI WITNESSES
Rule 601. Competency to testify in general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-40
Rule 602. Need for personal knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.......... III-40
Rule 603. Oath or armation to testify truthfully. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-40
Rule 604. Interpreter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-40
Rule 605. Military judge’s competency as a witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-40
Rule 606. Member’s competency as a witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-40
(a) At the Trial by Court-Martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-40
(b) During an Inquiry Into the Validity of a Finding or Sentence . . . . . . . . . . . . . . . . . . . ............ III-40
Rule 607. Who may impeach a witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
........ III-40
Rule 608. A witness’ character for truthfulness or untruthfulness . . . . . . . . . . . . . . . . . . ........... III-40
(a) Reputation or Opinion Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-40
(b)SpecicInstancesofConduct............................................. .......... III-40
xxii
(c) Evidence of Bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. III-40
Rule 609. Impeachment by evidence of a criminal conviction or finding of guilty by
summary court-martial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. III-41
(a) In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-41
(b) Limit on Using the Evidence After 10 Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-41
(c) EectofPardon,Annulment,orCerticateofRehabilitation.................... ........... III-41
(d)JuvenileAdjudications.................................................. .......... III-41
(e) Limitontheuseofandingofguiltybysummarycourt-martial................. .......... III-41
(f)
Pendency of an Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
........... III-41
(g)Denition....................................................................... III-41
Rule 610. Religious beliefs or opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-41
Rule 611. Mode and order of examining witnesses and presenting evidence . . . . . . . . ............ III-41
(a) ControlbytheMilitaryJudge;Purposes............................................... III-41
(b)
Scope of Cross-Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.......... III-42
(c) Leading Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-42
(d) Remote Live Testimony of a Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-42
Rule 612. Writing used to refresh a witness’s memory . . . . . . . . . . . . . . . . . . . . . . . . . ............. III-42
(a) Scope. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..................................... III-42
(b) Adverse Party’s Options; Deleting Unrelated Matter ..................................... III-42
(c) Failure to Produce or Deliver the Writing .............................................. III-42
(d)NoEectonOtherDisclosureRequirements........................................ ... III-42
Rule 613. Witness’ prior statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-42
(a)
Showing or Disclosing the Statement During Examination . . . . . . . . . . . . . . . . . . . . . . .......... III-42
(b) Extrinsic Evidence of a Prior Inconsistent Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-43
Rule 614. Court-martial's calling or examining a witness. . . . . . . . . . . . . . . . . . . . . . . . . ..
.......... III-43
(a) Calling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-43
(b) Examining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-43
(c) Objections............................................................ .......... III-43
Rule 615. Excluding witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .....
..... III-43
SECTION VII OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion testimony by lay witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. III-43
Rule 702. Testimony by expert witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-43
Rule 703. Bases of an expert’s opinion testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
......... III-43
Rule 704. Opinion on an ultimate issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-44
Rule 705. Disclosing the facts or data underlying expert’s opinion . . . . . . . . . . . . . . ............. III-44
Rule 706. Court-appointed expert witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
.......... III-44
(a) Appointment Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-44
(b) Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-44
(c) Accused’s Choice of Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. III-44
Rule 707. Polygraph examinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-44
(a) Prohibitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. III-44
(b) Statements Made During a Polygraph Examination . . . . . . . . .............................. III-44
SECTION VIII HEARSAY
Rule 801. Definitions that apply to this section; exclusions from hearsay . . . . . . . . . . . . . . . . . . . . . .
.......... III-44
(a) Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-44
(b) Declarant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-44
(c) Hearsay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-44
xxiii
(d) Statements that Are Not Hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-44
Rule 802. The rule against hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-44
Rule 803. Exceptions to the rule against hearsay – regardless of whether the declarant is
available as a witness
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-45
(1) Present Sense Impression. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........
III-45
(2) Excited Utterance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........
III-45
(3) Then Existing Mental, Emotional, or Physical Condition. . . . . . . . . . . . . . . . . . . . . . . ...........
III-45
(4) Statement Made for Medical Diagnosis or Treatment . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-45
(5) Recorded Recollection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-45
(6)
Records of Regularly Conducted Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
............ III-45
(7)
Absence of a Record of a Regularly Conducted Activity . . . . . . . . . . . . . . . . . . . . . . . ..
........... III-45
(8)
Public Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
........... III-45
(9)
Public Records of Vital Statistics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
............ III-46
(10)
Absence of a Public R
ecord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. III-46
(11)
Records of Religious Organizations Concerning Personal or Family History . . . . . . ..
........... III-46
(12)
CertificatesofMarriage,Baptism,andS
imilarCeremonies................................ III-46
(13)
Family Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
.......... III-46
(14)
RecordsofDocumentsthatAffectanI
nterestinProperty.................................. III-46
(15)
StatementsinDocumentsthatA
ffectanInterestinProperty................................ III-46
(16)
Statements in Ancient
Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-46
(17)
Market Reports and Similar Commercial P
ublications. . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-46
(18)
Statements in Learned Treatises, Periodicals, or Pamphlets . . . . . . . . . . . . . . . . . . . . . ..
......... III-46
(19)
Reputation Concerning
Personal or Family History. . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-46
(20)
Reputation Concerning
Boundaries or General History. . . . . . . . . . . . . . . . . . . . . . . .............. III-46
(21)
Reputation Concerning Character. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.......... III-47
(22)
JudgmentofPreviousConviction.........................................
........... III-47
(23)
JudgmentsInvolvingPersonal,Familyor
GeneralHistory,oraBoundary........ ............. III-47
Rule 804. Rule 804. Exceptions to the rule against hearsay –when the declarant is
unavailable as a witness . . . . . . . . . . . . . . . . . . . . . . . . . . ...................................... III-47
(a) Criteria for Being Unavailable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-47
(b) The Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-47
Rule 805. Hearsay within hearsay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-48
Rule 806. Attacking and supporting the declarant’s credibility . . . . . . . . . . . . . . . . . . . . ........... III-48
Rule 807. Residual exception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
........ III-48
(a) In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-48
(b) Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-48
SECTION IX AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or identifying evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-48
(a) In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-48
(b) Examples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-48
Rule 902. Evidence that is self-authenticating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-49
(1) Domestic Public Documents that are Sealed and Signed . . . . . . . . . . . . . . . . . . . . . . . . .......... III-49
(2)DomesticPublicDocumentsthatareNotSealedbutareSignedandCertied....... .......... III-49
(3) Foreign Public Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-49
(4)CertiedCopiesofPublicRecords........................................ ........... III-49
(4a)DocumentsorRecordsoftheUnitedStatesAccompaniedbyAttestingCerticates.. .......... III-49
(5) OcialPublications.................................................... .......... III-50
(6) Newspapers and Periodicals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
........... III-50
xxiv
(7) Trade Inscriptions and the Like . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-50
(8) Acknowledged Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-50
(9) Commercial Paper and Related Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-50
(10) Presumptions Under a Federal Statute or Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-50
(11)CertiedDomesticRecordsofRegularlyConductedActivity................... .......... III-50
(12) Reserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...................................... III-50
(13)CertiedRecordsGeneratedbyanElectronicProcessorSystem........................... III-50
(14)CertiedDataCopiedfromanElectronicDevice,StorageMedium,orFile................... III-50
Rule 903. Subscribing witness’ testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-50
SECTION X CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Denitions that apply to this section . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-50
(a) Writing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-50
(b) Recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-50
(c) Photograph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ III-50
(d) Original . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-50
(e) Duplicate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-50
Rule 1002. Requirement of the original . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-50
Rule 1003. Admissibility of duplicates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-50
Rule 1004. Admissibility of other evidence of content . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
.......... III-51
(a) Originals lost or destroyed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-51
(b) Original not obtainable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-51
(c) Original in possession of opponent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-51
(d) Collateral matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... III-51
Rule 1005. Copies of public records to prove content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-51
Rule 1006. Summaries to prove content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-51
Rule 1007. Testimony or statement of a party to prove content . . . . . . . . . . . . . . . . . . . . . .......... III-51
Rule 1008. Function of the military judge and the members . . . . . . . . . . . . . . . . . . . . . . . .......... III-51
SECTION XI MISCELLANEOUS RULES
Rule 1101. Applicability of these rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... III-51
(a)
In General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
.......... III-51
(b) Rules Relaxed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-51
(c) Rules on Privilege . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-51
Rule 1102. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-52
(a) General Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............... III-52
(b) Rules Determined Not to Apply . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III-52
Rule 1103. Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... III-52
PART IV PUNITIVE ARTICLES
1. Article 77—Principals ............................................................... IV-1
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-1
b. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-1
2. Article 78—Accessory after the fact ................................................... IV-2
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-2
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-2
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-3
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-3
e. Samplespecication.................................................... .......... IV-3
3. Article 79—Conviction of oense charged, Lesser included oenses, and attempts . . . . ......... IV-3
xxv
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-3
b. Explanation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-3
4. Article 80—Attempts ................................................................ IV-4
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-4
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-4
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-5
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-5
e. Samplespecication.................................................... .......... IV-5
5. Article 81—Conspiracy .............................................................. IV-6
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-6
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-6
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-6
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-7
e. Samplespecication.................................................... .......... IV-7
6. Article 82—Soliciting commission of oenses ............................................ IV-7
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-7
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-8
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-8
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-8
e. Samplespecication................................................... ........... IV-8
7. Article 83—Malingering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-9
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-9
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-9
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-9
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-9
e. Samplespecication.................................................... .......... IV-9
8. Article 84—Breach of medical quarantine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-10
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-10
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-10
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-10
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-10
e. Samplespecication.................................................... .......... IV-10
9. Article 85—Desertion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-10
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-10
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-10
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-11
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-12
e. Samplespecications................................................... .......... IV-12
10. Article 86—Absence without leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-13
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-13
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-13
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-14
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-15
e. Samplespecications................................................... .......... IV-16
11. Article 87—Missing movement; jumping from vessel . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-16
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-16
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-16
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-16
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-17
xxvi
e. Samplespecications................................................... .......... IV-17
12. Article 87a—Resistance, ight, breach of arrest, and escape . . . . . . . . . . . . . . . . . . . . . . ........ IV-17
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-17
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-17
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-18
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-19
e.
Samplespecifications................................................... .........
. IV-19
13. Article 87b—Oenses against correctional custody and restriction . . . . . . . . . . . . . . . . . ........ IV-20
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........
IV-20
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-20
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-20
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-21
e. Samplespecications................................................... .......... IV-21
14. Article 88—Contempt toward ocials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-21
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-21
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-21
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-21
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-21
e.
Samplespecification....................................................
.......... IV-21
15. Article 89—Disrespect toward superior commissioned ocer; assault of superior
commissioned ocer ............................................................... IV-22
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-22
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-22
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-22
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-23
e. Samplespecications................................................... .......... IV-23
16. Article 90—Willfully disobeying superior commissioned ocer . . . . . . . . . . . . . . . . . . .......... IV-24
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-24
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-24
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-24
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-25
e. Samplespecication.................................................... .......... IV-25
17. Article 91—Insubordinate conduct toward warrant ocer, noncommissioned ocer,
or petty ocer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... IV-25
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-25
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-25
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-26
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-26
e. Samplespecications................................................... .......... IV-26
18. Article 92—Failure to obey order or regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-27
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-27
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-27
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-27
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-28
e. Samplespecications................................................... .......... IV-29
19.
Article 93—Cruelty and maltreatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
....... IV-29
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-29
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-29
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-29
xxvii
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-30
e. Samplespecication.................................................... .......... IV-30
20. Article 93a— Prohibited activities with military recruit or trainee by person in
position of special trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-30
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-30
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-31
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-31
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-31
e. Samplespecications................................................... .......... IV-31
21. Article 94—Mutiny or sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-31
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-31
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
..
........
I
IV-32
V-32
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-33
e. Samplespecications................................................... .......... IV-33
22. Article 95— Oenses by sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-33
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-33
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-34
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-34
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-35
e. Samplespecications................................................... .......... IV-35
23. Article 95a—Disrespect to a sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-35
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-35
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-35
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-35
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-35
e. Samplespecication.................................................... .......... IV-35
24. Article 96— Release of prisoner without authority; drinking with prisoner . . . . . . . . . ......... IV-36
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-36
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-36
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-36
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-37
e. Samplespecications................................................... .......... IV-37
25. Article 97—Unlawful detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-37
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-37
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-37
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-37
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-37
e. Samplespecication.................................................... .......... IV-37
26.
Article 98—Misconduct as prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ . IV-37
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-37
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-38
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-38
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-38
e. Samplespecications................................................... .......... IV-38
27. Article 99—Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-38
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-38
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-39
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-40
xxviii
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-41
e. Samplespecications................................................... .......... IV-41
28. Article 100—Subordinate compelling surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-41
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-41
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-42
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-42
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-42
e. Samplespecications................................................... .......... IV-42
29.
Article 101—Improper use of countersign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ........ IV-43
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-43
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-43
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-43
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-43
e. Samplespecications................................................... .......... IV-43
30. Article 102—Forcing a safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-43
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-43
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-43
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-44
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-44
e. Samplespecication.................................................... .......... IV-44
31. Article 103—Spies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-44
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-44
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-44
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-44
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-45
e. Samplespecication.................................................... .......... IV-45
32. Article 103a—Espionage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-45
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-45
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-46
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-46
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-46
e. Samplespecication.................................................... .......... IV-46
33. Article 103b—Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-47
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-47
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-47
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-47
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-48
e. Samplespecications................................................... .......... IV-48
34. Article 104—Public records oenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-48
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-48
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-48
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-48
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-49
e. Samplespecication.................................................... .......... IV-49
35. Article 104a—Fraudulent enlistment, appointment, or separation . . . . . . . . . . . . . . . . . ........ IV-49
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-49
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-49
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-49
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-49
xxix
e. Samplespecications................................................... .......... IV-49
36. Article 104b—Unlawful enlistment, appointment, or separation . . . . . . . . . . . . . . . . . . ......... IV-50
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-50
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-50
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-50
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-50
e. Samplespecication.................................................... .......... IV-50
37. Article 105—Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-50
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-50
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-50
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-51
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-52
e.Samplespecications................................................... ............ IV-52
38. Article 105a—False or unauthorized pass oenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-52
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-52
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-52
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-53
e. Samplespecications................................................... .......... IV-53
39. Article 106—Impersonation of ocer, noncommissioned or petty ocer, or agent or ocial ... IV-53
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-53
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-53
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-54
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-54
e. Samplespecication.................................................... .......... IV-54
40. Article 106a—Wearing unauthorized insignia, decoration, badge, ribbon, device,
or lapel button. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ....... IV-54
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-54
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-54
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-54
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-54
e. Samplespecication.................................................... .......... IV-55
41.
Article 107—False official statements; false swearing . . . . . . . . . . . . . . . . . . . . . . . . . . .
......... IV-55
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-55
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-55
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-55
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-56
e. Samplespecications................................................... .......... IV-56
42.
Article 107a—Parole violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-56
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-56
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-56
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-56
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-57
e. Samplespecication.................................................... .......... IV-57
43. Article 108—Military property of United States—Loss, damage, destruction,
or wrongful disposition . . . . . . . . . . . . . . . . . . . . . . . . . . .................................... IV-57
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-57
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-57
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-57
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-58
xxx
e. Samplespecication.................................................... .......... IV-58
44. Article 108a—Captured or abandoned property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-58
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-58
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-59
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-59
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-59
e. Samplespecications................................................... .......... IV-60
45. Article 109—Property other than military property of United States—waste,
spoilage, or destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-60
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-60
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-60
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-60
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-61
e. Samplespecications................................................... .......... IV-61
46. Article 109a—Mail matter: wrongful taking, opening, etc. . . . . . . . . . . . . . . . . . . . . . . . ......... IV-61
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-61
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-61
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-62
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-62
e. Samplespecications................................................... .......... IV-62
47.
Article 110—Improper hazarding of vessel or aircraft .
. . . . . . . . . . . . . . . . . . . . . . . . . .. ........ IV-62
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-62
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-62
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-62
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-63
e. Samplespecications................................................... .......... IV-63
48. Article 111—Leaving scene of vehicle accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-64
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-64
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-64
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-65
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-65
e. Samplespecication.................................................... .......... IV-65
49. Article 112—Drunkenness and other incapacitation oenses . . . . . . . . . . . . . . . . . . . . . ......... IV-65
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-65
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-65
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-65
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-66
e. Samplespecications................................................... .......... IV-66
50.
Article 112a—Wrongful use, possession, etc., of controlled substances . . . . . . . . . . . . .
......... IV-66
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-66
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-66
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-67
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-68
e. Samplespecications................................................... .......... IV-68
51.
Article 113—Drunken or reckless operation of a vehicle, aircraft, or vessel . . . . . . . . .
......... IV-69
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-69
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-70
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-70
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-71
xxxi
e. Samplespecication.................................................... .......... IV-71
52. Article 114—Endangerment oenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-71
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-71
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-71
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-72
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-73
e. Samplespecication.................................................... .......... IV-73
53. Article 115—Communicating threats . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-73
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-73
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-73
c . Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-74
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-75
e. Samplespecications................................................... .......... IV-75
54.
Article 116—Riot or breach of peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
......... IV-75
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-75
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-75
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-75
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-76
e. Samplespecications................................................... .......... IV-76
55. Article 117—Provoking speeches or gestures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-76
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-76
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-76
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-76
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-76
e. Samplespecication.................................................... .......... IV-76
55a. Article 117a—Wrongful broadcast or distribution of intimate visual images ................ IV-76
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-76
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-77
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-78
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-78
e. Samplespecication.................................................... .......... IV-78
56. Article 118—Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-78
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-78
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-78
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-79
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-80
e. Samplespecications................................................... .......... IV-80
57. Article 119—Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-80
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-80
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-80
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-81
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-81
e. Samplespecications................................................... .......... IV-82
58. Article 119a—Death or injury of an unborn child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-82
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-82
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-82
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-83
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-83
e. Samplespecications................................................... .......... IV-83
xxxii
59. Article 119b—Child endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-84
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-84
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-84
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-84
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-85
e. Samplespecications................................................... .......... IV-85
60. Article 120—Rape and sexual assault generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-85
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-85
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-87
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-89
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-89
e. Samplespecications................................................... .......... IV-89
61. Article 120a—Mails: deposit of obscene matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-93
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-93
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-93
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-93
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-93
e. Samplespecication.................................................... .......... IV-93
62. Article 120b—Rape and sexual assault of a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-93
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-93
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-94
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-95
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-95
e. Samplespecications................................................... .......... IV-95
63. Article 120c—Other sexual misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-97
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-97
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-98
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-99
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-99
e. Samplespecications................................................... .......... IV-99
64. Article 121—Larceny and wrongful appropriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-99
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-99
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-99
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-100
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-103
e. Samplespecications................................................... .......... IV-103
65. Article 121a—Fraudulent use of credit cards, debit cards, and other access devices . . ......... IV-103
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-103
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-103
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-104
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-104
e.Samplespecication.................................................... .......... IV-104
66. Article 121b—False pretenses to obtain services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-104
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-104
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-104
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-104
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-104
e. Samplespecication.................................................... .......... IV-104
xxxiii
67.
Article 122— Robbery .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ . IV-104
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........
IV-105
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-105
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-105
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-105
e. Samplespecication.................................................... .......... IV-105
68. Article 122a—Receiving stolen property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-106
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-106
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-106
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-106
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-106
e. Samplespecication.................................................... .......... IV-106
69. Article 123—Oenses concerning Government computers . . . . . . . . . . . . . . . . . . . . . . . ......... IV-106
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-106
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-106
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-107
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-107
e. Samplespecication.................................................... .......... IV-107
70. Article 123a—Making, drawing, or uttering check, draft, or order without sucient funds .... IV-108
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-108
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-108
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-108
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-110
e. Samplespecications................................................... .......... IV-110
71. Article 124—Frauds against the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-110
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-110
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-111
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-112
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-113
e. Samplespecications................................................... .......... IV-113
72. Article 124a—Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-114
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-114
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-114
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-114
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-114
e. Samplespecication.................................................... .......... IV-114
73. Article 124b—Graft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-115
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-115
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-115
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-115
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-115
e. Samplespecications................................................... .......... IV-115
74. Article 125—Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-116
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-116
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-116
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-116
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-116
e. Samplespecication.................................................... .......... IV-116
xxxiv
75. Article 126—Arson; burning property with intent to defraud . . . . . . . . . . . . . . . . . . . . . ........ IV-116
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-116
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-117
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-117
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-117
e. Samplespecications................................................... .......... IV-118
76. Article 127—Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-118
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-118
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-118
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-118
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-118
e. Samplespecication.................................................... .......... IV-118
77. Article 128—Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-119
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-119
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-119
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-120
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-123
e. Samplespecications................................................... .......... IV-124
78. Article 128a—Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-125
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-125
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-125
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-126
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-126
e. Samplespecication.................................................... .......... IV-126
78a. Article 128b– Domestic Violence..................................................... IV-126
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-126
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-126
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-127
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-128
e. Samplespecication.................................................... .......... IV-128
79. Article 129—Burglary; unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-129
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-129
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-129
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-129
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-130
e. Samplespecications................................................... .......... IV-130
80. Article 130—Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-130
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-130
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-131
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-131
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-131
e. Samplespecications................................................... .......... IV-131
81. Article 131—Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-132
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-132
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-132
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-132
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-133
 e. Samplespecications................................................... .......... IV-133
xxxv
82. Article 131a—Subornation of perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-133
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-133
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-133
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-134
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-134
e. Samplespecication.................................................... .......... IV-134
83.
Article 131b—Obstructing justice .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-134
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-134
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-134
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-134
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-134
e. Samplespecication.................................................... .......... IV-134
84. Article 131c—Misprision of serious oense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-134
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-134
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-134
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-135
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-135
e. Samplespecication.................................................... .......... IV-135
85. Article 131d—Wrongful refusal to testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-135
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-135
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-135
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-135
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-135
e. Samplespecication.................................................... .......... IV-135
86. Article 131e—Prevention of authorized seizure of property . . . . . . . . . . . . . . . . . . . . . . ......... IV-135
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-135
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-136
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-136
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-136
e. Samplespecication.................................................... .......... IV-136
87. Article 131f—Noncompliance with procedural rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-136
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-136
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-136
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-136
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-136
e. Samplespecications................................................... .......... IV-137
88. Article 131g—Article Wrongful interference with adverse administrative proceeding ......... IV-137
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-137
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-137
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-137
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-137
e. Samplespecication.................................................... .......... IV-137
89. Article 132—Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-137
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-137
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-138
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-138
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-139
e. Samplespecications................................................... .......... IV-139
xxxvi
90.
Article 133—Conduct unbecoming an officer and a gentleman . . . . . . . . . . . . . . . . . . . ..
........ IV-139
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-139
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-139
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-139
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-140
e. Samplespecications................................................... .......... IV-140
91. Article 134—General article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-140
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-140
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........
IV-141
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..........
IV-141
92. Article 134—(Animal abuse) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-144
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-144
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-144
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-144
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-144
e. Samplespecication.................................................... .......... IV-145
93. Article 134—(Bigamy) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-145
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-145
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-145
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-145
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-145
e. amplespecication.................................................... ........... IV-145
94. Article 134—(Check, worthless making and uttering – by dishonorably failing
to maintain funds) .................................................................. IV-145
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-145
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-145
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-145
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-145
e. Samplespecication.................................................... .......... IV-145
95. Article 134—(Child pornography) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-146
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-146
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-146
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-146
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-147
e. Samplespecication.................................................... .......... IV-147
96. Article 134—(Debt, dishonorably failing to pay) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-148
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-148
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-148
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-148
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-148
e. Samplespecication.................................................... .......... IV-148
97. Article 134—(Disloyal statements) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-148
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-148
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-148
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-148
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-149
e. Samplespecication.................................................... .......... IV-149
98. Article 134—(Disorderly conduct, drunkenness) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-149
xxxvii
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-149
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-149
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-149
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-149
e. Samplespecication................................................... ........... IV-149
99. Article 134—(Extramarital sexual conduct) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-149
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-149
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-149
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-150
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-150
e. Samplespecication.................................................... .......... IV-150
100. Article 134—(Firearm, discharging—through negligence) . . . . . . . . . . . . . . . . . . . . . . ......... IV-151
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-151
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-151
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-151
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-151
e. Samplespecication.................................................... .......... IV-151
101. Article 134— (Fraternization) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-151
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-151
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-151
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-151
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-151
e. Samplespecication.................................................... .......... IV-151
102. Article 134—(Gambling with subordinate) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-152
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-152
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-152
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-152
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-152
e. Samplespecication.................................................... .......... IV-152
103. Article 134—(Homicide, negligent) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-152
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-152
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-152
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-152
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-152
e. Samplespecication.................................................... .......... IV-152
104. Article 134—(Indecent conduct) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-153
e. Samplespecication.................................................... .......... IV-153
105. Article 134—(Indecent language) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... IV-153
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-153
e. Samplespecications................................................... .......... IV-153
106. Article 134—(Pandering and prostitution) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ IV-153
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
xxxviii
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-153
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-154
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-154
e. Samplespecications................................................... .......... IV-154
107. Article 134—(Self-injury without intent to avoid service).......................
............ IV-155
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-155
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-155
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-155
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-155
e. Samplespecication.................................................... .......... IV-155
107a. Article 134—(Sexual Harassment) .................................................. IV-156
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-156
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-156
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... IV-156
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-156
e. Samplespecication.................................................... .......... IV-156
108. Article 134—(Straggling) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-156
a. Text of statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-156
b. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-156
c. Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... IV-157
d. Maximum punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ IV-157
e. Samplespecication.................................................... .......... IV-157
PART V NONJUDICIAL PUNISHMENT PROCEDURE
1.
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ........ V-1
a. Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ V-1
b. Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-1
c. Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-1
d. Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ V-1
e. Minoroenses................................................................... V- 1
f. Limitationsonnonjudicialpunishment................................................ V-1
g. Relationshipofnonjudicialpunishmenttoadministrativecorrectivemeasures...... ........... V-2
h. Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......
....... . V-2
i. Eectoferrors................................................................... V-2
j. Serviceregulationsandprocedures................................................... V- 2
2. Who may impose nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-2
a. Commander . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-2
b. Ocerincharge....................................................... .......... V-2
c. Principal assistant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-2
3.
V-2
4. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-3
a. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-3
b. Decision by servicemember . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-3
c.
Nonjudicialpunishmentproceeding accepted...........................................
V-3
d. Nonjudicialpunishmentbasedonrecordofcourtofinquiryorotherinvestigativebody ......... V-4
5.
Punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
V-4
a. General limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-4
b. Authorized maximum punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............. V-4
c. Nature of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-5
Right to demand trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
xxxix
d. Limitations on combination of punishments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-6
e. Punishments imposed on reserve component personnel while on inactive-duty training.......... V-6
f. Punishments imposed on reserve component personnel when ordered to active duty
for disciplinary purposes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................. V-6
g. Eectivedateandexecutionofpunishments.................................. ......... V-7
6. Suspension, mitigation, remission, and setting aside . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-7
a. Suspension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ V-7
b. Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-7
c. Remission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-8
d. Setting aside . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-8
7. Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... V-8
a. In general . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ............ V-8
b. Who may act on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-8
c. Format of appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-8
d. Time limit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V-8
e. Legal review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-8
f. Action by superior authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........... V-8
8. Records of nonjudicial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... V- 9
xl
APPENDICES
1. Constitution of the United States—1787
2. UniformCodeofMilitaryJustice
2.1. Disposition Guidance
3. DoD Instruction 5525.07
4. MemorandumofUnderstandingBetweentheDepartmentsofJusticeandTransportation(CoastGuard)Relatingto
theInvestigationsandProsecutionofCrimesOverWhichtheTwoDepartmentsHaveConcurrentJurisdiction
5. Military Justice Forms
6. Reserved
7. Reserved
8. Guide for Summary Courts-Martial
9. Reserved
10. FormsforActions(CasesReferredBefore1January2019)
11. FormsforCourt-MartialOrders(CasesReferredBefore1January2019)
12. Maximum Punishment Chart
12A. LesserIncludedOffenses
12B. Sentencing Parameter Table – Confinement Range Categories
12C. Offense Category Chart
12D. List of Sentencing Criteria Offenses
13. Reserved
14. Reserved
15. Analysis of the Composition of the Manual, the Preamble, and the Rules for Courts-Martial
16. Analysis of the Military Rules of Evidence
17. Analysis of Punitive Articles
18. AnalysisofNonjudicialPunishmentProcedure
19. Historical Executive Orders
20. PunitiveArticlesApplicabletoSexualOffensesCommittedPriorto1October2007
21. PunitiveArticlesApplicabletoSexualOffensesCommittedDuringthePeriod1October2007through 27June
2012
22. PunitiveArticlesApplicabletoSexualOffensesCommittedBetween28June2012and
31 December 2018
PART I
PREAMBLE
I-1
1. Sources of military jurisdiction
The sources of military jurisdiction include the
Constitution and international law. International law
includes the law of war.
2. Exercise of military jurisdiction
(a) Kinds. Military jurisdiction is exercised by:
(1) A government in the exercise of that branch of
the municipal law which regulates its military
establishment. (Military law).
(2) A government temporarily governing the civil
population within its territory or a portion of its
territory through its military forces as necessity may
require. (Martial law).
(3) A belligerent occupying enemy territory.
(Military government).
(4) A government with respect to offenses against
the law of war.
(b) Agencies. The agencies through which military
jurisdiction is exercised include:
(1) Courts-martial for the trial of offenses against
military law and, in the case of general courts-martial,
of persons who by the law of war are subject to trial by
military tribunals. See Parts II, III, and IV of this
Manual for rules governing courts-martial.
(2) Military commissions and provost courts for the
trial of cases within their respective jurisdictions.
Subject to any applicable rule of international law or to
any regulations prescribed by the President or by other
competent authority, military commissions and
provost courts shall be guided by the appropriate
principles of law and rules of procedures and evidence
prescribed for courts-martial.
(3) Courts of inquiry for the investigation of any
matter referred to such court by competent authority.
See Article 135. The Secretary concerned may
prescribe regulations governing courts of inquiry.
(4) Nonjudicial punishment proceedings of a
commander under Article 15. See Part V of this
Manual.
3. Nature and purpose of military law
Military law consists of the statutes governing the
military establishment and regulations issued
thereunder, the constitutional powers of the President
and Executive Orders and regulations issued
thereunder, and the inherent authority of military
commanders. Military law includes jurisdiction
exercised by courts-martial and the jurisdiction
exercised by commanders with respect to nonjudicial
punishment. The purposes of military law are to
promote justice, to deter misconduct, to facilitate
appropriate accountability, to assist in maintaining
good order and discipline in the armed forces, to
promote efficiency and effectiveness in the military
establishment, and thereby to strengthen the national
security of the United States.
4. The Evolving Military Justice System
The military operates a modern criminal justice system
that recognizes and protects the rights of both the
victims of alleged offenses and those accused of
offenses. The continuous evolution of the military
justice system has progressed through statutes,
Executive Orders, regulations, and judicial
interpretations. The Uniform Code of Military Justice
(UCMJ), enacted in 1950, significantly enhanced the
fairness of military justice across the armed forces,
including by establishing a civilian appellate court at
the system’s apex. The Military Justice Act of 1968,
which created the position of military judge and
enhanced the role of lawyers in the system, resulted in
further improvements. The promulgation of the
Military Rules of Evidence by a 1980 Executive Order
brought court-martial practice into closer alignment
with federal civilian criminal practice. In 2014,
Congress added a victims’ rights article to the UCMJ
and also made counsel available to represent certain
victims of alleged UCMJ offenses. The Military
Justice Act of 2016 further modernized the military
justice system by expanding pretrial judicial
authorities, updating trial and post-trial procedures,
and enacting new punitive articles. Most recently, the
National Defense Authorization Act for Fiscal Year
2022 made historic reforms to the military justice
system, including the unprecedented transfer of
prosecutorial discretion from commanders to
independent, specialized counsel to prosecute certain
covered offenses, including sexual assault and
domestic violence, as recommended by the
Independent Review Commission on Sexual Assault in
the Military to strengthen Service members’ trust in the
I-2
military justice system. These and many other
improvements have been vital to maintaining a fair,
just, and efficient military justice system. The system
must continue to evolve to be worthy of those who
protect our Nation and its freedoms.
5. Structure and application of the Manual for
Courts-Martial
The Manual for Courts-Martial shall consist of this
Preamble, the Rules for Courts-Martial, the Military
Rules of Evidence, the Punitive Articles, the
Nonjudicial Punishment Procedures (Parts I-V), and
Appendixes 12A through 12D. This Manual shall be
applied in a manner consistent with the purpose of
military law.
The Department of Defense (DoD), in conjunction
with the Department of Homeland Security, publishes
supplementary materials to accompany the Manual for
Courts-Martial. These materials consist of a Preface, a
Table of Contents, Discussions, Appendices (other
than Appendixes 12A through 12D, which were
promulgated by the President), and an Index. These
supplementary materials do not have the force of law.
The Manual shall be identified by the year in which it
was printed; for example, “Manual for Courts-Martial,
United States (20xx edition).” Any amendments to the
Manual made by Executive Order shall be identified as
“20xx” Amendments to the Manual for Courts-Martial,
United States, “20xx” being the year the Executive
Order was signed.
The DoD Joint Service Committee on Military Justice
(JSC) reviews the Manual for Courts-Martial and
proposes amendments to the DoD for consideration by
the President on an annual basis. In conducting its
annual review, the JSC is guided by DoD Instruction
5500.17, “Role and Responsibilities of the Joint
Service Committee on Military Justice (JSC).” DoD
Instruction 5500.17 includes provisions allowing
public participation in the annual review process.
Discussion
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. With the exception of
Appendix 12A (lesser included offenses), which is issued by the
President pursuant to Article 79, 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 15 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 19. Although
the Executive Orders were removed from Appendix 19 of the
Manual in 2012 to reduce printing requirements, they can be
accessed online. See Appendix 19.
PART II
RULES FOR COURTS–MARTIAL
CHAPTER I. GENERAL PROVISIONS
II-1
Rule 101. Scope, title
(a) In general. These rules govern the procedures and
punishments in all courts-martial and, whenever
expressly provided, preliminary, supplementary, and
appellate procedures and activities.
(b) Title. These rules may be known and cited as the
Rules for Courts-Martial (R.C.M.).
Rule 102. Purpose and construction
(a) Purpose. These rules are intended to provide for the
just determination of every proceeding relating to trial
by court-martial.
(b) Construction. These rules shall be construed to
secure simplicity in procedure, fairness in
administration, and the elimination of unjustifiable
expense and delay.
Rule 103. Definitions and rules of construction
The following definitions and rules of construction
apply throughout this Manual, unless otherwise
expressly provided.
(1) “Appellate military judge” means a judge of a
Court of Criminal Appeals.
(2) “Article” refers to articles of the Uniform Code
of Military Justice unless the context indicates
otherwise.
(3) “Capital case” means a general court-martial to
which a capital offense has been referred with an
instruction that the case be treated as a capital
proceeding, and, in the case of a rehearing or new or
other trial, for which offense death remains an
authorized punishment under R.C.M. 810(d).
(4) “Capital offense” means an offense for which
death is an authorized punishment under the UCMJ and
Part IV of this Manual or under the law of war.
(5) “Commander” means a commissioned officer in
command or an officer in charge except in Part V or
unless the context indicates otherwise.
(6) “Convening authority” includes a commissioned
officer in command for the time being and successors
in command.
Discussion
See R.C.M. 504 concerning who may convene courts-martial.
(7) “Copy” means an accurate reproduction,
however made. Whenever necessary and feasible, a
copy may be made by handwriting.
(8) “Court-martial” includes, depending on the
context:
(A) The military judge and members of a general
or special court-martial;
(B) The military judge when a session of a general
or special court-martial is conducted without members
under Article 39(a);
(C) The military judge when a request for trial by
military judge alone has been approved under R.C.M.
903;
(D) The military judge when the case is referred as
a special court-martial consisting of a military judge
alone under Article 16(c)(2)(A); or
(E) The summary court-martial officer.
(9) “Days.” When a period of time is expressed in a
number of days, the period shall be in calendar days,
unless otherwise specified. Unless otherwise specified,
the date on which the period begins shall not count, but
the date on which the period ends shall count as one
day.
(10) “Deferral” of an offense means a special trial
counsel declines to prefer charges for an offense or
declines to refer charges to court-martial. Once a
special trial counsel declines to prefer or refer charges
for an offense, a commander shall exercise authority
within the scope of these rules.
(11) “Detail” means to order a person to perform a
specific temporary duty, unless the context indicates
otherwise.
(12) “Exercise authority over” means when a special
trial counsel acts on a covered, related, or known
offense in furtherance of a special trial counsel’s
statutory duties or authorities under Article 24a(c).
Discussion
See Article 24a(c)(2). If the special trial counsel determines that
II-2
there is a known or related offense, the special trial counsel must
affirmatively act in furtherance of special trial counsel’s statutory
duties under Article 24a(c) to exercise authority over that offense.
When a special trial counsel exercises authority over any reported
offense, the special trial counsel shall notify the suspect’s special
court-martial convening authority. See R.C.M. 303A(e).
(13) “Explosive” means gunpowders; powders used
for blasting; all forms of high explosives; blasting
materials; fuzes (other than electrical circuit breakers),
detonators, and other detonating agents; smokeless
powders; any explosive bomb, grenade, missile, or
similar device; any incendiary bomb or grenade, fire
bomb, or similar device; and any other compound,
mixture, or device which is an explosive within the
meaning of 18 U.S.C. § 232(5) or 844(j).
(14) “Firearm” means any weapon that is designed
to or may be readily converted to expel any projectile
by the action of an explosive.
(15) “Joint” in connection with military organization
connotes activities, operations, organizations, and the
like in which elements of more than one military
service of the same nation participate.
(16) “Lead Special Trial Counsel” within the
Department of Defense means a general or flag officer
with significant experience in military justice who is
responsible for a dedicated office within each Military
Department from which office the Lead Special Trial
Counsel will provide for the overall supervision and
oversight of the activities of the special trial counsel of
a Military Department or Military Service, and who
reports directly to the Secretary concerned, without
intervening authority.
(17) “Members.” The members of a court-martial are
the voting members detailed by the convening
authority.
(18) “Military judge” means a judge advocate
designated under Article 26(c) who is detailed under
Article 26(a) or Article 30a to preside over a general or
special court-martial or proceeding before referral. In
the context of a summary court-martial, “military
judge” means the summary court-martial officer. In the
context of a pre-referral proceeding or a special court-
martial consisting of a military judge alone, “military
judge” includes a military magistrate designated under
Article 19 or Article 30a.
(19) “Military magistrate” means a commissioned
officer of the armed forces certified under Article 26a
who is performing duties under Article 19 or 30a.
(20) “Party,” in the context of parties to a court-
martial or other proceeding under these rules, means:
(A) The accused and any defense or associate or
assistant defense counsel and agents of the defense
counsel when acting on behalf of the accused with
respect to the court-martial or proceeding in question;
and
(B) Any trial or assistant trial counsel representing
the United States, and agents of the trial counsel or
such counsel when acting on behalf of the United
States with respect to the court-martial or proceeding
in question.
(21) “Preferral” is the act by which a person subject
to the UCMJ formally accuses another person subject
to the UCMJ of an offense, in accordance with R.C.M.
307(b).
(22) “Referral” is the order of a convening authority
or a special trial counsel that one or more charges and
specifications against an accused will be tried by a
specified court-martial.
(23) “Referral authority” means a convening
authority or special trial counsel who may order that
one or more charges and specifications against an
accused be tried by a specified court-martial pursuant
to R.C.M. 601.
(24) “Special trial counsel” means a judge advocate
who is qualified, certified, and assigned as such by the
Judge Advocate General of the armed force of which
the officer is a member, or, in the case of the Marine
Corps, by the Staff Judge Advocate to the
Commandant of the Marine Corps, and who is
independent of the military chains of command of both
the victim and those accused of covered offenses over
which a special trial counsel at any time exercises
authority in accordance with Article 24a. Special trial
counsel shall be well-trained, experienced, highly
skilled and competent in handling cases involving
covered offenses. Within the Department of Defense,
special trial counsel work within dedicated offices
under the overall supervision and oversight of a Lead
Special Trial Counsel. Within the Coast Guard, special
trial counsel work under the overall supervision and
oversight of an officer designated under regulations
prescribed by the Commandant of the Coast Guard.
(25) “Staff judge advocate” means a judge advocate
so designated in the Army, Air Force, or Marine Corps,
and means the principal legal advisor of a command in
the Navy and Coast Guard who is a judge advocate.
II-3
(26) “Sua sponte” means that the person involved
acts on that person’s initiative, without the need for a
request, motion, or application.
(27) “Trial counsel,” unless otherwise specified in
these rules, includes special trial counsel.
(28) “UCMJ” refers to the Uniform Code of Military
Justice.
Discussion
The Uniform Code of Military Justice is set forth at Appendix 2.
(29) “War, time of.” For purposes of R.C.M.
1004(c)(6) and of implementing the applicable
paragraphs of Parts IV and V of this Manual only,
“time of war” means a period of war declared by
Congress, or the factual determination by the President
that the existence of hostilities warrants a finding that
a “time of war” exists for purposes of R.C.M.
1004(c)(6) and Parts IV and V of this Manual.
(30) The terms “writings” and “recordings” have the
same meaning as in Mil. R. Evid. 1001.
Discussion
The definition of “writing” includes letters, words, or numbers set
down by handwriting, typewriting, printing, photostating,
photographing, magnetic impulse, mechanical or electronic
recording, or any other form of data compilation. This section makes
it clear that computers and other modern reproduction systems are
included in this definition, and consistent with the definition of
“writing” in Military Rule of Evidence 1001. The definition is
comprehensive, covering all forms of writing or recording of words
or word-substitutes.
(31) The definitions and rules of construction in 1
U.S.C. §§ 1 through 5 and in 10 U.S.C. §§ 101 and 801.
Discussion
The following provisions are set forth below:
(1) 1 U.S.C. §§ 1 through 5.
(2) 10 U.S.C. § 101.
(3) 10 U.S.C. § 801 (Article 1).
(1) 1 U.S.C. §1 through §5
§1. Words denoting number, gender, and so forth
In determining the meaning of any Act of Congress, unless the
context indicates otherwise—
words importing the singular include and apply to several
persons, parties, or things;
words importing the plural include the singular;
words importing the masculine gender include the feminine as
well;
words used in the present tense include the future as well as the
present;
the words “insane” and “insane person” shall include every
idiot, insane person, and person non compos mentis;
the words “person” and “whoever” include corporations,
companies, associations, firms, partnerships, societies, and joint
stock companies, as well as individuals;
“officer” includes any person authorized by law to perform the
duties of the office;
“signature” or “subscription” includes a mark when the person
making the same intended it as such;
“oath” includes affirmation, and “sworn” includes affirmed;
“writing” includes printing and typewriting and reproductions
of visual symbols by photographing, multigraphing,
mimeographing, manifolding, or otherwise.
§2. “County” as including “parish”, and so forth
The word “county” includes a parish, or any other equivalent
subdivision of a State or Territory of the United States.
§3. “Vessel” as including all means of water transportation
The word “vessel” includes every description of watercraft or
other artificial contrivance used, or capable of being used, as a means
of transportation on water.
§4. “Vehicle” as including all means of land transportation
The word “vehicle” includes every description of carriage or
other artificial contrivance used, or capable of being used, as a means
of transportation on land.
§5. “Company” or “association” as including successors and
assigns
The word “company” or “association”, when used in reference
to a corporation, shall be deemed to embrace the words “successors
and assigns of such company or association”, in like manner as if
these last-named words, or words of similar import, were expressed.
(2) 10 U.S.C. § 101
§101. Definitions
(a) I
N GENERAL.—The following definitions apply in this title:
(1) The term “United States”, in a geographic sense, means the
States and the District of Columbia.
[(2) Repealed. Pub. L. 109–163, div. A, title X, §1057(a)(1),
Jan. 6, 2006, 119 Stat. 3440.]
(3) The term “possessions” includes the Virgin Islands, Guam,
American Samoa, and the Guano Islands, so long as they remain
possessions, but does not include any Commonwealth.
(4) The term “armed forces” means the Army, Navy, Air Force,
Marine Corps, and Coast Guard.
(5) The term “uniformed services” means—
(A) the armed forces;
(B) the commissioned corps of the National Oceanic and
Atmospheric Administration; and
(C) the commissioned corps of the Public Health Service.
(6) The term “department”, when used with respect to a
military department, means the executive part of the department and
all field headquarters, forces, reserve components, installations,
II-4
activities, and functions under the control or supervision of the
Secretary of the department. When used with respect to the
Department of Defense, such term means the executive part of the
department, including the executive parts of the military
departments, and all field headquarters, forces, reserve components,
installations, activities, and functions under the control or
supervision of the Secretary of Defense, including those of the
military departments.
(7) The term “executive part of the department” means the
executive part of the Department of Defense, Department of the
Army, Department of the Navy, or Department of the Air Force, as
the case may be, at the seat of government.
(8) The term “military departments” means the Department of
the Army, the Department of the Navy, and the Department of the
Air Force.
(9) The term “Secretary concerned” means—
(A) the Secretary of the Army, with respect to matters
concerning the Army;
(B) the Secretary of the Navy, with respect to matters
concerning the Navy, the Marine Corps, and the Coast Guard when
it is operating as a service in the Navy;
(C) the Secretary of the Air Force, with respect to matters
concerning the Air Force; and
(D) the Secretary of Homeland Security, with respect to
matters concerning the Coast Guard when it is not operating as a
service in the Department of the Navy.
(10) The term “service acquisition executive” means the
civilian official within a military department who is designated as
the service acquisition executive for purposes of regulations and
procedures providing for a service acquisition executive for that
military department.
(11) The term “Defense Agency” means an organizational
entity of the Department of Defense—
(A) that is established by the Secretary of Defense under
section 191 of this title (or under the second sentence of section
125(d) of this title (as in effect before October 1, 1986)) to perform
a supply or service activity common to more than one military
department (other than such an entity that is designated by the
Secretary as a Department of Defense Field Activity); or
(B) that is designated by the Secretary of Defense as a
Defense Agency.
(12) The term “Department of Defense Field Activity” means
an organizational entity of the Department of Defense—
(A) that is established by the Secretary of Defense under
section 191 of this title (or under the second sentence of section
125(d) of this title (as in effect before October 1, 1986)) to perform
a supply or service activity common to more than one military
department; and
(B) that is designated by the Secretary of Defense as a
Department of Defense Field Activity.
(13) The term “contingency operation” means a military
operation that—
(A) is designated by the Secretary of Defense as an
operation in which members of the armed forces are or may become
involved in military actions, operations, or hostilities against an
enemy of the United States or against an opposing military force; or
(B) results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12304a, 12305, or 12406 of this title, chapter 15 of
this title, section 712 of title 14, or any other provision of law during
a war or during a national emergency declared by the President or
Congress.
(14) The term “supplies” includes material, equipment, and
stores of all kinds.
(15) The term “pay” includes basic pay, special pay, retainer
pay, incentive pay, retired pay, and equivalent pay, but does not
include allowances.
(16) The term “congressional defense committees” means—
(A) the Committee on Armed Services and the Committee
on Appropriations of the Senate; and
(B) the Committee on Armed Services and the Committee
on Appropriations of the House of Representatives.
(17) The term “base closure law” means the following:
(A) Section 2687 of this title.
(B) The Defense Base Closure and Realignment Act of 1990
(part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).
(C) Title II of the Defense Authorization Amendments and
Base Closure and Realignment Act (Public Law 100–526; 10 U.S.C.
2687 note).
(18) The term “acquisition workforce” means the persons
serving in acquisition positions within the Department of Defense,
as designated pursuant to section 1721(a) of this title.
(b) P
ERSONNEL GENERALLY.—The following definitions relating
to military personnel apply in this title:
(1) The term “officer” means a commissioned or warrant
officer.
(2) The term “commissioned officer” includes a commissioned
warrant officer.
(3) The term “warrant officer” means a person who holds a
commission or warrant in a warrant officer grade.
(4) The term “general officer” means an officer of the Army,
Air Force, or Marine Corps serving in or having the grade of general,
lieutenant general, major general, or brigadier general.
(5) The term “flag officer” means an officer of the Navy or
Coast Guard serving in or having the grade of admiral, vice admiral,
rear admiral, or rear admiral (lower half).
(6) The term “enlisted member” means a person in an enlisted
grade.
(7) The term “grade” means a step or degree, in a graduated
scale of office or military rank, that is established and designated as
a grade by law or regulation.
(8) The term “rank” means the order of precedence among
members of the armed forces.
(9) The term “rating” means the name (such as “boatswain’s
mate”) prescribed for members of an armed force in an occupational
field. The term “rate” means the name (such as “chief boatswain’s
mate”) prescribed for members in the same rating or other category
who are in the same grade (such as chief petty officer or seaman
apprentice).
(10) The term “original”, with respect to the appointment of a
member of the armed forces in a regular or reserve component, refers
to that member’s most recent appointment in that component that is
neither a promotion nor a demotion.
(11) The term “authorized strength” means the largest number
of members authorized to be in an armed force, a component, a
branch, a grade, or any other category of the armed forces.
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(12) The term “regular”, with respect to an enlistment,
appointment, grade, or office, means enlistment, appointment, grade,
or office in a regular component of an armed force.
(13) The term “active-duty list” means a single list for the
Army, Navy, Air Force, or Marine Corps (required to be maintained
under section 620 of this title) which contains the names of all
officers of that armed force, other than officers described in section
641 of this title, who are serving on active duty.
(14) The term “medical officer” means an officer of the
Medical Corps of the Army, an officer of the Medical Corps of the
Navy, or an officer in the Air Force designated as a medical officer.
(15) The term “dental officer” means an officer of the Dental
Corps of the Army, an officer of the Dental Corps of the Navy, or an
officer of the Air Force designated as a dental officer.
(16) The term “Active Guard and Reserve” means a member
of a reserve component who is on active duty pursuant to section
12301(d) of this title or, if a member of the Army National Guard or
Air National Guard, is on full-time National Guard duty pursuant to
section 502(f) of title 32, and who is performing Active Guard and
Reserve duty.
(c) R
ESERVE COMPONENTS.—The following definitions relating
to the reserve components apply in this title:
(1) The term “National Guard” means the Army National
Guard and the Air National Guard.
(2) The term “Army National Guard” means that part of the
organized militia of the several States and Territories, Puerto Rico,
and the District of Columbia, active and inactive, that—
(A) is a land force;
(B) is trained, and has its officers appointed, under the
sixteenth clause of section 8, article I, of the Constitution;
(C) is organized, armed, and equipped wholly or partly at
Federal expense; and
(D) is federally recognized.
(3) The term “Army National Guard of the United States”
means the reserve component of the Army all of whose members are
members of the Army National Guard.
(4) The term “Air National Guard” means that part of the
organized militia of the several States and Territories, Puerto Rico,
and the District of Columbia, active and inactive, that—
(A) is an air force;
(B) is trained, and has its officers appointed, under the
sixteenth clause of section 8, article I, of the Constitution;
(C) is organized, armed, and equipped wholly or partly at
Federal expense; and
(D) is federally recognized.
(5) The term “Air National Guard of the United States” means
the reserve component of the Air Force all of whose members are
members of the Air National Guard.
(6) The term “reserve”, with respect to an enlistment,
appointment, grade, or office, means enlistment, appointment, grade,
or office held as a Reserve of one of the armed forces.
(7) The term “reserve active-status list” means a single list for
the Army, Navy, Air Force, or Marine Corps (required to be
maintained under section 14002 of this title) that contains the names
of all officers of that armed force except warrant officers (including
commissioned warrant officers) who are in an active status in a
reserve component of the Army, Navy, Air Force, or Marine Corps
and are not on an active-duty list.
(d) D
UTY STATUS.—The following definitions relating to duty
status apply in this title:
(1) The term “active duty” means full-time duty in the active
military service of the United States. Such term includes full-time
training duty, annual training duty, and attendance, while in the
active military service, at a school designated as a service school by
law or by the Secretary of the military department concerned. Such
term does not include full-time National Guard duty.
(2) The term “active duty for a period of more than 30 days”
means active duty under a call or order that does not specify a period
of 30 days or less.
(3) The term “active service” means service on active duty or
full-time National Guard duty.
(4) The term “active status” means the status of a member of a
reserve component who is not in the inactive Army National Guard
or inactive Air National Guard, on an inactive status list, or in the
Retired Reserve.
(5) The term “full-time National Guard duty” means training
or other duty, other than inactive duty, performed by a member of
the Army National Guard of the United States or the Air National
Guard of the United States in the member’s status as a member of
the National Guard of a State or territory, the Commonwealth of
Puerto Rico, or the District of Columbia under section 316, 502, 503,
504, or 505 of title 32 for which the member is entitled to pay from
the United States or for which the member has waived pay from the
United States.
(6) The term “active Guard and Reserve duty” means—
(A) active duty performed by a member of a reserve
component of the Army, Navy, Air Force, or Marine Corps, or full-
time National Guard duty performed by a member of the National
Guard pursuant to an order to full-time National Guard duty, for a
period of 180 consecutive days or more for the purpose of
organizing, administering, recruiting, instructing, or training the
reserve components.
(B) Such term does not include the following:
(i) Duty performed as a member of the Reserve Forces
Policy Board provided for under section 10301 of this title.
(ii) Duty performed as a property and fiscal officer under
section 708 of title 32.
(iii) Duty performed for the purpose of interdiction and
counter-drug activities for which funds have been provided under
section 112 of title 32.
(iv) Duty performed as a general or flag officer.
(v) Service as a State director of the Selective Service
System under section 10(b)(2) of the Military Selective Service Act
(50 U.S.C. 3809(b)(2)).
(7) The term “inactive-duty training” means—
(A) duty prescribed for Reserves by the Secretary concerned
under section 206 of title 37 or any other provision of law; and
(B) special additional duties authorized for Reserves by an
authority designated by the Secretary concerned and performed by
them on a voluntary basis in connection with the prescribed training
or maintenance activities of the units to which they are assigned.
Such term includes those duties when performed by Reserves in
their status as members of the National Guard.
(e) F
ACILITIES AND OPERATIONS.—The following definitions
relating to facilities and operations apply in this title:
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(1) RANGE.—The term “range”, when used in a geographic
sense, means a designated land or water area that is set aside,
managed, and used for range activities of the Department of Defense.
Such term includes the following:
(A) Firing lines and positions, maneuver areas, firing lanes,
test pads, detonation pads, impact areas, electronic scoring sites,
buffer zones with restricted access, and exclusionary areas.
(B) Airspace areas designated for military use in accordance
with regulations and procedures prescribed by the Administrator of
the Federal Aviation Administration.
(2) R
ANGE ACTIVITIES.—The term “range activities” means—
(A) research, development, testing, and evaluation of
military munitions, other ordnance, and weapons systems; and
(B) the training of members of the armed forces in the use
and handling of military munitions, other ordnance, and weapons
systems.
(3) O
PERATIONAL RANGE.—The term “operational range”
means a range that is under the jurisdiction, custody, or control of
the Secretary of a military department and—
(A) that is used for range activities, or
(B) although not currently being used for range activities,
that is still considered by the Secretary to be a range and has not been
put to a new use that is incompatible with range activities.
(4) M
ILITARY MUNITIONS.—
(A) The term “military munitions” means all ammunition
products and components produced for or used by the armed forces
for national defense and security, including ammunition products or
components under the control of the Department of Defense, the
Coast Guard, the Department of Energy, and the National Guard.
(B) Such term includes the following:
(i) Confined gaseous, liquid, and solid propellants.
(ii) Explosives, pyrotechnics, chemical and riot control
agents, smokes, and incendiaries, including bulk explosives and
chemical warfare agents.
(iii) Chemical munitions, rockets, guided and ballistic
missiles, bombs, warheads, mortar rounds, artillery ammunition,
small arms ammunition, grenades, mines, torpedoes, depth charges,
cluster munitions and dispensers, and demolition charges.
(iv) Devices and components of any item specified in
clauses (i) through (iii).
(C) Such term does not include the following:
(i) Wholly inert items.
(ii) Improvised explosive devices.
(iii) Nuclear weapons, nuclear devices, and nuclear
components, other than nonnuclear components of nuclear devices
that are managed under the nuclear weapons program of the
Department of Energy after all required sanitization operations
under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) have
been completed.
(5) U
NEXPLODED ORDNANCE.—The term “unexploded
ordnance” means military munitions that—
(A) have been primed, fused, armed, or otherwise prepared
for action;
(B) have been fired, dropped, launched, projected, or placed
in such a manner as to constitute a hazard to operations, installations,
personnel, or material; and
(C) remain unexploded, whether by malfunction, design, or
any other cause.
(f) R
ULES OF CONSTRUCTION.—In this title—
(1) “shall” is used in an imperative sense;
(2) “may” is used in a permissive sense;
(3) “no person may * * *” means that no person is required,
authorized, or permitted to do the act prescribed;
(4) “includes” means “includes but is not limited to”; and
(5) “spouse” means husband or wife, as the case may be.
(g) R
EFERENCE TO TITLE 1 DEFINITIONS.—For other definitions
applicable to this title, see sections 1 through 5 of title 1.
(3) 10 U.S.C. § 801 (Article 1)
§801. Article 1. Definitions
In this chapter (the Uniform Code of Military Justice):
(1) The term “Judge Advocate General” means, severally, the
Judge Advocates General of the Army, Navy, and Air Force and,
except when the Coast Guard is operating as a service in the Navy,
an official designated to serve as Judge Advocate General of the
Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it
is operating as a service in the Navy, shall be considered as one
armed force.
(3) The term “commanding officer” includes only
commissioned officers.
(4) The term “officer in charge” means a member of the Navy,
the Marine Corps, or the Coast Guard designated as such by
appropriate authority.
(5) The term “superior commissioned officer” means a
commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States
Military Academy, the United States Air Force Academy, or the
United States Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United
States Naval Academy and any other midshipman on active duty in
the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears
to charges, any person who directs that charges nominally be signed
and sworn to by another, and any other person who has an interest
other than an official interest in the prosecution of the accused.
(10) The term “military judge” means a judge advocate
designated under section 826(c) of this title (article 26(c)) who is
detailed under section 826(a) or section 830a of this title (article
26(a) or 30a)).
[(11) Repealed. Pub. L. 109–241, title II, §218(a)(1), July 11,
2006, 120 Stat. 526.]
(12) The term “legal officer” means any commissioned officer
of the Navy, Marine Corps, or Coast Guard designated to perform
legal duties for a command.
(13) The term “judge advocate” means—
(A) an officer of the Judge Advocate General’s Corps of the
Army, the Navy, or the Air Force;
(B) an officer of the Marine Corps who is designated as a
judge advocate; or
(C) a commissioned officer of the Coast Guard designated
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for special duty (law).
(14) The term “record”, when used in connection with the
proceedings of a court-martial, means—
(A) an official written transcript, written summary, or other
writing relating to the proceedings; or
(B) an official audiotape, videotape, or similar material from
which sound, or sound and visual images, depicting the proceedings
may be reproduced.
(15) The term “classified information” means (A) any
information or material that has been determined by an official of the
United States pursuant to law, an Executive order, or regulation to
require protection against unauthorized disclosure for reasons of
national security, and (B) any restricted data, as defined in section
11(y) of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).
(16) The term “national security” means the national defense
and foreign relations of the United States.
Rule 104. Command influence
(a) General prohibitions.
(1) Convening authorities and commanders.
(A) No court-martial convening authority, nor any
other commanding officer, may censure, reprimand, or
admonish a court-martial or other military tribunal or
any member, military judge, or counsel thereof, with
respect to the findings or sentence adjudged by the
court-martial or tribunal, or with respect to any other
exercise of the functions of the court-martial or tribunal
or such persons in the conduct of the proceedings.
(B) No court-martial convening authority, nor any
other commanding officer, may deter or attempt to
deter a potential witness from participating in the
investigatory process or testifying at a court-martial.
The denial of a request to travel at government expense
or refusal to make a witness available shall not by itself
constitute unlawful command influence.
(2) All persons subject to the UCMJ. No person
subject to the UCMJ may attempt to coerce or, by any
unauthorized means, attempt to influence the action of
a court-martial or any other military tribunal or any
member thereof, in reaching the findings or sentence in
any case or the action of any preliminary hearing
officer or convening, approving, or reviewing
authority with respect to such preliminary hearing
officer’s or authority’s acts concerning the following:
any decision to place a Servicemember into pretrial
confinement; disposition decisions; rulings on pre-
referral matters; findings at a preliminary hearing;
convening a court-martial; decisions concerning plea
agreements; selecting members; decisions concerning
witness requests; taking action on any clemency or
deferment request; or any appellate or post-trial review
of a case.
(3) Scope.
(A) Instructions. Paragraphs (a)(1) and (2) of this
rule do not prohibit general instructional or
informational courses in military justice if such courses
are designed solely for the purpose of instructing
personnel of a command in the substantive and
procedural aspects of courts-martial.
(B) Court-martial statements. Paragraphs (a)(1)
and (2) of this rule do not prohibit statements and
instructions given in open session by the military judge
or counsel.
(C) Professional supervision. Paragraphs (a)(1)
and (2) of this rule do not prohibit action by the Judge
Advocate General concerned under R.C.M. 109.
(D) Offense. Paragraphs (a)(1) and (2) of this rule
do not prohibit appropriate action against a person for
an offense committed while detailed as a military
judge, counsel, or member of a court-martial, or while
serving as individual counsel.
(E) General statements regarding criminal
activity or offenses. Paragraphs (a)(1) and (2) of this
rule do not prohibit statements regarding criminal
activity or a particular criminal offense that do not
advocate a particular disposition, do not advocate a
particular court-martial finding or sentence, and do not
relate to a particular accused.
(b) Communication between superiors and
subordinates.
(1) A superior convening authority or officer may
generally discuss matters to consider regarding the
disposition of alleged violations of the UCMJ with a
subordinate convening authority or officer, and a
subordinate convening authority or officer may seek
advice from a superior convening authority or officer
regarding the disposition of an alleged offense under
the UCMJ.
(2) All persons subject to the UCMJ. No person
subject to the UCMJ may attempt to coerce or, by any
unauthorized means, attempt to influence the action of:
(A) a court-m
artial or any other military tribunal
or any member thereof, in reaching the findings or
sentence in any case or the action of any case; or
(B) any preliminary hearing officer or convening,
referral, approving, or reviewing authority with respect
to such preliminary hearing officer’s or authority’s acts
concerning the following:
(i) any decision to place a service member into
pretrial confinement;
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(ii) disposition decisions;
(iii) rulings on pre-referral matters;
(iv) findings at a preliminary hearing;
(v) convening a court-martial;
(vi) decisions concerning plea agreements;
(vii) selecting members;
(viii) decisions concerning witness requests;
(ix) taking action on the findings or sentence;
(x) taking action on any clemency or deferment
request; or
(xi) any appellate or post-trial review of a case.
Discussion
See also Article 37(d)(2) (“Except as provided in paragraph (1)
[Article 37(d)(1)] or as otherwise authorized by this chapter, a
superior convening authority or commanding officer may not limit
the discretion of a subordinate convening authority or officer to act
with respect to a case for which the subordinate convening authority
or officer has authority to dispose of the offenses.”)
(c) Prohibitions concerning evaluations.
(1) Evaluation of members, defense counsel, and
special victims’ counsel. In the preparation of an
effectiveness, fitness, or efficiency report or any other
report or document used in whole or in part for the
purpose of determining whether a member of the
armed forces is qualified to be advanced in grade, or in
determining the assignment or transfer of a member of
the armed forces, or in determining whether a member
of the armed forces should be retained on active duty,
no person subject to the UCMJ may:
(A) Consider or evaluate the performance of
duty of any such person as a member of a court-martial;
or
(B) Give a less favorable rating or evaluation of
any defense counsel or special victims’ counsel
because of the zeal with which such counsel
represented any client. As used in this rule, “special
victims’ counsel” are judge advocates and civilian
counsel, who, in accordance with 10 U.S.C. § 1044e,
are designated as Special Victims’ Counsel.
Discussion
For evaluations of military judges, see generally Article 26(c) and
Article 37.
R.C.M. 104(c)(1)(B) applies when the counsel in question has
been detailed, assigned, or authorized to represent the client as a
defense or special victims’ counsel. Nothing in this rule prohibits
supervisors from taking appropriate action for violations of ethical,
procedural, or other rules, or for conduct outside the scope of
representation.
“Special victims’ counsel,” as used in R.C.M. 104(c)(1)(B),
includes victims’ legal counsel within the Navy and Marine Corps
and victims’ counsel within the Department of the Air Force.
See paragraph 87 of Part IV concerning prosecuting violations
of Article 37 under Article 131f.
(d) Command discretion.
(1) A superior convening authority or commanding
officer may withhold the authority of a subordinate
convening authority or officer to dispose of offenses in
individual cases, types of cases, or generally.
(2) Except as provided in paragraph (d)(1) of this
rule or as otherwise authorized under the UCMJ, a
superior convening authority or commanding officer
may not limit the discretion of a subordinate convening
authority or officer to act with respect to a case for
which the subordinate convening authority or officer
has the authority to dispose of the offenses.
Rule 105. Direct communications: convening
authorities and staff judge advocates; among staff
judge advocates; with special trial counsel
(a) Convening authorities and staff judge advocates.
Convening authorities shall at all times communicate
directly with their staff judge advocates in matters
relating to the administration of military justice, and
may communicate directly with special trial counsel,
although any input by the convening authority
regarding case dispositions shall be non-binding on the
special trial counsel for cases involving covered,
known, and related offenses.
Discussion
See R.C.M. 103(18) for a definition of staff judge advocate.
(b) Among staff judge advocates and with the Judge
Advocate General. The staff judge advocate of any
command is entitled to communicate directly with the
staff judge advocate of a superior or subordinate
command, the Judge Advocate General, or, in the case
of the Marine Corps, the Staff Judge Advocate to the
Commandant of the Marine Corps.
(c) Communications among special trial counsel, staff
judge advocates, and convening authorities. Special
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trial counsel, staff judge advocates, and convening
authorities may communicate directly while ensuring
that all communications regarding case disposition for
covered, related, and known offenses are non-binding
on the special trial counsel.
(d) Free from unlawful or unauthorized influence or
coercion. All communications referenced in this rule
shall be free from unlawful or unauthorized influence
or coercion.
Discussion
See Article 37, UCMJ and 10 U.S.C. §1044f.
Rule 106. Delivery of military offenders to civilian
authorities
Under such regulations as the Secretary concerned may
prescribe, a member of the armed forces accused of an
offense against civilian authority may be delivered,
upon request, to the civilian authority for trial. A
member may be placed in restraint by military
authorities for this purpose only upon receipt of a duly
issued warrant for the apprehension of the member or
upon receipt of information establishing probable
cause that the member committed an offense, and upon
reasonable belief that such restraint is necessary. Such
restraint may continue only for such time as is
reasonably necessary to effect the delivery.
Discussion
See R.C.M. 1102(b)(2)(C)(ii) for the effect of such delivery on the
execution of a court-martial sentence.
Rule 107. Dismissed officer’s right to request trial
by court-martial
If a commissioned officer of any armed force is
dismissed by order of the President under 10 U.S.C. §
1161(a)(3), that officer may apply for trial by general
court-martial within a reasonable time.
Discussion
See Article 4 for the procedures to be followed. See also Article
75(c).
Rule 108. Rules of court
The Judge Advocate General concerned and persons
designated by the Judge Advocate General may make
rules of court not inconsistent with these rules for the
conduct of court-martial proceedings. Such rules shall
be disseminated in accordance with procedures
prescribed by the Judge Advocate General concerned
or a person to whom this authority has been delegated.
Noncompliance with such procedures shall not affect
the validity of any rule of court with respect to a party
who has received actual and timely notice of the rule
or who has not been prejudiced under Article 59 by the
absence of such notice. Copies of all rules of court
issued under this rule shall be forwarded to the Judge
Advocate General concerned.
Rule 109. Professional supervision of military
judges and counsel
(a) In general. Each Judge Advocate General is
responsible for the professional supervision and
discipline of appellate military judges, military judges,
military magistrates, judge advocates, and other
lawyers who practice in proceedings governed by the
UCMJ and this Manual. To discharge this
responsibility each Judge Advocate General may
prescribe rules of professional conduct not inconsistent
with this rule or this Manual. Rules of professional
conduct promulgated pursuant to this rule may include
sanctions for violations of such rules. Sanctions may
include but are not limited to indefinite suspension
from practice in courts-martial and in the Courts of
Criminal Appeals. Such suspensions may only be
imposed by the Judge Advocate General of the armed
service of such courts. Prior to imposing any discipline
under this rule, the subject of the proposed action must
be provided notice and an opportunity to be heard. The
Judge Advocate General concerned may upon good
cause shown modify or revoke suspension. Procedures
to investigate complaints against appellate military
judges, military judges, and military magistrates are
contained in subsection (c) of this rule.
(b) Action after suspension or disbarment. When a
Judge Advocate General suspends a person from
practice or the Court of Appeals for the Armed Forces
disbars a person, any Judge Advocate General may
suspend that person from practice upon written notice
and opportunity to be heard in writing.
(c) Investigation of judges.
(1) In general. These rules and procedures
promulgated pursuant to Article 6a are established to
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investigate and dispose of charges, allegations, or
information pertaining to the fitness of an appellate
military judge, military judge, or military magistrate to
perform the duties of the judge’s or magistrate’s office.
(2) Policy. Allegations of judicial misconduct or
unfitness shall be investigated pursuant to the
procedures of this rule and appropriate action shall be
taken. Judicial misconduct includes any act or
omission that may serve to demonstrate unfitness for
further duty as a judge or magistrate, including, but not
limited to violations of applicable ethical standards.
Discussion
The term “unfitness” should be construed broadly, including, for
example, matters relating to the incompetence, impartiality, and
misconduct of the appellate military judge, military judge, or
military magistrate. Erroneous decisions of a judge are not subject to
investigation under this rule. Challenges to these decisions are more
appropriately left to the appellate process.
(3) Complaints. Complaints concerning an appellate
military judge, military judge, or military magistrate
will be forwarded to the Judge Advocate General of the
Service concerned or to a person designated by the
Judge Advocate General concerned to receive such
complaints.
Discussion
Complaints need not be made in any specific form, but if possible
complaints should be made under oath. Complaints may be made by
judges, lawyers, a party, court personnel, members of the general
public or members of the military community. Reports in the news
media relating to the conduct of an appellate military judge, military
judge, or military magistrate may also form the basis of a complaint.
An individual designated to receive complaints under this
paragraph should have judicial experience. The chief trial judge of a
Service may be designated to receive complaints against military
judges and military magistrates. Military magistrates who perform
other duties may be investigated in their capacity other than as a
magistrate through the process established by the Judge Advocate
General concerned in accordance with R.C.M. 109(a).
(4) Initial action upon receipt of a complaint. Upon
receipt, a complaint will be screened by the Judge
Advocate General concerned or by the individual
designated in paragraph (c)(3) of this rule to receive
complaints. An initial inquiry is necessary if the
complaint, taken as true, would constitute judicial
misconduct or unfitness for further service as an
appellate military judge, a military judge, or military
magistrate. Prior to the commencement of an initial
inquiry, the Judge Advocate General concerned shall
be notified that a complaint has been filed and that an
initial inquiry will be conducted. The Judge Advocate
General concerned may temporarily suspend the
subject of a complaint from performing judicial duties
pending the outcome of any inquiry or investigation
conducted pursuant to this rule. Such inquiries or
investigations shall be conducted with reasonable
promptness.
Discussion
Complaints under this paragraph will be treated with confidentiality.
Confidentiality protects the subject appellate military judge, military
judge, or military magistrate and the judiciary when a complaint is
not substantiated. Confidentiality also encourages the reporting of
allegations of judicial misconduct or unfitness and permits
complaints to be screened with the full cooperation of others.
Complaints containing allegations of criminality should be
referred to the appropriate criminal investigative agency in
accordance with Appendix 3 of this Manual.
(5) Initial inquiry.
(A) In general. An initial inquiry is necessary to
determine if the complaint is substantiated. A
complaint is substantiated upon finding that it is more
likely than not that the subject appellate military judge,
military judge, or military magistrate has engaged in
judicial misconduct or is otherwise unfit for further
service as a judge or magistrate.
(B) Responsibility to conduct initial inquiry. The
Judge Advocate General concerned, or the person
designated to receive complaints under paragraph
(c)(3) of this rule will conduct or order an initial
inquiry. The individual designated to conduct the
inquiry should, if practicable, be senior to the subject
of the complaint. If the subject of the complaint is a
military judge or military magistrate, the individual
designated to conduct the initial inquiry should, if
practicable, be a military judge or an individual with
experience as a military judge. If the subject of the
complaint is an appellate military judge, the individual
designated to conduct the inquiry should, if
practicable, have experience as an appellate judge.
Discussion
To avoid the type of conflict prohibited in Article 66(i), the Judge
Advocate General’s designee should not ordinarily be a member of
the same Court of Criminal Appeals as the subject of the complaint.
If practicable, a former appellate military judge should be
designated.
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(C) Due process. During the initial inquiry, the
subject of the complaint will, at a minimum, be given
notice and an opportunity to be heard.
(D) Action following the initial inquiry. If the
complaint is not substantiated pursuant to subsection
(c)(5)(A) of this rule, the complaint shall be dismissed
as unfounded. If the complaint is substantiated, minor
professional disciplinary action may be taken or the
complaint may be forwarded, with findings and
recommendations, to the Judge Advocate General
concerned. Minor professional disciplinary action is
defined as counseling or the issuance of an oral or
written admonition or reprimand. The Judge Advocate
General concerned will be notified prior to taking
minor professional disciplinary action or dismissing a
complaint as unfounded.
(6) Action by the Judge Advocate General.
(A) In general. The Judge Advocates General are
responsible for the professional supervision and
discipline of appellate military judges, military judges,
and military magistrates under their jurisdiction. Upon
receipt of findings and recommendations required by
paragraph (c)(5) of this rule the Judge Advocate
General concerned will take appropriate action.
(B) Appropriate actions. The Judge Advocate
General concerned may dismiss the complaint, order
an additional inquiry, appoint an ethics commission to
consider the complaint, refer the matter to another
appropriate investigative agency or take appropriate
professional disciplinary action pursuant to the rules of
professional conduct prescribed by the Judge Advocate
General under subsection (a) of this rule. Any decision
of the Judge Advocate General, under this rule, is final
and is not subject to appeal.
Discussion
Reassignment of appellate military judges, military judges, and
military magistrates in accordance with Service regulations is not
professional disciplinary action.
(C) Standard of proof. Prior to taking professional
disciplinary action, other than minor professional
disciplinary action as defined in subparagraph
(c)(5)(D) of this rule, the Judge Advocate General
concerned shall find, in writing, that the subject of the
complaint engaged in judicial misconduct or is
otherwise unfit for continued service as an appellate
military judge, military judge, or military magistrate,
and that such misconduct or unfitness is established by
clear and convincing evidence.
(D) Due process. Prior to taking final action on the
complaint, the Judge Advocate General concerned will
ensure that the subject of the complaint is, at a
minimum, given notice and an opportunity to be heard.
(7) The Ethics Commission.
(A) Membership. If appointed pursuant to
subparagraph (c)(6)(B) of this rule, an ethics
commission shall consist of at least three members. If
the subject of the complaint is a military judge or
military magistrate, the commission should include
one or more military judges or individuals with
experience as a military judge. If the subject of the
complaint is an appellate military judge, the
commission should include one or more individuals
with experience as an appellate military judge.
Members of the commission should, if practicable, be
senior to the subject of the complaint.
(B) Duties. The commission will perform those
duties assigned by the Judge Advocate General
concerned. Normally, the commission will provide an
opinion as to whether the subject’s acts or omissions
constitute judicial misconduct or unfitness. If the
commission determines that the affected appellate
military judge, military judge, or military magistrate
engaged in judicial misconduct or is unfit for continued
judicial service, the commission may be required to
recommend an appropriate disposition to the Judge
Advocate General concerned.
Discussion
The Judge Advocate General concerned may appoint an ad hoc or a
standing commission.
(8) Rules of procedure. The Secretary of Defense or
the Secretary of the service concerned may establish
additional procedures consistent with this rule and
Article 6a.
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CHAPTER II. JURISDICTION
Rule 201. Jurisdiction in general
(a) Nature of courts-martial jurisdiction.
(1) The jurisdiction of courts-martial is entirely
penal or disciplinary.
Discussion
“Jurisdiction” means the power to hear a case and to render a legally
competent decision. A court-martial has no power to adjudge civil
remedies. For example, a court-martial may not adjudge the payment
of damages, collect private debts, order the return of property, or
order a criminal forfeiture of seized property. A summary court-
martial appointed under 10 U.S.C. §§ 4712 or 9712 to dispose of the
effects of a deceased person is not affected by these Rules or this
Manual.
(2) The UCMJ applies in all places.
Discussion
Except insofar as required by the Constitution, the UCMJ, or the
Manual, such as jurisdiction over persons listed under Article
2(a)(10), jurisdiction of courts-martial does not depend on where the
offense was committed.
(3) The jurisdiction of a court-martial with respect to
offenses under the UCMJ is not affected by the place
where the court-martial sits. The jurisdiction of a court-
martial with respect to military government or the law
of war is not affected by the place where the court-
martial sits except as otherwise expressly required by
this Manual or applicable rule of international law.
Discussion
In addition to the power to try persons for offenses under the UCMJ,
general courts-martial have power to try certain persons for
violations of the law of war and for crimes or offenses against the
law of the territory occupied as an incident of war or belligerency
whenever the local civil authority is superseded in whole or part by
the military authority of the occupying power. See R.C.M.
201(f)(1)(B). In cases where a person is tried by general court-
martial for offenses against the law of an occupied territory, the
court-martial normally sits in the country where the offense is
committed, and must do so under certain circumstances. See Articles
4, 64, and 66, Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, August 12, 1949, 6 U.S.T. 3516,
3559-60 T.I.A.S. No. 3365.
(b) Requisites of court-martial jurisdiction. A court-
martial always has jurisdiction to determine whether
it
has jurisdiction. Otherwise for a court-martial to have
jurisdiction:
(1) The court-martial must be convened by an
official empowered to convene it;
Discussion
See R.C.M. 504; 1302.
(2) The court-martial must be composed in
accordance with these rules with respect to number and
qualifications of its personnel. As used here
“personnel” includes only the military judge, the
members, and the summary court-martial;
Discussion
See R.C.M. 501-504; 1301.
(3) Each charge before the court-martial must be
referred to it by competent authority;
Discussion
See R.C.M. 601; see also R.C.M. 307. A commanding officer shall
not be considered an accuser under Article 1(9) solely due to the role
of the commanding officer in convening a general court-martial or a
special court-martial to which charges and specifications were
referred by a special trial counsel pursuant to Article 22(b) for
general courts-martial or Article 23(b) for special courts-martial, as
amended by Section 534 of the National Defense Authorization Act
for Fiscal Year 2022, Pub. L. No. 117-81, 135 Stat. 1541, 1696
(2021).
(4) The accused must be a person subject to court-
martial jurisdiction; and
Discussion
See R.C.M. 202.
(5) The offense must be subject to court-martial
jurisdiction.
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Discussion
See R.C.M. 203. The judgment of a court-martial without
jurisdiction is void and is entitled to no legal effect. See R.C.M.
907(b)(2)(C)(iv). But see R.C.M. 810(d) concerning the effect of
certain decisions by courts-martial without jurisdiction.
(c) [Reserved].
(d) Exclusive and nonexclusive jurisdiction.
(1) Courts-martial have exclusive jurisdiction of
purely military offenses.
(2) An act of omission that violates both the UCMJ
and local criminal law, foreign or domestic, may be
tried by a court-martial, or by a proper civilian tribunal,
foreign or domestic, or, subject to R.C.M. 907(b)(2)(C)
and regulations of the Secretary concerned, by both.
(3) Where an act or omission is subject to trial by
court-martial and by one or more civil tribunals,
foreign or domestic, the determination which nation,
state, or agency will exercise jurisdiction is a matter for
the nations, states, and agencies concerned, and is not
a right of the suspect or accused.
Discussion
In the case of an act or omission that violates the UCMJ and a
criminal law of a State, the United States, or both, the determination
which agency shall exercise jurisdiction should normally be made
through consultation or prior agreement between appropriate
military officials and appropriate civilian authorities (United States
Attorney, or equivalent). See also Memorandum of Understanding
(MOU) Between the Departments of Justice (DOJ) and Defense
Relating to the Investigation and Prosecution of Certain at Appendix
3; Memorandum of Understanding Between the Departments of
Justice and Transportation (Coast Guard) Relating to the
Investigations and Prosecution of Crimes Over Which the Two
Departments Have Concurrent Jurisdiction at Appendix 4.
Under the Constitution, a person generally may not be tried for
the same misconduct by both a court-martial and another federal
court. See R.C.M. 907(b)(2)(C). Although it is constitutionally
permissible to try a person by court-martial and by a state court for
the same act, as a matter of policy, a person who is pending trial or
has been tried by a state court should not ordinarily be tried by court-
martial for the same act. International agreements might preclude
trial by one state party to the treaty of a person acquitted or finally
convicted of a given act by another state party.
Under international law, a friendly foreign nation has
jurisdiction to punish offenses committed within its borders by
members of a visiting force, unless it expressly or impliedly consents
to relinquish its jurisdiction to the visiting sovereign. The procedures
and standards for determining which nation will exercise jurisdiction
are normally established by treaty. See, e.g., NATO Status of Forces
Agreement, June 19, 1951, 4 U.S.T. 1792, T.I.A.S. No. 2846. As a
matter of policy, efforts should be made to maximize the exercise of
court-martial jurisdiction over persons subject to the UCMJ to the
extent possible under applicable agreements.
See R.C.M. 106 concerning delivery of offenders to civilian
authorities.
See also R.C.M. 201(g) concerning the jurisdiction of other
military tribunals.
(e) Reciprocal jurisdiction.
(1) Each armed force has court-martial jurisdiction
over all persons subject to the UCMJ.
(2)(A) A commander of a unified or specified
combatant command may convene courts-martial over
members of any of the armed forces.
(B) So much of the authority vested in the
President under Article 22(a)(9), to empower any
commanding officer of a joint command or joint task
force to convene courts-martial is delegated to the
Secretary of Defense, and such a commanding officer
may convene general courts-martial for the trial of
members of any of the armed forces assigned or
attached to a combatant command or joint command.
(C) A commander who is empowered to convene
a court-martial under subparagraphs (e)(2)(A) or
(e)(2)(B) of this rule may expressly authorize a
commanding officer of a subordinate joint command
or subordinate joint task force who is authorized to
convene special and summary courts-martial to
convene such courts-martial for the trial of members of
other armed forces assigned or attached to a joint
command or joint task force, under regulations that the
superior command may prescribe.
(3)(A) An accused should not ordinarily be tried by
a court-martial convened by a member of a different
armed force except when the circumstances described
in subparagraphs (e)(2)(A) or (B) of this rule exist.
However, failure to comply with this non-binding
policy does not affect an otherwise valid referral.
(B) The non-binding policy stated by
subparagraph (e)(3)(A) of this rule does not apply
when one or more of the following circumstances
exists:
(i) The court-martial is convened by a
commander authorized to convene courts-martial
under paragraph (e)(2) of this rule;
(ii) The accused cannot be delivered to the
armed force of which the accused is a member without
manifest injury to the armed forces;
(iii) The court-martial is convened by a member
of the Space Force to try a member of the Air Force; or
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(iv) The court-martial is convened by a member
of the Air Force to try a member of the Space Force.
(4) Nothing in this rule prohibits detailing to a court-
martial a military judge, member, or counsel who is a
member of an armed force different from that of the
accused, the convening authority, or both.
(5) When a member of one armed force is tried by a
court-martial convened by a member of another armed
force, the court-martial will use the implementing
regulations and procedures prescribed by the Secretary
concerned of the military service of the accused.
In all
cases, departmental review after that by the officer
with authority to convene a general court-martial for
the command that held the trial, where that review is
required by the UCMJ, shall be carried out by the
department that includes the armed force of which the
accused is a member.
(6) Unless otherwise directed by the President or
Secretary of Defense, whenever action under this
Manual is required or authorized to be taken by a
person superior to—
(A) a commander of a unified or specified
combatant command; or
(B) a commander of any other joint command or
joint task force that is not part of a unified or specified
combatant command, the matter shall be referred to the
Secretary of the armed force of which the accused is a
member. The Secretary may convene a court-martial,
take other appropriate action, or, subject to R.C.M.
504(c), refer the matter to any person authorized to
convene a court-martial of the accused.
(7) When there is a disagreement between the
Secretaries of two military departments or between the
Secretary of a military department and the commander
of a unified or specified combatant command or other
joint command or joint task force as to which
organization should exercise jurisdiction over a
particular case or class of cases, the Secretary of
Defense or an official acting under the authority of the
Secretary of Defense shall designate which
organization will exercise jurisdiction.
Discussion
As to the authority to convene courts-martial, see R.C.M. 504.
“Manifest injury” does not mean minor inconvenience or expense.
Examples of manifest injury include direct and substantial effect on
morale, discipline, or military operations, substantial expense or
delay, or loss of essential witnesses.
As to the composition of a court-martial for the trial of an
accused who is a member of another armed force, see R.C.M.
503(a)(3) Discussion. Cases involving two or more accused who are
members of different armed forces generally should not be referred
to a court-martial for a common trial.
(f) Types of courts-martial.
[Note: R.C.M. 201(f)(1)(D) and (f)(2)(D) apply to
offenses committed on or after 24 June 2014.]
(1) General courts-martial.
(A) Cases under the UCMJ.
(i) Except as otherwise expressly provided,
general courts-martial may try any person subject to
the UCMJ for any offense made punishable under the
UCMJ. General courts-martial also may try any person
for a violation of Article 103, 103b, or 104a.
(ii) Upon a finding of guilty of an offense made
punishable by the UCMJ, general courts-martial may,
within limits prescribed by this Manual, adjudge any
punishment authorized under R.C.M. 1003.
(iii) Notwithstanding any other rule, the death
penalty may not be adjudged if:
(a) Not specifically authorized for the offense
by the UCMJ and Part IV of this Manual; or
(b) The case has not been referred with a
special instruction that the case is to be tried as capital.
(B) Cases under the law of war.
(i) General courts-martial may try any person
who by the law of war is subject to trial by military
tribunal for any crime or offense against:
(a) The law of war; or
(b) The law of the territory occupied as an
incident of war or belligerency whenever the local civil
authority is superseded in whole or part by the military
authority of the occupying power. The law of the
occupied territory includes the local criminal law as
adopted or modified by competent authority, and the
proclamations, ordinances, regulations, or orders
promulgated by competent authority of the occupying
power.
Discussion
R.C.M. 201(f)(1)(B)(i)(b) is an exercise of the power of military
government.
(ii) When a general court-martial exercises
jurisdiction under the law of war, it may adjudge any
punishment permitted by the law of war.
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Discussion
Certain limitations on the discretion of military tribunals to adjudge
punishment under the law of war are prescribed in international
conventions. See, e.g., Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, Aug. 12, 1949, art. 68, 6 U.S.T.
3516, T.I.A.S. No. 3365.
(C) Limitations in judge alone cases. A general
court-martial composed only of a military judge does
not have jurisdiction to try any person for any offense
for which the death penalty may be adjudged unless the
case has been referred to trial as noncapital.
Discussion
See R.C.M. 103(4) for the definition of the term “capital offense.”
(D) Jurisdiction for Certain Sexual Offenses. Only
a general court-martial has jurisdiction to try offenses
under Articles 120(a), 120(b), 120b(a), and 120b(b),
and attempts thereof under Article 80.
Discussion
Only a general court-martial has jurisdiction over penetrative sex
offenses under subsections (a) and (b) of Article 120, subsections (a)
and (b) of Article 120b, and attempts to commit such penetrative sex
offenses under Article 80. See Article 18, as amended by Section
1705(b) of the National Defense Authorization Act for Fiscal Year
2014, Pub. L. No. 113-66, 127 Stat. 672 (2013), as further amended
by Section 5162 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
(2) Special courts-martial.
(A) In general. Except as otherwise expressly
provided, special courts-martial may try any person
subject to the UCMJ for any noncapital offense made
punishable by the UCMJ and, as provided in this rule,
for capital offenses.
(B) Punishments
(i) Upon a finding of guilty, special courts-
martial may adjudge, under limitations prescribed by
this Manual, any punishment authorized under R.C.M.
1003 except death, dishonorable discharge, dismissal,
confinement for more than 1 year, hard labor without
confinement for more than 3 months, forfeiture of pay
exceeding two-thirds pay per month, or any forfeiture
of pay for more than 1 year.
(ii) A bad-conduct discharge, confinement for
more than six months, or forfeiture of pay for more
than six months, may not be adjudged by a special
court-martial when the case is referred as a special
court-martial consisting of a military judge alone under
Article 16(c)(2)(A).
(C) Capital offenses.
(i) A capital offense for which there is
prescribed a mandatory punishment beyond the
punitive power of a special court-martial shall not be
referred to such a court-martial.
(ii) Other than offenses described in (C)(i):
(I) a general court-martial convening
authority over the command that includes the accused
may permit any capital offense to be referred to a
special court-martial for trial.
(II) a special trial counsel exercising authority
over a capital offense may refer such an offense to a
special court-martial for trial.
(III) The Secretary concerned may authorize,
by regulation, special court-martial convening
authorities to refer capital offenses to trial by a special
court-martial without first obtaining the consent of the
general court-martial convening authority.
(D) Certain Offenses under Articles 120 and 120b.
Notwithstanding subparagraph (f)(2)(A), special
courts-martial do not have jurisdiction over offenses
under Articles 120(a), 120(b), 120b(a), and 120b(b),
and attempts thereof under Article 80. Such offenses
shall not be referred to a special court-martial.
Discussion
Only a general court-martial has jurisdiction over penetrative sex
offenses under subsections (a) and (b) of Article 120, subsections (a)
and (b) of Article 120b, and attempts to commit such penetrative sex
offenses under Article 80. See UCMJ, Art. 18, as amended by
Section 1705(b) of the National Defense Authorization Act for Fiscal
Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013), as further
amended by Section 5162 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
(E) Limitations on trial by special court-martial
consisting of a military judge alone.
(i) No specification may be tried by a special
court-martial consisting of a military judge alone under
Article 16(c)(2)(A) if, before arraignment, the accused
objects on the grounds provided in subclause (I) or (II)
of this subparagraph and the military judge determines
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that:
(I) the maximum authorized confinement for
the offense it alleges would be greater than two years
if the offense were tried by a general court-martial,
with the exception of a specification alleging wrongful
use or possession of a controlled substance in violation
of Article 112a(b) or an attempt thereof under Article
80; or
(II) the specification alleges an offense for
which sex offender notification would be required
under regulations issued by the Secretary of Defense.
Discussion
See Department of Defense Instruction 1325.07, Administration of
Military Correctional Facilities and Clemency and Parole Authority,
for offenses requiring sex offender notification.
(ii) If the accused objects to trial by a special
court-martial consisting of a military judge alone under
Article 16(c)(2)(A), and the military judge makes a
determination under clause (i), trial may be ordered by
a special court-martial under Article 16(c)(1) or a
general court-martial as may be appropriate.
(3) Summary courts-martial. See R.C.M. 1301(c)
and (d)(1).
(g) Concurrent jurisdiction of other military tribunals.
The provisions of the UCMJ and this Manual
conferring jurisdiction upon courts-martial do not
deprive military commissions, provost courts, or other
military tribunals of concurrent jurisdiction with
respect to offenders or offenses that by statute or by the
law of war may be tried by military commissions,
provost courts, or other military tribunals.
Discussion
See Articles 103 and 103b for some instances of concurrent
jurisdiction.
Rule 202. Persons subject to the jurisdiction of
courts-martial
(a) In general. Courts-martial may try any person when
authorized to do so under the UCMJ.
Discussion
(1) Authority under the UCMJ. Article 2 lists classes of persons who
are subject to the UCMJ. These include active duty personnel
(Article 2(a)(1)); cadets, aviation cadets, and midshipmen (Article
2(a)(2)); certain retired personnel (Article 2(a)(4) and (5)); members
of Reserve components not on active duty under some circumstances
(Article 2(a)(3)); members of the Fleet Reserve and Fleet Marine
Corps Reserve (Article 2(a)(6)); persons in the custody of the armed
forces serving a sentence imposed by court-martial (Article 2(a)(7));
and, under some circumstances, specified categories of civilians
(Article 2(a)(10), (11), and (12)); see paragraphs (3) and (4) of this
discussion. In addition, certain persons whose status as members of
the armed forces or as persons otherwise subject to the UCMJ
apparently has ended may, nevertheless, be amendable to trial by
court-martial. See Articles 3, 4, and 73. A person need not be subject
to the UCMJ to be subject to trial by court-martial under Articles
103, 103b, and 104a. See also Article 48 and R.C.M. 809 concerning
who may be subject to the contempt powers of a court-martial.
(2) Active duty personnel. Court-martial jurisdiction is most
commonly exercised over active duty personnel. In general, a person
becomes subject to court-martial jurisdiction upon enlistment in or
induction into the armed forces, acceptance of a commission, or
entry onto active duty pursuant to orders. Generally, three criteria are
considered to determine when military jurisdiction over active duty
personnel terminates: (1) the delivery of a discharge certificate; (2)
a final accounting of pay; and (3) completion of any clearing process
required under Military Service regulations. Orders transferring a
person to the inactive reserve are the equivalent of a discharge
certificate for purposes of jurisdiction over reserve personnel. There
are several important qualifications and exceptions to these general
guidelines.”
(A) Inception of court-martial jurisdiction over active duty
personnel.
(i) Enlistment.
“The voluntary enlistment of any person who has the
capacity to understand the significance of enlisting in the armed
forces shall be valid for purposes of jurisdiction under [Article 2(a)]
and a change of status from civilian to member of the armed forces
shall be effective upon taking the oath of enlistment.” Article 2(b).
A person who is, at the time of enlistment, insane, intoxicated, or
under the age of 17 does not have the capacity to enlist by law. No
court-martial jurisdiction over such a person may exist as long as the
incapacity continues. If the incapacity ceases to exist, a “constructive
enlistment” may result under Article 2(c). See discussion of
“constructive enlistment” of this rule. Similarly, if the enlistment
was involuntary, court-martial jurisdiction will exist only when the
coercion is removed and a “constructive enlistment” under Article
2(c) is established.
Persons aged 17 (but not yet aged 18) may not enlist without
parental consent. A parent or guardian may, within 90 days of the
enlistment’s inception, terminate the enlistment of a 17-year-old who
enlisted without parental consent, if the person has not yet reached
the age of 18. 10 U.S.C. § 1170. See also DOD Instruction 1332.14
and Service regulations for specific rules on separation of persons
aged 17 based on a parental request. Absent effective action by a
parent or guardian to terminate such an enlistment, court-martial
jurisdiction exists over the person. An application by a parent for
release does not deprive a court-martial of jurisdiction to try a person
for offenses committed before action is completed on such an
application.
Even if a person lacked capacity to understand the effect of
enlistment or did not enlist voluntarily, a “constructive enlistment”
may be established under Article 2(c).
Even if a person never underwent an enlistment or induction
proceeding of any kind, court-martial jurisdiction could be
II-17
established under this provision.
(ii) Induction. Court-martial jurisdiction does not extend to
a draftee until: the draftee has completed an induction ceremony
which was in substantial compliance with the requirements
prescribed by statute and regulations; the draftee, by conduct after an
apparent induction, has waived objection to substantive defects in it;
or a “constructive enlistment” under Article 2(c) exists.
The fact that a person was improperly inducted (for
example, because of incorrect classification or erroneous denial of
exemption) does not of itself negate court-martial jurisdiction. When
a person has made timely and persistent efforts to correct such an
error, court-martial jurisdiction may be defeated if improper
induction is found, depending on all the circumstances of the case.
(iii) Call to active duty. A member of a reserve component
may be called or ordered to active duty for a variety of reasons,
including training, service in time of war or national emergency,
discipline, or as a result of failure to participate satisfactorily in unit
activities.
When a person is ordered to active duty for failure to
satisfactorily participate in unit activities, the order must
substantially comply with procedures prescribed by regulations, to
the extent due process requires, for court-martial jurisdiction to exist.
Generally, the person must be given notice of the activation and the
reasons therefor, and an opportunity to object to the activation. A
person waives the right to contest involuntary activation by failure
to exercise this right within a reasonable time after notice of the right
to do so.
(B) Termination of jurisdiction over active duty personnel. As
indicated in this rule, the delivery of a valid discharge certificate or
its equivalent ordinarily serves to terminate court-martial
jurisdiction.
(i) Effect of completion of term of service. Completion of an
enlistment or term of service does not by itself terminate court-
martial jurisdiction. An original term of enlistment may be adjusted
for a variety of reasons, such as making up time lost for unauthorized
absence. Even after such adjustments are considered, court-martial
jurisdiction normally continues past the time of scheduled separation
until a discharge certificate or its equivalent is delivered and certain
other criteria are satisfied or until the Government fails to act within
a reasonable time after the person objects to continued retention. As
indicated in subsection (c) of this rule, service members may be
retained past their scheduled time of separation, over protest, by
action with a view to trial while they are still subject to the UCMJ.
Thus, if action with a view to trial is initiated before discharge or the
effective terminal date of self-executing orders, a person may be
retained beyond the date that the period of service would otherwise
have expired or the terminal date of such orders.
“(ii) Effect of discharge and reenlistment. For offenses
occurring on or after October 23, 1992, under the 1992 National
Defense Authorization Act’s amendment to Article 3(a), a person
who reenlists following a discharge may be tried for offenses
committed during the earlier term of service. For offenses occurring
prior to October 23, 1992, a person who reenlists following a
discharge may be tried for offenses committed during the earlier term
of service only if the offense was punishable by confinement for five
years or more and could not be tried in the courts of the United States
or of a State, a Territory, or the District of Columbia. But see (iii)(a)
of this discussion.”
(iii) Exceptions. There are several exceptions to the general
principle that court-martial jurisdiction terminates on discharge or its
equivalent.
(a) A person who was subject to the UCMJ at the time an
offense was committed may be tried by court-martial for that offense
despite a later discharge or other termination of that status if:
(1) For offenses occurring on or after October 23,
1992, the person is, at the time of the court-martial, subject to the
UCMJ, by reentry into the armed forces or otherwise. See Article
3(a), as amended by the National Defense Authorization Act for
Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat. 2315, 2505 (1992);
(2) For offenses occurring before October 23, 1992,
(A) The offense is one for which a court-martial
may adjudge confinement for 5 or more years;
(B) The person cannot be tried in the courts of the
United States or of a State, Territory, or the District of Columbia;
and
(C) The person is, at the time of the court-martial,
subject to the UCMJ, by reentry into the armed forces or otherwise.
See Article 3(a) prior to the 1992 National Defense Authorization
Act Amendment.
(b) A person who was subject to the UCMJ at the time
the offense was committed is subject to trial by court-martial despite
a later discharge if—
(1) The discharge was issued before the end of the
accused’s term of enlistment for the purpose of reenlisting;
(2) The person remains, at the time of the court-
martial, subject to the UCMJ; and
(3) The reenlistment occurred after 26 July 1982.
(c) Persons in the custody of the armed forces serving a
sentence imposed by a court-martial remain subject to the UCMJ and
court-martial jurisdiction. A prisoner who has received a discharge
and who remains in the custody of an armed force may be tried for
an offense committed while a member of the armed forces and before
the execution of the discharge as well as for offenses committed after
it.
(d) A person discharged from the armed forces who is
later charged with having fraudulently obtained that discharge is,
subject to the statute of limitations, subject to trial by court-martial
on that charge, and is after apprehension subject to the UCMJ while
in the custody of the armed forces for trial. Upon conviction of that
charge such a person is subject to trial by court-martial for any
offenses under the UCMJ committed before the fraudulent
discharge.
(e) No person who has deserted from the armed forces is
relieved from court-martial jurisdiction by a separation from any
later period of service.
(f) When a person’s discharge or other separation does
not interrupt the status as a person belonging to the general category
of persons subject to the UCMJ, court-martial jurisdiction over that
person does not end. For example, when an officer holding a
commission in a Reserve component of an armed force is discharged
from that commission while on active duty because of acceptance of
a commission in a Regular component of that armed force, without
an interval between the periods of service under the two
commissions, that officer’s military status does not end. There is
merely a change in personnel status from temporary to permanent
officer, and court-martial jurisdiction over an offense committed
before the discharge is not affected.
(3) Public Health Service and National Oceanic and Atmospheric
Administration. Members of the Public Health Service and the
National Oceanic and Atmospheric Administration become subject
to the UCMJ when assigned to and serving with the armed forces.
(4) Limitations on jurisdiction over civilians. Court-martial
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jurisdiction over civilians under the UCMJ is limited by the
Constitution and other applicable laws, including as construed in
judicial decisions. The exercise of jurisdiction under Article 2(a)(11)
in peace time has been held unconstitutional by the Supreme Court
of the United States. Before initiating court-martial proceedings
against a civilian, relevant statutes, decisions, Service regulations,
and policy memoranda should be carefully examined.
(5) Members of a Reserve Component. Members of a reserve
component in federal service on active duty, as well as those in
federal service on inactive-duty training or during any of the periods
specified in Article 2(a)(3)(B), are subject to the UCMJ. Moreover,
members of a reserve component are amenable to the jurisdiction of
courts-martial notwithstanding the termination of a period of such
duty. See R.C.M. 204.
(b) Offenses under the law of war. Nothing in this rule
limits the power of general courts-martial to try
persons under the law of war. See R.C.M. 201(f)(1)(B).
(c) Attachment of jurisdiction over the person.
(1) In general. Court-martial jurisdiction attaches
over a person when action with a view to trial of that
person is taken. Once court-martial jurisdiction over a
person attaches, such jurisdiction shall continue for all
purposes of trial, sentence, and punishment,
notwithstanding the expiration of that person’s term of
service or other period in which that person was subject
to the UCMJ or trial by court-martial. When
jurisdiction attaches over a Servicemember on active
duty, the Servicemember may be held on active duty
over objection pending disposition of any offense for
which held and shall remain subject to the UCMJ
during the entire period.
Discussion
Court-martial jurisdiction exists to try a person as long as that person
occupies a status as a person subject to the UCMJ. Thus, a service
member is subject to court-martial jurisdiction until lawfully
discharged or, when the service member’s term of service has
expired, the Government fails to act within a reasonable time on
objection by the service member to continued retention. Articles 103,
103b, and 104a set forth offenses with expanded jurisdictional reach.
Court-martial jurisdiction attaches over a person upon action
with a view to trial. Once court-martial jurisdiction attaches, it
continues throughout the trial and appellate process, and for purposes
of punishment.
If jurisdiction has attached before the effective terminal date of
self-executing orders, the person may be held for trial by court-
martial beyond the effective terminal date.
(2) Procedure. Actions by which court-martial
jurisdiction attaches include: apprehension; imposition
of restraint, such as restriction, arrest, or confinement;
and preferral of charges.
Rule 203. Jurisdiction over the offense
To the extent permitted by the Constitution, courts-
martial may try any offense under the UCMJ and, in
the case of general courts-martial, the law of war.
Discussion
(a) In general. Courts-martial have power to try any offense under
the UCMJ except when prohibited from so doing by the Constitution.
The rule enunciated in Solorio v. United States, 483 U.S. 435 (1987),
is that jurisdiction of courts-martial depends solely on the accused’s
status as a person subject to the Uniform Code of Military Justice,
and not on the “service-connection” of the offense charged.
(b) Pleading and proof. Normally, the inclusion of the accused’s
rank or grade will be sufficient to plead the service status of the
accused. Ordinarily, no allegation of the accused’s armed force or
unit is necessary for military members on active duty. See R.C.M.
307 regarding required specificity of pleadings. For jurisdictional
punishment limitations applicable for specific types of courts-
martial, see R.C.M. 201(f).
Rule 204. Jurisdiction over certain reserve
component personnel
(a) Service regulations. The Secretary concerned shall
prescribe regulations setting forth rules and procedures
for the exercise of court-martial jurisdiction and
nonjudicial punishment authority over reserve
component personnel under Article 2(a)(3) and 2(d),
subject to the limitations of this Manual and the UCMJ.
Discussion
See definitions in R.C.M. 103 (Discussion); paragraph 5.e and f.,
Part V, concerning limitations on nonjudicial punishments imposed
on reservists while on inactive-duty training.
(b) Courts-Martial
(1) General and special court-martial proceedings.
A member of a reserve component must be on active
duty prior to arraignment at a general or special court-
martial. A member ordered to active duty pursuant to
Article 2(d) may be retained on active duty to serve any
adjudged confinement or other restriction on liberty if
the order to active duty was approved in accordance
with Article 2(d)(5), but such member may not be
retained on active duty pursuant to Article 2(d) after
service of the confinement or other restriction on
liberty. All punishments remaining unserved at the
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time the member is released from active duty may be
carried over to subsequent periods of inactive-duty
training or active duty.
Discussion
An accused ordered to active duty pursuant to Article 2(d) may be
retained on active duty after service of the punishment if permitted
by other authority. For example, an accused who commits another
offense while on active duty ordered pursuant to Article 2(d) may
be retained on active duty pursuant to R.C.M. 202(c)(1).
(2) Summary courts-martial. A member of a reserve
component may be tried by summary court-martial
either while on active duty or inactive-duty training. A
summary court-martial conducted during inactive-duty
training may be in session only during normal periods
of such training. The accused may not be held beyond
such periods of training for trial or service or any
punishment. All punishments remaining unserved at
the end of a period of active duty or the end of any
normal period of inactive duty training may be carried
over to subsequent periods of inactive-duty training or
active duty.
Discussion
A “normal period” of inactive-duty training does not include periods
that are scheduled solely for the purpose of conducting court-martial
proceeding.
(c) Applicability. This subsection is not applicable
when a member is held on active duty pursuant to
R.C.M. 202(c).
(d) Changes in type of service. A member of a reserve
component at the time disciplinary action is initiated,
who is alleged to have committed an offense while
subject to the UCMJ, is subject to court-martial
jurisdiction without regard to any change between
active and reserve service or within different categories
of reserve service subsequent to commission of the
offense. This subsection does not apply to a person
whose military status was completely terminated after
commission of an offense.
Discussion
A member of a regular or reserve component remains subject to
court-martial jurisdiction after leaving active duty for offenses
committed prior to such termination of active duty if the member
retains military status in a reserve component without having been
discharged from all obligations of military service.
See R.C.M. 202(a), Discussion, paragraph (2)(B)(ii) and (iii),
regarding the jurisdictional effect of a discharge from military
service. A “complete termination” of military status refers to a
discharge relieving the service member of any further military
service. It does not include a discharge conditioned upon acceptance
of further military service.
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CHAPTER III. INITIATION OF CHARGES; APPREHENSION; PRETRIAL
RESTRAINT; RELATED MATTERS
Rule 301. Report of offense
(a) Who may report. Any person may report an offense
subject to trial by court-martial.
(b) To whom reports are conveyed. Ordinarily, any
military authority who receives a report of an offense
shall forward as soon as practicable the report and any
accompanying information to the immediate
commander of the suspect. Competent authority
superior to that commander may direct otherwise.
(c) Special trial counsel. All reports of covered
offenses shall be forwarded promptly to a special trial
counsel. A special trial counsel shall have the authority
to determine whether a reported offense is a covered,
known, or related offense in accordance with R.C.M.
303A.
Discussion
Any military authority may receive a report of an offense. Typically
such reports are made to law enforcement or investigative personnel,
or to appropriate persons in the chain of command. A report may be
made by any means, and no particular format is required. When a
person who is not a law enforcement official receives a report of an
offense, that person should forward the report to the immediate
commander of the suspect unless that person believes it would be
more appropriate to notify law enforcement or investigative
authorities.
If the suspect is unidentified, the military authority who
receives the report should refer it to a law enforcement or
investigative agency.
Upon receipt of a report, the immediate commander of a
suspect, or a special trial counsel, as appropriate, should refer to
R.C.M. 306 (Initial disposition) or R.C.M. 306A (Initial
determination by special trial counsel to exercise authority). See also
R.C.M. 302 (Apprehension); R.C.M. 303 (Preliminary inquiry into
reported offenses); R.C.M. 304, 305 (Pretrial restraint, confinement).
Any doubt as to whether a report alleges a covered offense should be
resolved in favor of forwarding the reported offense to a special trial
counsel.
Rule 302. Apprehension
(a) Definition and scope.
(1) Definition. Apprehension is the taking of a
person into custody.
Discussion
Apprehension is the equivalent of “arrest” in civilian terminology.
(In military terminology, “arrest” is a form of restraint. See Article
9; R.C.M. 304.) See subsection (c) of this rule concerning the bases
for apprehension. An apprehension is not required in every case; the
fact that an accused was never apprehended does not affect the
jurisdiction of a court-martial to try the accused. However, see
R.C.M. 202(c) concerning attachment of jurisdiction.
An apprehension is different from detention of a person for
investigative purposes, although each involves the exercise of
government control over the freedom of movement of a person. An
apprehension must be based on probable cause, and the custody
initiated in an apprehension may continue until proper authority is
notified and acts under R.C.M. 304 or 305. An investigative
detention may be made on less than probable cause (see Mil. R. Evid.
314(f)), and normally involves a relatively short period of custody.
Furthermore, an extensive search of the person is not authorized
incident to an investigative detention, as it is with an apprehension.
See Mil. R. Evid. 314(f) and (g). This rule does not affect any seizure
of the person less severe than apprehension.
Evidence obtained as the result of an apprehension which is in
violation of this rule may be challenged under Mil. R. Evid. 311(d).
Evidence obtained as the result of an unlawful civilian arrest may be
challenged under Mil. R. Evid. 311(d).
(2) Scope. This rule applies only to apprehensions
made by persons authorized to do so under subsection
(b) of this rule with respect to offenses subject to trial
by court-martial. Nothing in this rule limits the
authority of federal law enforcement officials to
apprehend persons, whether or not subject to trial by
court-martial, to the extent permitted by applicable
enabling statutes and other law.
Discussion
R.C.M. 302 does not affect the authority of any official to detain,
arrest, or apprehend persons not subject to trial under the UCMJ. The
rule does not apply to actions taken by any person in a private
capacity.
Several federal agencies have broad powers to apprehend
persons for violations of federal laws, including the Uniform Code
of Military Justice. For example, agents of the Federal Bureau of
Investigation, United States Marshals, and Secret Service may
apprehend persons for any offenses committed in their presence and
for felonies. 18 U.S.C. §§ 3052, 3053, 3056. Other agencies with
apprehension powers include the General Services Administration,
40 U.S.C. § 318 and the Veterans Administration, 38 U.S.C. § 902.
The extent to which such agencies become involved in the
apprehension of persons subject to trial by courts-martial may
depend on the statutory authority of the agency and the agency’s
formal or informal relationships with the Department of Defense.
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(b) Who may apprehend. The following officials may
apprehend any person subject to trial by court-martial:
(1) Military law enforcement officials. Persons
designated by proper authorities to perform military
criminal investigative, guard, or police duties, whether
subject to the UCMJ or not, when in each of the
foregoing instances, the official making the
apprehension is in the execution of law enforcement
duties;
Discussion
Whenever enlisted persons, including police and guards, and civilian
police and guards apprehend any commissioned or warrant officer,
such persons should make an immediate report to the commissioned
officer to whom the apprehending person is responsible.
The phrase “persons designated by proper authority to perform
military criminal investigative, guard or police duties” includes
special agents of the Defense Criminal Investigative Service,
security forces, military police, master at arms personnel, and
members of the shore patrol.
(2) Commissioned, warrant, petty, and
noncommissioned officers. All commissioned, warrant,
petty, and noncommissioned officers on active duty or
inactive duty training;
Discussion
Noncommissioned and petty officers not otherwise performing law
enforcement duties should not apprehend a commissioned officer
unless directed to do so by a commissioned officer or in order to
prevent disgrace to the Service or the escape of one who has
committed a serious offense.
(3) Civilians authorized to apprehend deserters.
Under Article 8, any civilian officer having authority
to apprehend offenders under laws of the United States
or of a State, Territory, Commonwealth, or possession,
or the District of Columbia, when the apprehension is
of a deserter from the armed forces.
Discussion
The UCMJ specifically provides that any civil officer with the
authority to apprehend offenders under the laws of the United States
or of a State, Commonwealth, possession, or the District of
Columbia may summarily apprehend a deserter. See Article 8.
However, this authority does not permit state and local law
enforcement officers to apprehend persons for other violations of the
UCMJ.
(c) Grounds for apprehension. A person subject to the
UCMJ or trial thereunder may be apprehended for an
offense triable by court-martial upon probable cause to
apprehend. Probable cause to apprehend exists when
there is a reasonable belief that an offense has been or
is being committed and the person to be apprehended
committed or is committing it. Persons authorized to
apprehend under R.C.M. 302(b)(2) may also
apprehend persons subject to the UCMJ who take part
in quarrels, frays, or disorders, wherever they occur.
Discussion
A mere suspicion is not enough but proof which would support a
conviction is not necessary. A person who determines probable cause
may rely on the reports of others.
(d) How an apprehension may be made.
(1) In general. An apprehension is made by clearly
notifying the person to be apprehended that person is
in custody. This notice should be given orally or in
writing, but it may be implied by the circumstances.
(2) Warrants. Neither warrants nor any other
authorizations shall be required for an apprehension
under these rules except as required in paragraph (e)(2)
of this rule.
(3) Use of force. Any person authorized under these
rules to make an apprehension may use such force and
means as reasonably necessary under the
circumstances to effect the apprehension.
Discussion
In addition to any other action required by law or regulation or proper
military officials, any person making an apprehension under these
rules should maintain custody of the person apprehended and inform
as promptly as possible the immediate commander of the person
apprehended, or any official higher in the chain of command of the
person apprehended if it is impracticable to inform the immediate
commander.
(e) Where an apprehension may be made.
(1) In general. An apprehension may be made at any
place, except as provided in paragraph (e)(2) of this
rule.
(2) Private dwellings. A private dwelling includes
dwellings, on or off a military installation, such as
single family houses, duplexes, and apartments. The
quarters may be owned, leased, or rented by the
residents, or assigned, and may be occupied on a
II-22
temporary or permanent basis. “Private dwelling” does
not include the following, whether or not subdivided
into individual units: living areas in military barracks,
vessels, aircraft, vehicles, tents, bunkers, field
encampments, and similar places. No person may enter
a private dwelling for the purpose of making an
apprehension under these rules unless:
(A) Pursuant to consent under Mil. R. Evid. 314(e)
or 316(c)(3);
(B) There is a reasonable belief that the delay
necessary to obtain a search warrant or search
authorization would result in the person sought to be
taken into custody evading apprehension;
(C) In the case of a private dwelling which is
military property or under military control, or
nonmilitary property in a foreign country
(i) if the person to be apprehended is a resident
of the private dwelling, there exists, at the time of the
entry, reason to believe that the person to be
apprehended is present in the dwelling, and the
apprehension has been authorized by an official listed
in Mil. R. Evid. 315(d) upon a determination that
probable cause to apprehend the person exists; or
(ii) if the person to be apprehended is not a
resident of the private dwelling, the entry has been
authorized by an official listed in Mil. R. Evid. 315(d)
upon a determination that probable cause exists to
apprehend the person and to believe that the person to
be apprehended is or will be present at the time of the
entry.
(D) In the case of a private dwelling not included
in subparagraph (e)(2)(C) of this rule,
(i) if the person to be apprehended is a resident
of the private dwelling, there exists at the time of the
entry, reason to believe that the person to be
apprehended is present and the apprehension is
authorized by an arrest warrant issued by competent
civilian authority; or
(ii) if the person to be apprehended is not a
resident of the private dwelling, the apprehension is
authorized by an arrest warrant and the entry is
authorized by a search warrant, each issued by
competent civilian authority. A person who is not a
resident of the private dwelling entered may not
challenge the legality of an apprehension of that person
on the basis of failure to secure a warrant or
authorization to enter that dwelling, or on the basis of
the sufficiency of such a warrant or authorization.
Nothing in paragraph (e)(2)) affects the legality of an
apprehension which is incident to otherwise lawful
presence in a private dwelling.
Discussion
For example, if law enforcement officials enter a private
dwelling pursuant to a valid search warrant or search authorization,
they may apprehend persons therein if grounds for an apprehension
exist. This subsection is not intended to be an independent grant of
authority to execute civilian arrest or search warrants. The authority
must derive from an appropriate federal or state procedure. See, e.g.,
Fed. R. Crim. P. 41 and 28 C.F.R. 60.1.
Rule 303. Preliminary inquiry into reported
offenses
Except for covered offenses as defined by Article
1(17), upon receipt of information that a member of the
command is accused or suspected of committing an
offense or offenses triable by court-martial, the
immediate commander shall make or cause to be made
a preliminary inquiry into the charges or suspected
offenses. A commander who receives a report of a
covered offense shall promptly forward the report to a
special trial counsel in accordance with R.C.M. 301(c)
and regulations prescribed by the Secretary concerned.
Discussion
In serious or complex cases, including sexual offenses and sexual
harassment, the commander should, and in some cases must, seek
law enforcement or appropriate investigative assistance in
conducting any inquiry or further investigation.
The Military Rules of Evidence should be consulted when
conducting interrogations (see Mil. R. Evid. 301-306), searches (see
Mil. R. Evid. 311-317), and eyewitness identifications (see Mil. R.
Evid. 321).
If the offense is one for which the Department of Justice has
investigative responsibilities, appropriate coordination should be
made under the Memorandum of Understanding, see Appendix 3,
and any implementing regulations.
If it appears that any witness may not be available for later
proceedings in the case, this should be brought to the attention of
appropriate authorities. See also R.C.M. 702 (depositions).
A person who is an accuser (see Article 1(9)) is disqualified
from convening a general or special court-martial in that case. See
R.C.M. 504(c)(1). Therefore, when the immediate commander is a
general or special court-martial convening authority, the preliminary
inquiry should be conducted by another officer of the command.
That officer may be informed that charges may be preferred if the
officer determines that preferral is warranted.
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Rule 303A. Determination by special trial counsel
to exercise authority
(a) Initial determination. A special trial counsel has the
exclusive authority to determine if a reported offense
is a covered offense.
(b) Covered offense. If a special trial counsel
determines that a reported offense is a covered offense
or receives a preferred charge alleging a covered
offense, a special trial counsel shall exercise authority
over that covered offense.
(c) Related offenses. If a special trial counsel exercises
authority pursuant to R.C.M. 303A(b), the special trial
counsel may also exercise authority over any reported
offense or charge related to a covered offense, whether
alleged to have been committed by the suspect of the
covered offense or by anyone else subject to the
UCMJ.
(d) Known offenses. If a special trial counsel exercises
authority pursuant to R.C.M. 303A(b), the special trial
counsel may also exercise authority over any offense
or charge alleged to have been committed by the
suspect of the covered offense.
(e) Notification to command. When a special trial
counsel exercises authority over any reported offense,
the special trial counsel shall notify the officer
exercising special court-martial convening authority
over the suspect.
Rule 304. Pretrial restraint
(a) Types of pretrial restraint. Pretrial restraint is moral
or physical restraint on a person’s liberty which is
imposed before and during disposition of offenses.
Pretrial restraint may consist of conditions on liberty,
restriction in lieu of arrest, arrest, or confinement.
(1) Conditions on liberty. Conditions on liberty are
imposed by orders directing a person to do or refrain
from doing specified acts. Such conditions may be
imposed in conjunction with other forms of restraint or
separately.
(2) Restriction in lieu of arrest. Restriction in lieu of
arrest is the restraint of a person by oral or written
orders directing the person to remain within specified
limits; a restricted person shall, unless otherwise
directed, perform full military duties while restricted.
(3) Arrest. Arrest is the restraint of a person by oral
or written order not imposed as punishment, directing
the person to remain within specified limits; a person
in the status of arrest may not be required to perform
full military duties such as commanding or supervising
personnel, serving as guard, or bearing arms. The
status of arrest automatically ends when the person is
placed, by the authority who ordered the arrest or a
superior authority, on duty inconsistent with the status
of arrest, but this shall not prevent requiring the person
arrested to do ordinary cleaning or policing, or to take
part in routine training and duties.
(4) Confinement. Pretrial confinement is physical
restraint, imposed by order of competent authority,
depriving a person of freedom pending disposition of
offenses. See R.C.M. 305.
Discussion
Conditions on liberty include orders to report periodically to a
specified official, orders not to go to a certain place (such as the
scene of the alleged offense), and orders not to associate with
specified persons (such as the alleged victim or potential witnesses).
Conditions on liberty must not hinder pretrial preparation, however.
Thus, when such conditions are imposed, they must by sufficiently
flexible to permit pretrial preparation.
Restriction in lieu of arrest is a less severe restraint on liberty
than is arrest. Arrest includes suspension from performing full
military duties and the limits of arrest are normally narrower than
those of restriction in lieu of arrest. The actual nature of the restraint
imposed, and not the characterization of it by the officer imposing it,
will determine whether it is technically an arrest or restriction in lieu
of arrest.
Breach of arrest or restriction in lieu of arrest or violation of
conditions on liberty are offenses under the UCMJ. See paragraphs
12, 13 and 18, Part IV. When such an offense occurs, it may warrant
appropriate action such as nonjudicial punishment or court-martial.
See R.C.M. 306. In addition, such a breach or violation may provide
a basis for the imposition of a more severe form of restraint.
R.C.M. 707(a) requires that the accused be brought to trial
within 120 days of preferral of charges or imposition of restraint
under R.C.M. 304(a)(2)-(4).
(b) Who may order pretrial restraint.
(1) Of civilians and officers. Only a commanding
officer to whose authority the civilian or officer is
subject may order pretrial restraint of that civilian or
officer.
Discussion
Civilians may be restrained under these rules only when they are
subject to trial by court-martial. See R.C.M. 202.
(2) Of enlisted persons. Any commissioned officer
may order pretrial restraint of any enlisted person.
(3) Delegation of authority. The authority to order
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pretrial restraint of civilians and commissioned and
warrant officers may not be delegated. A commanding
officer may delegate to warrant, petty, and
noncommissioned officers authority to order pretrial
restraint of enlisted persons of the commanding
officer’s command or subject to the authority of that
commanding officer.
(4) Authority to withhold. A superior competent
authority may withhold from a subordinate the
authority to order pretrial restraint.
(c) When a person may be restrained. No person may
be ordered into restraint before trial except for probable
cause. Probable cause to order pretrial restraint exists
when there is a reasonable belief that:
(1) An offense triable by court-martial has been
committed;
(2) The person to be restrained committed it; and
(3) The restraint ordered is required by the
circumstances.
Discussion
The decision whether to impose pretrial restraint, and, if so, what
type or types, should be made on a case-by-case basis. The factors
listed in the Discussion of R.C.M. 305(h)(2)(B) should be
considered. The restraint should not be more rigorous than the
circumstances require to ensure the presence of the person restrained
or to prevent foreseeable serious criminal misconduct.
Restraint is not required in every case. The absence of pretrial
restraint does not affect the jurisdiction of a court-martial. However,
see R.C.M. 202(c) concerning attachment of jurisdiction. See
R.C.M. 305 concerning the standards and procedures governing
pretrial confinement.
(d) Procedures for ordering pretrial restraint. Pretrial
restraint other than confinement is imposed by
notifying the person orally or in writing of the restraint,
including its terms or limits. The order to an enlisted
person shall be delivered personally by the authority
who issues it or through other persons subject to the
UCMJ. The order to an officer or a civilian shall be
delivered personally by the authority who issues it or
by another commissioned officer. Pretrial confinement
is imposed pursuant to orders by a competent authority
by the delivery of a person to a place of confinement.
(e) Notice of basis for restraint. When a person is
placed under restraint, the person shall be informed of
the nature of the offense which is the basis for such
restraint.
Discussion
See R.C.M. 305(e) concerning additional information which must be
given to a person who is confined. If the person ordering the restraint
is not the commander of the person restrained, that officer should be
notified.
(f) Punishment prohibited. Pretrial restraint is not
punishment and shall not be used as such. No person
who is restrained pending trial may be subjected to
punishment or penalty for the offense which is the
basis for that restraint. Prisoners being held for trial
shall not be required to undergo punitive duty hours or
training, perform punitive labor, or wear special
uniforms prescribed only for post-trial prisoners. This
rule does not prohibit minor punishment during pretrial
confinement for infractions of the rules of the place of
confinement. Prisoners shall be afforded facilities and
treatment under regulations of the Secretary
concerned.
Discussion
Offenses under the UCMJ by a person under restraint may be
disposed of in the same manner as any other offenses.
(g) Release. Except as otherwise provided in R.C.M.
305, a person may be released from pretrial restraint by
a person authorized to impose it. Pretrial restraint shall
terminate when a sentence is adjudged, the accused is
acquitted of all charges, or all charges are dismissed.
Discussion
Pretrial restraint may be imposed (or reimposed) if charges are to be
reinstated or a rehearing or “other” trial is to be ordered.
(h) Administrative restraint. Nothing in this rule
prohibits limitations on a Servicemember imposed for
operational or other military purposes independent of
military justice, including administrative hold or
medical reasons.
Discussion
See R.C.M. 306.
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Rule 305. Pretrial confinement
(a) In general. Pretrial confinement is physical
restraint, imposed by order of competent authority,
depriving a person of freedom pending disposition of
charges.
Discussion
See Article 12 regarding the limitations on confinement of
members of the armed forces of the United States in immediate
association with enemy prisoners or other foreign nationals detained
under the law of war.
(b) Who may be confined. Any person who is subject
to trial by court-martial may be confined if the
requirements of this rule are met.
Discussion
See R.C.M. 201 and 202 and the discussions therein concerning
persons who are subject to trial by courts-martial.
(c) Who may order confinement. See R.C.M. 304(b)
Discussion
No provost marshal, commander of a guard, or master at arms may
refuse to receive or keep any confinee committed to his charge by a
commissioned officer of the armed forces, when the committing
officer furnishes a statement, signed by him, of the offense charged
against the confinee. See Article 11(a).
(d) When a person may be confined. No person may be
ordered into pretrial confinement except for probable
cause. Probable cause to order pretrial confinement
exists when there is a reasonable belief that:
(1) An offense triable by court-martial has been
committed;
(2) The person confined committed it; and
(3) Confinement is required by the circumstances.
Discussion
The person who directs confinement should consider the matters
discussed under subparagraph (i)(2)(B) of this rule before ordering
confinement. However, the person who initially orders confinement
is not required to make a detailed analysis of the necessity for
confinement. It is often not possible to review a person’s background
and character or even the details of an offense before physically
detaining the person. For example, until additional information can
be secured, it may be necessary to confine a person apprehended in
the course of a violent crime.
“When a person subject to this chapter is charged only with an
offense that is normally tried by summary court-martial, the person
ordinarily shall not be ordered in confinement.” Article 10(a)(2).
Confinement should be distinguished from custody. Custody is
restraint which is imposed by apprehension and which may be, but
is not necessarily, physical. Custody may be imposed by anyone
authorized to apprehend (see R.C.M. 302(b)), and may continue until
a proper authority under R.C.M. 304(b) is notified and takes action.
Thus, a person who has been apprehended could be physically
restrained, but this would not be pretrial confinement in the sense of
this rule until a person authorized to do so under R.C.M. 304(b)
directed confinement.
(e) Advice to the accused upon confinement. Each
person confined shall be promptly informed of:
(1) The nature of the offenses for which held;
(2) The right to remain silent and that any statement
made by the person may be used against the person;
(3) The right to retain civilian counsel at no expense
to the United States, and the right to request assignment
of military counsel; and
(4) The procedures by which pretrial confinement
will be reviewed.
(f) Notification to Special Trial Counsel. If a person
who is alleged to have committed a covered offense is
ordered into or released from pretrial confinement, the
individual ordering confinement or authorizing release
shall immediately notify a special trial counsel in
accordance with regulations prescribed by the
Secretary concerned.
(g) Military counsel. If requested by the confinee and
such request is made known to military authorities,
military counsel shall be provided to the confinee
before the initial review under R.C.M. 305(j) or within
72 hours of such a request being first communicated to
military authorities, whichever occurs first. Counsel
may be assigned for the limited purpose of representing
the accused only during the pretrial confinement
proceedings before charges are referred. If assignment
is made for this limited purpose, the confinee shall be
so informed. Unless otherwise provided by regulations
of the Secretary concerned, a confinee does not have a
right under this rule to have military counsel of the
confinee’s own selection.
(h) Who may direct release from confinement. Any
commander of a confinee, an officer appointed under
regulations of the Secretary concerned to conduct the
review under R.C.M. 305(j) or (k), or, once charges
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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 purposes of this subsection (R.C.M.
305(h)), “any commander” includes the immediate or
higher commander of the confinee and the commander
of the installation on which the confinement facility is
located.
(i) Notification and action by commander.
(1) Report. Unless the commander of the confinee
ordered the pretrial confinement, the commissioned,
warrant, noncommissioned, or petty officer into whose
charge the confinee was committed shall, within 24
hours after that commitment, cause a report to be made
to the commander that shall contain the name of the
confinee, the offenses charged against the confinee,
and the name of the person who ordered or authorized
confinement.
Discussion
This report may be made by any means. Ordinarily, the immediate
commander of the confinee should be notified. In unusual cases, any
commander to whose authority the confinee is subject, such as the
commander of the confinement facility, may be notified. In the latter
case, the commander so notified must ensure compliance with
R.C.M. 305(i)(2).
(2) Action by commander.
(A) Decision. Not later than 72 hours after the
commander’s ordering of a confinee 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’s compliance with this
paragraph (R.C.M. 305(i)(2)) may also satisfy the 48-
hour probable cause determination of R.C.M.
305(j)(1), provided the commander is a neutral and
detached officer and acts within 48 hours of the
imposition of confinement under military control.
Nothing in R.C.M. 305(d), this subparagraph (R.C.M.
305(i)(2)(A)), or R.C.M. (j)(1) prevents a neutral and
detached commander from completing the 48-hour
probable cause determination and the 72-hour
commander’s decision immediately after an accused is
ordered into pretrial confinement.
(B) Requirements for confinement. The
commander shall direct the confinee’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 confinee committed it;
(iii) Confinement is necessary because it is
foreseeable that:
(a) The confinee will not appear at trial,
pretrial hearing, or preliminary hearing, or
(b) The confinee 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, serious injury
of 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: a 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.
Discussion
A person should not be confined as a mere matter of convenience or
expedience.
Some of the factors which should be considered under this
subsection are:
(1) The nature and circumstances of the offenses charged or
suspected, including extenuating circumstances;
(2) The weight of the evidence against the confinee;
(3) The confinee’s ties to the locale, including family, off-
duty employment, financial resources, and length of residence;
(4) The confinee’s character and mental condition;
(5) The confinee’s service record, including any record of
previous misconduct;
(6) The confinee’s record of appearance at or flight from
other pretrial investigations, trials, and similar proceedings; and
(7) The likelihood that the confinee can and will commit
further serious criminal misconduct if allowed to remain at liberty.
Although the Military Rules of Evidence are not applicable, the
commander should judge the reliability of the information available.
Before relying on the reports of others, the commander must have a
reasonable belief that the information is believable and has a factual
basis. The information may be received orally or in writing.
Information need not be received under oath, but an oath may add to
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its reliability. A commander may examine the confinee’s personnel
records and police records, and may consider the recommendations
of others.
Less serious forms of restraint must always be considered
before pretrial confinement may be approved. Thus the commander
should consider whether the confine could be safely returned to the
confinee's unit, placed on restriction, placed under arrest, or placed
under conditions on liberty. See R.C.M. 304.
(C) 72-hour memorandum. If continued pretrial
confinement is approved, the commander shall prepare
a written memorandum that states the reasons for the
conclusion that the requirements for confinement in
R.C.M. 305(i)(2)(B) 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 R.C.M. 305(j)(2). 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.
(j) Procedures for review of pretrial confinement.
(1) 48-hour probable cause determination. 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 confinee is apprehended
by civilian authorities and remains in civilian custody
at the request of military authorities, reasonable efforts
will be made to bring the confinee under military
control in a timely fashion.
(2) 7-day review of pretrial confinement. 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 pretrial confinement. In calculating the
number of days of confinement for purposes of this
rule, the initial date of confinement under military
control shall count as one day and the date of the
review shall also count as one day.
(A) Nature of the 7-day review.
(i) Matters considered. The review under this
clause (R.C.M. 305(j)(2)(A)(i)) shall include a review
of the memorandum submitted by the confinee’s
commander under R.C.M. 305(i)(2)(C). Additional
written matters may be considered, including any
submitted by the confinee. The confinee and the
confinee’s counsel, if any, shall be allowed to appear
before the 7-day reviewing officer and make a
statement, if practicable. A representative of the
command may also appear before the reviewing officer
to make a statement.
(ii) 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.
(iii) Standard of proof. The requirements for
confinement under R.C.M. 305(h)(2)(B) must be
proved by a preponderance of the evidence.
(iv) Victim’s right to be reasonably heard. A
victim of an alleged offense committed by the confinee
has the right to reasonable, accurate, and timely notice
of the 7-day review; the right to confer with the
representative of the command and counsel for the
Government, if any; and the right to be reasonably
heard during the review. However, the hearing may not
be unduly delayed for this purpose. The right to be
heard under this rule includes the right to be heard
through counsel and the right to be reasonably
protected from the confinee during the 7-day review.
Notice of these rights shall be given to the victim, or
victim’s counsel, if any, in accordance with regulations
of the Secretary concerned.
Discussion
Personal appearance by the victim is not required. A victim’s right
to be reasonably heard at a 7-day review may also be accomplished
telephonically, by video conference, or by written statement. The
right to be heard under this rule includes the right to be heard through
counsel, in those instances in which a victim is represented by
counsel.
(B) Extension of time limit. The 7-day reviewing
officer may, for good cause, extend the time limit for
completion of the review to 10 days after the
imposition of pretrial confinement.
(C) Action by 7-day reviewing officer. Upon
completion of review, the reviewing officer shall
approve continued confinement or order immediate
release. If the reviewing officer orders immediate
release, a victim of an alleged offense committed by
the confinee has the right to reasonable, accurate, and
timely notice of the release, unless such notice may
endanger the safety of any person.
(D) Memorandum. The 7-day reviewing officer’s
conclusions, including the factual findings on which
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they are based, shall be set forth in a written
memorandum. The memorandum shall also state
whether the victim was represented by counsel,
whether the victim was notified of the review, was
given the opportunity to confer with the representative
of the command or counsel for the Government and
was given a reasonable opportunity to be heard. A copy
of the memorandum and all documents considered by
the 7-day reviewing officer shall be maintained in
accordance with regulations prescribed by the
Secretary concerned and provided to the accused or the
Government on request.
(E) Reconsideration of approval of continued
confinement. The 7-day reviewing officer shall upon
request, and after notice to the parties, reconsider the
decision to confine the confinee based upon any
significant information not previously considered.
(k) Review by military judge. Once the charges for
which the accused has been confined are referred to
trial, or in a pre-referral proceeding conducted in
accordance with R.C.M. 309, the military judge shall
review the propriety of pretrial confinement upon
motion for appropriate relief.
(1) Release. The military judge shall order release
from pretrial confinement only if:
(A) The 7-day reviewing officer’s decision was an
abuse of discretion, and there is not sufficient
information presented to the military judge justifying
continuation of pretrial confinement under R.C.M.
305(i)(2)(B);
(B) Information not presented to the 7-day
reviewing officer establishes that the confinee should
be released under R.C.M. 305(i)(2)(B); or
(C) The provisions of R.C.M. 305(j)(1) or (2) have
not been complied with and information presented to
the military judge does not establish sufficient grounds
for continued confinement under R.C.M. 305(i)(2)(B).
Discussion
Upon a motion for release from pretrial confinement, a victim of an
alleged offense committed by the confinee has the right to
reasonable, accurate, and timely notice of the motion and any
hearing, the right to confer with counsel representing the
Government, and the right to be reasonably heard. Inability to
reasonably afford the victim these rights shall not delay the
proceedings. The right to be heard under this rule includes the right
to be heard through counsel. See R.C.M. 906(b)(8).
(2) Credit. Upon sentencing, the military judge shall
order administrative credit under R.C.M. 305(l) for any
pretrial confinement served as a result of an abuse of
discretion or failure to comply with the provisions of
R.C.M. 305(g), (i), or (j).
(l) Remedy. The remedy for noncompliance with
R.C.M. 305(g), (i), (j), or (k) shall be an administrative
credit against the sentence adjudged for any
confinement served as the result of such
noncompliance. Such credit shall be computed at the
rate of 1 day credit for each day of confinement served
as a result of such noncompliance. The military judge
may order additional credit for each day of pretrial
confinement that involves an abuse of discretion or
unusually harsh circumstances. This credit is to be
applied in addition to any other credit to which the
accused may be entitled as a result of pretrial
confinement served. This credit shall be applied first
against any confinement adjudged. If no confinement
is adjudged, or if the confinement adjudged is
insufficient to offset all the credit to which the accused
is entitled, the credit shall be applied against hard labor
without confinement using the conversion formula
under R.C.M. 1003(b)(6), restriction, fine, and
forfeiture of pay, in that order. For purposes of R.C.M.
305(l), 1 day of confinement shall be equal to 1 day of
total forfeiture or a like amount of fine. The credit shall
not be applied against any other form of punishment.
(m) Confinement after release. No person whose
release from pretrial confinement has been directed by
a person authorized in R.C.M. 305(h) may be confined
again before completion of trial except upon discovery,
after the order of release, of evidence or of misconduct
which, either alone or in conjunction with all other
available evidence, meets the criteria for confinement
under R.C.M. 305(i)(2)(B).
Discussion
See R.C.M. 304(b) concerning who may order confinement.
(n) Exceptions.
(1) Operational necessity. The Secretary of Defense
may suspend application of R.C.M. 305(e)(3), (e)(4),
(g), (i)(2)(A) or (C), or (j) to specific units or in
specified areas when operational requirements of such
units or in such areas would make application of such
provisions impracticable.
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(2) At sea. R.C.M. 305(e)(3), (e)(4), (g), (i)(2)(C),
and (j) shall not apply in the case of a person on board
a vessel at sea. In such situations, confinement on
board the vessel at sea may continue only until the
person can be transferred to a confinement facility
ashore. Such transfer shall be accomplished at the
earliest opportunity permitted by the operational
requirements and mission of the vessel. Upon such
transfer, the memorandum required by R.C.M.
305(i)(2)(C) shall be transmitted to the reviewing
officer under R.C.M. 305(j) and shall include an
explanation of any delay in the transfer.
Discussion
Under this paragraph, the standards for confinement remain the same
(although the circumstances giving rise to the exception could bear
on the application of those standards). Also, pretrial confinement
remains subject to judicial review. The confinee’s commander still
must determine whether confinement will continue under R.C.M.
305 (h)(2)(B). The suspension of R.C.M. 305(h)(2)(A) removes the
72-hour requirement because, in a combat environment, the
commander may not be available to comply with it. The commander
must make the pretrial confinement decision as soon as reasonably
possible, however. (This provision is not suspended under paragraph
(2) since the commander of a vessel is always available.)
Operational exceptions to the requirements under R.C.M. 305
(e)(3) and (4) do not constitute exceptions to the notice requirements
under Article 31(b).
(o) Notice to victim of escaped confinee. Reasonable,
accurate, and timely notice of the escape of the prisoner
shall be provided to the victim of an alleged offense
committed by the confinee for which the confinee has
been placed in pretrial confinement or such victim’s
counsel, if any, unless such notice may endanger the
safety of any person.
Discussion
For purposes of this rule, the term “victim of an alleged offense” has
the same meaning as the term “victim of an offense under this
chapter” in Article 6b.
Rule 306. Initial disposition of offenses over which
special trial counsel does not exercise authority
(a) Who may dispose of offenses.
(1) Except for offenses over which a special trial
counsel has exercised authority and has not deferred,
each commander has discretion to dispose of offenses
by members of that command in accordance with this
rule.
(2) Ordinarily the immediate commander of a person
accused or suspected of committing offenses over
which a special trial counsel has not exercised
authority or has deferred initially determines how to
dispose of those offenses. A superior commander may
withhold the authority to dispose of offenses in
individual cases, types of cases, or generally. A
superior commander may not limit the discretion of a
subordinate commander to act on cases over which
authority has not been withheld.
Discussion
Each commander in the chain of command has independent, yet
overlapping, discretion to dispose of offenses within the limits of that
officer’s authority. Normally, in keeping with the policy in
subsection (b) of this rule, the initial disposition decision is made by
the official at the lowest echelon with the power to make it. A
decision by a commander ordinarily does not bar a different
disposition by a superior authority. See R.C.M. 401(c), 601(f). Once
charges are referred to a court-martial by a convening authority
competent to do so, they may be withdrawn from that court-martial
only in accordance with R.C.M. 604 and R.C.M. 604A.
See Appendix 3 or 4 with respect to offenses for which
coordination with the Department of Justice is required.
(b) Policy. Allegations of offenses should be disposed
of in a timely manner at the lowest appropriate level of
disposition listed in subsection (c) of this rule.
Discussion
In deciding how an offense should be disposed of, the commander
should review and consider the disposition factors set forth in
Appendix 2.1 (Non-binding disposition guidance).
(c) Disposition of offenses. Within the limits of the
commander’s authority and subject to R.C.M. 306A, a
commander may take the actions set forth in this
subsection (R.C.M. 306(c)) to initially dispose of a
charge or suspected offense.
Discussion
Prompt disposition of charges is essential. See R.C.M. 707 (speedy
trial requirements).
If charges have not already been preferred, the commander
may, if appropriate, prefer them and dispose of them under this rule.
But see R.C.M. 601(c) regarding disqualification of an accuser.
If charges have been preferred, the commander should ensure
that the accused has been notified in accordance with R.C.M. 308,
and that charges are in proper form. See R.C.M. 307. Each
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commander who forwards or disposes of charges may make minor
changes therein. See R.C.M. 603(a) and (b). If major changes are
necessary, the affected charge should be preferred anew. See R.C.M.
603(d).
When charges are brought against two or more accused with a
view to a joint or common trial, see R.C.M. 307(c)(5), 601(e)(3). If
it appears that the accused may lack mental capacity to stand trial or
may not have been mentally responsible at the times of the offenses,
see R.C.M. 706, 909, 916(k).
(1) No action. A commander may decide to take no
action.
Discussion
A decision to take no action or dismissal of charges at this stage does
not bar later disposition of the offenses under R.C.M. 306(c)(2)
through (5).
See R.C.M. 401(a) concerning who may dismiss charges, and
R.C.M. 401(c)(1) concerning dismissal of charges.
When a decision is made to take no action, the accused should
be informed.
(2) Administrative action. A commander may take or
initiate administrative action, in addition to or instead
of other action taken under this rule, subject to
regulations of the Secretary concerned.
Discussion
Other administrative measures, which are subject to regulations of
the Secretary concerned, include matters related to efficiency
reports, academic reports, and other ratings; rehabilitation and
reassignment; career field reclassification; administrative reduction
for inefficiency; bar to reenlistment; personnel reliability program
reclassification; security classification changes; pecuniary liability
for negligence or misconduct; and administrative separation.
(3) Nonjudicial punishment. A commander may
consider the matter pursuant to Article 15, nonjudicial
punishment. See Part V.
(4) Disposition of charges. Charges may be disposed
of in accordance with R.C.M. 401
.
Discussion
If charges have not been preferred, they may be preferred. See
R.C.M. 307 concerning preferral of charges. But see R.C.M. 601(c)
concerning disqualification of an accuser.
Charges may be disposed of by dismissing them, forwarding
them to another commander for disposition, or referring them to a
summary, special, or general court-martial. Before charges may be
referred to a general court-martial, compliance with R.C.M. 405 and
406 is necessary. Therefore, if appropriate, a preliminary hearing
under R.C.M. 405 may be directed. Additional guidance on these
matters is found in R.C.M. 401-407.
Pursuant to Article 24a and R.C.M. 306A, a convening
authority may not dispose of a covered offense at a general or special
court-martial
(5) Forwarding for disposition. A commander may
forward a report of suspected offenses or charges to a
superior or subordinate authority for disposition.
Discussion
The immediate commander may lack authority to take action which
that commander believes is an appropriate disposition. In such cases,
the matter should be forwarded to a superior officer with a
recommendation as to disposition. See also R.C.M. 401(c)(2)
concerning forwarding charges. If allegations are forwarded to a
higher authority for disposition, because of lack of authority or
otherwise, the disposition decision becomes a matter within the
discretion of the higher authority.
A matter may be forwarded for other reasons, such as for
investigation of allegations and preferral of charges, if warranted
(see R.C.M. 303, 307), or so that a subordinate can dispose of the
matter.
(d) National security matters. If a commander not
authorized to convene general courts-martial finds that
an offense warrants trial by court-martial, but believes
that trial would be detrimental to the prosecution of a
war or harmful to national security, the matter shall be
forwarded to the general court-martial convening
authority for action under R.C.M. 407(b).
(e) Sex-related offenses.
(1) For purposes of this subsection (R.C.M. 306(e)),
a “sex-related offense” means any allegation of a
violation of Article 120, 120b, 120c, or 130, or any
attempt thereof under Article 80, occurring on or
before December 27, 2023.
(2) Under such regulations as the Secretary
concerned may prescribe, for alleged sex-related
offenses committed in the United States, the victim of
the sex-related offense shall be provided an
opportunity to express views as to whether the offense
should be prosecuted by court-martial or in a civilian
court with jurisdiction over the offense. The
commander, and if charges are preferred, the
convening authority, shall consider such views as to
II-31
the victim’s preference for jurisdiction, if available,
prior to making an initial disposition decision. For
purposes of this rule, “victim” is defined as an
individual who has suffered direct physical, emotional,
or pecuniary harm as a result of the commission of an
alleged sex-related offense as defined in paragraph
(e)(1) of this rule.
(3) Under such regulations as the Secretary
concerned may prescribe, if the victim of an alleged
sex-related offense expresses a preference for
prosecution of the offense in a civilian court, the
commander, and if charges are preferred, the
convening authority, shall ensure that the civilian
authority with jurisdiction over the offense is notified
of the victim’s preference for civilian prosecution. If
the commander and, if charges are preferred, the
convening authority learns of any decision by the
civilian authority to prosecute or not prosecute the
offense in civilian court, the commander or convening
authority shall ensure the victim is notified.
Rule 306A. Initial disposition of offenses over
which a special trial counsel exercises authority
(a) Disposition of offenses that are not the subject of
preferred charges. Once a special trial counsel has
exercised authority over an offense, only a special trial
counsel may dispose of that offense, unless a special
trial counsel defers the offense. For each offense over
which a special trial counsel has exercised authority
that is not the subject of a preferred charge, a special
trial counsel shall:
(1) Prefer, or cause to be preferred, a charge; or
(2) Defer the offense by electing not to prefer a
charge. If a special trial counsel defers the offense, the
special trial counsel shall promptly forward the offense
to a commander or convening authority for disposition,
and the commander or convening authority shall
dispose of the offense pursuant to R.C.M. 306.
(b) Disposition of a preferred specification. A special
trial counsel shall dispose of each preferred
specification in accordance with R.C.M. 401A.
(c) National security matters. If a commander believes
trial would be detrimental to the prosecution of a war
or harmful to national security, the matter shall be
forwarded to the Secretary concerned for action.
(d) Sex-related offenses.
(1) For purposes of this subsection (R.C.M.
306A(d)), “sex-related offense” means any allegation
of a violation of Article 120, 120b, 120c, or 130, or any
attempt thereof under Article 80.
(2) Under such regulations as the Secretary
concerned may prescribe, for alleged sex-related
offenses committed in the United States, the victim of
the sex-related offense shall be provided an
opportunity to express views as to whether the offense
should be prosecuted by court-martial or in a civilian
court with jurisdiction over the offense. A special trial
counsel shall consider the victim’s preference for
jurisdiction, if available, prior to making an initial
disposition decision. For purposes of this rule, “victim”
is defined as an individual who has suffered direct
physical, emotional, or pecuniary harm as a result of
the commission of an alleged sex-related offense as
defined in R.C.M. 306A(d)(1).
(3) Under such regulations as the Secretary
concerned may prescribe, if the victim of an alleged
sex-related offense expresses a preference for
prosecution of the offense in a civilian court, a special
trial counsel shall ensure that the civilian authority with
jurisdiction over the offense is notified of the victim’s
preference for civilian prosecution. If a special trial
counsel learns of any decision by the civilian authority
to prosecute or not prosecute the offense in civilian
court, the special trial counsel shall ensure the victim,
or victim’s counsel, if any, is notified.
Discussion
See Appendix 3 or 4 with respect to offenses for which coordination
with the Department of Justice is required.
Rule 307. Preferral of charges
(a) In general. In accordance with R.C.M. 307(b),
preferral is the act by which a person subject to the
UCMJ formally accuses another person subject to the
UCMJ of an offense. Any person subject to the UCMJ
may prefer charges.
Discussion
No person may be ordered to prefer charges to which that person is
unable to make truthfully the required oath. See Article 30(a) and
R.C.M. 307(b). A person who has been the accuser or nominal
accuser (see Article 1(9)) may not also serve as the convening
authority of a general or special court-martial to which the charges
are later referred. See Articles 22(b), 23(b), and 24a(c)(2)(A);
R.C.M. 601; but see R.C.M. 1302(b) (summary court-martial
convening authority is not disqualified by being the accuser). A
person authorized to dispose of offenses (see R.C.M. 306-306A,
401-404, and 407) should not be ordered to prefer charges when this
would disqualify that person from exercising that person’s authority
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or would improperly restrict that person’s discretion to act on the
case. See R.C.M. 104 and 504(c).
Charges may be preferred against a person subject to trial by
court-martial at any time but should be preferred without
unnecessary delay. See the statute of limitations prescribed by
Article 43. Preferral of charges should not be unnecessarily delayed.
When a good reason exists—as when a person is permitted to
continue a course of conduct so that a ringleader or other conspirators
may also be discovered or when a suspected counterfeiter goes
uncharged until guilty knowledge becomes apparent—a reasonable
delay is permissible. However, see R.C.M. 707 concerning speedy
trial requirements.
(b) How charges are preferred; oath. In preferring
charges and specifications—
(1) The person preferring the charges and
specifications must sign them under oath before a
commissioned officer of the armed forces authorized
to administer oaths; and
(2) The writing under paragraph (b)(1) must state
that—
(A) the signer has personal knowledge of, or has
investigated, the matters set forth in the charges and
specifications; and
(B) the matters set forth in the charges and
specifications are true to the best of the knowledge and
belief of the signer.
(3) Any procedure, including those by remote
means, which appeals to the conscience of the person
to whom the oath is administered and which binds that
person to properly perform that person’s duties under
this rule, is sufficient.
Discussion
See Article 136 for authority to administer oaths. The following form
may be used to administer the oath:
“You (swear) (affirm) that you are a person subject to the
Uniform Code of Military Justice, that you have personal knowledge
of or have investigated the matters set forth in the foregoing
charge(s) and specification(s), and that the same are true to the best
of your knowledge and belief. (So help you God.)”
The accuser’s belief may be based upon reports of others in
whole or in part.
(c) How to allege offenses.
(1) In general. The format of charge and
specification is used to allege violations of the UCMJ.
Discussion
See DD Form 458 for a template charge sheet.
(2) Charge. A charge states the article of the UCMJ,
law of war, or local penal law of an occupied territory
which the accused is alleged to have violated.
Discussion
The particular subdivision of an article of the UCMJ (for example,
Article 118(1)) should not be included in the charge. When there are
numerous infractions of the same article, there will be only one
charge, but several specifications thereunder. There may also be
several charges, but each must allege a violation of a different article
of the UCMJ. For violations of the law of war, see (D) of this
Discussion.
(A) Numbering charges. If there is only one charge, it is not
numbered. When there is more than one charge, each charge is
numbered by a Roman numeral.
(B) Additional charges. Charges preferred after others have
been preferred are labeled “additional charges” and are also
numbered with Roman numerals, beginning with “I” if there is more
than one additional charge. These ordinarily relate to offenses not
known at the time or committed after the original charges were
preferred. Additional charges do not require a separate trial if
incorporated in the trial of the original charges before arraignment.
See R.C.M. 601(e)(2).
(C) Preemption. An offense specifically defined by Articles 81
through 132 may not be alleged as a violation of Article 134. See
paragraph 91.c.(5)(a) of Part IV. But see R.C.M. 307(d).
(D) Charges under the law of war. In the case of a person
subject to trial by general court-martial for violations of the law of
war (see Article 18), the charge should be: “Violation of the Law of
War”; or “Violation of __________, ______” referring to the local
penal law of the occupied territory.
See R.C.M. 201(f)(1)(B). But see R.C.M. 307(d). Ordinarily
persons subject to the UCMJ should be charged with a specific
violation of the UCMJ rather than a violation of the law of war.
(3) Specification. A specification is a plain, concise,
and definite statement of the essential facts constituting
the offense charged. A specification is sufficient if it
alleges every element of the charged offense expressly
or by necessary implication; however, specifications
under Article 134 must expressly allege the terminal
element. Except for aggravating factors under R.C.M.
1003(d) and R.C.M. 1004, facts that increase the
maximum authorized punishment must be alleged in
order to permit the possible increased punishment. No
particular format is required.
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Discussion
How to draft specifications.
(A) Sample specifications. Before drafting a specification, the
drafter should read the pertinent provisions of Part IV, where the
elements of proof of various offenses and forms for specifications
appear.
(B) Numbering specifications. If there is only one specification
under a charge it is not numbered. When there is more than one
specification under any charge, the specifications are numbered in
Arabic numerals. The term “additional” is not used in connection
with the specifications under an additional charge.
(C) Name and description of the accused.
(i) Name. The specification should state the accused’s full
name: first name, middle name or initial, last name. If the accused is
known by more than one name, the name acknowledged by the
accused should be used. If there is no such acknowledgment, the
name believed to be the true name should be listed first, followed by
all known aliases. For example: Seaman John P. Smith, U.S. Navy,
alias Lt. Robert R. Brown, U.S. Navy.
(ii) Military association. The specification should state the
accused’s rank or grade. If the rank or grade of the accused has
changed since the date of an alleged offense, and the change is
pertinent to the offense charged, the accused should be identified by
the present rank or grade followed by rank or grade on the date of
the alleged offense. For example: In that Seaman ________ then
Seaman Apprentice ________, etc.
(iii) Social security number or service number. The social
security number or service number of an accused should not be stated
in the specification.
(iv) Basis of personal jurisdiction.
(a) Military members on active duty. Ordinarily, no
allegation of the accused’s armed force or unit or organization is
necessary for military members on active duty.
(b) Persons subject to the UCMJ under Article 2(a),
subsections (3) through (12), or subject to trial by court-martial
under Articles 3 or 4. The specification should describe the
accused’s armed force, unit or organization, position, or status which
will indicate the basis of jurisdiction. For example: John Jones, (a
person employed by and serving with the U.S. Army in the field in
time of war) (a person convicted of having obtained a fraudulent
discharge), etc.
(D) Date and time of offense.
(i) In general. The date of the commission of the offense
charged should be stated in the specification with sufficient precision
to identify the offense and enable the accused to understand what
particular act or omission to defend against.
(ii) Use of “on or about.” In alleging the date of the offense
it is proper to allege it as “on or about” a specified day.
(iii) Hour. The exact hour of the offense is ordinarily not
alleged except in certain absence offenses. When the exact time is
alleged, the 24-hour clock should be used. The use of “at or about”
is proper.
(iv) Extended periods. When the acts specified extend(s)
over a considerable period of time it is proper to allege it (or them)
as having occurred, for example, “from about 15 June 1983 to about
4 November 1983,” or “did on divers occasions between 15 June
1983 and 4 November 1983.”
(E) Place of offense. The place of the commission of the
offense charged should be stated in the specification with sufficient
precision to identify the offense and enable the accused to understand
the particular act or omission to defend against. In alleging the place
of the offense, it is proper to allege it as “at or near” a certain place
if the exact place is uncertain.
(F) Subject-matter jurisdiction allegations. Pleading the
accused’s rank or grade along with the proper elements of the offense
normally will be sufficient to establish subject-matter jurisdiction.
(G) Description of offense.
(i) Elements. The elements of the offense must be expressly
alleged. If a specific intent, knowledge, or state of mind is an element
of the offense, it must be alleged. To state an offense under Article
134, practitioners must expressly allege the terminal element. All
offenses under Article 134 require proof of a single terminal element,
but the terminal element is charged and proven differently for
offenses charged under Clause (1) and (2) of Article 134, in contrast
to those charged under Clause (3). For elements of offenses charged
under Article 134, Clause (1), (2), or (3), see paragraph 91.b. in Part
IV of this Manual.
(ii) Words indicating criminality. If the alleged act is not
itself an offense but is made an offense either by applicable statute
(including Articles 133 and 134), or regulation or custom having the
effect of law, then words indicating criminality such as
“wrongfully,” “unlawfully,” or “without authority” (depending upon
the nature of the offense) should be used to describe the accused’s
acts.
(iii) Specificity. The specification should be sufficiently
specific to inform the accused of the conduct charged, to enable the
accused to prepare a defense, and to protect the accused against
double jeopardy. Only those facts that make the accused’s conduct
criminal ordinarily should be alleged. Specific evidence supporting
the allegations ordinarily should not be included in the
specifications.
(iv) Duplicitousness. One specification should not allege
more than one offense, either conjunctively (the accused “lost and
destroyed”) or alternatively (the accused “lost or destroyed”).
However, if two acts or a series of acts constitute one offense, they
may be alleged conjunctively. See R.C.M. 906(b)(5).
(v) Lesser included offenses. Article 79 contains two
provisions concerning notice of lesser included offenses: (1) offenses
that are “necessarily included” in the charged offense in accordance
with Article 79(b)(1); and (2) offenses designated as lesser included
offenses by the President under Article 79(b)(2). See Appendix 12A.
Each provision sets forth an independent basis for providing notice
of a lesser included offense. Where there is doubt as to whether an
offense is a lesser included offense or whether a particular offense
should be charged in the alternative, preferral of a separate charge or
specification may be warranted. If the accused is convicted of two or
more offenses, the trial counsel should consider asking the military
judge to determine whether any convictions that were charged in the
alternative or as potential lesser included offenses should be
dismissed or conditionally dismissed subject to appellate review.
(H) Other considerations in drafting specifications.
(i) Principals. All principals are charged as if each was the
perpetrator. See paragraph 1 of Part IV for a discussion of principals.
(ii) Victim. In the case of an offense against the person or
property of a person, the first name, middle initial and last name of
such person should be alleged, if known. If the name of the victim is
unknown, a general physical description may be used. If this cannot
be done, the victim may be described as “a person whose name is
unknown.” Military rank or grade should be alleged, and must be
alleged if an element of the offense, as in an allegation of
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disobedience of the command of a superior officer. If the person has
no military position, it may otherwise be necessary to allege the
status as in an allegation of using provoking words toward a person
subject to the UCMJ. See paragraph 55 of Part IV.
(iii) Property. In describing property generic terms should
be used, such as “a watch” or “a knife,” and descriptive details such
as make, model, color, and serial number should ordinarily be
omitted. In some instances, however, details may be essential to the
offense, so they must be alleged. For example: the length of a knife
blade may be important when alleging a violation of general
regulation prohibiting carrying a knife with a blade that exceeds a
certain length.
(iv) Value. When the value of property or other amount
determines the maximum punishment which may be adjudged for an
offense, the value or amount should be alleged, for in such a case
increased punishments that are contingent upon value may not be
adjudged unless there is an allegation, as well as proof, of a value
which will support the punishment. If several articles of different
kinds are the subject of the offense, the value of each article should
be stated followed by a statement of the aggregate value. Exact value
should be stated, if known. For ease of proof an allegation may be
“of a value not less than_________.” If only an approximate value is
known, it may be alleged as “of a value of about ______.” If the
value of an item is unknown but obviously minimal, the term “of
some value” may be used. These principles apply to allegations of
amounts.
(v) Documents. When documents other than regulations or
orders must be alleged (for example, bad checks in violation of
Article 123a), the document may be set forth verbatim (including
photocopies and similar reproductions) or may be described, in
which case the description must be sufficient to inform the accused
of the offense charged.
(vi) Orders.
(a) General orders. A specification alleging a violation
of a general order or regulation (Article 92(1)) must clearly identify
the specific order or regulation allegedly violated. The general order
or regulation should be cited by its identifying title or number,
section or paragraph, and date. It is not necessary to recite the text of
the general order or regulation verbatim.
(b) Other orders. If the order allegedly violated is an
“other lawful order” (Article 92(2)), it should be set forth verbatim
or described in the specification. When the order is oral, see clause
(H)(vii) of this discussion.
(c) Negating exceptions. If the order contains exceptions,
it is not necessary that the specification contain a specific allegation
negating the exceptions. However, words of criminality may be
required if the alleged act is not necessarily criminal. See clause
(G)(ii) of this discussion.
(vii) Oral statements. When alleging oral statements the
phrase “or words to that effect” should be added.
(viii) Joint offense. In the case of a joint offense each
accused may be charged separately as if each accused acted alone or
all may be charged together in a single specification. For example:
(a) If Doe and Roe are joint perpetrators of an offense and
it is intended to charge and try both at the same trial, they should be
charged in a single specification as follows:
“In that Doe and Roe, acting jointly and pursuant to a
common intent, did. . . .”
(b) If it is intended that Roe will be tried alone or that Roe
will be tried with Doe at a common trial, Roe may be charged in the
same manner as if Roe alone had committed the offense. However,
to show in the specification that Doe was a joint actor with Roe, even
though Doe is not to be tried with Roe, Roe may be charged as
follows:
“In that Roe did, in conjunction with Doe, . . . .”
(ix) Matters in aggravation. Matters in aggravation that do
not increase the maximum authorized punishment ordinarily should
not be alleged in the specification. Prior convictions need not be
alleged in the specification to permit increased punishment.
(x) Abbreviations. Commonly used and understood
abbreviations may be used, particularly abbreviations for ranks,
grades, units and organizations, components, and geographic or
political entities, such as the names of states or countries.
(4) Multiple offenses. Charges and specifications
alleging all known offenses by an accused may be
preferred at the same time. Each specification shall
state only one offense. What is substantially one
transaction should not be made the basis for an
unreasonable multiplication of charges against one
person.
Discussion
Unreasonable multiplication of charges should not be confused with
multiplicity, a double jeopardy concept. See R.C.M. 1003(c)(1)(C).
Accordingly, the phrase “multiplicity in sentencing” is confusing
and should be avoided. Unreasonable multiplication of charges is
addressed in R.C.M. 906(b)(12); multiplicity is addressed in R.C.M.
907(b)(3)(B); and punishment limitations are addressed in R.C.M.
1003(c)(1)(C).
For example, a person should not be charged with both failure
to report for a routine scheduled duty (e.g., reveille) and absence
without leave if the failure to report occurred during the period for
which the accused is charged with absence without leave. There are
times, however, when sufficient doubt as to the facts or the law exists
to warrant making one transaction the basis for charging two or more
offenses. In no case should both an offense and a lesser included
offense thereof be separately charged.
See also R.C.M. 601(e)(2) concerning referral of several
offenses.
(5) Multiple offenders. A specification may name
more than one person as an accused if each person so
named is believed by the accuser to be a principal in
the offense which is the subject of the specification.
Discussion
See also R.C.M. 601(e)(3) concerning joinder of accused.
A joint offense is one committed by two or more persons acting
together with a common intent. Principals may be charged jointly
with the commission of the same offense, but an accessory after the
fact cannot be charged jointly with the principal whom the accused
is alleged to have received, comforted, or assisted. Offenders are
properly joined only if there is a common unlawful design or
II-35
purpose; the mere fact that several persons happen to have
committed the same kinds of offenses at the time, although material
as tending to show concert of purpose, does not necessarily establish
this. The fact that several persons happen to have absented
themselves without leave at about the same time will not, in the
absence of evidence indicating a joint design, purpose, or plan,
justify joining them in one specification, for they may merely have
been availing themselves of the same opportunity. In joint offenses
the participants may be separately or jointly charged. However, if the
participants are members of different armed forces, they must be
charged separately because their trials must be separately reviewed.
The preparation of joint charges is discussed in R.C.M. 307 (c)(3),
Discussion (H)(viii)(a). The advantage of a joint charge is that all
accused will be tried at one trial, thereby saving time, labor, and
expense. This must be weighed against the possible unfairness to the
accused which may result if their defenses are inconsistent or
antagonistic. An accused cannot be called as a witness except upon
that accused’s own request. If the testimony of an accomplice is
necessary, the accomplice should not be tried jointly with those
against whom the accomplice is expected to testify. See also Mil. R.
Evid. 306.
See R.C.M. 603 concerning amending specifications.
See R.C.M. 906(b)(4) and (6) concerning motions to amend
specifications and bills of particulars.
See R.C.M. 906(b)(5) pertaining to severance of duplicitous
specifications.
(d) Harmless error in citation. Error in or omission of
the designation of the article of the UCMJ or other
statute, law of war, or regulation violated shall not be
ground for dismissal of a charge or reversal of a
conviction if the error or omission did not prejudicially
mislead the accused.
Rule 308. Notification to accused of charges and
required disclosures
(a) Immediate commander. The immediate commander
of the accused shall cause the accused to be informed
of the charges preferred against the accused, and the
name of the person who preferred the charges and of
any person who ordered the charges to be preferred, if
known, as soon as practicable.
Discussion
When notice is given, a certificate to that effect on the charge sheet
should be completed. See DD Form 458.
However, in cases where charges are immediately referred
after preferral, service of referred charges under R.C.M. 602 fulfills
the notice requirement of this rule. In those cases, the notice
certificate on the charge sheet need not be completed and should be
lined out.
Following notification of preferred charges, the Government
shall comply with the requirements of R.C.M. 403(c).
(b) Commanders at higher echelons. When the accused
has not been informed of the charges, commanders at
higher echelons to whom the preferred charges are
forwarded shall cause the accused to be informed of the
matters required under R.C.M. 308(a) as soon as
practicable.
(c) Disclosures generally. Except as otherwise
provided in R.C.M. 308(d) and as soon as practicable
after notification to the accused of preferred charges,
counsel for the Government shall provide the defense
with copies of the charges and any books, papers,
documents, data, photographs, or tangible objects that
accompanied the charge or charges when preferred. If
extraordinary circumstances make it impracticable to
provide copies, counsel for the Government shall
permit the defense to inspect these items.
(d) Information not subject to disclosure.
(1) Military Rules of Evidence. Nothing in this rule
shall be construed to require the disclosure of
information protected from disclosure by the Military
Rules of Evidence.
(2) Work Product. Nothing in this rule shall require
the disclosure or production of notes, memoranda, or
similar working papers prepared by counsel or
counsel’s assistants and representatives.
(3) Contraband. If items covered by R.C.M. 308(c)
are contraband, the disclosure required under this rule
is a reasonable opportunity to inspect said contraband
prior to the preliminary hearing.
(4) Privilege. If items covered by R.C.M. 308(c) are
privileged, classified, or otherwise protected under
Section V of Part III, the Military Rules of Evidence,
no disclosure of those items is required under this rule.
However, counsel for the Government may disclose
privileged, classified, or otherwise protected
information covered by R.C.M. 308(a) if authorized by
the holder of the privilege or, in the case of Mil. R.
Evid. 505 or 506, if authorized by a competent
II-36
authority.
(5) Protective order if privileged information is
disclosed. If the Government agrees to disclose to the
accused information to which the protections afforded
by Section V of the Military Rules of Evidence may
apply, the convening authority, or other person
designated by regulation of the Secretary concerned,
may enter an appropriate protective order, in writing,
to guard against the compromise of information
disclosed to the accused. The terms of any such
protective order may include prohibiting the disclosure
of the information except as authorized by the authority
issuing the protective order, as well as those terms
specified by Mil. R. Evid. 505(g)(2)–(6) or 506(g)(2)–
(5).
Discussion
This rule is not intended to limit or discourage counsel for the
Government from providing additional materials to the defense. The
purpose of this rule is to provide the accused with the documents
used to make the determination to prefer charges.
(e) Remedy. The sole remedy for violation of this rule
is a continuance or recess of sufficient length to permit
the accused to adequately prepare a defense, and no
relief shall be granted upon a failure to comply with
this rule unless the accused demonstrates that the
accused has been hindered in the preparation of a
defense.
Rule 309. Pre-referral judicial proceedings
(a) In general.
(1) A military judge detailed under regulations of the
Secretary concerned may conduct proceedings under
Article 30a, before referral of charges and
specifications to court-martial for trial, and may issue
such rulings and orders as necessary to further the
purpose of the proceedings. A military judge may issue
such orders and rulings only when the matters would
be subject to consideration by a military judge in a
general or special court-martial.
Discussion
In determining whether to issue a ruling or order before referral, a
military judge may consider chain of command recommendations as
to disposition of a charged offense or offenses, representations of
counsel or a federal law enforcement officer, the frequency or
severity of a charged offense or offenses, and any other matter
deemed relevant by the military judge.
(2) The matters that may be considered and ruled
upon by a military judge under this rule are limited to
those matters specified in R.C.M. 309(b).
(3) If any matter in a proceeding under this rule
becomes a subject at issue with respect to charges that
have been referred to a general or special court-martial,
the matter, to include any motions, related papers, and
the record of the hearing, if any, shall be provided to
the military judge detailed to the court-martial.
(b) Pre-referral matters.
(1) Pre-referral investigative subpoenas. A military
judge may, upon application by the Government,
consider whether to issue a pre-referral investigative
subpoena under R.C.M. 703(g)(3)(C). The proceeding
may be conducted ex parte and may be conducted in
camera.
(2) Pre-referral warrants or orders for wire or
electronic communications. A military judge may,
upon written application by a federal law enforcement
officer or authorized counsel for the Government in
connection with an ongoing investigation of an offense
or offenses under the UCMJ, consider whether to issue
a warrant or order for wire or electronic
communications and related information as provided
under R.C.M. 703A. The proceeding may be
conducted ex parte and may be conducted in camera.
Discussion
The defense may request that the trial counsel or other counsel for
the Government make an application under R.C.M. 309(b)(1) or
(b)(2) of this rule. The military judge may, as a matter of discretion,
afford the defense an opportunity to be heard.
(3) Requests for relief from subpoena or other
process. A person in receipt of a pre-referral
investigative subpoena under R.C.M. 703(g)(3)(C), a
victim named in a specification whose personal and
confidential information has been subpoenaed under
R.C.M. 703(g)(3)(C)(ii), a service provider in receipt
of a warrant or court order to disclose information
about wire or electronic communications under R.C.M.
703A(a), or a person ordered to sit for a deposition
under R.C.M. 702(b)(2) may request relief on grounds
that compliance with the subpoena, warrant, or order is
unreasonable, oppressive, or prohibited by law. The
military judge shall review the request and shall either
order the person or service provider to comply with the
subpoena, warrant, or order, or modify or quash the
II-37
subpoena, warrant, or order, as appropriate. In a
proceeding under this paragraph, the United States
shall be represented by an authorized counsel for the
Government.
Discussion
See Article 46; R.C.M. 703(g)(3)(G); R.C.M. 703A(c)(2).
(4) Pre-referral matters referred by an appellate
court. When a Court of Criminal Appeals or the Court
of Appeals for the Armed Forces, in the course of
exercising the jurisdiction of such court, remands the
case for a pre-referral judicial proceeding, a military
judge may conduct such a proceeding under this rule.
This includes matters referred by a Court of Criminal
Appeals under subsection (e) of Article 6b.
(5) Pre-referral matters under subsection (c) of
Article 6b. The military judge may designate a suitable
person to assume the rights of a victim who is under 18
years of age (but who is not a member of the armed
forces), or who is incompetent, incapacitated, or
deceased. Upon appointment by the military judge, the
legal guardian of the victim, the representative of the
victim’s estate, a family member, or any other person
designated as suitable by the military judge, may
assume the rights of the victim. Under no
circumstances may the military judge designate the
accused to assume the rights of the victim.
(6) Pretrial confinement of an accused. After action
by the 7-day reviewing officer under R.C.M.
305(j)(2)(C), a military judge may, upon application of
an accused for appropriate relief, review the propriety
of pretrial confinement. A military judge may order
release from pretrial confinement under the provisions
of R.C.M. 305(k)(1).
(7) The mental capacity or mental responsibility of
an accused.
(A) A military judge may, under the provisions of
R.C.M. 706(b)(1), order an inquiry into the mental
capacity or mental responsibility of an accused before
referral of charges. The proceeding may be conducted
ex parte and may be conducted in camera.
(B) A military judge may, under the provisions of
R.C.M. 909, conduct a hearing to determine the mental
capacity of the accused.
(8) A request for individual military counsel. When
an accused requests individual military counsel prior to
charges being referred to a general or special court-
martial, a military judge may review the request
subject to the provisions of R.C.M. 506(b).
(9) Victim’s petition for relief.
(A) A victim of an offense under the UCMJ, as
defined in Article 6b(b), may file a motion pre-referral
requesting that a military judge require a preliminary
hearing officer conducting a preliminary hearing under
R.C.M. 405 to comply with:
(i) Articles 6b or 32;
(ii) R.C.M. 405; or
(iii) Mil. R. Evid. 412, 513, 514, or 615.
(B) The military judge may grant or deny such a
motion. The ruling is subject to further review pursuant
to Article 6b(e).
(10) Pre-referral depositions. A military judge may,
upon application by a party, consider whether to order
a pre-referral deposition under R.C.M. 702(c)(2).
(c) Procedure for submissions. The Secretary
concerned shall prescribe the procedures for receiving
requests for proceedings under this rule and for
detailing military judges to such proceedings.
(d) Hearings. Any hearing conducted under this rule
shall be conducted in accordance with the procedures
generally applicable to sessions conducted under
Article 39(a), and R.C.M. 803.
(e) Record. A separate record of any proceeding under
this rule shall be prepared and forwarded to the
convening authority, special trial counsel, or any
combination thereof, with authority to dispose of the
charges or offenses in the case. If charges are referred
to trial in the case, such record shall be included in the
record of trial.
(f) Military magistrate. If authorized under regulations
of the Secretary concerned, a military judge detailed to
a proceeding under this rule, other than a proceeding
under paragraph (b)(2), (b)(7)(B), or (b)(8) of this rule,
may designate a military magistrate to preside and
exercise the authority of the military judge over the
proceeding.
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CHAPTER IV. FORWARDING AND DISPOSITION OF CHARGES
Rule 401. Forwarding and disposition of charges
in general
(a) Who may dispose of charges. Only persons
authorized to convene courts-martial or to administer
nonjudicial punishment under Article 15 may dispose
of charges, except for those charges over which a
special trial counsel has exercised authority and which
must be disposed of in accordance with R.C.M. 401A.
A superior competent authority may withhold the
authority of a subordinate to dispose of charges in
individual cases, types of cases, or generally.
Discussion
R.C.M. 401 applies only to offenses over which a special trial
counsel does not exercise authority. When a special trial counsel has
exercised authority, a commander may not dispose of charges in
accordance with this rule unless the special trial counsel defers. See
R.C.M. 401A.
When a commander receives charges containing a covered
offense that has not been reviewed by a special trial counsel, the
commander shall forward the charges to a special trial counsel for an
initial determination under R.C.M. 303A.
See R.C.M. 504 as to who may convene courts-martial and
paragraph 2 of Part V as to who may administer nonjudicial
punishment. If the power to convene courts-martial and to administer
nonjudicial punishment has been withheld, a commander may not
dispose of charges under this rule.
Ordinarily charges should be forwarded to the accused’s
immediate commander for initial consideration as to disposition.
Each commander has independent discretion to determine how
charges will be disposed of, except to the extent that the
commander’s authority has been withheld by superior competent
authority. See also R.C.M. 104.
See R.C.M. 603 if major or minor changes to the charges are
necessary after preferral. If a commander is an accuser (see Article
1(9); R.C.M. 307(a)) that commander is ineligible to refer such
charges to a general or special court-martial. See R.C.M. 601(c).
But see R.C.M. 1302(b) (accuser may refer charges to a summary
court-martial).
(b) Prompt determination. When a commander with
authority to dispose of charges receives charges, that
commander shall promptly determine what disposition
will be made in the interest of justice and discipline.
Discussion
In determining what level of disposition is appropriate, see R.C.M.
306(b) and (c) and Appendix 2.1 (Disposition Guidance). When
charges are brought against two or more accused with a view to a
joint or common trial, see R.C.M. 307(c)(5) and 601(e)(3). If it
appears that the accused may lack mental capacity to stand trial or
may not have been mentally responsible at the times of the offenses,
see R.C.M. 706, 909, and 916(k).
As to the rules concerning speedy trial, see R.C.M. 707. See
also Articles 10, 30, and 131f.
Before determining an appropriate disposition, a commander
who receives charges should ensure that: (1) a preliminary inquiry
under R.C.M. 303 has been conducted; (2) the accused has been
notified in accordance with R.C.M. 308; and (3) the charges are in
proper form.
(c) How charges may be disposed of. Unless the
authority to do so has been limited or withheld by
superior competent authority, a commander may
dispose of charges by dismissing any or all of them,
forwarding any or all of them to another commander
for disposition, or referring any or all of them to a
court-martial which the commander is empowered to
convene. Charges should be disposed of in accordance
with the policy in R.C.M. 306(b).
Discussion
A commander may dispose of charges individually or collectively.
See Appendix 3 or 4 when the charges may involve matters in
which the Department of Justice has an interest.
See the Discussion to R.C.M. 306(b) and Appendix 2.1
(Disposition Guidance).
(1) Dismissal. When a commander dismisses
charges further disposition under R.C.M. 306(c) of the
offenses is not barred.
Discussion
Charges are ordinarily dismissed by lining out and initialing the
deleted specifications or otherwise recording that a specification is
dismissed. When all charges and specifications are dismissed, the
accuser and the accused ordinarily should be informed.
A charge should be dismissed when it fails to state an offense,
when it is unsupported by available evidence, or when there are other
sound reasons why trial by court-martial is not appropriate. Before
dismissing charges because trial would be detrimental to the
prosecution of a war or harmful to national security, see R.C.M.
401(d) and 407(b).
If the accused has already refused nonjudicial punishment,
charges should not be dismissed with a view to offering nonjudicial
punishment unless the accused has indicated willingness to accept
nonjudicial punishment if again offered. The decision whether to
dismiss charges in such circumstances is within the sole discretion
of the commander concerned.
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Charges may be amended in accordance with R.C.M. 603. It is
appropriate to dismiss a charge and prefer another charge anew
when, for example, the original charge failed to state an offense, or
was so defective that a major amendment was required (see R.C.M.
603(d)), or did not adequately reflect the nature or seriousness of the
offense.
See R.C.M. 907(b)(2)(C) concerning the effect of dismissing
charges after the court-martial has begun.
(2) Forwarding charges.
(A) Forwarding to a superior commander. When
charges are forwarded to a superior commander for
disposition, the forwarding commander shall make a
personal recommendation as to disposition. If the
forwarding commander is disqualified from acting as
convening authority in the case, the basis for the
disqualification shall be noted.
Discussion
A commander’s recommendation is within that commander’s sole
discretion. No authority may direct a commander to make a specific
recommendation as to disposition. However, in making a disposition
recommendation, the forwarding commander should review
Appendix 2.1 (Disposition Guidance).
When charges are forwarded to a superior commander with a
view to trial by general or special court-martial, they should be
forwarded by a letter of transmittal or indorsement. To the extent
practicable without unduly delaying forwarding the charges, the
letter should include or carry as enclosures: a summary of the
available evidence relating to each offense; evidence of previous
convictions and nonjudicial punishments of the accused; an
indication that the accused has been offered and refused nonjudicial
punishment, if applicable; and any other matters required by superior
authority or deemed appropriate by the forwarding commander.
Other matters which may be appropriate include information
concerning the accused’s background and military service, and a
description of any unusual circumstances in the case. The summary
of evidence should include available witness statements,
documentary evidence, and exhibits. When practicable, copies of
signed statements of the witnesses should be forwarded, as should
copies of any investigative or laboratory reports. Forwarding charges
should not be delayed, however, solely to obtain such statements or
reports when it otherwise appears that sufficient evidence to warrant
trial is or will be available in time for trial. If because of the bulk of
documents or exhibits, it is impracticable to forward them with the
letter of transmittal, they should be properly preserved and should be
referred to in the letter of transmittal.
When it appears that any witness may not be available for later
proceedings in the case or that a deposition may be appropriate, that
matter should be brought to the attention of the convening authority
promptly and should be noted in the letter of transmittal.
When charges are forwarded with a view to disposition other
than trial by general or special court-martial, they should be
accompanied by sufficient information to enable the authority
receiving them to dispose of them without further investigation.
(B) Other cases. When charges are forwarded to a
commander who is not a superior of the forwarding
commander, no recommendation as to disposition may
be made.
Discussion
Except when directed to forward charges, a subordinate commander
may not be required to take any specific action to dispose of charges.
See R.C.M. 104. See also paragraph 1.d.(2) of Part V. When
appropriate, charges may be sent or returned to a subordinate
commander for compliance with procedural requirements. See, e.g.,
R.C.M. 303 (preliminary inquiry); R.C.M. 308 (notification to
accused of charges).
(3) Referral of charges. See R.C.M. 403, 404, 407,
601.
(d) National security matters. If a commander who is
not a general court-martial convening authority finds
that the charges warrant trial by court-martial but
believes that trial would probably be detrimental to the
prosecution of a war or harmful to national security,
the charges shall be forwarded to the officer exercising
general court-martial convening authority.
Discussion
See R.C.M. 407(b).
Rule 401A. Disposition of charges over which a
special trial counsel exercises authority and has
not deferred
(a) Who may dispose of preferred specifications.
Regardless of who preferred a specification, only a
special trial counsel may dispose of a specification
alleging a covered offense or another offense over
which a special trial counsel has exercised authority
and has not deferred. A superior competent authority
may withhold the authority of a subordinate special
trial counsel to dispose of offenses charged in
individual cases, types of cases, or generally.
Discussion
The "superior competent authority" referenced in R.C.M. 401A(a)
may include the Secretary concerned, the Lead Special Trial
Counsel, or other supervisory special trial counsel.
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(b) Prompt determination. Special trial counsel shall
promptly determine what disposition will be made in
the interest of justice and discipline.
Discussion
In determining what level of disposition is appropriate, see R.C.M.
306(b) and (c) and Appendix 2.1 (Disposition Guidance).
(c) Disposition of preferred specifications.
(1) Referral. For those offenses over which a special
trial counsel has exercised authority and not deferred,
a special trial counsel may refer a charge and any
specification thereunder to a special or general court-
martial. If a preliminary hearing in accordance with
Article 32 and R.C.M. 405 is required, a special trial
counsel shall request a hearing officer and a hearing
officer shall be provided by the convening authority.
(2) Dismissal. For those offenses over which a
special trial counsel has exercised authority and not
deferred, a special trial counsel may dismiss any
charge or specification thereunder. A dismissal may be
accompanied by a deferral as defined in this rule.
Further disposition by a special trial counsel in
accordance with this rule or by a convening authority
pursuant to RCM 306(c) is not barred.
(3) Deferral.
(A) Pre-referral. A special trial counsel may defer
a charged offense by electing not to refer the charged
offense to a special or general court-martial. Upon such
a determination, the special trial counsel shall promptly
forward the matter to the commander or convening
authority for disposition. The commander or
convening authority shall dispose of the offense
pursuant to R.C.M. 306 or the charged offense
pursuant to R.C.M. 401, as applicable. The commander
or convening authority may dismiss a charge preferred
by a special trial counsel. However, a convening
authority may not refer a charge alleging a covered
offense to a special or general court-martial.
(B) Post-referral. After referral, a charge referred
to a general or special court-martial by a special trial
counsel must be withdrawn before the offense alleged
by that charge may be deferred.
Discussion
Following deferral by special trial counsel, a commander or
convening authority may dispose of a charge pursuant to R.C.M.
401, including by dismissing charges preferred by special trial
counsel. See R.C.M 401(c). However, after referral of charges by a
special trial counsel, a special trial counsel must withdraw a charge
before it can be deferred to a commander or convening authority. See
R.C.M. 604(a).”
Rule 402. Action by commander not authorized to
convene courts-martial
Except for covered offenses and other charges over
which a special trial counsel has exercised authority
and has not deferred, when in receipt of charges, a
commander authorized to administer nonjudicial
punishment but not authorized to convene courts-
martial may:
(1) Dismiss any charge; or
Discussion
See R.C.M. 401(c)(1) concerning dismissal of charges, the effect of
dismissal, and options for further action.
(2) Forward any charge to a superior commander for
disposition.
Discussion
See R.C.M. 401(c)(2) for additional guidance concerning forwarding
charges. See generally R.C.M. 303 (preliminary inquiry); 308
(notification to accused of charges) concerning other duties of the
immediate commander when in receipt of charges.
When the immediate commander is authorized to convene
courts-martial, see R.C.M. 403, 404, or 407, as appropriate.
Rule 403. Action by commander exercising
summary court-martial jurisdiction
(a) Recording receipt. Immediately upon receipt of
sworn charges, an officer exercising summary court-
martial jurisdiction over the command shall cause the
hour and date of receipt to be entered on the charge
sheet. After recording receipt of charges over which a
special trial counsel has exercised authority and has not
deferred, the charge sheet shall be returned to the
special trial counsel.
Discussion
See Article 24 and R.C.M. 1302(a) concerning who may exercise
summary court-martial jurisdiction.
The entry indicating receipt is important because it stops the
running of the statute of limitations. See Article 43; R.C.M.
907(b)(2)(B). Charges may be preferred and forwarded to an officer
II-41
exercising summary court-martial jurisdiction over the command to
stop the running of the statute of limitations even though the accused
is absent without authority.
(b) Disposition. Except for covered offenses and other
charges over which a special trial counsel has exercised
authority and has not deferred, when in receipt of
charges, a commander exercising summary court-
martial jurisdiction may:
(1) Dismiss any charge;
Discussion
See R.C.M. 401(c) concerning dismissal of charges, the effect of
dismissing charges, and options for further action.
(2) Forward any charge (or, after dismissing a
charge, the matter) to a subordinate commander for
disposition;
Discussion
See R.C.M. 401(c)(2)(B) concerning forwarding charges to a
subordinate. When appropriate, charges may be forwarded to a
subordinate even if the subordinate previously considered them.
(3) Forward any charge to a superior commander for
disposition;
Discussion
See R.C.M. 401(c)(2)(A) for guidance concerning forwarding
charges to a superior.
(4) Subject to R.C.M. 601(d) and 1301(c), refer any
charge to a summary court-martial for trial; or
Discussion
See R.C.M. 1302(c) concerning referral of charges to a summary
court-martial.
(5) Unless otherwise prescribed by the Secretary
concerned, direct a preliminary hearing under R.C.M.
405, and, if appropriate, forward the report of
preliminary hearing with the charges to a superior
commander for disposition.
Discussion
A preliminary hearing should be directed when it appears that the
charges are of such a serious nature that trial by general court-martial
may be warranted. See R.C.M. 405. If a preliminary hearing of the
subject matter already has been conducted,. see R.C.M. 405
Rule 404. Action by commander exercising special
court-martial jurisdiction
Except for covered offenses and other charges over
which a special trial counsel has exercised authority
and has not deferred, when in receipt of charges, a
commander exercising special court-martial
jurisdiction may:
(1) Dismiss any charge;
Discussion
See R.C.M. 401(c) concerning dismissal of charges, the effect of
dismissing charges, and options for further action.
(2) Forward any charge (or, after dismissing a
charge, the matter) to a subordinate commander for
disposition;
Discussion
See R.C.M. 401(c)(2)(B) concerning forwarding charges to a
subordinate. When appropriate, charges may be forwarded to a
subordinate even if the subordinate previously considered them.
(3) Forward any charge to a superior commander
for disposition;
Discussion
See R.C.M. 401(c)(2)(A) for guidance concerning forwarding
charges to a superior.
(4) Subject to R.C.M. 201(f)(2)(D) and (E),
601(d), and 1301(c), refer any charge to a summary
court-martial or to a special court-martial for trial; or
Discussion
See Article 23 and R.C.M. 504(b)(2) concerning who may
convene special courts-martial.
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See R.C.M. 601 concerning referral of charges to a special
court-martial. See R.C.M. 1302(c) concerning referral of charges to
a summary court-martial.
See R.C.M. 201(f)(2)(D) and (E) and 1301(c) for limitations
on the referral of certain offenses to special and summary courts-
martial.
(5) Unless otherwise prescribed by the Secretary
concerned, direct a preliminary hearing under R.C.M.
405, and, if appropriate, forward the report of
preliminary hearing with the charges to a superior
commander for disposition.
Discussion
A preliminary hearing should be directed when it appears that the
charges are of such a serious nature that trial by general court-martial
may be warranted. See R.C.M. 405. If a preliminary hearing of the
subject matter already has been conducted, see R.C.M. 405(b) and
405(f)(2).
Rule 405. Preliminary hearing
(a) In general. Except as provided in R.C.M. 405(n),
no charge or specification may be referred to a general
court-martial for trial until completion of a preliminary
hearing in substantial compliance with this rule. The
issues for determination at a preliminary hearing are
limited to the following: whether each specification
alleges an offense; whether there is probable cause to
believe that the accused committed the offense or
offenses charged; whether the convening authority has
court-martial jurisdiction over the accused and over the
offense; and to recommend the disposition that should
be made of the case. Failure to comply with this rule
shall have no effect on the disposition of any charge if
the charge is not referred to a general court-martial.
Discussion
The function of the preliminary hearing is to ascertain and
impartially weigh the facts needed for the limited scope and purpose
of the preliminary hearing. The preliminary hearing is not intended
to perfect a case against the accused and is not intended to serve as a
means of discovery or to provide a right of confrontation required at
trial. Determinations and recommendations of the preliminary
hearing officer are advisory.
Failure to substantially comply with the requirements of
Article 32, which failure prejudices the accused, may result in delay
in disposition of the case or disapproval of the proceedings. See
R.C.M. 905(b)(1) and 906(b)(3) concerning motions for appropriate
relief relating to the preliminary hearing.
The accused may waive the preliminary hearing. See R.C.M.
405(m). In such case, no preliminary hearing need be held. However,
the convening authority authorized to direct the preliminary hearing
may direct that it be conducted notwithstanding the waiver.
(b) Earlier preliminary hearing. If a preliminary
hearing on the subject matter of an offense has been
conducted before the accused is charged with an
offense, and the accused was present at the preliminary
hearing and afforded the rights to counsel, cross-
examination, and presentation of evidence required by
this rule, no further preliminary hearing is required.
(c) Who may direct a preliminary hearing.
(1) Subject to R.C.M. 405(c)(2), unless prohibited by
regulations of the Secretary concerned, a preliminary
hearing may be directed under this rule by any court-
martial convening authority. That authority may also
give procedural instructions not inconsistent with these
rules.
(2) For charges and specifications over which a
special trial counsel has exercised authority, the special
trial counsel shall determine whether a preliminary
hearing is required. If a special trial counsel determines
that a hearing is required, the special trial counsel shall
request that a convening authority provide a
preliminary hearing officer. Upon such a request, the
convening authority shall provide a preliminary
hearing officer and direct a preliminary hearing in
accordance with this rule. If a special trial counsel
determines a previous preliminary hearing is required
to be reopened, the convening authority shall direct the
preliminary hearing to be reopened.
(d) Disclosures after direction of a preliminary
hearing.
(1) As soon as practicable but no later than five days
after direction of an Article 32 preliminary hearing,
counsel for the Government shall provide the defense
with copies of, or, if impracticable, permit the defense
to inspect:
(A) the order directing the Article 32 preliminary
hearing pursuant to this rule (R.C.M. 405);
(B) statements, within the control of military
authorities, of witnesses that counsel for the
Government intends to call at the preliminary hearing;
(C) evidence counsel for the Government intends
to present at the preliminary hearing; and
(D) any matters provided to the convening
authority when deciding to direct the preliminary
hearing.
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Discussion
This rule is not intended to limit or discourage counsel for the
Government from providing additional materials to the defense.
(2) Contraband. If items covered by R.C.M.
405(d)(1) are contraband, the disclosure required under
this rule is a reasonable opportunity to inspect said
contraband prior to the preliminary hearing.
(3) Privilege. If items covered by R.C.M. 405(d)(1)
are privileged, classified, or otherwise protected under
Section V of Part III, the Military Rules of Evidence,
no disclosure of those items is required under this rule.
However, counsel for the Government may disclose
privileged, classified, or otherwise protected
information covered by R.C.M. 405(d)(1) if authorized
by the holder of the privilege, or, in the case of Mil. R.
Evid. 505 or 506, if authorized by a competent
authority.
(4) Protective order if privileged information is
disclosed. If the Government agrees to disclose to the
accused information to which the protections afforded
by Section V of Part III may apply, the convening
authority, or other person designated by regulation of
the Secretary concerned, may enter an appropriate
protective order, in writing, to guard against the
compromise of information disclosed to the accused.
The terms of any such protective order may include
prohibiting the disclosure of the information except as
authorized by the authority issuing the protective order,
as well as those terms specified by Mil. R. Evid.
505(g)(2)–(6) or 506(g)(2)–(5).
Discussion
The purpose of this rule is to provide the accused with the documents
used to make the determination to direct a preliminary hearing and
to allow the accused to prepare for the preliminary hearing. This rule
is not intended to be a tool for discovery and does not impose the
same discovery obligations found in R.C.M. 405 prior to
amendments required by Section 1702 of the National Defense
Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127
Stat. 980 (2013), as amended by Section 531 of the Carl Levin and
Howard P. “Buck” McKeon National Defense Authorization Act for
Fiscal Year 2015, Pub. L. No. 113-291, 128 Stat. 3371 (2014), or
R.C.M. 701. Additional rules for disclosure of witnesses and other
evidence in the preliminary hearing are provided in R.C.M. 405(j).
(e) Personnel.
(1) Preliminary hearing officer.
(A) The convening authority directing the
preliminary hearing shall detail an impartial judge
advocate, not the accuser, who is certified under
Article 27(b)(2) to conduct the hearing. When it is
impracticable to appoint a judge advocate certified
under Article 27(b)(2) due to exceptional
circumstances:
(i) The convening authority may detail an
impartial commissioned officer as the preliminary
hearing officer, and
(ii) An impartial judge advocate certified under
Article 27(b)(2) shall be available to provide legal
advice to the detailed preliminary hearing officer.
(B) Whenever practicable, the preliminary hearing
officer shall be equal or senior in grade to the military
counsel detailed to represent the accused and the
Government at the preliminary hearing.
(C) The Secretary concerned may prescribe
additional limitations on the detailing of preliminary
hearing officers.
(D) The preliminary hearing officer shall not
depart from an impartial role and become an advocate
for either side. The preliminary hearing officer is
disqualified to act later in the same case in any other
capacity.
Discussion
The preliminary hearing officer, if not a judge advocate, should be
an officer in the grade of O-4 or higher. The preliminary hearing
officer may seek legal advice concerning the preliminary hearing
officer’s responsibilities from an impartial source, but may not
obtain such advice from counsel for any party or counsel for a victim.
Because this is a preliminary hearing and not a trial, the
requirement for the preliminary hearing officer to remain impartial
does not preclude the preliminary hearing officer from identifying
matters or sources of information that may warrant further inquiry.
See R.C.M. 405(k)(1). The responsibility for requesting and
producing such information, however, rests with the parties.
(2) Counsel for the Government.
(A) Subject to R.C.M. 405(e)(2)(B), a judge
advocate, not the accuser, shall serve as counsel to
represent the Government.
(B) For preliminary hearings requested by a
special trial counsel, the special trial counsel shall
detail counsel for the Government consistent with
regulations prescribed by the Secretary concerned.
Any determination by a special trial counsel to prefer
or refer charges shall not act to disqualify that special
trial counsel as an accuser.
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(3) Defense counsel.
(A) Detailed counsel. Military counsel certified in
accordance with Article 27(b) shall be detailed to
represent the accused.
(B) Individual military counsel. The accused may
request to be represented by individual military
counsel. Such requests shall be acted on in accordance
with R.C.M. 506(b).
(C) Civilian counsel. The accused may be
represented by civilian counsel at no expense to the
Government. Upon request, the accused is entitled to a
reasonable time to obtain civilian counsel and to have
such counsel present for the preliminary hearing.
However, the preliminary hearing shall not be unduly
delayed for this purpose. Representation by civilian
counsel shall not limit the rights to military counsel
under R.C.M. 405(e)(3)(A) or (B).
(4) Others. The convening authority who directed
the preliminary hearing may also detail or request an
appropriate authority to detail a reporter, an interpreter,
or both.
(f) Scope of preliminary hearing.
(1) The preliminary hearing officer shall limit the
inquiry to the examination of evidence, including
witnesses, relevant to the issues for determination
under R.C.M. 405(a).
(2) If evidence adduced during the preliminary
hearing indicates that the accused committed any
uncharged offense, the preliminary hearing officer may
examine evidence and hear witnesses presented by the
parties relating to the subject matter of such offense
and make the determination specified in R.C.M. 405(a)
regarding such offense without the accused first having
been charged with the offense. The rights of the
accused under R.C.M. 405(g), and, where it would not
cause undue delay to the proceedings, the procedure
applicable for production of witnesses and other
evidence under R.C.M. 405(i), are the same with
regard to both charged and uncharged offenses. When
considering uncharged offenses identified during the
preliminary hearing, the preliminary hearing officers
shall inform the accused of the general nature of each
offense considered and otherwise afford the accused
the same opportunity for representation, cross-
examination, and presentation afforded during the
preliminary hearing of any charged offense.
(3) If evidence adduced during the preliminary
hearing indicates that the accused committed any
uncharged covered offense and the preliminary hearing
was not requested by special trial counsel, the
preliminary hearing officer shall provide prompt notice
to the convening authority and a special trial counsel
and shall submit a copy of the preliminary hearing
report to a special trial counsel.
Discussion
Except as set forth in R.C.M. 405(j), the Military Rules of Evidence
do not apply at a preliminary hearing. Except as prohibited elsewhere
in this rule, a preliminary hearing officer may consider evidence,
including hearsay, which would not be admissible at trial.
(g) Rights of the accused. At any preliminary hearing
under this rule the accused shall have the right to:
(1) Be advised of the charges and uncharged
misconduct under consideration;
(2) Be represented by counsel;
(3) Be informed of the purpose of the preliminary
hearing;
(4) Be informed of the right against self-
incrimination under Article 31;
(5) In accordance with the terms of R.C.M.
405(k)(4), be present throughout the taking of
evidence;
(6) Cross-examine witnesses on matters relevant to
the issues for determination under R.C.M. 405(a);
(7) Present matters relevant to the issues for
determination under R.C.M. 405(a); and
(8) Make a sworn or unsworn statement relevant to
the issues for determination under R.C.M. 405(a).
(h) Notice to and presence of victim.
(1) For the purposes of this rule, a “victim” is an
individual who is alleged to have suffered a direct
physical, emotional, or pecuniary harm as a result of
the commission of an offense under the UCMJ.
(2) A victim of an offense under the UCMJ or the
victim’s counsel, if any, shall receive reasonable,
accurate, and timely notice of a preliminary hearing
relating to the alleged offense and a reasonable
opportunity to confer with counsel for the Government.
(3) A victim has the right not to be excluded from
any public proceeding of the preliminary hearing,
except to the extent a similarly situated victim would
be excluded at trial.
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Discussion
See Article 6b, UCMJ.
(i) Notice, Production of Witnesses, and Production of
Other Evidence.
(1) Notice. Prior to any preliminary hearing under
this rule, the parties shall, in accordance with timelines
set by the preliminary hearing officer, provide to the
preliminary hearing officer and the opposing party the
following notices:
(A) Notice of the name and contact information
for each witness the party intends to call at the
preliminary hearing;
(B) Notice of any other evidence that the party
intends to offer at the preliminary hearing; and
(C) Notice of any additional information the party
intends to submit under R.C.M. 405(l).
(2) Production of Witnesses.
(A) Military Witnesses.
(i) Prior to the preliminary hearing, defense
counsel shall provide to counsel for the Government
the names of proposed military witnesses whom the
accused requests that the Government produce to
testify at the preliminary hearing, and the requested
form of the testimony, in accordance with the timeline
established by the preliminary hearing officer. Counsel
for the Government shall respond that either (1) the
Government agrees that the witness’ testimony is
relevant, not cumulative, and necessary to a
determination of the issues under R.C.M. 405(a) and
will seek to secure the witness’ testimony for the
hearing; or (2) the Government objects to the proposed
defense witness on the grounds that the testimony
would be irrelevant, cumulative, or unnecessary to a
determination of the issues under R.C.M. 405(a).
(ii) If the Government objects to the proposed
defense witness, defense counsel may request that the
preliminary hearing officer determine whether the
witness is relevant, not cumulative, and necessary to a
determination of the issues under R.C.M. 405(a).
(iii) If the Government does not object to the
proposed defense military witness or the preliminary
hearing officer determines that the military witness is
relevant, not cumulative, and necessary, counsel for the
Government shall request that the commanding officer
of the proposed military witness make that person
available to provide testimony. The commanding
officer shall determine whether the individual is
available, and if so, whether the witness will testify in
person, by video teleconference, by telephone, or by
similar means of remote testimony, based on
operational necessity or mission requirements. If the
commanding officer determines that the military
witness is available, counsel for the Government shall
make arrangements for that individual’s testimony.
The commanding officer’s determination of
unavailability due to operational necessity or mission
requirements is final.
(iv) A victim who is alleged to have suffered a
direct physical, emotional, or pecuniary harm as a
result of the matters set forth in a charge or
specification under consideration and is named in one
of the specifications under consideration shall not be
required to testify at a preliminary hearing.
Discussion
A commanding officer’s determination of whether an individual is
available, as well as the means by which the individual is available,
is a balancing test. The more important the testimony of the witness,
the greater the difficulty, expense, delay, or effect on military
operations must be to deny production of the witness. Based on
operational necessity and mission requirements, the witness’
commanding officer may authorize the witness to testify by video
teleconference, telephone, or similar means of remote testimony.
Factors to be considered in making this determination include the
costs of producing the witness; the timing of the request for
production of the witness; the potential delay in the proceeding that
may be caused by the production of the witness; and the likelihood
of significant interference with operational deployment, mission
accomplishment, or essential training. Before determining that a
witness is unavailable, the witness’ commanding officer should give
due consideration to the alternative forms of testimony noted above,
which generally can be facilitated with minimal impact on command
operations.
(B) Civilian Witnesses.
(i) Defense counsel shall provide to counsel for
the Government the names of proposed civilian
witnesses whom the accused requests that the
Government produce to testify at the preliminary
hearing, and the requested form of the testimony, in
accordance with the timeline established by the
preliminary hearing officer. Counsel for the
Government shall respond that either (1) the
Government agrees that the witness’ testimony is
relevant, not cumulative, and necessary to a
determination of the issues under R.C.M. 405(a) and
will seek to secure the witness’ testimony for the
hearing; or (2) the Government objects to the proposed
defense witness on the grounds that the testimony
II-46
would be irrelevant, cumulative, or unnecessary to a
determination of the issues under R.C.M. 405(a).
(ii) If the Government objects to the proposed
defense witness, defense counsel may request that the
preliminary hearing officer determine whether the
witness is relevant, not cumulative, and necessary to a
determination of the issues under R.C.M. 405(a).
(iii) If the Government does not object to the
proposed civilian witness or the preliminary hearing
officer determines that the civilian witness’ testimony
is relevant, not cumulative, and necessary, counsel for
the Government shall invite the civilian witness to
provide testimony and, if the individual agrees, shall
make arrangements for the witness’s testimony. If
expense to the Government is to be incurred, the
convening authority who directed the preliminary
hearing, or the convening authority’s delegate, shall
determine whether the witness testifies in person, by
video teleconference, by telephone, or by similar
means of remote testimony.
Discussion
Factors to be considered in making this determination include the
costs of producing the witness; the timing of the request for
production of the witness; the potential delay in the proceeding that
may be caused by the production of the witness; the willingness of
the witness to testify in person; and, for child witnesses, the traumatic
effect of providing in person testimony. Civilian witnesses may not
be compelled to provide testimony at a preliminary hearing. Civilian
witnesses may be paid for travel and associated expenses to testify
at a preliminary hearing. See generally Department of Defense Joint
Travel Regulations.
(3) Production of other evidence.
(A) Evidence under the control of the
Government.
(i) Prior to the preliminary hearing, defense
counsel shall provide to counsel for the Government a
list of evidence under the control of the Government
the accused requests the Government produce to the
defense for introduction at the preliminary hearing.
The preliminary hearing officer may set a deadline by
which defense requests must be received. Counsel for
the Government shall respond that either (1) the
Government agrees that the evidence is relevant, not
cumulative, and necessary to a determination of the
issues under R.C.M. 405(a) and shall make reasonable
efforts to obtain the evidence; or (2) the Government
objects to production of the evidence on the grounds
that the evidence would be irrelevant, cumulative, or
unnecessary to a determination of the issues under
R.C.M. 405(a).
(ii) If the Government objects to the production
of the evidence, defense counsel may request that the
preliminary hearing officer determine whether the
evidence should be produced. The preliminary hearing
officer shall determine whether the evidence is
relevant, not cumulative, and necessary to a
determination of the issues under R.C.M. 405(a). If the
preliminary hearing officer determines that the
evidence shall be produced, counsel for the
Government shall make reasonable efforts to obtain the
evidence.
(iii) The preliminary hearing officer may not
order the production of any privileged matters;
however, when a party offers evidence that an
opposing party claims is privileged, the preliminary
hearing officer may rule on whether a privilege applies.
(B) Evidence not under the control of the
Government.
(i) Evidence not under the control of the
Government may be obtained through noncompulsory
means or by a pre-referral investigative subpoena
issued by a military judge under R.C.M. 309 or counsel
for the Government in accordance with the process
established by R.C.M. 703(g)(3)(C).
(ii) Prior to the preliminary hearing, defense
counsel shall provide to counsel for the Government a
list of evidence not under the control of the
Government that the accused requests the Government
obtain. The preliminary hearing officer may set a
deadline by which defense requests must be received.
Counsel for the Government shall respond that either
(1) the Government agrees that the evidence is
relevant, not cumulative, and necessary to a
determination of the issues under R.C.M. 405(a) and
shall issue a pre-referral investigative subpoena for the
evidence; or (2) the Government objects to the
production of the evidence on the grounds that the
evidence would be irrelevant, cumulative, or
unnecessary to a determination of the issues under
R.C.M. 405(a).
(iii) If the Government objects to production of
the evidence, defense counsel may request that the
preliminary hearing officer determine whether the
evidence should be produced. If the preliminary
hearing officer determines that the evidence is relevant,
not cumulative, and necessary to a determination of the
issues under R.C.M. 405(a) and that the issuance of a
pre-referral investigative subpoena would not cause
II-47
undue delay to the preliminary hearing, the preliminary
hearing officer shall direct counsel for the Government
to seek a pre-referral investigative subpoena for the
defense-requested evidence from a military judge in
accordance with R.C.M. 309 or authorization from the
general court-martial convening authority to issue an
investigative subpoena. If counsel for the Government
refuses or is unable to obtain an investigative
subpoena, the counsel shall set forth the reasons why
the investigative subpoena was not obtained in a
written statement that shall be included in the
preliminary hearing report under R.C.M. 405(m).
Discussion
A pre-referral investigative subpoena to produce books, papers,
documents, data, electronically stored information, or other objects
for a preliminary hearing may be issued by counsel for the
Government when authorized by the general court-martial
convening authority or by a military judge under R.C.M. 309. The
preliminary hearing officer has no authority to issue a pre-referral
investigative subpoena.
(iv) The preliminary hearing officer may not
order the production of any privileged matters;
however, when a party offers evidence that an
opposing party claims is privileged, the preliminary
hearing officer may rule on whether a privilege applies.
(j) Military Rules of Evidence.
(1) In general.
(A) Only the following Military Rules of Evidence
apply to preliminary hearings:
(i) Mil. R. Evid. 301-303 and 305.
(ii) Mil. R. Evid. 412(a), except as provided in
R.C.M. 405(j)(2).
(iii) Mil. R. Evid., Section V, Privileges, except
that Mil. R. Evid. 505(f)-(h) and (j); 506(f)-(h), (j), (k),
and (m); and 514(d)(6) shall not apply.
(B) In applying the rules to a preliminary hearing
in accordance with R.C.M. 405(j)(1)(A), the term
“military judge,” as used in such rules, means the
preliminary hearing officer, who shall assume the
military judge’s authority to exclude evidence from the
preliminary hearing, and who shall, in discharging this
duty, follow the procedures set forth in such rules.
Evidence offered in violation of the procedural
requirements of the rules in R.C.M. 405(j)(1)(A) shall
be excluded from the preliminary hearing, unless good
cause is shown.
(2) Sex-offense cases.
(A) Inadmissibility of certain evidence. In a case
of an alleged sexual offense, as defined under Mil. R.
Evid. 412(d), evidence offered to prove that any
alleged victim engaged in other sexual behavior or
evidence offered to prove any alleged victim’s sexual
predisposition is not admissible at a preliminary
hearing unless—
(i) the evidence would be admissible at trial
under Mil. R. Evid. 412(b)(1) or (2); and
(ii) the evidence is relevant, not cumulative, and
is necessary to a determination of the issues under
R.C.M. 405(a).
(B) Initial procedure to determine admissibility. A
party intending to offer evidence under R.C.M.
405(j)(2)(A) shall, no later than five days before the
preliminary hearing begins, submit a written motion
specifically describing the evidence and stating why
the evidence is admissible. The preliminary hearing
officer may permit a different filing time, but any
motion shall be filed prior to the beginning of the
preliminary hearing. The moving party shall serve the
motion on the opposing party, who shall have the
opportunity to respond in writing. Counsel for the
Government shall cause the motion and any written
responses to be served on the victim, or victim’s
counsel, if any, or, when appropriate, the victim’s
guardian or representative. After reviewing the motion
and any written responses, the preliminary hearing
officer shall either—
(i) deny the motion on the grounds that the
evidence does not meet the criteria specified in R.C.M.
405(j)(2)(A)(i) or (ii); or
(ii) conduct a hearing to determine the
admissibility of the evidence.
(C) Admissibility hearing. If the preliminary
hearing officer conducts a hearing to determine the
admissibility of the evidence, the admissibility hearing
shall be closed and should ordinarily be conducted at
the end of the preliminary hearing, after all other
evidence offered by the parties has been admitted. At
the admissibility hearing, the parties may call
witnesses and offer relevant evidence. The victim shall
be afforded a reasonable opportunity to attend and be
heard, to include being heard through counsel. If the
preliminary hearing officer determines that the
evidence should be admitted, the victim may directly
petition the Court of Criminal Appeals for a writ of
mandamus pursuant to Article 6b.
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Discussion
The preliminary hearing may be abated pending action by the Court
of Criminal Appeals.
(D) Sealing. The motions, related papers, and the
record of an admissibility hearing shall be sealed and
remain under seal in accordance with R.C.M. 1113.
Discussion
When ordering an exhibit or proceeding sealed in accordance with
R.C.M. 1113, the preliminary hearing officer should consider the
purpose for which the exhibit or proceeding is to be sealed and
determine if the person or entity whose interests are being protected
should be permitted access to the sealed materials. The preliminary
hearing officer should include language in the sealing order
identifying the purpose for which the exhibit or proceeding is being
sealed and, if applicable, provide parameters for examination by or
disclosure to those persons or entities whose interests are being
protected. See R.C.M. 1113(b)(4)-(5) for definitions of the terms
“examination” and “disclosure.”
(k) Preliminary hearing procedure.
(1) Generally. The preliminary hearing shall begin
with the preliminary hearing officer informing the
accused of the accused’s rights under R.C.M. 405(g).
Counsel for the Government will then present
evidence. Upon the conclusion of counsel for the
Government’s presentation of evidence, defense
counsel may present matters. Both counsel for the
Government and defense counsel shall be afforded an
opportunity to cross-examine adverse witnesses. The
preliminary hearing officer may also question
witnesses called by the parties. If the preliminary
hearing officer determines that additional evidence is
necessary for a determination of the issues under
R.C.M. 405(a), the preliminary hearing officer may
provide the parties an opportunity to present additional
testimony or evidence. Except as provided in R.C.M.
405(m)(2)(J), the preliminary hearing officer shall not
consider evidence not presented at the preliminary
hearing in making the determination under R.C.M.
405(a). The preliminary hearing officer shall not call
witnesses sua sponte.
Discussion
When the preliminary hearing officer finds that evidence offered by
either party is not within the scope of the hearing, the preliminary
hearing officer shall inform the parties and halt the presentation of
that information.
(2) Presentation of evidence.
(A) Testimony. Witness testimony may be
provided in person, by video teleconference, by
telephone, or by similar means of remote testimony.
All testimony shall be taken under oath, except that the
accused may make an unsworn statement. The
preliminary hearing officer shall only consider
testimony that is relevant to the issues for
determination under R.C.M. 405(a).
Discussion
The following oath may be given to witnesses:
“Do you (swear) (affirm) that the evidence you give shall be
the truth, the whole truth, and nothing but the truth (so help you
God)?”
All preliminary hearing officer notes of testimony and
recordings of testimony should be preserved until the end of trial.
If during the preliminary hearing any witness subject to the
UCMJ is suspected of an offense under the UCMJ, the preliminary
hearing officer should comply with the warning requirements of Mil.
R. Evid. 305(c), (d), and, if necessary, (e).
Bearing in mind that counsel are responsible for preparing and
presenting their cases, the preliminary hearing officer may ask a
witness questions relevant to the issues for determination under
subsection (a). When questioning a witness, the preliminary hearing
officer may not depart from an impartial role and become an
advocate for either side.
(B) Other evidence. If relevant to the issues for
determination under R.C.M. 405(a) and not
cumulative, a preliminary hearing officer may consider
other evidence offered by either counsel for the
Government or defense counsel, in addition to or in
lieu of witness testimony, including statements,
tangible evidence, or reproductions thereof, that the
preliminary hearing officer determines is reliable. This
other evidence need not be sworn.
(3) Access by spectators. Preliminary hearings are
public proceedings and should remain open to the
public whenever possible, whether conducted in
person or via remote means. If there is an overriding
interest that outweighs the value of an open
preliminary hearing, the convening authority or the
preliminary hearing officer may restrict or foreclose
access by spectators to all or part of the proceedings.
Any restriction or closure must be narrowly tailored to
protect the overriding interest involved. Before
ordering any restriction or closure, a convening
authority or preliminary hearing officer must
determine whether any reasonable alternatives to such
restriction or closure exist, or if some lesser means can
II-49
be used to protect the overriding interest in the case.
The convening authority or preliminary hearing officer
shall make specific findings of fact in writing that
support the restriction or closure. The written findings
of fact shall be included in the preliminary hearing
report.
Discussion
Convening authorities or preliminary hearing officers must conduct
a case-by-case, witness-by-witness, and circumstance-by-
circumstance analysis of whether restriction or closure is necessary.
Examples of overriding interests include: preventing psychological
harm or trauma to a child witness or to an alleged victim of a sexual
crime, protecting the safety or privacy of a witness or an alleged
victim, protecting classified material, and receiving evidence where
a witness is incapable of testifying in an open setting.
(4) Presence of accused. The accused shall be
present for the preliminary hearing.
(A) Remote presence of the accused. The
convening authority that directed the preliminary
hearing may authorize the use of audio-visual
technology between the parties and the preliminary
hearing officer. In such circumstances, the “presence”
requirement of the accused is met only when the
accused has a defense counsel physically present at the
accused’s location or when the accused consents to
presence by remote means with the opportunity for
confidential consultation with defense counsel during
the proceeding. Such technology may include two or
more remote sites as long as all parties can see and hear
each other.
(B) The accused shall be considered to have
waived the right to be present at the preliminary
hearing if the accused:
(i) After being notified of the time and place of
the proceeding is voluntarily absent; or
(ii) After being warned by the preliminary
hearing officer that disruptive conduct will cause
removal from the proceeding, persists in conduct
which is such as to justify exclusion from the
proceeding.
(5) Recording of the preliminary hearing. Counsel
for the Government shall ensure that the preliminary
hearing is recorded by a suitable recording device. A
victim named in a specification under consideration
may request access to, or a copy of, the recording of
the proceedings. Upon request, counsel for the
Government shall provide the requested access to, or a
copy of, the recording or, at the Government’s
discretion, a transcript, to the victim or victim’s
counsel, if any, not later than a reasonable time
following dismissal of the charges, unless charges are
dismissed for the purpose of rereferral, or court-martial
adjournment. This rule does not entitle the victim to
classified information or sealed materials consistent
with an order issued in accordance with R.C.M.
1113(a).
Discussion
See Article 32(e)-(h), UCMJ.
(6) Recording and broadcasting prohibited. Video
and audio recording, broadcasting, and the taking of
photographs—except as required in R.C.M.
405(k)(5)—are prohibited. The convening authority
may, as a matter of discretion, permit
contemporaneous closed-caption video or audio
transmission to permit viewing or hearing by an
accused removed under R.C.M. 405(k)(4) or by
spectators when the facilities are inadequate to
accommodate a reasonable number of spectators.
(7) Objections. Any objection alleging a failure to
comply with this rule, other than an objection under
R.C.M. 405(m), shall be made to the preliminary
hearing officer promptly upon discovery of the alleged
error. The preliminary hearing officer is not required to
rule on any objection. An objection shall be noted in
the preliminary hearing report if the person objecting
so requests. The preliminary hearing officer may
require a party to file any objection in writing.
(8) Sealed exhibits and proceedings. The
preliminary hearing officer has the authority to order
exhibits, recordings of proceedings, or other matters
sealed as described in R.C.M. 1113.
Discussion
When ordering an exhibit or proceeding sealed in accordance with
R.C.M. 1113, the preliminary hearing officer should consider the
purpose for which the exhibit or proceeding is to be sealed and
determine if the person or entity whose interests are being protected
should be permitted access to the sealed materials. The preliminary
hearing officer should include language in the sealing order
identifying the purpose for which the exhibit or proceeding is being
sealed and, if applicable, provide parameters for examination by or
disclosure to those persons or entities whose interests are being
protected. See R.C.M. 1113(b)(4)-(5) for definitions of the terms
“examination” and “disclosure.”
II-50
(l) Supplementary information.
(1) No later than 24 hours from the closure of the
preliminary hearing, counsel for the Government,
defense counsel, and any victim named in a
specification under consideration (or, if applicable,
counsel for such a victim) may submit to the
preliminary hearing officer, counsel for the
Government, and defense counsel additional
information that the submitter deems relevant to the
disposition of the charges and specifications.
(2) Defense counsel may submit additional matters
that rebut the submissions of counsel for the
Government or any victim provided under R.C.M.
405(l)(1). Such matters must be provided to the
preliminary hearing officer and to the counsel for the
Government within 5 days of the closure of the
preliminary hearing.
Discussion
The Military Rules of Evidence and other regulations may require
the preliminary hearing officer to seal certain materials. Preliminary
hearing officers have the discretion to seal other supplementary
information that they determine should be protected from disclosure.
Such information may include personally identifiable information,
medical information, financial information, and any other
information that may cause unnecessary harm to an individual or
entity if released. When ordering an exhibit or proceeding sealed in
accordance with R.C.M. 1113, the preliminary hearing officer should
consider the purpose for which the exhibit or proceeding is to be
sealed and determine if the person or entity whose interests are being
protected should be permitted access to the sealed materials. The
preliminary hearing officer should include language in the sealing
order identifying the purpose for which the exhibit or proceeding is
being sealed and, if applicable, provide parameters for examination
by or disclosure to those persons or entities whose interests are being
protected. See R.C.M. 1113(b)(4)-(5) for definitions of the terms
“examination” and “disclosure.”
(3) The preliminary hearing officer shall examine all
supplementary information submitted under R.C.M.
405(l) and shall seal, in accordance with R.C.M. 1113,
any matters the preliminary hearing officer deems
privileged or otherwise not subject to disclosure.
(A) The preliminary hearing officer shall provide
a written summary and an analysis of the
supplementary information submitted under R.C.M.
405(l) that is not sealed and is relevant to disposition
for inclusion in the report to the convening authority or
special trial counsel, as applicable, under R.C.M.
405(m).
(B) If the preliminary hearing officer seals any
supplementary information submitted under R.C.M.
405(l), the preliminary hearing officer shall provide an
analysis of those materials. The analysis of the sealed
materials shall be sealed. Additionally, the preliminary
hearing officer shall generally describe those matters
and detail the basis for sealing them in a separate cover
sheet. This cover sheet shall accompany the sealed
matters and shall not contain privileged information or
be sealed.
(4) The supplementary information and any
summary and analysis provided by the preliminary
hearing officer, and any sealed matters and cover
sheets, as applicable, shall be forwarded to the
convening authority or special trial counsel, as
applicable, for consideration in making a disposition
determination.
(5) Submissions under R.C.M. 405(l) shall be
maintained as an attachment to the preliminary hearing
report provided under R.C.M. 405(m).
(m) Preliminary hearing report.
(1) In general. The preliminary hearing officer shall
make a timely written report of the preliminary hearing
to the convening authority or, for hearings requested
by a special trial counsel, to the special trial counsel.
This report is advisory and does not bind the staff judge
advocate, convening authority, or special trial counsel,
as applicable.
Discussion
As soon as practicable after receipt of supplementary information
under R.C.M. 405(l), the charges and the report of preliminary
hearing should be forwarded to the court-martial convening
authority. See Article 10.
(2) Contents. The preliminary hearing report shall
include:
(A) A statement of names and organizations or
addresses of counsel for the Government and defense
counsel and, if applicable, a statement of why either
counsel was not present at any time during the
proceedings;
(B) The recording of the preliminary hearing
under R.C.M. 405(k)(5);
(C) For each specification, the preliminary hearing
officer’s reasoning and conclusions with respect to the
issues for determination under R.C.M. 405(a),
including a summary of relevant witness testimony and
documentary evidence presented at the hearing and any
observations concerning the testimony of witnesses
II-51
and the availability and admissibility of evidence at
trial;
(D) If applicable, a statement that an essential
witness may not be available for trial;
(E) An explanation of any delays in the
preliminary hearing;
(F) A notation if counsel for the Government
refused to issue a pre-referral investigative subpoena
that was directed by the preliminary hearing officer and
the counsel’s statement of the reasons for such refusal;
(G) Recommendations for any necessary
modifications to the form of the charges and
specifications;
(H) A statement of whether the preliminary
hearing officer examined evidence or heard witnesses
relating to any uncharged offenses in accordance with
R.C.M. 405(f)(2), and, for each such offense, the
preliminary hearing officer’s reasoning and
conclusions as to whether there is probable cause to
believe that the accused committed the offense and
whether the convening authority would have court-
martial jurisdiction over the offense if it were charged;
(I) A notation of any objections if required under
R.C.M. 405(k)(7);
(J) The recommendation of the preliminary
hearing officer as to the disposition that should be
made of the charges and specifications in the interest
of justice and discipline. In making this disposition
recommendation, the preliminary hearing officer may
consider any evidence admitted during the preliminary
hearing and matters submitted under R.C.M. 405(l);
(K) The written summary and analysis required by
R.C.M. 405(l)(3)(A); and
(L) A notation as to whether the parties or the
preliminary hearing officer considered any offense to
be a covered offense.
Discussion
The preliminary hearing officer may include any additional matters
useful to the convening authority or special trial counsel in
determining disposition. For guidance concerning disposition of
offenses, see Appendix 2.1 (Disposition Guidance). The preliminary
hearing officer may recommend that the charges and specifications
be amended or that additional charges be preferred. See R.C.M. 306
and 401 concerning other possible dispositions.
(3) Sealed exhibits and proceedings. If the
preliminary hearing report contains exhibits,
proceedings, or other matters ordered sealed by the
preliminary hearing officer in accordance with R.C.M.
1113, counsel for the Government shall cause such
materials to be sealed so as to prevent unauthorized
viewing or disclosure.
(4) Distribution of preliminary hearing report. The
preliminary hearing officer shall promptly cause the
preliminary hearing report to be delivered to the
convening authority or, for hearings requested by a
special trial counsel, to the special trial counsel.
Counsel for the Government shall promptly cause a
copy of the report to be delivered to each accused. The
convening authority or, for hearings requested by a
special trial counsel, the special trial counsel shall
promptly determine what disposition will be made in
the interest of justice and discipline in accordance with
R.C.M. 401 or R.C.M. 401A.
(5) Objections to the preliminary hearing officer’s
report. Upon receipt of the report, the parties shall have
five days to submit objections to the preliminary
hearing officer. Any objection to the preliminary
hearing report shall be made to the convening authority
who directed the preliminary hearing, via the
preliminary hearing officer. The objection shall be
served upon the opposing party, and government
counsel must provide notice of the objection to any
named victim or named victim’s counsel, if any. The
preliminary hearing officer will forward the objections
to the convening authority as soon as practicable. The
convening authority may direct that the preliminary
hearing be reopened or take other action, as
appropriate. For cases where a special trial counsel has
exercised authority, the special trial counsel may
request the convening authority reopen the preliminary
hearing. Upon such request, the convening authority
shall reopen the preliminary hearing. This paragraph
does not prohibit a convening authority or special trial
counsel from taking other action prior to the expiration
of five days allotted for submitting objections. Failure
to make a timely objection under this rule shall
constitute waiver of the objection.
(n) Waiver. The accused may waive a preliminary
hearing. However, the preliminary hearing may still be
conducted notwithstanding the waiver. Relief from the
waiver may be granted by the convening authority, a
superior convening authority, or the military judge, as
appropriate, for good cause shown. For offenses over
which a special trial counsel has exercised authority, a
special trial counsel may grant relief from the waiver.
If a special trial counsel declines to grant relief from
the waiver and the case is referred, the accused may
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request relief from the military judge.
Discussion
See also R.C.M. 905(b)(1); 906(b)(3).
Rule 406. Pretrial advice and special trial counsel
determinations
(a) Pretrial Advice by the Staff Judge Advocate.
(1) General court-martial. Except as provided by
R.C.M. 406(b), before any charge may be referred for
trial by a general court-martial, it shall be submitted to
the staff judge advocate of the convening authority for
consideration and advice. The advice of the staff judge
advocate shall include a written and signed statement
which sets forth the staff judge advocate’s:
(A) Conclusion with respect to whether each
specification alleges an offense under the UCMJ;
(B) Conclusion with respect to whether there is
probable cause to believe that the accused committed
the offense charged in the specification;
(C) Conclusion with respect to whether a court-
martial would have jurisdiction over the accused and
the offense; and
(D) Recommendation as to the disposition that
should be made of the charges and specifications by the
convening authority in the interest of justice and
discipline.
Discussion
A written pretrial advice need not be prepared in cases referred to
special or summary courts-martial. A convening authority is required
to consult with a judge advocate before referring charges to a special
court-martial (see R.C.M. 406(a)(2)) and may seek the advice of a
lawyer before referring charges to a summary court-martial. When
charges have been withdrawn from a general court-martial (see
R.C.M. 604) or when a mistrial has been declared in a general court-
martial (see R.C.M. 915), supplementary advice is necessary before
the charges may be referred to another general court-martial.
The staff judge advocate may make changes in the charges and
specifications in accordance with R.C.M. 603.
For guidance concerning the disposition of charges and
specifications, see Appendix 2.1 (Disposition Guidance).
The staff judge advocate is personally responsible for the
pretrial advice and must make an independent and informed
appraisal of the charges and evidence in order to render the advice.
While the staff judge advocate may use a preliminary hearing
officer’s report in preparing pretrial advice, and another person may
prepare the advice, the staff judge advocate is, unless disqualified,
responsible for it and must sign it personally. Grounds for
disqualification in a case include previous action in the case as
preliminary hearing officer, military judge, trial counsel, defense
counsel, or member.
The advice need not set forth the underlying analysis or
rationale for its conclusions. Ordinarily, the charge sheet, forwarding
letter, endorsements, and report of preliminary hearing are forwarded
with the pretrial advice. In addition, the pretrial advice should
include, when appropriate: a brief summary of the evidence;
discussion of significant aggravating, extenuating, or mitigating
factors; any recommendations for disposition of the case by
commanders or others who have forwarded the charges; and any
recommendations of the Article 32 preliminary hearing officer.
However, there is no legal requirement to include such information,
and failure to do so is not error.
Information which is incorrect or so incomplete as to be
misleading may result in a determination that the advice is defective,
necessitating appropriate relief. See R.C.M. 905(b)(1), 906(b)(3).
Defects in the pretrial advice are not jurisdictional and are
raised by pretrial motion. See R.C.M. 905(b)(1) and its Discussion.
(2) Special-court martial. Subject to R.C.M. 406(b),
before any charge may be referred for trial by a special
court-martial, the convening authority shall consult a
judge advocate on relevant legal issues. Such issues
may include:
(A) Whether each specification alleges an offense
under the UCMJ;
(B) Whether there is probable cause to believe the
accused committed the offense(s) charged;
(C) Whether a court-martial would have
jurisdiction over the accused and the offense;
(D) The form of the charges and specifications and
any necessary modifications; and
(E) Any other factors relating to disposition of the
charges and specifications in the interest of justice and
discipline.
(b) Special trial counsel determinations. For all
charges alleging covered offenses, and other charges
over which special trial counsel has exercised authority
and has not deferred, referral to a special or general
court-martial may be made only by a special trial
counsel and the referral must be accompanied by a
special trial counsel’s written determination that:
(1) each specification under a charge alleges an
offense under the UCMJ;
(2) there is probable cause to believe that the accused
committed the offense charged; and
(3) a court-martial would have jurisdiction over the
accused and the offense.
(c) Distribution.
(1) Subject to R.C.M. 406(c)(2), a copy of the
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written advice of the staff judge advocate shall be
provided to the defense if charges are referred for trial
by general court-martial.
(2) For those cases over which special trial counsel
exercises exclusive authority, a copy of the written
determination by special trial counsel shall be provided
to the defense if charges are referred for trial by general
or special court-martial.
Rule 407. Action by commander exercising general
court-martial jurisdiction
(a) Disposition. Except for covered offenses and any
other charges over which a special trial counsel has
exercised authority and has not deferred, a commander
exercising general court-martial jurisdiction, when in
receipt of charges, may:
(1) Dismiss any charge;
Discussion
See R.C.M. 401(c)(1) concerning dismissal of charges and the effect
of dismissing charges.
(2) Forward any charge (or, after dismissing charges,
the matter) to a subordinate commander for
disposition;
Discussion
See R.C.M. 401(c)(2)(B) concerning forwarding charges to a
subordinate.
A subordinate commander may not be required to take any
specific action or to dispose of charges. See R.C.M. 104. See also
paragraph 1.d.(2) of Part V. When appropriate, charges may be sent
or returned to a subordinate commander for compliance with
procedural requirements. See, e.g., R.C.M. 303 (preliminary
inquiry); R.C.M. 308 (notification to accused of charges).
(3) Forward any charge to a superior commander
for disposition;
Discussion
See R.C.M. 401(c)(2)(A) for guidance concerning forwarding
charges to a superior.
(4) Subject to R.C.M. 201(f)(2)(D) and (E), 601(d),
and 1301(c), refer any charge to a summary court-
martial or to a special court-martial for trial;
Discussion
See R.C.M. 201(f)(2)(D) and (E) and 1301(c) for limitations on the
referral of certain offenses to special and summary courts-martial.
(5) Unless otherwise prescribed by the Secretary
concerned, direct a preliminary hearing under R.C.M.
405, after which additional action under this rule may
be taken;
Discussion
A preliminary hearing should be directed when it appears that the
charges are of such a serious nature that trial by general court-martial
may be warranted. See R.C.M. 405. If a preliminary hearing of the
subject matter has already been conducted, see R.C.M. 405(b).
(6) Subject to R.C.M. 601(d), refer any charge to a
general court-martial.
Discussion
See Article 22 and R.C.M. 504(b)(1) concerning who may exercise
general court-martial jurisdiction.
See R.C.M. 601 concerning referral of charges. See R.C.M.
306 and 401 concerning other dispositions.
See Section 1744 (b)-(d) of the National Defense Authorization
Act for Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 980 (2013),
as amended by Section 541 of the Carl Levin and Howard P. “Buck”
McKeon National Defense Authorization Act for Fiscal Year 2015,
Pub. L. 113-291, 128 Stat. 3371 (2014) and Service regulations for
possible higher-level review requirements for decisions not to refer
charges of certain sex-related offenses for trial by court-martial.
(b) National security matters.
(1) Subject to R.C.M. 407(b)(2), when in receipt of
charges the trial of which the commander exercising
general court-martial jurisdiction finds would probably
be detrimental to the prosecution of a war or harmful
to national security, that commander, unless otherwise
prescribed by regulations of the Secretary concerned,
shall determine whether trial is warranted and, if so,
whether the security considerations involved are
paramount to trial. As the commander finds
appropriate, the commander may dismiss the charges,
authorize trial of them, or forward them to a superior
authority.
(2) For charges and specifications over which a
II-54
special trial counsel has exercised authority and has not
deferred and a commander believes trial would be
detrimental to the prosecution of a war or harmful to
national security, the matter shall be forwarded to the
Secretary concerned.
Discussion
In time of war, charges may be forwarded to the Secretary concerned
for disposition under Article 43(e). Under Article 43(e), the
Secretary may take action suspending the statute of limitations in
time of war.
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CHAPTER V. COURT-MARTIAL COMPOSITION AND PERSONNEL;
CONVENING COURTS-MARTIAL
Rule 501. Composition and personnel of courts-
martial
(a) Composition of courts-martial.
(1) General courts-martial.
(A) Non-capital cases. In non-capital cases, a
general court-martial shall consist of:
(i) A military judge and eight members;
(ii) A military judge, eight members, and any
alternate members authorized by the convening
authority;
(iii) A military judge alone if trial by a military
judge is requested and approved under R.C.M. 903; or
(iv) A military judge and six or seven members,
but only if, after impanelment, the panel is reduced
below eight members as a result of challenges or
excusals.
(B) Capital cases. In capital cases, a general court-
martial shall consist of:
(i) A military judge and twelve members; or
(ii) A military judge, twelve members, and any
alternate members authorized by the convening
authority.
(2) Special courts-martial. Special courts-martial
shall consist of:
(A) A military judge and four members;
(B) A military judge, four members, and any
alternate members authorized by the convening
authority;
(C) A military judge alone if trial by a military
judge is requested and approved under R.C.M. 903; or
(D) A military judge alone if the case is referred
for trial by a special court-martial consisting of a
military judge alone under Article 16(c)(2)(A).
Discussion
See R.C.M. 903 regarding the right of an enlisted accused to request
a panel of at least one-third enlisted members or an all-officer panel.
See R.C.M. 912A regarding the impaneling of members and
alternate members.
See R.C.M. 1301(a) concerning composition of summary
courts-martial.
(b) Counsel in general and special courts-martial.
Military trial and defense counsel shall be detailed to
general and special courts-martial. Assistant trial and
associate or assistant defense counsel may be detailed.
(c) Other personnel. Other personnel, such as
interpreters, bailiffs, clerks, escorts, and orderlies, may
be detailed or employed as appropriate but need not be
detailed by the convening authority personally.
Rule 502. Qualifications and duties of personnel of
courts-martial
(a) Members.
(1) Qualifications. The members detailed to a court-
martial shall be those persons who in the opinion of the
convening authority are best qualified for the duty by
reason of their age, education, training, experience,
length of service, and judicial temperament. Each
member shall be on active duty with the armed forces
and shall be:
(A) A commissioned officer;
(B) A warrant officer, except when the accused is
a commissioned officer; or
(C) An enlisted person, except when the accused
is either a commissioned or warrant officer.
Discussion
Retired members of any Regular component and members of
Reserve components of the armed forces are eligible to serve as
members if they are on active duty.
Members of the National Oceanic and Atmospheric
Administration and of the Public Health Service are eligible to serve
as members when assigned to and serving with an armed force. The
Public Health Service includes both commissioned and warrant
officers. The National Oceanic and Atmospheric Administration
includes only commissioned officers.
(2) Duties.
(A) Members. The members of a court-martial
shall determine whether the accused is proved guilty
and, in a capital case in which the accused is
unanimously found guilty of a capital offense, the
members shall make a determination in accordance
with Article 53(c)(1)(A). Each member has an equal
voice and vote with other members in deliberating
II-56
upon and deciding all matters submitted to them. No
member may use rank or position to influence another
member. No member of a court-martial may have
access to or use in any open or closed session this
Manual, reports of decided cases, or any other
reference material.
(B)
Alternate members. Members impaneled as
alternate members shall have the same duties as
members under subparagraph (A). However, an
alternate member shall not vote or participate in
deliberations on findings or sentencing unless the
alternate member has become a member by replacing
a member who was excused after impanelment under
R.C.M. 912B.
Discussion
Members and alternate members should avoid any conduct or
communication with the military judge, witnesses, or other trial
personnel during the trial which might present an appearance of
partiality. Except as provided in these rules, members and alternate
members should not discuss any part of a case with anyone until the
matter is submitted to them for determination. Members and
alternate members should not on their own visit or conduct a view of
the scene of the crime and should not investigate or gather evidence
of the offense. Members and alternate members should not form an
opinion on any matter in connection with a case until that matter has
been submitted to them for determination.
(b) President.
(1) Qualifications. The president of a court-martial
shall be the detailed member senior in rank then
serving.
(2) Duties. The president shall have the same duties
as the other members and shall also:
(A) Preside over closed sessions of the members
of the court-martial during their deliberations; and
(B) Speak for the members of the court-martial
when announcing the decision of the members or
requesting instructions from the military judge
(c) Qualifications of military judge and military
magistrate.
(1) Military judge. A military judge shall be a
commissioned officer of the armed forces who is a
member of the bar of a federal court or a member of
the bar of the highest court of a State and who is
certified to be qualified, by reason of education,
training, experience, and judicial temperament, for
duty as a military judge by the Judge Advocate General
of the armed force of which such military judge is a
member. In addition, the military judge of a general
court-martial shall be designated for such duties by the
Judge Advocate General or the Judge Advocate
General’s designee, certified to be qualified for duty as
a military judge of a general court-martial, and
assigned and directly responsible to the Judge
Advocate General or the Judge Advocate General’s
designee. The Secretary concerned may prescribe
additional qualifications for military judges in special
courts-martial.
(2) Military magistrate. The Secretary concerned
may establish a military magistrate program. A
military magistrate shall be a commissioned officer of
the armed forces who is a member of the bar of a
federal court or a member of the bar of highest court of
a State and who is certified to be qualified, by reason
of education, training, experience, and judicial
temperament, for duty as a military magistrate by the
Judge Advocate General of the armed force of which
such military magistrate is a member.
Discussion
See R.C.M. 801 for description of some of the general duties of the
military judge and military magistrate.
Military judges assigned as general court-martial judges may
perform duties in addition to the primary duty of judge of a general
court-martial only when such duties are assigned or approved by the
Judge Advocate General, or a designee, of the Department or Service
of which the military judge is a member. Similar restrictions on other
duties which a military judge in special courts-martial may perform
may be prescribed in regulations of the Secretary concerned.
(3) Minimum tour lengths. A person assigned for
duty as a military judge shall serve as a military judge
for a term of not less than three years, subject to such
provisions for reassignment as may be prescribed in
regulations issued by the Secretary concerned.
(d) Counsel.
(1) Qualifications of trial counsel.
(A) General courts-martial. Only persons
certified under Article 27(b) as competent to perform
duties as counsel in courts-martial by the Judge
Advocate General of the armed force of which the
counsel is a member may be detailed as trial counsel in
general courts-martial.
(B) Trial counsel in special courts-martial and
assistant trial counsel in general or special courts-
martial. Any commissioned officer may be detailed as
trial counsel in special courts-martial, or as assistant
trial counsel in general or special courts-martial if that
II-57
person—
(i) is determined to be competent to perform
such duties by the Judge Advocate General; and
(ii) takes an oath in accordance with Article
42(a), certifies to the court that the person has read and
is familiar with the applicable rules of procedure,
evidence, and professional responsibility, and meets
any additional qualifications the Secretary concerned
may establish.
(C) Qualifications of special trial counsel. Only
judge advocates qualified, certified, and assigned as
special trial counsel may be detailed as special trial
counsel in general and special courts-martial. In
accordance with regulations prescribed by the
Secretary concerned, a special trial counsel shall be a
judge advocate who is a member of the bar of a Federal
court or a member of the bar of the highest court of a
State; and is certified to be qualified, by reason of
education, training, experience, and temperament, for
duty as a special trial counsel by the Judge Advocate
General of the armed force of which the officer is a
member or, in the case of the Marine Corps, the Staff
Judge Advocate to the Commandant of the Marine
Corps. Special trial counsel shall be well-trained,
experienced, highly-skilled and competent in handling
cases involving covered offenses.
(2) Qualifications of defense counsel.
(A) Detailed military counsel. Only persons
certified under Article 27(b) as competent to perform
duties as counsel in courts-martial by the Judge
Advocate General of the armed force of which the
counsel is a member may be detailed as defense
counsel, assistant defense counsel, or associate defense
counsel in general or special courts-martial.
Discussion
When the accused has individual military or civilian defense counsel,
the detailed counsel is “associate counsel” unless excused from the
case. See R.C.M. 506(b)(3).
(B) Individual military counsel and civilian
defense counsel. Individual military or civilian defense
counsel who represents an accused in accordance with
Article 38(b) in a court-martial shall be:
(i) a member of the bar of a federal court or of
the bar of the highest court of a State; or
(ii) if not a member of such a bar, a lawyer who
is authorized by a recognized licensing authority to
practice law and is found by the military judge to be
qualified to represent the accused upon a showing to
the satisfaction of the military judge that the counsel
has appropriate training and familiarity with the
general principles of criminal law which apply in a
court-martial.
Discussion
In making such a determination—particularly in the case of civilian
defense counsel who are members only of a foreign bar—the military
judge also should inquire into:
(i) the availability of the counsel at times at which sessions of
the court-martial have been scheduled;
(ii) whether the accused wants the counsel to appear with
military defense counsel;
(iii) the familiarity of the counsel with spoken English;
(iv) practical alternatives for discipline of the counsel in the
event of misconduct;
(v) whether foreign witnesses are expected to testify with
whom the counsel may more readily communicate than might
military counsel; and
(vi) whether ethnic or other similarity between the accused and
the counsel may facilitate communication and confidence between
the accused and civilian defense counsel.
(C) Counsel in capital cases.
(i) In general. In any capital case, to the greatest
extent practicable, at least one defense counsel shall, as
determined by the Judge Advocate General, be learned
in the law applicable to such cases. If necessary, this
counsel may be a civilian and, if so, may be
compensated in accordance with regulations
prescribed by the Secretary of Defense.
(ii) Qualifications. A counsel learned in the law
applicable to capital cases is an attorney whose
background, knowledge, or experience would enable
him or her to competently represent an accused in a
capital case, with due consideration of the seriousness
of the possible penalty and the unique and complex
nature of the litigation.
Discussion
See Article 27(d). There exists no bright line or per se rule to
determine the qualifications necessary for capital cases and unlike
18 U.S.C. § 3005 (2012), Article 27(d) requires detailing of at least
one defense counsel learned in the law of capital cases to the greatest
extent practicable and the Service Judge Advocate General
determines whether the defense counsel is so qualified. Although the
American Bar Association Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases (rev. ed.
2003), and federal civilian law, 18 U.S.C. § 3005 (2012), are
instructive on the issue of whether counsel are qualified, neither
II-58
authority, either individually or collectively, is dispositive of the
issue.
(3) Disqualifications. No person shall act as trial
counsel or assistant trial counsel or, except when
expressly requested by the accused, as defense
counsel or associate or assistant defense counsel in
any case in which that person is or has been:
(A) The accuser, except that any determination
by a special trial counsel to prefer or refer charges
shall not disqualify that special trial counsel;
(B) An investigating or preliminary hearing
officer;
(C) A military judge or appellate military judge;
or
(D) A member.
Discussion
In the absence of evidence to the contrary, it is presumed that a
person who, between referral and trial of a case, has been detailed as
counsel for any party to the court-martial to which the case has been
referred, has acted in that capacity. When a person has acted as
counsel for a witness or victim, the issue of disqualification to serve
as counsel for a party in the case is governed by the applicable rules
of professional conduct.
(4) Duties of trial and assistant trial counsel. Trial
counsel shall prosecute cases on behalf of the United
States. Under the supervision of trial counsel an
assistant trial counsel may perform any act or duty
which trial counsel may perform under law, regulation,
or custom of the Service.
Discussion
(A) General duties before trial. Immediately upon receipt of referred
charges, the trial counsel should cause a copy of the charges to be
served upon the accused. See R.C.M. 602.
The trial counsel should: examine the charge sheet and allied
papers for completeness and correctness; correct (and initial) minor
errors or obvious mistakes in the charges but may not without
authority make any substantial changes (see R.C.M. 603); and ensure
that the information about the accused on the charge sheet and any
evidence of previous convictions are accurate.
(B) Relationship with convening authority. The trial counsel
should: report to the convening authority any substantial irregularity
in the convening orders, or allied papers; and report an actual or
anticipated reduction of the number of members required under
R.C.M. 501(a) to the convening authority. Except for offenses over
which a special trial counsel has exercised authority and has not
deferred, the trial counsel should report any substantial irregularity
in the charges and bring to the attention of the convening authority
any case in which the trial counsel finds trial inadvisable for lack of
evidence or other reasons. For cases over which a special trial
counsel has exercised authority and has not deferred, the special trial
counsel is responsible for addressing irregularities in the charges.
(C) Relationship with the accused and defense counsel. The
trial counsel must communicate with a represented accused only
through the accused’s defense counsel. But see R.C.M. 602.
(D) Victim rights. The trial counsel should ensure that the
Government’s responsibilities under Article 6b are fulfilled.
(E) Preparation for trial. The trial counsel should: ensure that
a suitable room, a reporter (if authorized), and necessary equipment
and supplies are provided for the court-martial; obtain copies of the
charges and specifications and convening orders for each member
and all personnel of the court-martial; give timely notice to the
members, other parties, other personnel of the court-martial, and
witnesses for the prosecution and (if known) defense of the date,
time, place, and uniform of the meetings of the court-martial; ensure
that any person having custody of the accused is also informed;
comply with applicable disclosure and discovery rules (see R.C.M.
308, 405, and 701); prepare to make a prompt, full, and orderly
presentation of the evidence at trial; consider the elements of proof
of each offense charged, the burden of proof of guilt and the burdens
of proof on motions which may be anticipated, and the Military
Rules of Evidence; secure for use at trial such legal texts as may be
available and necessary to sustain the prosecution’s contentions;
arrange for the presence of witnesses and evidence in accordance
with R.C.M. 703; prepare to make an opening statement of the
prosecution’s case (see R.C.M. 913); prepare to conduct the
examination and cross-examination of witnesses; and prepare to
make final argument on the findings and, if necessary, on sentencing
(see R.C.M. 919, 1001(h)).
(F) Trial. The trial counsel should bring to the attention of the
military judge any substantial irregularity in the proceedings. The
trial counsel should not allude to or disclose to the members any
evidence not yet admitted or reasonably expected to be admitted in
evidence or intimate, transmit, or purport to transmit to the military
judge or members the views of the convening authority or others as
to the guilt or innocence of the accused, an appropriate sentence, or
any other matter within the discretion of the court-martial.
(G) Post-trial duties. The trial counsel should promptly provide
written notice of the Statement of Trial Results to the convening
authority or a designee, the accused’s immediate commander, and (if
applicable) the officer in charge of the confinement facility (see
R.C.M. 1101(e)), and supervise the preparation, and distribution of
copies of the record as required by these rules and regulations of the
Secretary concerned (see R.C.M. 1112).
(H) Assistant trial counsel. An assistant trial counsel may act
in that capacity only under the supervision of the detailed trial
counsel. Responsibility for trial of a case may not devolve to an
assistant not qualified to serve as trial counsel. Unless the contrary
appears, all acts of an assistant trial counsel are presumed to have
been done by the direction of the trial counsel. An assistant trial
counsel may not act in the absence of the trial counsel at trial in a
general court-martial unless the assistant has the qualifications
required of a trial counsel. See R.C.M. 805(c).
(5) Duties of defense and associate or assistant
defense counsel. Defense counsel shall represent the
accused in matters under the UCMJ and these rules
arising from the offenses of which the accused is then
II-59
suspected or charged. Under the supervision of defense
counsel an associate or assistant defense counsel may
perform any act or duty which a defense counsel may
perform under law, regulation, or custom of the
Service.
Discussion
(A) Initial advice by military defense counsel. Defense counsel
should promptly explain to the accused the general duties of the
defense counsel and inform the accused of the rights to request
individual military counsel of the accused’s own selection, and of the
effect of such a request, and to retain civilian counsel. If the accused
wants to request individual military counsel, the defense counsel
should immediately inform the convening authority through trial
counsel and, if the request is approved, serve as associate counsel if
the accused requests and the request is approved. Unless the accused
directs otherwise, military counsel will begin preparation of the
defense immediately after being detailed without waiting for
approval of a request for individual military counsel or retention of
civilian counsel. See R.C.M. 506.
(B) General duties of defense counsel. Defense counsel must:
guard the interests of the accused zealously within the bounds of the
law without regard to personal opinion as to the guilt of the accused;
disclose to the accused any interest defense counsel may have in
connection with the case, any disqualification, and any other matter
which might influence the accused in the selection of counsel;
represent the accused with undivided fidelity and may not disclose
the accused’s secrets or confidences except as the accused may
authorize (see also Mil. R. Evid. 502). A defense counsel designated
to represent two or more co-accused in a joint or common trial or in
allied cases must be particularly alert to conflicting interests of those
accused. Defense counsel should bring such matters to the attention
of the military judge so that the accused’s understanding and choice
may be made a matter of record. See R.C.M. 901(d)(4)(D).
Defense counsel must explain to the accused: the elections
available as to composition of the court-martial and assist the
accused to make any request necessary to effect the election (see
R.C.M. 903); the right to plead guilty or not guilty and the meaning
and effect of a plea of guilty; the rights to introduce evidence, to
testify or remain silent, and to assert any available defense; and the
rights to present evidence during presentencing proceedings and the
rights of the accused to testify under oath, make an unsworn
statement, and have counsel make a statement on behalf of the
accused. These explanations must be made regardless of the
intentions of the accused as to testifying and pleading.
Defense counsel should try to obtain complete knowledge of
the facts of the case before advising the accused, and should give the
accused a candid opinion of the merits of the case.
(C) Preparation for trial. Defense counsel may have the
assistance of trial counsel in obtaining the presence of witnesses and
evidence for the defense. See R.C.M. 703.
Defense counsel should consider the elements of proof of the
offenses alleged and the pertinent rules of evidence to ensure that
evidence that the defense plans to introduce is admissible and to be
prepared to object to inadmissible evidence offered by the
prosecution.
Defense counsel should: prepare to make an opening statement
of the defense case (see R.C.M. 913(b)); and prepare to examine and
cross-examine witnesses, and to make final argument on the findings
and, if necessary, on sentencing (see R.C.M. 919; 1001(h)).
(D) Trial. Defense counsel should represent and protect the
interests of the accused at trial.
(E) Post-trial duties.
(i) Deferment of confinement. If the accused is sentenced to
confinement, the defense counsel must explain to the accused the
right to request the convening authority to defer service of the
sentence to confinement and assist the accused in making such a
request if the accused chooses to make one. See R.C.M. 1103.
(ii) Post-trial motions. The defense counsel should file post-
trial motions for any issue that is reasonably raised, to include
corrections of the record and motions to set aside the findings based
on legally insufficient evidence.
(iii) Submission of matters. If the accused is convicted, the
defense counsel may submit to the convening authority matters for
consideration in deciding whether to modify the findings or sentence,
if authorized. See R.C.M. 1109-10. Defense counsel should discuss
with the accused the right to submit matters to the convening
authority and the powers of the convening authority in taking action
on the case. See R.C.M. 1106. Defense counsel may also submit a
brief of any matters counsel believes should be considered on further
review.
(iv) Appellate advice. Defense counsel must explain to the
accused the rights to appellate review that apply in the case, and
advise the accused concerning the exercise of those rights. Defense
counsel should explain the review authority of the Court of Criminal
Appeals, advise the accused of the right to be represented by counsel
before it, and if applicable, the time period allowed to file an appeal
of right. See R.C.M. 1202 and 1203. Defense counsel should also
explain the possibility of further review by the Court of Appeals for
the Armed Forces and the Supreme Court. See R.C.M. 1204 and
1205.
If the case may be examined in the office of the Judge
Advocate General under Article 65, defense counsel should explain
the nature of such review to the accused. See R.C.M. 1201(d)(1) and
(e).
Defense counsel must explain the consequences of
waiver of appellate review, when applicable, and, if the accused
elects to waive appellate review, defense counsel will assist in
preparing the waiver. See R.C.M. 1115. If the accused waives
appellate review, or if it is not available, defense counsel should
explain that the case will be reviewed by an attorney designated by
the Judge Advocate General. See R.C.M. 1201.
The accused should be advised of the right to apply to the
Judge Advocate General for relief after final review under Article 69
when such review is available, the applicable time period for making
such an application, and the opportunity for further review by the
Court of Criminal Appeals. See R.C.M. 1201
(F) Associate or assistant defense counsel. Associate or
assistant counsel may act in that capacity only under the supervision
and by the general direction of the defense counsel. A detailed
defense counsel becomes associate defense counsel when the
accused has individual military or civilian counsel and detailed
counsel is not excused. Although assistant and associate counsel act
under the general supervision of the defense counsel, subject to
R.C.M. 805(c), assistant and associate defense counsel may act
without such supervision when circumstances require. See, e.g.,
R.C.M. 805(c). Unless the contrary appears, all acts of an assistant
or associate defense counsel are presumed to have been done under
the supervision of the defense counsel.).
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(e) Interpreters, reporters, escorts, bailiffs, clerks,
guards, and orderlies.
(1) Qualifications. The qualifications of interpreters
and reporters may be prescribed by the Secretary
concerned. Any person who is not disqualified under
paragraph (e)(2) of this rule may serve as escort,
bailiff, clerk, guard, or orderly, subject to removal by
the military judge.
(2) Disqualifications. In addition to any
disqualifications which may be prescribed by the
Secretary concerned, no person shall act as interpreter,
reporter, escort, bailiff, clerk, guard, or orderly in any
case in which that person is or has been in the same
case:
(A) The accuser;
(B) A witness;
(C) An investigating or preliminary hearing
officer;
(D) Counsel for any party; or
(E) A member of the court-martial or of any earlier
court-martial of which the trial is a rehearing or new or
other trial.
(3) Duties. In addition to such other duties as the
Secretary concerned may prescribe, the following
persons may perform the following duties.
(A) Interpreters. Interpreters shall interpret for the
court-martial or for an accused who does not speak or
understand English.
Discussion
The accused also may retain an unofficial interpreter without
expense to the United States.
(B) Reporters. Reporters shall record the
proceedings and testimony and shall transcribe them so
as to comply with the requirements for the record of
trial as prescribed in these rules.
(C) Others. Other personnel detailed for the
assistance of the court-martial shall have such duties as
may be imposed by the military judge.
(4) Payment of reporters, interpreters. The Secretary
concerned may prescribe regulations for the payment
of allowances, expenses, per diem, and compensation
of reporters and interpreters.
Discussion
See R.C.M. 807 regarding oaths for reporters, interpreters, and
escorts.
(f) Action upon discovery of disqualification or lack of
qualifications. Any person who discovers that a person
detailed to a court-martial is disqualified or lacks the
qualifications specified by this rule shall cause a report
of the matter to be made before the court-martial is first
in session to the convening authority or, if discovered
later, to the military judge.
Rule 503. Detailing members, military judge, and
counsel, and designating military magistrates
(a) Members.
(1) In general. The convening authority shall—
(A) detail qualified persons as members for courts-
martial in accordance with the criteria described in
Article 25;
(B) state whether the military judge is—
(i) authorized to impanel a specified number of
alternate members; or
(ii) authorized to impanel alternate members
only if, after the exercise of all challenges, excess
members remain; and
(C) provide a list of the detailed members to the
military judge to randomize in accordance with R.C.M.
911.
Discussion
The following persons are subject to challenge under R.C.M. 912(f)
and should not be detailed as members: any person who is, in the
same case, an accuser, witness, preliminary hearing officer, or
counsel for any party or witness; any person who, in the case of a
new trial, other trial, or rehearing, was a member of any court-martial
which previously heard the case; any person who is junior to the
accused, unless this is unavoidable; or any person who is in arrest or
confinement.
The convening authority should detail a sufficient number of
qualified persons to allow for the randomization process in R.C.M.
911.
A military judge may not impanel alternate members unless
expressly authorized by the convening authority. See Article 29. The
procedure to be used by the military judge to impanel members and
alternate members is specified in R.C.M. 912A.
(2) Member election by enlisted accused. An enlisted
accused may, before assembly, request orally on the
record or in writing that the membership of the court-
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martial to which that accused’s case has been referred
be comprised entirely of officers or of at least one-third
enlisted members. If such a request is made, the court-
martial membership must be consistent with the
accused’s request unless eligible members cannot be
obtained because of physical conditions or military
exigencies. If the appropriate number of members
cannot be obtained, the court-martial may be
assembled and the members impaneled, and the trial
may proceed without them, but the convening authority
shall make a detailed written explanation why such
members could not be obtained which must be
appended to the record of trial.
Discussion
When an enlisted accused makes a request for either all-officer
members or at least one-third enlisted members, the convening
authority may need to:
(1) Detail an additional number of officers or enlisted
members to the court-martial and, if appropriate, relieve an
appropriate number of officers or enlisted persons previously
detailed;
(2) Withdraw the charges from the court-martial to which
they were originally referred and refer them to a court-martial which
includes the proper proportion of officers or enlisted members; or
(3) Advise the court-martial before which the charges are
then pending to proceed in the absence of officers or enlisted
members if eligible officers or enlisted members cannot be detailed
because of physical conditions or military exigencies.
When the accused elects one-third enlisted members, the
military judge must ensure there are at least two enlisted members
for a special court-martial and at least three enlisted members for a
non-capital general court-martial. There must be at least two enlisted
members in a general court-martial where the number of members
falls to six as a result of excusals after impanelment. See Article 29.
(3) Members from another command or armed force.
A convening authority may detail as members of
general and special courts-martial persons under that
convening authority’s command or made available by
their commander, even if those persons are members
of an armed force different from that of the convening
authority or accused.
Discussion
Concurrence of the proper commander may be oral and need not be
shown by the record of trial.
Members should ordinarily be of the same armed force as the
accused. When a court-martial composed of members of different
armed forces is selected, at least a majority of the members should
be of the same armed force as the accused unless impracticable. For
purposes of this non-binding policy, members of the Department of
the Air Force are treated as being in the same armed force.
(4) This subsection does not apply to charges
referred to a special court-martial consisting of a
military judge alone under Article 16(c)(2)(A).
(b) Military judge.
(1) By whom detailed. The military judge shall be
detailed, in accordance with regulations of the
Secretary concerned, by a person assigned as a military
judge and directly responsible to the Judge Advocate
General or the Judge Advocate General’s designee.
The authority to detail military judges may be
delegated to persons assigned as military judges. If
authority to detail military judges has been delegated
to a military judge, that military judge may detail
himself or herself as military judge for a court-martial.
(2) Record of detail. The order detailing a military
judge shall be reduced to writing and included in the
record of trial or announced orally on the record at the
court-martial. The writing or announcement shall
indicate by whom the military judge was detailed. The
Secretary concerned may require that the order be
reduced to writing.
(3) Military judge from a different armed force. A
military judge from one armed force may be detailed
to a court-martial convened in a different armed force,
a combatant command or joint command when
permitted by the Judge Advocate General of the armed
force of which the military judge is a member. The
Judge Advocate General may delegate authority to
make military judges available for this purpose.
(4) Military magistrate. If authorized under
regulations of the Secretary concerned, a detailed
military judge may designate a military magistrate to
perform pre-referral duties under R.C.M. 309, and,
with the consent of the parties, to preside over a special
court-martial consisting of a military judge alone under
Article 16(c)(2)(A).
(c) Counsel.
(1) By whom detailed. Trial and defense counsel,
assistant trial and defense counsel, and associate
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defense counsel shall be detailed in accordance with
these rules and the regulations of the Secretary
concerned. If authority to detail counsel has been
delegated to a person, that person may detail himself or
herself as counsel for a court-martial. For each general
and special court-martial for which charges and
specifications were referred by special trial counsel, a
special trial counsel shall be detailed as trial counsel,
and, in accordance with regulations prescribed by the
Secretary concerned, a special trial counsel may detail
other trial counsel who are judge advocates. In a
capital case, counsel learned in the law applicable to
such cases under R.C.M. 502(d)(2)(C) shall be
assigned in accordance with regulations of the
Secretary concerned.
(2) Record of detail. The order detailing a counsel
shall be reduced to writing and included in the record
of trial or announced orally on the record at the court-
martial. The writing or announcement shall indicate by
whom the counsel was detailed. The Secretary
concerned may require that the order be reduced to
writing.
(3) Counsel from a different armed force. A person
from one armed force may be detailed to serve as
counsel in a court-martial in a different armed force, a
combatant command or joint command when
permitted by the Judge Advocate General of the armed
force of which the counsel is a member. The Judge
Advocate General may delegate authority to make
persons available for this purpose.
Rule 504. Convening courts-martial
(a) In general. A court-martial is created by a
convening order of the convening authority.
(b) Who may convene courts-martial.
(1) General courts-martial. Unless otherwise limited
by superior competent authority, general courts-
martial may be convened by persons occupying
positions designated in Article 22(a) and by any
commander designated by the Secretary concerned or
empowered by the President. A commanding officer
shall not be considered an accuser solely due to the role
of the commanding officer in convening a special or
general court-martial to which charges and
specifications were referred by a special trial counsel.
Discussion
The authority to convene courts-martial is independent of rank and
is retained as long as the convening authority remains a commander
in one of the designated positions. The rules by which command
devolves are found in regulations of the Secretary concerned.
(2) Special courts-martial. Unless otherwise limited
by superior competent authority, special courts-martial
may be convened by persons occupying positions
designated in Article 23(a) and by commanders
designated by the Secretary concerned.
Discussion
See the discussion accompanying R.C.M. 504(b)(1). Persons
authorized to convene general courts-martial may also convene
special courts-martial.
(A) Definition. For purposes of Articles 23 and 24,
a command or unit is “separate or detached” when
isolated or removed from the immediate disciplinary
control of a superior in such manner as to make its
commander the person held by superior commanders
primarily responsible for discipline. “Separate or
detached” is used in a disciplinary sense and not
necessarily in a tactical or physical sense. A
subordinate joint command or joint task force is
ordinarily considered to be “separate or detached.”
Discussion
The power of a commander of a separate or detached unit to convene
courts-martial, like that of any other commander, may be limited by
superior competent authority.
(B) Determination. If a commander is in doubt
whether the command is separate or detached, the
matter shall be determined:
(i) In the Army, Air Force, or Space Force, by
the officer exercising general court-martial jurisdiction
over the command; or
(ii) In the Naval Service or Coast Guard, by the
flag or general officer in command or the senior officer
present who designated the detachment; or
(iii) In a combatant command or joint command,
by the officer exercising general court-martial
jurisdiction over the command.
(3) Summary courts-martial. See R.C.M. 1302(a).
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Discussion
See the discussion accompanying R.C.M. 504(b)(1).
(4) Delegation prohibited. The power to convene
courts-martial may not be delegated.
(c) Disqualification.
(1) Accuser. An accuser may not convene a general
or special court-martial for the trial of the person
accused.
Discussion
See also Article 1(9); R.C.M. 307(a), 601(c). But see R.C.M.
1302(b) (accuser may convene a summary court-martial).
(2) Other. A convening authority junior in rank to an
accuser may not convene a general or special court-
martial for the trial of the accused unless that
convening authority is superior in command to the
accuser. A convening authority junior in command to
an accuser may not convene a general or special court-
martial for the trial of the accused.
(3) Action when disqualified. When a commander
who would otherwise convene a general or special
court-martial is disqualified in a case, the charges shall
be forwarded to a superior competent authority for
disposition. That authority may personally dispose of
the charges or forward the charges to another
convening authority who is superior in rank to the
accuser, or, if in the same chain of command, who is
superior in command to the accuser.
Discussion
See also R.C.M. 401(c).
(d) Convening orders.
(1) General and special courts-martial.
(A) A convening order for a general or special
court-martial shall—
(i) designate the type of court-martial; and
(ii) detail the members, if any, in accordance
with R.C.M. 503(a);
(B) A convening order may designate where the
court-martial will meet.
(C) If the convening authority has been designated
by the Secretary concerned, the convening order shall
so state.
(2) Summary courts-martial. A convening order for
a summary court-martial shall designate that it is a
summary court-martial and detail the summary court-
martial, and may designate where the court-martial will
meet. If the convening authority has been designated
by the Secretary concerned, the convening order shall
so state.
Discussion
See also R.C.M. 1302(c).
(3) Additional matters. Additional matters to be
included in convening orders may be prescribed by the
Secretary concerned.
(e) Place. The convening authority shall ensure that an
appropriate location and facilities for courts-martial
are provided.
Rule 505. Changes of members, military judge,
and counsel
(a) In general. Subject to this rule, the members,
military judge, military magistrate, and counsel may be
changed by an authority competent to detail or
designate such persons. Members also may be excused
as provided in clause (c)(1)(B)(ii) and subparagraph
(c)(2)(A).
Discussion
Changes of the members of the court-martial should be kept to a
minimum. If extensive changes are necessary and no session of the
court-martial has begun, it may be appropriate to withdraw the
charges from one court-martial and refer them to another. See
R.C.M. 604
(b) Procedure. When new persons are added as
members or counsel or when substitutions are made as
to any members or counsel or the military judge or
military magistrate, such persons shall be detailed or
designated in accordance with R.C.M. 503. An order
changing the members of the court-martial, except one
which excuses members without replacement, shall be
reduced to writing before certification of the record of
trial.
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Discussion
When members or counsel have been excused and the excusal is not
reduced to writing, the excusal should be announced on the record.
A member who has been temporarily excused need not be formally
reappointed to the court-martial.
(c) Changes of members.
(1) Before assembly.
(A) By convening authority. Before the court-
martial is assembled, the convening authority may
change the members detailed to the court-martial
without showing cause. New members shall be detailed
in accordance with R.C.M. 503(a).
(B) By convening authority’s delegate.
(i) Delegation. The convening authority may
delegate, under regulations of the Secretary concerned,
authority to excuse individual members to the staff
judge advocate or legal officer or other principal
assistant to the convening authority.
(ii) Limitations. Before the court-martial is
assembled, the convening authority’s delegate may
excuse members without cause shown; however, no
more than one-third of the total number of members
detailed by the convening authority may be excused by
the convening authority’s delegate in any one court-
martial. After assembly the convening authority’s
delegate may not excuse members.
(2) After assembly.
(A) Excusal. After assembly no member may be
excused, except:
(i) By the convening authority for good cause
shown on the record;
(ii) By the military judge for good cause shown
on the record;
(iii) As a result of challenge under R.C.M. 912;
or
(iv) By the military judge when the number of
members is in excess of the number of members
required for impanelment
.
Discussion
R.C.M. 912A sets forth the procedures for excusing excess members.
(B) New members. In accordance with R.C.M.
503(a), new members may be detailed after assembly
only when, as a result of excusals under R.C.M.
505(c)(2)(A), the number of members of the court-
martial is reduced below the number of members
required under R.C.M. 501(a), or the number of
enlisted members, when the accused has made a timely
written request for enlisted members, is reduced below
one-third of the total membership.
(d) Changes of detailed counsel.
(1) Trial counsel. An authority competent to detail
trial counsel may change trial counsel and any assistant
trial counsel at any time without showing cause.
(2) Defense counsel.
(A) Before formation of attorney-client
relationship. Before an attorney-client relationship has
been formed between the accused and detailed defense
counsel or associate or assistant defense counsel, an
authority competent to detail defense counsel may
excuse or change such counsel without showing cause.
(B) After formation of attorney-client relationship.
After an attorney-client relationship has been formed
between the accused and detailed defense counsel or
associate or assistant defense counsel, an authority
competent to detail such counsel may excuse or change
such counsel only:
(i) Under R.C.M. 506(b)(3);
(ii) Upon request of the accused or application
for withdrawal by such counsel under R.C.M. 506(c);
or
(iii) For other good cause shown on the record
(e) Change of military judge or military magistrate.
(1) Before assembly. Before the court-martial is
assembled, the military judge or military magistrate
may be changed by an authority competent to detail the
military judge or to designate the military magistrate,
without cause shown on the record.
(2) After assembly. After the court-martial is
assembled, the military judge or military magistrate
may be changed by an authority competent to detail the
military judge or to designate the military magistrate
only when, as a result of disqualification under R.C.M.
902 or for good cause shown, the previously detailed
military judge or previously designated military
magistrate is unable to proceed.
Discussion
A change in the military magistrate after assembly does not require
the consent of the parties. See R.C.M. 503.
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(f) Good cause. For purposes of this rule, “good cause”
includes physical disability, military exigency, and
other extraordinary circumstances which render the
member, counsel, or military judge or military
magistrate unable to proceed with the court-martial
within a reasonable time. “Good cause” does not
include temporary inconveniences which are incident
to normal conditions of military life.
Rule 506. Accused’s rights to counsel
(a) In general.
(1) Non-capital courts-martial. The accused has the
right to be represented before a non-capital general
court-martial or a special court-martial by civilian
counsel if retained by the accused at no expense to the
Government, and either by the military counsel
detailed under Article 27 or military counsel of the
accused’s own selection, if reasonably available. The
accused is not entitled to be represented by more than
one military counsel.
(2) Capital courts-martial. In a case referred with a
special instruction that the case is to be tried as capital,
the accused may be represented by more than one
counsel. To the greatest extent practicable, in any
capital case, at least one defense counsel shall, as
determined by the Judge Advocate General, be learned
in the law applicable to such cases under R.C.M.
502(d)(2)(C). If necessary, this counsel may be a
civilian, and if so, may be compensated in accordance
with regulations prescribed by the Secretary of
Defense.
Discussion
The requirements of Article 27 are satisfied where an accused retains
civilian counsel who is determined by the Judge Advocate General
to be learned in the law applicable to capital cases in accordance with
R.C.M. 502(d)(2)(C). Counsel learned in the law applicable to
capital cases may be assigned prior to referral and should be
considered for such assignment in a case in which a capital referral
appears likely.
See R.C.M. 601(e) and 1004(b)(1) regarding special
instructions for referral of capital cases.
(b) Individual military counsel.
(1) Reasonably available. Subject to this subsection,
the Secretary concerned shall define “reasonably
available.” While so assigned, the following persons
are not reasonably available to serve as individual
military counsel because of the nature of their duties or
positions:
(A) A general or flag officer;
(B) A trial or appellate military judge;
(C) A trial counsel;
(D) An appellate defense or government counsel;
(E) A principal legal advisor to a command,
organization, or agency and, when such command,
organization, or agency has general court-martial
jurisdiction, the principal assistant of such an advisor;
(F) An instructor or student at a Service school or
academy:
(G) A student at a college or university;
(H) A member of the staff of the Judge Advocate
General of the Army, Navy, Air Force, Coast Guard,
or the Staff Judge Advocate to the Commandant of the
Marine Corps.
The Secretary concerned may determine other
persons to be not reasonably available because of the
nature or responsibilities of their assignments,
geographic considerations, exigent circumstances, or
military necessity. A person who is a member of an
armed force different from that of which the accused is
a member shall be reasonably available to serve as
individual military counsel for such accused to the
same extent as that person is available to serve as
individual military counsel for an accused in the same
armed force as the person requested. The Secretary
concerned may prescribe circumstances under which
exceptions may be made to the prohibitions in this
subsection when merited by the existence of an
attorney-client relationship regarding matters relating
to a charge in question. However, if the attorney-client
relationship arose solely because the counsel
represented the accused on review under Article 70,
this exception shall not apply.
(2) Procedure. Subject to this subsection, the
Secretary concerned shall prescribe procedures for
determining whether a requested person is “reasonably
available” to act as individual military counsel.
Requests for an individual military counsel shall be
made by the accused or the detailed defense counsel
through trial counsel to the convening authority. If the
requested person is among those not reasonably
available under paragraph (b)(1) of this rule or under
regulations of the Secretary concerned, the convening
authority shall deny the request and notify the accused,
unless the accused asserts that there is an existing
attorney-client relationship regarding a charge in
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question or that the person requested will not, at the
time of the trial or preliminary hearing for which
requested, be among those so listed as not reasonably
available. If the accused’s request makes such a claim,
or if the person is not among those so listed as not
reasonably available, the convening authority shall
forward the request to the commander or head of the
organization, activity, or agency to which the requested
person is assigned. That authority shall make an
administrative determination whether the requested
person is reasonably available in accordance with the
procedure prescribed by the Secretary concerned. This
determination is a matter within the sole discretion of
that authority. An adverse determination may be
reviewed upon request of the accused through that
authority to the next higher commander or level of
supervision, but no administrative review may be made
which requires action at the departmental or higher
level.
(3) Excusal of detailed counsel. If the accused is
represented by individual military counsel, detailed
defense counsel shall normally be excused. The
authority who detailed defense counsel, as a matter of
discretion, may approve a request from the accused
that detailed defense counsel shall act as associate
counsel. The action of the authority who detailed the
counsel is subject to review only for abuse of
discretion..
Discussion
A request under R.C.M. 506(b)(3) should be considered in light of
the general statutory policy that the accused is not entitled to be
represented by more than one military counsel. Among the factors
that may be considered in the exercise of discretion are the
seriousness of the case, retention of civilian defense counsel,
complexity of legal or factual issues, and the detail of additional trial
counsel.
See R.C.M. 905(b)(6) and 906(b)(2) as to motions concerning
denial of a request for individual military counsel or retention of
detailed counsel as associate counsel.
(c) Excusal or withdrawal. Except as otherwise
provided in R.C.M. 505(d)(2) and paragraph (b)(3) of
this rule, defense counsel may be excused only with the
express consent of the accused, or by the military judge
upon application for withdrawal by defense counsel for
good cause shown.
(d) Waiver. The accused may expressly waive the right
to be represented by counsel and may thereafter
conduct the defense personally. Such waiver shall be
accepted by the military judge only if the military
judge finds that the accused is competent to understand
the disadvantages of self-representation and that the
waiver is voluntary and understanding. The military
judge may require that a defense counsel remain
present even if the accused waives counsel and
conducts the defense personally. The right of the
accused to conduct the defense personally may be
revoked if the accused is disruptive or fails to follow
basic rules of decorum and procedure.
(e) Nonlawyer present. Subject to the discretion of the
military judge, the accused may have present and
seated at the counsel table for purpose of consultation
persons not qualified to serve as counsel under R.C.M.
502.
Discussion
See also Mil. R. Evid. 615 if the person is a potential witness in the
case.
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CHAPTER VI. REFERRAL, SERVICE, AMENDMENT, AND WITHDRAWAL OF
CHARGES
Rule 601. Referral
(a) In general. Referral is the order of a convening
authority or a special trial counsel that one or more
charges and specifications against an accused will be
tried by a specified court-martial.
Discussion
If a court-martial would be warranted but would be detrimental to
the prosecution of a war or inimical to national security, see R.C.M.
401(d) and 407(b).
(b) Who may refer.
(1) Except as provided in R.C.M. 601(b)(2), any
convening authority may refer charges to a court-
martial convened by that convening authority or a
predecessor, unless the power to do so has been
withheld by superior competent authority.
(2) For charges over which a special trial counsel has
exercised authority and has not deferred, only a special
trial counsel may refer charges to a court-martial.
Discussion
See R.C.M. 306(a), 403, 404, 407, and 504.
The convening authority may be of any command, including a
command different from that of the accused, but as a practical matter
the accused must be subject to the orders of the convening authority
or otherwise under the convening authority’s control to assure the
appearance of the accused at trial. The convening authority’s power
over the accused may be based upon agreements between the
commanders concerned.
(c) Disqualification.
(1) Except as provided in R.C.M. 601(c)(2), an
accuser may not refer charges to a general or special
court-martial.
(2) A special trial counsel shall not be disqualified
from referring charges to a general or special court-
martial as a result of having preferred charges or
having caused charges to be preferred.
Discussion
Convening authorities are not disqualified from referring charges by
prior participation in the same case except when they have acted as
accuser. For a definition of “accuser,” see Article 1(9). A convening
authority who is disqualified may forward the charges and allied
papers for disposition by competent authority superior in rank or
command. See R.C.M. 401(c) concerning actions which the superior
may take.
See R.C.M. 1302 for rules relating to convening summary
courts-martial.
(d) When charges may be referred.
(1) Basis for referral.
(A) Except as provided in R.C.M. 601(d)(1)(B), if
the convening authority finds or is advised by a judge
advocate that there is probable cause to believe that an
offense triable by a court-martial has been committed
and that the accused committed it, and that the
specification alleges an offense, the convening
authority may refer it. The finding may be based on
hearsay in whole or in part. The convening authority or
judge advocate may consider information from any
source and shall not be limited to the information
reviewed by any previous authority, but a case may not
be referred to a general or special court-martial except
in compliance with R.C.M. 601(d)(2) or (d)(3). The
convening authority or judge advocate shall not be
required before charges are referred to resolve legal
issues, including objections to evidence, which may
arise at trial.
(B) For offenses over which a special trial counsel
has exercised authority and has not deferred, if a
special trial counsel makes a written determination that
each specification under a charge alleges an offense
under the UCMJ, there is probable cause to believe that
the accused committed the offense charged, and the
court-martial would have jurisdiction over the accused
and the offense, a special trial counsel may refer it. The
finding may be based on hearsay in whole or in part. A
special trial counsel may consider information from
any source and shall not be limited to the information
reviewed by any previous authority, but a case may not
be referred to a general court-martial except in
compliance with R.C.M. 601(d)(2) or (d)(3). A special
trial counsel shall not be required before charges are
referred to resolve legal issues, including objections to
evidence, which may arise at trial.
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Discussion
For a discussion of selection among alternative dispositions, see
R.C.M. 306. The referral authority is not obliged to refer all charges
that the evidence might support. The referral authority should
consider the options and considerations under R.C.M. 306 and
Appendix 2.1 (Disposition Guidance) in exercising the discretion to
refer charges and specifications to court-martial.
(2) Consideration. Referral authorities shall consider
whether the admissible evidence will probably be
sufficient to obtain and sustain a conviction.
(3) General courts-martial. Charges may not be
referred to a general court-martial unless there has been
substantial compliance with the preliminary hearing
requirements of R.C.M. 405 and:
(A) The convening authority has received the
advice of the staff judge advocate required under
R.C.M. 406(a)(1) and Article 34(a); or
(B) A special trial counsel has made a written
determination as required under R.C.M. 406(b) and
Article 34(c).
(4) Special courts-martial. Charges may not be
referred to a special court-martial unless:
(A) The convening authority has consulted with a
judge advocate as required under R.C.M. 406(a)(2) and
Article 34(b); or
(B) A special trial counsel has made a written
determination as required under R.C.M. 406(b) and
Article 34(c).
Discussion
See R.C.M. 201(f)(2)(C) concerning limitations on referral of
capital offenses to special courts-martial.
See R.C.M. 103(4) for the definition of the term “capital
offense.”
See R.C.M. 201(f)(2)(D)and (E) and R.C.M. 1301(c)
concerning limitations on the referral of certain cases to special and
summary courts-martial.
See R.C.M. 905(b)(1) and (e) for the rule regarding forfeiture
for failure to object to a defect under this rule.
(e) How charges shall be referred.
(1) Order, instructions. Referral shall be by the
personal order of the referral authority.
(A) Capital cases. If a case is to be tried as a
capital case, the referral authority shall so indicate by
including a special instruction on the charge sheet in
accordance with R.C.M. 1004(b)(1).
(B) Special court-martial consisting of a military
judge alone. If a case is to be tried as a special court-
martial consisting of a military judge alone under
Article 16(c)(2)(A), the referral shall so indicate by
including a special instruction on the charge sheet prior
to arraignment.
Discussion
Under the UCMJ as amended though the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-
263 136 Stat. 2395 (2022), a special trial counsel may not refer a
charge to a special court-martial consisting of a military judge alone.
See Article 16(c)(2)(A), 10 U.S.C. § 816(c)(2)(A) (2019) (“if the
case is so referred by the convening authority . . . .”) (emphasis
added).”
(C) Other instructions. The referral authority may
include any other additional instructions in the order as
may be required.
Discussion
Referral is ordinarily evidenced by an indorsement on the charge
sheet. Although the indorsement should be completed on all copies
of the charge sheet, only the original must be signed. The signature
may be that of a person acting by the order or direction of the referral
authority. In such a case, the signature element or block should
reflect the signer’s authority.
If, for any reason, charges are referred to a court-martial
different from that to which they were originally referred, the new
referral is ordinarily made by a new indorsement attached to the
original charge sheet. The previous indorsement should be lined out
and initialed by the person signing the new referral. The original
indorsement should not be obliterated. See also R.C.M. 604.
The failure to include a special instruction that a case is to be
tried as a capital case at the time of the referral does not bar the
referral authority from later adding the required special instruction,
provided that the referral authority has otherwise complied with the
applicable notice requirements. If the accused demonstrates specific
prejudice from such failure to include the special instruction, a
continuance or a recess is an adequate remedy. See R.C.M.
1004(b)(1).
For limitations regarding offenses that may be referred to a
special court-martial consisting of a military judge alone, see R.C.M.
201(f)(2)(E).
If the only officer present in a command refers the charges to a
summary court-martial and serves as the summary court-martial
under R.C.M. 1302, the indorsement should be completed with the
additional comments, “only officer present in the command.”
Any special instructions must be stated in the referral
indorsement.
When the charges have been referred to a court-martial, the
indorsed charge sheet and allied papers should be promptly
transmitted to the trial counsel.
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(2) Joinder of offenses. In the discretion of the
referral authority, two or more offenses charged
against an accused may be referred to the same court-
martial for trial, whether serious or minor offenses or
both, regardless of whether the offenses are connected.
Additional charges may be joined with other charges
for a single trial at any time before arraignment if all
necessary procedural requirements concerning the
additional charges have been complied with. After
arraignment of the accused upon charges, no additional
charges may be referred to the same trial without
consent of the accused.
(3) Joinder of accused. Allegations against two or
more accused may be referred for joint trial if the
accused are alleged to have participated in the same act
or transaction or in the same series of acts or
transactions constituting an offense or offenses. Such
accused may be charged in one or more specifications
together or separately, and every accused need not be
charged in each specification. Related allegations
against two or more accused which may be proved by
substantially the same evidence may be referred to a
common trial.
Discussion
A joint offense is one committed by two or more persons acting
together with a common intent. Joint offenses may be referred for
joint trial, along with all related offenses against each of the accused.
A common trial may be used when the evidence of several offenses
committed by several accused separately is essentially the same,
even though the offenses were not jointly committed. See the
Discussion accompanying R.C.M. 307(c)(5). Convening authorities
should consider that joint and common trials may be complicated by
procedural and evidentiary rules.
(f) Superior convening authorities. Except as
otherwise provided in these rules, a superior competent
authority may cause charges, whether or not referred,
to be transmitted to the authority for further
consideration, including, if appropriate, referral.
(g) Parallel convening authorities.
(1) Except as provided in R.C.M. 601(g)(2), if it is
impracticable for the original convening authority to
continue exercising authority over the charges, the
convening authority may cause the charges, even if
referred, to be transmitted to a parallel convening
authority. This transmittal must be in writing and in
accordance with such regulations as the Secretary
concerned may prescribe. Subsequent actions taken by
the parallel convening authority are within the sole
discretion of that convening authority.
(2) For offenses over which a special trial counsel
has exercised authority and has not deferred, a
convening authority seeking to transfer charges to a
parallel convening authority may do so in accordance
with these rules and such regulations prescribed by the
Secretary concerned.
Discussion
Parallel convening authorities are those convening authorities that
possess the same court-martial jurisdiction authority. Examples of
permissible transmittal of charges under this rule include the
transmittal from a general court-martial convening authority to
another general court-martial convening authority, or from one
special court-martial convening authority to another special court-
martial convening authority. It would be impracticable for an
original convening authority to continue exercising authority over
the charges, for example, when a command is being decommissioned
or inactivated, or when deploying or redeploying and the accused is
remaining behind. If charges have been referred, there is no
requirement that the charges be withdrawn or dismissed prior to
transfer. See R.C.M. 604. In the event that the case has been referred,
the receiving convening authority may adopt the original court-
martial convening order, including the court-martial panel selected
to hear the case as indicated in that convening order. When charges
are transmitted under this rule, no recommendation as to disposition
may be made.
The transfer process is subject to the limitations contained in
these rules, including the requirement that only a special trial counsel
may withdraw, dismiss, or refer charges over which a special trial
counsel has exercised authority and has not deferred.
Rule 602. Service of charges
(a) Service of charges. Trial counsel detailed to the
court-martial to which charges have been referred for
trial shall cause to be served upon each accused a copy
of the charge sheet.
Discussion
Trial counsel should comply with this rule immediately upon receipt
of the charges. Whenever after service the charges are amended or
changed the trial counsel must give notice of the changes to the
defense counsel. Whenever such amendments or changes add a new
party, a new offense, or substantially new allegations, the charge
sheet so amended or changed must be served anew. See R.C.M. 603.
Service may be made only upon the accused; substitute service
upon defense counsel is insufficient. The trial counsel should
promptly inform the defense counsel when charges have been
served.
If the accused has questions when served with charges, the
accused should be told to discuss the matter with defense counsel.
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(b) Commencement of trial.
(1) Except in time of war, no person may, over
objection, be brought to trial by general or special
court-martial—including an Article 39(a) session—
within the following time periods:
(A) In a general court-martial, from the time of
service of charges under subsection (a) through the
fifth day after the date of service.
(B) In a special court-martial, from the time of
service of charges under subsection (a) through the
third day after the date of service.
(2) If the first session of the court-martial occurs
before the end of the applicable period under paragraph
(1), the military judge shall, at the beginning of that
session, inquire as to whether the defense objects to
proceeding during the applicable period. If the defense
objects, the trial may not proceed. If the defense does
not object, the issue is waived.
Rule 603. Changes to charges and specifications
(a) In general. Any person forwarding, acting upon, or
prosecuting charges on behalf of the United States
except a preliminary hearing officer appointed under
R.C.M. 405 may make major and minor changes to
charges or specifications in accordance with this rule.
(b) Major and minor changes defined.
(1) Major changes. A major change is one that adds
a party, an offense, or a substantial matter not fairly
included in the preferred charge or specification, or
that is likely to mislead the accused as to the offense
charged.
(2) Minor changes. A minor change in a charge or
specification is any change other than a major change.
Discussion
Minor changes include those necessary to correct inartfully drafted
or redundant specifications; to correct a misnaming of the accused;
to allege the proper article; or to correct other slight errors. Minor
changes also include those which reduce the seriousness of an
offense, as when the value of an allegedly stolen item in a larceny
specification is reduced, or when a desertion specification is
amended and alleges only unauthorized absence.
(c) Major and minor changes before referral. Before
referral, subject to paragraph (d)(2), a major or minor
change may be made to any charge or specification.
(d) Major changes after referral or preliminary
hearing.
(1) After referral, a major change may not be made
over the objection of the accused unless the charge or
specification is withdrawn, amended, and referred
anew.
(2) In the case of a general court-martial, a major
change made to a charge or specification after the
preliminary hearing may require reopening the
preliminary hearing in accordance with R.C.M. 405.
Discussion
In the case of a general court-martial, a preliminary hearing under
R.C.M. 405 will be necessary if the charge as amended or changed
was not covered in a prior preliminary hearing. If the substance of
the charge or specification as amended or changed has not been
referred or, in the case of a general court-martial, considered at a
preliminary hearing, a new referral and, if appropriate, preliminary
hearing are necessary. When charges are re-referred, they must be
served anew under R.C.M. 602.
(e) Minor changes after referral. Minor changes may
be made to the charges and specifications after referral
and before arraignment. After arraignment, the
military judge may, upon motion, permit minor
changes in the charges and specifications at any time
before findings are announced if no substantial right of
the accused is prejudiced.
Discussion
Charges and specifications forwarded or referred for trial should be
free from defects of form and substance. Scriveners’ errors may be
corrected without the charge being sworn anew by the accuser. Other
changes should be signed and sworn to by an accuser. All changes in
the charges should be initialed by the person who makes the changes.
Except for charges over which a special trial counsel has exercised
authority and has not deferred, a trial counsel acting under this
provision ordinarily should consult with the convening authority
before making any changes that, even though minor, change the
nature or seriousness of the offense.
Rule 604. Withdrawal of charges
(a) Withdrawal.
(1) Except as provided in R.C.M. 604(a)(2), the
convening authority or a superior competent authority
may for any reason cause any charge or specification
to be withdrawn from a court-martial at any time
before findings are announced.
(2) For charges over which a special trial counsel has
exercised authority and has not deferred, only a special
trial counsel may withdraw or cause to be withdrawn
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any charge or specification from the court-martial at
any time before findings are announced.
Discussion
Charges that are withdrawn from a court-martial should be dismissed
(see R.C.M. 401(c)(1)) unless it is intended to refer them anew
promptly or to forward them to another authority for disposition.
Charges should not be withdrawn from a court-martial
arbitrarily or unfairly to an accused. See also R.C.M. 604 (b).
Some or all charges and specifications may be withdrawn. In a
joint or common trial the withdrawal may be limited to charges
against one or some of the accused.
Except for charges over which a special trial counsel has
exercised authority and has not deferred, charges that have been
properly referred to a court-martial may be withdrawn only by the
direction of the convening authority or a superior competent
authority in the exercise of that officer’s independent judgment. The
trial counsel may withdraw charges or specifications by lining out
the affected charges or specifications, renumbering remaining
charges or specifications as necessary, and initialing the changes.
Charges and specifications withdrawn before commencement of trial
will not be brought to the attention of the members. When charges
or specifications are withdrawn after they have come to the attention
of the members, the military judge must instruct them that the
withdrawn charges or specifications may not be considered for any
reason.
(b) Referral of withdrawn charges. Charges that have
been withdrawn from a court-martial may be referred
to another court-martial unless the withdrawal was for
an improper reason. Charges withdrawn after the
introduction of evidence on the general issue of guilt
may be referred to another court-martial only if the
withdrawal was necessitated by urgent and unforeseen
military necessity.
Discussion
See also R.C.M. 915 (Mistrial).
When charges that have been withdrawn from a court-martial are
referred to another court-martial, the reasons for the withdrawal and
later referral should be included in the record of the later court-
martial, if the later referral is more onerous to the accused. Therefore,
if further prosecution is contemplated at the time of the withdrawal,
the reasons for the withdrawal should be included in or attached to
the record of the earlier proceeding.
Improper reasons for withdrawal include an intent to interfere
with the free exercise by the accused of constitutional rights or rights
provided under the UCMJ, or with the impartiality of a court-martial.
A withdrawal is improper if it was not directed personally and
independently by the convening authority, a special trial counsel, or
a superior competent authority.
Whether the reason for a withdrawal is proper, for purposes of
the propriety of a later referral, depends in part on the stage in the
proceedings at which the withdrawal takes place. Before
arraignment, there are many reasons for a withdrawal that will not
preclude another referral. These include receipt of additional
charges, absence of the accused, reconsideration by the convening
authority, a special trial counsel, or a superior competent authority
of the seriousness of the offenses, questions concerning the mental
capacity of the accused, and routine duty rotation of the personnel
constituting the court-martial. Charges withdrawn after arraignment
may be referred to another court-martial under some circumstances.
For example, it is permissible to refer charges that were withdrawn
pursuant to a plea agreement if the accused fails to fulfill the terms
of the agreement. See R.C.M. 705. Charges withdrawn after some
evidence on the general issue of guilt is introduced may be re-
referred only under the narrow circumstances described in the rule.
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CHAPTER VII. PRETRIAL MATTERS
Rule 701. Discovery
(a) Disclosure by trial counsel. Except as otherwise
provided in R.C.M. 701(f) and (g)(2), and unless
previously disclosed to the defense, trial counsel shall
provide the following to the defense:
(1) Papers accompanying charges; convening
orders; statements. As soon as practicable after service
of charges under R.C.M. 602, the trial counsel shall
provide the defense with copies of, or, if extraordinary
circumstances make it impracticable to provide copies,
permit the defense to inspect:
Discussion
The purpose of this rule is to ensure the prompt, efficient, and fair
administration of military justice by encouraging early and broad
disclosure of information by the parties. Discovery in the military
justice system is intended to eliminate pretrial gamesmanship,
minimize pretrial litigation, and reduce the potential for surprise and
delay at trial. Parties to a court-martial should consider these
purposes when evaluating pretrial disclosure issues. In addition to
this rule, other sources, to include other Rules for Courts-Martial,
case law, and rules of professional conduct, may require disclosure
of additional information or evidence.
(A) All papers that accompanied the charges
presented to the convening authority;
(B) Any written determination made by a special
trial counsel pursuant to Article 34;
(C) Any written recommendation from a
commander as to disposition;
(D) Any papers sent with charges upon a rehearing
or new trial;
(E) The convening order and any amending
orders; and
(F) Any sworn or signed statement relating to an
offense charged in the case that is in the possession of
trial counsel.
(2) Documents, tangible objects, reports.
(A) After service of charges, upon request of the
defense, the Government shall permit the defense to
inspect any books, papers, documents, data,
photographs, tangible objects, buildings, or places, or
copies of portions of these items, if the item is within
the possession, custody, or control of military
authorities and—
(i) the item is relevant to defense preparation;
(ii) the Government intends to use the item in
the case-in-chief at trial;
(iii) the Government anticipates using the item
in rebuttal; or
(iv) the item was obtained from or belongs to the
accused.
(B) After service of charges, upon request of the
defense, the Government shall permit the defense to
inspect the results or reports of physical or mental
examinations, and of any scientific tests or
experiments, or copies thereof, which are within the
possession, custody, or control of military authorities,
the existence of which is known or by the exercise of
due diligence may become known to the trial counsel
if
(i) the item is relevant to defense preparation;
(ii) the Government intends to use the item in
the case-in-chief at trial; or
(iii) the Government anticipates using the item
in rebuttal.
Discussion
For specific rules concerning certain mental examinations of the
accused or third party patients, see R.C.M. 701(f), R.C.M. 706, Mil.
R. Evid. 302 and Mil. R. Evid. 513.
(3) Witnesses. Before the beginning of trial on the
merits, trial counsel shall notify the defense of the
names and contact information of the witnesses the
trial counsel intends to call:
(A) In the prosecution case-in-chief; and
(B) To rebut a defense of alibi, innocent ingestion,
or lack of mental responsibility, when the trial counsel
has received timely notice under R.C.M. 701(b)(1) or
(2).
Discussion
Such notice should be in writing except when impracticable.
(4) Prior convictions of accused offered on the
merits. Before arraignment, the trial counsel shall
notify the defense of any records of prior civilian or
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court-martial convictions of the accused of which the
trial counsel is aware and which the trial counsel may
offer on the merits for any purpose, including
impeachment, and shall permit the defense to inspect
such records when they are in the trial counsel’s
possession.
(5) Information to be offered at sentencing. Upon
request of the defense, the trial counsel shall:
(A) Permit the defense to inspect such written
material as will be presented by the prosecution at the
presentencing proceedings; and
(B) Notify the defense of the names and contact
information of the witnesses the trial counsel intends
to call at the presentencing proceedings under R.C.M.
1001(b).
(6) Evidence favorable to the defense. The trial
counsel shall, as soon as practicable, disclose to the
defense the existence of evidence known to the trial
counsel which reasonably tends to—
(A) Negate the guilt of the accused of an offense
charged;
(B) Reduce the degree of guilt of the accused of an
offense charged;
(C) Reduce the punishment; or
(D) Adversely affect the credibility of any
prosecution witness or evidence.
Discussion
Nothing in this rule prohibits trial counsel or other Government
counsel from disclosing information earlier than required by this rule
or in addition to that required by this rule.
In addition to the matters required to be disclosed under
subsection (a) of this rule, the Government is required to notify the
defense of or provide to the defense certain information under other
rules. Mil. R. Evid. 506 covers the disclosure of unclassified
information which is under the control of the Government. Mil. R.
Evid. 505 covers disclosure of classified information.
Other Rules for Courts-Martial and Military Rules of Evidence
concern disclosure of other specific matters. See R.C.M. 308
(identification of accuser), 405 (report of Article 32 preliminary
hearing), 706(c)(3)(B) (mental examination of accused), 914
(production of certain statements), and 1004(b)(1) (aggravating
factors in capital cases); Mil.R. Evid. 301(d)(2) (notification of
immunity or leniency to witnesses), 302 (mental examination of
accused), 304(d) (statements by accused), 311(d)(1) (evidence
seized from accused), 321(d)(1) (evidence based on lineups), 507
(identity of informants), 612 (memoranda used to refresh
recollection), and 613(a) (prior inconsistent statements).
Requirements for notice of intent to use certain evidence are
found in: Mil. R. Evid. 202(b) (judicial notice of foreign law),
301(d)(2) (notification of immunity or leniency to witnesses), 304(d)
(notice of intent to use undisclosed confessions), 304(f)(3)
(testimony of accused for limited purpose on confession), 311(d)
(notice of intent to use undisclosed evidence seized), 311(d)(6)
(testimony of accused for limited purpose on seizures),
321(d)(3)(notice of intent to use undisclosed line-up evidence),
321(d)(5) (testimony of accused for limited purpose of line-ups),
404(b) (intent to use evidence of other crimes, wrongs, or acts),
412(c)(1) and (2) (intent of defense to use evidence of sexual
behavior or sexual predisposition of a victim); 505(i) (intent to
disclose classified information), 506(h) (intent to disclose privileged
government information), and 609(b) (intent to impeach with
conviction over 10 years old).
In accordance with R.C.M. 701(d), trial counsel have a
continuing duty to identify and disclose information that is favorable
to the defense throughout the prosecution of the alleged offenses
against the accused. In general, trial counsel should exercise due
diligence and good faith in learning about any evidence favorable to
the defense known to others acting on the Government’s behalf in
the case, including military, other governmental, and civilian law
enforcement authorities.
In the spirit of eliminating “gamesmanship” from the discovery
process, trial counsel should not avoid pursuit of information or
evidence because the counsel believes it will damage the
prosecution’s case or aid the accused, nor should counsel
intentionally attempt to obscure information identified pursuant to
this subsection by disclosing it as part of a large volume of materials.
(b) Disclosure by the defense. Except as otherwise
provided in subsection (f) and paragraph (g)(2) of this
rule, the defense shall provide the following
information to trial counsel:
(1) Names of witnesses and statements.
(A) Before the beginning of the trial on the merits,
the defense shall notify trial counsel in writing of the
names and contact information of all witnesses, other
than the accused, whom the defense intends to call
during the defense case in chief, and provide all sworn
or signed statements known by the defense to have
been made by such witnesses in connection with the
case.
(B) Upon request of trial counsel, the defense shall
also—
(i) Provide trial counsel with the names and
contact information of any witnesses whom the
defense intends to all at the presentencing proceedings
under R.C.M. 1001(d); and
(ii) Permit trial counsel to inspect any written
material that will be presented by the defense at the
presentencing proceeding.
Discussion
See R.C.M. 701(f) for information that would not be subject to
disclosure.
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(2) Notice of certain defenses. The defense shall
notify trial counsel in writing before the beginning of
trial on the merits of its intent to offer the defense of
alibi, innocent ingestion, or lack of mental
responsibility, or its intent to introduce expert
testimony as to the accused’s mental condition. Such
notice by the defense shall disclose, in the case of an
alibi defense, the place or places at which the defense
claims the accused to have been at the time of the
alleged offense, and, in the case of an innocent
ingestion defense, the place or places where, and the
circumstances under which the defense claims the
accused innocently ingested the substance in question,
and the names and addresses of the witnesses upon
whom the accused intends to rely to establish any such
defenses.
Discussion
See R.C.M. 916(k) concerning the defense of lack of mental
responsibility. See R.C.M. 706 concerning inquiries into the mental
responsibility of the accused. See Mil. R. Evid. 302 concerning
statements by the accused during such inquiries. If the defense needs
more detail as to the time, date, or place of the offense to comply
with this rule, it should request a bill of particulars. See R.C.M.
906(b)(6).
(3) Documents and tangible items. If the defense
requests disclosure under subparagraph (a)(2)(A) of
this rule, upon compliance with such request by the
Government, the defense, on request of trial counsel,
shall permit trial counsel to inspect and to copy or
photograph books, papers, documents, data,
photographs, tangible objects, or copies or portions of
any of these items, or, in the case of buildings or places
or portions thereof, inspect or photograph, if—
(A) the item is within the possession, custody, or
control of the defense; and
(B) the defense intends to use the item in the
defense case-in-chief at trial.
(4) Reports of examination and tests. If the defense
requests disclosure under R.C.M. 701(a)(2)(B), upon
compliance with such request by the Government, the
defense, on request of the trial counsel, shall (except as
provided in R.C.M. 706, Mil. R. Evid. 302, and Mil. R.
Evid. 513) permit the trial counsel to inspect the results
or reports, or copies thereof, of any physical or mental
examinations and of any scientific tests or experiments
made in connection with the particular case if the item
is within the possession, custody, or control of the
defense; and—
(A) the defense intends to use the item in the
defense case-in-chief at trial; or
(B) the item was prepared by a witness whom the
defense counsel intends to call at trial and the results or
reports relate to that witness’ testimony.
(5) Inadmissibility of withdrawn defense. If an
intention to rely upon a defense under paragraph (b)(2)
of this rule is withdrawn, evidence of such intention
and disclosures by the accused or defense counsel
made in connection with such intention is not, in any
court-martial, admissible against the accused who gave
notice of the intention.
Discussion
In addition to the matters covered in subsection (b) of this rule,
defense counsel is required to give notice or disclose evidence under
certain Military Rules of Evidence: Mil. R. Evid. 202(b) (judicial
notice of foreign law), 304(f)(3) (testimony by the accused for a
limited purpose in relation to a confession), 311(d)(6) (same, search),
321(d)(5) (same, lineup), 412(c)(1) and (2) (intent to offer evidence
of sexual misconduct by a victim), 505(i) (intent to disclose
classified information), 506(h) (intent to disclose privileged
government information), 609(b) (intent to impeach a witness with a
conviction older than 10 years), 612(a)(2) (writing used to refresh
recollection), and 613(a) (prior inconsistent statements).
(c) Failure to call witness. The fact that a witness’
name is on a list of expected or intended witnesses
provided to an opposing party, whether required by this
rule or not, shall not be ground for comment upon a
failure to call the witness.
(d) Continuing duty to disclose. If, before or during the
court-martial, a party discovers additional evidence or
material previously requested or required to be
produced, which is subject to discovery or inspection
under this rule, that party shall promptly notify the
other party or the military judge of the existence of the
additional evidence or material.
Discussion
Trial counsel are encouraged to advise military authorities or other
governmental agencies involved in the case of their continuing duty
to identify, preserve, and disclose to the trial counsel or other
Government counsel the information required to be disclosed under
this rule.
(e) Access to witnesses and evidence. Each party shall
have adequate opportunity to prepare its case and equal
opportunity to interview witnesses and inspect
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evidence, subject to the limitations in paragraph (e)(1)
of this rule. No party may unreasonably impede the
access of another party to a witness or evidence.
(1) Counsel for the Accused Interview of Victim of
Alleged Offense.
(A) Upon notice by counsel for the Government to
counsel for the accused of the name of an alleged
victim of an offense whom counsel for the Government
intends to call as a witness at a proceeding, counsel for
the accused, or that lawyer’s representative, as defined
in Mil. R. Evid. 502(b) (3), shall make any request to
interview that victim through the special victims’
counsel or other counsel for the victim, if applicable.
(B) If requested by an alleged victim who is
subject to a request for interview under subparagraph
(e)(1)(A) of this rule, any interview of the victim by
counsel for the accused, or that lawyer’s
representative, as defined in Mil. R. Evid. 502(b)(3),
shall take place only in the presence of counsel for the
Government, counsel for the victim, or if applicable, a
victim advocate.
(2) [Reserved]
(f) Information not subject to disclosure. Nothing in
this rule shall be construed to require the disclosure of
information protected from disclosure by the Military
Rules of Evidence. Nothing in this rule shall require
the disclosure or production of notes, memoranda, or
similar working papers prepared by counsel and
counsel’s assistants and representatives.
(g) Regulation of discovery.
(1) Time, place, and manner. The military judge
may, consistent with this rule, specify the time, place,
and manner of making discovery and may prescribe
such terms and conditions as are just.
(2) Protective and modifying orders. Upon a
sufficient showing, the military judge may at any time
order that the discovery or inspection be denied,
restricted, or deferred, or make such other order as is
appropriate. Subject to limitations in Part III of the
Manual for Courts-Martial, if any rule requires, or
upon motion by a party, the military judge may review
any materials in camera, and permit the party to make
such showing, in whole or in part, in writing to be
inspected only by the military judge in camera. If the
military judge reviews any materials in camera, the
entirety of any materials examined by the military
judge shall be attached to the record of trial as an
appellate exhibit. The military judge shall seal any
materials examined in camera and not disclosed and
may seal other materials as appropriate. Such material
may only be examined by reviewing or appellate
authorities in accordance with R.C.M. 1113.
Discussion
In reviewing a motion under this paragraph, the military judge
should consider the following: protection of witnesses and others
from substantial risk of physical harm, bribes, economic reprisals,
and other intimidation; maintenance of such secrecy regarding
informants as is required for effective investigation of criminal
activity; confidential information recognized by law, including
protection of confidential relationships and privileges; and any other
relevant considerations. If the military judge defers discovery or
inspection, the military judge should ensure that all material and
information to which a party is entitled are disclosed in sufficient
time to permit counsel to make beneficial use of the disclosure. The
terms of the sealing order may provide parameters for examination
by or disclosure to those persons or entities whose interests are being
protected.
(3) Failure to comply. If at any time during the court-
martial it is brought to the attention of the military
judge that a party has failed to comply with this rule,
the military judge may take one or more of the
following actions:
(A) Order the party to permit discovery;
(B) Grant a continuance;
(C) Prohibit the party from introducing evidence,
calling a witness, or raising a defense not disclosed;
and
(D) Enter such other order as is just under the
circumstances. This rule shall not limit the right of the
accused to testify in the accused’s behalf.
Discussion
Factors to be considered in determining whether to grant an
exception to exclusion under subsection (3)(C) include: the extent of
disadvantage that resulted from a failure to disclose; the reason for
the failure to disclose; the extent to which later events mitigated the
disadvantage caused by the failure to disclose; and any other relevant
factors.
The sanction of excluding the testimony of a defense witness
should be used only upon finding that the defense counsel’s failure
to comply with this rule was willful and motivated by a desire to
obtain a tactical advantage or to conceal a plan to present fabricated
testimony. Moreover, the sanction of excluding the testimony of a
defense witness should only be used if alternative sanctions could
not have minimized the prejudice to the Government. Before
imposing this sanction, the military judge must weigh the
defendant’s right to compulsory process against the countervailing
public interests, including (1) the integrity of the adversary process;
(2) the interest in the fair and efficient administration of military
justice; and (3) the potential prejudice to the truth-determining
function of the trial process.
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Procedures governing refusal to disclose classified information
are in Mil. R. Evid. 505. Procedures governing refusal to disclose
other government information are in Mil. R. Evid. 506. Procedures
governing refusal to disclose an informant’s identity are in Mil. R.
Evid. 507.
(h) Inspect. As used in this rule “inspect” includes the
right to photograph and copy.
Rule 702. Depositions
(a) In general.
(1) A deposition may be ordered at the request of any
party if the requesting party demonstrates that, due to
exceptional circumstances, it is in the interest of justice
that the testimony of a prospective witness be taken
and preserved for use at trial.
(2) “Exceptional circumstances” under this rule
includes circumstances under which the deponent is
likely to be unavailable to testify at the time of trial.
(3) A victim’s declination to testify at a preliminary
hearing or a victim’s declination to submit to pretrial
interviews shall not, by themselves, be considered
“exceptional circumstances” under this rule.
(4) A request for a written deposition may not be
approved without the consent of the opposing party
except when the deposition is ordered solely in lieu of
producing a witness for sentencing under R.C.M. 1001
and the authority ordering the deposition determines
that the interests of the parties and the court-martial can
be adequately served by a written deposition.
(5) A request for an oral deposition may be approved
without the consent of the opposing party.
Discussion
A deposition is the out-of-court testimony of a witness under oath in
response to questions by the parties, which is reduced to writing or
recorded on videotape or audiotape or similar material. A deposition
taken on oral examination is an oral deposition, and a deposition
taken on written interrogatories is a written deposition. Written
interrogatories are questions, prepared by the prosecution, defense,
or both, which are reduced to writing before submission to a witness
whose testimony is to be taken by deposition. The answers, reduced
to writing and properly sworn to, constitute the deposition testimony
of the witness.
Note that under R.C.M. 702(j) a deposition may be taken by
agreement of the parties without the necessity of an order.
Part or all of a deposition, so far as otherwise admissible under
the Military Rules of Evidence, may be used on the merits or on an
interlocutory question as substantive evidence if the witness is
unavailable under Mil. R. Evid. 804(a) except that a deposition may
be admitted in a capital case only upon offer by the defense. See Mil.
R. Evid. 804(b)(1). In any case, a deposition may be used by any
party for the purpose of contradicting or impeaching the testimony
of the deponent as a witness. See Mil. R. Evid. 613. If only a part of
a deposition is offered in evidence by a party, an adverse party may
require the proponent to offer all which is relevant to the part offered,
and any party may offer other parts. See Mil. R. Evid. 106.
A deposition which is transcribed is ordinarily read to the
court-martial by the party offering it. See also R.C.M. 702(i)(1)(B).
The transcript of a deposition may not be inspected by the members.
Objections may be made to testimony in a written deposition in the
same way that they would be if the testimony were offered through
the personal appearance of a witness.
Part or all of a deposition so far as otherwise admissible under
the Military Rules of Evidence may be used in presentencing
proceedings as substantive evidence as provided in R.C.M. 1001.
DD Form 456 (Interrogatories and Deposition) may be used in
conjunction with this rule.
See Article 6b(e)(2) concerning a victim’s right to petition a
Court of Criminal Appeals to quash an order to submit to a
deposition.
(b) Who may order. Upon request of a party:
(1) Subject to R.C.M. 702(b)(2), before referral, a
convening authority, or, after referral, the convening
authority or the military judge, may order a deposition.
(2) For offenses over which special trial counsel
exercises authority:
(i) Before referral, only a military judge may order
a deposition, pursuant to R.C.M. 309(b)(3).
(ii) After referral, only a military judge may order
a deposition.
(c) Request to take deposition. A party requesting a
deposition shall do so in writing, and shall include in
such written request—
(1) The name and contact information of the person
whose deposition is requested, or, if the name of the
person is unknown, a description of the office or
position of the person;
(2) A statement of the matters on which the person
is to be examined;
(3) A statement of the reasons for needing to
preserve the testimony of the prospective witness; and
(4) Whether an oral or written deposition is
requested.
Discussion
A copy of the request and any accompanying papers ordinarily
should be served on the other party when the request is submitted.
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(d) Action on request.
(1) Prompt notification. The authority under
subsection (b) who acts on a request for deposition
shall promptly inform the requesting party of the action
on the request and, if the request is denied, the reasons
for denial.
(2) Action when request is denied. If a request for
deposition is denied by the convening authority, the
requesting party may seek review of the decision by the
military judge after referral.
(3) Action when request is approved.
(A) Detail of deposition officer. When a request
for a deposition is approved, the convening authority
shall detail a judge advocate certified under Article
27(b) to serve as deposition officer. In exceptional
circumstances, when the appointment of a judge
advocate as deposition officer is not practicable, the
convening authority may detail an impartial
commissioned officer or appropriate civil officer
authorized to administer oaths, other than the accuser,
to serve as deposition officer. If the deposition officer
is not a judge advocate certified under Article 27(b), an
impartial judge advocate so certified shall be made
available to provide legal advice to the deposition
officer.
Discussion
See Article 49(a)(4).
When a deposition will be at a point distant from the command,
an appropriate authority may be requested to make available an
officer to serve as deposition officer.
(B) Assignment of counsel. If charges have not yet
been referred to a court-martial when a request to take
a deposition is approved, the convening authority shall
ensure that counsel qualified as required under R.C.M.
502(d) are assigned to represent each party.
Discussion
The counsel who represents the accused at a deposition ordinarily
will form an attorney-client relationship with the accused, which will
continue through a later court-martial. See R.C.M. 506.
If the accused has formed an attorney-client relationship with
military counsel concerning the charges in question, ordinarily that
counsel should be appointed to represent the accused.
(C) Instructions. The convening authority may
give instructions not inconsistent with this rule to the
deposition officer.
Discussion
Such instruction may include the time and place for taking the
deposition.
(D) Notice to other parties. The requesting party
shall give to every other party reasonable written notice
of the time and place for the deposition and the name
and address of each person to be examined. On motion
of a party upon whom the notice is served, the
deposition officer may for cause shown extend or
shorten the time or change the place for taking the
deposition, consistent with any instructions from the
convening authority.
(e) Duties of the deposition officer. In accordance with
this rule, and subject to any instructions under
subparagraph (d)(3)(C), the deposition officer shall—
(1) Arrange a time and place for taking the
deposition and, in the case of an oral deposition, notify
the party who requested the deposition accordingly;
(2) Arrange for the presence of any witness whose
deposition is to be taken in accordance with the
procedures for production of witnesses and evidence
under R.C.M. 703;
(3) Maintain order during the deposition and protect
the parties and witnesses from annoyance,
embarrassment, or oppression;
(4) Administer the oath to each witness, the reporter,
and interpreter, if any;
(5) In the case of a written deposition, ask the
questions submitted by counsel to the witness;
(6) Cause the proceedings to be recorded so that a
verbatim transcript may be prepared;
(7) Record, but not rule upon, objections or motions
and the testimony to which they relate;
(8) Certify the record of the deposition and forward
it to the authority who ordered the deposition; and
(9) Report to the convening authority any substantial
irregularity in the proceeding.
Discussion
When any unusual problem, such as improper conduct by counsel or
a witness, prevents an orderly and fair proceeding, the deposition
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officer should adjourn the proceedings and inform the convening
authority.
The authority who ordered the deposition should forward
copies of the transcript of the deposition to the parties.
(f) Rights of accused.
(1) Oral depositions.
(A) At an oral deposition, the accused shall have
the following rights:
(i) Except as provided in subparagraph (B), the
right to be present.
(ii) The right to be represented by counsel as
provided in R.C.M. 506.
(B) At an oral deposition, the accused shall not
have the right to be present when—
(i) the accused, absent good cause shown, fails
to appear after notice of time and place of the
deposition;
(ii) the accused is disruptive within the meaning
of R.C.M. 804(c)(2); or
(iii) the deposition is ordered in lieu of
production of a witness on sentencing under R.C.M.
1001 and the authority ordering the deposition
determines that the interests of the parties and the
court-martial can be served adequately by an oral
deposition without the presence of the accused.
(2) Written depositions. The accused shall have the
right to be represented by counsel as provided in
R.C.M. 506 for the purpose of taking a written
deposition, except when the deposition is taken for use
at a summary court-martial unless otherwise provided
by the Secretary concerned.
(g) Procedure.
(1) Oral depositions.
(A) Examination of witnesses. Each witness
giving an oral deposition shall be examined under oath.
The scope and manner of examination and cross-
examination shall be such as would be allowed in the
trial itself. The Government shall make available to
each accused for examination and use at the taking of
the deposition any statement of the witness which is in
the possession of the United States and to which the
accused would be entitled at the trial.
Discussion
As to objections, see R.C.M. 702(e)(7) and (h). As to production of
prior statements of witnesses, see R.C.M. 914; Mil. R. Evid. 612,
613.
A sample oath for a deposition follows:
“Do you (swear) (affirm) that the evidence you give shall be
the truth, the whole truth, and nothing but the truth (so help you
God)?”
(B) How recorded. In the discretion of the
authority who ordered the deposition, a deposition may
be recorded by a reporter or by other means including
video and audio recording.
(2) Written depositions.
(A) Presence of parties. No party has a right to be
present at a written deposition.
(B) Submission of interrogatories to opponent.
The party requesting a written deposition shall submit
to opposing counsel a list of written questions to be
asked of the witness. Opposing counsel may examine
the questions and shall be allowed a reasonable time to
prepare cross-interrogatories and objections, if any.
Discussion
The interrogatories and cross-interrogatories should be sent to the
deposition officer by the party who requested the deposition. See
R.C.M. 702(h)(3) concerning objections.
(C) Examination of witnesses. The deposition
officer shall swear the witness, read each question
presented by the parties to the witness, and record each
response. The testimony of the witness shall be
recorded on videotape, audiotape, or similar material
or shall be transcribed. When the testimony is
transcribed, the deposition shall, except when
impracticable, be submitted to the witness for
examination. The deposition officer may enter
additional matters then stated by the witness under
oath. The deposition shall be signed by the witness if
the witness is available. If the deposition is not signed
by the witness, the deposition officer shall record the
reason. The certificate of authentication shall then be
executed.
(h) Objections.
(1) In general. A failure to object prior to the
deposition to the taking of the deposition on grounds
which may be corrected if the objection is made prior
to the deposition forfeits such objection unless the
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objection is affirmatively waived.
(2) Oral depositions. Objections to questions,
testimony, or evidence at an oral deposition and the
grounds for such objection shall be stated at the time of
taking such deposition. If an objection relates to a
matter which could have been corrected if the objection
had been made during the deposition, the objection is
forfeited if not made at the deposition.
Discussion
A party may show that an objection was made during the deposition
but not recorded, but, in the absence of such evidence, the transcript
of the deposition governs.
(3) Written depositions. Objections to any question
in written interrogatories shall be served on the party
who proposed the question before the interrogatories
are sent to the deposition officer or the objection is
forfeited. Objections to answers in a written deposition
may be made at trial.
(i) Admissibility and use as evidence.
(1) In general.
(A) The ordering of a deposition under paragraph
(a)(1) does not control the admissibility of the
deposition at court-martial. Except as provided in
paragraph (2), a party may use all or part of a
deposition as provided by the rules of evidence.
(B) In the discretion of the military judge, audio or
video recorded depositions may be played for the
court-martial or may be transcribed and read to the
court-martial.
(2) Capital cases. Testimony by deposition may be
presented in capital cases only by the defense.
Discussion
A deposition read into evidence or one that is played during a court-
martial is recorded and transcribed by the reporter in the same way
as any other testimony. Such a deposition need not be included in the
record of trial.
(j) Deposition by agreement not precluded.
(1) Taking deposition. Nothing in this rule shall
preclude the taking of a deposition without cost to the
United States, orally or upon written questions, by
agreement of the parties.
(2) Use of deposition. Subject to Article 49, nothing
in this rule shall preclude the use of a deposition at the
court-martial by agreement of the parties unless the
military judge forbids its use for good cause.
Rule 703. Production of witnesses and evidence
(a) In general. The prosecution, defense, and court-
martial shall have equal opportunity to obtain
witnesses and evidence, subject to the limitations set
forth in R.C.M. 701, including the benefit of
compulsory process.
Discussion
See also R.C.M. 801(c) concerning the opportunity of the court-
martial to obtain witnesses and evidence.
(b) Right to witnesses.
(1) On the merits or on interlocutory questions. Each
party is entitled to the production of any witness whose
testimony on a matter in issue on the merits or on an
interlocutory question would be relevant and
necessary. With the consent of both the accused and
Government, the military judge may authorize any
witness to testify via remote means. Over a party’s
objection, the military judge may authorize any witness
to testify on interlocutory questions via remote means
or similar technology if the practical difficulties of
producing the witness outweigh the significance of the
witness’ personal appearance (although such testimony
will not be admissible over the accused’s objection as
evidence on the ultimate issue of guilt). Factors to be
considered include, but are not limited to: the costs of
producing the witness; the timing of the request for
production of the witness; the potential delay in the
interlocutory proceeding that may be caused by the
production of the witness; the willingness of the
witness to testify in person; the likelihood of
significant interference with military operational
deployment, mission accomplishment, or essential
training; and, for child witnesses, the traumatic effect
of providing in-court testimony
Discussion
See Mil. R. Evid. 401 concerning relevance.
Relevant testimony is necessary when it is not cumulative and
when it would contribute to a party’s presentation of the case in some
positive way on a matter in issue. A matter is not in issue when it is
stipulated as a fact.
The procedures for receiving testimony via remote means and
the definition thereof are contained in R.C.M. 914B. An issue may
arise as both an interlocutory question and a question that bears on
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the ultimate issue of guilt. See R.C.M. 801(e)(5). In such
circumstances, this rule authorizes the admission of testimony by
remote means or similar technology over the accused’s objection
only as evidence on the interlocutory question. In most instances,
testimony taken over a party’s objection will not be admissible as
evidence on the question that bears on the ultimate issue of guilt;
however, there may be certain limited circumstances where the
testimony is admissible on the ultimate issue of guilt. Such
determinations must be made based upon the relevant rules of
evidence.
(2) On sentencing. Each party is entitled to the
production of a witness whose testimony on sentencing
is required under R.C.M. 1001(f).
(3) Unavailable witness. Notwithstanding
paragraphs (b)(1) and (2) of this rule, a party is not
entitled to the presence of a witness who is unavailable
within the meaning of Mil. R. Evid. 804(a). However,
if the testimony of a witness who is unavailable is of
such central importance to an issue that it is essential
to a fair trial, and if there is no adequate substitute for
such testimony, the military judge shall grant a
continuance or other relief in order to attempt to secure
the witness’ presence or shall abate the proceedings,
unless the unavailability of the witness is the fault of or
could have been prevented by the requesting party.
(c) Determining which witnesses will be produced.
(1) Witnesses for the prosecution. Trial counsel shall
obtain the presence of witnesses whose testimony trial
counsel considers relevant and necessary for the
prosecution.
(2) Witnesses for the defense.
(A) Request. The defense shall submit to trial
counsel a written list of witnesses whose production by
the Government the defense requests.
(B) Contents of request.
(i) Witnesses on merits or interlocutory
questions. A list of witnesses whose testimony the
defense considers relevant and necessary on the merits
or on an interlocutory question shall include the name,
telephone number, if known, and address or location of
the witness such that the witness can be found upon the
exercise of due diligence and a synopsis of the
expected testimony sufficient to show its relevance and
necessity.
(ii) Witnesses on sentencing. A list of witnesses
wanted for presentencing proceedings shall include the
name, telephone number, if known, and address or
location of the witness such that the witness can be
found upon the exercise of due diligence, a synopsis of
the testimony that it is expected the witness will give,
and the reasons why the witness’ personal appearance
will be necessary under the standards set forth in
R.C.M. 1001(f).
(C) Time of request. A list of witnesses under this
subsection shall be submitted in time reasonably to
allow production of each witness on the date when the
witness’ presence will be necessary. The military judge
may set a specific date by which such lists must be
submitted. Failure to submit the name of a witness in a
timely manner shall permit denial of a motion for
production of the witness, but relief from such denial
may be granted for good cause shown.
(D) Determination. Trial counsel shall arrange for
the presence of any witness listed by the defense unless
trial counsel contends that the witness’ production is
not required under this rule. If trial counsel contends
that the witness’ production is not required by this rule,
the matter may be submitted to the military judge. If
the military judge grants a motion for a witness, trial
counsel shall produce the witness or the proceedings
shall be abated.
Discussion
When significant or unusual costs would be involved in producing
witnesses, the trial counsel should inform the convening authority,
as the convening authority may elect to dispose of the matter by
means other than a court-martial. See R.C.M. 906(b)(7). See also
R.C.M. 905(j).
(d) Employment of expert witnesses and consultants.
(1) Funding experts for the prosecution. When the
employment of a prosecution expert witness or
consultant is considered necessary, counsel for the
Government shall, in advance of employment of the
expert, and with notice to the defense, submit a request
for funding of the expert in accordance with
regulations prescribed by the Secretary concerned.
Discussion
See Mil. R. Evid. 702; 706.
(2) Funding experts for the defense. When the
appointment or employment of a defense expert
witness or consultant is considered necessary, the
defense may submit a request for the appointment or
funding of the expert in accordance with regulations
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prescribed by the Secretary concerned.
(A) After referral of charges, a defense request for
an expert witness or consultant may be raised before
the military judge. Motions for expert consultants may
be raised ex parte. The military judge shall determine:
(i) in the case of an expert witness, whether the
testimony is relevant and necessary;
(ii) in the case of an expert consultant, whether
the assistance is necessary for an adequate defense.
(B) If the military judge grants a motion for the
appointment or employment of a defense expert
witness or consultant, the expert witness or consultant,
or an adequate substitute, shall be provided in
accordance with regulations prescribed by the
Secretary concerned. In the absence of advance
approval by an official authorized to grant such
approval under the regulations prescribed by the
Secretary concerned, expert witnesses and consultants
may not be paid fees other than those to which they are
entitled under R.C.M. 207(g)(3)(E).
(3) Notice of expert witnesses.
(A) Expert witnesses.
(i) Government. In addition to the requirements
of R.C.M. 701(a)(3), the Government shall provide the
defense a written summary of the expected testimony
from the expert witness.
(ii) Defense. After referral of charges, in
addition to the requirements of R.C.M. 701(b)(1), the
defense shall provide the Government a written
summary of the expected testimony from the expert
witness.
(B) Timing. The military judge shall set a date
upon which notices under R.C.M. 703(d)(3)(A) are due
to the opposing party.
(C) Failure to comply. If at any time it is brought
to the attention of the military judge that a party has
failed to comply with this rule, the military judge may
take one or more of the following actions:
(i) Order the required notice;
(ii) Order the party to permit discovery;
(iii) Grant a continuance;
(iv) Prohibit the party from introducing
evidence, calling a witness, or raising a defense not
disclosed; and
(v) Enter such other order as is just under the
circumstances.
Discussion
See R.C.M. 701(g)(3) Discussion.
Notice will include the name and contact information for the
expert consultant or expert witness.
(e) Right to evidence.
(1) In general. Each party is entitled to the
production of evidence which is relevant and
necessary.
Discussion
Relevance is defined by Mil. R. Evid. 401. Relevant evidence is
necessary when it is not cumulative and when it would contribute to
a party’s presentation of the case in some positive way on a matter
in issue. A matter is not in issue when it is stipulated as a fact. The
discovery and introduction of classified or other government
information is controlled by Mil. R. Evid. 505 and 506.
(2) Unavailable evidence. Notwithstanding
paragraph (e)(1), a party is not entitled to the
production of evidence which is destroyed, lost, or
otherwise not subject to compulsory process.
However, if such evidence is of such central
importance to an issue that it is essential to a fair trial,
and if there is no adequate substitute for such evidence,
the military judge shall grant a continuance or other
relief in order to attempt to produce the evidence or
shall abate the proceedings, unless the unavailability of
the evidence is the fault of or could have been
prevented by the requesting party.
(f) Determining what evidence will be produced. The
procedures in subsection (c) shall apply to a
determination of what evidence will be produced,
except that any defense request for the production of
evidence shall list the items of evidence to be produced
and shall include a description of each item sufficient
to show its relevance and necessity, a statement where
it can be obtained, and, if known, the name, address,
and telephone number of the custodian of the evidence.
(g) Procedures for production of witnesses and
evidence.
(1) Military witnesses. The attendance of a military
witness may be obtained by notifying the commander
of the witness of the time, place, and date the presence
of the witness is required and requesting the
commander to issue any necessary orders to the
witness.
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Discussion
When military witnesses are located near the court-martial, their
presence can usually be obtained through informal coordination with
them and their commander. If the witness is not near the court-
martial and attendance would involve travel at government expense,
or if informal coordination is inadequate, the appropriate superior
should be requested to issue the necessary order.
If practicable, a request for the attendance of a military witness
should be made so that the witness will have at least 48 hours’ notice
before starting to travel to attend the court-martial.
The attendance of persons not on active duty should be
obtained in the manner prescribed in R.C.M. 703(g)(3).
(2) Evidence under the control of the Government.
Evidence under the control of the Government may be
obtained by notifying the custodian of the evidence of
the time, place, and date the evidence is required and
requesting the custodian to send or deliver the
evidence.
(3) Civilian witnesses and evidence not under the
control of the Government—subpoenas.
(A) In general. The presence of witnesses not on
active duty and evidence not under control of the
Government may be obtained by subpoena.
Discussion
A subpoena is not necessary if the witness appears voluntarily at no
expense to the United States.
Civilian employees of the Department of Defense may be
directed by appropriate authorities to appear as witnesses in courts-
martial as an incident of their employment. Appropriate travel orders
may be issued for this purpose.
A subpoena may not be used to compel a civilian to travel
outside the United States and its territories.
A witness must be subject to United States jurisdiction to be
subject to a subpoena. Foreign nationals in a foreign country are not
subject to subpoena. Their presence may be obtained through
cooperation of the host nation.
(B) Contents. A subpoena shall state the command
by which the proceeding or investigation is directed,
and the title, if any, of the proceeding. A subpoena
shall command each person to whom it is directed to
attend and give testimony at the time and place
specified therein, or to produce evidence—including
books, papers, documents, data, writings, or other
objects or electronically stored information designated
therein at the proceeding or at an earlier time for
inspection by the parties. A subpoena shall not
command any person to attend or give testimony at an
Article 32 preliminary hearing.
Discussion
A subpoena normally is prepared, signed, and issued in duplicate on
official forms. See DD Form 453 for a template subpoena with
certificate of service.
(C) Investigative subpoenas.
(i) In general. In the case of a subpoena issued
before referral for the production of evidence for use in
an investigation, the subpoena shall command each
person to whom it is directed to produce the evidence
requested for inspection by the Government counsel
who issued the subpoena or for inspection in
accordance with an order issued by the military judge
under R.C.M. 309(b).
Discussion
A pre-referral investigative subpoena may be issued in accordance
with R.C.M. 309 or subsection (g)(3)(D)(v) of this rule for the
production of evidence not under control of the government for use
at an Article 32 preliminary hearing. See also R.C.M. 405.
(ii) Subpoenas for personal or confidential
information about a victim. After preferral, a subpoena
requiring the production of personal or confidential
information about a victim named in a specification
may be served on an individual or organization by
those authorized to issue a subpoena under R.C.M.
703(g)(3)(E) or with the consent of the victim. Before
issuing a subpoena under this provision and unless
there are exceptional circumstances, the victim must be
given notice so that the victim can move for relief
under R.C.M 703(g)(3)(I) or otherwise object.
Discussion
The term “victim” has the same meaning as the term “victim of an
offense under this chapter” in Article 6b. A subpoena requiring the
production of personal or confidential information of a named victim
may be served on individuals, such as medical professionals,
counselors, employers, or journalists, or upon an organization, such
as a medical facility, school, treatment center, financial institution,
news organization, or insurance company. Subpoenas to which
R.C.M. 703(g)(3)(C) applies may also be subject to additional
statutory requirements, e.g., the Right to Financial Privacy Act, 12
USC §§ 3401-3422, which applies to financial records. Notice may
be given to the victim or to a victim’s representative such as a
representative under R.C.M. 801(a)(6) or legal counsel. This
provision is drawn from Fed. R. Crim. P. 17(c)(3) with differences
to account for military justice circumstances. For a discussion of
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“exceptional circumstances,” see Fed. R. Crim. P. 17 (Advisory
Committee Notes, 2008 Amendments).
(D) Ex parte request by defense. Upon request by
the defense after referral, including an ex parte request,
the military judge shall issue a subpoena to compel the
production of witnesses if the witness’s testimony is
determined to be relevant and necessary.
(E) Who may issue. A subpoena may be issued by:
(i) the military judge, after referral;
(ii) the summary court-martial;
(iii) the trial counsel of a general or special
court-martial;
Discussion
When detailed to a general or special court-martial, a special trial
counsel may issue a subpoena pursuant to R.C.M. 703(g)(3)(E)(iii).
See R.C.M. 103(26).
(iv) the president of a court of inquiry;
(v) an officer detailed to take a deposition; or
(vi) in the case of a pre-referral investigative
subpoena, a military judge or, when issuance of the
subpoena is authorized by a general court-martial
convening authority, the detailed trial counsel or
counsel for the Government.
Discussion
If practicable, a subpoena should be issued in time to permit service
at least 24 hours before the time the witness will have to travel to
comply with the subpoena.
Informal service. Unless formal service is advisable, the person
who issued the subpoena may mail it to the witness in duplicate,
enclosing a postage-paid envelope bearing a return address, with the
request that the witness sign the acceptance of service on the copy
and return it in the envelope provided. The return envelope should
be addressed to the person who issued the subpoena. The person who
issued the subpoena should include with it a statement to the effect
that the rights of the witness to fees and mileage will not be impaired
by voluntary compliance with the request and that a voucher for fees
and mileage will be delivered to the witness promptly on being
discharged from attendance.
Formal service. Formal service is advisable whenever it is
anticipated that the witness will not comply voluntarily with the
subpoena. Appropriate fees and mileage must be paid or tendered.
See Article 47. If formal service is advisable, the person who issued
the subpoena must assure timely and economical service. That
person may do so by serving the subpoena personally when the
witness is in the vicinity. When the witness is not in the vicinity, the
subpoena may be sent in duplicate to the commander of a military
installation near the witness. Such commanders should give prompt
and effective assistance, issuing travel orders for their personnel to
serve the subpoena when necessary.
Service should ordinarily be made by a person subject to the
UCMJ. The duplicate copy of the subpoena must have entered upon
it proof of service as indicated on the form and must be promptly
returned to the person who issued the subpoena. If service cannot be
made, the person who issued the subpoena must be informed
promptly. A stamped, addressed envelope should be provided for
these purposes.
Hardship means any situation which would substantially
preclude reasonable efforts to appear that could be solved by
providing transportation or fees and mileage to which the witness is
entitled for appearing at the hearing in question.
(F) Notice. Notice shall be given to all parties for
any subpoena issued for a witness post-referral unless,
for good cause, the military judge issues a protective
order.
(G) Service. A subpoena may be served by the
person authorized by this rule to issue it, a United
States Marshal, or any other person who is not less than
18 years of age. Service shall be made by delivering a
copy of the subpoena to the person named and, in the
case of a subpoena of an individual to provide
testimony, by providing to the person named travel
orders and a means for reimbursement for fees and
mileage as may be prescribed by the Secretary
concerned, or in the case of hardship resulting in the
subpoenaed witness’s inability to comply with the
subpoena absent initial Government payment, by
providing to the person named travel orders, fees, and
mileage sufficient to comply with the subpoena in rules
prescribed by the Secretary concerned.
(H) Place of service.
(i) In general. A subpoena may be served at any
place within the United States, its Territories,
Commonwealths, or possessions.
Discussion
A warrant of attachment (DD Form 454) may be used when
necessary to compel a witness to appear or produce evidence under
this rule. A warrant of attachment is a legal order addressed to an
official directing that official to have the person named in the order
brought before a court.
Subpoenas issued under R.C.M. 703 are federal process and a
person not subject to the UCMJ may be prosecuted in a federal
civilian court under Article 47 for failure to comply with a subpoena
issued in compliance with this rule and formally served.
Failing to comply with such a subpoena is a felony offense, and
may result in a fine or imprisonment, or both, at the discretion of the
district court. The different purposes of the warrant of attachment
and criminal complaint under Article 47 should be borne in mind.
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The warrant of attachment, available without the intervention of
civilian judicial proceedings, has as its purpose the obtaining of the
witness’ presence, testimony, or documents. The criminal complaint,
prosecuted through the federal civilian courts, has as its purpose
punishment for failing to comply with process issued by military
authority. It serves to vindicate the military interest in obtaining
compliance with its lawful process.
A general court-martial convening authority may only issue a
warrant of attachment to compel compliance with an investigative
subpoena issued prior to referral. See Article 46(d).
(ii) Foreign territory. In foreign territory, the
attendance of civilian witnesses and evidence not
under the control of the Government may be obtained
in accordance with existing agreements or, in the
absence of agreements, with principles of international
law.
(iii) Occupied territory. In occupied enemy
territory, the appropriate commander may compel the
attendance of civilian witnesses located within the
occupied territory.
Discussion
In executing a warrant of attachment, no more force than necessary
to bring the witness to the court-martial, deposition, or court of
inquiry may be used.
(I) Relief. If a person subpoenaed requests relief
on grounds that compliance is unreasonable,
oppressive, or prohibited by law, the military judge or,
if before referral, a military judge detailed under
Article 30a, shall review the request and shall—
(i) order that the subpoena be modified or
quashed, as appropriate; or
(ii) order the person to comply with the
subpoena.
Discussion
See RCM 703(g)(3)(C)(ii) regarding the ability of a victim named
in a specification to move for relief or otherwise object under
R.C.M. 703(g)(3)(I).
(J) Neglect or refusal to appear or produce
evidence.
(i) Issuance of warrant of attachment. If the
person subpoenaed neglects or refuses to appear or
produce evidence, the military judge or, if before
referral, a military judge detailed under Article 30a or
a general court-martial convening authority, may issue
a warrant of attachment to compel the attendance of a
witness or the production of evidence, as appropriate.
(ii) Requirements. A warrant of attachment may
be issued only upon probable cause to believe that the
witness or evidence custodian was duly served with a
subpoena, that the subpoena was issued in accordance
with these rules, that a means of reimbursement of fees
and mileage, if applicable, was provided to the witness
or advanced to the witness in cases of hardship, that the
witness or evidence is material, that the witness or
evidence custodian refused or willfully neglected to
appear or produce the subpoenaed evidence at the time
and place specified on the subpoena, and that no valid
excuse is reasonably apparent for the witness’ failure
to appear or produce the subpoenaed evidence.
(iii) Form. A warrant of attachment shall be
written. All documents in support of the warrant of
attachment shall be attached to the warrant, together
with the charge sheet and convening orders.
(iv) Execution. A warrant of attachment may be
executed by a United States Marshal or such other
person who is not less than 18 years of age as the
authority issuing the warrant may direct. Only such
non-deadly force as may be necessary to bring the
witness before the court-martial or other proceeding or
to compel production of the subpoenaed evidence may
be used to execute the warrant. A witness attached
under this rule shall be brought before the court-martial
or proceeding without delay and shall testify or provide
the subpoenaed evidence as soon as practicable and be
released.
(v) Definition. For purposes of R.C.M.
703(g)(3)(J)(i), “military judge” does not include a
summary court-martial.
Rule 703A. Warrant or order for wire or electronic
communications
(a) In general. A military judge detailed in accordance
with Article 26 or Article 30a, may, upon written
application by a federal law enforcement officer, trial
counsel, or other authorized counsel for the
Government in connection with an ongoing
investigation of an offense or offenses under the
UCMJ, issue one or more of the following:
(1) A warrant for the disclosure by a provider of
electronic communication service of the contents of
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any wire or electronic communication.
(2) A warrant for the disclosure by a provider of
remote computing service of the contents of any wire
or electronic communication that is held or maintained
on that service—
(A) on behalf of, and received by means of
electronic transmission from (or created by means of
computer processing of communications received by
means of electronic transmission from), a subscriber or
customer of such remote computing service; and
(B) solely for the purpose of providing storage or
computer processing services to such subscriber or
customer, if the provider is not authorized to access the
contents of any such communications for purposes of
providing any services other than storage or computer
processing.
(3) A warrant or order for the disclosure by a
provider of electronic communication service or
remote computing service of a record or other
information pertaining to a subscriber to or customer
of such service (not including the contents of
communications).
Discussion
See Article 46(d)(3) and 18 U.S.C. § 2703 concerning the authority
for, and U.S. district court procedures concerning, warrants and court
orders for electronically stored information.
(b) Warrant procedures.
(1) Probable cause required. A military judge shall
issue a warrant authorizing the search for and seizure
of information specified in subsection (a) of this rule
if—
(A) The federal law enforcement officer, trial
counsel, or other authorized counsel for the
Government applying for the warrant presents an
affidavit or sworn testimony, subject to examination by
the military judge, in support of the application; and
(B) Based on the affidavit or sworn testimony, the
military judge determines that there is probable cause
to believe that the information sought contains
evidence of a crime.
(2) Issuing the warrant. The military judge shall
issue the warrant to the federal law enforcement
officer, trial counsel, or other authorized counsel for
the Government who applied for the warrant.
(3) Contents of the warrant. The warrant shall
identify the property to be searched, identify any
property or other information to be seized, and
designate the military judge to whom the warrant must
be returned.
(4) Executing the warrant. The presence of the
federal law enforcement officer, trial counsel, or other
authorized counsel for the Government identified in
the warrant shall not be required for service or
execution of a search warrant issued in accordance
with this rule requiring disclosure by a provider of
electronic communications service or remote
computing service of the contents of communications
or records or other information pertaining to a
subscriber to or customer of such service.
(5) Quashing or modifying the warrant. A military
judge issuing a warrant under subsection (a), on a
motion made promptly by the service provider, may
quash or modify such warrant, if the warrant is
determined to be unreasonable or oppressive or
prohibited by law.
(c) Order procedures.
(1) A military judge shall issue an order authorizing
the disclosure of information specified in paragraph (a)
(3) of this rule if the federal law enforcement officer,
trial counsel, or other authorized counsel for the
Government applying for the order offers specific and
articulable facts showing that there are reasonable
grounds to believe that the records or other information
sought are relevant and material to an ongoing criminal
investigation.
(2) Quashing or modifying order. A military judge
issuing an order under paragraph (c)(1) of this rule, on
a motion made promptly by the service provider, may
quash or modify such order, if the order is determined
to be unreasonable, oppressive, or prohibited by law.
Discussion
An order may be unreasonable or oppressive if the information or
records requested are unusually voluminous in nature or compliance
with such order otherwise would cause an undue burden on a
provider.
(d) Non-disclosure orders.
(1) A federal law enforcement officer, trial counsel,
or other authorized counsel for the Government acting
under this rule may apply to a military judge for an
order commanding a provider of electronic
communications service or remote computing service
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to whom a warrant or order under this rule is directed,
for such period as the military judge deems
appropriate, not to notify any other person of the
existence of the warrant or order. The military judge
shall issue the order if the military judge determines
that there is reason to believe that notification of the
existence of the warrant or order will result in an
adverse result described in paragraph (d)(2) of this
rule.
(2) An adverse result for purposes of paragraph
(d)(1) of this rule is—
(A) endangering the life or physical safety of an
individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an
investigation or unduly delaying a trial.
(e) No cause of action against a provider disclosing
information under this rule. As provided under 18
U.S.C. § 2703(e), no cause of action shall lie in any
court against any provider of wire or electronic
communication service, its officers, employees,
agents, or other specified persons for providing
information, facilities, or assistance in accordance with
the terms of a warrant or order under this rule.
(f) Requirement to preserve evidence. To the same
extent as provided in 18 U.S.C. § 2703(f)—
(1) A provider of wire or electronic communication
services or a remote computing service, upon the
request of a federal law enforcement officer, trial
counsel, or other authorized counsel for the
Government, shall take all necessary steps to preserve
records and other evidence in its possession pending
the issuance of an order or other process; and
(2) Shall retain such records and other evidence for
a period of 90 days, which shall be extended for an
additional 90-day period upon a renewed request by the
governmental entity.
(g) Definition. As used in this rule, the term “federal
law enforcement officer” includes an employee of the
Army Criminal Investigation Command, the Naval
Criminal Investigative Service, the Air Force Office of
Special Investigations, or the Coast Guard
Investigative Service who has authority to request a
search warrant.
Rule 704. Immunity
(a) Types of immunity. Two types of immunity may be
granted under this rule.
(1) Transactional immunity. A person may be
granted transactional immunity from trial by court-
martial for one or more offenses under the UCMJ.
(2) Testimonial immunity. A person may be granted
immunity from the use of testimony, statements, and
any information directly or indirectly derived from
such testimony or statements by that person in a later
court-martial.
Discussion
“Testimonial” immunity is also called “use” immunity.
Immunity ordinarily should be granted only when testimony or
other information from the person is necessary to the public interest,
including the needs of good order and discipline, and when the
person has refused or is likely to refuse to testify or provide other
information on the basis of the privilege against self-incrimination.
Testimonial immunity is preferred because it does not bar
prosecution of the person for the offenses about which testimony or
information is given under the grant of immunity.
In any trial of a person granted testimonial immunity after the
testimony or information is given, the Government must meet a
heavy burden to show that it has not used in any way for the
prosecution of that person the person’s statements, testimony, or
information derived from them. In many cases this burden makes
difficult a later prosecution of such a person for any offense that was
the subject of that person’s testimony or statements. Therefore, if it
is intended to prosecute a person to whom testimonial immunity has
been or will be granted for offenses about which that person may
testify or make statements, it may be necessary to try that person
before the testimony or statements are given.
(b) Scope. Nothing in this rule bars:
(1) A later court-martial for perjury, false swearing,
making a false official statement, or failure to comply
with an order to testify; or
(2) Use in a court-martial under paragraph (b)(1) of
this rule of testimony or statements derived from such
testimony or statements.
(c) Authority to grant immunity.
Discussion
Only general court-martial convening authorities or their designees
are authorized to grant immunity. However, in some circumstances,
when a person testifies or makes statements pursuant to a promise of
immunity, or a similar promise, by a person with apparent authority
to make it, such testimony or statements and evidence derived from
them may be inadmissible in a later trial. Under some circumstances
a promise of immunity by someone other than a general court-martial
convening authority or designee may bar prosecution altogether.
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Persons not authorized to grant immunity should exercise care when
dealing with accused or suspects to avoid inadvertently causing
statements to be inadmissible or prosecution to be barred.
When the victim of an alleged offense requests an expedited
response to a request for immunity for misconduct that is collateral
to the underlying offense, the convening authority should respond to
the request as soon as practicable.
A convening authority who grants immunity to a prosecution
witness in a court-martial may be disqualified from taking post-trial
action in the case under some circumstances.
(1) Except as provided in R.C.M. 704(c)(2), a
general court-martial convening authority, or designee,
may grant immunity, and may do so only in accordance
with this rule.
(2) For offenses over which a special trial counsel
has exercised authority and has not deferred, a special
trial counsel designated by the Secretary concerned, or
that designated special trial counsel’s designee, may
grant immunity, and may do so only in accordance with
this rule.
Discussion
Only special trial counsel designated by the Secretary concerned,
general court-martial convening authorities, and their designees are
authorized to grant immunity. However, in some circumstances,
when a person testifies or makes statements pursuant to a promise of
immunity, or a similar promise, by a person with apparent authority
to make it, such testimony or statements and evidence derived from
them may be inadmissible in a later trial. Under some circumstances,
a promise of immunity by someone other than a general court-martial
convening authority, special trial counsel designated by the
Secretary concerned, or their designee may bar prosecution
altogether. Persons not authorized to grant immunity should exercise
care when dealing with accused or suspects to avoid inadvertently
causing statements to be inadmissible or prosecution to be barred.
When the victim of an alleged offense requests an expedited
response to a request for immunity for misconduct that is collateral
to the underlying offense, the convening authority, special trial
counsel designated by the Secretary concerned, or their designee
should respond to the request as soon as practicable.
(3) Persons subject to the UCMJ. A general court-
martial convening authority, a special trial counsel
designated by the Secretary concerned, or their
designees, may grant immunity to a person subject to
the UCMJ. However, they may grant immunity to a
person subject to the UCMJ extending to a prosecution
in a United States District Court only when specifically
authorized to do so by the Attorney General of the
United States or other authority designated under
chapter 601 of title 18 of the U.S. Code.
Discussion
When testimony or a statement for which a person subject to the
UCMJ may be granted immunity may relate to an offense for which
that person could be prosecuted in a United States District Court,
immunity should not be granted without prior coordination with the
Department of Justice. Ordinarily, coordination with the local United
States Attorney is appropriate. Unless the Department of Justice
indicates it has no interest in the case, authorization for the grant of
immunity should be sought from the Attorney General. A request for
such authorization should be forwarded through the office of the
Judge Advocate General concerned. Service regulations may provide
additional guidance. Even if the Department of Justice expresses no
interest in the case, authorization by the Attorney General for the
grant of immunity may be necessary to compel the person to testify
or make a statement if such testimony or statement would make the
person liable for a federal civilian offense.
(4) Persons not subject to the UCMJ. A general
court-martial convening authority, a special trial
counsel designated by the Secretary concerned, or their
designees, may grant immunity to persons not subject
to the UCMJ only when specifically authorized to do
so by the Attorney General of the United States or other
authority designated in chapter 601 of title 18 of the
U.S. Code.
(5) Limitations on delegation.
(A) Subject to Service regulations, the authority to
grant immunity under this rule may be delegated in
writing at the discretion of the general court-martial
convening authority to a subordinate special court-
martial convening authority. Further delegation is not
permitted. The authority to grant immunity or delegate
the authority to grant immunity may be limited by
superior authority.
(B) Subject to Service regulations, the authority to
grant immunity under this rule may be delegated at the
discretion of a special trial counsel designated by the
Secretary concerned to a subordinate special trial
counsel. The authority to grant immunity or delegate
the authority to grant immunity may be limited by
superior authority. Any delegation shall be in writing.
Discussion
A general court-martial convening authority has wide latitude under
this section to exercise his or her discretion in delegating immunity
authority. For example, a general court-martial convening authority
may decide to delegate only the authority for a designee to grant
immunity for certain offenses, such as a list of specific offenses or
any offense not warranting a punitive discharge, while withholding
authority to grant immunity for all others. A general court-martial
convening authority may also delegate only authority for certain
categories of grantees, such as victims of alleged sex-related
offenses.
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Department of Defense Instruction 5525.07 (March 5, 2020)
provides: “A proposed grant of immunity in a case involving
espionage, subversion, aiding the enemy, sabotage, spying, or
violation of rules or statutes concerning classified information or the
foreign relations of the United States, will be forwarded to the
General Counsel of the Department of Defense for the purpose of
consultation with the [Department of Justice (DOJ)]. The General
Counsel of the Department of Defense will obtain the views of other
appropriate elements of DoD that should be considered during
consultation with DOJ.”
(d) Procedure.
(1) A grant of immunity shall be written and signed
by the individual convening authority, special trial
counsel designated by the Secretary concerned, or
designee who issues it. The grant shall include a
statement of the authority under which it is made and
shall identify the matters to which it extends.
(2) Subject to Service regulations, the convening
authority shall order a person subject to the UCMJ who
has received a grant of immunity, to answer questions
by investigators or to testify or answer questions by
counsel pursuant to that grant of immunity.
Discussion
A person who refuses to testify despite a valid grant of immunity
may be prosecuted for such refusal. Persons subject to the UCMJ
may be charged under Article 131d. A grant of immunity removes
the right to refuse to testify or make a statement on self-incrimination
grounds. It does not, however, remove other privileges against
disclosure of information.
An immunity order or grant must not specify the contents of
the testimony it is expected the witness will give.
When immunity is granted to a prosecution witness, the
accused must be notified in accordance with Mil. R. Evid. 301(d)(2).
(e) Decision to grant immunity. Unless limited by
superior competent authority, the decision to grant
immunity is a matter within the sole discretion of the
general court-martial convening authority, special trial
counsel designated by the Secretary concerned, as
applicable, or their designees. However, if a defense
request to immunize a witness has been denied, the
military judge may, upon motion by the defense, grant
appropriate relief directing that either an appropriate
convening authority or special trial counsel designated
by the Secretary concerned, as applicable, grant
testimonial immunity to a defense witness or, as to the
affected charges and specifications, the proceedings
against the accused be abated, upon findings that:
(1) The witness intends to invoke the right against
self-incrimination to the extent permitted by law if
called to testify;
(2) The Government has engaged in discriminatory
use of immunity to obtain a tactical advantage, or the
Government through its own overreaching, has forced
the witness to invoke the privilege against self-
incrimination; and
(3) The witness’ testimony is material, clearly
exculpatory, not cumulative, not obtainable from any
other source, and does more than merely affect the
credibility of other witnesses.
Rule 705. Plea agreements
(a) In general. Subject to such limitations as the
Secretary concerned may prescribe, an accused and the
convening authority or the accused and special trial
counsel, as applicable, may enter into a plea agreement
in accordance with this rule. In cases over which
special trial counsel has exercised authority and has not
deferred, an agreement may only be entered into
between special trial counsel and the accused;
however, any such agreement may bind convening
authorities and other commanders subject to such
limitations as prescribed by the Secretary concerned.
Discussion
The authority of convening authorities or special trial counsel to refer
cases to trial and approve plea agreements extends only to trials by
court-martial. To ensure that such actions do not preclude
appropriate action by federal civilian authorities in cases likely to be
prosecuted in the United States District Courts, convening
authorities or special trial counsel, when applicable, shall ensure that
appropriate consultation under the “Memorandum of Understanding
Between the Departments of Justice and Defense Relating to the
Investigation and Prosecution of Crimes Over Which the Two
Departments Have Concurrent Jurisdiction” or its Coast Guard
equivalent has taken place prior to trial by court-martial or approval
of a plea agreement in cases where such consultation is required. See
Appendix 3 and Appendix 4. Convening authorities and special trial
counsel should also review and consider Appendix 2.1 (Disposition
Guidance) for guidance concerning the disposition of charges and
specifications through plea agreements.
(b) Nature of agreement. A plea agreement may
include:
(1) A promise by the accused to plead guilty to, or to
enter a confessional stipulation as to, one or more
charges and specifications, and to fulfill such
additional terms or conditions that may be included in
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the agreement and that are not prohibited under this
rule; and
(2) A promise by the convening authority or special
trial counsel, as applicable, to do one or more of the
following:
(A) Refer the charges to a certain type of court-
martial;
(B) Refer a capital offense as noncapital;
(C) Withdraw one or more charges or
specifications from the court-martial;
Discussion
A convening authority or special trial counsel may withdraw certain
specifications and/or charges from a court-martial and dismiss them
if the accused fulfills the accused’s promises in the agreement.
Except when jeopardy has attached (see R.C.M. 907(b)(2)(C)), such
withdrawal and dismissal does not bar later reinstitution of the
charges by special trial counsel or the same or different convening
authority. A judicial determination that the accused breached the plea
agreement is not required prior to reinstitution of withdrawn or
dismissed specifications and/or charges. If the defense moves to
dismiss the reinstituted specifications and/or charges on the grounds
that the government remains bound by the terms of the plea
agreement, the government will be required to prove, by a
preponderance of the evidence that the accused has breached the
terms of the plea agreement. If the agreement is intended to grant
immunity to an accused, see R.C.M. 704.
(D) Have trial counsel present no evidence as to
one or more specifications or portions thereof; and
(E) Limit the sentence that may be adjudged by the
court-martial for one or more charges and
specifications in accordance with R.C.M. 705(d); or
(3) A promise by either the convening authority or
special trial counsel to take other action within their
authority.
(c) Terms and conditions.
(1) Prohibited terms and conditions.
(A) Not voluntary. A term or condition in a plea
agreement shall not be enforced if the accused did not
freely and voluntarily agree to it.
(B) Deprivation of certain rights. A term or
condition in a plea agreement shall not be enforced if
it deprives the accused of: the right to counsel; the right
to due process; the right to challenge the jurisdiction of
the court-martial; the right to a speedy trial; the right to
complete presentencing proceedings; the complete and
effective exercise of post-trial and appellate rights.
Discussion
A plea agreement provision which prohibits the accused from
making certain pretrial motions, such as for issues that are not
waivable (see R.C.M. 905-907), is improper.
(2) Permissible terms and conditions. R.C.M.
705(c)(1)(A) and (1)(B) do not prohibit the convening
authority, special trial counsel, or the accused from
proposing the following additional conditions:
(A) A promise to enter into a stipulation of fact
concerning offenses to which a plea of guilty or to
which a confessional stipulation will be entered;
(B) A promise to testify as a witness in the trial of
another person;
(C) A promise to provide restitution;
(D) A promise to conform the accused’s conduct
to certain conditions of probation before action by the
convening authority in a summary court-martial or
before entry of judgment in a general or special court-
martial as well as during any period of suspension of
the sentence, provided that the requirements of R.C.M.
1108 must be complied with before an alleged
violation of such terms may relieve the Government of
the obligation to fulfill the agreement;
(E) A promise to waive procedural requirements
such as the Article 32 preliminary hearing, the right to
trial by a court-martial composed of members, the right
to request trial by military judge alone, the right to elect
sentencing by members if applicable, or the
opportunity to obtain the personal appearance of
witnesses at presentencing proceedings;
Discussion
A plea agreement that includes a waiver of the accused’s right to
request trial by a court-martial composed of members necessarily
waives the right to elect sentencing by members. See R.C.M. 1002.
A plea agreement that permits the accused to request trial by a
court-martial composed of members necessarily preserves the
accused’s right to elect sentencing by military judge alone or
members. In such cases, the accused will be sentenced for all
offenses for which the accused was found guilty in accordance with
the accused’s election. See R.C.M. 1002.
(F) When applicable, a provision requiring that the
sentences to confinement adjudged by the military
judge for two or more charges or specifications be
served concurrently or consecutively. Such an
agreement shall identify the charges or specifications
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that will be served concurrently or consecutively; and
Discussion
A provision requiring the sentences to confinement be served
concurrently or consecutively is applicable only to plea agreements
in which the military judge determines the sentence under R.C.M.
1002(d)(2).
(G) Any other term or condition that is not
contrary to or inconsistent with this rule.
(d) Sentence limitations.
(1) In general. Subject to such limitations as the
Secretary concerned may prescribe pursuant to R.C.M.
705(a), a plea agreement that limits the sentence that
can be imposed by the court-martial for one or more
charges and specifications may contain:
(A) a limitation on the maximum punishment that
can be imposed by the court-martial;
(B) a limitation on the minimum punishment that
can be imposed by the court-martial;
(C) limitations on the maximum and minimum
punishments that can be imposed by the court-martial;
or,
(D) a specified sentence or portion of a sentence
that shall be imposed by the court-martial.
(2) Confinement and fines.
(A) General or special courts-martial.
(i) In a plea agreement in which the accused
waives the right to elect sentencing by members and
agrees to a limitation on the confinement or the amount
of a fine that may be imposed by the military judge for
more than one charge or specification under paragraph
(1), the agreement shall include separate limitations, as
applicable, for each charge or specification.
(ii) In a plea agreement in which the convening
authority and accused agree to sentencing by members,
limitations on the sentence that may be adjudged shall
be expressed as limitations on the total punishment that
may be imposed by the members.
(B) Summary court-martial. A plea agreement
involving limitations on the sentence that may be
adjudged shall be expressed as limitations on the total
punishment that may be imposed by the court-martial.
(3) Other punishments. A plea agreement may
include a limitation as to other authorized punishments
as set forth in R.C.M. 1003.
(4) Capital cases. A sentence limitation under
paragraph (1) may not include the possibility of a
sentence of death.
(5) Mandatory minimum punishments for certain
offenses. A sentence limitation under paragraph (1)
may not provide for a sentence less than the applicable
mandatory minimum sentence for an offense referred
to in Article 56(b)(2), except as follows:
(A) If the accused pleads guilty to the offense, the
agreement may have the effect of reducing a
mandatory dishonorable discharge to a bad-conduct
discharge.
(B) Upon recommendation of trial counsel, in
exchange for substantial assistance by the accused in
the investigation or prosecution of another person who
has committed an offense, a plea agreement may
provide for a sentence that is less than the mandatory
minimum sentence for the offense charged.
(e) Procedure.
(1) Negotiation. Plea agreement negotiations may be
initiated by the accused, defense counsel, trial counsel,
the staff judge advocate, convening authority, or their
duly authorized representatives. Either the defense or
the Government may propose any term or condition not
prohibited by law or public policy. Government
representatives shall negotiate with defense counsel
unless the accused has waived the right to counsel.
(2) Formal submission. After negotiation, if any,
under paragraph (1), if the accused elects to propose a
plea agreement, the defense shall submit a written
offer. All terms, conditions, and promises between the
parties shall be written. The proposed agreement shall
be signed by the accused and defense counsel, if any.
Discussion
The plea agreement ordinarily contains an offer to plead guilty and a
description of the offenses to which the offer extends. It must also
contain a complete and accurate statement of any other agreed terms
or conditions. For example, if the convening authority or special trial
counsel agrees to withdraw certain specifications, or if the accused
agrees to waive the right to an Article 32 preliminary hearing or the
right to elect sentencing by members, this should be stated. The
written agreement should contain a statement by the accused that the
accused enters it freely and voluntarily and may contain a statement
that the accused has been advised of certain rights in connection with
the agreement.
(3) Acceptance by the convening authority or special
trial counsel.
(A) In general. The convening authority or special
trial counsel, as applicable, may either accept or reject
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an offer of the accused to enter into a plea agreement
or may propose by counteroffer any terms or
conditions not prohibited by law or public policy. The
decision whether to accept or reject an offer is within
the sole discretion of the convening authority or special
trial counsel, as applicable. When the convening
authority has accepted a plea agreement, the agreement
shall be signed by the convening authority or by a
person, such as the staff judge advocate or trial
counsel, who has been authorized by the convening
authority to sign. When special trial counsel has
accepted a plea agreement, the agreement shall be
signed by special trial counsel.
Discussion
The convening authority should consult with the staff judge advocate
or trial counsel and should review the applicable sections of
Appendix 2.1 (Non-binding disposition guidance) before acting on
an offer to enter into a plea agreement.
(B) Victim consultation. Prior to the convening
authority or special trial counsel, as applicable,
accepting a plea agreement, the convening authority or
special trial counsel shall make the convening
authority’s or special trial counsel’s best efforts to
provide the victim an opportunity to submit views
concerning the plea agreement terms and conditions in
accordance with regulations prescribed by the
Secretary concerned. The convening authority or
special trial counsel, as applicable, shall consider any
such views provided prior to accepting a plea
agreement. For purposes of this rule, a “victim” is an
individual who is alleged to have suffered direct
physical, emotional, or pecuniary harm as a result of
the matters set forth in a charge or specification under
consideration and is named in one of the specifications
under consideration.
(4) Withdrawal.
(A) By accused. The accused may withdraw from
a plea agreement at any time prior to the sentence being
announced. If the accused elects to withdraw from the
plea agreement after the acceptance of the plea
agreement but before the sentence is announced, the
military judge shall permit the accused to withdraw
only for good cause shown. Additionally, the accused
may withdraw a plea of guilty or a confessional
stipulation entered pursuant to a plea agreement only
as provided in R.C.M. 910(h) or 811(d).
(B) By convening authority or special trial
counsel. The convening authority or special trial
counsel, as applicable, may withdraw from a plea
agreement at any time:
(i) before substantial performance by the
accused of promises contained in the agreement;
(ii) upon the failure by the accused to fulfill any
material promise or condition in the agreement;
(iii) when inquiry by the military judge
discloses a disagreement as to a material term in the
agreement; or
(iv) if findings are set aside because a plea of
guilty entered pursuant to the agreement is held
improvident on appellate review.
(f) Nondisclosure of existence of a plea agreement.
No
court-martial member shall be informed of the
existence of a plea agreement, except upon request of
the accused or when the military judge finds that
disclosure of the existence of the plea agreement is
manifestly necessary in the interest of justice because
of circumstances arising during the proceeding. In
addition, except as provided in Mil. R. Evid. 410, the
fact that an accused offered to enter into a plea
agreement, and any statements made by an accused in
connection therewith, whether during negotiations or
during a providence inquiry, shall not be otherwise
disclosed to the members.
Discussion
See R.C.M. 1002 and 1005.
Rule 706. Inquiry into the mental capacity or
mental responsibility of the accused
(a) Initial action. If it appears to any commander who
considers the disposition of charges, or to any
preliminary hearing officer, trial counsel, defense
counsel, military judge, or member that there is reason
to believe that the accused lacked mental responsibility
for any offense charged or lacks capacity to stand trial,
that fact and the basis of the belief or observation shall
be transmitted through appropriate channels to the
officer authorized to order an inquiry into the mental
condition of the accused. The submission may be
accompanied by an application for a mental
examination under this rule.
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Discussion
See R.C.M. 909 concerning the capacity of the accused to stand trial
and R.C.M. 916(k) concerning mental responsibility of the accused.
(b) Ordering an inquiry.
(1) Before referral. Before referral of charges, an
inquiry into the mental capacity or mental
responsibility of the accused may be ordered by any
applicable convening authority, or by a military judge
or magistrate in a proceeding conducted in accordance
with R.C.M. 309.
(2) After referral. After referral of charges, an
inquiry into the mental capacity or mental
responsibility of the accused may be ordered by the
military judge. The convening authority may order
such an inquiry after referral of charges but before
beginning of the first session of the court-martial
(including any Article 39(a) session) when the military
judge is not reasonably available. The military judge
may order a mental examination of the accused
regardless of any earlier determination by any
authority.
(c) Inquiry.
(1) By whom conducted. When a mental examination
is ordered under subsection (b) of this rule, the matter
shall be referred to a board consisting of one or more
persons. Each member of the board shall be either a
physician or a clinical psychologist. Normally, at least
one member of the board shall be either a psychiatrist
or a clinical psychologist. The board shall report as to
the mental capacity or mental responsibility or both of
the accused.
(2) Matters in inquiry. When a mental examination
is ordered under this rule, the order shall contain the
reasons for doubting the mental capacity or mental
responsibility, or both, of the accused, or other reasons
for requesting the examination. In addition to other
requirements, the order shall require the board to make
separate and distinct findings as to each of the
following questions:
(A) At the time of the alleged criminal conduct,
did the accused have a severe mental disease or defect?
(The term “severe mental disease or defect” does not
include an abnormality manifested only by repeated
criminal or otherwise antisocial conduct, or minor
disorders such as nonpsychotic behavior disorders and
personality defects.)
(B) What is the clinical psychiatric diagnosis?
(C) Was the accused, at the time of the alleged
criminal conduct and as a result of such severe mental
disease or defect, unable to appreciate the nature and
quality or wrongfulness of his or her conduct?
(D) Is the accused presently suffering from a
mental disease or defect rendering the accused unable
to understand the nature of the proceedings against the
accused or to conduct or cooperate intelligently in the
defense?
Other appropriate questions may also be included.
(3) Directions to board. In addition to the
requirements specified in paragraph (c)(2) of this rule,
the order to the board shall specify:
(A) That upon completion of the board’s
investigation, a statement consisting only of the
board’s ultimate conclusions as to all questions
specified in the order shall be submitted to the officer
ordering the examination, the accused’s commanding
officer, the preliminary hearing officer, if any,
appointed pursuant to Article 32, and to all government
and defense counsel in the case, the convening
authority, and, after referral, to the military judge.
(B) That the full report of the board may be
released by the board or other medical personnel only
to other medical personnel for medical purposes,
unless otherwise authorized by the convening authority
or, after referral of charges, by the military judge,
except that a copy of the full report shall be furnished
to the defense and, upon request, to the commanding
officer of the accused; and
(C) That neither the contents of the full report nor
any matter considered by the board during its
investigation shall be released by the board or other
medical personnel to any person not authorized to
receive the full report, except pursuant to an order by
the military judge.
Discussion
Based on the report, further action in the case may be suspended; the
charges may be dismissed by the convening authority or special trial
counsel; administrative action may be taken to discharge the accused
from the service; or, subject to Mil. R. Evid. 302, the charges may
be tried by court-martial.”
(4) Additional examinations. Additional
examinations may be directed under this rule at any
stage of the proceedings as circumstances may require.
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(5) Disclosure to trial counsel. No person, other than
defense counsel, the accused, or, after referral of
charges, the military judge may disclose to trial
counsel any statement made by the accused to the
board or any evidence derived from such statement.
Discussion
See Mil. R. Evid. 302.
Rule 707. Speedy trial
(a) In general. The accused shall be brought to trial
within 120 days after the earlier of:
(1) Preferral of charges;
Discussion
Delay from the time of an offense to preferral of charges or the
imposition of pretrial restraint is not considered for speedy trial
purposes. See also Article 43 (statute of limitations). In some
circumstances such delay may prejudice the accused and may result
in dismissal of the charges or other relief.
(2) The imposition of restraint under R.C.M.
304(a)(2)–(4); or
(3) Entry on active duty under R.C.M. 204.
(b) Accountability.
(1) In general. The date of preferral of charges, the
date on which pretrial restraint under R.C.M. 304
(a)(2)-(4) is imposed, or the date of entry on active duty
under R.C.M. 204 shall not count for purpose of
computing time under subsection (a) of this rule. The
date on which the accused is brought to trial shall
count. The accused is brought to trial within the
meaning of this rule at the time of arraignment under
R.C.M. 904.
(2) Multiple Charges. When charges are preferred at
different times, accountability for each charge shall be
determined from the appropriate date under subsection
(a) of this rule for that charge.
(3) Events which affect time periods.
(A) Dismissal or mistrial. In the event of dismissal
of charges or mistrial, a new 120-day period begins as
follows:
(i) For an accused under pretrial restraint under
R.C.M. 304(a)(2)-(4) at the time of the dismissal or
mistrial, a new 120-day period begins on the date of the
dismissal or mistrial.
(ii) For an accused not under pretrial restraint at
the time of dismissal or mistrial, a new 120-day period
begins on the earliest of:
(I) the date on which charges are preferred
anew;
(II) the date of imposition of restraint under
R.C.M. 304(a)(2)-(4); or
(III) in the case of a mistrial in which charges
are not dismissed or preferred anew, the date of the
mistrial.
(iii) In a case in which it is determined that
charges were dismissed for an improper purpose or for
subterfuge, the time period determined under
subsection (a) shall continue to run.
(B) Release from restraint. If the accused is
released from pretrial restraint for a significant period,
the 120-day time period under this rule shall begin on
the earlier of
(i) the date of preferral of charges;
(ii) the date on which restraint under R.C.M.
304(a) (2)-(4) is reimposed; or
(iii) date of entry on active duty under R.C.M.
204.
(C) Government appeals. If notice of appeal under
R.C.M. 908 is filed, a new 120-day time period under
this rule shall begin, for all charges neither proceeded
on nor severed under R.C.M. 908(b)(4), on the date of
notice to the parties under R.C.M. 908(b)(8) or
908(c)(3), unless it is determined that the appeal was
filed solely for the purpose of delay with the
knowledge that it was totally frivolous and without
merit. After the decision of the Court of Criminal
Appeals under R.C.M. 908, if there is a further appeal
to the Court of Appeals for the Armed Forces or,
subsequently, to the Supreme Court, a new 120-day
time period under this rule shall begin on the date the
parties are notified of the final decision of the Court of
Appeals for the Armed Forces, or, if appropriate, the
Supreme Court.
(D) Rehearings. If a rehearing is ordered or
authorized by an appellate court, a new 120-day time
period under this rule shall begin on the date that the
responsible convening authority or, for charges and
specifications referred by a special trial counsel, the
special trial counsel receives the record of trial and the
opinion authorizing or directing a rehearing. An
accused is brought to trial within the meaning of this
rule at the time of arraignment under R.C.M. 904 or, if
arraignment is not required (such as in the case of a
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sentence-only rehearing), at the time of the first session
under R.C.M. 803.
(E) Commitment of the incompetent accused. If the
accused is committed to the custody of the Attorney
General for hospitalization as provided in R.C.M.
909(f), all periods of such commitment shall be
excluded when determining whether the period in
subsection (a) of this rule has run. If, at the end of the
period of commitment, the accused is returned to the
custody of the general court-martial convening
authority, a new 120-day time period under this rule
shall begin on the date of such return to custody.
(c) Excludable delay. All periods of time during which
appellate courts have issued stays in the proceedings,
or the accused is absent without authority, or the
accused is hospitalized due to incompetence, or is
otherwise in the custody of the Attorney General, shall
be excluded when determining whether the period in
subsection (a) of this rule has run. All other pretrial
delays approved by a military judge or the convening
authority shall be similarly excluded.
(1) Procedure. Prior to referral, all requests for
pretrial delay, together with supporting reasons and
with notice to the defense, will be submitted to a
convening authority with authority over the accused
for resolution. The convening authority may delegate
this authority to an Article 32 preliminary hearing
officer. After referral, such requests for pretrial delay
will be submitted to the military judge for resolution.
Discussion
The decision to grant or deny a reasonable delay is a matter within
the sole discretion of the convening authority or a military judge.
Reasons to grant a delay might include, for example, the need for:
time to enable counsel to prepare for trial in complex cases; time to
allow examination into the mental capacity of the accused; time to
process a member of the reserve component to active duty for
disciplinary action; time to complete other proceedings related to the
case; time requested by the defense; time to secure the availability of
the accused, substantial witnesses, or other evidence; time to obtain
appropriate security clearances for access to classified information
or time to declassify evidence; or additional time for other good
cause. Pretrial delays should not be granted ex parte, and when
practicable, the decision granting the delay, together with supporting
reasons and the dates covering the delay, should be reduced to
writing.
(2) Motions. Upon accused’s timely motion to a
military judge under R.C.M. 905 for speedy trial relief,
counsel should provide the court a chronology
detailing the processing of the case. This chronology
should be made a part of the appellate record.
(d) Remedy. A failure to comply with this rule will
result in dismissal of the affected charges, or, in a
sentence-only rehearing, sentence relief as appropriate.
(1) Dismissal. Dismissal will be with or without
prejudice to the Government’s right to reinstitute
court-martial proceedings against the accused for the
same offense at a later date. The charges must be
dismissed with prejudice where the accused has been
deprived of his or her constitutional right to a speedy
trial. In determining whether to dismiss charges with
or without prejudice, the court shall consider, among
others, each of the following factors: the seriousness of
the offense; the facts and circumstances of the case that
lead to dismissal; the impact of a re-prosecution on the
administration of justice; and any prejudice to the
accused resulting from the denial of a speedy trial.
(2) Sentence relief. In determining whether or how
much sentence relief is appropriate, the military judge
shall consider, among others, each of the following
factors: the length of the delay, the reasons for the
delay, the accused’s demand for speedy trial, and any
prejudice to the accused from the delay. Any sentence
relief granted will be applied against the sentence
approved by the convening authority.
Discussion
See R.C.M. 707(c)(1) and the accompanying Discussion concerning
reasons for delay and procedures for parties to request delay.
(e) Waiver. Except as provided in R.C.M. 910(a)(2), a
plea of guilty that results in a finding of guilty waives
any speedy trial issue under this rule as to that offense.
(f) Priority. When considering the disposition of
charges and the ordering of trials, a convening
authority or special trial counsel shall give priority to
cases in which the accused is held under those forms of
pretrial restraint defined by R.C.M. 304(a)(3)-(4). Trial
of or other disposition of charges against any accused
held in arrest or confinement pending trial shall be
given priority.
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CHAPTER VIII. TRIAL PROCEDURE GENERALLY
Rule 801. Military judge’s responsibilities; other
matters
(a) Responsibilities of military judge. The military
judge is the presiding officer in a court-martial. The
military judge shall:
Discussion
The military judge is responsible for ensuring that court-martial
proceedings are conducted in a fair and orderly manner, without
unnecessary delay or waste of time or resources.
(1) Determine the time and uniform for each
session of a court-martial;
Discussion
The military judge should consult with counsel concerning the
scheduling of sessions and the uniform to be worn. The military
judge recesses or adjourns the court-martial as appropriate. Subject
to R.C.M. 504(d)(1), the military judge may also determine the place
of trial. See also R.C.M. 906(b)(11).
(2) Ensure that the dignity and decorum of the
proceedings are maintained;
Discussion
See generally R.C.M. 804 and 806. Courts-martial should be
conducted in an atmosphere which is conducive to calm and
detached deliberation and determination of the issues presented and
which reflects the seriousness of the proceedings.
(3) Subject to the UCMJ and this Manual, exercise
reasonable control over the proceedings to promote the
purposes of these rules and this Manual;
Discussion
See R.C.M. 102. The military judge may, within the framework
established by the code and this Manual, prescribe the manner and
order in which the proceedings may take place. Thus, the military
judge may determine: when, and in what order, motions will be
litigated (see R.C.M. 905); the manner in which voir dire will be
conducted and challenges made (see R.C.M. 902(d) and 912); the
order in which witnesses may testify (see R.C.M. 913; Mil. R. Evid.
611); the order in which the parties may argue on a motion or
objection; and the time limits for argument (see R.C.M. 905; 919;
1001(h)).
The military judge should prevent unnecessary waste of time
and promote the ascertainment of truth, but must avoid undue
interference with the parties’ presentations or the appearance of
partiality. The parties are entitled to a reasonable opportunity to
properly present and support their contentions on any relevant
matter.
(4) Rule on all interlocutory questions and all
questions of law raised during the court-martial as
provided under subsection (e);
(5) Instruct the members on questions of law and
procedure which may arise; and
Discussion
The military judge instructs the members concerning findings (see
R.C.M. 920) and, when applicable, sentence (see R.C.M. 1005), and
when otherwise appropriate. For example, preliminary instructions
to the members concerning their duties and the duties of other trial
participants and other matters are normally appropriate. See R.C.M.
913. Other instructions (for example, instructions on the limited
purpose for which evidence has been introduced, see Mil. R. Evid.
105) may be given whenever the need arises.
(6) At the military judge’s discretion, in the case of
a victim of an offense under the UCMJ who is under
18 years of age and not a member of the armed forces,
or who is incompetent, incapacitated, or deceased,
designate the legal guardian(s) of the victim or the
representative(s) of the victim’s estate, family
members, or any other person deemed as suitable by
the military judge to assume the victim’s rights under
the UCMJ.
(A) The military judge is not required to hold a
hearing before determining whether a designation is
required or before making such a designation under
this rule.
(B) If the military judge determines a hearing
under Article 39(a), UCMJ, is necessary, the victim
shall be notified of the hearing and afforded the right
to be present at the hearing.
(C) The individual designated shall not be the
accused.
(D) At any time after appointment, a designee
shall be excused upon request by the designee or a
finding of good cause by the military judge.
(E) If the individual appointed to assume the
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victim’s rights is excused, the military may designate a
successor consistent with this rule.
Discussion
The term “victim of an offense under the UCMJ” has the same
meaning as the term “victim of an offense under this chapter” in
Article 6b.
(b) Rules of court; contempt. The military judge may:
(1) Subject to R.C.M. 108, promulgate and enforce
rules of court.
(2) Subject to R.C.M. 809, exercise contempt power.
(c) Obtaining evidence. The court-martial may act to
obtain evidence in addition to that presented by the
parties. The right of the members to have additional
evidence obtained is subject to an interlocutory ruling
by the military judge.
Discussion
The members may request and the military judge may require that a
witness be recalled, or that a new witness be summoned, or other
evidence produced. The members or military judge may direct trial
counsel to make an inquiry along certain lines to discover and
produce additional evidence. See also Mil. R. Evid. 614. In taking
such action, the court-martial must not depart from an impartial role.
(d) Uncharged offenses. If during the trial there is
evidence that the accused may be guilty of an untried
offense not alleged in any specification before the
court-martial, the court-martial shall proceed with the
trial of the offense charged.
Discussion
A report of the matter may be made to the referral authority after
trial.. If charges are preferred for an offense indicated by the
evidence referred to in this subsection, no member of the court-
martial who participated in the first trial should sit in any later trial.
Such a member would ordinarily be subject to a challenge for cause.
See R.C.M. 912. See also Mil. R. Evid. 105 concerning instructing
the members on evidence of uncharged misconduct.
(e) Interlocutory questions and questions of law.
(1) Rulings by the military judge.
(A) Finality of rulings. Any ruling by the military
judge upon a question of law, including a motion for a
finding of not guilty, or upon any interlocutory
question is final.
(B) Changing a ruling. The military judge may
change a ruling made by that or another military judge
in the case except a previously granted motion for a
finding of not guilty, at any time during the trial.
(C) Article 39(a) sessions. When required by this
Manual or otherwise deemed appropriate by the
military judge, interlocutory questions or questions of
law shall be presented and decided at sessions held
without members under R.C.M. 803.
Discussion
Sessions without members are appropriate for interlocutory
questions, questions of law, and instructions. See also Mil. R. Evid.
103, 304, 311, 321. Such sessions should be used to the extent
possible consistent with the orderly, expeditious progress of the
proceedings.
(2) [Reserved]
(3) [Reserved]
(4) Standard of proof. Questions of fact in an
interlocutory question shall be determined by a
preponderance of the evidence, unless otherwise stated
in this Manual. In the absence of a rule in this Manual
assigning the burden of persuasion, the party making
the motion or raising the objection shall bear the
burden of persuasion.
Discussion
A ruling on an interlocutory question should be preceded by any
necessary inquiry into the pertinent facts and law. For example, the
party making the objection, motion, or request may be required to
furnish evidence or legal authority in support of the contention. An
interlocutory issue may have a different standard of proof. See, for
example, Mil. R. Evid. 314(e)(5), which requires consent for a search
to be proved by clear and convincing evidence.
Most of the common motions are discussed in specific rules in
this Manual, and the burden of persuasion is assigned therein. The
prosecution usually bears the burden of persuasion (see Mil. R. Evid.
304(f)(6); 311(d)(5); see also R.C.M. 905 through 907) once an issue
has been raised. What “raises” an issue may vary with the issue.
Some issues may be raised by a timely motion or objection. See, e.g.,
Mil. R. Evid. 304(f). Others may not be raised until the defense has
made an offer of proof or presented evidence in support of its
position. See, e.g., Mil. R. Evid. 311(d)(4)(B). The rules in this
Manual and relevant decisions should be consulted when a question
arises as to whether an issue is raised, as well as which side has the
burden of persuasion. The military judge may require a party to
clarify a motion or objection or to make an offer of proof, regardless
of the burden of persuasion, when it appears that the motion or
objection is vague, inapposite, irrelevant, or spurious.
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(5) Scope. Subsection (e) of this rule applies to the
disposition of questions of law and interlocutory
questions arising during trial except the question
whether a challenge should be sustained.
Discussion
Questions of law and interlocutory questions include all issues which
arise during trial other than the findings (that is, guilty or not guilty),
sentence, and administrative matters such as declaring recesses and
adjournments. A question may be both interlocutory and a question
of law. Challenges are specifically covered in R.C.M. 902 and 912.
Questions of the applicability of a rule of law to an undisputed
set of facts are normally questions of law. Similarly, the legality of
an act is normally a question of law. For example, the legality of an
order when disobedience of an order is charged, the legality of
restraint when there is a prosecution for breach of arrest, or the
sufficiency of warnings before interrogation are normally questions
of law. It is possible, however, for such questions to be decided
solely upon some factual issue, in which case they would be
questions of fact. For example, the question of what warnings, if any,
were given by an interrogator to a suspect would be a factual
question.
A question is interlocutory unless the ruling on it would finally
decide whether the accused is guilty. Questions which may
determine the ultimate issue of guilt are not interlocutory. An issue
may arise as both an interlocutory question and a question which may
determine the ultimate issue of guilt. An issue is not purely
interlocutory if an accused raises a defense or objection and the
disputed facts involved determine the ultimate question of guilt. For
example, if during a trial for desertion the accused moves to dismiss
for lack of jurisdiction and presents some evidence that the accused
is not a member of an armed force, the accused’s status as a military
person may determine the ultimate question of guilt because status is
an element of the offense. If the motion is denied, the disputed facts
must be resolved by each member in deliberation upon the findings.
(The accused’s status as a Servicemember would have to be proved
by a preponderance of the evidence to uphold jurisdiction, see
R.C.M. 907, but beyond a reasonable doubt to permit a finding of
guilty.) If, on the other hand, the accused was charged with larceny
and presented the same evidence as to military status, the evidence
would bear only upon amenability to trial and the issue would be
disposed of solely as an interlocutory question.
Interlocutory questions may be questions of fact or questions of
law.
(f) Rulings on record. All sessions involving rulings or
instructions made or given by the military judge shall
be made a part of the record. All rulings and
instructions shall be made or given in open session in
the presence of the parties and the members, except as
otherwise may be determined in the discretion of the
military judge.
Discussion
See R.C.M. 808 and 1112 concerning preparation of the record of
trial.
(g) Effect of failure to raise defenses or objections.
Failure by a party to raise defenses or objections or to
make requests or motions which must be made at the
time set by this Manual or by the military judge under
authority of this Manual, or prior to any extension
thereof made by the military judge, shall constitute
forfeiture unless the applicable rule provides that
failure to raise the defense or objection constitutes
waiver.
Rule 802. Conferences
(a) In general. The military judge may, upon request of
any party or sua sponte, order one or more conferences
with the parties to consider such matters as will
promote a fair and expeditious trial. Such conferences
may take place before or after referral, as applicable.
Discussion
The military judge may hold a conference when detailed to the court-
martial following referral as well as after being detailed to conduct
any pre-referral proceeding pursuant to Article 30a. See R.C.M. 309.
Conferences between the military judge and counsel may be
held when necessary before or during trial. The purpose of such
conference is to inform the military judge of anticipated issues and
to expeditiously resolve matters on which the parties can agree, not
to litigate or decide contested issues. No party may be compelled to
resolve any matter at a conference. See R.C.M. 802(c).
A conference may be appropriate in order to resolve scheduling
difficulties, so that witnesses and members are not unnecessarily
inconvenienced. Matters which will ultimately be in the military
judge’s discretion, such as conduct of voir dire, seating arrangements
in the courtroom, or procedures when there are multiple accused may
be resolved at a conference. Conferences may be used to advise the
military judge of issues or problems, such as unusual motions or
objections, which are likely to arise during trial.
Occasionally it may be appropriate to resolve certain issues, in
addition to routine or administrative matters, if this can be done with
the consent of the parties. For example, a request for a witness which,
if litigated and approved at trial, would delay the proceedings and
cause expense or inconvenience, might be resolved at a conference.
Note, however, that this could only be done by an agreement of the
parties and not by a binding ruling of the military judge. Such a
resolution must be included in the record. See R.C.M. 802(b).
A military judge may not participate in negotiations relating to
pleas. See R.C.M. 705 and Mil. R. Evid. 410.
No place or method is prescribed for conducting a conference.
A conference may be conducted by remote means or similar
technology consistent with the definition in R.C.M. 914B.
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(b) Matters on record. Conferences need not be made
part of the record, but matters agreed upon at a
conference shall be included in the record orally or in
writing. Failure of a party to object at trial to failure to
comply with this subsection shall waive this
requirement.
(c) Rights of parties. No party may be prevented under
this rule from presenting evidence or from making any
argument, objection, or motion at trial.
(d) Accused’s presence. The presence of the accused is
neither required nor prohibited at a conference.
Discussion
Normally the defense counsel may be presumed to speak for the
accused.
(e) Admission. No admissions made by the accused or
defense counsel at a conference shall be used against
the accused unless the admissions are reduced to
writing and signed by the accused and defense counsel.
(f) Limitations. This rule shall not be invoked in the
case of an accused who is not represented by counsel.
Rule 803. Court-martial sessions without members
under Article 39(a)
A military judge who has been detailed to the court-
martial may, under Article 39(a), after service of
charges, call the court-martial into session without the
presence of members. Such sessions may be held
before and after assembly of the court-martial, and
when authorized in these rules, after adjournment and
before entry of the judgment in the record. All such
sessions are a part of the trial and shall be conducted in
the presence of the accused, defense counsel, and trial
counsel, in accordance with R.C.M. 804 and 805, and
shall be made a part of the record.
Discussion
The purpose of Article 39(a) is “to give statutory sanction to pretrial
and other hearings without the presence of the members concerning
those matters which are amenable to disposition on either a tentative
or final basis by the military judge.” The military judge may, and
ordinarily should, call the court-martial into session without
members to ascertain the accused’s understanding of the right to
counsel and forum selection, and the accused’s choices with respect
to these matters; dispose of interlocutory matters; hear objections
and motions; rule upon other matters that may legally be ruled upon
by the military judge, such as admitting evidence; and perform other
procedural functions which do not require the presence of members.
See, e.g., R.C.M. 901–910. The military judge may hold the
arraignment, receive pleas, enter findings of guilty upon an accepted
plea of guilty, and conduct presentencing proceedings under R.C.M.
1001 without the members present.
Evidence may be admitted and process, including a subpoena,
may be issued to compel attendance of witnesses and production of
evidence at such sessions. See R.C.M. 703.
Article 39(a) authorizes sessions only after charges have been
referred to trial and served on the accused, but the accused has an
absolute right to object, in time of peace, to any session until the
period prescribed by Article 35 has run.
See R.C.M. 804 concerning waiver by the accused of the right
to be present. See also R.C.M. 802 concerning conferences.
See R.C.M. 309 concerning proceedings conducted before
referral under Article 30a.
Rule 804. Presence at court-martial proceedings
(a) Accused.
(1) Presence required. The accused shall be present
at the arraignment, the time of the plea, every stage of
the trial including sessions conducted under Article
39(a), voir dire and challenges of members, the return
of the findings, presentencing proceedings, and post-
trial sessions, if any, except as otherwise provided by
this rule. Attendance at these proceedings shall
constitute the accused’s appointed place of duty and,
with respect to the accused’s travel allowances, none
of these proceedings shall constitute disciplinary
action. This does not in any way limit authority to
implement restriction, up to and including
confinement, as necessary in accordance with R.C.M.
304 or R.C.M. 305.
(A) Appearance. The accused shall be properly
attired in the uniform or dress prescribed by the
military judge. An accused service member shall wear
the insignia of grade and may wear any decorations,
emblems, or ribbons to which the accused is entitled.
The accused and defense counsel are responsible for
ensuring that the accused is properly attired; however,
upon request, the accused’s commander shall render
such assistance as may be reasonably necessary to
ensure that the accused is properly attired.
Discussion
An accused has the right, as well as the obligation, to present a good
military appearance at trial. An accused who refuses to present a
proper military appearance before a court-martial may be compelled
to do so.
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(B) Custody. Responsibility for maintaining
custody or control of an accused before and during trial
may be assigned, subject to R.C.M. 304 and 305, and
R.C.M. 804(c)(3), under such regulations as the
Secretary concerned may prescribe.
(C) Restraint. Physical restraint shall not be
imposed on the accused during open sessions of the
court-martial unless prescribed by the military judge.
(2) Continuation of proceeding without presence.
The further progress of the trial to and including the
return of the findings and, if necessary, determination
of a sentence shall not be prevented and the accused
shall be considered to have waived the right to be
present whenever an accused, initially present:
(A) Is voluntarily absent after arraignment
(whether or not informed by the military judge of the
obligation to remain during the trial); or
(B) After being warned by the military judge that
disruptive conduct will cause the accused to be
removed from the courtroom, persists in conduct which
is such as to justify exclusion from the courtroom.
Discussion
Express waiver. The accused may expressly waive the right to be
present at trial proceedings. There is no right to be absent, however,
and the accused may be required to be present over objection. Thus,
an accused cannot frustrate efforts to identify the accused at trial by
waiving the right to be present. The right to be present is so
fundamental, and the Government’s interest in the attendance of the
accused so substantial, that the accused should be permitted to waive
the right to be present only for good cause, and only after the military
judge explains to the accused the right, and the consequences of
forgoing it, and secures the accused’s personal consent to proceeding
without the accused.
Voluntary absence. In any case the accused may forfeit the
right to be present by being voluntarily absent after arraignment.
“Voluntary absence” means voluntary absence from trial. For an
absence from court-martial proceedings to be voluntary, the accused
must have known of the scheduled proceedings and intentionally
missed them. For example, although an accused service member
might voluntarily be absent without authority, this would not justify
proceeding with a court-martial in the accused’s absence unless the
accused was aware that the court-martial would be held during the
period of the absence.
An accused who is in military custody or otherwise subject to
military control at the time of trial or other proceeding may not
properly be absent from the trial or proceeding without securing the
permission of the military judge on the record.
The prosecution has the burden to establish by a preponderance
of the evidence that the accused’s absence from trial is voluntary.
Voluntariness may not be presumed, but it may be inferred,
depending on the circumstances. For example, it may be inferred, in
the absence of evidence to the contrary, that an accused who was
present when the trial recessed and who knew when the proceedings
were scheduled to resume, but who nonetheless is not present when
court reconvenes at the designated time, is absent voluntarily.
Where there is some evidence that an accused who is absent for
a hearing or trial may lack mental capacity to stand trial, capacity to
voluntarily waive the right to be present for trial must be shown. See
R.C.M. 909.
Subsection (1) authorizes but does not require trial to proceed
in the absence of the accused upon the accused’s voluntary absence.
When an accused is absent from trial after arraignment, a
continuance or a recess may be appropriate, depending on all the
circumstances.
Removal for disruption. Trial may proceed without the
presence of an accused who has disrupted the proceedings, but only
after at least one warning by the military judge that such behavior
may result in removal from the courtroom. In order to justify removal
from the proceedings, the accused’s behavior should be of such a
nature as to materially interfere with the conduct of the proceedings.
The military judge should consider alternatives to removal of a
disruptive accused. Such alternatives include physical restraint (such
as binding, shackling, and gagging) of the accused, or physically
segregating the accused in the courtroom. Such alternatives need not
be tried before removing a disruptive accused under subsection (2).
Removal may be preferable to such an alternative as binding and
gagging, which can be an affront to the dignity and decorum of the
proceedings.
Disruptive behavior of the accused may also constitute
contempt. See R.C.M. 809. When the accused is removed from the
courtroom for disruptive behavior, the military judge should—
(A) Afford the accused and defense counsel ample
opportunity to consult throughout the proceedings. To this end, the
accused should be held or otherwise required to remain in the vicinity
of the trial, and frequent recesses permitted to allow counsel to
confer with the accused.
(B) Take such additional steps as may be reasonably
practicable to enable the accused to be informed about the
proceedings. Although not required, technological aids, such as
closed-circuit television or audio transmissions, may be used for this
purpose.
(C) Afford the accused a continuing opportunity to return to
the courtroom upon assurance of good behavior. To this end, the
accused should be brought to the courtroom at appropriate intervals,
and offered the opportunity to remain upon good behavior.
(D) Ensure that the reasons for removal appear in the record.
(3) Remote presence of the accused.
(A) Except as provided in R.C.M. 804(a)(3)(B),
for Article 39(a) sessions, the military judge may order
the accused be present via remote means through the
use of audiovisual technology. Use of such audiovisual
technology will satisfy the “presence” requirement of
the accused only when the accused has a defense
counsel physically present at the accused’s location or
when the accused consents to presence by remote
means with the opportunity for confidential
consultation with defense counsel during the
proceeding. Such technology may include two or more
remote sites as long as all parties can see and hear each
other.
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(B) The accused may be present via remote means
through the use of audiovisual technology for a plea
inquiry under R.C.M. 910(d), (e) and (f), and
presentencing proceedings before a military judge
under R.C.M. 1001, only when there are exceptional
circumstances that interfere with the normal
administration of military justice, as determined by the
military judge. The accused must consent to the use of
audiovisual technology and defense counsel must be
physically present at the accused’s location for the
hearing.
(4) Voluntary absence for limited purpose of child
testimony.
(A) Election by accused. Following a
determination by the military judge that remote live
testimony of a child is appropriate pursuant to Mil. R.
Evid. 611(d)(3), the accused may elect to be
voluntarily absent from the courtroom in order to
preclude the use of procedures described in R.C.M.
914A.
(B) Procedure. The accused’s absence will be
conditional upon the accused being able to view the
witness’ testimony from a remote location. Normally,
transmission of the testimony will include a system that
will transmit the accused’s image and voice into the
courtroom from a remote location as well as
transmission of the child’s testimony from the
courtroom to the accused’s location. A one-way
transmission may be used if deemed necessary by the
military judge. The accused will also be provided
private, contemporaneous communication with his
counsel. The procedures described herein shall be
employed unless the accused has made a knowing and
affirmative waiver of these procedures.
(C) Effect on accused’s rights generally. An
election by the accused to be absent pursuant to R.C.M.
804(a)(4)(A) shall not otherwise affect the accused’s
right to be present at the remainder of the trial in
accordance with this rule.
Discussion
See paragraph 030706 of the Joint Travel Regulations Uniformed
Service Members and DoD Civilian Employees, dated 1 September
2023.
(b) Military judge.
(1) No court-martial proceeding, except the
deliberations of the members, may take place in the
absence of the military judge. The military judge may
attend Article 39(a) sessions via remote means through
the use of audiovisual technology.
(2) When a new military judge is detailed under
R.C.M. 505(e)(2) after the presentation of evidence on
the merits has begun in a trial before a military judge
alone, trial may not proceed unless the accused
requests, and the new military judge approves, trial by
military judge alone, and a verbatim record of the
testimony and evidence or a stipulation thereof is read
to or played for the new military judge in the presence
of the accused and counsel for both sides, or the trial
proceeds as if no evidence had been presented.
(c) Members.
(1) Unless the accused is tried or sentenced by
military judge alone, no court-martial proceeding may
take place in the absence of any detailed member
except: Article 39(a) sessions under R.C.M. 803;
temporary excusal under R.C.M. 911(b); examination
of members under R.C.M. 912(d); when the member
has been excused under R.C.M. 505, 912(f), or 912A;
as otherwise provided in R.C.M. 1104(d)(1); or as
otherwise provided in this Manual.
Discussion
See R.C.M. 501 and R.C.M. 505 concerning the minimum number
of members and the procedures to follow when members are
dismissed.
(2) When after presentation of evidence on the merits
has begun, a new member is impaneled under R.C.M.
912A, trial may not proceed unless the testimony and
evidence previously admitted on the merits, if recorded
verbatim, is read to or played for the new member in
the presence of the military judge, the accused, and
counsel for both sides, or, if not recorded verbatim, and
in the absence of a stipulation as to such testimony and
evidence, the trial proceeds as if no evidence has been
presented.
Discussion
When a new member is detailed, the military judge should give such
instructions as may be appropriate. See also R.C.M. 912 concerning
voir dire and challenges.
(d) Counsel. As long as at least one qualified counsel
for each party is present, other counsel for each party
may be absent from a court-martial session. In the case
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of a court-martial requiring the detailing of a special
trial counsel, the presence of a special trial counsel is
required unless a special trial counsel determines
otherwise and another trial counsel, who is qualified
according to Article 27(b), is also present. An assistant
counsel who lacks the qualifications necessary to serve
as counsel for a party may not act at a session in the
absence of such qualified counsel. For purposes of
Article 39(a) sessions and subject to R.C.M. 804(a)(3),
the presence of counsel may be satisfied via remote
means through the use of audiovisual technology.
Discussion
See R.C.M. 502(d) concerning qualifications of counsel.
Ordinarily, no court-martial proceeding should take place if
any defense or assistant defense counsel is absent unless the accused
expressly consents to the absence. The military judge may, however
proceed in the absence of one or more defense counsel, without the
consent of the accused, if the military judge finds that, under the
circumstances, a continuance is not warranted and that the accused’s
right to be adequately represented would not be impaired.
See R.C.M. 502(d)(5), 505(d)(2), and 506(c) concerning
withdrawal or substitution of counsel. See R.C.M. 506(d) concerning
the right of the accused to proceed without counsel.
(e) Victim and Victim’s Counsel. Subject to R.C.M.
914B, at the discretion of the military judge and for
good cause, the victim and victim’s counsel may be
present through the use of audiovisual technology.
Discussion
The ability of a victim to attend a court-martial proceeding via
remote means is not intended to circumvent an accused’s
constitutional rights.
Rule 805. [Reserved]
Rule 806. Public trial
(a) In general. Except as otherwise provided in this
rule, courts-martial shall be open to the public. For
purposes of this rule, “public” includes members of
both the military and civilian communities.
Discussion
Because of the requirement for public trials, courts-martial must be
conducted in facilities that can accommodate a reasonable number
of spectators. Military exigencies may occasionally make attendance
at courts-martial difficult or impracticable, as, for example, when a
court-martial is conducted on a ship at sea or in a unit in a combat
zone. These exigencies do not violate this rule. However, such
exigencies should not be manipulated to prevent attendance at a
court-martial. The requirements of this rule may be met even though
only service members are able to attend a court-martial. Although
not required, service members should be encouraged to attend
courts-martial.
When public access to a court-martial is limited for some
reason, including lack of space, special care must be taken to avoid
arbitrary exclusion of specific groups or persons. This may include
allocating a reasonable number of seats to members of the press and
to relatives of the accused, and establishing procedures for entering
and exiting from the courtroom. See also R.C.M. 806(b). There is no
requirement that there actually be spectators at a court-martial.
The fact that a trial is conducted with members does not make
it a public trial.
(b) Control of spectators and closure.
(1) Limitation on number of spectators. In order to
maintain the dignity and decorum of the proceedings
or for other good cause, the military judge may
reasonably limit the number of spectators in, and the
means of access to, the courtroom, and exclude specific
persons from the courtroom.
Discussion
The military judge must ensure that the dignity and decorum of the
proceedings are maintained and that the other rights and interests of
the parties and society are protected. Public access to a session may
be limited, specific persons may be excluded from the courtroom,
and, under unusual circumstances, a session may be closed.
Exclusion of specific persons, if unreasonable under the
circumstances, may violate the accused’s right to a public trial, even
though other spectators remain. Whenever specific persons or some
members of the public are excluded, exclusion must be limited in
time and scope to the minimum extent necessary to achieve the
purpose for which it is ordered. Prevention of over-crowding or noise
may justify limiting access to the courtroom. Disruptive or
distracting appearance or conduct may justify excluding specific
persons. Specific persons may be excluded when necessary to protect
witnesses from harm or intimidation. Access may be reduced when
no other means is available to relieve a witness’ inability to testify
due to embarrassment or extreme nervousness. Witnesses will
ordinarily be excluded from the courtroom so that they cannot hear
the testimony of other witnesses. See Mil. R. Evid. 615.
(2) Exclusion of spectators. When excluding specific
persons, the military judge must make findings on the
record establishing the reason for the exclusion, the
basis for the military judge’s belief that exclusion is
necessary, and that the exclusion is as narrowly
tailored as possible.
(3) Right of victim not to be excluded. A victim of an
alleged offense committed by the accused may not be
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excluded from any public hearing or proceeding in a
court-martial relating to the offense unless the military
judge, after receiving clear and convincing evidence,
determines that testimony by the victim would be
materially altered if the victim heard other testimony at
that hearing or proceeding.
Discussion
Victims are also entitled to notice of all such proceedings, the right
to confer with counsel for the Government, and the right to be
reasonably protected from the accused. See Article 6b. For purposes
of this rule, the term “victim of an alleged offense” has the same
meaning as the term “victim of an offense under this chapter” in
Article 6b.
(4) Closure. Courts-martial shall be open to the
public unless (A) there is a substantial probability that
an overriding interest will be prejudiced if the
proceedings remain open; (B) closure is no broader
than necessary to protect the overriding interest; (C)
reasonable alternatives to closure were considered and
found inadequate; and (D) the military judge makes
case-specific findings on the record justifying closure.
Discussion
The military judge is responsible for protecting both the accused’s
right to, and the public’s interest in, a public trial. A court-martial
session is “closed” when no member of the public is permitted to
attend. A court-martial is not “closed” merely because the exclusion
of certain individuals results in there being no spectators present, as
long as the exclusion is not so broad as to effectively bar everyone
who might attend the sessions and is put into place for a proper
purpose.
A session may be closed over the objection of the accused or
the public upon meeting the constitutional standard set forth in this
Rule. See also Mil. R. Evid. 412(c)(2), 505(k)(3), and 513(e)(2).
The accused may waive his right to a public trial. The fact that
the prosecution and defense jointly seek to have a session closed does
not, however, automatically justify closure, for the public has a right
in attending courts-martial. Opening trials to public scrutiny reduces
the chance of arbitrary and capricious decisions and enhances public
confidence in the court-martial process.
The most likely reason for a defense request to close court-
martial proceedings is to minimize the potentially adverse effect of
publicity on the trial. For example, a pretrial Article 39(a) hearing at
which the admissibility of a confession will be litigated may, under
some circumstances, be closed, in accordance with this Rule, in order
to prevent disclosure to the public (and hence to potential members)
of the very evidence that may be excluded. When such publicity may
be a problem, a session should be closed only as a last resort.
There are alternative means of protecting the proceedings from
harmful effects of publicity, including a thorough voir dire (see
R.C.M. 912), and, if necessary, a continuance to allow the harmful
effects of publicity to dissipate (see R.C.M. 906(b)(1)). Alternatives
that may occasionally be appropriate and are usually preferable to
closing a session include: directing members not to read, listen to, or
watch any accounts concerning the case; issuing a protective order
(see R.C.M. 806(d)); selecting members from recent arrivals in the
command, or from outside the immediate area (see R.C.M.
503(a)(3)); changing the place of trial (see R.C.M. 906(b)(11)); or
sequestering the members.
(c) Photography and broadcasting prohibited. Video
and audio recording and the taking of photographs—
except for the purpose of preparing the record of trial—
in the courtroom during the proceedings and radio or
television broadcasting of proceedings from the
courtroom shall not be permitted. However, the
military judge may, as a matter of discretion permit
contemporaneous closed-circuit video or audio
transmission to permit viewing or hearing by an
accused removed under R.C.M. 804 or by spectators
when courtroom facilities are inadequate to
accommodate a reasonable number of spectators.
(d) Protective orders. The military judge may, upon
request of any party or sua sponte, issue an appropriate
protective order, in writing, to prevent parties and
witnesses from making extrajudicial statements that
present a substantial likelihood of material prejudice to
a fair trial by impartial members.
Discussion
A protective order may proscribe extrajudicial statements by
counsel, parties, and witnesses that might divulge prejudicial matter
not of public record in the case. Other appropriate matters may also
be addressed by such a protective order. Before issuing a protective
order, the military judge must consider whether other available
remedies would effectively mitigate the adverse effects that any
publicity might create, and consider such an order’s likely
effectiveness in ensuring an impartial court-martial panel. A military
judge should not issue a protective order without first providing
notice to the parties and an opportunity to be heard. The military
judge must state on the record the reasons for issuing the protective
order. If the reasons for issuing the order change, the military judge
may reconsider the continued necessity for a protective order
Rule 807. Oaths
(a) Definition. “Oath” includes “affirmation.”
(b) Oaths in courts-martial.
(1) Who must be sworn.
(A) Court-martial personnel. The military judge,
members of a general or special court-martial, trial
counsel, assistant trial counsel, defense counsel,
associate defense counsel, assistant defense counsel,
reporter, interpreter, and escort shall take an oath to
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perform their duties faithfully. For purposes of this
rule, “defense counsel,” “associate defense counsel,”
and “assistant defense counsel,” include detailed and
individual military and civilian counsel.
Discussion
Article 42(a) provides that regulations of the Secretary concerned
shall prescribe: the form of the oath; the time and place of the taking
thereof; the manner of recording it; and whether the oath shall be
taken for all cases in which the duties are to be performed or in each
case separately. In the case of certified legal personnel (Article 26(b);
Article 27(b)), these regulations may provide for the administration
of an oath on a one-time basis. See also R.C.M. 813 and 901
concerning the point in the proceedings at which it is ordinarily
determined whether the required oaths have been taken or are then
administered.
(B) Witnesses. Each witness before a court-martial
shall be examined on oath.
Discussion
See R.C.M. 307 concerning the requirement for an oath in preferral
of charges. See R.C.M. 405 and 702 concerning the requirements for
an oath in Article 32 preliminary hearings and depositions.
An accused making an unsworn statement is not a “witness.”
See R.C.M. 1001(d)(2)(C).
A victim of an offense for which the accused has been found
guilty is not a “witness” when making an unsworn statement during
the presentencing phase of a court-martial. See R.C.M. 1001(c).
(2) Procedure for administering oaths. Any
procedure which appeals to the conscience of the
person to whom the oath is administered and which
binds that person to speak the truth, or, in the case of
one other than a witness, properly to perform certain
duties, is sufficient.
Discussion
See Article 136 concerning persons authorized to administer oaths.
When the oath is administered in a session to the military judge,
members, or any counsel, all persons in the courtroom should stand.
In those rare circumstances in which the trial counsel testifies as a
witness, the military judge administers the oath.
Unless otherwise prescribed by the Secretary concerned the
forms in this Discussion may be used, as appropriate, to administer
an oath.
(A) Oath for military judge. When the military judge is not
previously sworn, the trial counsel will administer the following oath
to the military judge:
“Do you (swear) (affirm) that you will faithfully and
impartially perform, according to your conscience and the laws
applicable to trial by court-martial, all the duties incumbent upon you
as military judge of this court-martial (, so help you God)?”
(B) Oath for members. The following oath, as appropriate, will
be administered to the members by the trial counsel:
“Do you (swear) (affirm) that you will answer truthfully the
questions concerning whether you should serve as a member of this
court-martial; that you will faithfully and impartially try, according
to the evidence, your conscience, and the laws applicable to trial by
court-martial, the case of the accused now before this court; and that
you will not disclose or discover the vote or opinion of any particular
member of the court (upon a challenge or) upon the findings or
sentence unless required to do so in due course of law (, so help you
God)?”
(C) Oaths for counsel. When counsel for either side, including
any associate or assistant, is not previously sworn the following oath,
as appropriate, will be administered by the military judge:
“Do you (swear) (affirm) that you will faithfully perform all
the duties of (trial) (assistant trial) (defense) (associate defense)
(assistant defense) counsel in the case now in hearing (, so help you
God)?”
(D) Oath for reporter. The trial counsel will administer the
following oath to every reporter of a court- martial who has not been
previously sworn:
“Do you (swear) (affirm) that you will faithfully perform the
duties of reporter to this court-martial (, so help you God)?”
(E) Oath for interpreter. The trial counsel or the summary
court-martial shall administer the following oath to every interpreter
in the trial of any case before a court-martial:
“Do you (swear) (affirm) that in the case now in hearing you
will interpret truly the testimony you are called upon to interpret (,
so help you God)?”
(F) Oath for witnesses. The trial counsel or the summary court-
martial will administer the following oath to each witness before the
witness first testifies in a case:
“Do you (swear) (affirm) that the evidence you shall give in the
case now in hearing shall be the truth, the whole truth, and nothing
but the truth (, so help you God)?”
(G) Oath for escort. The escort on views or inspections by the
court-martial will, before serving, take the following oath, which will
be administered by the trial counsel:
“Do you (swear) (affirm) that you will escort the court-m
artial
and will well and truly point out to them (the place in which the
offense charged in this case is alleged to have been committed) ( );
and that you will not speak to the members concerning (the alleged
offense) ( ),
except to describe (the place aforesaid) ( ) (, so
help you God)?”
Rule 808. Record of trial
Trial counsel of a general or special court-martial shall
take such action as may be necessary to ensure that a
record that will meet the requirements of R.C.M. 1112
can be prepared.
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Rule 809. Contempt proceedings
(a) In general. The contempt power under Article 48
may be exercised by a judicial officer specified under
subsection (a) of that article.
Discussion
Under Article 48, the contempt power may be exercised by the
following judicial officers: any judge of the Court of Appeals for the
Armed Forces and any judge of a Court of Criminal Appeals under
Article 66; any military judge detailed to a court-martial, a provost
court, a military commission, or any other proceeding under the
UCMJ; any military magistrate designated to preside under Article
19; and the president of a court of inquiry.
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 judicial officer during the
proceeding or in the 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 or other proceeding while it is in session. “Indirect” or
“constructive” contempt is non-compliance with lawful writs,
processes, orders, rules, decrees, or commands of the judicial officer.
A “direct” or “indirect” contempt may be actually seen or heard by
the judicial officer, 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 judicial officer, 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 for
contempt are more extensive. See R.C.M. 809(b)(2).
The words “any person,” as used in Article 48, include all
persons, whether or not subject to military law, except the military
judge, members, and foreign nationals outside the territorial limits of
the United States who are not subject to the UCMJ. 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 contempt may be separately punished.
A person subject to the UCMJ 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 85, Part IV; see also Article 131d. 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.
(b) Method of disposition.
(1) Summary disposition. When conduct constituting
contempt is directly witnessed by the judicial officer
during the proceeding, the conduct may be punished
summarily; otherwise, the provisions of paragraph
(b)(2) shall apply. If a contempt is punished
summarily, the judicial officer shall ensure that the
record accurately reflects the misconduct that was
directly witnessed by the judicial officer during the
proceeding.
(2) Disposition upon notice and hearing. When the
conduct apparently constituting contempt is not
directly witnessed by the judicial officer, the alleged
offender shall be brought before the judicial officer
outside the presence of any members and informed
orally or in writing of the alleged contempt. The
alleged offender shall be given a reasonable
opportunity to present evidence, including calling
witnesses. The alleged offender shall have the right to
be represented by counsel and shall be so advised. The
contempt must be proved beyond a reasonable doubt
before it may be punished.
(c) Procedure. The judicial officer shall in all cases
determine whether to punish for contempt and, if so,
what the punishment shall be. The judicial officer shall
also determine when during the court-martial or other
proceeding the contempt proceedings shall be
conducted. In the case of a court of inquiry, the judicial
officer shall consult with the appointed legal advisor or
a judge advocate before imposing punishment for
contempt.
(d) Record; review.
(1) Record. A record of the contempt proceedings
shall be part of the record of the court-martial or other
proceeding during which it occurred. If the person was
held in contempt, then a separate record of the
contempt proceedings shall be prepared and forwarded
for review in accordance with paragraph (2) or (3), as
applicable.
(2) Review by convening authority. If the contempt
punishment was imposed by a court of inquiry, the
contempt proceedings shall be forwarded to the
convening authority for review. The convening
authority may approve or disapprove the contempt
finding and all or part of the sentence. The action of the
convening authority is not subject to further review or
appeal.
(3) Review by Court of Criminal Appeals. If the
contempt punishment was imposed by a military judge
or military magistrate, the alleged offender may file an
appeal to the Court of Criminal Appeals in accordance
with the uniform rules of procedure for the Courts of
Criminal Appeals. The Court of Criminal Appeals may
set aside the finding or the sentence, in whole or in part.
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Discussion
The appeal and defense of a contempt punishment will normally be
handled by the Service appellate divisions. In unusual circumstances,
the Judge Advocate General may appoint counsel to appeal and
defend a contempt punishment.
Decisions of the Court of Criminal Appeals may be reviewed
by the Court of Appeals for the Armed Forces and the Supreme Court
of the United States in accordance with the rules of appellate
procedure for each respective Court.
(e) Sentence.
(1) In general. The place of confinement for a
civilian or military person who is held in contempt and
is to be punished by confinement shall be designated
by the judicial officer who imposed punishment for
contempt, in accordance with regulations prescribed by
the Secretary concerned. A judicial officer who
imposes punishment for contempt may delay
announcing the sentence after a finding of contempt to
permit the person involved to continue to participate in
the proceedings.
(2) Maximum punishment. If imposed by a court of
inquiry, the maximum punishment that may be
imposed for contempt is a fine of $500. Otherwise the
maximum punishment that may be imposed for
contempt is confinement for 30 days, a fine of $1,000,
or both.
(3) Execution of sentence when imposed by court of
inquiry. A sentence of a fine pursuant to a finding of
contempt by a court of inquiry shall not become
effective until approved by the convening authority.
(4) Execution of sentence when imposed by military
judge or magistrate.
(A) A sentence of confinement pursuant to a
finding of contempt by a military judge or military
magistrate shall begin to run when it is announced
unless—
(i) the person held in contempt notifies the
judicial officer of an intent to file an appeal; and
(ii) the judicial officer, in the exercise of the
judicial officer’s discretion, defers the sentence
pending action by the Court of Criminal Appeals under
paragraph (d)(3).
(B) A sentence of a fine pursuant to a finding of
contempt by a military judge or military magistrate
shall become effective when it is announced.
Discussion
The immediate commander of the person held in contempt, or, in the
case of a civilian, the convening authority should be notified
immediately so that the necessary action on the sentence may be
taken. See R.C.M. 1102.
(f) Informing person held in contempt. The person held
in contempt shall be informed by the judicial officer in
writing of the holding and sentence, if any, of the
judicial officer, and of the applicable procedures and
regulations concerning execution and review of the
contempt punishment. The reviewing authority shall
notify the person held in contempt and of the action of
the reviewing authority upon the sentence.
Rule 810. Procedures for rehearings, new trials,
other trials, and remands
(a) In general.
(1) Rehearings in full and new or other trials. In
rehearings which require findings on all charges and
specifications referred to a court-martial and in new or
other trials, the procedure shall be the same as in an
original trial except as otherwise provided in this rule.
(2) Rehearings on sentence only. In a rehearing on
sentence only, the procedure shall be the same as in an
original trial, except that the portion of the procedure
which ordinarily occurs after challenges and through
and including the findings is omitted, and except as
otherwise provided in this rule.
(A) Contents of the record. The contents of the
record of the original trial consisting of evidence
properly admitted on the merits relating to each offense
of which the accused stands convicted but not
sentenced may be established by any party whether or
not testimony so read is otherwise admissible under
Mil. R. Evid. 804(b)(1) and whether or not it was given
through an interpreter.
Discussion
The terms “rehearings,” “new trials,” “other trials,” and “remands”
generally have the following meanings: “rehearings” refers to a
proceeding ordered by an appellate or reviewing authority on the
findings and the sentence or on the sentence only; “new trials” refers
to proceedings under Article 73 because of newly discovered
evidence or fraud committed on the court; “other trials” refers to a
proceeding ordered to consider new charges and specifications when
the original proceedings are declared invalid because of a lack of
jurisdiction or failure of a charge to state an offense; and “remands”
connotes proceedings for determining issues raised on appeal which
require additional inquiry. Matters excluded from the record of the
original trial on the merits or improperly admitted on the merits must
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not be brought to the attention of the members as a part of the original
record of trial.
(B) Plea. The accused at a rehearing only on
sentence may not withdraw any plea of guilty upon
which findings of guilty are based.
(3) Combined rehearings. When a rehearing on
sentence is combined with a trial on the merits of one
or more specifications referred to the court-martial,
whether or not such specifications are being tried for
the first time or reheard, the trial will proceed first on
the merits. Reference to the offenses being reheard on
sentence is permissible only as provided for by the
Military Rules of Evidence. The presentencing
proceedings procedure shall be the same as at an
original trial, except as otherwise provided in this rule.
(4) Additional charges. A referral authority may
refer additional charges for trial together with charges
as to which a rehearing has been directed.
(5) Rehearing impracticable. If a rehearing was
authorized on one or more findings, the convening
authority, or in cases referred by a special trial counsel,
a special trial counsel, may dismiss the affected
charges if the referral authority determines that a
rehearing is impracticable. If the referral authority
dismisses such charges, a rehearing may proceed on
any remaining charges not dismissed by the referral
authority.
(6) Forwarding. When a rehearing, new trial, other
trial, or remand is ordered, a military judge shall be
detailed to the proceeding, and the matter forwarded to
the military judge. In the case of a summary court-
martial, when any proceeding is ordered, a new
summary court-martial officer shall be detailed.
(b) Composition.
(1) Members. No member of the court-martial which
previously heard the case may sit as a member of the
court-martial at any rehearing, new trial, or other trial
of the same case.
(2) Military judge. The military judge at a rehearing
may be the same military judge who presided over a
previous trial of the same case. The existence or
absence of a request for trial by military judge alone at
a previous hearing shall have no effect on the
composition of a court-martial on rehearing.
(3) Accused’s election. The accused at a rehearing or
new or other trial shall have the same right to request
enlisted members, an all-officer panel, or trial by
military judge alone as the accused would have at an
original trial.
Discussion
See R.C.M. 902; 903; and 1002(b).
(c) Examination of record of former proceedings. No
member may, upon a rehearing or upon a new or other
trial, examine the record of any former proceedings in
the same case except when permitted to do so by the
military judge after such matters have been received in
evidence.
(d) Sentence limitations.
(1) In general. Sentences at rehearings, new trials, or
other trials shall be adjudged within the limitations set
forth in R.C.M. 1003. Except as otherwise provided in
paragraph (d)(2), the new adjudged sentence for
offenses on which a rehearing, new trial, or other trial
has been ordered shall not exceed or be more severe
than the original sentence as set forth in the judgment
under R.C.M. 1111. When a rehearing or sentencing is
combined with trial on new charges, the maximum
punishment that may be imposed shall be the
maximum punishment under R.C.M. 1003 for the
offenses being reheard as limited in this rule, plus the
total maximum punishment under R.C.M. 1003 for any
new charges of which the accused has been found
guilty.
(2) Exceptions. A rehearing, new trial, or other trial
may adjudge any lawful sentence, without regard to the
sentence of the previous hearing or trial when, as to any
offense—
(A) the sentence prescribed for the offense is
mandatory;
(B) in the case of an “other trial,” the original trial
was invalid because a summary or special court-
martial tried an offense involving mandatory
punishment, an offense for which only a general court-
martial has jurisdiction, or one otherwise considered
capital;
(C) the rehearing was ordered or authorized for
any charge or specification for which a plea of guilty
was entered at the first hearing or trial and a plea of not
guilty was entered at the second hearing or trial to that
same charge or specification;
(D) the rehearing was ordered or authorized for
any charge or specification for which the sentence
announced or adjudged by the first court-martial was
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in accordance with a plea agreement and, at the
rehearing, the accused does not comply with the terms
of the agreement; or
(E) the rehearing was ordered or authorized after
an appeal by the Government under R.C.M. 1117.
(e) Definition. “Other trial” means another trial of a
case in which the original proceedings were declared
invalid because of lack of jurisdiction or failure of a
charge to state an offense. The authority ordering an
“other trial” shall state in the action the basis for
declaring the proceedings invalid.
(f) Remands.
(1) In general. A Court of Criminal Appeals may
order a remand for additional fact finding, or for other
reasons, in order to address a substantial issue on
appeal. A remand under this subsection is generally not
appropriate to determine facts or investigate matters
which could, through a party’s exercise of reasonable
diligence, have been investigated or considered at trial.
Such orders shall be directed to the Chief Trial Judge.
The Judge Advocate General, or the Judge Advocate
General’s delegate, shall designate a general court-
martial convening authority who shall provide support
for the hearing. In cases which were referred by a
special trial counsel, a special trial counsel designated
under regulations prescribed by the Secretary
concerned shall be notified of any remand.
(2) Detailing of military judge. When the Court of
Criminal Appeals orders a remand, the Chief Trial
Judge shall detail an appropriate military judge to the
matter and shall notify the commanding officer
exercising general court-martial convening authority
over the accused of the remand.
(3) Remand impracticable. If the general court-
martial convening authority designated under R.C.M.
810(f)(1) or, in cases which were referred by a special
trial counsel, a special trial counsel determines that the
remand is impracticable due to military exigencies or
other reasons, a Government appellate attorney shall
notify the Court of Criminal Appeals. Upon receipt of
such notification, the Court of Criminal Appeals may
take any action authorized by law that does not
materially prejudice the substantial rights of the
accused.
Discussion
The Court of Criminal Appeals may direct that the remand proceed,
or it may rescind the remand order and take any other appropriate
action that resolves the issue that was to be settled at the remand.
Such action may include modifying the findings or sentence. See
Article 66(f).
Rule 811. Stipulations
(a) In general. The parties may make an oral or written
stipulation to any fact, the contents of a document, or
the expected testimony of a witness.
(b) Authority to reject. The military judge may, in the
interest of justice, decline to accept a stipulation.
Discussion
Although the decision to stipulate should ordinarily be left to the
parties, the military judge should not accept a stipulation if there is
any doubt of the accused’s or any other party’s understanding of the
nature and effect of the stipulation. The military judge should also
refuse to accept a stipulation which is unclear or ambiguous. A
stipulation of fact which amounts to a complete defense to any
offense charged should not be accepted nor, if a plea of not guilty is
outstanding, should one which practically amounts to a confession,
except as described in the discussion under R.C.M. 811(c). If a
stipulation is rejected, the parties may be entitled to a continuance.
(c) Requirements. Before accepting a stipulation in
evidence, the military judge must be satisfied that the
parties consent to its admission.
Discussion
Ordinarily, before accepting any stipulation the military judge
should inquire to ensure that the accused understands the right not to
stipulate, understands the stipulation, and consents to it.
If the stipulation practically amounts to a confession to an
offense to which a not guilty plea is outstanding, it may not be
accepted unless the military judge ascertains: (A) from the accused
that the accused understands the right not to stipulate and that the
stipulation will not be accepted without the accused’s consent; that
the accused understands the contents and effect of the stipulation;
that a factual basis exists for the stipulation; and that the accused,
after consulting with counsel, consents to the stipulation; and (B)
from the accused and counsel for each party whether there are any
agreements between the parties in connection with the stipulation,
and, if so, what the terms of such agreements are.
A stipulation practically amounts to a confession when it is the
equivalent of a guilty plea, that is, when it establishes, directly or by
reasonable inference, every element of a charged offense and when
the defense does not present evidence to contest any potential
remaining issue of the merits. Thus, a stipulation which tends to
establish, by reasonable inference, every element of a charged
offense does not practically amount to a confession if the defense
contests an issue going to guilt which is not foreclosed by the
stipulation. For example, a stipulation of fact that contraband drugs
were discovered in a vehicle owned by the accused would normally
practically amount to a confession if no other evidence were
presented on the issue, but would not if the defense presented
evidence to show that the accused was unaware of the presence of
the drugs. Whenever a stipulation establishes the elements of a
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charged offense, the military judge should conduct an inquiry as
described in this rule.
If, during an inquiry into a confessional stipulation the military
judge discovers that there is a plea agreement, the military judge
must conduct an inquiry into the pretrial agreement. See R.C.M.
910(f). See also R.C.M. 705.
(d) Withdrawal. A party may withdraw from an
agreement to stipulate or from a stipulation at any time
before a stipulation is accepted; the stipulation may not
then be accepted. After a stipulation has been accepted
a party may withdraw from it only if permitted to do so
in the discretion of the military judge.
Discussion
If a party withdraws from an agreement to stipulate or from a
stipulation, before or after it has been accepted, the opposing party
may be entitled to a continuance to obtain proof of the matters which
were to have been stipulated.
If a party is permitted to withdraw from a stipulation previously
accepted, the stipulation must be disregarded by the court-martial,
and an instruction to that effect should be given.
(e) Effect of stipulation. Unless properly withdrawn or
ordered stricken from the record, a stipulation of fact
that has been accepted is binding on the court-martial
and may not be contradicted by the parties thereto. The
contents of a stipulation of expected testimony or of a
document’s contents may be attacked, contradicted, or
explained in the same way as if the witness had actually
so testified or the document had been actually
admitted. The fact that the parties so stipulated does not
admit the truth of the indicated testimony or
document’s contents, nor does it add anything to the
evidentiary nature of the testimony or document. The
Military Rules of Evidence apply to the contents of
stipulations.
(f) Procedure. When offered, a written stipulation shall
be presented to the military judge and shall be included
in the record whether accepted or not. Once accepted,
a written stipulation of expected testimony shall be
read to the members, if any, but shall not be presented
to them; a written stipulation of fact or of a document’s
contents may be read to the members, if any, presented
to them, or both. Once accepted, an oral stipulation
shall be announced to the members, if any.
Rule 812. Joint and common trials
In joint trials and in common trials, each accused shall
be accorded the rights and privileges as if tried
separately.
Discussion
A “joint trial” is one in which two or more accused are charged with
a joint offense, that is, one in which they acted together with a
common purpose. The offense is stated in a single specification and
the accused are joined by the pleading. A “common trial” is one in
which two or more accused are tried for an offense or offenses which,
although not jointly committed, were committed at the same time
and place and are provable by the same evidence. A common trial is
ordered in the discretion of the referral authority by endorsement on
the charge sheet. See R.C.M. 307(c)(5) concerning preparing charges
and specifications for joint trials. See R.C.M. 601(e)(3) concerning
referral of charges for joint or common trials, and the distinction
between the two. See R.C.M. 906(b)(9) concerning motions to sever
and other appropriate motions in joint or common trials.
In a joint or common trial, each accused may be represented by
separate counsel; make challenges for cause; make peremptory
challenges (see R.C.M. 912); cross-examine witnesses; elect whether
to testify; introduce evidence; request that the membership of the
court include enlisted persons or be limited to officer members, if an
enlisted accused; and request trial by military judge alone.
In a joint or common trial, evidence which is admissible against
only one or some of the joint or several accused may be considered
only against the accused concerned. For example, when a stipulation
is accepted which was made by only one or some of the accused, the
stipulation does not apply to those accused who did not join it. See
also Mil. R. Evid. 306. In such instances the members must be
instructed that the stipulation or evidence may be considered only
with respect to the accused with respect to whom it is accepted.
Rule 813. Announcing personnel of the court-
martial and the accused
(a) Opening sessions. Except as noted in subsection
(d), when the court-martial is called to order for the
first time in a case, the military judge shall ensure that
the following is announced:
(1) The order, including any amendment, by which
the court is convened;
(2) The name, rank, and unit or address of the
accused;
(3) The name and rank of the military judge
presiding;
(4) The names and ranks of the members, if any, who
are present;
(5) The names and ranks of members who are absent,
if presence of members is required
(6) The names and ranks (if any) of counsel who are
present;
(7) The names and ranks (if any) of counsel who are
absent; and
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(8) The name and rank (if any) of any detailed court
reporter.
(b) Later proceedings. When the court-martial is called
to order after a recess or adjournment or after it has
been closed for any reason, the military judge shall
ensure that the record reflects whether all parties and
members who were present at the time of the
adjournment or recess, or at the time the court-martial
closed, are present.
(c) Additions, replacement, and absences of personnel.
Whenever there is a replacement of the military judge,
any member, or counsel, either through the appearance
of new personnel or personnel previously absent or
through the absence of personnel previously present,
the military judge shall ensure the record reflects the
change and the reason for it.
(d) Under R.C.M. 813(a)(1), the name, grade, and
position of the convening authority, with the exception
of the Secretary concerned, the Secretary of Defense,
or the President, shall be omitted from announcement
during the opening session of the court-martial.
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CHAPTER IX. TRIAL PROCEDURES THROUGH FINDINGS
Rule 901. Opening session
(a) Call to order. A court-martial is in session when the
military judge so declares.
Discussion
The military judge should examine the charge sheet, convening
order, and any amending orders before calling the initial session to
order.
See also R.C.M. 602(b)(1) concerning the waiting periods
applicable after service of charges in general and special courts-
martial.
(b) Announcement of parties. After the court-martial is
called to order, the presence or absence of the parties,
military judge, and members shall be announced.
Discussion
If the orders detailing the military judge and counsel have not been
reduced to writing, an oral announcement of such detailing is
required. See R.C.M. 503(b) and (c).
(c) Swearing reporter and interpreter. After the
personnel have been accounted for as required in
subsection (b) of this rule, trial counsel shall announce
whether the reporter and interpreter, if any is present,
have been properly sworn. If not sworn, the reporter
and interpreter, if any, shall be sworn.
Discussion
See R.C.M. 807 concerning the oath to be administered to a court
reporter or interpreter. If a reporter or interpreter is replaced at any
time during trial, this should be noted for the record, and the
procedures in this subsection should be repeated.
(d) Counsel.
(1) Trial counsel. Trial counsel shall announce the
legal qualifications and status as to oaths of the
members of the prosecution and whether any member
of the prosecution has acted in any manner which
might tend to disqualify that counsel.
(2) Defense counsel.
(A) In general. The detailed defense counsel shall
announce the legal qualifications and status as to oaths
of the detailed members of the defense and whether
any member of the defense has acted in any manner
that might tend to disqualify that counsel. Any defense
counsel not detailed shall state that counsel’s legal
qualifications and whether that counsel has acted in
any manner that might tend to disqualify the counsel.
(B) Capital cases. A defense counsel who has
been detailed to a capital case as a counsel learned in
the law applicable to such cases shall, in addition to the
requirements of subparagraph (A), state such
qualifications and assignment.
(3) Disqualification. If it appears that any counsel
may be disqualified, the military judge shall decide the
matter and take appropriate action.
Discussion
Counsel may be disqualified because of lack of necessary
qualifications, or because of duties or actions which are inconsistent
with the role of counsel. See R.C.M. 502(d) concerning
qualifications of counsel.
If it appears that any counsel may be disqualified, the military
judge should conduct an inquiry or hearing. If any detailed counsel
is disqualified, the appropriate authority should be informed. If any
defense counsel is disqualified, the accused should be so informed.
If the disqualification of trial or defense counsel is one which
the accused may waive, the accused should be so informed by the
military judge, and given the opportunity to decide whether to waive
the disqualification. In the case of defense counsel, if the
disqualification is not waivable or if the accused elects not to waive
the disqualification, the accused should be informed of the choices
available and given the opportunity to exercise such options.
If any counsel is disqualified, the military judge should ensure
that the accused is not prejudiced by any actions of the disqualified
counsel or any break in representation of the accused.
Disqualification of counsel is not a jurisdictional defect; such
error must be tested for prejudice.
If the membership of the prosecution or defense changes at any
time during the proceedings, the procedures in this subsection should
be repeated as to the new counsel. In addition, the military judge
should ascertain on the record whether the accused objects to a
change of defense counsel. See R.C.M. 505(d)(2) and 506(c).
See R.C.M. 502(d)(2)(C) regarding qualifications of counsel
learned in the law applicable to capital cases.
(4) Inquiry. The military judge shall, in open session:
(A) Inform the accused of the rights to be
represented by military counsel detailed to the defense;
or by individual military counsel requested by the
accused, if such military counsel is reasonably
available; and by civilian counsel, either alone or in
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association with military counsel, if such civilian
counsel is provided at no expense to the United States;
(B) Inform the accused that, if afforded individual
military counsel, the accused may request retention of
detailed counsel as associate counsel, which request
may be granted or denied in the sole discretion of the
authority who detailed the counsel;
(C) Ascertain from the accused whether the
accused understands these rights;
(D) Promptly inquire, whenever two or more
accused in a joint or common trial are represented by
the same detailed or individual military or civilian
counsel, or by civilian counsel who are associated in
the practice of law, with respect to such joint
representation and shall personally advise each
accused of the right to effective assistance of counsel,
including separate representation. Unless it appears
that there is good cause to believe no conflict of interest
is likely to arise, the military judge shall take
appropriate measures to protect each accused’s right to
counsel; and
Discussion
Whenever it appears that any defense counsel may face a conflict of
interest, the military judge should inquire into the matter, advise the
accused of the right to effective assistance of counsel, and ascertain
the accused’s choice of counsel. When defense counsel is aware of a
potential conflict of interest, counsel should discuss the matter with
the accused. If the accused elects to waive such conflict, counsel
should inform the military judge of the matter at an Article 39(a)
session so that an appropriate record can be made.
(E) Ascertain from the accused by whom the
accused chooses to be represented.
(5) Unsworn counsel. The military judge shall
administer the oath to any counsel not sworn.
Discussion
See R.C.M. 807.
(e) Presence of members. The procedures described in
R.C.M. 901 through 910 shall be conducted without
members present in accordance with the procedures set
forth in R.C.M. 803.
Rule 902. Disqualification of military judge
(a) In general. Except as provided in subsection (e) of
this rule, a military judge shall disqualify himself or
herself in any proceeding in which that military judge’s
impartiality might reasonably be questioned.
(b) Specific grounds. A military judge shall also
disqualify himself or herself in the following
circumstances:
(1) Where the military judge has a personal bias or
prejudice concerning a party or personal knowledge of
disputed evidentiary facts concerning the proceeding.
(2) Where the military judge has acted as counsel,
preliminary hearing officer, investigating officer, legal
officer, staff judge advocate, or convening authority as
to any offense charged or in the same case generally.
(3) Where the military judge has been or will be a
witness in the same case; is the accuser; has forwarded
charges in the case with a personal recommendation as
to disposition; has referred charges in the case; or,
except in the performance of duties as military judge in
a previous trial of the same or a related case, has
expressed an opinion concerning the guilt or innocence
of the accused.
(4) Where the military judge is not eligible to act
because the military judge is not qualified under
R.C.M. 502(c) or not detailed under R.C.M. 503(b).
(5) Where the military judge, the military judge’s
spouse, or a person within the third degree of
relationship to either of them or a spouse of such
person:
(A) Is a party to the proceeding;
(B) Is known by the military judge to have an
interest, financial or otherwise, that could be
substantially affected by the outcome of the
proceeding; or
(C) Is to the military judge’s knowledge likely to
be a material witness in the proceeding.
Discussion
A military judge should inform himself or herself about his or her
financial interests, and make a reasonable effort to inform himself or
herself about the financial interests of his or her spouse and minor
children living in his or her household.
(c) Definitions. For the purposes of this rule the
following words or phrases shall have the meaning
indicated—
(1) “Proceeding” includes pretrial (to include pre-
referral), trial, post-trial, appellate review, or other
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stages of litigation.
(2) The “degree of relationship” is calculated
according to the civil law system.
Discussion
Relatives within the third degree of relationship are children,
grandchildren, great grandchildren, parents, grandparents, great
grandparents, brothers, sisters, uncles, aunts, nephews, and nieces.
(d) Procedure.
(1) The military judge shall, upon motion of any
party or sua sponte, decide whether the military judge
is disqualified.
Discussion
There is no peremptory challenge against a military judge. A military
judge should carefully consider whether any of the grounds for
disqualification in this rule exist in each case. The military judge
should broadly construe grounds for challenge but should not step
down from a case unnecessarily.
Possible grounds for disqualification should be raised at the
earliest reasonable opportunity. They may be raised at any time, and
an earlier adverse ruling does not bar later consideration of the same
issue, as, for example, when additional evidence is discovered.
(2) Each party shall be permitted to question the
military judge and to present evidence regarding a
possible ground for disqualification before the military
judge decides the matter.
Discussion
Nothing in this rule prohibits the military judge from reasonably
limiting the presentation of evidence, the scope of questioning, and
argument on the subject so as to ensure that only matters material to
the central issue of the military judge’s possible disqualification are
considered, thereby, preventing the proceedings from becoming a
forum for unfounded opinion, speculation or innuendo.
(3) Except as provided under subsection (e) of this
rule, if the military judge rules that the military judge
is disqualified, the military judge shall recuse himself
or herself.
(e) Waiver. No military judge shall accept from the
parties to the proceeding a waiver of any ground for
disqualification enumerated in subsection (b) of this
rule. Where the ground for disqualification arises only
under subsection (a) of this rule, waiver may be
accepted provided it is preceded by a full disclosure on
the record of the basis for disqualification.
Rule 903. Accused’s elections on composition of
court-martial
(a) In general.
(1) Except in a special court-martial consisting of a
military judge alone under Article 16(c)(2)(A), before
the end of the initial Article 39(a) session or, in the
absence of such a session, before assembly, the
military judge shall ascertain, as applicable:
(A) In the case of an enlisted accused, whether the
accused elects to be tried by a court-martial composed
of—
(i) at least one-third enlisted members; or
(ii) all officer members.
(B) In all noncapital cases, whether the accused
requests trial by military judge alone.
(2) The accused may defer requesting trial by
military judge alone until any time before assembly.
Discussion
Only an enlisted accused may request that enlisted members be
detailed to a court-martial. Trial by military judge alone is not
permitted in capital cases (see R.C.M. 201(f)(1)(C)).
If an accused makes no forum selection, the accused will be
tried by a court-martial composed of a military judge and members,
as specified in the convening order. When presenting the accused’s
forum options, the military judge should inform the accused of the
effect of not making an election.
(b) Form of election. The accused’s election or request,
if any, under subsection (a), shall be in writing and
signed by the accused or shall be made orally on the
record.
(c) Action on election.
(1) Request for specific panel composition. If an
enlisted accused makes a timely election under
subparagraph (a)(1)(A), the convening authority,
unless a sufficient number of members have already
been detailed, shall detail a sufficient number of
additional members to the court-martial in accordance
with R.C.M. 503 or prepare a detailed written
statement explaining why physical conditions or
military exigencies prevented such detail. Proceedings
that require the presence of members shall not proceed
until either there is a sufficient number of additional
members or the convening authority has prepared a
written statement.
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(2) Request for military judge alone. Upon receipt of
a timely request for trial by military judge alone the
military judge shall:
(A) Ascertain whether the accused has consulted
with defense counsel and has been informed of the
identity of the military judge and of the right to trial by
members; and
Discussion
Ordinarily the military judge should inquire personally of the
accused to ensure that the accused’s waiver of the right to trial by
members is knowing and understanding. The military judge should
ensure the accused understands that the approval of a request for trial
before military judge alone under Article 16(b)(3) or (c)(2)(B) means
that the military judge will determine the findings and, if the accused
is found guilty of any charge and specification, the sentence. See
R.C.M. 1002. Failure to do so is not error, however, where such
knowledge and understanding otherwise appear on the record.
DD Form 1722 (Request for Trial Before Military Judge Alone
(Article 16, UCMJ)) should normally be used for the purpose of
requesting trial by military judge alone under this rule, if a written
request is used.
(B) Approve or disapprove the request, in the
military judge’s discretion.
Discussion
A timely request for trial by military judge alone should be granted
unless there is substantial reason why, in the interest of justice, the
military judge should not sit as factfinder. The military judge may
hear arguments from counsel before acting on the request. The basis
for denial of a request must be made a matter of record.
(3) Composition. Trial shall be by a court-martial
composed of the members in accordance with the
convening order, unless the case is referred for trial by
military judge alone under Article 16(c)(2)(A), the
military judge grants a request for trial by judge alone,
or there is a request for a specific panel composition
under subparagraph (a)(1)(A).
(d) Right to withdraw request.
(1) Specific panel composition. An election by an
enlisted accused under subparagraph (a)(1)(A) may be
withdrawn by the accused as a matter of right any time
before the end of the initial Article 39(a) session, or, in
the absence of such a session, before assembly.
(2) Military judge. A request for trial by military
judge alone may be withdrawn by the accused as a
matter of right any time before it is approved, or even
after approval, if there is a change of the military judge
Discussion
Withdrawal of a request for enlisted members, all officer members,
or trial by military judge alone should be shown in the record. The
effect of such withdrawal is that the accused will be tried by a court-
martial composed of members as specified by the convening order.
See R.C.M. 505(c) concerning changing members prior to assembly.
(e) Untimely requests. Failure to request, or failure to
withdraw a request for a specific panel composition or
trial by military judge alone in a timely manner shall
waive the right to submit or to withdraw such a request.
However, the military judge may, until the beginning
of the introduction of evidence on the merits, as a
matter of discretion, approve an untimely request or
withdrawal of a request.
Discussion
In exercising discretion whether to approve an untimely request or
withdrawal of a request, the military judge should balance the reason
for the request (for example, whether it is a mere change of tactics or
results from a substantial change of circumstances) against any
expense, delay, or inconvenience which would result from granting
the request
Rule 904. Arraignment
Arraignment shall be conducted in a court-martial
session and shall consist of reading the charges and
specifications to the accused and calling on the accused
to plead. The accused may waive the reading.
Discussion
Arraignment is complete when the accused is called upon to plead;
the entry of pleas is not part of the arraignment.
The arraignment should be conducted at an Article 39(a)
session. The accused may not be arraigned at a conference under
R.C.M. 802.
Once the accused has been arraigned, no additional charges
against that accused may be referred to that court-martial for trial
with the previously referred charges. See R.C.M. 601(e)(2).
The defense should be asked whether it has any motions to
make before pleas are entered. Some motions ordinarily must be
made before a plea is entered. See R.C.M. 905(b).
Rule 905. Motions generally
(a) Definitions and form. A motion is an application to
the military judge for particular relief. Motions may be
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oral or, at the discretion of the military judge, written.
A motion shall state the grounds upon which it is made
and shall set forth the ruling or relief sought. The
substance of a motion, not its form or designation, shall
control.
(b) Pretrial motions. Any defense, objection, or request
which is capable of determination without the trial of
the general issue of guilt may be raised before trial. The
following must be raised before a plea is entered:
(1) Defenses or objections based on defects (other
than jurisdictional defects) in the preferral, forwarding,
or referral of charges, or in the preliminary hearing;
Discussion
Such nonjurisdictional defects include unsworn charges, inadequate
Article 32 preliminary hearing, and inadequate pretrial advice. See
R.C.M. 307, 401–407, 601–604, 906(b)(3).
(2) Defenses or objections based on defects in the
charges and specifications (other than any failure to
show jurisdiction or to charge an offense, which
objections shall be resolved by the military judge at
any time during the pendency of the proceedings);
Discussion
See R.C.M. 307, 906(b)(4).
(3) Motions to suppress evidence;
Discussion
Mil. R. Evid. 304(f), 311(d), and 321(d) deal with the admissibility
of confessions and admissions, evidence obtained from unlawful
searches and seizures, and eyewitness identification, respectively.
Questions concerning the admissibility of evidence on other grounds
may be raised by objection at trial or by motions in limine. See
R.C.M. 906(b)(13), Mil. R. Evid. 103, 104(a) and (c).
(4) Motions for discovery under R.C.M. 701 or for
production of witnesses or evidence;
Discussion
See R.C.M. 703, 1001(f).
(5) Motions for severance of charges or accused; or
Discussion
See R.C.M. 812, 906(b)(9) and (10).
(6) Objections based on denial of request for
individual military counsel or for retention of detailed
defense counsel when individual military counsel has
been granted.
Discussion
See R.C.M. 506(b), 906(b)(2).
(c) Burden of proof.
(1) Standard. Unless otherwise provided in this
Manual, the burden of proof on any factual issue the
resolution of which is necessary to decide a motion
shall be by a preponderance of the evidence.
Discussion
See Mil. R. Evid. 104(a) concerning the applicability of the Military
Rules of Evidence to certain preliminary questions.
(2) Assignment.
(A) Except as otherwise provided in this Manual
the burden of persuasion on any factual issue the
resolution of which is necessary to decide a motion
shall be on the moving party.
Discussion
See, for example, R.C.M. 905(c)(2)(B), R.C.M. 908 and Mil. R.
Evid. 304(f), 311(d)(5), and 321(d)(6) for provisions specifically
assigning the burden of proof.
(B) In the case of a motion to dismiss for lack of
jurisdiction, denial of the right to speedy trial under
R.C.M. 707, or the running of the statute of limitations,
the burden of persuasion shall be upon the prosecution.
(d) Ruling on motions. A motion made before pleas are
entered shall be determined before pleas are entered
unless, if otherwise not prohibited by this Manual, the
military judge for good cause orders that determination
be deferred until trial of the general issue or after
findings, but no such determination shall be deferred if
a party’s right to review or appeal is adversely affected.
Where factual issues are involved in determining a
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motion, the military judge shall state the essential
findings on the record.
Discussion
When trial cannot proceed further as the result of dismissal or other
rulings on motions, the court-martial should adjourn and a record of
the proceedings should be prepared. See R.C.M. 908(b)(4) regarding
automatic stay of certain rulings and orders subject to appeal under
that rule. Notwithstanding the dismissal of some specifications, trial
may proceed in the normal manner as long as one or more charges
and specifications remain. The judgment entered into the record
should reflect the action taken by the court-martial on each charge
and specification, including any of which were dismissed by the
military judge on a motion. See R.C.M. 1111.
(e) Effect of failure to raise defenses or objections.
(1) Failure by a party to raise defenses or objections
or to make motions or requests which must be made
before pleas are entered under subsection (b) of this
rule forfeits the defenses or objections absent an
affirmative waiver. The military judge for good cause
shown may permit a party to raise a defense or
objection or make a motion or request outside of the
timelines permitted under subsection (b) of this rule.
(2) Other motions, requests, defenses, or objections,
except lack of jurisdiction, must be raised before the
court-martial is adjourned for that case. Failure to raise
such other motions, requests, defenses, or objections
shall constitute forfeiture, absent an affirmative
waiver.
Discussion
See also R.C.M. 910(j) concerning matters waived by a plea of
guilty.
(f) Reconsideration. On request of any party or sua
sponte, the military judge may, prior to entry of
judgment, reconsider any ruling, other than one
amounting to a finding of not guilty, made by the
military judge.
Discussion
The military judge may reconsider any ruling that affects the legal
sufficiency of any finding of guilt or the sentence. See R.C.M. 917(d)
for the standard to be used to determine the legal sufficiency of
evidence. See also R.C.M. 1104 concerning procedures for post-trial
reconsideration. Different standards may apply depending on the
nature of the ruling. See United States v. Scaff, 29 M.J. 60 (C.M.A.
1989).
(g) Effect of final determinations. Any matter put in
issue and finally determined by a court-martial,
reviewing authority, or appellate court which had
jurisdiction to determine the matter may not be
disputed by the United States in any other court-martial
of the same accused, except that, when the offenses
charged at one court-martial did not arise out of the
same transaction as those charged at the court-martial
at which the determination was made, a determination
of law and the application of law to the facts may be
disputed by the United States. This rule also shall apply
to matters which were put in issue and finally
determined in any other judicial proceeding in which
the accused and the United States or a federal
governmental unit were parties.
Discussion
See R.C.M. 907(b)(2)(C). Whether a matter has been finally
determined in another judicial proceeding with jurisdiction to decide
it, and whether such determination binds the United States in another
proceeding are interlocutory questions. See R.C.M. 801(e). It does
not matter whether the earlier proceeding ended in an acquittal,
conviction, or otherwise, as long as the determination is final. Except
for a ruling which is, or amounts to, a finding of not guilty, a ruling
ordinarily is not final until action on the court-martial is completed.
See Article 76; R.C.M. 1209. The accused is not bound in a court-
martial by rulings in another court-martial. But see Article 3(b);
R.C.M. 202.
The determination must have been made by a court-m
artial,
reviewing authority, or appellate court, or by another judicial body,
such as a United States court. A pretrial determination by a
convening authority or a special trial counsel is not a final
determination under this rule, although some decisions may bind the
Government under other rules.
The United States is bound by a final determination by a court
o
f competent jurisdiction even if the earlier determination is
erroneous, except when the offenses charged at the second
proceeding arose out of a different transaction from those charged at
the first and the ruling at the first proceeding was based on an
incorrect determination of law.
A final determination in one case may be the basis for a motion
to dismiss or a motion for appropriate relief in another case,
depending on the circumstances. The nature of the earlier
determination and the grounds for it will determine its effect in other
proceedings.
Examples:
(1) The military judge dismissed a charge for lack of personal
jurisdiction, on grounds that the accused was only 16 years old at the
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time of enlistment and when the offenses occurred. At a second
court-martial of the same accused for a different offense, the
determination in the first case would require dismissal of the new
charge unless the prosecution could show that since that
determination the accused had effected a valid enlistment or
constructive enlistment. See R.C.M. 202. Note, however, that if the
initial ruling had been based on an error of law (for example, if the
military judge had ruled the enlistment invalid because the accused
was 18 at the time of enlistment) this would not require dismissal in
the second court-martial for a different offense.
(2) The accused was tried in United States district court for
assault on a federal officer. The accused defended solely on the basis
of alibi and was acquitted. The accused is then charged in a court-
martial with assault on a different person at the same time and place
as the assault on a federal officer was alleged to have occurred. The
acquittal of the accused in federal district court would bar conviction
of the accused in the court-martial. In cases of this nature, the facts
of the first trial must be examined to determine whether the finding
of the first trial is logically inconsistent with guilt in the second case.
(3) At a court-martial for larceny, the military judge excluded
evidence of a statement made by the accused relating to the larceny
and other uncharged offenses because the statement was obtained by
coercion. At a second court-martial for an unrelated offense, the
statement excluded at the first trial would be inadmissible, based on
the earlier ruling, if the first case had become final. If the earlier
ruling had been based on an incorrect interpretation of law, however,
the issue of admissibility could be litigated anew at the second
proceeding.
(4) At a court-martial for absence without authority, the charge
and specification were dismissed for failure to state an offense. At a
later court-martial for the same offense, the earlier dismissal would
be grounds for dismissing the same charge and specification, but
would not bar further proceedings on a new specification not
containing the same defect as the original specification.
(h) Written motions. Written motions may be
submitted to the military judge after referral and when
appropriate they may be supported by affidavits, with
service and opportunity to reply to the opposing party.
Such motions may be disposed of before arraignment
and without a session. Either party may request an
Article 39(a) session to present oral argument or have
an evidentiary hearing concerning the disposition of
written motions.
(i) Service. Written motions shall be served on all other
parties. Unless otherwise directed by the military
judge, the service shall be made upon counsel for each
party.
(j) Application to convening authority. Except as
otherwise provided in this Manual, any matters which
may be resolved upon motion without trial of the
general issue of guilt may be submitted by a party to
the convening authority before trial for decision.
Submission of such matter to the convening authority
is not, except as otherwise provided in this Manual,
required, and is, in any event, without prejudice to the
renewal of the issue by timely motion before the
military judge.
(k) Production of statements on motion to suppress.
Except as provided in this subsection, R.C.M. 914 shall
apply at a hearing on a motion to suppress evidence
under paragraph (b)(3) of this rule. For purposes of this
subsection, a law enforcement officer shall be deemed
a witness called by the Government, and upon a claim
of privilege the military judge shall excise portions of
the statement containing privileged matter.
Rule 906. Motions for appropriate relief
(a) In general. A motion for appropriate relief is a
request for a ruling to cure a defect which deprives a
party of a right or hinders a party from preparing for
trial or presenting its case.
(b) Grounds for appropriate relief. The following may
be requested by motion for appropriate relief. This list
is not exclusive.
(1) Continuances. A continuance may be granted
only by the military judge.
Discussion
The military judge should, upon a showing of reasonable cause, grant
a continuance to any party for as long and as often as is just. See
Article 40. Whether a request for a continuance should be granted is
a matter within the discretion of the military judge. Reasons for a
continuance may include: insufficient opportunity to prepare for
trial; unavailability of an essential witness; the interest of
Government in the order of trial of related cases; and illness of an
accused, counsel, military judge, or member. See also R.C.M. 602,
803.
(2) Record of denial of individual military counsel or
of denial of request to retain detailed counsel when a
request for individual military counsel granted. If a
request for military counsel was denied, which denial
was upheld on appeal (if available) or if a request to
retain detailed counsel was denied when the accused is
represented by individual military counsel, and if the
accused so requests, the military judge shall ensure that
a record of the matter is included in the record of trial,
and may make findings. Trial counsel may request a
continuance to inform the convening authority of those
findings. The military judge may not dismiss the
charges or otherwise effectively prevent further
proceedings based on this issue. However, the military
judge may grant reasonable continuances until the
requested military counsel can be made available if the
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unavailability results from temporary conditions or if
the decision of unavailability is in the process of
review in administrative channels.
(3) Corrections. Correction of defects in the Article
32 preliminary hearing, pretrial advice, or a written
determination by special trial counsel.
Discussion
See R.C.M. 405, 406, 406A. If the motion is granted, the military
judge should ordinarily grant a continuance so the defect may be
corrected.
(4) Amendment of charges or specifications. After
referral, a charge or specification may not be amended
over the accused’s objection except pursuant to R.C.M.
603(d) and (e).
Discussion
See also R.C.M. 307.
An amendment may be appropriate when a specification is
unclear, redundant, inartfully drafted, misnames an accused, or is
laid under the wrong article. A specification may be amended by
striking surplusage, or substituting or adding new language.
Surplusage may include irrelevant or redundant details or
aggravating circumstances which are not necessary to enhance the
maximum authorized punishment or to explain the essential facts of
the offense. When a specification is amended after the accused has
entered a plea to it, the accused should be asked to plead anew to the
amended specification. A bill of particulars (see R.C.M. 906(b)(6))
may also be used when a specification is indefinite or ambiguous.
If a specification, although stating an offense, is so defective
that the accused appears to have been misled, the accused should be
given a continuance upon request, or, in an appropriate case, the
specification may be dismissed. See R.C.M. 907(b)(3).
(5) Severance of specifications. Severance of a
duplicitous specification into two or more
specifications.
Discussion
Each specification may state only one offense. See R.C.M. 307(c)(4).
A duplicitous specification is one which alleges two or more separate
offenses. Lesser included offenses (see Part IV, paragraph 3;
Appendix 12A) are not separate, nor is a continuing offense
involving several 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 R.C.M. 906(b)(3).
See also R.C.M. 907(b)(3).
(6) Bill of particulars. A bill of particulars may be
amended at any time, subject to such conditions as
justice permits.
Discussion
The purposes of a bill of particulars are to inform the accused of the
nature of the charge with sufficient precision to enable the accused
to prepare for trial, to avoid or minimize the danger of surprise at the
time of trial, and to enable the accused to plead the acquittal or
conviction in bar of another prosecution for the same offense when
the specification itself is too vague and indefinite for such purposes.
A bill of particulars should not be used to conduct discovery of
the Government’s theory of a case, to force detailed disclosure of
acts underlying a charge, or to restrict the Government’s proof at
trial.
A bill of particulars need not be sworn because it is not part of
the specification. A bill of particulars cannot be used to repair a
specification which is otherwise not legally sufficient.
(7) Discovery and Production. Discovery and
production of evidence and witnesses.
Discussion
See R.C.M. 701 concerning discovery. See R.C.M. 703, 914, and
1001(f) concerning production of evidence and witnesses.
(8) Relief from pretrial confinement. Upon a motion
for release from pretrial confinement, a victim of an
alleged offense committed by the accused has the right
to reasonable, accurate, and timely notice of the motion
and any hearing, the right to confer with counsel, and
the right to be reasonably heard. Inability to reasonably
afford a victim these rights shall not delay the
proceedings. The right to be heard under this rule
includes the right to be heard through counsel.
Discussion
See R.C.M. 305(j).
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(9) Severance of multiple accused. Severance of
multiple accused, if it appears that an accused or the
Government is prejudiced by a joint or common trial.
In a common trial, a severance shall be granted
whenever any accused, other than the moving accused,
faces charges unrelated to those charged against the
moving accused.
Discussion
A motion for severance is a request that one or more accused against
whom charges have been referred to a joint or common trial be tried
separately. Such a request should be granted if good cause is shown.
For example, a severance may be appropriate when: the moving
party wishes to use the testimony of one or more of the coaccused or
the spouse of a coaccused; a defense of a coaccused is antagonistic
to the moving party; or evidence as to any other accused will
improperly prejudice the moving accused.
If a severance is granted by the military judge, the military
judge will decide which accused will be tried first. See R.C.M.
801(a). In the case of joint charges, the military judge will direct an
appropriate amendment of the charges and specifications.
See also R.C.M. 307(c)(5), 601(e)(3), 604, 812.
(10) Severance of offenses.
(A) In general. Offenses may be severed, but only
to prevent manifest injustice.
(B) Capital cases. In a capital case, if the joinder
of unrelated non-capital offenses appears to prejudice
the accused, the military judge may sever the non-
capital offenses from the capital offenses.
Discussion
Joinder of minor and major offenses, or of unrelated offenses, is not
alone a sufficient ground to sever offenses. For example, when an
essential witness as to one offense is unavailable, it might be
appropriate to sever that offense to prevent violation of the accused’s
right to a speedy trial.
(11) Change of place of trial. The place of trial may
be changed when necessary to prevent prejudice to the
rights of the accused or for the convenience of the
Government if the rights of the accused are not
prejudiced thereby.
Discussion
A change of the place of trial may be necessary when there exists in
the place where the court-martial is pending so great a prejudice
against the accused that the accused cannot obtain a fair and impartial
trial there, or to obtain compulsory process over an essential witness.
When it is necessary to change the place of trial, the choice of
places to which the court-martial will be transferred will be left to
the convening authority, as long as the choice is not inconsistent with
the ruling of the military judge.
(12) Unreasonable multiplication of charges. The
military judge may provide a remedy, as described in
this rule, if he or she finds there has been an
unreasonable multiplication of charges as applied to
findings or sentence.
(A) As applied to findings. Charges that arise from
substantially the same transaction, while not legally
multiplicious, may still be unreasonably multiplied as
applied to findings. When the military judge finds, in
his or her discretion, that the offenses have been
unreasonably multiplied, the appropriate remedy shall
be dismissal of the lesser offenses or merger of the
offenses into one specification.
(B) As applied to sentence. Where the military
judge finds that the unreasonable multiplication of
charges requires a remedy that focuses more
appropriately on punishment than on findings, the
military judge may find that there is an unreasonable
multiplication of charges as applied to sentence. If the
military judge makes such a finding, the remedy shall
be as set forth in R.C.M. 1002(d)(2). A ruling on this
motion ordinarily should be deferred until after
findings are entered.
Discussion
See RCM 1002(b) (providing for how the “military judge shall
determine the sentence of a general or special court-martial . . . in all
noncapital cases.”).”
(13) Admissibility. Preliminary ruling on
admissibility of evidence.
Discussion
See Mil. R. Evid. 104(c).
A request for a preliminary ruling on admissibility is a request
that certain matters which are ordinarily decided during trial of the
general issue be resolved before they arise, outside the presence of
members. The purpose of such a motion is to avoid the prejudice
which may result from bringing inadmissible matters to the attention
of court members.
Whether to rule on an evidentiary question before it arises
during trial is a matter within the discretion of the military judge. But
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see R.C.M. 905(b)(3) and (d); and Mil. R. Evid. 304(f)(5); 311(d)(7);
321(d)(7). Reviewability of preliminary rulings will be controlled by
the Supreme Court’s decision in Luce v. United States, 469 U.S. 38
(1984).
(14) Mental capacity or responsibility. Motions
relating to mental capacity or responsibility of the
accused.
Discussion
See R.C.M. 706, 909, and 916(k) regarding procedures and standards
concerning the mental capacity or responsibility of the accused.
Rule 907. Motions to dismiss
(a) In general. A motion to dismiss is a request to
terminate further proceedings as to one or more
charges and specifications on grounds capable of
resolution without trial of the general issue of guilt.
Discussion
Dismissal of a specification terminates the proceeding with respect
to that specification unless the decision to dismiss is reconsidered
and reversed by the military judge. See R.C.M. 905(f). Dismissal of
a specification on grounds stated in R.C.M. 907(b)(1) or (b)(3)(A)
does not ordinarily bar a later court-martial for the same offense if
the grounds for dismissal no longer exist. See also R.C.M. 905(g)
and R.C.M. 907(b)(2).
See R.C.M. 916 concerning defenses.
(b) Grounds for dismissal. Grounds for dismissal
include the following—
(1) Nonwaivable grounds. A charge or specification
shall be dismissed at any stage of the proceedings if the
court-martial lacks jurisdiction to try the accused for
the offense.
(2) Waivable grounds. A charge or specification
shall be dismissed upon motion made by the accused
before the final adjournment of the court-martial in that
case if:
(A) Dismissal is required under R.C.M. 707;
(B) The statute of limitations (Article 43) has run,
provided that, if it appears that the accused is unaware
of the right to assert the statute of limitations in bar of
trial, the military judge shall inform the accused of this
right;
Discussion
Except for certain offenses for which there is either: no limitation as
to time; or child abuse offenses for which a time limitation has been
enacted and applies that is based upon the life of a child abuse victim,
see Article 43(a) and (b)(2), a person charged with an offense under
the UCMJ may not be tried by court-martial over objection if sworn
charges have not been received by the officer exercising summary
court-martial jurisdiction over the command within five years. See
Article 43(b). This period may be tolled (Article 43(c) and (d)),
extended (Article 43(e) and (g)), or suspended (Article 43(f)) under
certain circumstances. The prosecution bears the burden of proving
that the statute of limitations has been tolled, extended, or suspended
if it appears that is has run.
Some offenses are continuing offenses and any period of the
offense occurring within the statute of limitations is not barred.
Absence without leave, desertion, and fraudulent enlistment are not
continuing offenses and are committed, respectively, on the day the
person goes absent, deserts, or first receives pay or allowances under
the enlistment.
When computing the statute of limitations, periods in which the
accused was fleeing from justice or periods when the accused was
absent without leave or in desertion are excluded. The military judge
must determine by a preponderance, as an interlocutory matter,
whether the accused was absent without authority or fleeing from
justice. It would not be necessary that the accused be charged with
the absence offense. In cases where the accused is charged with both
an absence offense and a non-absence offense, but is found not guilty
of the absence offense, the military judge would reconsider, by a
preponderance, his or her prior determination whether that period of
time is excludable.
If sworn charges have been received by an officer exercising
summary court-martial jurisdiction over the command within the
period of the statute, minor amendments (see R.C.M. 603(a)) may be
made to the specification after the statute of limitations has run.
However, if new charges are drafted or a major amendment made
(see R.C.M. 603(d)) after the statute of limitations has run,
prosecution is barred. The date of receipt of sworn charges is
excluded when computing the appropriate statutory period. The date
of the offense is included in the computation of the elapsed time.
Article 43(g) allows the Government time to reinstate charges
dismissed as defective or insufficient for any cause. The Government
would have up to six months to reinstate the charges if the original
period of limitations has expired or will expire within six months of
the dismissal.
In some cases, the issue whether the statute of limitations has
run will depend on the findings on the general issue of guilt. For
example, where the date of an offense is in dispute, a finding by the
court-martial that the offense occurred at an earlier time may affect
a determination as to the running of the statute of limitations.
When the statute of limitations has run as to a lesser included
offense, but not as to the charged offense, see R.C.M. 920(e)(2) with
regard to instructions on the lesser offense.
(C) The accused has previously been tried by
court-martial or federal civilian court for the same
offense, provided that:
(i) No court-martial proceeding is a trial in the
sense of this rule unless—
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(I) In the case of a trial by military judge
alone, presentation of the evidence on the general issue
of guilt has begun;
(II) In the case of a trial with a military judge
and members, the members have been impaneled; or
(III) In the case of a summary court-martial,
presentation of the evidence on the general issue of
guilt has begun.
(ii) No court-martial proceeding which has been
terminated under R.C.M. 604(b) or R.C.M. 915 shall
bar later prosecution for the same offense or offenses,
if so provided in those rules;
(iii) No court-martial proceeding in which an
accused has been found guilty of any charge or
specification is a trial in the sense of this rule until the
finding of guilty has become final after review of the
case has been fully completed; and
(iv) No court-martial proceeding which lacked
jurisdiction to try the accused for the offense is a trial
in the sense of this rule.
Discussion
R.C.M. 907(b)(2)(C)(i)(I) includes special courts-martial consisting
of a military judge alone under Article 16(c)(2)(A).
(D) Prosecution is barred by:
(i) A pardon issued by the President;
(ii) Immunity from prosecution granted by a
person authorized to do so; or
Discussion
See R.C.M. 704.
(iii) Prior punishment under Article 13 or 15 for
the same offense, if that offense was punishable by
confinement of one year or less.
Discussion
See Article 13 and Appendix 12, Maximum Punishment Chart.
(E) The specification fails to state an offense.
(3) Permissible grounds. A specification may be
dismissed upon timely motion by the accused if one of
the following is applicable:
(A) Defective. When the specification is so
defective that it substantially misled the accused, and
the military judge finds that, in the interest of justice,
trial should proceed on any remaining charges and
specifications without undue delay; or
(B) Multiplicity. When the specification is
multiplicious with another specification, is
unnecessary to enable the prosecution to meet the
exigencies of proof through trial, review, and appellate
action, and should be dismissed in the interest of
justice. A charge is multiplicious if the proof of such
charge also proves every element of another charge.
Discussion
Ordinarily, a specification should not be dismissed for multiplicity
before trial unless it clearly alleges the same offense, or one
necessarily included therein, as is alleged in another specification. It
may be appropriate to dismiss the less serious of any multiplicious
specifications after findings have been reached. Due consideration
must be given, however, to possible post-trial or appellate action
with regard to the remaining specification.
Rule 908. Appeal by the United States
(a) In general. The United States may appeal an order
or ruling by a military judge that terminates the
proceedings with respect to a charge or specification,
or excludes evidence that is substantial proof of a fact
material in the proceedings, or directs the disclosure of
classified information, or that imposes sanctions for
nondisclosure of classified information. The United
States may also appeal a refusal by the military judge
to issue a protective order sought by the United States
to prevent the disclosure of classified information or to
enforce such an order that has previously been issued
by the appropriate authority. The United States may
not appeal an order or ruling that is, or amounts to, a
finding of not guilty with respect to the charge or
specification except when the military judge enters a
finding of not guilty with respect to a charge or
specification following the return of a finding of guilty
by the members.
Discussion
For the scope of these provisions, see Article 62(e). For rulings on a
motion for a finding of not guilty, see R.C.M. 917.
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(b) Procedure.
(1) Delay. After an order or ruling which may be
subject to an appeal by the United States, the court-
martial may not proceed, except as to matters
unaffected by the ruling or order, if trial counsel
requests a delay to determine whether to file notice of
appeal under this rule. Trial counsel is entitled to no
more than 72 hours under this subsection.
(2) Decision to appeal. The decision whether to file
notice of appeal under this rule shall be made within 72
hours of the ruling or order to be appealed. If the
Secretary concerned so prescribes, trial counsel shall
not file notice of appeal unless authorized to do so by
a person designated by the Secretary concerned.
(3) Notice of appeal. If the United States elects to
appeal, trial counsel shall provide the military judge
with written notice to this effect not later than 72 hours
after the ruling or order. Such notice shall identify the
ruling or order to be appealed and the charges and
specifications affected. Trial counsel shall certify that
the appeal is not taken for the purpose of delay and (if
the order or ruling appealed is one which excludes
evidence) that the evidence excluded is substantial
proof of a fact material in the proceeding.
(4) Effect on the court-martial. Upon written notice
to the military judge under paragraph (b)(3) of this rule,
the ruling or order that is the subject of the appeal is
automatically stayed and no session of the court-
martial may proceed pending disposition by the Court
of Criminal Appeals of the appeal, except that solely as
to charges and specifications not affected by the ruling
or order:
(A) Motions may be litigated, in the discretion of
the military judge, at any point in the proceedings;
(B) When trial on the merits has not begun,
(i) a severance may be granted upon request of
all the parties;
(ii) a severance may be granted upon request of
the accused and when appropriate under R.C.M.
906(b)(10); or
(C) When trial on the merits has begun but has not
been completed, a party may, on that party’s request
and in the discretion of the military judge, present
further evidence on the merits.
(5) Record. Upon written notice to the military judge
under paragraph (b)(3), trial counsel shall cause a
record of the proceedings to be prepared. Such record
shall be verbatim and complete to the extent necessary
to resolve the issues appealed. The record shall be
certified in accordance with R.C.M. 1112, and shall be
reduced to a written transcript if required under R.C.M.
1114. The military judge or the Court of Criminal
Appeals may direct that additional parts of the
proceeding be included in the record.
(6) Forwarding. Upon written notice to the military
judge under R.C.M. 908(b)(3), the trial counsel shall
promptly and by expeditious means forward the appeal
to a representative of the Government designated by
the Judge Advocate General. The matter forwarded
shall include: a statement of the issues appealed; the
record of the proceedings or, if preparation of the
record has not been completed, a summary of the
evidence; and such other matters as the Secretary
concerned may prescribe.
(7) Appeal filed.
(A) In cases over which a special trial counsel
exercises authority, the decision to appeal shall be
made by:
(i) if within the Department of Defense, a Lead
Special Trial Counsel; or
(ii) if within the Coast Guard, a special trial
counsel designated under regulations by the Secretary
concerned.
(B) For all other cases, the person designated by
the Judge Advocate General shall promptly decide
whether to file the appeal with the Court of Criminal
Appeals and notify trial counsel of that decision.
(C) If the United States elects to file an appeal, it
shall be filed directly with the Court of Criminal
Appeals, in accordance with the rules of that court.
(D) In all cases, a representative of the
Government designated by the Judge Advocate
General will be responsible for the substance and
content of submissions to the Court of Criminal
Appeals. For appeals in cases over which a special trial
counsel exercises authority, the designated
representative of the Government will consult with the
special trial counsel who authorized the appeal or that
special trial counsel’s designee concerning the
substance and content of appellate filings.
Discussion
When the Government files an appeal with the Court of Criminal
Appeals under R.C.M. 908(b)(7), the Court maintains jurisdiction to
review the case under Article 66(b) regardless of the sentence
imposed.
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(8) Appeal not filed. If the United States elects not to
file an appeal, trial counsel promptly shall notify the
military judge and the other parties.
(9) Pretrial confinement of accused pending appeal.
If an accused is in pretrial confinement at the time the
United States files notice of its intent to appeal under
paragraph (b)(3) of this rule, the commander, in
determining whether the accused should be confined
pending the outcome of an appeal by the United States,
should consider the same factors which would
authorize the imposition of pretrial confinement under
R.C.M. 305(h)(2)(B).
(c) Appellate proceedings.
(1) Appellate counsel. The parties shall be
represented before appellate courts in proceedings
under this rule as provided in R.C.M. 1202. Appellate
Government counsel shall diligently
prosecute an
appeal under this rule.
(2) Court of Criminal Appeals. An appeal under
Article 62 shall, whenever practicable, have priority
over all other proceedings before the Court of Criminal
Appeals. In determining an appeal under Article 62, the
Court of Criminal Appeals may take action only with
respect to matters of law.
(3) Action following decision of Court of Criminal
Appeals. After the Court of Criminal Appeals has
decided any appeal under Article 62, the accused may
petition for review by the Court of Appeals for the
Armed Forces, or the Judge Advocate General may
certify a case to the Court of Appeals for the Armed
Forces. The parties shall be notified of the decision of
the Court of Criminal Appeals promptly. If the
decision is adverse to the accused, the accused shall be
notified of the decision and of the right to petition the
Court of Appeals for the Armed Forces for review
within 60 days. Such notification shall be made orally
on the record at the court-martial or in accordance with
R.C.M. 1203(d). If the accused is notified orally on the
record, trial counsel shall forward by expeditious
means a certificate that the accused was so notified to
the Judge Advocate General, who shall forward a copy
to the clerk of the Court of Appeals for the Armed
Forces when required by the Court. If the decision by
the Court of Criminal Appeals permits it, the court-
martial may proceed as to the affected charges and
specifications pending further review by the Court of
Appeals for the Armed Forces or the Supreme Court,
unless either court orders the proceedings stayed.
Unless the case is reviewed by the Court of Appeals for
the Armed Forces, it shall be returned to the military
judge or the convening authority for appropriate action
in accordance with the decision of the Court of
Criminal Appeals. If the case is reviewed by the Court
of Appeals for the Armed Forces, R.C.M. 1204 and
1205 shall apply.
Discussion
A special trial counsel may request that the applicable Judge
Advocate General certify a case to the Court of Appeals for the
Armed Forces. The United States may appeal a sentence in
accordance with Article 56(d) and the procedures set forth in R.C.M.
1117.
Rule 909. Capacity of the accused to stand trial by
court-martial
(a) In general. No person may be brought to trial by
court-martial if that person is presently suffering from
a mental disease or defect rendering him or her
mentally incompetent to the extent that he or she is
unable to understand the nature of the proceedings
against them or to conduct or cooperate intelligently in
the defense of the case.
Discussion
See also R.C.M. 916(k).
(b) Presumption of capacity. A person is presumed to
have the capacity to stand trial unless the contrary is
established.
(c) Determination before referral.
(1) For offenses over which special trial counsel has
not exercised authority or has deferred, if an inquiry
pursuant to R.C.M. 706 conducted before referral
concludes that an accused is suffering from a mental
disease or defect that renders him or her mentally
incompetent to stand trial, the convening authority
before whom the charges are pending for disposition
may disagree with the conclusion and take any action
authorized under R.C.M. 401, including referral of the
charges to trial. If that convening authority concurs
with the conclusion, the convening authority shall
forward the charges to the general court-martial
convening authority. If, upon receipt of the charges, the
general court-martial convening authority similarly
concurs, then the general court-martial convening
authority shall commit the accused to the custody of
the Attorney General. If the general court-martial
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convening authority does not concur, that authority
may take any action that he or she deems appropriate
in accordance with R.C.M. 407, including referral of
the charges to trial.
(2) For offenses over which special trial counsel has
exercised authority and has not deferred, if an inquiry
pursuant to R.C.M. 706 conducted before referral
concludes that an accused is suffering from a mental
disease or defect that renders him or her mentally
incompetent to stand trial, the general court-martial
convening authority may disagree with the conclusion
and notify special trial counsel who may take any
action authorized under R.C.M. 401A, including
referral of charges. If the general court-martial
convening authority concurs with the conclusion, that
authority shall notify special trial counsel and commit
the accused to the custody of the Attorney General.
(3) Upon request of the Government or the accused,
a military judge may conduct a hearing to determine
the mental capacity of the accused in accordance with
R.C.M. 309 and R.C.M. 909(e) at any time prior to
referral.
(d) Determination after referral. After referral, the
military judge may conduct a hearing to determine the
mental capacity of the accused, either sua sponte or
upon request of either party. If an inquiry pursuant to
R.C.M. 706 conducted before or after referral
concludes that an accused is suffering from a mental
disease or defect that renders him or her mentally
incompetent to stand trial, the military judge shall
conduct a hearing to determine the mental capacity of
the accused. Any such hearing shall be conducted in
accordance with subsection (e) of this rule.
(e) Incompetence determination hearing.
(1) Nature of issue. The mental capacity of the
accused is an interlocutory question of fact.
(2) Standard. Trial may proceed unless it is
established by a preponderance of the evidence that the
accused is presently suffering from a mental disease or
defect rendering him or her mentally incompetent to
the extent that he or she is unable to understand the
nature of the proceedings or to conduct or cooperate
intelligently in the defense of the case. In making this
determination, the military judge is not bound by the
rules of evidence except with respect to privileges.
(3) If the military judge finds the accused is
incompetent to stand trial, the judge shall report this
finding to the general court-martial convening
authority, who shall commit the accused to the custody
of the Attorney General.
(f) Hospitalization of the accused. An accused who is
found incompetent to stand trial under this rule shall be
hospitalized by the Attorney General as provided in
subsection 4241(d) of title 18, United States Code. If
notified that the accused has recovered to such an
extent that he or she is able to understand the nature of
the proceedings and to conduct or cooperate
intelligently in the defense of the case, then the general
court-martial convening authority shall promptly take
custody of the accused. If, at the end of the period of
hospitalization, the accused’s mental condition has not
so improved, action shall be taken in accordance with
section 4246 of title 18, United States Code.
Discussion
Under 18 U.S.C. § 4241(d), the initial period of hospitalization for
an incompetent accused shall not exceed four months. However, in
determining whether there is a substantial probability the accused
will attain the capacity to permit the trial to proceed in the
foreseeable future, the accused may be hospitalized for an additional
reasonable period of time. This additional period of time ends either
when the accused’s mental condition is improved so that trial may
proceed, or when the pending charges against the accused are
dismissed. If charges are dismissed solely due to the accused’s
mental condition, the accused is subject to hospitalization as
provided in 18 U.S.C. §4246.
(g) Excludable delay. All periods of commitment shall
be excluded as provided by R.C.M. 707(c). The 120-
day time period under R.C.M. 707 shall begin anew on
the date the general court-martial convening authority
takes custody of the accused at the end of any period
of commitment. For offenses over which a special trial
counsel has exercised authority and not deferred, the
general court-martial convening authority shall
immediately notify a special trial counsel in
accordance with regulations prescribed by the
Secretary concerned.
Rule 910. Pleas
(a) Types of pleas.
(1) In general. An accused may plead as follows:
(A) guilty;
(B) not guilty of an offense as charged, but guilty
of a named lesser included offense;
(C) guilty with exceptions, with or without
substitutions, not guilty of the exceptions, but guilty of
the substitutions, if any; or
(D) not guilty.
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Discussion
See paragraph 3, Part IV and Appendix 12A, 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 accurately reflecting
the plea and request that the revised specification 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
R.C.M. 910(g).
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).
(2) Conditional pleas. With the approval of the
military judge and the consent of the Government, an
accused may enter a conditional plea of guilty,
reserving the right, on further review or appeal, to
review of the adverse determination of any specified
pretrial motion. If the accused prevails on further
review or appeal, the accused shall be allowed to
withdraw the plea of guilty. The Secretary concerned
may prescribe who may consent for Government;
unless otherwise prescribed by the Secretary
concerned, trial counsel may consent on behalf of the
Government.
(b) Refusal to plead; irregular plea. If an accused fails
or refuses to plead, or makes an irregular plea, the
military judge shall enter a plea of not guilty for the
accused.
Discussion
An irregular plea includes pleas such as guilty without criminality or
guilty to a charge but not guilty to all specifications thereunder.
When a plea is ambiguous, the military judge should have it clarified
before proceeding further.
(c) Advice to accused. Before accepting a plea of
guilty, the military judge shall address the accused
personally and inform the accused of, and determine
that the accused understands, the following:
(1) The nature of the offense to which the plea is
offered, the mandatory minimum penalty, if any,
provided by law, the maximum possible penalty
provided by law, and if applicable, the effect of any
sentence limitation(s) provided for in a plea agreement
on the minimum or maximum possible penalty that
may be adjudged including the effect of any concurrent
or consecutive sentence limitations;
Discussion
The elements of each offense to which the accused has pleaded guilty
should be described to the accused. See also R.C.M. 910(e). The term
“maximum possible penalty” as used in this rule refers to the total
penalty that may be adjudged for all offenses for which the accused
is pleading guilty.
(2) In a general or special court-martial, if the
accused is not represented by counsel, that the accused
has the right to be represented by counsel at every stage
of the proceedings;
(3) That the accused has the right to plead not guilty
or to persist in that plea if already made, and that the
accused has the right to be tried by a court-martial, and
that at such trial the accused has the right to confront
and cross-examine witnesses against the accused, and
the right against self-incrimination;
(4) That if the accused pleads guilty, there will not
be a trial of any kind as to those offenses to which the
accused has so pleaded, so that by pleading guilty the
accused waives the rights described in paragraph (c)(3)
of this rule;
(5) That if the accused pleads guilty, the military
judge will question the accused about the offenses to
which the accused has pleaded guilty, and, if the
accused answers these questions under oath, on the
record, and in the presence of counsel, the accused’s
answers may later be used against the accused in a
prosecution for perjury or false statement; and
Discussion
R.C.M. 910(c)(5) is inapplicable in a court-martial in which the
accused is not represented by counsel.
(6) That if an election by the accused to be tried by
military judge alone has been approved, the accused
will be sentenced by the military judge.
Discussion
In a case in which the accused has not elected trial by military judge
alone and has pleaded guilty to some offenses but not others, the case
will proceed to trial on the merits on the remaining offenses before
members. Following announcement of findings by the members on
all offenses, the accused will be sentenced by the military judge
unless the accused elects to be sentenced by members. See Articles
53(b) and 56, and R.C.M. 1002.
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(d) Ensuring that the plea is voluntary. The military
judge shall not accept a plea of guilty without first, by
addressing the accused personally, determining that the
plea is voluntary and not the result of force or threats
or of promises apart from a plea agreement under
R.C.M. 705. The military judge shall also inquire
whether the accused’s willingness to plead guilty
results from prior discussions between the convening
authority, a representative of the convening authority,
or trial counsel, and the accused or defense counsel.
(e) Determining accuracy of plea. The military judge
shall not accept a plea of guilty without making such
inquiry of the accused as shall satisfy the military judge
that there is a factual basis for the plea. The accused
shall be questioned under oath about the offenses.
Discussion
A plea of guilty must be in accord with the truth. Before the plea is
accepted, the accused must admit every element of the offense(s) to
which the accused pleaded guilty. Ordinarily, the elements should be
explained to the accused. If any potential defense is raised by the
accused’s account of the offense or by other matter presented to the
military judge, the military judge should explain such a defense to
the accused and should not accept the plea unless the accused admits
facts which negate the defense. If the statute of limitations would
otherwise bar trial for the offense, the military judge should not
accept a plea of guilty to it without an affirmative waiver by the
accused. See R.C.M. 907(b)(2)(B).
The accused need not describe from personal recollection all
the circumstances necessary to establish a factual basis for the plea.
Nevertheless the accused must be convinced of, and able to describe,
all the facts necessary to establish guilt. For example, an accused
may be unable to recall certain events in an offense, but may still be
able to adequately describe the offense based on witness statements
or similar sources which the accused believes to be true.
The accused should remain at the counsel table during
questioning by the military judge.
(f) Plea agreement inquiry.
(1) In general. A plea agreement may not be
accepted if it does not comply with R.C.M. 705.
(2) Notice. The parties shall inform the military
judge if a plea agreement exists.
Discussion
The military judge should ask whether a plea agreement exists. See
R.C.M. 910(d). Even if the military judge fails to so inquire or the
accused answers incorrectly, counsel have an obligation to bring any
agreements or understandings in connection with the plea to the
attention of the military judge. However, the military judge may not
participate in discussions between the parties concerning the
prospective terms and conditions of the plea agreement. See Article
53a(a)(2).
(3) Disclosure. If a plea agreement exists, the
military judge shall require disclosure of the entire
agreement before the plea is accepted.
(4) Inquiry.
(A) The military judge shall inquire to ensure:
(i) that the accused understands the agreement;
and
(ii) that the parties agree to the terms of the
agreement.
(B) If the military judge determines that the
accused does not understand the material terms of the
agreement, or that the parties disagree as to such terms,
the military judge shall:
(i) conform, with the consent of the
Government, the agreement to the accused’s
understanding; or
(ii) permit the accused to withdraw the plea.
Discussion
If the plea agreement contains any unclear or ambiguous terms, the
military judge should obtain clarification from the parties. If there is
doubt about the accused’s understanding of any terms in the
agreement, including the maximum possible penalty that may be
adjudged pursuant to any sentence limitation, the military judge
should explain those terms to the accused. If the accused after
entering a plea of guilty sets up a matter inconsistent with the plea,
the military judge shall resolve the inconsistency or reject the plea.
See Article 45.
(5) Sentence limitations in plea agreements. If a plea
agreement contains limitations on the punishment that
may be imposed, the court-martial, subject to
subparagraph (4)(B) and R.C.M. 705, shall sentence
the accused in accordance with the agreement.
(6) Accepted plea agreement. After the plea
agreement inquiry, the military judge shall announce
on the record whether the plea and the plea agreement
are accepted. Upon acceptance by the military judge, a
plea agreement shall bind the parties and the court-
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martial.
(7) Rejected plea agreement. If the military judge
does not accept a plea agreement, the military judge
shall—
(A) issue a statement explaining the basis for the
rejection;
(B) allow the accused to withdraw any plea; and
(C) inform the accused that if the plea is not
withdrawn the court-martial may impose any lawful
punishment.
(8) Basis for rejecting a plea agreement. The
military judge of a general or special court-martial
shall reject a plea agreement that—
(A) contains a provision that has not been accepted
by both parties;
(B) contains a provision that is not understood by
the accused;
(C) except as provided in Article 53a(c), contains
a provision for a sentence that is less than the
mandatory minimum sentence applicable to an offense
referred to in Article 56(b)(2);
(D) is prohibited by law; or
(E) is contrary to, or is inconsistent with, these
rules with respect to the terms, conditions, or other
aspects of plea agreements.
Discussion
See Article 53a and R.C.M. 705 regarding the military judge’s
responsibility to review the terms and conditions of the plea
agreement.
(g) Findings. Findings based on a plea of guilty may be
entered immediately upon acceptance of the plea at an
Article 39(a) session unless the plea is to a lesser
included offense and the prosecution intends to
proceed to trial on the offense as charged.
(h) Later action.
(1) Withdrawal by the accused. If after acceptance of
the plea but before the sentence is announced the
accused requests to withdraw a plea of guilty and
substitute a plea of not guilty or a plea of guilty to a
lesser included offense, the military judge shall permit
the accused to do so only for good cause shown.
(2) Statements by accused inconsistent with plea. If
after findings but before the sentence is announced the
accused makes a statement to the court-martial, in
testimony or otherwise, or presents evidence which is
inconsistent with a plea of guilty on which a finding is
based, the military judge shall inquire into the
providence of the plea. If, following such inquiry, it
appears that the accused entered the plea improvidently
or through lack of understanding of its meaning and
effect a plea of not guilty shall be entered as to the
affected charges and specifications.
Discussion
When the accused withdraws a previously accepted plea for guilty or
a plea of guilty is set aside, counsel should be given a reasonable
time to prepare to proceed. In a trial by military judge alone, recusal
of the military judge will ordinarily be necessary when a plea is
rejected or withdrawn after findings; in trial with members, a mistrial
will ordinarily be necessary.
(i) [Reserved]
(j) Waiver. Except as provided in paragraph (a)(2) of
this rule, a plea of guilty that results in a finding of
guilty waives any objection, whether or not previously
raised, as to the factual issue of guilt of the offense(s)
to which the plea was made and any non-jurisdictional
defect as to the offense(s) to which the plea was made
that occurred prior to the plea.
Discussion
Other errors with respect to the plea inquiry or acceptance of a plea
under this rule are subject to waiver if not brought to the attention of
the military judge.
Rule 911. Randomization and assembly of the
court-martial panel
(a) Prior to assembly of the court-martial, at an open
session of the court-martial, the military judge, or a
designee thereof, shall randomly assign numbers to the
members detailed by the convening authority.
(b) The military judge shall determine, after accounting
for any excusals by the convening authority or
designee, how many members detailed by the
convening authority must be present at the initial
session for which members are required. The required
number of members shall be present, according to the
randomly assigned order determined pursuant to
R.C.M. 911(a). The military judge may temporarily
excuse any member who has been detailed but is not
required to be present.
(c) At the initial session for which members are
required, the military judge shall cause the members
who are present to be sworn, account on the record for
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any members who are temporarily excused, and then
announce assembly of the court-martial.
(d) The military judge shall ensure any additional
member is sworn at the first court session at which the
member is present.
Discussion
The members are seated with the president, who is the senior
member, in the center, and the other members alternately to the
president’s right and left according to rank. If the rank of a member
is changed, or if the membership of the court-martial changes, the
members should be reseated accordingly.
When an accused’s request to be tried by military judge alone
is approved, the court-martial is ordinarily assembled immediately
following approval of the request.
In a special court-martial consisting of a military judge alone
under Article 16(c)(2)(A), the court-martial is assembled prior to
beginning of the trial on the merits.
A
ssembly of the court-martial is significant because it marks
the point after which: substitution of the members and military judge
may no longer take place without good cause (see Article 29, R.C.M.
505, 902, 912); the accused may no longer, as a matter of right,
request trial by military judge alone or withdraw such a request
previously approved (see Article 16, R.C.M. 903(d)); and the
accused may no longer request members even with the permission of
the military judge, or withdraw from a request for members (see
Article 25(c)(2); R.C.M. 903(d)).
Rule 912. Challenge of selection of members;
examination and challenges of members
(a) Pretrial matters.
(1) Questionnaires. Before trial, trial counsel may,
and shall upon request of defense counsel, submit to
each member written questions requesting the
following information:
(A) Date of birth;
(B) Sex;
(C) Race;
(D) Marital status and sex, age, and number of
dependents;
(E) Home of record;
(F) Civilian and military education, including,
when available, major areas of study, name of school
or institution, years of education, and degrees received;
(G) Current unit to which assigned;
(H) Past duty assignments;
(I) Awards and decorations received;
(J) Date of rank; and
(K) Whether the member has acted as accuser,
counsel, preliminary hearing officer, investigating
officer, convening authority, or legal officer or staff
judge advocate for the convening authority in the case,
or has forwarded the charges with a recommendation
as to disposition.
Additional information may be requested with the
approval of the military judge. Each member’s
responses to the questions shall be written and signed
by the member. For purposes of this rule, the term
“members” includes any alternate members.
Discussion
Using questionnaires before trial may expedite voir dire and may
permit more informed exercise of challenges.
If the questionnaire is marked or admitted as an exhibit at the
court-martial it must be attached to or included in the record of trial.
See R.C.M. 1112(b)(6).
(2) Other materials. A copy of any written materials
considered by the convening authority in selecting the
members detailed to the court-martial shall be provided
to any party upon request, except that such materials
pertaining solely to persons who were not selected for
detail as members need not be provided unless the
military judge, for good cause, so directs.
(b) Challenge of selection of members.
(1) Motion. Before the examination of members
under subsection (d) of this rule begins, or at the next
session after a party discovered or could have
discovered by the exercise of diligence, the grounds
therefor, whichever is earlier, that party may move to
stay the proceedings on the ground that members were
selected improperly.
Discussion
See R.C.M. 502(a) and 503(a) concerning selection of members.
Members are also improperly selected when, for example, a certain
group or class is arbitrarily excluded from consideration as members.
(2) Procedure. Upon a motion under paragraph
(b)(1) of this rule containing an offer of proof of
matters which, if true, would constitute improper
selection of members, the moving party shall be
entitled to present evidence, including any written
materials considered by the convening authority in
selecting the members. Any other party may also
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present evidence on the matter. If the military judge
determines that the members have been selected
improperly, the military judge shall stay any
proceedings requiring the presence of members until
members are properly selected.
(3) Forfeiture. Failure to make a timely motion
under this subsection shall forfeit the improper
selection unless it constitutes a violation of R.C.M.
501(a), 502(a)(1), or 503(a)(2).
(c) Stating grounds for challenge. Trial counsel shall
state any ground for challenge for cause against any
member of which trial counsel is aware.
(d) Examination of members. The military judge may
permit the parties to conduct examination of members
or may personally conduct examination. In the latter
event the military judge shall permit the parties to
supplement the examination by such further inquiry as
the military judge deems proper or the military judge
shall submit to the members such additional questions
by the parties as the military judge deems proper. A
member may be questioned outside the presence of
other members when the military judge so directs.
Discussion
Examination of the members is called “voir dire.” If the members
have not already been placed under oath for the purpose of voir dire
(see R.C.M. 807(b)(2) Discussion (B)), they should be sworn before
they are questioned.
The opportunity for voir dire should be used to obtain
information for the intelligent exercise of challenges; counsel should
not purposely use voir dire to present factual matter which will not
be admissible or to argue the case.
The nature and scope of the examination of members is within
the discretion of the military judge. Members may be questioned
individually or collectively. Ordinarily, the military judge should
permit counsel to personally question the members.
Trial counsel ordinarily conducts an inquiry before the defense.
Whether trial counsel will question all the members before the
defense begins or whether some other procedure will be followed
depends on the circumstances. For example, when members are
questioned individually outside the presence of other members, each
party would ordinarily complete questioning that member before
another member is questioned. The military judge and each party
may conduct additional questioning, after initial questioning by a
party, as necessary.
Ordinarily the members should be asked whether they are
aware of any ground for challenge against them. This may expedite
further questioning. The members should be cautioned, however, not
to disclose information in the presence of other members which
might disqualify them.
(e) Evidence. Any party may present evidence relating
to whether grounds for challenge exist against a
member.
(f) Challenges and removal for cause.
(1) Grounds. A member shall be excused for cause
whenever it appears that the member:
(A) Is not competent to serve as a member under
Article 25(a), (b), or (c);
(B) Has not been properly detailed as a member of
the court-martial;
(C) Is an accuser as to any offense charged;
(D) Will be a witness in the court-martial;
(E) Has acted as counsel for any party as to
any
offense charged;
(F) Has been a preliminary hearing officer as to
any offense charged;
(G) Has acted in the same case as convening
authority or as the legal officer or staff judge advocate
to the convening authority;
(H) Will act in the same case as reviewing
authority or as the legal officer or staff judge advocate
to the reviewing authority;
(I) H
as forwarded charges in the case with a
personal recommendation as to disposition;
(J) Upon a rehearing or new or other trial of the
case, was a member of the court-martial which heard
the case before;
(K) Is junior to the accused in grade or rank, unless
it is established that this could not be avoided;
(L) Is in arrest or confinement;
(M) Has formed or expressed a definite opinion as
to the guilt or innocence of the accused as to any
offense charged;
(N) Should not sit as a member in the interest of
having the court-martial free from substantial doubt as
to legality, fairness, and impartiality.
Discussion
Examples of matters which may be grounds for challenge are that the
member: has a direct personal interest in the result of the trial; is
closely related to the accused, a counsel, or a witness in the case; has
participated as a member or counsel in the trial of a closely related
case; has a decidedly friendly or hostile attitude toward a party; or
has an inelastic opinion concerning an appropriate sentence for the
offenses charged.
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(2) When made.
(A) Upon completion of examination. Upon
completion of any examination under subsection (d) of
this rule and the presentation of evidence, if any, on the
matter, each party shall state any challenges for cause
it elects to make.
(B) Other times. A challenge for cause may be
made at any other time during trial when it becomes
apparent that a ground for challenge may exist. Such
examination of the member and presentation of
evidence as may be necessary may be made in order to
resolve the matter.
(3) Procedure. Each party shall be permitted to make
challenges outside the presence of the members. The
party making a challenge shall state the grounds for it.
Ordinarily trial counsel shall enter any challenges for
cause before defense counsel. The military judge shall
rule finally on each challenge. The burden of
establishing that grounds for a challenge exist is upon
the party making the challenge. A member successfully
challenged shall be excused.
(4) Waiver. The grounds for challenge in
subparagraph (f)(1)(A) of this rule may not be waived.
Notwithstanding the absence of a challenge or waiver
of a challenge by the parties, the military judge may, in
the interest of justice, excuse a member against whom
a challenge for cause would lie. When a challenge for
cause has been denied, the successful use of a
peremptory challenge by either party, excusing the
challenged member from further participation in the
court-martial, shall preclude further consideration of
the challenge of that excused member upon later
review. Further, failure by the challenging party to
exercise a peremptory challenge against any member
shall constitute waiver of further consideration of the
challenge upon later review.
Discussion
See Mil. R. Evid. 606 regarding when a member may be a witness.
Random numbers are assigned to the members in order to
organize and identify the members to be impaneled under R.C.M.
912A.
(g) Peremptory challenges.
(1) Procedure. Each party may challenge one
member peremptorily. Any member so challenged
shall be excused. No party may be required to exercise
a peremptory challenge before the examination of
members and determination of any challenges for
cause have been completed. Ordinarily, trial counsel
shall enter any peremptory challenge before the
defense. No member may be impaneled without being
subject to peremptory challenge.
(2) Additional Members. If members not previously
subject to peremptory challenge are required, the
procedures in R.C.M. 912(g)(1) shall be followed with
respect to such members.
Discussion
This rule allows for each party to exercise an additional preemptory
challenge against a detailed member whose presence is directed in
accordance with R.C.M. 912A, after examination and challenges for
cause. See Article 41(c). If a military judge orders the presence of
additional detailed members for examination in accordance with
R.C.M. 911, those additional detailed members must be subject to a
peremptory challenge prior to impanelment. If the convening
authority details additional members, those additional detailed
members must be subject to a peremptory challenge prior to
impanelment.
Generally, no reason is necessary for a peremptory challenge.
But see Batson v. Kentucky, 476 U.S. 79 (1986); United States v.
Tulloch, 47 M.J. 283 (C.A.A.F. 1997); United States v. Curtis, 33
M.J. 101 (C.M.A. 1991), cert. denied, 502 U.S. 1097 (1992); United
States v. Moore, 28 M.J. 366 (C.M.A. 1989); United States v.
Santiago-Davilla, 26 M.J. 380 (C.M.A. 1988).
(3) Waiver. Failure to exercise a peremptory
challenge when properly called upon to do so shall
waive the right to make such a challenge. The military
judge may, for good cause shown, grant relief from the
waiver, but a peremptory challenge may not be made
after the presentation of evidence before the members
has begun. However, nothing in this subsection shall
bar the exercise of a peremptory challenge against a
member newly detailed under R.C.M. 505(c)(2)(B),
even if presentation of evidence on the merits has
begun.
Discussion
When the membership of the court-martial has been reduced below
the number of members required under R.C.M. 501(a), as applicable,
or, when enlisted members have been requested and the fraction of
enlisted members has been reduced below one-third, the proceedings
should be adjourned and the convening authority notified so that new
members may be detailed. See R.C.M. 505. See also R.C.M. 805(d)
concerning other procedures when new members are detailed.
(h) Definitions.
(1) Witness. For purposes of this rule, “witness”
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includes one who testifies at a court-martial and
anyone whose declaration is received in evidence for
any purpose, including written declarations made by
affidavit or otherwise.
Discussion
For example, a person who by certificate has attested or otherwise
authenticated an official record or other writing introduced in
evidence is a witness.
(2) Preliminary hearing officer. For purposes of this
rule, “preliminary hearing officer” includes any person
who has examined charges under R.C.M. 405 and any
person who was counsel for a member of a court of
inquiry, or otherwise personally has conducted an
investigation of the general matter involving the
offenses charged.
Rule 912A. Impaneling members and alternate
members
(a) In general. After challenges for cause and
peremptory challenges are exercised, the military
judge of a general or special court-martial with
members shall impanel the members based on the order
assigned in R.C.M. 911(a), and, if authorized by the
convening authority, alternate members, in accordance
with the following numerical requirements:
(1) Capital cases. In a general court-martial in which
the charges were referred with a special instruction that
the case be tried as a capital case, the number of
members impaneled, subject to R.C.M. 912A(a)(4),
shall be twelve.
(2) General courts-martial. In a general court-
martial other than as described in R.C.M. 912A(a)(1),
the number of members impaneled, subject to R.C.M.
912A(a)(4), shall be eight.
(3) Special courts-martial. In a special court-martial,
the number of members impaneled, subject to R.C.M.
912A(a)(4), shall be four.
(4) Alternate members. A convening authority may
authorize the military judge to impanel alternate
members. When authorized by the convening
authority, the military judge shall designate which of
the impaneled members are alternate members in
accordance with these rules and consistent with the
instructions of the convening authority. Alternate
members shall not be notified that they are alternate
members until they are excused prior to deliberations
on findings.
(A) If the convening authority authorizes the
military judge to impanel a specific number of alternate
members, the number of members impaneled shall be
the number of members required under R.C.M.
912A(a)(1), (2), or (3), as applicable, plus the number
of alternate members specified by the convening
authority. The military judge shall not impanel the
court-martial until the specified number of alternate
members has been identified. New members may be
detailed in order to impanel the specified number of
alternate members.
(B) If the convening authority does not authorize
the military judge to impanel a specific number of
alternate members, and instead authorizes the military
judge to impanel alternate members only if, after the
exercise of all challenges, excess members remain, the
number of members impaneled shall be the number of
members required under R.C.M. 912A(a)(1), (2), or (3)
and no more than three alternate members. New
members shall not be detailed in order to impanel
alternate members.
Discussion
See Article 29(c), R.C.M. 503(a)(1), and R.C.M. 912A(d).
(b) Enlisted accused. In the case of an enlisted accused,
the members shall be impaneled under R.C.M. 912A(a)
in such numbers and proportion that—
(1) If the accused elected to be tried by a court-
martial composed of at least one-third enlisted
members, the membership of the panel includes at least
one-third enlisted members; and
(2) If the accused elected to be tried by a court-
martial composed of all officer members, the
membership of the panel includes all officer members.
(c) Number of members insufficient.
(1) If, after challenges or excusals, the number of
detailed members directed to be present by the military
judge in accordance with R.C.M. 911(b) is:
(A) fewer than the number of members required
for the court-martial under R.C.M. 912A(a), the
military judge shall, according to the randomly
assigned order determined pursuant to R.C.M. 911(a),
determine how many additional detailed members are
required and shall direct their presence for member
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examination in accordance with R.C.M. 912(d).
(B) fewer than the number of members required
for the court-martial under R.C.M. 912A(b), the
military judge shall, according to the randomly
assigned order determined pursuant to R.C.M. 911(a),
determine how many additional detailed enlisted
members are required and shall direct their presence
for member examination in accordance with R.C.M.
912(d).
(2) If, after challenges or excusals, the number of
detailed members remaining is fewer than the number
of members required for the court-martial under
R.C.M. 912A(a) and (b), the convening authority shall
detail new members under R.C.M. 503.
(d) Impaneling members following the exercise of all
challenges. The military judge shall use the following
procedures to identify the members who will be
impaneled—
(1) In a case in which the accused has elected to be
tried by a panel consisting of at least one-third enlisted
members under R.C.M. 503(a)(2), the military judge
shall:
(A) first identify the one-third enlisted members
required under R.C.M. 912A(a) and (b) in numerical
order beginning with the lowest random number
assigned pursuant to R.C.M. 911(a); and
(B) then identify the remaining members required
for the court-martial under R.C.M. 912A(a) and (b), in
numerical order beginning with the lowest random
number assigned pursuant to R.C.M. 911(a).
(2) For all other panels, the military judge shall
identify the number of members required under R.C.M.
912A(a) and (b) in numerical order beginning with the
lowest random number assigned pursuant to R.C.M.
911(a).
(3) If the convening authority:
(A) Authorizes the military judge to impanel a
specific number of alternate members, the specified
number of alternate members shall be identified in
numerical order beginning with the lowest remaining
random number assigned pursuant to R.C.M. 911(a),
after first identifying members under R.C.M.
912A(d)(1) or (2).
(B) Does not authorize the military judge to
impanel a specific number of alternate members, and
instead authorizes the military judge to impanel
alternate members only if, after the exercise of all
challenges, excess members remain, alternate
members shall be identified in numerical order
beginning with the lowest remaining random number
assigned pursuant to R.C.M. 911(a), after first
identifying the members under 912A(d)(1) or (2). The
military judge shall identify no more than three
alternate members.
(C) In a case in which the accused has elected to
be tried by a panel consisting of at least one-third
enlisted members under R.C.M. 503(a)(2), the
convening authority may instruct the military judge to
prioritize impaneling a specific number of alternate
enlisted members before impaneling alternate officer
members. These members shall be identified in
numerical order beginning with the lowest remaining
random number assigned pursuant to R.C.M. 911(a),
after first identifying members under 912A(d)(1).
(4) The military judge shall excuse any members not
identified as members or alternate members, if any.
Discussion
When the accused has elected to be tried by a panel consisting of at
least one-third enlisted members in accordance with R.C.M.
503(a)(2), the military judge is required to identify the minimum
number of enlisted members before identifying the remaining
members to ensure the number of members required under R.C.M.
501(a), as applicable, is reached. For example, in a general court-
martial in which the accused has requested at least one-third enlisted
members, there must be at least three enlisted members. If, after the
exercise of all challenges, the number of enlisted members is greater
than three, the military judge first seats the three enlisted members
assigned the three lowest numbers during voir dire. The military
judge then seats the next five members, regardless of grade, assigned
the lowest numbers.
If the convening authority authorized the military judge to
impanel alternate members, the military judge would follow this
process to identify the authorized number of alternate members. For
example, in a court-martial in which the convening authority has
authorized the military judge to impanel alternate members, but has
not directed that a specific number of alternate members be
impaneled, the military judge first seats the number of members
required for the court-martial. If three or fewer excess members
remain, the military judge identifies all excess members as alternate
members. If more than three excess members remain, the military
judge then identifies the next three members, regardless of grade,
assigned the next lowest numbers as alternate members.
All members not seated as members or identified as alternate
members are then excused by the military judge.
(e) Lowest number. The lowest number is the number
with the lowest numerical value.
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Discussion
For example, the following numbers are listed numerically from
lowest to highest: 1, 2, 3, and 4.
(f) Announcement. After identifying the members to be
impaneled in accordance with this rule, and after
excusing any excess members, the military judge shall
announce that the members are impaneled.
Rule 912B. Excusal and replacement of members
after impanelment
(a) In general. Prior to the start of deliberations, a
member who has been excused after impanelment shall
be replaced in accordance with this rule. Alternate
members excused after impanelment shall not be
replaced.
(b) Alternate members impaneled. Prior to the start of
deliberations, an excused member shall be replaced
with an impaneled alternate member. The alternate
member with the lowest random number assigned
pursuant to R.C.M. 911(a) shall replace the excused
member, unless in the case of an enlisted accused, the
use of such member would be inconsistent with the
specific panel composition established under R.C.M.
903. Alternate members who have not replaced
impaneled members prior to deliberations on findings
shall be excused at the time the court closes for
deliberations.
Discussion
When an accused has elected to be tried by a court-martial composed
of at least one-third enlisted members, an officer member cannot
replace an excused enlisted member unless the total panel
membership remains at least one-third enlisted.
(c) Alternate members not available.
(1) Detailing of new members not required. In a
general court-martial in which a sentence of death may
not be adjudged, if, after impanelment, a court-martial
member is excused and alternate members are not
available, the court-martial may proceed if—
(A) There are at least six members; and
(B) In the case of an enlisted accused, the
remaining panel composition is
consistent with the
specific panel composition established under R.C.M.
903
.
(2) Detailing of additional members required. In all
cases other than those described in paragraph (1), if an
impaneled member is excused and no alternate
member is available to replace the excused member,
the court-martial may not proceed until the convening
authority details sufficient additional new members.
(d) After the start of deliberations. Once the military
judge has closed the court for deliberations, if the
number of members is reduced below the requirements
of Article 29, trial may not proceed and the military
judge shall declare a mistrial.
Rule 913. Presentation of the case on the merits
(a) Preliminary instructions. The military judge may
give such preliminary instructions as may be
appropriate. If mixed pleas have been entered, the
military judge should ordinarily defer informing the
members
of the offenses to which the accused pleaded
guilty until after the findings on the remaining
contested offenses have been entered.
Discussion
Preliminary instructions may include a description of the duties of
members, procedures to be followed in the court-martial, and other
appropriate matters.
Exceptions to the rule requiring the military judge to defer
informing the members of an accused’s prior pleas of guilty include
cases in which the accused has specifically requested, on the record,
that the military judge instruct the members of the prior pleas of
guilty and cases in which a plea of guilty was to a lesser included
offense within the contested offense charged in the specification. See
R.C.M. 910(g), Discussion and R.C.M. 920(e), Discussion,
paragraph 3.
(b) Opening statements. Each party may make one
opening statement to the court-martial before
presentation of evidence has begun. The defense may
elect to make its statement after the prosecution has
rested, before the presentation of evidence for the
defense. The military judge may, as a matter of
discretion, permit the parties to address the court-
martial at other times.
Discussion
Counsel should confine their remarks to evidence they expect to be
offered which they believe in good faith will be available and
admissible and a brief statement of the issues in the case.
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(c) Presentation of evidence. Each party shall have full
opportunity to present evidence.
(1) Order of presentation. Ordinarily the following
sequence shall be followed:
(A) Presentation of evidence for the prosecution;
(B) Presentation of evidence for the defense;
(C) Presentation of prosecution evidence in
rebuttal;
(D) Presentation of defense evidence in
surrebuttal;
(E) Additional rebuttal evidence in the discretion
of the military judge; and
(F) Presentation of evidence requested by the
military judge or members.
Discussion
See R.C.M. 801(a) and Mil. R. Evid. 611 concerning control by the
military judge over the order of proceedings.
(2) Taking testimony. The testimony of witnesses
shall be taken orally in open session, unless otherwise
provided in this Manual.
Discussion
Each witness must testify under oath. See R.C.M. 807(b)(1)(B), Mil.
R. Evid. 603. After a witness is sworn, the witness should be
identified for the record (full name, rank, and unit, if military, or full
name and address, if civilian). The party calling the witness conducts
direct examination of the witness, followed by cross-examination of
the witness by the opposing party. Redirect and re-cross-examination
are conducted as necessary, followed by any questioning by the
military judge and members. See Mil. R. Evid. 611, 614.
All documentary and real evidence (except marks or wounds
on a person’s body) should be marked for identification when first
referred to in the proceedings and should be included in the record
of trial whether admitted in evidence or not. See R.C.M. 1112. “Real
evidence” include physical objects, such as clothing, weapons, and
marks or wounds on a person’s body. If it is impracticable to attach
an item of real evidence to the record, the item should be clearly and
accurately described by testimony, photographs, or other means so
that it may be considered on review. Similarly, when documentary
evidence is used, if the document cannot be attached to the record
(as in the case of an original official record or a large map), a legible
copy or accurate extract should be included in the record. When a
witness points to or otherwise refers to certain parts of a map,
photograph, diagram, chart, or other exhibit, the place to which the
witness pointed or referred should be clearly identified for the
record, either by marking the exhibit or by an accurate description of
the witness’ actions with regard to the exhibit.
(3) Views and inspections. The military judge may,
as a matter of discretion, permit the court-martial to
view or inspect premises or a place or an article or
object. Such a view or inspection shall take place only
in the presence of all parties, the members (if any), and
the military judge. A person familiar with the scene
may be designated by the military judge to escort the
court-martial. Such person shall perform the duties of
escort under oath. The escort shall not testify, but may
point out particular features prescribed by the military
judge. Any statement made at the view or inspection
by the escort, a party, the military judge, or any
member shall be made part of the record.
Discussion
The fact that a view or inspection has been made does not necessarily
preclude the introduction in evidence of photographs, diagrams,
maps, or sketches of the place or item viewed, if these are otherwise
admissible.
(4) Evidence subject to exclusion. When offered
evidence would be subject to exclusion upon objection,
the military judge may, as a matter of discretion, bring
the matter to the attention of the parties and may, in the
interest of justice, exclude the evidence without an
objection by a party.
Discussion
The military judge should not exclude evidence which is not objected
to by a party except in extraordinary circumstances. Counsel should
be permitted to try the case and present the evidence without
unnecessary interference by the military judge. See also Mil. R. Evid.
103.
(5) Reopening case. The military judge may, as a
matter of discretion, permit a party to reopen its case
after it has rested.
Rule 914. Production of statements of witnesses
(a) Motion for production. After a witness other than
the accused has testified on direct examination, the
military judge, on motion of a party who did not call
the witness, shall order the party who called the witness
to produce, for examination and use by the moving
party, any statement of the witness that relates to the
subject matter concerning which the witness has
testified, and that is:
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(1) In the case of a witness called by trial counsel, in
the possession of the United States; or
(2) In the case of a witness called by the defense, in
the possession of the accused or defense counsel.
Discussion
See also R.C.M. 701.
Counsel should anticipate legitimate demands for statements
under this and similar rules and avoid delays in the proceedings by
voluntary disclosure before arraignment.
This rule does not apply to preliminary hearings under Article
32.
As to procedures for certain government information as to which
a privilege is asserted, see Mil. R. Evid. 505, 506.
(b) Production of entire statement. If the entire
contents of the statement relate to the subject matter
concerning which the witness has testified, the military
judge shall order that the statement be delivered to the
moving party.
(c) Production of excised statement. If the party who
called the witness claims that the statement contains
matter that does not relate to the subject matter
concerning which the witness has testified, the military
judge shall order that it be delivered to the military
judge. Upon inspection, the military judge shall excise
the portions of the statement that do not relate to the
subject matter concerning which the witness has
testified, and shall order that the statement, with such
material excised, be delivered to the moving party. Any
portion of a statement that is withheld from an accused
over objection shall be preserved by trial counsel, and,
in the event of a conviction, shall be made available to
the reviewing authorities for the purpose of
determining the correctness of the decision to excise
the portion of the statement.
(d) Recess for examination of the statement. Upon
delivery of the statement to the moving party, the
military judge may recess the trial for the examination
of the statement and preparation for its use in the trial.
(e) Remedy for failure to produce statement.
(1) Party refusal to comply. If the other party elects
not to comply with an order to deliver a statement to
the moving party, the military judge shall order that the
testimony of the witness be disregarded by the trier of
fact and that the trial proceed, or, if it is the
Government that elects not to comply, shall declare a
mistrial if required in the interest of justice.
(2) Exception. In the event that the other party cannot
comply with this rule because the statement is lost, and
can prove, by a preponderance of evidence, that the
loss of the witness statement was not attributable to bad
faith or gross negligence, the military judge may
exercise the sanctions set forth in paragraph (e)(1) of
this rule only if—
(A) the statement is of such central importance to
an issue that it is essential to a fair trial, and
(B) there is no adequate substitute for the
statement.
(f) Definition. As used in this rule, a “statement” of a
witness means:
(1) A written statement made by the witness that is
signed or otherwise adopted or approved by the
witness;
(2) A substantially verbatim recital of an oral
statement made by the witness that is recorded
contemporaneously with the making of the oral
statement and contained in a recording or a
transcription thereof; or
(3) A statement, however taken or recorded, or a
transcription thereof, made by the witness to a federal
grand jury.
914A. Use of remote live testimony of a child
(a) General procedures. A child shall be allowed to
testify out of the presence of the accused after the
military judge has determined that the requirements of
Mil. R. Evid. 611(d)(3) have been satisfied. The
procedure used to take such testimony will be
determined by the military judge based upon the
exigencies of the situation. At a minimum, the
following procedures shall be observed:
(1) The witness shall testify from a remote location
outside the courtroom;
(2) Attendance at the remote location shall be limited
to the child, counsel for each side (not including an
accused pro se), equipment operators, and other
persons, such as an attendant for the child, whose
presence is deemed necessary by the military judge;
(3) Sufficient monitors shall be placed in the
courtroom to allow viewing and hearing of the
testimony by the military judge, the accused, the
members, the court reporter, and the public;
(4) The voice of the military judge shall be
transmitted into the remote location to allow control of
the proceedings; and
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(5) The accused shall be permitted private,
contemporaneous communication with his counsel.
(b) Definition. As used in this rule, “remote live
testimony” includes, but is not limited to, testimony by
video teleconference, closed circuit television, or
similar technology.
(c) Prohibitions. The procedures described in this rule
shall not be used where the accused elects to absent
himself from the courtroom pursuant to R.C.M.
804(c)(1).
Discussion
For purposes of this rule, unlike R.C.M. 914B, remote means or
similar technology does not include receiving testimony by
telephone where the parties cannot see and hear each other.
Rule 914B. Use of remote testimony
(a) General procedures. The military judge shall
determine the procedures used to take testimony via
remote means. At a minimum, all parties shall be able
to hear each other, those in attendance at the remote
site shall be identified, and the accused shall be
permitted private, contemporaneous communication
with his counsel.
(b) Definition. As used in this rule, testimony via
“remote means” includes, but is not limited to,
testimony by video teleconference, closed circuit
television, telephone, or similar technology.
Discussion
This rule applies for all witness testimony other than child witness
testimony specifically covered by Mil. R. Evid. 611(d) and R.C.M.
914A. When utilizing testimony via remote means, military justice
practitioners are encouraged to consult the procedure used in In re
San Juan Dupont Plaza Hotel Fire Litigation, 129 F.R.D. 424
(D.P.R. 1989), and to read United States v. Gigante, 166 F.3d 75 (2d
Cir. 1999), cert. denied, 528 U.S. 1114 (2000).
Rule 915. Mistrial
(a) In general. The military judge may, as a matter of
discretion, declare a mistrial when such action is
manifestly necessary in the interest of justice because
of circumstances arising during the proceedings which
cast substantial doubt upon the fairness of the
proceedings. A mistrial may be declared as to some or
all charges, and as to the entire proceedings or as to
only the proceedings after findings.
Discussion
The power to grant a mistrial should be used with great caution,
under urgent circumstances, and for plain and obvious reasons. As
examples, a mistrial may be appropriate when inadmissible matters
so prejudicial that a curative instruction would be inadequate are
brought to the attention of the members or when members engage in
prejudicial misconduct. Also, a mistrial is appropriate when the
proceedings must be terminated because of a legal defect, such as a
jurisdictional defect or a defective referral. See also R.C.M. 905(g)
concerning the effect of rulings in one proceeding on later
proceedings.
(b) Procedure. On motion for a mistrial or when it
otherwise appears that grounds for a mistrial may exist,
the military judge shall inquire into the views of the
parties on the matter and then decide the matter as an
interlocutory question.
(c) Effect of declaration of mistrial.
(1) Withdrawal of charges. A declaration of a
mistrial shall have the effect of withdrawing the
affected charges and specifications from the court-
martial.
Discussion
Upon declaration of a mistrial, the affected charges are returned to
the convening authority, or special trial counsel as applicable, who
may refer them anew or otherwise dispose of them. See R.C.M. 401-
407.
(2) Further proceedings. A declaration of a mistrial
shall not prevent trial by another court-martial on the
affected charges and specifications except when the
mistrial was declared after jeopardy attached and
before findings, and the declaration was:
(A) An abuse of discretion and without the consent
of the defense; or
(B) The direct result of intentional prosecutorial
misconduct designed to necessitate a mistrial.
Rule 916. Defenses
(a) In general. As used in this rule, “defenses” includes
any special defense which, although not denying that
the accused committed the objective acts constituting
the offense charged, denies, wholly or partially,
criminal responsibility for those acts.
Discussion
Special defenses are also called “affirmative defenses.”
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“Alibi” and “good character” are not special defenses, as they
operate to deny that the accused committed one or more of the acts
constituting the offense. As to evidence of the accused’s good
character, see Mil. R. Evid. 404. See R.C.M. 701(b)(2) concerning
notice of alibi.
(b) Burden of proof.
(1) General rule. Except as listed in paragraphs
(b)(2) and (3) of this rule, the prosecution shall have
the burden of proving beyond a reasonable doubt that
the defense did not exist.
(2) Lack of mental responsibility. The accused has
the burden of proving the defense of lack of mental
responsibility by clear and convincing evidence.
(3) Mistake of fact as to age. In the defense of
mistake of fact as to age as described in Article
120b(d)(2) in a prosecution under Article 120b(b)
(sexual assault of a child) or Article 120b(c) (sexual
abuse of a child), the accused has the burden of proving
mistake of fact as to age by a preponderance of the
evidence.
Discussion
A defense may be raised by evidence presented by the defense, the
prosecution, or the court-martial. For example, in a prosecution for
assault, testimony by prosecution witnesses that the victim
brandished a weapon toward the accused may raise a defense of self-
defense. See R.C.M. 916(e). More than one defense may be raised as
to a particular offense. The defenses need not necessarily be
consistent.
See R.C.M. 920(e) concerning instructions on defenses.
(c) Justification. A death, injury, or other act caused or
done in the proper performance of a legal duty is
justified and not unlawful.
Discussion
The duty may be imposed by statute, regulation, or order. For
example, the use of force by a law enforcement officer when
reasonably necessary in the proper execution of a lawful
apprehension is justified because the duty to apprehend is imposed
by lawful authority. Also, killing an enemy combatant in battle is
justified.
(d) Obedience to orders. It is a defense to any offense
that the accused was acting pursuant to orders unless
the accused knew the orders to be unlawful or a person
of ordinary sense and understanding would have
known the orders to be unlawful.
Discussion
Ordinarily, the lawfulness of an order is decided by the military
judge. See R.C.M. 801(e). An exception might exist when the sole
issue is whether the person who gave the order in fact occupied a
certain position at the time.
An act performed pursuant to a lawful order is justified. See
R.C.M. 916(c). An act performed pursuant to an unlawful order is
excused unless the accused knew it to be unlawful or a person of
ordinary sense and understanding would have known it to be
unlawful.
(e) Self-defense.
(1) Homicide or assault cases involving deadly
force. It is a defense to a homicide, assault involving
deadly force, or battery involving deadly force that the
accused:
(A) Apprehended, on reasonable grounds, that
death or grievous bodily harm was about to be inflicted
wrongfully on the accused; and
(B) Believed that the force the accused used was
necessary for protection against death or grievous
bodily harm.
Discussion
The words “involving deadly force” describe the factual
circumstances of the case, not specific assault offenses. If the
accused is charged with simple assault, battery, or any form of
aggravated assault, or if simple assault, battery, or any form of
aggravated assault is at issue as a lesser included offense, the accused
may rely on this subparagraph if the test specified in subparagraphs
(A) and (B) is satisfied.
The test for the first element of self-defense is objective. Thus,
the accused’s apprehension of death or grievous bodily harm must
have been one which a reasonable, prudent person would have held
under the circumstances. Because this test is objective, such matters
as intoxication or emotional instability of the accused are irrelevant.
On the other hand, such matters as the relative height, weight, and
general build of the accused and the alleged victim, and the
possibility of safe retreat are ordinarily among the circumstances
which should be considered in determining the reasonableness of the
apprehension of death or grievous bodily harm.
The test for the second element is entirely subjective. The
accused is not objectively limited to the use of reasonable force.
Accordingly, such matters as the accused’s emotional control,
education, and intelligence are relevant in determining the accused’s
actual belief as to the force necessary to repel the attack.
See also Mil. R. Evid. 404(a)(2) as to evidence concerning the
character of the victim.
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(2) Certain aggravated offer-type assault cases. It is
a defense to aggravated assault that the accused:
(A) Apprehended, on reasonable grounds, that
bodily harm was about to be inflicted wrongfully on
the accused; and
(B) In order to deter the assailant, offered but did
not actually inflict or attempt to inflict substantial or
grievous bodily harm.
Discussion
The principles in the discussion of R.C.M. 916(e)(1) concerning
reasonableness of the apprehension of bodily harm apply here.
(3) Other assaults. It is a defense to any assault
punishable under Article 89, 91, 128, or 128b and not
listed in paragraphs (e)(1) or (2) of this rule that the
accused:
(A) Apprehended, upon reasonable grounds, that
bodily harm was about to be inflicted wrongfully on
the accused; and
(B) Believed that the force that the accused used was
necessary for protection against bodily harm, provided
that the force used by the accused was less than force
reasonably likely to produce death or grievous bodily
harm.
Discussion
The principles in the discussion under R.C.M. 916(e)(1) apply here.
If, in using only such force as the accused was entitled to use
under this aspect of self-defense, death or serious injury to the victim
results, this aspect of self-defense may operate in conjunction with
the defense of accident (see subsection (f) of this rule) to excuse the
accused’s acts. The death or serious injury must have been an
unintended and unexpected result of the accused’s proper exercise of
the right of self-defense.
(4) Loss of right to self-defense. The right to self-
defense is lost and the defenses described in paragraphs
(e)(1), (2), and (3) of this rule shall not apply if the
accused was an aggressor, engaged in mutual combat,
or provoked the attack which gave rise to the
apprehension, unless the accused had withdrawn in
good faith after the aggression, combat, or provocation
and before the offense alleged occurred.
Discussion
A person does not become an aggressor or provocateur merely
because that person approaches another to seek an interview, even if
the approach is not made in a friendly manner. For example, one may
approach another and demand an explanation of offensive words or
redress of a complaint. If the approach is made in a nonviolent
manner, the right to self-defense is not lost.
Failure to retreat, when retreat is possible, does not deprive the
accused of the right to self-defense if the accused was lawfully
present. The availability of avenues of retreat is one factor which
may be considered in addressing the reasonableness of the accused’s
apprehension of bodily harm and the sincerity of the accused’s belief
that the force used was necessary for self-protection.
(5) Defense of another. The principles of self-
defense under paragraphs (e)(1) through (4) of this rule
apply to defense of another. It is a defense to homicide,
attempted homicide, assault with intent to kill, or any
assault under Article 89, 91, 128, or 128b that the
accused acted in defense of another, provided that the
accused may not use more force than the person
defended was lawfully entitled to use under the
circumstances.
Discussion
The accused acts at the accused’s peril when defending another.
Thus, if the accused goes to the aid of an apparent assault victim, the
accused is guilty of any assault the accused commits on the apparent
assailant if, unbeknownst to the accused, the apparent victim was in
fact the aggressor and not entitled to use self-defense.
(f) Accident. A death, injury, or other event which
occurs as the unintentional and unexpected result of
doing a lawful act in a lawful manner is an accident and
excusable.
Discussion
The defense of accident is not available when the act which caused
the death, injury, or event was a negligent act.
(g) Entrapment. It is a defense that the criminal design
or suggestion to commit the offense originated in the
Government and the accused had no predisposition to
commit the offense.
Discussion
The “Government” includes agents of the Government and persons
cooperating with them (for example, informants). The fact that
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persons acting for the Government merely afford opportunities or
facilities for the commission of the offense does not constitute
entrapment. Entrapment occurs only when the criminal conduct is
the product of the creative activity of law enforcement officials.
When the defense of entrapment is raised, evidence of
uncharged misconduct by the accused of a nature similar to that
charged is admissible to show predisposition. See Mil. R. Evid.
404(b).
(h) Coercion or duress. It is a defense to any offense
except killing an innocent person that the accused’s
participation in the offense was caused by a reasonable
apprehension that the accused or another innocent
person would be immediately killed or would
immediately suffer serious bodily injury if the accused
did not commit the act. The apprehension must
reasonably continue throughout the commission of the
act. If the accused has any reasonable opportunity to
avoid committing the act without subjecting the
accused or another innocent person to the harm
threatened, this defense shall not apply.
Discussion
The immediacy of the harm necessary may vary with the
circumstances. For example, a threat to kill a person’s wife the next
day may be immediate if the person has no opportunity to contact
law enforcement officials or otherwise protect the intended victim or
avoid committing the offense before then.
(i) Inability. It is a defense to refusal or failure to
perform a duty that the accused was, through no fault
of the accused, not physically or financially able to
perform the duty.
Discussion
The test of inability is objective in nature. The accused’s opinion that
a physical impairment prevented performance of the duty will not
suffice unless the opinion is reasonable under all the circumstances.
If the physical or financial inability of the accused occurred
through the accused’s own fault or design, it is not a defense. For
example, if the accused, having knowledge of an order to get a
haircut, spends money on other nonessential items, the accused’s
inability to pay for the haircut would not be a defense.
(j) Ignorance or mistake of fact.
(1) Generally. Except as otherwise provided in this
subsection, it is a defense to an offense that the
accused
held, as a result of ignorance or mistake, an incorrect
belief of the true circumstances such that, if the
circumstances were as the accused believed them, the
accused would not be guilty of the offense. If the
ignorance or mistake goes to an element requiring
premeditation, specific intent, willfulness, or
knowledge of a particular fact, the ignorance or
mistake need only have existed in the mind of the
accused. If the ignorance or mistake goes to any other
element requiring only general intent or knowledge,
the ignorance or mistake must have existed in the mind
of the accused and must have been reasonable under all
the circumstances. However, if the accused’s
knowledge or intent is immaterial as to an element,
then ignorance or mistake is not a defense.
(2) Child Sexual Offenses. It is a defense to a
prosecution under Article 120b(b), sexual assault of a
child, and Article 120b(c), sexual abuse of a child, that,
at the time of the offense, the child was at least 12 years
of age, and the accused reasonably believed that the
child had attained the age of 16 years. The accused
must prove this defense by a preponderance of the
evidence.
Discussion
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,
e.g., paragraph 94, Part IV, Check, worthless making and uttering –
by dishonorably failing to maintain 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: rape of a child, sexual assault of a
child, or sexual abuse of a child (if the victim is under 12 years of
age, knowledge or belief as to age is immaterial). However, such
ignorance or mistake may be relevant in extenuation and mitigation.
See R.C.M. 916(l)(1) concerning ignorance or mistake of law.
(k) Lack of mental responsibility.
(1) Lack of mental responsibility. It is an affirmative
defense to any offense that, at the time of the
commission of the acts constituting the offense, the
accused, as a result of a severe mental disease or defect,
was unable to appreciate the nature and quality or the
wrongfulness of his or her acts. Mental disease or
defect does not otherwise constitute a defense.
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Discussion
See R.C.M. 706 concerning sanity inquiries; R.C.M. 909 concerning
the capacity of the accused to stand trial; and R.C.M. 1105
concerning any post-trial hearing for an accused found not guilty
only by reason of lack of mental responsibility.
(2) Partial mental responsibility. A mental condition
not amounting to a lack of mental responsibility under
paragraph (k)(1) of this rule is not an affirmative
defense.
Discussion
Evidence of a mental condition not amounting to a lack of mental
responsibility may be admissible as to whether the accused
entertained a state of mind necessary to be proven as an element of
the offense. The defense must notify the trial counsel before the
beginning of trial on the merits if the defense intends to introduce
expert testimony as to the accused’s mental condition. See R.C.M.
701(b)(2).
(3) Procedure.
(A) Presumption. The accused is presumed to
have been mentally responsible at the time of the
alleged offense. This presumption continues until the
accused establishes, by clear and convincing evidence,
that he or she was not mentally responsible at the time
of the alleged offense.
Discussion
The accused is presumed to be mentally responsible, and this
presumption continues throughout the proceedings unless the finder
of fact determines that the accused has proven lack of mental
responsibility by clear and convincing evidence. See R.C.M. 916(b).
(B) Inquiry. If a question is raised concerning the
mental responsibility of the accused, the military judge
shall rule finally whether to direct an inquiry under
R.C.M. 706.
Discussion
If an inquiry is directed, priority should be given to it.
(C) Determination. The issue of mental
responsibility shall not be considered as an
interlocutory question.
(l) Not defenses generally.
(1) Ignorance or mistake of law. Ignorance or
mistake of law, including general orders or regulations,
ordinarily is not a defense.
Discussion
For example, ignorance that it is a crime to possess marijuana is not
a defense to wrongful possession of marijuana.
Ignorance or mistake of law may be a defense in some limited
circumstances. If the accused, because of a mistake as to a separate
nonpenal law, lacks the criminal intent or state of mind necessary to
establish guilt, this may be a defense. For example, if the accused,
under mistaken belief that the accused is entitled to take an item
under property law, takes an item, this mistake of law (as to the
accused’s legal right) would, if genuine, be a defense to larceny. On
the other hand, if the accused disobeyed an order, under the actual
but mistaken belief that the order was unlawful, this would not be a
defense because the accused’s mistake was as to the order itself, and
not as to a separate nonpenal law. Also, mistake of law may be a
defense when the mistake results from reliance on the decision or
pronouncement of an authorized public official or agency. For
example, if an accused, acting on the advice of an official responsible
for administering benefits that the accused is entitled to those
benefits, applies for and receives those benefits, the accused may
have a defense even though the accused was not legally eligible for
the benefits. On the other hand, reliance on the advice of counsel that
a certain course of conduct is legal is not, of itself, a defense.
(2) Voluntary intoxication. Voluntary intoxication,
whether caused by alcohol or drugs, is not a defense.
However, evidence of any degree of voluntary
intoxication may be introduced for the purpose of
raising a reasonable doubt as to the existence of actual
knowledge, specific intent, willfulness, or a
premeditated design to kill, if actual knowledge,
specific intent, willfulness, or premeditated design to
kill is an element of the offense.
Discussion
Intoxication may reduce premeditated murder to unpremeditated
murder, but it will not reduce murder to manslaughter or any other
lesser offense. See paragraph 56.c.(2)(c), Part IV.
Although voluntary intoxication is not a defense, evidence of
voluntary intoxication may be admitted in extenuation.
Rule 917. Motion for a finding of not guilty
(a) In general. The military judge, on motion by the
accused or sua sponte, shall enter a finding of not
guilty of one or more offenses charged at any time after
the evidence on either side is closed but prior to entry
of judgment if the evidence is insufficient to sustain a
conviction of the offense affected. If a motion for a
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finding of not guilty at the close of the prosecution’s
case is denied, the defense may offer evidence on that
offense without having reserved the right to do so.
Discussion
In a case with members, the military judge may reserve ruling on a
motion until any time prior to entry of judgment, including after the
members return with findings. See R.C.M. 908 on appeals by the
United States when the military judge sets aside a panel’s finding of
guilty.
(b) Form of motion. The motion shall specifically
indicate wherein the evidence is insufficient.
(c) Procedure. Before ruling on a motion for a finding
of not guilty, whether made by counsel or sua sponte,
the military judge shall give each party an opportunity
to be heard on the matter.
Discussion
For a motion made under R.C.M. 917(a), the military judge
ordinarily should permit the trial counsel to reopen the case as to the
insufficiency specified in the motion before findings on the general
issue of guilt are announced.
See R.C.M. 1104(b)(1)(B) regarding post-trial motions to set
aside a finding of guilty.
(d) Standard. A motion for a finding of not guilty shall
be granted only in the absence of some evidence which,
together with all reasonable inferences and applicable
presumptions, could reasonably tend to establish every
essential element of an offense charged. The evidence
shall be viewed in the light most favorable to the
prosecution, without an evaluation of the credibility of
witnesses.
(e) Motion as to greater offense. A motion for a finding
of not guilty may be granted as to part of a specification
and, if appropriate, the corresponding charge, as long
as a lesser offense charged is alleged in the portion of
the specification as to which the motion is not granted.
In such cases, the military judge shall announce that a
finding of not guilty has been granted as to specified
language in the specification and, if appropriate,
corresponding charge. In cases before members, the
military judge shall instruct the members accordingly,
so that any findings later announced will not be
inconsistent with the granting of the motion.
(f) Effect of ruling. Except as provided in R.C.M.
908(a), a ruling granting a motion for a finding of not
guilty is final when announced and may not be
reconsidered. Such a ruling is a finding of not guilty of
the affected specification, or affected portion thereof,
and, when appropriate, of the corresponding charge. A
ruling denying a motion for a finding of not guilty may
be reconsidered at any time before entry of judgment.
(g) Effect of denial on review. If all the evidence
admitted before findings, regardless by whom offered,
is sufficient to sustain findings of guilty, the findings
need not be set aside upon review solely because the
motion for finding of not guilty should have been
granted upon the state of the evidence when it was
made.
Rule 918. Finding
(a) General findings. The general findings of a court-
martial state whether the accused is guilty of each
charge and specification. If two or more accused are
tried together, separate findings as to each shall be
made.
(1) As to a specification. General findings as to a
specification may be:
(A) guilty;
(B) not guilty of an offense as charged, but guilty
of a lesser included offense;
(C) guilty with exceptions, with or without
substitutions, not guilty of the exceptions, but guilty of
the substitutions, if any;
(D) not guilty only by reason of lack of mental
responsibility; or
(E) not guilty.
Exceptions and substitutions may not be used to
substantially change the nature of the offense or to
increase the seriousness of the offense or the maximum
punishment for it.
Discussion
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 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 the 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
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offense charged but does prove an offense necessarily included in
the offense charged, the factfinder may find the accused not guilty of
the offense charged but guilty of the lesser included offense. See
paragraph 3 of Part IV and Appendix 12A 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) and 907(b)(3)(B).
(2) As to a charge. General findings as to a charge
may be:
(A) guilty;
(B) not guilty, but guilty of a violation of Article
_________;
(C) not guilty only by reason of lack of mental
responsibility; or
(D) not guilty.
Discussion
Where there are two or more specifications under one charge,
conviction of any of those specifications requires a finding of guilty
of the corresponding charge. Under such circumstances any findings
of not guilty as to the other specifications do not affect that charge.
If the accused is found guilty of one specification and of a lesser
included offense prohibited by a different Article as to another
specification under the same charge, the findings as to the
corresponding charge should be: “Of the Charge as to specification
1: Guilty; as to specification 2: not guilty, but guilty of
_____________, a violation of Article __________.”
An attempt should be found as a violation of Article 80 unless
the attempt is punishable under Articles 85, 94, 100, 103a, 103b,
119a, or 128, in which case it should be found as a violation of that
Article.
A court-martial may not find an offense as a violation of an
article under which it was not charged solely for the purpose of
increasing the authorized punishment or for the purpose of adjudging
less than the prescribed mandatory punishment.
(b) Special findings. In a trial by court-martial
composed of military judge alone, the military judge
shall make special findings upon request by any party.
Special findings may be requested only as to matters of
fact reasonably in issue as to an offense and need be
made only as to offenses of which the accused was
found guilty. Special findings may be requested at any
time before general findings are announced. Only one
set of special findings may be requested by a party in a
case. If the request is for findings on specific matters,
the military judge may require that the request be
written. Special findings may be entered orally on the
record at the court-martial or in writing during or after
the court-martial, but in any event shall be made before
entry of judgment and included in the record of trial.
Discussion
Special findings ordinarily include findings as to the elements of the
offenses of which the accused has been found guilty, and any
affirmative defense relating thereto.
See also R.C.M. 905(d); Mil. R. Evid. 304(f)(5), 311(d)(7), and
321(d)(7) concerning other findings to be made by the military
judge.
Members may not make special findings. Special findings do
not include, for example, the members’ deliberation and voting on
aggravating factors in a capital case under RCM 1004(c), or on the
defense of lack of mental responsibility under R.C.M. 921(c)(4).
(c) Basis of findings. Findings may be based on direct
or circumstantial evidence. Only matters properly
before the court-martial on the merits of the case may
be considered. A finding of guilty of any offense may
be reached only when the factfinder is satisfied that
guilt has been proved beyond a reasonable doubt.
Discussion
“Direct evidence” is evidence which tends directly to prove or
disprove a fact in issue (for example, an element of the offense
charged). “Circumstantial evidence” is evidence which tends directly
to prove not a fact in issue but some other fact or circumstance from
which, either alone or together with other facts or circumstances, one
may reasonably infer the existence or non-existence of a fact in issue.
There is no general rule for determining or comparing the weight to
be given to direct or circumstantial evidence.
A reasonable doubt is a doubt based on reason and common
sense. A reasonable doubt is not mere conjecture; it is an honest,
conscientious doubt suggested by the evidence, or lack of it, in the
case. An absolute or mathematical certainty is not required. The rule
as to reasonable doubt extends to every element of the offense. It is
not necessary that each particular fact advanced by the prosecution
which is not an element be proved beyond a reasonable doubt.
The factfinder should consider the inherent probability or
improbability of the evidence, using common sense and knowledge
of human nature, and should weigh the credibility of witnesses. A
fact finder may properly believe one witness and disbelieve others
whose testimony conflicts with that of the one. A factfinder may
believe part of the testimony of a witness and disbelieve other parts.
Rule 919. Argument by counsel on findings
(a) In general. After the closing of evidence, trial
counsel shall be permitted to open the argument.
Defense counsel shall be permitted to reply. Trial
counsel shall then be permitted to reply in rebuttal.
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(b) Contents. Arguments may properly include
reasonable comment on the evidence in the case,
including inferences to be drawn therefrom, in support
of a party’s theory of the case.
Discussion
The military judge may exercise reasonable control over argument.
See R.C.M. 801(a)(3).
Argument may include comment about the testimony, conduct,
motives, interests, and biases of witnesses to the extent supported by
the evidence. Counsel should not express a personal belief or opinion
as to the truth or falsity of any testimony or evidence or the guilt or
innocence of the accused, nor should counsel make arguments
calculated to inflame passions or prejudices. In argument, counsel
may treat the testimony of witnesses as conclusively establishing the
facts related by the witnesses. Counsel may not cite legal authorities
or the facts of other cases when arguing to members on findings.
Trial counsel may not comment on the accused’s exercise of
the right against self-incrimination or the right to counsel. See Mil.
R. Evid. 512. Trial counsel may not argue that the prosecution’s
evidence is unrebutted if the only rebuttal could come from the
accused. When the accused is on trial for several offenses and
testifies only as to some of the offenses, trial counsel may not
comment on the accused’s failure to testify as to the others. When
the accused testifies on the merits regarding an offense charged, trial
counsel may comment on the accused’s failure in that testimony to
deny or explain specific incriminating facts that the evidence for the
prosecution tends to establish regarding that offense.
Trial counsel may not comment on the failure of the defense to
call witnesses or of the accused to testify at the Article 32
preliminary hearing or upon the probable effect of the court-martial’s
findings on relations between the military and civilian communities.
The rebuttal argument of trial counsel is generally limited to
matters argued by the defense. If trial counsel is permitted to
introduce new matter in closing argument, the defense should be
allowed to reply in rebuttal. However, this will not preclude trial
counsel from presenting a final argument.
(c) Forfeiture of objection to improper argument.
Failure to object to improper argument before the
military judge begins to instruct the members on
findings shall constitute forfeiture of the objection.
Discussion
If an objection that an argument is improper is sustained, the military
judge should immediately instruct the members that the argument
was improper and that they must disregard it. In extraordinary cases,
improper argument may require a mistrial. See R.C.M. 915. The
military judge should be alert to improper argument and take
appropriate action when necessary.
Rule 920. Instructions on findings
(a) In general. The military judge shall give the
members appropriate instructions on findings.
Discussion
Instructions consist of a statement of the issues in the case and an
explanation of the legal standards and procedural requirements by
which the members will determine findings. Instructions should be
tailored to fit the circumstances of the case and should fairly and
adequately cover the issues presented.
(b) When given. Instructions on findings shall be given
before or after arguments by counsel, or at both times,
and before the members close to deliberate on findings,
but the military judge may, upon request of the
members, any party, or sua sponte, give additional
instructions at a later time.
Discussion
After members have reached a finding on a specification,
instructions may not be given on an offense included therein which
was not described in an earlier instruction unless the finding is
illegal. This is true even if the finding has not been announced. When
instructions are to be given is a matter within the sole discretion of
the military trial judge.
(c) Request for instructions. At the close of the
evidence or at such other time as the military judge
may permit, any party may request that the military
judge instruct the members on the law as set forth in
the request. The military judge may require the
requested instruction to be written. Each party shall be
given the opportunity to be heard on any proposed
instruction on findings before it is given. The military
judge shall inform the parties of the proposed action on
such requests before their closing arguments.
Discussion
Requests for and objections to instructions should be resolved at an
Article 39(a) session. See R.C.M. 803.
If an issue has been raised, ordinarily the military judge must
instruct on the issue when requested to do so. The military judge is
not required to give the specific instruction requested by counsel,
however, as long as the issue is adequately covered in the
instructions.
The military judge should not identify the source of any
instruction when addressing the members.
All written requests for instructions should be marked as
appellate exhibits, whether or not they are given.
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(d) How given. Instructions on findings shall be given
orally on the record in the presence of all parties and
the members. Written copies of the instructions, or,
unless a party objects, portions of them, may also be
given to the members for their use during deliberations.
Discussion
A copy of any written instructions delivered to the members should
be marked as an appellate exhibit.
(e) Required instructions. Instructions on findings shall
include:
(1) A description of the elements of each offense
charged, unless findings on such offenses are
unnecessary because they have been entered pursuant
to a plea of guilty;
(2) A description of the elements of each lesser
included offense in issue, unless trial of a lesser
included offense is barred by the statute of limitations
(Article 43) and the accused refuses to waive the bar;
(3) A description of any special defense under
R.C.M. 916 in issue;
(4) A direction that only matters properly before the
court-martial may be considered;
(5) A charge that—
(A) The accused must be presumed to be innocent
until the accused’s guilt is established by legal and
competent evidence beyond reasonable doubt;
(B) In the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the
doubt must be resolved in favor of the accused and the
accused must be acquitted;
(C) If, when a lesser included offense is in issue,
there is a reasonable doubt as to the degree of guilt of
the accused, the finding must be in a lower degree as
to which there is not reasonable doubt; and
(D) The burden of proof to establish the guilt of
the accused is upon the Government. [When the issue
of lack of mental responsibility is raised, add: The
burden of proving the defense of lack of mental
responsibility by clear and convincing evidence is
upon the accused. When the issue of mistake of fact
under R.C.M. 916(j)(2) is raised, add: The accused has
the burden of proving the defense of mistake of fact as
to consent or age by a preponderance of the evidence.]
(6) Directions on the procedures under R.C.M. 921
for deliberations and voting; and
(7) Such other explanations, descriptions, or
directions as may be necessary and which are properly
requested by a party or which the military judge
determines, sua sponte, should be given.
Discussion
A matter is “in issue” when some evidence, without regard to its
source or credibility, has been admitted upon which members might
rely if they choose. An instruction on a lesser included offense is
proper when (1) the offense is “necessarily included” in the charged
offense in accordance with Article 79(b)(1); or (2) the offense is
designated a lesser included offense by the President under Article
79(b)(2).
See R.C.M. 918(c) and the accompanying Discussion as to
reasonable doubt and other matters relating to the basis for findings
which may be the subject of an instruction.
Other matters which may be the subject of instruction in
appropriate cases included: inferences (see the explanations in Part
IV concerning inferences relating to specific offenses); the limited
purpose for which evidence was admitted (regardless of whether
such evidence was offered by the prosecution of defense) (see Mil.
R. Evid. 105); the effect of character evidence (see Mil. R. Evid. 404,
405); the effect of judicial notice (see Mil. R. Evid. 201, 202); the
weight to be given a pretrial statement (see Mil. R. Evid. 304(e)); the
effect of stipulations (see R.C.M. 811); that, when a guilty plea to a
lesser included offense has been accepted, the members should
accept as proved the matters admitted by the plea, but must
determine whether the remaining elements are established; that a
plea of guilty to one offense may not be the basis for inferring the
existence of a fact or element of another offense; the absence of the
accused from trial should not be held against the accused; and that
no adverse inferences may be drawn from an accused’s failure to
testify (see Mil. R. Evid. 301(f)).
The military judge may summarize and comment upon
evidence in the case in instructions. In doing so, the military judge
should present an accurate, fair, and dispassionate statement of what
the evidence shows; not depart from an impartial role; not assume as
true the existence or nonexistence of a fact in issue when the
evidence is conflicting or disputed, or when there is no evidence to
support the matter; and make clear that the members must exercise
their independent judgment as to the facts.
(f) Forfeiture and objections. Failure to object to an
instruction or to omission of an instruction before the
members close to deliberate forfeits the objection. The
parties shall be given the opportunity to be heard on
any objection to or request for instructions outside the
presence of the members. When a party objects to an
instruction, the military judge may require the party
objecting to specify in what respect the instructions
given were improper.
(g) Waiver. Instructions on a lesser included offense
shall not be given when both parties waive such an
instruction. After receiving applicable notification of
those lesser included offenses of which an accused may
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be convicted, the parties may waive a lesser included
offense instruction. A written waiver is not required.
The accused must affirmatively acknowledge that the
accused understands the rights involved and
affirmatively waive the instruction on the record. The
accused’s waiver must be made freely, knowingly, and
intelligently. In the case of a joint or common trial,
instructions on a lesser included offense shall not be
given as to an individual accused when that accused
and the Government agree to waive such an
instruction.
Rule 921. Deliberations and voting on findings
(a) In general. After the military judge instructs the
members on findings, the members shall deliberate and
vote in a closed session. Only the members shall be
present during deliberations and voting. Superiority in
rank shall not be used in any manner in an attempt to
control the independence of members in the exercise of
their judgment.
(b) Deliberations. Deliberations properly include full
and free discussion of the merits of the case. Unless
otherwise directed by the military judge, members may
take with them in deliberations their notes, if any, any
exhibits admitted in evidence, and any written
instructions. Members may request that the court-
martial be reopened and that portions of the record be
read to them or additional evidence introduced. The
military judge may, in the exercise of discretion, grant
such request.
(c) Voting.
(1) Secret ballot. Voting on the findings for each
charge and specification shall be by secret written
ballot. All members present shall vote.
(2) Numbers of votes required to convict. A finding
of guilty results only if at least three-fourths of the
members present vote for a finding of guilty.
Discussion
In computing the number of votes required to convict, any fraction
of a vote is rounded up to the next whole number. For example, in a
general court-martial with eight members, the concurrence of at least
six members is required to convict. In the unusual case where a
member has been excused after impanelment, resulting in a panel of
seven members, the concurrence of at least six members is required
to convict. Likewise, if there are only six members, the concurrence
of at least five members is required to convict. In a case that was
referred as capital with 12 members, the concurrence of at least nine
members is required to convict. However, a sentence of death is not
authorized without either the members’ unanimous finding of guilty
to a death eligible offense, or the military judge’s acceptance of the
accused’s plea of guilty to such an offense, and the members’
unanimous finding of at least one aggravating factor, unanimous
finding that the extenuating and mitigating circumstances are
substantially outweighed by any aggravating circumstances, and
unanimous determination that the sentence for the offense shall be
death. See R.C.M. 1004(a), (g). The military judge should instruct
the members on the specific number of votes required to convict.
(3) Acquittal. If fewer than three-fourths of the
members present vote for a finding of guilty, a finding
of not guilty has resulted as to the charge or
specification on which the vote was taken.
(4) Not guilty only by reason of lack of mental
responsibility. When the defense of lack of mental
responsibility is in issue under R.C.M. 916(k)(1), the
members shall first vote on whether the prosecution
has proven the elements of the offense beyond a
reasonable doubt. If at least three-fourths of the
members present vote for a finding of guilty, then the
members shall vote on whether the accused has proven
lack of mental responsibility. If a majority of the
members present concur that the accused has proven
lack of mental responsibility by clear and convincing
evidence, a finding of not guilty only by reason of lack
of mental responsibility results. If the vote on lack of
mental responsibility does not result in a finding of not
guilty only by reason of lack of mental responsibility,
then the defense of lack of mental responsibility has
been rejected and the finding of guilty stands
.
Discussion
If lack of mental responsibility is in issue with regard to more than
one specification, the members should determine the issue of lack of
mental responsibility on each specification separately.
(5) Included offenses. Members shall not vote on a
lesser included offense unless a finding of not guilty of
the offense charged has been reached. If a finding of
not guilty of an offense charged has been reached the
members shall vote on each included offense on which
they have been instructed, in order of severity
beginning with the most severe. The members shall
continue the vote on each included offense on which
they have been instructed until a finding of guilty
results or findings of not guilty have been reached as
to each such offense.
(6) Procedure for voting.
(A) Order. Each specification shall be voted on
separately before the corresponding charge. The order
of voting on several specifications under a charge or on
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several charges shall be determined by the president
unless a majority of the members object.
(B) Counting votes. The junior member shall
collect the ballots and count the votes. The president
shall check the count and inform the other members of
the result.
Discussion
Once findings have been reached, they may be reconsidered only in
accordance with R.C.M. 924.
(d) Action after findings are reached. After the
members have reached findings on each charge and
specification before them, the court-martial shall be
opened and the president shall inform the military
judge that findings have been reached. The military
judge may, in the presence of the parties, examine any
writing which the president intends to read to announce
the findings and may assist the members in putting the
findings in proper form. Neither that writing nor any
oral or written clarification or discussion concerning it
shall constitute announcement of the findings.
Discussion
Ordinarily a findings worksheet should be provided to the members
as an aid to putting the findings in proper form. If the military judge
examines any writing by the members or otherwise assists them to
put findings in proper form, this must be done in an open session and
counsel should be given the opportunity to examine such a writing
and to be heard on any instructions the military judge may give. See
Article 39(b).
The president should not disclose any specific number of votes
for or against any finding.
Rule 922. Announcement of findings
(a) In general. Findings shall be announced in the
presence of all parties promptly after they have been
determined.
(b) Findings by members. The president shall announce
the findings by the members. In a capital case, if a
finding of guilty is unanimous with respect to a capital
offense, the president shall so state.
Discussion
If the findings announced are ambiguous, the military judge should
seek clarification. See also R.C.M. 924.
(c) Findings by military judge. The military judge shall
announce the findings when trial is by military judge
alone or in accordance with R.C.M. 910(g).
(d) Erroneous announcement. If an error was made in
the announcement of the findings of the court-martial,
the error may be corrected by a new announcement in
accordance with this rule. The error must be discovered
and the new announcement made before the final
adjournment of the court-martial in the case.
Discussion
See R.C.M. 1104 concerning the action to be taken if the error in the
announcement is discovered after final adjournment.
(e) Polling prohibited. Except as provided in Mil. R.
Evid. 606, members may not be questioned about their
deliberations and voting.
Rule 923. Impeachment of findings
Findings that are proper on their face may be
impeached only when extraneous prejudicial
information was improperly brought to the attention of
a member, outside influence was improperly brought
to bear upon any member, or unlawful command
influence was brought to bear upon any member.
Discussion
Deliberations of the members ordinarily are not subject to disclosure.
See Mil. R. Evid. 606. Unsound reasoning by a member,
misconception of the evidence, or misapplication of the law is not a
proper basis for challenging the findings. However, when a showing
of a ground for impeaching the verdict has been made, members may
be questioned about such a ground. The military judge determines,
as an interlocutory matter, whether such an inquiry will be conducted
and whether a finding has been impeached.
Rule 924. Reconsideration of findings
(a) Time for reconsideration. Members may reconsider
any finding reached by them before such finding is
announced in open session.
(b) Procedure. Any member may propose that a
finding be reconsidered. If such a proposal is made in
a timely manner, the question whether to reconsider
shall be determined in closed session by secret written
ballot. Any finding of not guilty shall be reconsidered
if a majority vote for reconsideration. Any finding of
guilty shall be reconsidered if more than one-fourth of
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the members vote for reconsideration. Any finding of
not guilty only by reason of lack of mental
responsibility shall be reconsidered on the issue of the
finding of guilty of the elements if more than one-
fourth of the members vote for reconsideration, and on
the issue of mental responsibility if a majority vote for
reconsideration. If a vote to reconsider a finding
succeeds, the procedures in R.C.M. 921 shall apply.
Discussion
After the initial secret ballot vote on a finding in closed session, no
other vote may be taken on that finding unless a vote to reconsider
succeeds.
(c) Military judge sitting alone. In trial by military
judge alone, the military judge may reconsider:
(1) any finding of guilty at any time before
announcement of sentence; and
(2) the issue of the finding of guilty of the elements
in a finding of not guilty only by reason of lack of
mental responsibility at any time before announcement
of sentence or, where there was no finding of guilty,
entry of judgment.
Rule 925. Application of sentencing rules
(a) Only one set of sentencing rules shall apply in a
court-martial.
(b) If convicted of any offense for which death may be
adjudged, the accused shall be sentenced in accordance
with R.C.M. 1004.
(c) Except as provided in R.C.M. 925(b):
(1) If convicted of any offense committed on or
before December 27, 2023, the accused shall be
sentenced in accordance with the Rules for Courts-
Martial in effect prior to December 28, 2023. The
military judge shall inquire into the accused’s election
of sentencing rules after the announcement of findings
and before any matter is presented in the presentencing
phase.
(2) If convicted of only offenses committed after
December 27, 2023, the accused shall be sentenced by
a military judge in accordance with R.C.M. 1002(a)(2).
(d) Any elections made by the accused pursuant to
R.C.M. 925(c)(1) shall be made orally on the record or
be in writing and signed by the accused. The military
judge shall ascertain whether the accused has consulted
with defense counsel and has been informed of the
right to make the election of the applicable sentencing
rules.
Discussion
This rule is applicable only to sentencing proceedings in which death
may not be adjudged. See R.C.M. 1004 for capital sentencing
procedures.
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CHAPTER X. SENTENCING
Rule 1001. Presentencing procedure
(a) In general.
(1) Procedure. After findings of guilty have been
announced, the Government and defense may present
matters pursuant to this rule to aid the court-martial in
determining an appropriate sentence. Such matters
shall ordinarily be presented in the following sequence:
(A) Presentation by the trial counsel of:
(i) service data relating to the accused taken
from the charge sheet;
(ii) personal data relating to the accused and of
the character of the accused’s prior service as reflected
in the personnel records of the accused.
(B) Crime victim’s right to be reasonably heard.
(C) Presentation by the defense of evidence in
extenuation or mitigation or both.
(D) Rebuttal.
(E) Argument by the trial counsel on sentence.
(F) Argument by the defense counsel on sentence.
(G) Rebuttal argument in the discretion of the
military judge.
(2) Adjudging sentence. A sentence shall be
adjudged in all cases without unreasonable delay.
(3) Advice and inquiry.
(A) Crime victim. At the beginning of the
presentencing proceeding, the military judge shall
announce that any crime victim who is present at the
presentencing proceeding has the right to be
reasonably heard, including the right to make a sworn
statement, unsworn statement, or both. Prior to the
conclusion of the presentencing proceeding, the
military judge shall ensure that any such crime victim
was afforded the opportunity to be reasonably heard.
Discussion
In capital cases, the right to be reasonably heard does not include the
right to make an unsworn statement. See R.C.M. 1001(c)(2)(D)(i).
(B) Accused. The military judge shall personally
inform the accused of the right to present matters in
extenuation and mitigation, including the right to make
a sworn or unsworn statement or to remain silent, and
shall ask whether the accused chooses to exercise those
rights.
(b) Matters to be presented by the prosecution.
(1) Service data from the charge sheet. Trial counsel
shall inform the court-martial of the data on the charge
sheet relating to the pay and service of the accused and
the duration and nature of any pretrial restraint. In the
discretion of the military judge, this may be done by
reading the material from the charge sheet or by giving
the court-martial a written statement of such matter. If
the defense objects to the data as being materially
inaccurate or incomplete, or containing specified
objectionable matter, the military judge shall
determine the issue. Objections not asserted are
forfeited.
(2) Personal data and character of prior service of
the accused. Under regulations of the Secretary
concerned, the trial counsel may obtain and introduce
from the personnel records of the accused evidence of
the accused’s marital status; number of dependents, if
any; and character of prior service. Such evidence
includes copies of reports reflecting the past military
efficiency, conduct, performance, and history of the
accused and evidence of any disciplinary actions,
including punishments under Article 15 and summary
courts-martial after review has been completed
pursuant to Article 64. “Personnel records of the
accused” includes any records made or maintained in
accordance with departmental regulations that reflect
the past military efficiency, conduct, performance, and
history of the accused. If the accused objects to a
particular document as inaccurate or incomplete in a
specified respect, or as containing matter that is not
admissible under the Military Rules of Evidence, the
matter shall be determined by the military judge.
Objections not asserted are forfeited.
Discussion
Defense counsel may also, subject to the Military Rules of Evidence
and this rule, present personnel records of the accused not introduced
by trial counsel in accordance with R.C.M. 1001(b). A forfeited
matter may be subject to review for plain error.
(3) Evidence of prior convictions of the accused.
(A) In general. Trial counsel may introduce
evidence of prior military or civilian convictions of the
accused. For purposes of this rule, there is a
“conviction” in a court-martial case when a sentence
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has been adjudged. In a civilian case, a “conviction”
includes any disposition following an initial judicial
determination or assumption of guilt, such as when
guilt has been established by guilty plea, trial, or plea
of nolo contendere, regardless of the subsequent
disposition, sentencing procedure, or final judgment. A
“conviction” does not include a diversion from the
judicial process without a finding or admission of guilt;
expunged convictions; juvenile adjudications; minor
traffic violations; foreign convictions; tribal court
convictions; or convictions reversed, vacated,
invalidated, or pardoned.
Discussion
A vacation of a suspended sentence (see R.C.M. 1108) is not a
conviction and is not admissible as such, but may be admissible
under R.C.M. 1001(b)(2) as reflective of the character of the prior
service of the accused.
An accused may only be punished for the offenses of which he
or she was convicted in that same court-martial.
(B) Pendency of appeal. The pendency of an
appeal therefrom does not render evidence of a
conviction inadmissible. Evidence of the pendency of
an appeal is admissible.
(C) Method of proof. Previous convictions may be
proved by any evidence admissible under the Military
Rules of Evidence.
Discussion
Normally, previous convictions may be proved by use of the
personnel records of the accused, by the record of the conviction, or
by the judgment. See R.C.M. 1111 or DD Form 493 (Extract of
Military Records of Previous Convictions).
(4) Evidence in aggravation. The trial counsel may
present evidence as to any aggravating circumstance
directly relating to or resulting from the offenses of
which the accused has been found guilty. Evidence in
aggravation includes, but is not limited to, evidence of
financial, social, psychological, and medical impact on
or cost to any person or entity who was the victim of
an offense committed by the accused and evidence of
significant adverse impact on the mission, discipline,
or efficiency of the command directly and immediately
resulting from the accused’s offense. In addition,
evidence in aggravation may include evidence that the
accused intentionally selected any victim or any
property as the object of the offense because of the
actual or perceived race, color, religion, national
origin, ethnicity, sex (including pregnancy), gender
(including gender identity), disability, or sexual
orientation of any person. Except in capital cases, a
written or oral deposition taken in accordance with
R.C.M. 702 is admissible in aggravation.
Discussion
See also R.C.M. 1004 concerning aggravating factors in capital
cases.
(5) Evidence of rehabilitative potential.
“Rehabilitative potential” refers to the accused’s
potential to be restored, through vocational,
correctional, or therapeutic training or other corrective
measures to a useful and constructive place in society.
(A) In general. Trial counsel may present, by
testimony or oral deposition in accordance with
R.C.M. 702(g)(1), evidence in the form of opinions
concerning the accused’s previous performance as a
servicemember and potential for rehabilitation.
(B) Foundation for opinion. The witness or
deponent providing opinion evidence regarding the
accused’s rehabilitative potential must possess
sufficient information and knowledge about the
accused to offer a rationally-based opinion that is
helpful to the sentencing authority. Relevant
information and knowledge include, but are not limited
to, information and knowledge about the accused’s
character, performance of duty, moral fiber,
determination to be rehabilitated, and nature and
severity of the offense or offenses.
Discussion
See Mil. R. Evid. 701. See also Mil. R. Evid. 703 if the witness or
deponent is testifying as an expert. The types of information and
knowledge reflected in this subparagraph are illustrative only.
(C) Bases for opinion. An opinion regarding the
accused’s rehabilitative potential must be based upon
relevant information and knowledge possessed by the
witness or deponent, and must relate to the accused’s
personal circumstances. The opinion of the witness or
deponent regarding the severity or nature of the
accused’s offense or offenses may not serve as the
principal basis for an opinion of the accused’s
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rehabilitative potential.
(D) Scope of opinion. An opinion offered under
this rule is limited to whether the accused has
rehabilitative potential and to the magnitude or quality
of any such potential. A witness may not offer an
opinion regarding the appropriateness of a punitive
discharge or whether the accused should be returned to
the accused’s unit.
Discussion
On direct examination, a witness or deponent may respond
affirmatively or negatively regarding whether the accused has
rehabilitative potential. The witness or deponent may also opine
succinctly regarding the magnitude or quality of the accused’s
rehabilitative potential; for example, the witness or deponent may
opine that the accused has “great” or “little” rehabilitative potential.
The witness or deponent, however, generally may not further
elaborate on the accused’s rehabilitative potential, such as describing
the particular reasons for forming the opinion.
(E) Cross-examination. On cross-examination,
inquiry is permitted into relevant and specific instances
of conduct.
(F) Redirect. Notwithstanding any other provision
in this rule, the scope of opinion testimony permitted
on redirect may be expanded, depending upon the
nature and scope of the cross-examination.
Discussion
For example, on redirect a witness or deponent may testify regarding
specific instances of conduct when the cross-examination of the
witness or deponent concerned specific instances of misconduct.
Similarly, for example, on redirect a witness or deponent may offer
an opinion on matters beyond the scope of the accused’s
rehabilitative potential if an opinion about such matters was elicited
during cross-examination of the witness or deponent and is otherwise
admissible.
(c) Crime victim’s right to be reasonably heard.
(1) In general. After presentation by the trial
counsel, a crime victim of an offense of which the
accused has been found guilty has the right to be
reasonably heard at the presentencing proceeding
relating to that offense. A crime victim who makes an
unsworn statement under R.C.M. 1001(c)(5) is not
considered a witness for the purposes of Article 42(b).
If the crime victim exercises the right to be reasonably
heard, the crime victim shall be called by the court-
martial. The exercise of the right is independent of
whether the crime victim testified during findings or is
called to testify by the Government or defense under
this rule.
Discussion
If there are numerous victims, the military judge may reasonably
limit the form of the statements provided. See R.C.M. 801(a)(3).
The method by which the opportunity to be reasonably heard
was provided to any crime victim present at the proceedings should
be included in the record orally or in writing.
(2) Definitions.
(A) Crime victim. For purposes of R.C.M.
1001(c), a crime victim is an individual who has
suffered direct physical, emotional, or pecuniary harm
as a result of the commission of an offense of which
the accused was found guilty or the individual’s lawful
representative or designee appointed by the military
judge under these rules.
(B) Victim impact. For purposes of R.C.M.
1001(c), victim impact includes any financial, social,
psychological, or medical impact on the crime victim
relating to or arising from the offense of which the
accused has been found guilty.
(C) Mitigation. For the purposes of R.C.M.
1001(c), mitigation includes any matter that may lessen
the punishment to be adjudged by the court-martial or
furnish grounds for a recommendation of clemency.
(D) Right to be reasonably heard.
(i) Capital cases. In capital cases, for purposes
of R.C.M. 1001(c), the “right to be reasonably heard”
means the right to make a sworn statement. The
statement may not recommend a specific sentence.
Discussion
See Booth v. Maryland, 482 U.S. 496, 501-502, 507, n.10 (1987)
(“the Eighth Amendment prohibits a capital sentencing jury from
considering victim impact evidence that does not relate to the
circumstances of the crime.”). See also Bosse v. Oklahoma, 580 U.S.
1, 3 (2016) (per curiam) (holding that a state court of appeals
“remains bound by Booth’s prohibition on characterizations and
opinions from a victim’s family members about the crime, the
defendant, and the appropriate sentence unless this Court reconsiders
that ban.”).
(ii) Noncapital cases. In noncapital cases, for
purposes of R.C.M. 1001(c), the “right to be
reasonably heard” means the right to make a sworn
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statement, an unsworn statement, or both. This right
includes the right to be heard on any objection to any
unsworn statement.
(3) Contents of statement. The content of statements
made under R.C.M. 1001(c)(4) or (5) may only include
victim impact and matters in mitigation, except that, in
a noncapital case, the victim may recommend a
specific sentence.
(4) Sworn statement. The crime victim may make a
sworn statement and shall be subject to cross-
examination concerning it by the trial counsel and the
defense counsel or examination on it by the court-
martial.
(5) Unsworn statement. The crime victim may make
an unsworn statement and may not be cross-examined
by the trial counsel or the defense counsel or examined
upon it by the court-martial. The Government or
defense may, however, rebut any statements of fact
therein. The unsworn statement may be oral, written,
or both, and may be made by the crime victim, by
counsel representing the crime victim, or both.
Discussion
A victim’s statement should not exceed what is permitted under
R.C.M. 1001(c)(3). A crime victim may also testify as a witness
during presentencing proceedings in order to present evidence
admissible under a rule other than R.C.M. 1001(c)(3). Upon
objection by either party or sua sponte, a military judge may stop or
interrupt a victim’s statement that includes matters outside the scope
of R.C.M. 1001(c)(3). A victim, victim’s counsel, or designee has no
separate right to present argument under R.C.M. 1001(h).
When the military judge waives the notice requirement under
this rule, the military judge may conduct a session under Article
39(a) to ascertain the content of the victim’s anticipated unsworn
statement.
If the victim intends to submit a written statement, a copy of
the statement satisfies the requirement for a written proffer.
(d) Matter to be presented by the defense.
(1) In general. The defense may present matters in
rebuttal of any material presented by the prosecution
and the crime victim, if any, and may present matters
in extenuation and mitigation regardless whether the
defense offered evidence before findings.
(A) Matter in extenuation. Matter in extenuation
of an offense serves to explain the circumstances
surrounding the commission of an offense, including
those reasons for committing the offense which do not
constitute a legal justification or excuse.
(B) Matter in mitigation. Matter in mitigation of
an offense is introduced to lessen the punishment to be
adjudged by the court-martial, or to furnish grounds for
a recommendation of clemency. It includes the fact that
nonjudicial punishment under Article 15 has been
imposed for an offense growing out of the same act or
omission that constitutes the offense of which the
accused has been found guilty, particular acts of good
conduct or bravery and evidence of the reputation or
record of the accused in the service for efficiency,
fidelity, subordination, temperance, courage, or any
other trait that is desirable in a servicemember.
(2) Statement by the accused.
(A) In general. The accused may testify, make an
unsworn statement, or both in extenuation, in
mitigation, to rebut matters presented by the
prosecution, or to rebut statements of fact contained in
any crime victim’s sworn or unsworn statement,
whether or not the accused testified prior to findings.
The accused may limit such testimony or statement to
any one or more of the specifications of which the
accused has been found guilty. The accused may make
a request for a specific sentence. This subsection does
not permit the filing of an affidavit of the accused.
(B) Testimony of the accused. The accused may
give sworn oral testimony and shall be subject to cross-
examination concerning it by trial counsel or
examination on it by the court-martial, or both.
(C) Unsworn statement. The accused may make an
unsworn statement and may not be cross-examined by
trial counsel upon it or examined upon it by the court-
martial. The prosecution may, however, rebut any
statements of facts therein. The unsworn statement
may be oral, written, or both, and may be made by the
accused, by counsel, or both.
Discussion
An unsworn statement ordinarily should not include what is properly
argument, but inclusion of such matter by the accused when
personally making an oral statement normally should not be grounds
for stopping the statement.
(3) Rules of evidence relaxed. The military judge
may, with respect to matters in extenuation or
mitigation or both, relax the rules of evidence. This
may include admitting letters, affidavits, certificates of
military and civil officers, and other writings of similar
authenticity and reliability.
(e) Rebuttal and surrebuttal. The prosecution may
rebut matters presented by the defense. The defense in
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surrebuttal may then rebut any rebuttal offered by the
prosecution. Rebuttal and surrebuttal may continue, in
the discretion of the military judge. If the Military
Rules of Evidence were relaxed under paragraph (d)(3)
of this rule, they may be relaxed during rebuttal and
surrebuttal to the same degree.
(f) Production of witnesses.
(1) In general. During the presentencing
proceedings, there shall be much greater latitude than
on the merits to receive information by means other
than testimony presented through the personal
appearance of witnesses. During presentencing
proceedings, a dispute as to the production of a witness
at Government expense is a matter within the
discretion of the military judge to resolve subject to the
limitations in R.C.M. 1001(f)(2).
Discussion
See R.C.M. 703 concerning the procedures for production of
witnesses for presentencing proceedings.
(2) Limitations. A witness may be produced to testify
during presentencing proceedings through a subpoena
or travel orders at Government expense only if—
(A) the testimony of the witness is necessary for
consideration of a matter of substantial significance to
a determination of an appropriate sentence;
(B) the weight or credibility of the testimony is of
substantial significance to the determination of an
appropriate sentence;
(C) the other party refuses to enter into a
stipulation containing the matters to which the witness
is expected to testify, except in an extraordinary case
when such a stipulation would be an insufficient
substitute for the testimony;
(D) other forms of evidence, such as oral
depositions, written interrogatories, former testimony,
or testimony by remote means would not be sufficient
to meet the needs of the court-martial in the
determination of an appropriate sentence; and
(E) the significance of the personal appearance of
the witness to the determination of an appropriate
sentence, when balanced against the practical
difficulties of producing the witness, favors production
of the witness. Factors to be considered include the
costs of producing the witness, the timing of the
request for production of the witness, the potential
delay in the presentencing proceeding that may be
caused by the production of the witness, and the
likelihood of significant interference with military
operational deployment, mission accomplishment, or
essential training.
Discussion
The procedures for receiving testimony via remote means and the
definition thereof are contained in R.C.M. 914B.
(g) Additional matters to be considered. In addition to
matters introduced under this rule, the court-martial
may consider—
(1) That a plea of guilty is a mitigating factor; and
(2) Any evidence properly introduced on the merits
before findings, including:
(A) Evidence of other offenses or acts of
misconduct even if introduced for a limited purpose;
and
(B) Evidence relating to any mental impairment or
deficiency of the accused.
Discussion
The fact that the accused is of low intelligence or that, because of a
mental or neurological condition, the accused’s ability to adhere to
the right is diminished, may be extenuating. On the other hand, in
determining the severity of a sentence, the court-martial may
consider evidence tending to show that an accused has little regard
for the rights of others.
(h) Argument. After introduction of matters relating to
the sentence under this rule, counsel for the
Government and defense may argue for an appropriate
sentence. The trial counsel may not in argument
purport to speak for the convening authority or any
other higher authority or refer to the views of such
authorities or any policy directive relative to
punishment or to any punishment or quantum of
punishment greater than the court-martial may
adjudge. The trial counsel may, however, recommend
a specific lawful sentence and may also refer to the
sentencing considerations set forth in R.C.M. 1002(f).
Failure to object to improper argument before the
military judge begins deliberations, or before the
military judge instructs the members on sentencing,
shall constitute forfeiture of the objection.
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Discussion
A victim, victims’ counsel, or designee has no right to present
argument under this rule. A forfeited matter may be subject to review
for plain error.
Rule 1002. Sentencing determination
(a) Generally. Subject to limitations in this Manual, the
sentence to be adjudged is a matter within the
discretion of the court-martial. A court-martial may
adjudge any punishment authorized in this Manual in
order to achieve the purposes of sentencing under
R.C.M. 1002(c), including the maximum punishment
or any lesser punishment, or may adjudge a sentence of
no punishment except as outlined below.
(1) Mandatory minimum. Unless otherwise
authorized, when a mandatory minimum sentence is
prescribed by the UCMJ, the sentence for an offense
shall include any punishment that is made mandatory
by law for that offense. The sentence for an offense
may not be greater than the maximum sentence
established by law or by the President for that offense.
Discussion
Under the UCMJ as amended though the James M. Inhofe National
Defense Authorization Act for Fiscal Year 2023, Pub. L. No. 117-
263 136 Stat. 2395 (2022), R.C.M. 1002(a)(1) prohibits a plea
agreement for a term of imprisonment less than life, with the
eligibility for parole, for convictions under Article 118(1) and
118(4). See Article 56 and R.C.M. 1003.
(2) Parameters and criteria.
(A) When an offense is subject to sentencing
criteria, the military judge shall consider the applicable
sentencing criteria in determining the sentence for that
offense.
(B) When an offense is subject to sentencing
parameters, the military judge shall sentence the
accused for that offense within the applicable
parameter, unless the military judge finds specific facts
that warrant a sentence outside the applicable
parameter. If the military judge imposes a sentence
outside a sentencing parameter, the military judge shall
include in the record a written statement of the factual
basis for the sentence.
(3) If the military judge accepts a plea agreement
with a sentence limitation, the court-martial shall
sentence the accused in accordance with the limits
established by the plea agreement. Subject to Article
53a(c), the military judge shall accept a plea agreement
submitted by the parties, except that—
(A) in the case of an offense with a sentencing
parameter, the military judge may reject a plea
agreement that proposes a sentence that is outside the
sentencing parameter if the military judge determines
that the proposed sentence is plainly unreasonable; and
(B) in the case of an offense for which there is no
sentencing parameter, the military judge may reject a
plea agreement that proposes a sentence if the military
judge determines that the proposed sentence is plainly
unreasonable.
(b) Noncapital cases. The military judge shall
determine the sentence of a general or special court-
martial in accordance with this subsection in all
noncapital cases.
(1) Segmented sentencing for confinement and fines.
The military judge at a general or special court-martial
shall determine an appropriate term of confinement
and fine, if applicable, for each specification for which
the accused was found guilty. Subject to R.C.M.
1002(a), such a determination may include a term of no
confinement or no fine when appropriate for the
offense.
(2) Special court-martial. The military judge shall,
in a special court-martial, to the extent necessary,
reduce the total confinement to the maximum
confinement authorized under R.C.M. 201(f)(2).
(3) Unitary sentencing for other forms of
punishment. All punishments other than confinement
or a fine available under R.C.M. 1003, if any, shall be
determined as a single, unitary component of the
sentence, covering all of the guilty findings in their
entirety. The military judge shall not segment those
punishments among the guilty findings.
Discussion
The military judge should determine the appropriate amount of
confinement or fine, if any, for each specification separately. The
appropriate amount of confinement or fine that may be adjudged, if
any, is at the discretion of the military judge subject to these rules.
Whether a term of confinement should run concurrently with
another term of confinement should be determined only after
determining the appropriate amount of confinement for each charge
and specification. A military judge may exercise broad discretion in
determining whether terms of confinement will run concurrently or
consecutively consistent with R.C.M. 1002(c).
See R.C.M. 705(c)(2)(F) and 910(f)(5) regarding sentence
limitations in plea agreements.
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(c) Imposition of sentence. In sentencing an accused
under this rule, the court-martial shall impose
punishment that is sufficient, but not greater than
necessary, to promote justice and to maintain good
order and discipline in the United States Armed Forces,
taking into consideration—
(1) the nature and circumstances of the offense and
the history and characteristics of the accused;
(2) the impact of the offense on—
(A) the financial, social, psychological, or medical
well-being of any victim of the offense; and
(B) the mission, discipline, or efficiency of the
command of the accused and any victim of the offense;
(3) the need for the sentence to—
(A) reflect the seriousness of the offense;
(B) promote respect for the law;
(C) provide just punishment for the offense;
(D) promote adequate deterrence of misconduct;
(E) protect others from further crimes by the
accused;
(F) rehabilitate the accused; and
(G) provide, in appropriate cases, the opportunity
for retraining and returning to duty to meet the needs
of the service; and
(4) the sentences available under these rules.
(d) Information that may be considered. The court-
martial, in applying the factors listed in R.C.M.
1002(c) to the facts of a particular case, may
consider—
(1) Any evidence admitted by the military judge
during the presentencing proceeding under R.C.M.
1001; and
(2) Any evidence admitted by the military judge
during the findings proceeding.
Rule 1003. Punishments
(a) In general. Subject to the limitations in this Manual,
the punishments authorized in this rule may be
adjudged in the case of any person found guilty of one
or more charges and specifications by a court-martial.
Discussion
“Any person” includes officers, enlisted persons, person in custody
of the armed forces serving a sentence imposed by a court-martial,
and, insofar as the punishments are applicable, any other person
subject to the UCMJ. See R.C.M. 202.
(b) Authorized punishments. Subject to the limitations
in this Manual, a court-martial may adjudge only the
following punishments:
(1) Reprimand. A court-martial shall not specify the
terms or wording of a reprimand. A reprimand, if
approved, shall be issued, in writing, by the convening
authority.
Discussion
A reprimand adjudged by a court-martial is a punitive censure. Only
the convening authority may specify the terms of the reprimand.
When a court-martial adjudges a reprimand, the convening authority
shall issue the reprimand in writing or may disapprove, reduce,
commute, or suspend the reprimand in accordance with R.C.M. 1109
or R.C.M. 1110.
(2) Forfeiture of pay and allowances. Unless a total
forfeiture is adjudged, a sentence to forfeiture shall
state the exact amount in whole dollars to be forfeited
each month and the number of months the forfeitures
will last. Allowances shall be subject to forfeiture only
when the sentence includes forfeiture of all pay and
allowances. The maximum authorized amount of a
partial forfeiture shall be determined by using the basic
pay, retired pay, or retainer pay, as applicable, or, in
the case of reserve component personnel on inactive
duty, compensation for periods of inactive-duty
training, authorized by the cumulative years of service
of the accused, and, if no confinement is adjudged, any
sea or hardship duty pay. If the sentence also includes
reduction in grade, expressly or by operation of law,
the maximum forfeiture shall be based on the grade to
which the accused is reduced. Forfeitures of greater
than two-thirds’ pay per month may be imposed only
during periods of confinement.
Discussion
A forfeiture deprives the accused of the amount of pay (and
allowances) specified as it accrues. Forfeitures accrue to the United
States.
Forfeitures of pay and allowances adjudged as part of a court-
martial sentence, or occurring by operation of Article 58b, are
effective 14 days after the sentence is adjudged or when the sentence
of a summary court-martial is approved by the convening authority,
whichever is earlier.
“Basic pay” does not include pay for special qualifications,
such as diving pay, or incentive pay such as flying, parachuting, or
duty on board a submarine.
Forfeiture of pay and allowances under Article 58b is not a part
of the sentence, but is an administrative result thereof.
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At a general court-martial, if both a punitive discharge and
confinement are adjudged, then the operation of Article 58b results
in total forfeiture of pay and allowances during that period of
confinement. If only confinement is adjudged, and that confinement
exceeds six months, the operation of Article 58b results in total
forfeiture of pay and allowances during that period of confinement.
If only a punitive discharge is adjudged, Article 58b has no effect on
pay and allowances. A death sentence results in total forfeiture of
pay and allowances.
At a special court-martial, if a bad-conduct discharge and
confinement are adjudged, then the operation of Article 58b results
in a forfeiture of two-thirds of pay only (not allowances) during that
period of confinement. If only confinement is adjudged, and that
confinement exceeds six months, then the operation of Article 58b
results in a forfeiture of two-thirds of pay only (not allowances)
during the period of confinement. If only a bad-conduct discharge is
adjudged, Article 58b has no effect on pay.
If the sentence does not result in forfeitures by the operation of
Article 58b, then only adjudged forfeitures are effective.
Article 58b has no effect on summary courts-martial.
(3) Fine. Any court-martial may adjudge a fine in
lieu of or in addition to forfeitures. In the case of a
member of the armed forces, summary and special
courts-martial may not adjudge any fine or
combination of fine and forfeitures in excess of the
total amount of forfeitures that may be adjudged in that
case. In the case of a person serving with or
accompanying an armed force in the field, a summary
court-martial may not adjudge a fine in excess of two-
thirds of one month of the highest rate of enlisted pay,
and a special court-martial may not adjudge a fine in
excess of two-thirds of one year of the highest rate of
officer pay. To enforce collection, a fine may be
accompanied by a provision in the sentence that, in the
event the fine is not paid, the person fined shall, in
addition to any period of confinement adjudged, be
further confined until a fixed period considered an
equivalent punishment to the fine has expired. The
total period of confinement so adjudged shall not
exceed the jurisdictional limitations of the court-
martial.
Discussion
A fine is in the nature of a judgment and, upon entry of judgment,
makes the accused immediately liable to the United States for the
entire amount of money specified in the sentence. A fine normally
should not be adjudged against a member of the armed forces unless
the accused was unjustly enriched as a result of the offense of which
convicted. In the case of a civilian subject to military law, a fine,
rather than a forfeiture, is the proper monetary penalty to be
adjudged, regardless of whether unjust enrichment is present.
(4) Reduction in pay grade. Except as provided in
R.C.M. 1301(d), a court-martial may sentence an
enlisted member to be reduced to the lowest or any
intermediate pay grade;
Discussion
Reduction under Article 58a is not a part of the sentence but is an
administrative result thereof.
(5) Restriction to specified limits. Restriction may be
adjudged for no more than 2 months for each month of
authorized confinement and in no case for more than 2
months. Confinement and restriction may be adjudged
in the same case, but they may not together exceed the
maximum authorized period of confinement.
Discussion
Restriction does not exempt the person on whom it is imposed from
any military duty. Restriction and hard labor without confinement
may be adjudged in the same case provided they do not exceed the
maximum limits for each. See R.C.M. 1003(c)(1)(A)(ii). The
sentence adjudged should specify the limits of the restriction.
(6) Hard labor without confinement. Hard labor
without confinement may be adjudged for no more
than 1-1/2 months for each month of authorized
confinement and in no case for more than three months.
Hard labor without confinement may be adjudged only
in the cases of enlisted members. The court-martial
shall not specify the hard labor to be performed.
Confinement and hard labor without confinement may
be adjudged in the same case, but they may not
together exceed the maximum authorized period of
confinement, calculating the equivalency at the rate
specified in this subsection.
Discussion
Hard labor without confinement is performed in addition to other
regular duties and does not excuse or relieve a person from
performing regular duties. Ordinarily, the immediate commander of
the accused will designate the amount and character of the labor to
be performed. Upon completion of the daily assignment, the accused
should be permitted to take leave or liberty to which entitled.
See R.C.M. 1301(d) concerning limitations on hard labor
without confinement in summary courts-martial.
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(7) Confinement. The place of confinement shall not
be designated by the court-martial. When confinement
for life is authorized, it may be with or without
eligibility for parole. A court-martial shall not adjudge
a sentence to solitary confinement or to confinement
without hard labor;
Discussion
The authority executing a sentence to confinement may require hard
labor whether or not the words “at hard labor” are included in the
sentence. See Article 58(b). To promote uniformity, the words “at
hard labor” should be omitted in a sentence to confinement.
(8) Punitive separation. A court-martial may not
adjudge an administrative separation from the service.
There are three types of punitive separation.
(A) Dismissal. Dismissal applies only to
commissioned officers, commissioned warrant
officers, cadets, and midshipmen and may be adjudged
only by a general court-martial. Regardless of the
maximum punishment specified for an offense in Part
IV of this Manual, a dismissal may be adjudged for any
offense of which a commissioned officer,
commissioned warrant officer, cadet, or midshipman
has been found guilty;
(B) Dishonorable discharge. A dishonorable
discharge applies only to enlisted persons and warrant
officers who are not commissioned and may be
adjudged only by a general court-martial. Regardless
of the maximum punishment specified for an offense
in Part IV of this Manual, a dishonorable discharge
may be adjudged for any offense of which a warrant
officer who is not commissioned has been found guilty.
A dishonorable discharge should be reserved for those
who should be separated under conditions of dishonor,
after having been convicted of offenses usually
recognized in civilian jurisdictions as felonies, or of
offenses of a military nature requiring severe
punishment; and
Discussion
See also R.C.M. 1003(d)(1) regarding when a dishonorable
discharge is authorized as an additional punishment.
(C) Bad-conduct discharge. A bad-conduct
discharge applies only to enlisted persons and may be
adjudged by a general court-martial and by a special
court-martial which has met the requirements of
R.C.M. 201(f)(2)(B). A bad-conduct discharge is less
severe than a dishonorable discharge and is designed
as a punishment for bad-conduct rather than as a
punishment for serious offenses of either a civilian or
military nature. It is also appropriate for an accused
who has been convicted repeatedly of minor offenses
and whose punitive separation appears to be necessary;
Discussion
See also R.C.M. 1003(d)(2) and (3) regarding when a bad-conduct
discharge is authorized as an additional punishment.
(9) Death. Death may be adjudged only in
accordance with R.C.M. 1004; and
(10) Punishments under the law of war. In cases tried
under the law of war, a general court-martial may
adjudge any punishment not prohibited by the law of
war.
(c) Limits on punishments.
(1) Based on offenses.
(A) Offenses listed in Part IV.
(i) Maximum punishment. The maximum limits
for the authorized punishments of confinement,
forfeitures, and punitive discharge (if any) are set forth
for each offense listed in Part IV of this Manual. These
limitations are for each separate offense, not for each
charge, and apply notwithstanding any applicable
sentencing parameter. When a dishonorable discharge
is authorized, a bad-conduct discharge is also
authorized.
(ii) Other punishments. Except as otherwise
specifically provided in this Manual, the types of
punishments listed in paragraphs (b)(1), (3), (4), (5),
(6) and (7) of this rule may be adjudged in addition to
or instead of confinement, forfeitures, a punitive
discharge (if authorized), and death (if authorized).
(B) Offenses not listed in Part IV.
(i) Included or closely related offenses. For an
offense not listed in Part IV of this Manual that is
included in or closely related to an offense listed
therein, the maximum punishment and the sentencing
parameter or criteria shall be that or those of the
offense listed; however, if an offense not listed is
included in a listed offense, and is closely related to
another or is equally closely related to two or more
listed offenses, the maximum punishment and the
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sentencing parameter or criteria shall be the same as
that or those of the least severe of the listed offenses.
(ii) Not included or closely related offenses. An
offense not listed in Part IV and not included in or
closely related to an offense listed therein is punishable
as authorized by the United States Code or as
authorized by the custom of the applicable service.
When the United States Code provides for confinement
for a specified period or not more than a specified
period, the maximum punishment by court-martial
shall include confinement for that period. If the period
is 1 year or longer, the maximum punishment by court-
martial also includes a dishonorable discharge and
forfeiture of all pay and allowances; if the period is 6
months or more but less than 1 year, the maximum
punishment by court-martial also includes a bad-
conduct discharge and forfeiture of all pay and
allowances; if the period is less than 6 months, the
maximum punishment by court-martial also includes
forfeiture of two-thirds pay per month for the
authorized period of confinement.
(C) Multiple Offenses. When the accused is found
guilty of two or more specifications, the maximum
authorized punishment may be imposed for each
separate specification, unless the military judge finds
that the specifications are unreasonably multiplied.
Discussion
R.C.M. 906(b)(12) provides the available remedies for cases in
which a military judge finds an unreasonable multiplication of
charges.
(2) Based on grade of accused.
(A) Commissioned or warrant officers, cadets,
and midshipmen.
(i) A commissioned or warrant officer or a cadet
or midshipman may not be reduced in grade by any
court-martial. However, in time of war or national
emergency, the Secretary concerned, or such Under
Secretary or Assistant Secretary as may be designated
by the Secretary concerned, may commute a sentence
of dismissal to reduction to any enlisted grade.
(ii) A commissioned or warrant officer or a
cadet or midshipman may not be sentenced to hard
labor without confinement.
(iii) Only a general court-martial, upon
conviction of any offense in violation of the UCMJ,
may sentence a commissioned or warrant officer or a
cadet or midshipman to be separated from the service
with a punitive separation. In the case of commissioned
officers, cadets, midshipmen, and commissioned
warrant officers, the separation shall be by dismissal.
In the case of all other warrant officers, the separation
shall be by dishonorable discharge.
(B) Enlisted persons. See paragraph (b)(9) of this
rule and R.C.M. 1301(d).
(3) Based on reserve status in certain circumstances.
(A) Restriction on liberty. A member of a reserve
component whose order to active duty is approved
pursuant to Article 2(d)(5) may be required to serve
any adjudged restriction on liberty during that period
of active duty. Other members of a reserve component
ordered to active duty pursuant to Article 2(d)(1) or
tried by summary court-martial while on inactive duty
training may not—
(i) be sentenced to confinement; or
(ii) be required to serve a court-martial
punishment consisting of any other restriction on
liberty except during subsequent periods of inactive-
duty training or active duty.
(B) Forfeiture. A sentence to forfeiture of pay of a
member not retained on active duty after completion of
disciplinary proceedings may be collected from active
duty and inactive-duty training pay during subsequent
periods of duty.
Discussion
See R.C.M. 204. At the conclusion of nonjudicial punishment
proceedings or final adjournment of the court-martial, the reserve
component member who was ordered to active duty for the purpose
of conducting disciplinary proceedings should be released from
active duty within one working day unless the order to active duty
was approved by the Secretary concerned and confinement or other
restriction on liberty was adjudged. Unserved punishments may be
carried over to subsequent periods of inactive-duty training or active
duty.
(4) Based on status as a person serving with or
accompanying an armed force in the field. In the case
of a person serving with or accompanying an armed
force in the field, no court-martial may adjudge
forfeiture of pay and allowances, reduction in pay
grade, hard labor without confinement, or a punitive
separation.
(5) Based on other rules. The maximum limits on
punishments in this rule may be further limited by
other Rules for Courts-Martial.
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Discussion
The maximum punishment may be limited by: the jurisdictional
limits of the court-martial (see R.C.M. 201(f) and 1301(d)); the
nature of the proceedings (see R.C.M. 810(d) (sentence limitations
in rehearings, new trials, and other trials)); and by instructions by a
convening authority (see R.C.M. 601(e)(1)).
(d) Circumstances permitting increased punishments.
(1) Three or more convictions. If an accused is found
guilty of a specification or specifications for none of
which a dishonorable discharge is otherwise
authorized, proof of three or more previous convictions
adjudged by a court-martial during the year next
preceding the commission of any offense of which the
accused stands convicted shall authorize a
dishonorable discharge and forfeiture of all pay and
allowances and, if the confinement otherwise
authorized is less than 1 year, confinement for 1 year.
In computing the 1-year period preceding the
commission of any offense, periods of unauthorized
absence shall be excluded. For purposes of this
subsection, the court-martial convictions must be final.
(2) Two or more convictions. If an accused is found
guilty of a specification or specifications for none of
which a dishonorable or bad-conduct discharge is
otherwise authorized, proof of two or more previous
convictions adjudged by a court-martial during the 3
years next preceding the commission of any offense of
which the accused stands convicted shall authorize a
bad-conduct discharge and forfeiture of all pay and
allowances and, if the confinement otherwise
authorized is less than 3 months, confinement for 3
months. In computing the 3 year period preceding the
commission of any offense, periods of unauthorized
absence shall be excluded. For purposes of this
subsection the court-martial convictions must be final.
(3) Two or more specifications. If an accused is
found guilty of two or more specifications for none of
which a dishonorable or bad-conduct discharge is
otherwise authorized, the fact that the authorized
confinement for these offenses totals 6 months or more
shall, in addition, authorize a bad-conduct discharge
and forfeiture of all pay and allowances.
Discussion
All of these increased punishments are subject to all other limitations
on punishments set forth elsewhere in this rule. Convictions by
summary court-martial may not be used to increase the maximum
punishment under this rule. However, they may be admitted and
considered under R.C.M. 1001.
Rule 1004. Capital cases
(a) In general. In addition to the provisions in R.C.M.
1001, the provisions in this rule shall apply in capital
cases. Death may be adjudged only when—
(1) Death is expressly authorized under Part IV of
this Manual for an offense of which the accused has
been found guilty or is authorized under the law of war
for an offense of which the accused has been found
guilty under the law of war;
(2) The accused was properly notified that the case
would be tried as a capital case and was properly
notified of the aggravating factors the Government
intended to prove;
(3) The accused was convicted of such an offense by
either—
(A) the unanimous vote of all twelve members of
the court-martial; or
(B) the military judge pursuant to the accused’s
plea of guilty to such an offense;
(4) The members unanimously find that at least one
of the aggravating factors under R.C.M. 1004(c)
existed beyond a reasonable doubt for that offense and
notice of such factor was provided in accordance with
R.C.M. 1004(b);
(5) The members unanimously find that the
extenuating and mitigating circumstances are
substantially outweighed by any aggravating
circumstances, including any relevant aggravating
factor(s); and
(6) The members unanimously determine that the
sentence for that offense shall be death.
(b) Notice.
(1) Referral. The referral authority shall indicate that
the case is to be tried as a capital case by including a
special instruction on the charge sheet. Failure to
include this special instruction at the time of the
referral shall not bar the referral authority from later
adding the required special instruction, provided that—
(A) the referral authority has otherwise complied
with the notice requirement of R.C.M. 1004(b)(2); and
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(B) if the accused demonstrates specific prejudice
from such failure to include the special instruction, the
military judge determines that a continuance or a recess
is an adequate remedy.
(2) Arraignment. Before arraignment, the trial
counsel shall give the defense written notice of which
specific aggravating factor(s) under R.C.M. 1004(c)
the Government intends to prove and to which
offense(s) the aggravating factor(s) apply. Failure to
provide timely notice under this subsection of any
aggravating factors under R.C.M. 1004(c) shall not bar
later notice and proof of such additional aggravating
factors unless the accused demonstrates specific
prejudice from such failure and that a continuance or a
recess is not an adequate remedy.
(c) Aggravating factors. The trial counsel may present
evidence in accordance with R.C.M. 1001(b)(4)
tending to establish one or more of the aggravating
factors enumerated below. Death may be adjudged
only if the members find, beyond a reasonable doubt,
one or more of the following aggravating factors:
(1) That the offense was committed before or in the
presence of the enemy, except that this factor shall not
apply in the case of a violation of Article 118;
Discussion
See paragraph 27, Part IV, for an explanation of “before or in the
presence of the enemy.”
(2) That in committing the offense the accused—
(A) Knowingly created a grave risk of substantial
damage to the national security of the United States; or
(B) Knowingly created a grave risk of substantial
damage to a mission, system, or function of the United
States, provided that this subparagraph shall apply only
if substantial damage to the national security of the
United States would have resulted had the potential
damage been effected;
(3) That the offense caused substantial damage to the
national security of the United States, regardless of
whether the accused intended such damage, except that
this factor shall not apply in case of a violation of
Article 118;
(4) That the offense was committed in such a way or
under such circumstances that the life of one or more
persons other than the victim was unlawfully and
substantially endangered, except that this factor shall
not apply to a violation of Articles 103a or 103b;
(5) That the accused committed the offense with the
intent to avoid hazardous duty;
(6) That, only in the case of a violation of Article
118, the offense was committed in time of war and in
territory in which the United States or an ally of the
United States was then an occupying power or in which
the United States Armed Forces were then engaged in
active hostilities;
(7) That, only in the case of a violation of Article
118(1)—
(A) The accused was serving a sentence of
confinement for 30 years or more or for life at the time
of the murder;
(B) The murder was committed while the accused
was engaged in the commission or attempted
commission of a separate murder, or any robbery, rape,
rape of a child, sexual assault, sexual assault of a child,
aggravated sexual contact, sexual abuse of a child,
aggravated arson, burglary, kidnapping, mutiny,
sedition, or piracy of an aircraft or vessel; or while the
accused was engaged in the commission or attempted
commission of any offense involving the wrongful
distribution, manufacture, or introduction or
possession, with intent to distribute, of a controlled
substance; or, while the accused was engaged in flight
or attempted flight after the commission or attempted
commission of any offense listed in this subparagraph
(R.C.M. 1004(c)(7)(B)).
(C) The murder was committed for the purpose of
receiving money or a thing of value;
(D) The accused procured another by means of
compulsion, coercion, or a promise of an advantage, a
service, or a thing of value to commit the murder;
(E) The murder was committed with the intent to
avoid or to prevent lawful apprehension or effect an
escape from custody or confinement;
(F) The victim was the President of the United
States; the President-elect; the Vice President, or, if
there was no Vice President, the next officer in the
order of succession to the office of President of the
United States; the Vice President-elect; any individual
who is acting as President under the Constitution and
laws of the United States; a Member of Congress
(including a Delegate to, or Resident Commissioner in,
the Congress) or Member of Congress-elect; a justice
or judge of the United States; a chief of state or head of
government (or the political equivalent) of a foreign
nation; or a foreign official (as such term is defined in
18 U.S.C. § 1116(b)(3)(A)), if the official was on
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official business at the time of the offense and was in
the United States or in a place described in Mil. R.
Evid. 315(c)(2) or (c)(3);
(G) The accused then knew that the victim was any
of the following persons in the execution of office: a
commissioned, warrant, noncommissioned, or petty
officer of the United States Armed Forces; a member
of any law enforcement or security activity or agency,
military or civilian, including correctional custody
personnel; or any firefighter;
(H) The murder was committed with intent to
obstruct justice;
(I) The murder was preceded by the intentional
infliction of substantial physical harm or prolonged,
substantial mental or physical pain and suffering to the
victim. For purposes of this section, “substantial
physical harm” means fractured or dislocated bones,
deep cuts, torn members of the body, serious damage
to internal organs, or other serious bodily injuries. The
term “substantial physical harm” does not mean minor
injuries, such as a black eye or bloody nose. The term
“substantial mental or physical pain and suffering” is
accorded its common meaning and includes torture.
(J) The accused has been found guilty in the same
case of another violation of Article 118;
(K) The victim of the murder was under 15 years
of age;
(8) That, only in the case of a violation of Article
118(4), the accused was the actual perpetrator of the
killing or was a principal whose participation in the
burglary, rape, rape of a child, sexual assault, sexual
assault of a child, aggravated sexual contact, sexual
abuse of a child, robbery, or aggravated arson was
major and who manifested a reckless indifference for
human life.
Discussion
Conduct amounts to “reckless indifference” when it evinces a
wanton disregard of consequences under circumstances involving
grave danger to the life of another, although no harm is necessarily
intended. The accused must have had actual knowledge of the grave
danger to others or knowledge of circumstances that would cause a
reasonable person to realize the highly dangerous character of such
conduct. In determining whether participation in the offense was
major, the accused’s presence at the scene and the extent to which
the accused aided, abetted, assisted, encouraged, or advised the other
participants should be considered. See United States v. Berg, 31 M.J.
38 (C.M.A. 1990); United States v. McMonagle 38 M.J. 53 (C.M.A.
1993).
(9) [Reserved]
(10) That, only in the case of a violation of the law
of war, death is authorized under the law of war for the
offense;
(11) That, only in the case of a violation of Article
103, 103a, or 103b—
(A) The accused has been convicted of another
offense involving espionage, spying, or treason for
which either a sentence of death or imprisonment for
life was authorized by statute; or
(B) That in committing the offense, the accused
knowingly created a grave risk of death to a person
other than the individual who was the victim.
For purposes of R.C.M. 1004, “national security”
means the national defense and foreign relations of the
United States and specifically includes a 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.
Discussion
Examples of substantial damage to the national security of the United
States include: impeding the performance of a combat mission or
operation; impeding the performance of an important mission in a
hostile fire or imminent danger pay area (see 37 U.S.C. § 310(a));
and disclosing military plans, capabilities, or intelligence such as to
jeopardize any combat mission or operation of the armed services of
the United States or its allies or to materially aid an enemy of the
United States.
See also R.C.M. 1004(b)(5).
(d) Evidence in extenuation and mitigation. The
accused shall be given broad latitude to present
evidence in extenuation and mitigation.
Discussion
See R.C.M. 1001(d).
(e) Basis for findings. The findings specified by
R.C.M. 1004(a)(4) and (a)(5) may be based on
evidence introduced before or after findings under
R.C.M. 921, or both.
(f) Instructions. Instructions shall be given after
arguments by counsel and before the members close to
deliberate on sentence, but the military judge may,
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upon request of the members, any party, or sua sponte,
give additional instructions at a later time.
(1) Requests for instructions. During presentencing
proceedings or at such other time as the military judge
may permit, any party may request that the military
judge instruct the members on the law as set forth in
the request. The military judge may require the
requested instruction to be written. Each party shall be
given the opportunity to be heard on any proposed
instruction before it is given. The military judge shall
inform the parties of the proposed action on such
requests before their arguments to the members.
Discussion
Requests for and objections to instructions should be resolved at an
Article 39(a) session. See R.C.M. 801(e)(1)(C), 803.
The military judge is not required to give the specific
instruction requested by counsel if the matter is adequately covered
in the instructions.
The military judge should not identify the source of any
instruction when addressing the members.
All written requests for instructions should be marked as
appellate exhibits, whether or not they are given.
(2) How given. Instructions shall be given orally on
the record in the presence of all parties and the
members. Written copies of the instructions or, unless
a party objects, portions of them may also be given to
the members for their use during deliberations.
Discussion
A copy of any written instructions delivered to the members should
be marked as an appellate exhibit.
(3) Required instructions. Instructions shall
include—
(A) The charge(s) and specification(s) for which
the members shall make a sentencing determination;
(B) The applicable aggravating factor or factors
under R.C.M. 1004(c) and to which charge(s) and
specification(s) the aggravating factor or factors apply;
(C) A statement of the procedures for deliberation
and voting set out in R.C.M. 1004(g);
(D) A statement informing the members that they
are solely responsible for selecting an appropriate
determination and may not rely on the possibility of
any mitigating action by the convening or higher
authority;
(E) A statement that the members should consider
all matters in aggravation, whether introduced before
or after findings, and matters introduced under R.C.M.
1001(b)(1), (2), (3), and (5);
Discussion
For example, tailored instructions should reflect the considerations
set forth in Article 56(c), including the reputation or record of the
accused in the service for good conduct, efficiency, fidelity, courage,
bravery, or other traits of good character, and any pretrial restraint
imposed on the accused.
(F) A statement that the members may consider:
(i) Any evidence admitted by the military judge
during the presentencing proceeding under R.C.M.
1001; and
(ii) Any evidence admitted by the military judge
during the findings proceeding;
(G) A statement that the members shall consider
all evidence in extenuation and mitigation before a
sentence of death may be determined; and
(H) Such other explanations, descriptions, or
directions that the military judge determines to be
necessary, whether properly requested by a party or
determined by the military judge sua sponte.
(4) Failure to object. After being afforded an
opportunity to object, failure to object to an instruction
or to omission of an instruction before the members
close to deliberate shall constitute waiver of the
objection. The military judge may require the party
objecting to specify in what respect the instructions
were improper. The parties shall be given the
opportunity to be heard on any objection outside the
presence of the members.
(g) Deliberations and voting.
(1) In general. With respect to each charge and
specification for which a sentence of death may be
determined, the members shall deliberate and vote after
the military judge instructs the members. Only the
members shall be present during deliberations and
voting. Superiority in rank shall not be used in any
manner to control the independence of members in the
exercise of their judgment.
(2) Deliberations. Deliberations require a full and
free discussion of the determination to be made in the
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case. Unless otherwise directed by the military judge,
members may take with them in deliberations their
notes, if any; any exhibits admitted in evidence; and
any written instructions. Members may request that the
court-martial be reopened and that portions of the
record be read to them or additional evidence
introduced. The military judge may, in the exercise of
discretion, grant such requests.
(3) Voting generally.
(A) Duty of members. Each member has the duty
to vote on the necessary findings described in R.C.M.
1004(a)(4)-(6) as applicable. No member may abstain
from voting.
(B) Secret ballot. Voting shall be by secret written
ballot.
(4) Procedure.
(A) Initial process. The members shall employ the
following process for each charge and specification for
which death may be determined.
(i) The members shall vote separately on each
aggravating factor under R.C.M. 1004(c) that applies
to the offense and on which the members have been
instructed. The members shall not proceed to R.C.M.
1004(g)(4)(A)(ii) unless the members unanimously
find that at least one of the aggravating factors existed
beyond a reasonable doubt.
(ii) The members shall vote on whether the
extenuating and mitigating circumstances are
substantially outweighed by any aggravating
circumstances, including any relevant aggravating
factor(s) under R.C.M. 1004(c). The members shall not
proceed to R.C.M. 1004(g)(4)(B) unless the members
unanimously find that any extenuating or mitigating
circumstances are substantially outweighed by any
aggravating circumstances.
(B) Voting on a sentencing determination if death
may be adjudged.
(i) If the members unanimously find both that at
least one aggravating factor exists and that the
extenuating and mitigating circumstances are
substantially outweighed by the aggravating
circumstances, the members shall vote on the
following sentencing determinations, which shall be
binding on the military judge. Except as permitted
under R.C.M. 1004(i), the members must vote on
potential sentence determinations in the order listed
below. The members must vote on each option
separately from the other option, considering only one
option at a time. During the voting on a particular
option, each member may cast one vote for or against
that option. The order of the options to be considered
is:
(I) Death; or
(II) Life in prison without eligibility for
parole.
(ii) If all 12 members vote for death, the
sentencing determination of the members shall be
death. If any member does not vote for death, the
sentencing determination of the members shall not be
death.
(iii) If the members’ initial vote does not reach
the required unanimous consensus for death, the
members shall vote on life in prison without eligibility
for parole. If three-fourths or more of the members vote
for life in prison without eligibility for parole, the
sentencing determination of the members shall be life
in prison without eligibility for parole.
(iv) If the members’ vote does not reach three-
fourths for life in prison without eligibility for parole,
the offense shall be returned to the military judge for
imposition of a sentence of a lesser punishment in
accordance with R.C.M. 1001.
(C) Voting on a sentencing determination if death
may not be adjudged.
(i) If the members do not unanimously find that
at least one aggravating factor exists or the members
do not unanimously find that the aggravating
circumstances substantially outweigh the extenuating
and mitigating circumstances, the members shall vote
on life in prison without eligibility for parole.
(ii) If the members’ vote does not reach three-
fourths for life in prison without eligibility for parole,
the offense shall be returned to the military judge for
imposition of a sentence of a lesser punishment in
accordance with R.C.M. 1001.
(D) Counting votes. The junior member shall
collect the ballots and count the votes. The president
shall check the count and inform the other members of
the result.
Discussion
A determination by the members may be reconsidered only in
accordance with R.C.M. 1004(i).
(h) Action after a sentence is reached. After the
members have agreed upon a determination by the
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required number of votes in accordance with this rule,
the court-martial shall be opened, and the president
shall inform the military judge that the members have
reached a determination. The military judge may, in the
presence of the parties, examine any writing used by
the president to state the determination and may assist
the members in putting the determination in proper
form. If the members voted unanimously for a
determination of death, the writing shall indicate which
aggravating factor or factors under R.C.M. 1004(c) the
members unanimously found to exist beyond a
reasonable doubt. Neither that writing nor any oral or
written clarification or discussion concerning it shall
constitute announcement of the determination.
Discussion
Ordinarily a worksheet should be provided to the members as an aid
to putting the determination in proper form. If a worksheet has been
provided, the military judge should examine it before announcing the
determination. If the military judge intends to instruct the members
after such examination, counsel should be permitted to examine the
worksheet and to be heard on any instructions the military judge may
give.
The president should not disclose any specific number of votes
for or against any sentence.
If the sentence is ambiguous or apparently illegal, see R.C.M.
1004(i).
If the members voted unanimously for a sentence of death, the
sentence worksheet shall indicate which aggravating factor or factors
under R.C.M. 1004(c) the members unanimously found to exist
beyond a reasonable doubt. See R.C.M. 1004(b)(8).
(i) Reconsideration. Subject to this rule, a sentence
may be reconsidered at any time before it is announced
in open session of the court.
(1) Clarification of determination. A sentence
determination may be clarified at any time before entry
of judgment. When a determination by the members in
a capital case is ambiguous, the military judge shall
bring the matter to the attention of the members if the
matter is discovered before the court-martial is
adjourned. If the matter is discovered after
adjournment, the military judge may call a session for
clarification by the members as soon as practicable
after the ambiguity is discovered, or the military judge
may resolve the ambiguity.
(2) Action by the convening authority.
(A) Prior to entry of judgment, if a convening
authority becomes aware that the sentence of the court-
martial is ambiguous, the convening authority shall
return the matter to the court-martial for clarification.
When the sentence of the court-martial appears to be
illegal, the convening authority shall return the matter
to the court-martial for correction.
(B) Prior to entry of judgment in a case in which a
special trial counsel has exercised authority—
(i) if the special trial counsel becomes aware
that the sentence of a court-martial is ambiguous, the
special trial counsel shall make a binding
determination that the convening authority return the
matter to the court-martial for clarification; or
(ii) if the sentence of the court-martial appears
to be illegal, the special trial counsel shall make a
binding determination that the convening authority
shall return the matter to the court-martial for
correction.
(3) Reconsideration procedure. Any member of the
court-martial may propose that a determination of the
members in a capital case be reconsidered.
(A) Instructions. When reconsideration has been
requested, the military judge shall instruct the members
on the procedure for reconsideration.
(B) Voting. The members shall vote by secret
written ballot in closed session whether to reconsider a
determination.
(C) Number of votes required for aggravating
factors in capital cases. Members may reconsider a
unanimous vote under R.C.M. 1004(g)(4)(A) (i) that
an aggravating factor was proven beyond a reasonable
doubt if at least one member votes to reconsider.
Members may reconsider a unanimous vote under
R.C.M. 1004(g)(4)(A)(ii) that any extenuating and
mitigating circumstances are substantially outweighed
by any aggravating circumstances admissible under
R.C.M. 1001(b)(4), including the factors under R.C.M.
1004(c), if at least one member votes to reconsider. In
all other circumstances, a vote under R.C.M.
1004(g)(4)(A)(i) or (ii) may be reconsidered only if at
least a majority of the members vote for
reconsideration.
(D) Number of votes required for determinations.
(i) With a view toward increasing. Members
may reconsider a determination with a view toward
increasing the severity of the determination only if at
least a majority votes for reconsideration. However,
members may not reconsider a non-unanimous vote for
a determination of death.
(ii) With a view toward decreasing. Members
may reconsider a determination with a view toward
decreasing the severity of the determination only if—
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(I) In the case of a death determination, at
least one member votes to reconsider; or
(II) In the case of a determination of life in
prison without eligibility for parole, more than one-
fourth of the members vote to reconsider.
Discussion
After a determination has been adopted by secret ballot in closed
session, no other vote may be taken on the sentence unless a vote to
reconsider succeeds.
(E) Successful vote. If a vote to reconsider
succeeds, the members will revote in accordance with
R.C.M. 1001(g)(3) and (4).
(j) Sentencing by military judge.
(1) The military judge shall sentence the accused in
accordance with the binding determination of the
members under R.C.M. 1004(g). The military judge
may include in any sentence to death or life in prison
without eligibility for parole any other authorized
lesser punishment. When the military judge’s sentence
includes confinement or fines, the military judge shall
determine an appropriate term of confinement and fine
for each specification for which the accused was found
guilty.
(2) Where there is a finding of guilty for a
specification for which death may be adjudged and a
finding of guilty for a specification for which death
may not be adjudged—
(A) The members shall make a determination for
each specification for which death may be adjudged in
accordance with subsection (g);
(B) The military judge shall determine the
sentence for any specification returned by the members
for sentencing of a lesser punishment than death or life
in prison without eligibility for parole; and
(C) The military judge shall determine the
sentence for all charges and specifications for which
death may not be adjudged. If the sentence includes
more than one term of confinement, the military judge
shall determine whether the terms of confinement will
run concurrently or consecutively.
Discussion
A sentence of death may not be ordered executed until approved by
the President. See R.C.M. 1207. A sentence of death which has been
finally ordered executed will be carried out in the manner prescribed
by the Secretary concerned. See R.C.M. 1102(b)(5).
(k) Other penalties. When death is an authorized
punishment for an offense, all other punishments
authorized under R.C.M. 1003 are also authorized for
that offense, including confinement for life, with or
without eligibility for parole, and may be adjudged in
lieu of death, subject to limitations specifically
prescribed in this Manual. A sentence of death includes
a dishonorable discharge or dismissal as appropriate.
Confinement is a necessary incident of a sentence of
death, but not a part of it.
(l) Impeachment of determination. A determination
that is proper on its face may be impeached only when
extraneous prejudicial information was improperly
brought to the attention of any member, outside
influence was improperly brought to bear upon any
member, or unlawful command influence was brought
to bear upon any member.
Rule 1005. Reconsideration of sentence in
noncapital cases
(a) Reconsideration. Subject to this rule, a sentence
may be reconsidered at any time before such sentence
is announced in open session of the court.
(b) Exceptions.
(1) If the sentence announced in open session was
less than the mandatory minimum prescribed for an
offense of which the accused has been found guilty, the
court that announced the sentence may reconsider such
sentence.
(2) If the sentence announced in open session
exceeds the maximum permissible punishment for the
offense or the jurisdictional limitation of the court-
martial, the court that announced the sentence may
reconsider such sentence.
(3) If the sentence announced in open session is not
in accordance with a sentence limitation in the plea
agreement, if any, the court that announced the
sentence may reconsider such sentence.
(c) Clarification of sentence. A sentence may be
clarified at any time before entry of judgment. When a
sentence determined by the military judge is
ambiguous, the military judge shall call a session for
clarification as soon as practicable after the ambiguity
is discovered.
(d) Action by the convening authority or special trial
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counsel.
(1) Prior to entry of judgment, if a convening
authority becomes aware that the sentence of the court-
martial is ambiguous, the convening authority shall
return the matter to the court-martial for clarification.
When the sentence of the court-martial appears to be
illegal, the convening authority shall return the matter
to the court-martial for correction.
(2) Prior to entry of judgment in a case in which a
special trial counsel has exercised authority—
(A) if the special trial counsel becomes aware that
the sentence of a court-martial is ambiguous, the
special trial counsel shall make a binding
determination that the convening authority return the
matter to the court-martial for clarification.
(B) if the sentence of the court-martial appears to
be illegal, the special trial counsel shall make a binding
determination that the convening authority shall return
the matter to the court-martial for correction.
(e) Limitation. A military judge may reconsider a
sentence once announced only under the circumstances
described in R.C.M. 1005(b).
Discussion
See R.C.M. 1111(c) for correcting errors after entry of judgment.
Rule 1006. [Reserved]
Rule 1007. Announcement of sentence
(a) In general. The sentence shall be announced in the
presence of all parties promptly after it has been
determined.
Discussion
The date that the sentence is announced is the date a sentence is
adjudged. See Articles 53 and 57.
(b) Announcement.
(1) In a capital case, the determination of the
members shall be announced by the military judge. If
the members voted unanimously for death, the military
judge shall announce which aggravating factor or
factors under R.C.M. 1004(c) the members
unanimously found to exist beyond a reasonable doubt.
(2) In all other cases, the military judge shall
announce the sentence and shall specify—
(A) the term of confinement, if any, and the
amount of fine, if any, determined for each offense;
(B) for each term of confinement announced under
subparagraph (A), whether the term of confinement is
to run concurrently or consecutively with any other
term or terms of confinement adjudged; and
(C) any other punishments under R.C.M. 1003 as
a single, unitary sentence.
Discussion
If the sentence announced by the military judge includes death, the
military judge must also announce which aggravating factor or
factors under R.C.M. 1004(c) the members unanimously found to
exist beyond a reasonable doubt. See R.C.M. 1004(h).
(c) Erroneous announcement. If the announced
sentence is not the one actually determined by the
court-martial, the error may be corrected by a new
announcement made before entry of the judgment into
the record. This action shall not constitute
reconsideration of the sentence. If the court-martial is
adjourned before the error is discovered, the military
judge may call the court-martial into session to correct
the announcement.
(d) Polling prohibited. Except as provided in Mil. R.
Evid. 606, members may not otherwise be questioned
about their deliberations and voting.
Rule 1008. Impeachment of sentence
A sentence that is proper on its face may be impeached
only when extraneous prejudicial information was
improperly brought to the attention of the military
judge, outside influence was improperly brought to
bear upon the military judge, or unlawful command
influence was brought to bear upon the military judge.
Discussion
See R.C.M. 923 Discussion concerning impeachment of findings.
Rule 1009. [Reserved]
Rule 1010. Notice concerning post-trial and
appellate rights
In each general and special court-martial, prior to
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adjournment, the military judge shall ensure that
defense counsel has informed the accused orally and in
writing of:
(a) The right to submit matters to the convening
authority to consider before taking action;
(b) The right to appellate review, and the effect of
waiver or withdrawal of such right, or failure to file an
appeal, as applicable;
(c) The right to apply for relief from the Judge
Advocate General if the case is not reviewed by a Court
of Criminal Appeals under Article 66; and
(d) The right to the advice and assistance of counsel in
the exercise of the foregoing rights or any decision to
waive them.
The written advice to the accused concerning post-
trial and appellate rights shall be signed by the accused
and defense counsel and inserted in the record of trial
as an appellate exhibit.
Discussion
The post-trial duties of the defense counsel concerning the appellate
rights of the accused are set forth in paragraph (E)(iv) of the
Discussion accompanying R.C.M. 502(d)(5). The defense counsel
shall explain the appellate rights to the accused and prepare the
written document of such advisement prior to or during trial.
Rule 1011. Adjournment
The military judge may adjourn the court-martial at
the end of the trial of an accused or proceed to trial of
other cases referred to that court-martial. Such an
adjournment may be for a definite or indefinite period.
Discussion
A court-martial and its personnel have certain powers and
responsibilities following the trial. See, e.g., R.C.M. 502(d)(4)
Discussion (G), 502(d)(5) Discussion (E), 808, 1007, Chapter XI.
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CHAPTER XI. POST-TRIAL PROCEDURE
Rule 1101. Statement of trial results
(a) Content. After final adjournment of a general or
special court-martial, the military judge shall sign and
include in the record of trial a Statement of Trial
Results. The Statement of Trial Results shall consist of
the following—
(1) Findings. For each charge and specification
referred to trial—
(A) a summary of each charge and specification;
(B) the plea(s) of the accused; and
(C) the finding or other disposition of each charge
and specification.
(2) Sentence. The sentence of the court-martial and
the date the sentence was announced by the court-
martial, and the amount of credit, if any, applied to the
sentence for pretrial confinement or for other reasons.
If the accused was convicted of more than one
specification and any part of the sentence was
determined by a military judge, the Statement of Trial
Results shall also specify—
(A) the confinement and fine for each
specification, if any;
(B) whether any term of confinement is to run
consecutively or concurrently with any other term(s) of
confinement;
(C) the total amount of any fine(s) and the total
amount of any confinement, after accounting for any
credit and any terms of confinement that are to run
consecutively or concurrently.
Discussion
The date that the sentence is adjudged is the date the sentence was
announced. See Articles 53 and 57. The adjudged sentence may be
modified by the convening authority or the military judge. See
generally R.C.M.s 1104, 1109, and 1110.
See R.C.M. 1002(b) for military judge alone sentencing and
R.C.M. 1004 for sentencing in capital cases by military judge and
members.
(3) Forum. The type of court-martial and the
command by which it was convened.
(4) Plea agreements. In a case with a plea agreement,
the statement shall specify any limitations on the
punishment as set forth in the plea agreement.
(5) Suspension recommendation. If the military
judge recommends that any portion of the sentence
should be suspended, the statement shall specify—
(A) the portion(s) of the sentence to which the
recommendation applies;
(B) the minimum duration of the suspension; and
(C) the facts supporting the suspension
recommendation.
Discussion
The convening authority may only suspend a sentence of
dishonorable discharge, bad-conduct discharge, or confinement in
excess of six months if the military judge includes a recommendation
for suspension in the Statement of Trial Results. See R.C.M. 1109(f).
When the accused is sentenced by members, the members may
recommend suspension of punitive discharge or confinement in
excess of six months, but the convening authority may only act to
suspend these punishments if the military judge adopts the
suspension recommendation and includes it in the Statement of Trial
Results.
(6) Other information. Any additional information
directed by the military judge or required under
regulations prescribed by the Secretary concerned.
(b) Not guilty only by reason of lack of mental
responsibility. If an accused was found not guilty only
by reason of lack of mental responsibility of any charge
or specification, the military judge shall sign the
Statement of Trial Results only after a hearing is
conducted under R.C.M. 1105.
(c) Abatement. If the military judge abated the
proceedings and the court-martial adjourned without a
disposition as to at least one specification, the military
judge shall include a brief explanation as to the reasons
for abatement in the record of trial. If all charges are
subsequently withdrawn, dismissed, or otherwise
disposed of, the military judge shall sign a Statement
of Trial Results in accordance with this rule.
Discussion
The issuance of an explanation of the reasons for abatement does not
prevent a later termination of the abatement.
(d) Distribution. Trial counsel shall promptly provide
a copy of the Statement of Trial Results to the
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accused’s immediate commander, the convening
authority or the convening authority’s designee, and, if
appropriate, the officer in charge of the confinement
facility. A copy of the Statement of Trial Results shall
be provided to the accused or to the accused’s defense
counsel. If the statement is served on defense counsel,
defense counsel shall, by expeditious means, provide
the accused with a copy. A copy of the Statement of
Trial Results shall be provided to any crime victim or
victim’s counsel in the case, without regard to whether
the accused was convicted or acquitted of any offense.
(e) Modification. The Statement of Trial Results may
be modified as follows:
(1) The military judge may modify the Statement of
Trial Results to correct any errors prior to certification
of the record of trial under R.C.M. 1112.
(2) The Court of Criminal Appeals, the Court of
Appeals for the Armed Forces, and the Judge Advocate
General or the Judge Advocate General’s designee
may modify the Statement of Trial Results in the
performance of their duties and responsibilities.
(3) If a case is remanded to a military judge, the
military judge may modify the Statement of Trial
Results consistent with the purposes of the remand.
(4) Any modification to the Statement of Trial
Results must be included in the record of trial.
Discussion
Correcting the Statement of Trial Results after the convening
authority makes a decision under R.C.M. 1109 or R.C.M. 1110
should not ordinarily trigger the need for the convening authority to
reconsider clemency unless the original Statement of Trial Results
prejudiced the accused’s ability to obtain relief under R.C.M. 1109
or R.C.M. 1110.
Rule 1102. Execution and effective date of
sentences
(a) In general.
Except as provided in subsection (b), a
sentence is executed and takes effect as follows:
(1) General and special courts-martial. In the case
of a general or special court-martial, a sentence is
executed and takes effect when the judgment is entered
into the record under R.C.M. 1111.
Discussion
Except for a punishment of death or dismissal, the sentence of a
general or special court-martial is not required to be approved or
ordered executed in order to take effect.
(2) Summary courts-martial. In the case of a
summary court-martial, a sentence is executed and
takes effect when the convening authority acts on the
sentence.
(b) Exceptions.
(1) Forfeiture. Unless deferred under R.C.M. 1103
or suspended under R.C.M. 1107, that part of an
adjudged sentence that includes forfeitures is executed
and takes effect as follows:
(A) Generally. Subject to subparagraph (B), if a
sentence includes forfeitures in pay or allowances, or,
if forfeiture is required by Article 58b, that part of the
sentence shall take effect on the earlier of—
(i) 14 days after the sentence is announced under
R.C.M. 1007; or
(ii) in the case of a summary court-martial, the
date on which the sentence is approved by the
convening authority.
(B) Accused Not in Confinement. If an accused is
not confined and is performing military duties, that
portion of the sentence that provides for forfeiture of
more than two-thirds’ pay per month shall not be
executed.
Discussion
The date that the sentence is adjudged is the date the sentence was
announced. See Articles 53 and 57.
Discussion
An accused who is required to perform duties may not, as a result of
a court-martial sentence, be deprived of more than two-thirds of pay
while in such a status. This rule does not prohibit other deductions
or withholdings from an accused’s pay and allowances.
(2) Confinement.
(A) In general. A commander shall deliver the
accused into post-trial confinement when the sentence
of the court-martial includes death or confinement,
unless a sentence of confinement is deferred under
R.C.M. 1103.
(B) Calculation. Any period of confinement
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included in the sentence of a court-martial begins to
run from the date the sentence is announced by the
court-martial. If the accused was earlier ordered into
confinement under R.C.M. 305, the accused’s sentence
shall be credited one day for each day of confinement
already served.
(C) Exclusions in calculating confinement. The
following periods shall be excluded in computing the
service of the term of confinement:
(i) Periods during which the sentence to
confinement is suspended or deferred;
(ii) Periods during which the accused is in
custody of civilian authorities under Article 14 from
the time of the delivery to the return to military
custody, if the accused was convicted in the civilian
court;
(iii) Periods during which the accused is in
custody of civilian or foreign authorities after the
convening authority, pursuant to Article 57(b)(2), has
postponed the service of a sentence to confinement;
(iv) Periods during which the accused has
escaped, or is absent without authority, or is absent
under a parole that a proper authority has later revoked,
or is released from confinement through
misrepresentation or fraud on the part of the prisoner,
or is released from confinement upon the prisoner’s
petition for a writ under a court order that is later
reversed; and
(v) Periods during which another sentence by
court-martial to confinement is being served. When a
prisoner serving a court-martial sentence to
confinement is later convicted by a court-martial of
another offense and sentenced to confinement, the later
sentence interrupts the running of the earlier sentence.
Any unremitted remaining portion of the earlier
sentence will be served after the later sentence is fully
executed.
(D) Multiple sentences of confinement. If a court-
martial sentence includes more than one term of
confinement, each term of confinement shall be served
consecutively or concurrently as determined by the
military judge.
Discussion
When an accused is convicted of two or more charges or
specifications and sentencing is conducted in accordance with
R.C.M. 1002(b) or 1004, the military judge must specifically state
whether multiple terms of confinement for such offenses are to run
concurrently or consecutively. See R.C.M. 1101.
Whether two or more terms of confinement should run
concurrently is a matter of judicial discretion. See R.C.M. 1002.
(E) Nature of the confinement. The omission of
hard labor from any sentence of a court-martial which
has adjudged confinement shall not prohibit an
appropriate authority from requiring hard labor as part
of the punishment.
(F) Place of confinement. The place of
confinement for persons sentenced to confinement by
courts-martial shall be determined by regulations
prescribed by the Secretary concerned. Under such
regulations as the Secretary concerned may prescribe,
a sentence to confinement adjudged by a court-martial
or other military tribunal, regardless whether the
sentence includes a punitive discharge or dismissal and
regardless whether the punitive discharge or dismissal
has been executed, may be ordered to be served in any
place of confinement under the control of any of the
armed forces or in any penal or correctional institution
under the control of the United States or which the
United States may be allowed to use. Persons so
confined in a penal or correctional institution not under
the control of one of the armed forces are subject to the
same discipline and treatment as persons confined or
committed by the courts of the United States or of the
State, Territory, District of Columbia, or place in
which the institution is situated. No member of the
armed forces, or person serving with or accompanying
an armed force in the field, may be placed in
confinement in immediate association with enemy
prisoners, or with individuals who are detained under
the law of war and are foreign nationals and not
members of the armed forces. The Secretary concerned
may prescribe regulations governing the conditions of
confinement.
(3) Dishonorable or a bad-conduct discharge, self-
executing. A bad-conduct or dishonorable discharge
shall be executed under regulations prescribed by the
Secretary concerned after an appropriate official
designated by those regulations has certified that the
accused’s case is final within the meaning of R.C.M.
1209. Upon completion of the certification, the official
shall forward the certification to the accused’s
personnel office for preparation of a final discharge
order and certificate.
(4) Dismissal of a commissioned officer, cadet, or
midshipman. Dismissal of a commissioned officer,
cadet, or midshipman shall be executed under
regulations prescribed by the Secretary concerned—
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(A) after the conviction is final within the meaning
of R.C.M. 1209 and Article 57(c)(1) as certified by the
approval authority designated pursuant to Article
57(a)(4); and
(B) only after the approval by the Secretary
concerned or such Under Secretary or Assistant
Secretary as the Secretary concerned may designate.
(5) Sentences extending to death. A punishment of
death shall be carried out in a manner prescribed by the
Secretary concerned—
(A) after the conviction is final within the meaning
of R.C.M. 1209; and
(B) only after the approval of the President under
R.C.M. 1207.
(6) Reduction in Enlisted Grade.
(A) Adjudged Reduction. Unless deferred under
R.C.M. 1103 or suspended under R.C.M. 1107, that
part of an adjudged sentence that includes reduction in
enlisted grade shall take effect on the earlier of—
(i) 14 days after the sentence is announced
under R.C.M. 1007; or
(ii) in the case of a summary court-martial, the
date on which the sentence is approved by the
convening authority.
(B) Automatic Reduction. An enlisted accused in a
pay grade above E-1 whose sentence as set forth in the
judgment of a court-martial includes a dishonorable or
bad-conduct discharge, confinement, or hard labor
without confinement may be reduced automatically to
pay grade E-1 if permitted by, and under circumstances
provided in, regulations prescribed by the Secretary
concerned.
(c) Other considerations concerning the execution of
certain sentences.
(1) Death; action when accused lacks mental
capacity. An accused lacking the mental capacity to
understand the punishment to be suffered or the reason
for imposition of the death sentence may not be put to
death during any period when such incapacity exists.
The accused is presumed to possess the mental
capacity to understand the punishment to be suffered
and the reason for imposition of the death sentence. If
a substantial question is raised as to whether the
accused lacks capacity, the convening authority then
exercising general court-martial jurisdiction over the
accused shall order a hearing on the question. A
military judge, counsel for the Government, and
defense counsel shall be detailed. The convening
authority shall direct an examination of the accused in
accordance with R.C.M. 706, but the examination may
be limited to determining whether the accused
understands the punishment to be suffered and the
reason therefor. The military judge shall consider all
evidence presented, including evidence provided by
the accused. The accused has the burden of proving
such lack of capacity by a preponderance of the
evidence. The military judge shall make findings of
fact, which will then be forwarded to the convening
authority ordering the hearing. If the accused is found
to lack capacity, the convening authority shall stay the
execution until the accused regains appropriate
capacity.
(2) Restriction; hard labor without confinement.
When restriction and hard labor without confinement
are included in the same sentence, they shall, unless
one is suspended, be executed concurrently.
Rule 1103. Deferment of confinement, forfeitures,
and reduction in grade; waiver of Article 58b
forfeitures
(a) In general.
(1) After a sentence is announced, the convening
authority may defer a sentence to confinement,
forfeitures, or reduction in grade in accordance with
this rule. Deferment may be at the request of the
accused as provided in subsection (b), or without a
request of the accused as provided in subsection (c).
(2) Deferment of a sentence to confinement,
forfeitures, or reduction in grade is a postponement of
the running of the sentence.
(b) Deferment requested by an accused. The convening
authority or, if the accused is no longer in the
convening authority’s jurisdiction, the officer
exercising general court-martial jurisdiction over the
command to which the accused is assigned, may, upon
written application of the accused, at any time after the
adjournment of the court-martial and before the entry
of judgment, defer the accused’s service of a sentence
to confinement, forfeitures, and reduction in grade.
(c) Deferment without a request from the accused.
(1) In a case in which a court-martial sentences to
confinement an accused referred to in paragraph (2),
the convening authority may defer service of the
sentence to confinement, without the consent of the
accused, until after the accused has been permanently
released to the armed forces by a State or foreign
country.
(2) Paragraph (1) applies to an accused who, while
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in custody of a State or foreign country, is temporarily
returned by that State or foreign country to the armed
forces for trial by court-martial and, after the court-
martial, is returned to that State or foreign country
under the authority of a mutual agreement or treaty, as
the case may be.
(3) As used in this subsection, the term “State”
means a State of the United States, the District of
Columbia, a territory, and a possession of the United
States.
(d) Action on deferment request.
(1) The authority acting on the deferment request
may, in that authority’s discretion, defer service of a
sentence to confinement, forfeitures, or reduction in
grade.
(2) In a case in which the accused requests
deferment, the accused shall have the burden of
showing that the interests of the accused and the
community in deferral outweigh the community’s
interests in imposition of the punishment on its
effective date. Factors that the authority acting on a
deferment request may consider in determining
whether to grant the deferment request include, where
applicable: the probability of the accused’s flight; the
probability of the accused’s commission of other
offenses, intimidation of witnesses, or interference
with the administration of justice; the nature of the
offenses (including the effect on the victim) of which
the accused was convicted; the sentence adjudged; the
command’s immediate need for the accused; the effect
of deferment on good order and discipline in the
command; the accused’s character, mental condition,
family situation, and service record. The decision of
the authority acting on the deferment request shall be
subject to judicial review only for abuse of discretion.
The action of the authority acting on the deferment
request shall be in writing. A copy of the action on the
deferment request, to include any rescission, shall be
included in the record of trial and a copy shall be
provided to the accused and to the military judge.
(e) Restraint when deferment is granted. When
deferment of confinement is granted, no form of
restraint or other limitation on the accused’s liberty
may be ordered as a substitute form of punishment. An
accused may, however, be restricted to specified limits
or conditions may be placed on the accused’s liberty
during the period of deferment for any other proper
reason, including a ground for restraint under R.C.M.
304.
(f) End of deferment. Deferment of a sentence to
confinement, forfeitures, or reduction in grade ends:
(1) In a case where the accused requested deferment
under subsection (b)—
(A) When the military judge of a general or special
court-martial enters the judgment into the record of
trial under R.C.M. 1111; or
(B) When the convening authority of a summary
court-martial acts on the sentence of the court-martial;
(2) In a case where the deferment was granted under
subsection (c), when the accused has been permanently
released to the armed forces by a State or foreign
country;
(3) When the deferred confinement, forfeitures, or
reduction in grade are suspended;
(4) When the deferment expires by its own terms; or
(5) When the deferment is otherwise rescinded in
accordance with subsection (g).
(g) Rescission of deferment.
(1) Who may rescind. The authority who granted the
deferment or, if the accused is no longer within that
authority’s jurisdiction, the officer exercising general
court-martial jurisdiction over the command to which
the accused is assigned, may rescind the deferment.
(2) Action. Deferment of confinement, forfeitures, or
reduction in grade may be rescinded when additional
information is presented to a proper authority which,
when considered with all other information in the case,
that authority finds, in that authority’s discretion, is
grounds for denial of deferment under paragraph
(d)(2). The accused and the military judge shall
promptly be informed of the basis for the rescission.
The accused shall also be informed of the right to
submit written matters and to request that the rescission
be reconsidered. The accused may be required to serve
the sentence to confinement, forfeitures, or reduction
in grade pending this action.
(3) Orders. Rescission of a deferment before or
concurrently with the entry of judgment shall be noted
in the judgment that is entered into the record of trial
under R.C.M. 1111.
(h) Waiving forfeitures resulting from a sentence to
confinement to provide for dependent support.
(1) With respect to forfeiture of pay and allowances
resulting only by operation of law and not adjudged by
the court, the convening authority may waive, for a
period not to exceed six months, all or part of the
forfeitures for the purpose of providing support to the
accused’s dependent(s). The convening authority may
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waive and direct payment of any such forfeitures when
they become effective by operation of Article 58(b).
(2) Factors that may be considered by the convening
authority in determining the amount of forfeitures, if
any, to be waived include, but are not limited to, the
length of the accused’s confinement, the number and
age(s) of the accused’s family members, whether the
accused requested waiver, any debts owed by the
accused, the ability of the accused’s family members
to find employment, and the availability of transitional
compensation for abused dependents permitted under
10 U.S.C. 1059.
(3) For the purposes of this rule, a “dependent”
means any person qualifying as a “dependent” under
37 U.S.C. 401.
Discussion
Forfeitures resulting by operation of law, rather than those adjudged
as part of a sentence, may be waived for six months or for the
duration of the period of confinement, whichever is less. The waived
forfeitures are paid as support to dependent(s) designated by the
convening authority. When directing waiver and payment, the
convening authority should identify by name the dependent(s) to
whom the payments will be made and state the number of months for
which the waiver and payment shall apply. In cases where the
amount to be waived and paid is less than the jurisdictional limit of
the court, the monthly dollar amount of the waiver and payment
should be stated.
Reductions in grade resulting by operation of law may not be
deferred.
Rule 1104. Post-trial motions and proceedings
(a) Post-trial Article 39(a) sessions.
(1) In general. Upon motion of either party or sua
sponte, the military judge may direct a post-trial
Article 39(a) session at any time before the entry of
judgment under R.C.M. 1111 and, when necessary,
after a case has been returned to the military judge by
a higher court. Counsel for the accused shall be present
in accordance with R.C.M. 804 and R.C.M. 805.
Discussion
A post-trial session with members requires calling the court to order,
and is not a post-trial Article 39(a) session.
(2) Purpose. The purpose of post-trial Article 39(a)
sessions is to inquire into, and, when appropriate, to
resolve any matter that arises after trial that
substantially affects the legal sufficiency of any
findings of guilty or the sentence.
(3) Scope. A military judge at a post-trial Article
39(a) session may reconsider any trial ruling that
substantially affects the legal sufficiency of any
findings of guilty or the sentence. Prior to entering such
a finding or findings, the military judge shall give each
party an opportunity to be heard on the matter in a post-
trial Article 39(a) session. The military judge may sua
sponte, at any time prior to the entry of judgment, take
one or both of the following actions:
(i) enter a finding of not guilty of one or more
offenses charged; or
(ii) enter a finding of not guilty of a part of a
specification as long as a lesser offense charged is
alleged in the remaining portion of the specification.
(b) Post-trial motions.
(1) Matters. Post-trial motions may be filed by either
party or when directed by the military judge to address
such matters as—
(A) An allegation of error in the acceptance of a
plea of guilty;
(B) A motion to set aside one or more findings
because the evidence is legally insufficient;
(C) A motion to correct a computational,
technical, or other clear error in the sentence;
(D) An allegation of error in the Statement of Trial
Results;
(E) An allegation of error in the post-trial
processing of the court-martial; and
(F) An allegation of error in the convening
authority’s action under R.C.M. 1109 or 1110.
(2) Timing.
(A) Except as provided in subparagraphs (B) and
(C), post-trial motions shall be filed not later than 14
days after defense counsel receives the Statement of
Trial Results. The military judge may extend the time
to submit such matters by not more than an additional
30 days for good cause.
(B) A motion to correct an error in the action of
the convening authority shall be filed within five days
after the party receives the convening authority’s
action. If any post-trial action by the convening
authority is incomplete, irregular, or contains error, the
military judge shall—
(i) return the action to the convening authority
for correction; or
(ii) with the agreement of all parties, correct the
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action of the convening authority in the entry of
judgment.
(C) A motion to correct a clerical or computational
error in a judgment entered by the military judge shall
be made within five days after a party is provided a
copy of the judgment.
(c) Matters not subject to post-trial sessions. A post-
trial session may not be directed:
(1) For reconsideration of a finding of not guilty of
any specification, or a ruling which amounts to a
finding of not guilty;
(2) For reconsideration of a finding of not guilty of
any charge, unless the record shows a finding of guilty
under a specification laid under that charge, which
sufficiently alleges a violation of some article of the
code; or
(3) For increasing the severity of the sentence unless
the sentence prescribed for the offense is mandatory.
(d) Procedure.
(1) Personnel. The requirements of R.C.M. 505 and
805 shall apply at post-trial sessions except that, for
good cause, a different military judge may be detailed,
subject to R.C.M. 502(c) and 902.
(2) Record. All post-trial sessions shall be held in
open session. The record of the post-trial sessions shall
be prepared, certified, and provided in accordance with
R.C.M. 1112 and shall be included in the record of the
prior proceedings.
(e) Notice to Victims. A victim must be notified of any
post-trial motion, filing, or hearing that may address:
(1) the findings or sentence of a court-martial with
respect to the accused;
(2) the unsealing of privileged or private information
of a victim; or
(3) any action resulting in the release of an accused.
Discussion
The notification process under R.C.M. 1104(e) is addressed through
such regulations as the Secretary concerned may prescribe.
Rule 1105. Post-trial hearing for person found not
guilty only by reason of lack of mental
responsibility
(a) In general. The military judge shall conduct a
hearing not later than forty days following the finding
that an accused is not guilty only by reason of a lack of
mental responsibility.
(b) Psychiatric or psychological examination and
report. Prior to the hearing, the military judge or
convening authority shall order a psychiatric or
psychological examination of the accused, with the
resulting psychiatric or psychological report
transmitted to the military judge for use in the post-trial
hearing.
(c) Post-trial hearing.
(1) The accused shall be represented by defense
counsel and shall have the opportunity to testify,
present evidence, call witnesses on his or her behalf,
and to confront and cross-examine witnesses who
appear at the hearing.
(2) The military judge is not bound by the rules of
evidence except with respect to privileges.
(3) An accused found not guilty only by reason of a
lack of mental responsibility of an offense involving
bodily injury to another, or serious damage to the
property of another, or involving a substantial risk of
such injury or damage, has the burden of proving by
clear and convincing evidence that his or her release
would not create a substantial risk of bodily injury to
another person or serious damage to property of
another due to a present mental disease or defect. With
respect to any other offense, the accused has the burden
of such proof by a preponderance of the evidence.
(4) If, after the hearing, the military judge finds the
accused has satisfied the standard specified in
paragraph (3), the military judge shall inform the
general court-martial convening authority of this result
and the accused shall be released. If, however, the
military judge finds after the hearing that the accused
has not satisfied the standard specified in paragraph
(3), then the military judge shall inform the general
court-martial convening authority of this result and that
authority may commit the accused to the custody of the
Attorney General.
Rule 1106. Matters submitted by the accused
(a) In general. After a sentence is announced in a court-
martial, the accused may submit matters to the
convening authority for consideration in the exercise
of the convening authority’s powers under R.C.M.
1109, 1110, or 1306.
(b) Matters submitted by the accused.
(1) Subject to paragraph (2), the accused may submit
to the convening authority any matters that may
reasonably tend to inform the convening authority’s
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exercise of discretion under R.C.M. 1109 or 1110. The
convening authority is only required to consider
written submissions. Submissions are not subject to the
Military Rules of Evidence.
(2) Submissions under this rule may not include
matters that relate to the character of a crime victim
unless such matters were admitted as evidence at trial.
Discussion
See also R.C.M. 1109(d)(3)(C)(ii). For purposes of this provision,
the term “crime victim” has the same meaning as the term “victim of
an offense under this chapter” in Article 6b.
(c) Access to court-martial record. Upon request by the
defense, trial counsel shall provide the accused or
counsel for the accused a copy of the recording of all
open sessions of the court-martial, and copies of, or
access to, the evidence admitted at the court-martial,
and the appellate exhibits. Such access shall not
include sealed or classified court-martial material or
recordings unless authorized by a military judge upon
a showing of good cause. A military judge shall issue
appropriate protective orders when authorizing such
access.
Discussion
The record of trial is not certified until after entry of judgment. This
rule allows the defense to have access to the court-martial recordings
and evidence in a timely manner in order to submit matters to the
convening authority for consideration in deciding whether to take
action on either the findings or sentence. See R.C.M. 1109 and 1110.
(d) Time periods.
(1) General and special courts-martial. After a trial
by general or special court-martial, the accused may
submit matters to the convening authority under this
rule within ten days after the sentence is announced.
(2) Summary courts-martial. After a trial by
summary court-martial, the accused may submit
matters under this rule within seven days after the
sentence is announced.
(3) Rebuttal. In a case where a crime victim has
submitted matters under R.C.M. 1106A, the accused
shall have five days from receipt of those matters to
submit any matters in rebuttal. Such a response shall
be limited to addressing matters raised in the crime
victim’s submissions.
(4) Extension of time.
(A) If, within the period described in paragraph (1)
or (2), the accused shows that additional time is
required for the accused to submit matters, the
convening authority may, for good cause, extend the
period for not more than 20 days.
(B) For purposes of this rule, good cause for an
extension ordinarily does not include the need to obtain
matters that reasonably could have been presented at
the court-martial.
Discussion
If at the time a victim makes a submission under R.C.M. 1106A the
accused has not yet made a submission, the accused’s submission
may include any matters permitted by R.C.M. 1106(b) in addition to
matters in rebuttal under R.C.M. 1106(d)(1)(3).
(e) Waiver.
(1) Failure to submit matters. Failure to submit
matters within the time prescribed by this rule waives
the right to submit such matters.
(2) Submission of matters. Submission of any
matters under this rule shall be deemed a waiver of the
right to submit additional matters unless the right to
submit additional matters within the prescribed time
limits is expressly reserved in writing.
(3) Written waiver. The accused may expressly
waive, in writing, the right to submit matters under this
rule. Once submitted, such a waiver may not be
revoked.
(4) Absence of accused. If the accused does not
submit matters under this rule as a result of an
unauthorized absence, the accused shall be deemed to
have waived the right to submit matters under this rule.
Rule 1106A. Matters submitted by crime victim
(a) In general. In a case with a crime victim, after a
sentence is announced in a court-martial any crime
victim of an offense may submit matters to the
convening authority for consideration in the exercise
of the convening authority’s powers under R.C.M.
1109, 1110, or 1306.
(b) Notice to a crime victim.
(1) In general. Subject to such regulations as the
Secretary concerned may prescribe, trial counsel, or in
the case of a summary court-martial, the summary
court-martial officer, shall make reasonable efforts to
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inform crime victims, through counsel, if applicable, of
their rights under this rule, and shall advise such crime
victims on the procedure for making submissions.
(2) Crime victim defined. As used in this rule, the
term “crime victim” means an individual who has
suffered direct physical, emotional, or pecuniary harm
as a result of the commission of an offense of which
the accused was found guilty, and on which the
convening authority may take action under R.C.M.
1109 or 1110, or the individual’s lawful representative
or designee appointed by the military judge under these
rules.
(c) Matters submitted by a crime victim.
(1) Subject to paragraph (2), a crime victim may
submit to the convening authority any matters that may
reasonably tend to inform the convening authority’s
exercise of discretion under R.C.M. 1109 or 1110. The
convening authority is only required to consider
written submissions. Submissions are not subject to the
Military Rules of Evidence.
(2) Limitations on submissions.
(A) Submissions under this rule may not include
matters that relate to the character of the accused unless
such matters were admitted as evidence at trial.
Discussion
See R.C.M. 1109(d)(3)(C)(i).
(B) The crime victim is entitled to one opportunity
to submit matters to the convening authority under this
rule.
Discussion
A convening authority is not required to consider matters submitted
outside the single submission or outside the prescribed time
limitations, and may not consider matters adverse to the accused
without providing the accused an opportunity to respond. See R.C.M.
1109(d)(3)(C)(i).
(3) The convening authority shall ensure any matters
submitted by a crime victim under this subsection be
provided to the accused as soon as practicable.
Discussion
See R.C.M. 1106(d)(3).
(d) Access to court-martial record. Upon request by a
crime victim or crime victim’s counsel, trial counsel
shall provide a copy of the recording of all open
sessions of the court-martial, and copies of, or access
to, the evidence admitted at the court-martial, and the
appellate exhibits. Such access shall not include sealed
or classified court-martial material or recordings
unless authorized by a military judge upon a showing
of good cause. A military judge shall issue appropriate
protective orders when authorizing such access.
Discussion
The record of trial is not certified until after entry of judgment. This
rule allows the victim to have access to the court-martial recordings
and evidence in a timely manner in order to submit matters to the
convening authority for consideration.
(e) Time periods.
(1) General and special courts-martial. After a trial
by general or special court-martial, a crime victim may
submit matters to the convening authority under this
rule within ten days after the sentence is announced.
(2) Summary courts-martial. After a trial by
summary court-martial, a crime victim may submit
matters under this rule within seven days after the
sentence is announced.
(3) Extension of time.
(A) If, within the period described in paragraph (1)
or (2), the crime victim shows that additional time is
required for the crime victim to submit matters, the
convening authority may, for good cause, extend the
period for not more than 20 days.
(B) For purposes of this rule, good cause for an
extension ordinarily does not include the need to obtain
matters that reasonably could have been obtained prior
to the conclusion of the court-martial.
(f) Waiver.
(1) Failure to submit matters. Failure to submit
matters within the time prescribed by this rule waives
the right to submit such matters.
(2) Written waiver. A crime victim may expressly
waive, in writing, the right to submit matters under this
rule. Once filed, such a waiver may not be revoked.
Rule 1107. Suspension of execution of sentence;
remission
(a) In general. Suspension of a sentence grants the
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accused a probationary period during which the
suspended part of a sentence is not executed, and upon
the accused’s successful completion of which the
suspended part of the sentence shall be remitted.
Remission cancels the unexecuted part of a sentence to
which it applies. The unexecuted part of a sentence is
that part of the sentence that has not been carried out.
(b) Who may suspend and remit.
(1) Suspension when acting on sentence. The
convening authority may suspend the execution of a
court-martial sentence as authorized under R.C.M.
1109 or 1110.
(2) Suspension after entry of judgment. The
convening authority who convened the original court-
martial, the convening authority’s successor in
command, or a convening authority otherwise
designated by the Secretary concerned may suspend
any part of the unexecuted part of any sentence except
a sentence of death, dishonorable discharge, bad-
conduct discharge, dismissal, or confinement for more
than six months.
(3) Remission of sentence. The commander of the
accused who has the authority to convene a court-
martial of the type that imposed the sentence on the
accused may remit any unexecuted part of the
sentence, except a sentence of death, dishonorable
discharge, bad-conduct discharge, dismissal, or
confinement for more than six months.
(4) Secretarial authority. The Secretary concerned
and, when designated by the Secretary concerned, any
Under Secretary, Assistant Secretary, Judge Advocate
General, or commanding officer may suspend or remit
any part or amount of the unexecuted part of any
sentence other than a sentence approved by the
President or a sentence of confinement for life without
eligibility for parole. The Secretary concerned may,
however, suspend or remit the unexecuted part of a
sentence of confinement for life without eligibility for
parole only after the service of a period of confinement
of not less than 20 years.
(c) Conditions of suspension. The authority who
suspends the execution of the sentence of a court-
martial shall:
(1) Specify in writing the conditions of the
suspension;
(2) Cause a copy of the conditions of the suspension
to be served on the probationer; and
(3) Cause a receipt to be secured from the
probationer for service of the conditions of the
suspension.
Unless otherwise stated, an action suspending a
sentence includes as a condition that the probationer
not violate any punitive article of the Uniform Code of
Military Justice.
(d) Limitations on suspension.
(1) A sentence of death may not be suspended.
(2) A sentence of dishonorable discharge, bad-
conduct discharge, dismissal, or confinement for more
than six months may be suspended only as provided by
paragraph (b)(4) and R.C.M. 1109(f).
(3) Suspension shall be for a stated period or until
the occurrence of an anticipated future event. The
period shall not be unreasonably long. The Secretary
concerned may further limit by regulation the period
for which the execution of a sentence may be
suspended. The convening authority shall provide in
the action that, unless the suspension is sooner vacated,
the expiration of the period of suspension shall remit
the suspended portion of the sentence.
(e) Termination of suspension by remission. Expiration
of the period provided in the action suspending a
sentence or part of a sentence shall remit the suspended
sentence portion unless the suspension is sooner
vacated. Death or separation which terminates status as
a person subject to the UCMJ will result in remission
of the suspended portion of the sentence.
Rule 1108. Vacation of suspension of sentence
(a) In general. Suspension of execution of the sentence
of a court-martial may be vacated for violation of any
condition of the suspension as provided in this rule.
(b) Timeliness.
(1) Violation of conditions. Vacation shall be based
on a violation of any condition of suspension which
occurs within the period of suspension.
(2) Vacation proceedings. Vacation proceedings
under this rule shall be completed within a reasonable
time.
(3) Order vacating the suspension. The order
vacating the suspension shall be issued before the
expiration of the period of suspension.
(4) Interruptions to the period of suspension.
Unauthorized absence of the probationer or the
commencement of proceedings under this rule to
vacate suspension interrupts and tolls the running of
the period of suspension.
(c) Confinement of probationer pending vacation
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proceedings.
(1) In general. A probationer under a suspended
sentence to confinement may be confined pending
action under subsection (e) of this rule, in accordance
with the procedures in this subsection.
(2) Who may order confinement. Any person who
may order pretrial restraint under R.C.M. 304(b) may
order confinement of a probationer under a suspended
sentence to confinement.
(3) Basis for confinement. A probationer under a
suspended sentence to confinement may be ordered
into confinement upon probable cause to believe the
probationer violated any conditions of the suspension.
(4) Preliminary review of confinement. Unless
vacation proceedings under subsection (d) of this rule
are completed within 7 days of imposition of
confinement of the probationer (not including any
delays requested by probationer), a preliminary review
of the confinement shall be conducted by a neutral and
detached officer appointed in accordance with
regulations of the Secretary concerned.
(A) Rights of confined probationer. Before the
preliminary review, the probationer shall be notified in
writing of:
(i) The time, place, and purpose of the
preliminary review, including the alleged violation(s)
of the conditions of suspension;
(ii) The right to be present at the preliminary
review;
(iii) The right to be represented at the
preliminary review by civilian counsel provided by the
probationer or, upon request, by military counsel
detailed for this purpose; and
(iv) The opportunity to be heard, to present
witnesses who are reasonably available and other
evidence, and the right to confront and cross-examine
adverse witnesses unless the officer conducting the
preliminary review determines that this would subject
these witnesses to risk or harm. For purposes of this
subsection, a witness is not reasonably available if the
witness requires reimbursement by the United States
for cost incurred in appearing, cannot appear without
unduly delaying the proceedings or, if a military
witness, cannot be excused from other important
duties. Witness testimony may be provided in person,
by video teleconference, by telephone, or by similar
means of remote testimony.
(B) Rules of evidence. Only Mil. R. Evid. 301,
302, 303, 305, 412, and Section V (Privileges) apply to
proceedings under this rule, except Mil. R. Evid.
412(b)(1)(C) does not apply. In applying these rules to
a preliminary review, the term “military judge,” as
used in these rules, shall mean the officer conducting
the preliminary review, who shall assume the military
judge’s authority to exclude evidence from the hearing,
and who shall, in discharging this duty, follow the
procedures set forth in these rules.
(C) Decision. The officer conducting the
preliminary review shall determine whether there is
probable cause to believe that the probationer violated
the conditions of the probationer’s suspension. If the
officer conducting the preliminary review determines
that probable cause is lacking, the officer shall issue a
written order directing that the probationer be released
from confinement. If the officer determines that there
is probable cause to believe that the probationer
violated a condition of suspension, the officer shall set
forth this determination in a written memorandum that
details therein the evidence relied upon and reasons for
making the decision. The officer shall forward the
original memorandum or release order to the
probationer’s commander and forward a copy to the
probationer and the officer in charge of the
confinement facility.
(d) Vacation proceedings.
(1) In general. The purpose of the vacation hearing
is to determine whether there is probable cause to
believe that the probationer violated a condition of the
probationer’s suspension.
(A) Sentence of general courts-martial and
certain special courts-martial. In the case of vacation
proceedings for a suspended sentence of any general
court-martial or a suspended sentence of a special
court-martial that adjudged either a bad-conduct
discharge or confinement for more than six months, the
officer having special court-martial jurisdiction over
the probationer shall either personally hold the hearing
or detail a judge advocate to preside at the hearing. If
there is no officer having special court-martial
jurisdiction over the probationer who is subordinate to
the officer having general court-martial jurisdiction
over the probationer, the officer exercising general
court-martial jurisdiction over the probationer shall
either personally hold a hearing under this subsection
or detail a judge advocate to conduct the hearing.
(B) Special court-martial wherein a bad-conduct
discharge or confinement for more than six months was
not adjudged. In the case of vacation proceedings for a
sentence from a special court-martial that did not
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include a bad-conduct discharge or confinement for
more than six months, the officer having special court-
martial jurisdiction over the probationer shall either
personally hold the hearing or detail a judge advocate
to conduct the hearing.
(C) Sentence of summary court-martial. In the
case of vacation proceedings for a suspended sentence
of a summary court-martial, the officer having
summary court-martial jurisdiction over the
probationer shall either personally hold the hearing or
detail a commissioned officer to conduct the hearing.
(2) Notice to probationer. Before the hearing, the
officer conducting the hearing shall cause the
probationer to be notified in writing of:
(A) The time, place, and purpose of the hearing;
(B) The right to be present at the hearing;
(C) The alleged violation(s) of the conditions of
suspension and the evidence expected to be relied on;
(D) The right to be represented at the hearing by
civilian counsel provided by the probationer or, upon
request, by military counsel detailed for this purpose;
and
(E) The opportunity to be heard, to present
witnesses who are reasonably available and other
evidence, and the right to confront and cross-examine
adverse witnesses unless the officer conducting the
preliminary review determines that this would subject
these witnesses to risk or harm.
(3) Procedure.
(A) Generally. The hearing shall begin with the
hearing officer informing the probationer of the
probationer’s rights. The Government will then present
evidence. Upon the conclusion of the Government’s
presentation of evidence, the probationer may present
evidence. The probationer shall have full opportunity
to present any matters in defense, extenuation, or
mitigation. Both the Government and probationer shall
be afforded an opportunity to cross-examine adverse
witnesses. The hearing officer may also question
witnesses called by the parties.
(B) Rules of evidence. The Military Rules of
Evidence applicable to vacation proceedings are the
same as those set forth in subparagraph (c)(4)(B) of
this rule.
(C) Production of witnesses and other evidence.
The procedure for the production of witnesses and
other evidence shall follow that prescribed in R.C.M.
405(h), except that R.C.M. 405(h)(3)(B) shall not
apply. The hearing officer shall only consider
testimony and other evidence that is relevant to the
limited purpose of the hearing.
Discussion
A hearing officer may not order the production of any privileged
matters.
(D) Presentation of testimony. Witness testimony
may be provided in person, by video teleconference, by
telephone, or by similar means of remote testimony.
All testimony shall be taken under oath, except that the
probationer may make an unsworn statement.
Discussion
See R.C.M. 807. The hearing officer is required to include in the
record of the hearing, at a minimum, a summary of the substance of
all testimony.
(E) Other evidence. If relevant to the limited
purpose of the hearing, and not cumulative, a hearing
officer may consider other evidence, in addition to or
in lieu of witness testimony, including statements,
tangible evidence, or reproductions thereof, offered by
either side, that the hearing officer determines is
reliable. This other evidence need not be sworn.
(F) Protective order for release of privileged
information. If the Government agrees to disclose to
the probationer information to which the protections
afforded by Mil. R. Evid. 505 or 506 may apply, the
convening authority, or other person designated by
regulation of the Secretary of the service concerned,
may enter an appropriate protective order, in writing,
to guard against the compromise of information
disclosed to the probationer. The terms of any such
protective order may include prohibiting the disclosure
of the information except as authorized by the
authority.
(G) Presence of probationer. The taking of
evidence shall not be prevented and the probationer
shall be considered to have waived the right to be
present whenever the probationer:
(i) After being notified of the time and place of
the proceeding is voluntarily absent; or
(ii) After being warned by the hearing officer
that disruptive conduct will cause removal from the
proceeding, persists in conduct that is such as to justify
exclusion from the proceeding.
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(H) Objections. Any objection alleging failure to
comply with these rules shall be made to the convening
authority via the hearing officer. The hearing officer
shall include a record of all objections in the written
recommendations to the convening authority.
(I) Access by spectators. The procedures for
access by spectators shall follow those prescribed in
R.C.M. 405(j)(3).
(J) Victims’ rights. Any victim of the underlying
offense for which the probationer received the
suspended sentence, or any victim of the alleged
offense that is the subject of the vacation hearing, has
the right to reasonable, accurate, and timely notice of
the vacation hearing.
Discussion
The term “victim” has the same meaning as the term “victim of an
offense under this chapter” in Article 6b.
(4) Record and recommendation. The officer
conducting the hearing shall make a summarized
record of the hearing. If the hearing is not personally
conducted by the officer having the authority to take
action under subsection (e) of this rule, the officer who
conducted the hearing shall forward the record and that
officer’s written recommendation concerning vacation
to such authority. The record shall include the
recommendation, the evidence relied upon, and the
rationale supporting the recommendation.
(5) Release from confinement. If the hearing is not
personally conducted by the officer having the
authority to take action under subsection (e) of this rule
and the officer conducting the hearing finds there is not
probable cause to believe that the probationer violated
any condition of the suspension, the officer shall order
the release of the probationer from any confinement
ordered under subsection (c) of this rule, and forward
the record and recommendation to the officer having
the authority to take action under subsection (e) of this
rule.
(e) Action.
(1) General courts-martial and certain special
courts-martial. In a case of a suspended sentence from
any general court-martial or a suspended sentence from
a special court-martial that adjudged either a bad-
conduct discharge or confinement for more than six
months, unless the officer exercising general court-
martial jurisdiction over the probationer personally
conducted the hearing, the officer exercising general
court-martial jurisdiction over the probationer shall
review the record and the recommendation produced
by the officer who conducted the hearing on the alleged
violation of the conditions of suspension, decide
whether the probationer violated a condition of
suspension, and, if so, decide whether to vacate the
suspended sentence. If the officer exercising general
court-martial jurisdiction decides to vacate the
suspended sentence, that officer shall prepare a written
statement of the evidence relied on and the reasons for
vacating the suspended sentence.
(2) Special courts-martial wherein a bad-conduct
discharge and confinement for more than six months
was not adjudged. In a case of a suspended sentence
from a special court-martial that did not include a bad-
conduct discharge or confinement for more than six
months, unless the officer having special court-martial
jurisdiction over the probationer personally conducted
the hearing, the officer having special court-martial
jurisdiction over the probationer shall review the
record and the recommendation produced by the
officer who conducted the hearing, decide whether the
probationer violated a condition of suspension, and, if
so, decide whether to vacate the suspended sentence. If
the officer exercising special court-martial jurisdiction
decides to vacate the suspended sentence, that officer
shall prepare a written statement of the evidence relied
on and the reasons for vacating the suspended
sentence. The authority holding the same or higher
court-martial authority as the officer who originally
suspended the probationer’s sentence may withhold
the authority to take action under this paragraph to that
officer.
(3) Vacation of a suspended sentence from a
summary court-martial. In a case of a suspended
sentence from a summary court-martial, unless the
officer having summary court-martial jurisdiction over
the probationer personally conducted the hearing, the
officer having summary court-martial jurisdiction over
the probationer shall review the record and the
recommendation produced by the officer who
conducted the hearing, and decide whether the
probationer violated a condition of suspension, and, if
so, decide whether to vacate the suspended sentence. If
the officer exercising summary court-martial
jurisdiction decides to vacate the suspended sentence,
that officer shall prepare a written statement of the
evidence relied on and the reasons for vacating the
suspended sentence. The authority holding the same or
higher court-martial authority as the officer who
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originally suspended the probationer’s sentence may
withhold the authority to take action under this
paragraph to that officer.
(4) Execution. Any unexecuted part of a suspended
sentence ordered vacated under this subsection shall be
executed.
Rule 1109. Reduction of sentence, general and
special courts-martial
(a) In general. This rule applies to the post-trial actions
of the convening authority in any general or special
court-martial in which—
(1) The court-martial found the accused guilty of—
(A) An offense for which the maximum authorized
sentence to confinement is more than two years,
without considering the jurisdictional maximum of the
court;
(B) A violation of Article 120(a) or (b);
(C) A violation of Article 120b; or
(D) A violation of such other offense as the
Secretary of Defense has specified by regulation; or
(2) The sentence of the court-martial includes—
(A) A bad-conduct discharge, dishonorable
discharge, or dismissal;
(B) A term of confinement, or terms of
confinement running consecutively, more than six
months; or
Discussion
The applicability of R.C.M. 1109(a)(2)(B) is determined by
assessing the total amount of confinement that is to be served. In a
case where the military judge determined the sentence of the
accused, the total amount of confinement is based upon the military
judge’s determination as to whether any terms of confinement are to
run concurrently or consecutively. For instance, if the military judge
determines that all terms of confinement are to be served
concurrently and the total amount of confinement is six months or
less, R.C.M. 1109(a)(2)(B) does not apply. If, however, the military
judge determines that two or more terms of confinement are to be
served consecutively and the total amount of confinement is more
than six months, R.C.M. 1109(a)(2)(B) applies.
(C) Death.
(b) Limitation of authority on findings. For any court-
martial described under subsection (a), the convening
authority may not set aside, disapprove, or take any
other action on the findings of the court-martial.
(c) Limited authority to act on sentence. For any court-
martial described under subsection (a), the convening
authority may—
(1) Modify a bad-conduct discharge, dishonorable
discharge, or dismissal only as provided in subsections
(e) and (f);
(2) Modify a term of confinement of more than six
months, or terms of confinement that running
consecutively are more than six months, only as
provided in subsections (e) and (f);
Discussion
See the Discussion following R.C.M. 1109(a)(2)(B).
(3) Reduce or commute a punishment of death only
as provided in subsection (e);
(4) Reduce, commute, or suspend, in whole or in
part, any punishment adjudged for an offense tried
under the law of war other than the punishments
specified in paragraphs (1), (2), and (3);
(5) Reduce, commute, or suspend, in whole or in
part, the following punishments:
(A) The confinement portion of a sentence if the
confinement portion of the sentence is six months or
less, to include terms of confinement that running
consecutively total six months or less;
Discussion
See the Discussion following R.C.M. 1109(a)(2)(B).
(B) A reprimand;
(C) Forfeiture of pay or allowances;
(D) A fine;
(E) Reduction in pay grade;
(F) Restriction to specified limits; and
(G) Hard labor without confinement.
(d) General Considerations.
(1) Who may take action. If it is impracticable for the
convening authority to act under this rule, the
convening authority shall, in accordance with such
regulations as the Secretary concerned may prescribe,
forward the case to an officer exercising general court-
martial jurisdiction who may take action under this
rule.
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(2) Legal advice. In determining whether to take
action, or to decline taking action under this rule, the
convening authority shall consult with the staff judge
advocate or legal advisor.
(3) Consideration of matters.
(A) Matters submitted by accused and crime
victim. Before taking or declining to take any action on
the sentence under this rule, the convening authority
shall consider matters timely submitted under R.C.M.
1106 and 1106A, if any, by the accused and any crime
victim.
(B) Additional matters. Before taking action the
convening authority may consider—
(i) The Statement of Trial Results;
Discussion
See R.C.M. 1104(b) addressing post-trial motions and proceedings
to resolve allegations of error in a Statement of Trial Results.
(ii) The evidence introduced at the court-
martial, any appellate exhibits, and the recording or
transcription of the proceedings, subject to the
provisions of R.C.M. 1113 and subparagraph (C);
(iii) The personnel records of the accused; and
(iv) Such other matters as the convening
authority deems appropriate.
(C) Prohibited matters.
(i) Accused. The convening authority may not
consider matters adverse to the accused that were not
admitted at the court-martial, with knowledge of which
the accused is not chargeable, unless the accused is first
notified and given an opportunity to rebut.
(ii) Crime victim. The convening authority shall
not consider any matters that relate to the character of
a crime victim unless such matters were presented as
evidence at trial and not excluded at trial.
Discussion
For purposes of this provision, the term “crime victim” has the same
meaning as “victim of an offense under this chapter” in Article 6b.
(3) Timing. Except as provided in subsection (e), any
action taken by the convening authority under this rule
shall be taken prior to entry of judgment. If the
convening authority decides to take no action, that
decision shall be transmitted promptly to the military
judge as provided under subsection (g).
(e) Reduction of sentence for substantial assistance by
accused.
(1) In general. A convening authority may reduce,
commute, or suspend the sentence of an accused, in
whole or in part, if the accused has provided substantial
assistance in the criminal investigation or prosecution
of another person.
(2) Trial counsel. A convening authority may reduce
the sentence of an accused under this subsection only
upon the recommendation of trial counsel who
prosecuted the accused. If the person who served as
trial counsel is no longer serving in that position, or is
not reasonably available, the attorney who is primarily
responsible for the investigation or prosecution in
which the accused has provided substantial assistance,
and who represents the United States, is trial counsel
for the purposes of this subsection. The
recommendation of trial counsel is the decision of trial
counsel alone. No person may direct trial counsel to
make or not make such a recommendation.
(3) Who may act.
(A) Before entry of judgment, the convening
authority who convened the original court-martial or
the convening authority’s successor in command may
act on the recommendation of trial counsel under
paragraph (2).
(B) After entry of judgment, the convening
authority who convened the original court-martial or
the convening authority’s successor in command or a
convening authority otherwise designated by the
Secretary concerned may act on the recommendation
of trial counsel under paragraph (2).
(4) Scope of authority. A convening authority
authorized to act under paragraph (3) may accept the
recommendation of trial counsel under paragraph (2)
of this subsection, and may reduce, commute, or
suspend a sentence in whole or in part, including any
mandatory minimum sentence.
(5) Limitations.
(A) A sentence of death may not be suspended
under this subsection.
(B) In the case of a recommendation by trial
counsel under paragraph (2) of this subsection made
more than one year after entry of judgment, the
convening authority who convened the original court-
martial or the convening authority’s successor in
command or a convening authority otherwise
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designated by the Secretary concerned may reduce a
sentence only if the substantial assistance of the
accused involved—
(i) Information not known to the accused until
one year or more after sentencing;
(ii) Information the usefulness of which could
not reasonably have been anticipated by the accused
until more than one year after sentencing and which
was promptly provided to the Government after its
usefulness was reasonably apparent to the accused; or
(iii) Information provided by the accused to the
Government within one year of sentencing, but which
did not become useful to the Government until more
than one year after sentencing.
(6) Evaluating substantial assistance. In evaluating
whether the accused has provided substantial
assistance, the trial counsel and convening authority
may consider the presentence assistance of the
accused.
(7) Action after entry of judgment. If the convening
authority who convened the original court-martial or
the convening authority’s successor in command or a
convening authority otherwise designated by the
Secretary concerned acts on the sentence of an accused
after entry of judgment, the action shall be forwarded
to the chief trial judge. The chief trial judge, or a
military judge detailed by the chief trial judge, shall
modify the judgment of the court-martial to reflect the
action. The action and the modified judgment shall be
forwarded to the Judge Advocate General and shall be
included in the original record of trial. The reduction
of a sentence under this rule shall not abridge any right
of the accused to appellate review.
(f) Suspension.
(1) The convening authority may suspend a sentence
of a dishonorable discharge, bad-conduct discharge,
dismissal, or confinement in excess of six months, if—
(A) The Statement of Trial Results filed under
R.C.M. 1101 includes a recommendation by the
military judge that the convening authority suspend the
sentence, in whole or in part; and
(B) The military judge includes a statement
explaining the basis for the suspension
recommendation.
(2) If the convening authority suspends a sentence
under this subsection—
(A) The portion of the sentence that is to be
suspended may not exceed the portion of the sentence
that the military judge recommended be suspended;
(B) The duration of the suspension may not be less
than that recommended by the military judge; and
(C) The suspended portion of the sentence may be
terminated by remission only as provided in R.C.M.
1107(e).
(3) A sentence that is suspended under this rule shall
comply with the procedures prescribed in R.C.M.
1107(c), (d), and (e).
(g) Decision; forwarding of decision and related
matters.
(1) No action. If the convening authority decides to
take no action on the sentence under this rule, the staff
judge advocate or legal advisor shall notify the military
judge of this decision.
(2) Action on sentence. If the convening authority
decides to act on the sentence under this rule, such
action shall be in writing and shall include a written
statement explaining the action. If any part of the
sentence is disapproved, reduced, commuted, or
suspended, the action shall clearly state which part or
parts are disapproved, reduced, commuted, or
suspended. The convening authority’s staff judge
advocate or legal advisor shall forward the action with
the written explanation to the military judge to be
attached to the record of trial.
(h) Service on accused and crime victim. If the
convening authority took any action on the sentence
under this rule, a copy of such action shall be served on
the accused, crime victim, or on their respective
counsel. If the action is served on counsel, counsel
shall, by expeditious means, provide the accused or
crime victim with a copy. If the judgment is entered
expeditiously, service of the judgment will satisfy the
requirements of this subsection.
Discussion
See R.C.M. 1104(b) addressing post-trial motions and proceedings
to resolve allegations of error in the convening authority’s action
under R.C.M. 1109. For purposes of this provision, the term “crime
victim” has the same meaning as in R.C.M. 1106A(b)(2).
Rule 1110. Action by convening authority in
certain general and special courts-martial
(a) In general. This rule applies to the post-trial actions
of the convening authority in any general or special
court-martial not specified in R.C.M. 1109(a).
(b) Action on findings. In any court-martial subject to
this rule, action on findings is not required; however,
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the convening authority may—
(1) Change a finding of guilty to a charge or
specification to a finding of guilty to an offense that is
a lesser included offense of the offense stated in the
charge or specification; or
(2) Set aside any finding of guilty and—
(A) Dismiss the specification and, if appropriate,
the charge; or
(B) Order a rehearing in accordance with the
procedures set forth in R.C.M. 810.
A rehearing may not be ordered as to findings of
guilty when there is a lack of sufficient evidence in the
record to support the findings of guilty of the offense
charged or of any lesser included offense. A rehearing
may be ordered, however, if the proof of guilt consisted
of inadmissible evidence for which there is available
an admissible substitute. A rehearing may be ordered
as to any lesser offense included in an offense of which
the accused was found guilty, provided there is
sufficient evidence in the record to support the lesser
included offense.
(c) Action on sentence.
(1) In any court-martial subject to this rule, action on
the sentence is not required; however, the convening
authority may disapprove, reduce, commute, or
suspend, in whole or in part, the court-martial sentence.
If the sentence is disapproved, the convening authority
may order a rehearing on the sentence.
(2) In any court-martial subject to this rule, the
convening authority, after entry of judgment, may
reduce a sentence for substantial assistance in
accordance with the procedures under R.C.M. 1109(e).
(d) Procedures. The convening authority shall use the
same procedures as in subsections (d) and (h) of
R.C.M. 1109 for any post-trial action on findings and
sentence under this rule.
(e) Decision; forwarding of decision and related
matters.
(1) No action. If the convening authority decides to
take no action on the findings or sentence under this
rule, the convening authority’s staff judge advocate or
legal advisor shall notify the military judge of the
decision.
(2) Action on findings. If the convening authority
decides to act on the findings under this rule, the action
of the convening authority shall be in writing and shall
include a written statement explaining the reasons for
the action. If a rehearing is not ordered, the affected
charges and specifications shall be dismissed by the
convening authority in the action. The convening
authority’s staff judge advocate or legal advisor shall
forward the action with the written explanation to the
military judge to be attached to the record of trial.
(3) Action on sentence. If the convening authority
decides to act on the sentence under this rule, the action
of the convening authority on the sentence shall be in
writing and shall include a written statement
explaining the reasons for the action. If any part of the
sentence is disapproved, the action shall clearly state
which part or parts are disapproved. The convening
authority’s staff judge advocate or legal advisor shall
forward the action with the written explanation to the
military judge to be attached to the record of trial.
Discussion
See R.C.M. 1104(b) addressing post-trial motions and proceedings
to resolve allegations of error in the convening authority’s action
under R.C.M. 1110.
Rule 1111. Entry of judgment
(a) In general.
(1) Scope. Under regulations prescribed by the
Secretary concerned, the military judge of a general or
special court-martial shall enter into the record of trial
the judgment of the court. If the Chief Trial Judge
determines that the military judge is not reasonably
available, the Chief Trial Judge may detail another
military judge to enter the judgment.
(2) Purpose. The judgment reflects the result of the
court-martial, as modified by any post-trial actions,
rulings, or orders. The entry of judgment terminates the
trial proceedings and initiates the appellate process.
(3) Summary courts-martial. In a summary court-
martial, the findings and sentence of the court-martial,
as modified or approved by the convening authority,
constitute the judgment of the court-martial. A separate
document need not be issued.
(b) Contents. The judgment of the court shall be signed
and dated by the military judge and shall consist of—
(1) Findings. For each charge and specification
referred to trial—
(A) a summary of each charge and specification;
(B) the plea of the accused; and
(C) the findings or other disposition of each charge
and specification accounting for any modifications
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made by reason of any post-trial action by the
convening authority or any post-trial ruling, order, or
other determination by the military judge;
(2) Sentence. The sentence, accounting for any
modifications made by reason of any post-trial action
by the convening authority or any post-trial ruling,
order, or other determination by the military judge, as
well as the total amount of sentence credit, if any, to be
applied to the accused’s sentence to confinement. If the
accused was convicted of more than one specification
and any part of the sentence was determined by a
military judge, the judgment shall also specify—
(A) the confinement and fine for each
specification, if any;
(B) whether any term of confinement shall run
consecutively or concurrently with any other term(s) of
confinement; and
(C) the total amount of any fine(s) and the total
duration of confinement to be served, after accounting
for the following—
(i) any terms of confinement that are to run
consecutively or concurrently; and
(ii) any modifications to the sentence made by
reason of any post-trial action by the convening
authority or any post-trial ruling, order, or other
determination by the military judge.
Discussion
The date that the sentence is adjudged is the date the sentence was
announced. See Articles 53 and 57. The adjudged sentence may be
modified by the convening authority or the military judge. See
generally R.C.M. 1104, R.C.M. 1107, R.C.M. 1109, and R.C.M.
1110.
See R.C.M. 1002(b) for military judge alone sentencing and
R.C.M. 1004 for sentencing in capital cases by military judge and
members.
(3) Additional information.
(A) Deferment. If the accused requested that any
portion of the sentence be deferred, the judgment shall
specify the nature of the request, the convening
authority’s action, the effective date if approved, and,
if the deferment ended prior to the entry of judgment,
the date the deferment ended.
(B) Waiver of automatic forfeitures. If the accused
requested that automatic forfeitures be waived by the
convening authority under Article 58b, the judgment
shall specify the nature of the request, the convening
authority’s action, and the effective date and length, if
approved.
(C) Suspension. If the Statement of Trial Results
included a recommendation by the military judge that
a portion of the sentence be suspended, the judgment
shall specify the action of the convening authority on
the recommendation.
(D) Reprimand. If the sentence included a
reprimand, the judgment shall contain the reprimand
issued by the convening authority.
(E) Rehearing. If the judgment is entered after a
rehearing, new trial or other trial, the judgment shall
specify any sentence limitation applicable by operation
of Article 63.
(F) Other information. Any additional information
that the Secretary concerned may require by regulation.
(4) Statement of Trial Results. The Statement of Trial
Results shall be included in the judgment in accordance
with regulations prescribed by the Secretary
concerned.
Discussion
See Article 60 and R.C.M. 1101. The judgment of the court entered
under this rule should provide a complete statement of the findings
and the sentence reflecting the effect of any post-trial modifications.
The judgment of the court should avoid using phrases such as
“exceptions” and “substitutions” to reflect post-trial actions. Such a
formulation is not an appropriate substitute for a complete statement
of the findings and sentence.
(c) Modification of judgment. The judgment may be
modified as follows—
(1) The military judge who entered a judgment may
issue a modified judgment to correct any errors prior to
certification of the record of trial under R.C.M. 1112.
(2) The Court of Criminal Appeals, the Court of
Appeals for the Armed Forces, and the Judge Advocate
General or the Judge Advocate General’s designee
may modify a judgment in the performance of their
duties and responsibilities.
(3) If a case is remanded to a military judge, the
military judge may modify the judgment consistent
with the purposes of the remand.
(4) Any modification to the judgment of a court-
martial must be included in the record of trial.
(d) Rehearings, new trials, and other trials. In the case
of a rehearing, new trial, or other trial, the military
judge shall enter a new judgment into the record of trial
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to reflect the results of the rehearing, new trial, or other
trial.
(e) When judgment is entered.
(1) Courts-martial without a finding of guilty. When
a court-martial results in a full acquittal or when a
court-martial terminates before findings, the judgment
shall be entered as soon as practicable. When a court-
martial results in a finding of not guilty only by reason
of lack of mental responsibility of all charges and
specifications, the judgment shall be entered as soon as
practicable after a hearing is conducted under R.C.M.
1105.
(2) Courts-martial with a finding of guilty. If a court-
martial includes a finding of guilty to any specification
or charge, the judgment shall be entered as soon as
practicable after the staff judge advocate or legal
advisor notifies the military judge of the convening
authority’s post-trial action or decision to take no
action under R.C.M. 1109 or 1110, as applicable.
(f) Publication.
(1) The judgment shall be entered into the record of
trial.
(2) A copy of the judgment shall be provided to the
accused or to the accused’s defense counsel. If the
judgment is served on defense counsel, defense
counsel shall, by expeditious means, provide the
accused with a copy.
(3) A copy of the judgment shall be provided upon
request to any crime victim or crime victim’s counsel
in the case, without regard to whether the accused was
convicted or acquitted of any offense.
Discussion
For the definition of “crime victim,” see R.C.M. 1001(c)(2)(A).
However, in this provision, a copy of the Statement of Trial Results
shall be provided to any crime victim without regard to whether the
accused was convicted or acquitted of any offense.
(4) The commander of the accused or the convening
authority may publish the judgment of the court-
martial to their respective commands.
(5) Under regulations prescribed by the Secretary of
Defense, court-martial judgments shall be made
available to the public.
Rule 1112. Certification of record of trial; general
and special courts-martial
(a) In general. Each general and special court-martial
shall keep a separate record of the proceedings in each
case brought before it. The record shall be independent
of any other document and shall include a recording of
the court-martial. Court-martial proceedings may be
recorded by videotape, audiotape, or other technology
from which sound images may be reproduced to
accurately depict the court-martial.
Discussion
Video and audio recording and the taking of photographs in the
courtroom are permitted only for the purpose of preparing the record
of trial or as permitted by R.C.M. 806(c). Spectators, witnesses,
counsel for the accused and counsel for victims are not permitted to
make video or audio recordings or to take photographs in the
courtroom.
(b) Contents of the record of trial. The record of trial
contains the court-martial proceedings and includes
any evidence or exhibits considered by the court-
martial in determining the findings or sentence. The
record of trial in every general and special court-
martial shall include:
(1) A substantially verbatim recording of the court-
martial proceedings except sessions closed for
deliberations and voting;
(2) The original charge sheet or a duplicate;
(3) A copy of the convening order and any amending
order;
(4) The request, if any, for trial by military judge
alone; the accused’s election, if any, of members under
R.C.M. 903; and, when applicable, any statement by
the convening authority required under R.C.M.
503(a)(2);
(5) Exhibits, or, if permitted by the military judge,
copies, photographs, or descriptions of any exhibits
that were received in evidence and any appellate
exhibits;
(6) The Statement of Trial Results;
(7) Any action by the convening authority under
R.C.M. 1109 or 1110; and
(8) The judgment entered into the record by the
military judge.
(c) Certification. A court reporter shall prepare and
certify that the record of trial includes all items
required under subsection (b). If the court reporter
cannot certify the record of trial because of the court
reporter’s death, disability, or absence, the military
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judge shall certify the record of trial.
(1) Timing of certification. The record of trial shall
be certified as soon as practicable after the judgment
has been entered into the record.
(2) Additional proceedings. If additional
proceedings are held after the court reporter certifies
the record, a record of those proceedings shall be
included in the record of trial, and a court reporter shall
prepare a supplemental certification.
(d) Loss of record, incomplete record, and correction
of record.
(1) If the certified record of trial is lost or destroyed,
a court reporter shall, if practicable, certify another
record of trial.
(2) A record of trial is complete if it complies with
the requirements of subsection (b). If the record is
incomplete or defective, a court reporter or any party
may raise the matter to the military judge for
appropriate corrective action. A record of trial found to
be incomplete or defective before or after certification
may be corrected to make it accurate. A superior
competent authority may return a record of trial to the
military judge for correction under this rule. The
military judge shall give notice of the proposed
correction to all parties and permit them to examine
and respond to the proposed correction. All parties
shall be given reasonable access to any court reporter
notes or recordings of the proceedings.
(3) The military judge may take corrective action by
any of the following means—
(A) reconstructing the portion of the record
affected;
(B) dismissing affected specifications;
(C) reducing the sentence of the accused; or
(D) if the error was raised by motion or on appeal
by the defense, declaring a mistrial as to the affected
specifications.
Discussion
Where there is an electronic or digital recording failure or loss of
court reporter notes, the record should be reconstructed as
completely as possible. If the interruption is discovered during trial,
the military judge should summarize or reconstruct the portion of the
proceedings which has not been recorded. If both parties agree to the
summary or reconstruction of the proceedings, the proceedings may
continue. If either party objects to the summary or reconstruction,
the trial should proceed anew, and the proceedings repeated from the
point where the interruption began.
(e) Copies of the record of trial.
(1) Accused and victim. Any victim entitled to a copy
of the certified record of trial shall be notified of the
opportunity to receive a copy of the certified record of
trial. Following certification of the record of trial under
subsection (c), in every general and special court-
martial, subject to paragraphs (3) and (4), a court
reporter shall, in accordance with regulations issued by
the Secretary concerned, provide a copy of the certified
record of trial free of charge to—
(A) The accused;
(B) The victim of an offense of which the accused
was charged if the victim testified during the
proceedings; and
(C) Any victim named in a specification of which
the accused was charged, upon request, without regard
to the findings of the court-martial.
Discussion
The term “victim” has the same meaning as the term “victim of an
offense under this chapter” in Article 6b. The record of trial includes
only those items listed in R.C.M. 1112(b).
(2) Providing copy impracticable. If it is
impracticable to provide the record of trial to an
individual entitled to receive a copy under paragraph
(1) because of the unauthorized absence of the
individual, or military exigency, or if the individual so
requests on the record at the court-martial or in writing,
the individual’s copy of the record shall be forwarded
to the individual’s counsel, if any.
(3) Sealed exhibits; classified information; closed
sessions. Any copy of the record of trial provided to an
individual under paragraph (1) shall not contain
classified information, information under seal, or
recordings of closed sessions of the court-martial, and
shall be handled as follows:
(A) Classified information.
(i) Forwarding to convening authority. If the
copy of the record of trial prepared for an individual
under this rule contains classified information, trial
counsel, unless directed otherwise by the convening
authority, shall forward the individual’s copy to the
convening authority, before it is provided to the
individual.
(ii) Responsibility of the convening authority.
The convening authority shall:
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(I) cause any classified information to be
deleted or withdrawn from the individual’s copy of the
record of trial;
(II) cause a certificate indicating that
classified information has been deleted or withdrawn
to be attached to the record of trial; and
(III) cause the expurgated copy of the record
of trial and the attached certificate regarding classified
information to be provided to the individual as
provided in subparagraphs (1)(A), (B), and (C).
(iii) Contents of certificate. The certificate
regarding deleted or withdrawn classified information
shall indicate:
(I) that the original record of trial may be
inspected in the Office of the Judge Advocate General
under such regulations as the Secretary concerned may
prescribe;
(II) the locations in the record of trial from
which matter has been deleted;
(III) the locations in the record of trial which
have been entirely deleted; and
(IV) the exhibits which have been withdrawn.
(B) Sealed exhibits and closed sessions. The court
reporter shall delete or withdraw from an individual’s
copy of the record of trial—
(i) any matter ordered sealed by the military
judge under R.C.M. 1113; and
(ii) any recording or transcript of a session that
was ordered closed by the military judge, to include
closed sessions held pursuant to Mil. R. Evid. 412, 513,
and 514.
Discussion
Once classified information, sealed exhibits, and closed sessions are
removed, the record of trial should ordinarily consist of the public
proceedings of a court-martial, and should ordinarily contain public
matters not subject to further redaction. In all cases, redactions
should be in compliance with R.C.M. 1112(e)(4). If the terms of the
sealing order permit, the court reporter may disclose to the individual
being provided the record of trial those portions that the military
judge has deemed appropriate for such disclosure in the sealing
order.
(4) Portions of the record protected by the Privacy
Act. Any copy of the record of trial provided to a victim
under paragraph (1) shall not contain any portion of the
record the release of which would unlawfully violate
the privacy interests of any person other than that
victim, to include those privacy interests recognized by
5 U.S.C. § 552a, the Privacy Act of 1974.
(5) Additional copies. The convening or higher
authority may direct that additional copies of the record
of trial of any general or special court-martial be
prepared.
(f) Attachments for appellate review. In accordance
with regulations prescribed by the Secretary
concerned, a court reporter shall attach the following
matters to the record before the certified record of trial
is forwarded to the office of the Judge Advocate
General for appellate review:
(1) If not used as exhibits—
(A) The preliminary hearing report under Article
32, if any;
(B) The pretrial advice under Article 34, if any;
(C) If the trial was a rehearing or new or other trial
of the case, the record of any former hearings; and
(D) Written special findings, if any, by the military
judge;
(2) Exhibits or, with the permission of the military
judge, copies, photographs, or descriptions of any
exhibits which were marked for and referred to on the
record but not received in evidence;
(3) Any matter filed by the accused or victim under
R.C.M. 1106 or 1106A, or any written waiver of the
right to submit such matters;
(4) Any deferment request and the action on it;
(5) Conditions of suspension, if any, and proof of
service on probationer under R.C.M. 1107;
(6) Any waiver or withdrawal of appellate review
under R.C.M. 1115;
(7) Records of any proceedings in connection with a
vacation of suspension of the sentence under R.C.M.
1108;
(8) Any transcription of the court-martial
proceedings created pursuant to R.C.M. 1114; and
(9) Any redacted materials.
Discussion
The record of trial and attachments may include electronic versions
of any matters.
(g) Security classification. If the record of trial contains
matters that must be classified under applicable
security regulations, trial counsel shall cause a proper
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security classification to be assigned to the record of
trial and on each page thereof on which classified
material appears.
Rule 1113. Sealed exhibits, proceedings, and other
materials
(a) In general. If the report of preliminary hearing or
record of trial contains exhibits, proceedings, or other
materials ordered sealed by the preliminary hearing
officer or military judge, counsel for the Government,
the court reporter, or trial counsel shall cause such
materials to be sealed so as to prevent unauthorized
examination or disclosure. Counsel for the
Government, the court reporter, or trial counsel shall
ensure that such materials are properly marked,
including an annotation that the material was sealed by
order of the preliminary hearing officer or military
judge, and inserted at the appropriate place in the
record of trial. Copies of the report of preliminary
hearing or record of trial shall contain appropriate
annotations that materials were sealed by order of the
preliminary hearing officer or military judge and have
been inserted in the report of preliminary hearing or
record of trial. This rule shall be implemented in a
manner consistent with Executive Order 13526,
concerning classified national security information.
Discussion
Upon request or otherwise for good cause, a military judge may seal
matters at his or her discretion. The terms “examination” and
“disclosure” are defined in R.C.M. 1113(b)(4) and (5).
(b) Examination and disclosure of sealed materials.
Except as provided in this rule, sealed materials may
not be examined or disclosed.
Discussion
The terms of the sealing order may provide parameters for
examination by or disclosure to those persons or entities whose
interests are being protected.
(1) Prior to referral. Prior to referral of charges, the
following individuals may examine and disclose sealed
materials only if necessary for proper fulfillment of
their responsibilities under the UCMJ, this Manual,
governing directives, instructions, regulations,
applicable rules for practice and procedure, or rules of
professional conduct: the judge advocate advising the
convening authority who directed the Article 32
preliminary hearing; the convening authority who
directed the Article 32 preliminary hearing; the staff
judge advocate to the general court-martial convening
authority; a military judge detailed to an Article 30a
proceeding; the general court-martial convening
authority; and special trial counsel for the purposes of
making a determination on referral.
(2) Referral through certification. After referral of
charges and prior to certification of the record under
R.C.M. 1112(c), sealed materials may not be examined
or disclosed in the absence of an order from the
military judge based upon good cause.
Discussion
A convening authority who has granted clemency based upon review
of sealed materials in the record of trial is not permitted to disclose
the contents of the sealed materials when providing a written
explanation of the reason for such action, as directed under R.C.M.
1109 or 1110.
(3) Reviewing and appellate authorities; appellate
counsel.
(A) Examination by reviewing and appellate
authorities. Reviewing and appellate authorities may
examine sealed matters when those authorities
determine that examination is reasonably necessary to
a proper fulfillment of their responsibilities under the
UCMJ, this Manual, governing directives, instructions,
regulations, applicable rules for practice and
procedure, or rules of professional conduct.
(B) Examination by appellate counsel. Appellate
counsel may examine sealed materials subject to the
following procedures.
(i) Sealed materials released to trial counsel or
defense counsel. Materials presented or reviewed at
trial and sealed, as well as materials reviewed in
camera, released to trial counsel or defense counsel,
and sealed, may be examined by appellate counsel
upon a colorable showing to the reviewing or appellate
authority that examination is reasonably necessary to a
proper fulfillment of the appellate counsel’s
responsibilities under the UCMJ, this Manual,
governing directives, instructions, regulations,
applicable rules for practice and procedure, or rules of
professional conduct.
(ii) Sealed materials reviewed in camera but not
released to trial counsel or defense counsel. Materials
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reviewed in camera by a military judge, not released to
trial counsel or defense counsel, and sealed may be
examined by reviewing or appellate authorities. After
examination of said materials, the reviewing or
appellate authority may permit examination by
appellate counsel for good cause.
Discussion
For disclosure procedures, see R.C.M. 1113(b)(3)(C).
(C) Disclosure. Appellate counsel shall not
disclose sealed materials in the absence of:
(i) prior authorization of the Judge Advocate
General in the case of review under R.C.M. 1201 or
1210; or
(ii) prior authorization of the appellate court
before which a case is pending review under R.C.M.
1203 or 1204; or
(iii) prior authorization of the Judge Advocate
General for a case eligible for review under R.C.M.
1203 or 1204.
Discussion
In general, the Judge Advocate General or an appellate court should
authorize disclosure of sealed material when such disclosure is
necessary for review. Authorizations may place conditions on
disclosure.
(D) For purposes of this rule, reviewing and
appellate authorities are limited to:
(i) Judge advocates reviewing records pursuant
to R.C.M. 1307;
(ii) Officers and attorneys in the office of the
Judge Advocate General reviewing records pursuant to
R.C.M. 1201 and 1210;
(iii) Officers and attorneys designated by the
Judge Advocate General;
(iv) Appellate judges of the Courts of Criminal
Appeals and their professional staffs;
(v) The judges of the United States Court of
Appeals for the Armed Forces and their professional
staffs;
(vi) The Justices of the United States Supreme
Court and their professional staffs; and
(vii) Any other court of competent jurisdiction.
(4) Examination of sealed materials. For purposes of
this rule, “examination” includes reading, inspecting,
and viewing.
(5) Disclosure of sealed materials. For purposes of
this rule, “disclosure” includes photocopying,
photographing, disseminating, releasing,
manipulating, or communicating the contents of sealed
materials in any way.
(6) Notwithstanding any other provision of this rule,
in those cases in which review is sought or pending
before the United States Supreme Court, authorization
to disclose sealed materials or information shall be
obtained under that Court’s rules of practice and
procedure.
Rule 1114. Transcription of proceedings
(a) Transcription of complete record. A certified
verbatim transcript of the record of trial shall be
prepared—
(1) When the judgment entered into the record
includes a sentence of death, dismissal of a
commissioned officer, cadet, or midshipman, a
dishonorable or bad-conduct discharge, or
confinement for more than six months; or
(2) As otherwise required by court rule, court order,
or under regulations prescribed by the Secretary
concerned.
Discussion
See R.C.M. 1116(b) regarding transcription of the record when a
case is forwarded to appellate defense counsel.
(b) Transcription of portions of the record. A certified
verbatim transcript of relevant portions of the record of
trial shall be prepared—
(1) Upon application of a party as approved by the
military judge, any court, or the Judge Advocate
General; or
(2) As otherwise required under regulations
prescribed by the Secretary concerned.
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Discussion
See R.C.M. 1106 and 1106A regarding providing the record to the
accused, a victim, or their counsel. When a certified transcript is
prepared, the accused, counsel, or victim may request or be provided
a copy to the same extent and under the same criteria as the
applicable portion of the record.
(c) Cost. Any certified transcript required by this rule
shall be prepared without cost to the accused.
(d) Inclusion in the record of trial. If a certified
transcript is made under this rule, it shall be attached to
the record of trial.
(e) Authority. The Secretary concerned shall prescribe
by regulation the procedure for preparing and
certifying a transcript under this rule.
Rule 1115. Waiver or withdrawal of appellate
review
(a) In general. After any general court-martial, except
one in which the judgment entered into the record
includes a sentence of death, and after any special
court-martial in which the judgment entered into the
record includes a finding of guilt, the accused may
waive or withdraw the right to appellate review by a
Court of Criminal Appeals. The accused may sign a
waiver of the right to appeal at any time after entry of
judgment and may withdraw an appeal at any time
before such review is completed.
Discussion
All general court-martial cases in which the judgment entered into
the record includes a sentence of death and all other general and
special courts-martial in which an accused does not affirmatively
waive or withdraw an appeal in accordance with this rule and the
judgment entered into the record includes a sentence of dismissal of
a commissioned officer, cadet, or midshipman; dishonorable
discharge or bad-conduct discharge; or confinement for two years or
more receive automatic appellate review by a Court of Criminal
Appeals. See Article 66(b)(3). All general and special courts-martial
not subject to automatic appellate review are eligible for direct
appellate review by a Court of Criminal Appeals upon the appeal of
the accused if the judgment entered into the record includes a finding
of guilt. See Article 66(b)(1). General and special courts-martial in
which appellate review is waived or withdrawn or an appeal is not
filed under Article 66(b)(1) are reviewed by an attorney under
R.C.M. 1201. After the attorney’s review under R.C.M. 1201, such
cases may also be submitted to the Judge Advocate General by
application of the accused for post-final review. See R.C.M. 1201(h).
(b) Right to counsel.
(1) In general. The accused shall have the right to
consult with qualified counsel before submitting a
waiver or withdrawal of appellate review.
(2) Waiver.
(A) Counsel who represented the accused at the
court-martial. The accused shall have the right to
consult with any civilian, individual military, or
detailed counsel who represented the accused at the
court-martial concerning whether to waive appellate
review unless such counsel has been excused under
R.C.M. 505(d)(2)(B).
(B) Associate counsel. If counsel who represented
the accused at the court-martial has not been excused
but is not immediately available to consult with the
accused because of physical separation or other
reasons, associate defense counsel shall be detailed to
the accused upon request by the accused. Such counsel
shall communicate with the counsel who represented
the accused at the court-martial, and shall advise the
accused concerning whether to waive appellate review.
(C) Substitute counsel. If counsel who represented
the accused at the court-martial has been excused under
R.C.M. 505(d)(2)(B), substitute defense counsel shall
be detailed to advise the accused concerning waiver of
appellate rights.
(3) Withdrawal.
(A) Appellate defense counsel. If the accused is
represented by appellate defense counsel, the accused
shall have the right to consult with such counsel
concerning whether to withdraw an appeal.
(B) Associate defense counsel. If the accused is
represented by appellate defense counsel, and such
counsel is not immediately available to consult with the
accused because of physical separation or other
reasons, associate defense counsel shall be detailed to
the accused, upon request by the accused. Such counsel
shall communicate with appellate defense counsel and
shall advise the accused whether to withdraw an
appeal.
(C) No counsel. If appellate defense counsel has
not been assigned to the accused, defense counsel shall
be detailed for the accused. Such counsel shall advise
the accused concerning whether to withdraw an appeal.
(4) Civilian counsel. Whether or not the accused was
represented by civilian counsel at the court-martial, the
accused may consult with civilian counsel, at no
expense to the United States, concerning whether to
waive or withdraw appellate review.
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(5) Record of trial. Any defense counsel with whom
the accused consults under this rule shall be given
reasonable opportunity to examine the record of trial
and any attachments.
Discussion
See R.C.M. 1112(f) for required attachments to the record of trial.
(6) Right to consult. The right to consult with
counsel, as used in this rule, does not require
communication in the presence of one another.
(c) Compulsion, coercion, and inducement prohibited.
No person may compel, coerce, or induce an accused
by force, promises of clemency, or otherwise to waive
or withdraw appellate review.
(d) Form of waiver or withdrawal. A waiver or
withdrawal of appellate review shall:
(1) Be written;
(2) State that the accused and defense counsel have
discussed the accused’s rights to appellate review and
the effect of waiver or withdrawal of appellate review
and that the accused understands these matters;
(3) State that the waiver or withdrawal is submitted
voluntarily; and
(4) Be signed by the accused and by defense counsel.
(e) To whom submitted.
(1) Waiver. A waiver of appellate review shall be
filed with the convening authority or the Judge
Advocate General. The waiver shall be attached to the
record of trial.
(2) Withdrawal. A withdrawal of appellate review
may be filed with the authority exercising general
court-martial jurisdiction over the accused, who shall
promptly forward it to the Judge Advocate General, or
directly with the Judge Advocate General. The
withdrawal shall be attached to the record of trial.
(f) Effect of waiver or withdrawal; substantial
compliance required.
(1) In general. A valid waiver or withdrawal of
appellate review under this rule shall bar review by the
Court of Criminal Appeals. Once submitted, a waiver
or withdrawal in compliance with this rule may not be
revoked.
(2) Waiver. If the accused files a waiver of appellate
review in accordance with this rule, the record of trial
and attachments shall be forwarded for review by a
judge advocate under R.C.M. 1201.
(3) Withdrawal. Action on a withdrawal of appellate
review shall be carried out in accordance with
procedures established by the Judge Advocate General,
or if the case is pending before a Court of Criminal
Appeals, in accordance with the rules of such court. If
the appeal is withdrawn, the record of trial and
attachments shall be forwarded for review in
accordance with R.C.M. 1201.
(4) Substantial compliance required. A purported
waiver or withdrawal of an appeal which does not
substantially comply with this rule shall have no effect.
Rule 1116. Transmittal of records of trial for
general and special courts-martial
(a) Cases forwarded to the Judge Advocate General. In
all general and special courts-martial in which the
judgment includes a finding of guilty, the certified
record of trial and attachments required under R.C.M.
1112(f) shall be sent directly to the Judge Advocate
General concerned. Forwarding an electronic copy of
the certified record of trial and attachments satisfies the
requirements under this rule. The records of trial in
general and special courts-martial without a finding of
guilty shall be disposed of in accordance with the
regulations of the Secretary concerned.
(b) Transmittal of records for cases eligible for
appellate review by a Court of Criminal Appeals.
(1) Automatic review. Except when the accused has
waived or withdrawn the right to appellate review, if
the court-martial judgment includes a sentence of
death, dismissal of a commissioned officer, cadet, or
midshipman, a dishonorable or bad-conduct discharge,
or confinement for 2 years or more, the Judge
Advocate General shall forward the certified record of
trial and attachments required under R.C.M. 1112(f) to
the Court of Criminal Appeals for automatic review
under Article 66(b)(3).
Discussion
See R.C.M. 1203(b).
(A) A copy of the record of trial and attachments
shall be forwarded to appellate defense counsel in
accordance with rules prescribed by the Secretary
concerned. If the record forwarded does not include a
written transcript of the proceedings, the Government
shall provide appellate defense counsel with
appropriate equipment for playback of the recording
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and with either—
(i) the means to transform the recording into a
text format through voice recognition software or
similar means; or
(ii) a transcription of the record in either printed
or digital format.
(B) Upon written request of the accused, a copy of
the record and attachments shall be forwarded to a
civilian counsel provided by the accused.
(C) Copies of the record provided under
subparagraph (b)(1)(A) of this rule shall not include
sealed exhibits, recordings or transcriptions of closed
sessions, or classified matters.
Discussion
An accused may not waive or withdraw the right to appellate review
before the Court of Criminal Appeals of any general court-martial in
which the judgment includes a sentence of death. See Article 61,
R.C.M. 1115.
See R.C.M. 1114 regarding the procedure for preparing and
obtaining certified transcripts of all or a portion of the record. If a
transcription is provided in digital format, the Government shall
ensure that the recipient has an appropriate means of reading the
transcription.
See R.C.M. 1112 and 1113 regarding access to classified and
sealed matters. See R.C.M. 1201(a)(2) for review by an attorney of
those cases eligible for appellate review by the Court of Criminal
Appeals, but where the accused waives the right to appeal, withdraws
an appeal, or fails to file a timely appeal. See R.C.M. 1202
concerning representation of the accused by appellate counsel before
the appellate courts. See R.C.M. 1203 concerning review by the
Court of Criminal Appeals and the powers and responsibilities of the
Judge Advocate General after such review.
(2) Cases eligible for direct appeal by the accused.
Except when the accused has waived or withdrawn the
right to appeal under Article 61, if a general and special
court-martial is not subject to automatic review under
Article 66(b)(3) but is eligible for review under Article
66(b)(1), the Judge Advocate General shall provide
notice to the accused of the right to file an appeal either
by depositing the notice in the United States mails for
delivery by first class certified mail to the accused at
an address provided by the accused, or, if the accused
has not provided an address, to the latest address listed
for the accused in the official service record of the
accused. Proof of service shall be attached to the record
of trial.
Discussion
See R.C.M. 1115 for rules regarding the waiver or withdrawal of
appellate review. See R.C.M. 1203 for rules concerning appellate
review by a Court of Criminal Appeals.
(A) The Judge Advocate General shall forward a
copy of the record of trial and attachments required
under R.C.M. 1112(f) to an appellate defense counsel
who shall be detailed to review the case, and upon
request of the accused, to represent the accused before
the Court of Criminal Appeals.
(B) The record of trial and attachments required
under R.C.M. 1112(f) shall be forwarded in accordance
with the procedures set forth in subparagraphs
(b)(1)(A)–(C) of this rule.
(c) General and special courts-martial not reviewed by
a Court of Criminal Appeals. General and special
courts-martial with a finding of guilty not reviewed by
a Court of Criminal Appeals under Article 66(b)(1) or
(3) shall be reviewed under Article 65(d)(2).
Discussion
See R.C.M. 1201(a)(1); and R.C.M. 1203(b) and (c).
(d) Review when appellate review by a Court of
Criminal Appeals is waived, withdrawn, or not filed. In
a general or special court-martial in which the accused
waives the right to appellate review or withdraws an
appeal under Article 61, or fails to file a timely appeal
in a case eligible for review by the Court of Criminal
Appeals under Article 66(b)(1), the case shall be
reviewed under Article 65(d)(3).
Discussion
See R.C.M. 1115, R.C.M. 1201(a)(2), and R.C.M. 1203(c).
Rule 1117. Appeal of sentence by the United States
(a) In general. With the approval of the Judge
Advocate General concerned, the Government may
appeal a sentence announced under R.C.M. 1007 to the
Court of Criminal Appeals on the grounds that—
(1) The sentence violates the law;
(2) The sentence is a result of an incorrect
application of sentencing parameters or criteria
established under Article 56(c); or
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(3) The sentence is plainly unreasonable.
(b) Timing.
(1) An appeal under this rule must be filed within 60
days after the date on which the judgment of the court-
martial is entered into the record under R.C.M. 1111.
(2) Any request for approval must be submitted in
sufficient time to obtain and consider submissions
under R.C.M. 1117(c)(5).
(c) Approval process.
(1) A request from the Government to the Judge
Advocate General for approval of an appeal under this
rule shall include a statement of reasons in support of
an appeal under R.C.M. 1117(a)(1), (a)(2), or (a)(3), as
applicable, based upon the information contained in the
record before the sentencing authority at the time the
sentence was announced under R.C.M. 1007.
(2) A statement of reasons in support of an appeal
under R.C.M. 1117(a)(1) shall identify the specific
provisions of law at issue and the facts in the record
demonstrating a violation of the law in the announced
sentence under R.C.M. 1007.
(3) A statement of reasons in support of an appeal
under R.C.M. 1117(a)(2) shall identify parameters or
criteria at issue and the facts supporting how
parameters or criteria were applied incorrectly.
(4) A statement of reasons in support of an appeal
under R.C.M. 1117(a)(3) shall identify the facts in the
record that demonstrate by clear and convincing
evidence that the sentence announced under R.C.M.
1007 was plainly unreasonable.
(5) Prior to acting on a request from the Government,
the Judge Advocate General shall transmit the request
to the military judge who presided over the
presentencing proceeding for purposes of providing
the military judge, the parties, and any person who, at
the time of sentencing, was a crime victim as defined
by R.C.M. 1001(c)(2)(A), with an opportunity to make
a submission addressing the statement of reasons in the
Government’s request.
(A) The military judge shall establish the time for
the parties and crime victims to provide such a
submission to the military judge and for the military
judge to forward all submissions to the Judge Advocate
General. The military judge shall ensure that the parties
have not less than 7 days to prepare, review, and
transmit such submissions.
(B) Submissions under this paragraph (R.C.M.
1117(c)(5)) shall not include facts beyond the record
established at the time the sentence was announced
under R.C.M. 1007.
(6) The decision of the Judge Advocate General as
to whether to approve a request shall be based on the
information developed under this rule.
(7) If an appeal is approved by the Judge Advocate
General and submitted to the Court of Criminal
Appeals under this rule, the following shall be included
with the appeal: the statement of approval, the
Government’s request and statement of reasons under
R.C.M. 1117(c), and any submissions under R.C.M.
1117(c)(5).
(d) Contents of the record of trial. Unless the record
has been forwarded to the Court of Criminal Appeals
for review under R.C.M. 1116(b), the record of trial for
an appeal under this rule shall consist of—
(1) Any portion of the record in the case that is
designated as pertinent by either of the parties;
(2) The information submitted during the
presentencing proceeding; and
(3) Any information required by rule or order of the
Court of Criminal Appeals.
Discussion
For Appellant’s right to counsel in cases reviewed by a Court of
Criminal Appeals, see R.C.M. 1202. For action on cases following
review by a Court of Criminal Appeals, see R.C.M. 1203(e).
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CHAPTER XII. APPEALS AND REVIEW
Rule 1201. Review by the Judge Advocate General
(a) Review of certain general and special courts-
martial. Except as provided in subsection (b), an
attorney designated by the Judge Advocate General
shall review:
(1) Each general and special court-martial case that
is not eligible for appellate review by a Court of
Criminal Appeals under Article 66(b)(1) or (3); and
Discussion
See R.C.M. 1203(b) and (c).
(2) Each general or special court-martial eligible for
appellate review by a Court of Criminal Appeals in
which the Court of Criminal Appeals does not review
the case because:
(A) In a case under Article 66(b)(3), other than one
in which the sentence includes death, the accused
withdraws direct appeal or waives the right to appellate
review.
Discussion
See R.C.M. 1203(b).
(B) In a case under Article 66(b)(1), the accused
does not file a timely appeal, or files a timely appeal
and then withdraws it.
Discussion
See R.C.M. 1307 for judge advocate review of summary courts-
martial.
(b) Exception. If the accused was found not guilty or
not guilty only by reason of lack of mental
responsibility of all offenses, or if the convening
authority set aside all findings of guilty, no review
under this rule is required.
(c) By whom.
(1) A review conducted under this rule may be
conducted by an attorney within the Office of the Judge
Advocate General or another attorney designated by
the Judge Advocate General under regulations
prescribed by the Secretary concerned.
(2) No person may review a case under this rule if
that person has acted in the same case as an accuser,
preliminary hearing officer, member of the court-
martial, military judge, or counsel, or has otherwise
acted on behalf of the prosecution or defense.
(d) Form and content for review of cases not eligible
for appellate review at the Court of Criminal Appeals.
The review referred to in paragraph (a)(1) shall include
a written conclusion as to each of the following:
(1) Whether the court had jurisdiction over the
accused and the offense;
(2) Whether each charge and specification stated an
offense;
(3) Whether the sentence was within the limits
prescribed as a matter of law; and
(4) When applicable, a response to each allegation of
error made in writing by the accused.
(e) Form and content for review of cases in which the
accused has waived or withdrawn appellate review or
failed to file an appeal. The review referred to in
paragraph (a)(2) shall include a written conclusion as
to each of the following:
(1) Whether the court had jurisdiction over the
accused and the offense;
(2) Whether each charge and specification stated an
offense; and
(3) Whether the sentence was within the limits
prescribed as a matter of law.
(f) Remedies.
(1) If the attorney conducting the review under
subsection (a) believes corrective action is required,
the attorney shall forward the matter to the Judge
Advocate General, who may modify or set aside the
findings or sentence, in whole or in part.
(2) In setting aside the findings or sentence, the
Judge Advocate General may order a rehearing, except
that a rehearing may not be ordered where the evidence
was legally insufficient at the trial to support the
findings.
(3) If the Judge Advocate General sets aside findings
and sentence and does not order a rehearing, the Judge
Advocate General shall dismiss the charges.
(4) If the Judge Advocate General sets aside findings
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and orders a rehearing and the convening authority
determines that a rehearing would be impractical, the
convening authority shall dismiss the charges.
Discussion
See R.C.M. 1111 for modification of the judgment to reflect any
action by the Judge Advocate General or convening authority under
this rule.
(g) Notification. After a case is reviewed under
subsection (a), the accused shall be notified of the
results of the review and any action taken by the Judge
Advocate General or convening authority by means of
depositing a copy of the review and any modified
judgment in the United States mails for delivery by
first-class certified mail to the accused at an address
provided by the accused or, if no such address has been
provided by the accused, at the latest address listed for
the accused in the accused’s official service record.
Proof of service shall be attached to the record of trial.
(h) Application for relief to the Judge Advocate
General after final review.
(1) In general. Notwithstanding R.C.M. 1209, the
Judge Advocate General may, upon application of the
accused or a person with authority to act for the
accused or receipt of the record pursuant to R.C.M.
1307(g):
(A) With respect to a summary court-martial
previously reviewed under R.C.M. 1307, modify or set
aside, in whole or in part, the findings and sentence; or
(B) With respect to a general or special court-
martial previously reviewed under paragraph (a)(1) or
(2), order such a court-martial to be reviewed under
R.C.M. 1203 by the Court of Criminal Appeals.
(2) Timing. To qualify for consideration under this
subsection, an accused must submit an application not
later than one year after—
(A) In the case of a summary court-martial, the
date of completion of review under R.C.M. 1307; or
(B) In the case of a general or special court-
martial, the end of the 90-day period beginning on the
date the accused is provided notice of appellate rights
under R.C.M. 1116(b)(2).
(3) Extension. The Judge Advocate General may, for
good cause shown, extend the period for submission of
an application under paragraph (h)(2) for a time period
not to exceed three additional years. The Judge
Advocate General may not consider an application
submitted more than three years after the applicable
expiration date specified in paragraph (h)(2).
(4) Scope.
(A) In a case previously reviewed under R.C.M.
1307 or paragraph (a)(1), the Judge Advocate General
may act on the grounds of newly discovered evidence,
fraud on the court, lack of jurisdiction over the accused
or the offense, error prejudicial to the substantial rights
of the accused, or the appropriateness of the sentence.
(B) In a case previously reviewed under paragraph
(a)(2), the Judge Advocate General’s review is limited
to the issue of whether the waiver, withdrawal, or
failure to file an appeal was invalid under the law.
Discussion
If the Judge Advocate General determines that the waiver or
withdrawal of an appeal was invalid, the Judge Advocate General
may order any corrective action, including forwarding the case to the
Court of Criminal Appeals for appropriate appellate review.
See also R.C.M. 1210 concerning a petition for a new trial in
any case, including a case where the accused waived or withdrew
from appellate review, or failed to file an appeal.
Review of a case by a Judge Advocate General under this
subsection is not part of appellate review within the meaning of
Article 76 or R.C.M. 1209.
Review of a finding of not guilty only by reason of lack of
mental responsibility under this rule may not extend to the
determination of lack of mental responsibility. Thus, modification of
a finding of not guilty only by reason of lack of mental responsibility
under this rule is limited to changing the finding to not guilty or not
guilty only by reason of lack of mental responsibility of a lesser
included offense.
(5) Procedure. Each Judge Advocate General shall
provide procedures for considering all cases properly
submitted under this rule and may prescribe the manner
by which an application for relief under this rule may
be made and, if submitted by a person other than the
accused, may require that the applicant show authority
to act on behalf of the accused.
(i) Remission and suspension. The Judge Advocate
General may, when so authorized by the Secretary
concerned under Article 74, at any time remit or
suspend the unexecuted part of any sentence, other
than a sentence approved by the President.
(j) Mandatory review of summary courts-martial
forwarded under R.C.M. 1307. The Judge Advocate
General shall review summary courts-martial if the
record of trial and the action thereon are forwarded
under R.C.M. 1307(g). On such review, the Judge
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Advocate General may vacate or modify, in whole or
in part, the findings or sentence, or both, of the court-
martial on the ground of newly discovered evidence,
fraud on the court-martial, lack of jurisdiction over the
accused or the offense, error prejudicial to the
substantial rights of the accused, or the appropriateness
of the sentence.
(k) Cases referred or submitted to the Court of
Criminal Appeals.
(1) In general. Action taken by the Judge Advocate
General under subsections (h) or (j) may be reviewed
by the Court of Criminal Appeals under Article 69(d)
as follows:
(A) The Judge Advocate General may forward a
case to the Court of Criminal Appeals. If the case is
forwarded to a Court of Criminal Appeals, the accused
shall be informed and shall have the rights to appellate
defense counsel afforded under R.C.M. 1202(b)(2).
(B) The accused may submit an application for
review to the Court of Criminal Appeals. The Court of
Criminal Appeals may grant such an application only
if the application demonstrates a substantial basis for
concluding that the Judge Advocate General’s action
under this rule constituted prejudicial error, and the
application is filed not later than the earlier of—
(i) 60 days after the date on which the accused
is notified of the decision of the Judge Advocate
General; or
(ii) 60 days after the date on which a copy of the
decision of the Judge Advocate General is deposited in
the United States mails for delivery by first-class
certified mail to the accused at an address provided by
the accused or, if no such address has been provided by
the accused, at the latest address listed for the accused
in the accused’s official service record. Proof of
service shall be attached to the record of trial.
Discussion
See R.C.M. 1203.
(2) The submission of an application for review
under subparagraph (k)(1)(B) does not constitute a
proceeding before the Court of Criminal Appeals for
purposes of representation by appellate defense
counsel under Article 70(c)(1).
(3) In any case reviewed by a Court of Criminal
Appeals under this subsection, the Court may take
action only with respect to matters of law.
Rule 1202. Appellate counsel
(a) In general. The Judge Advocate General concerned
shall detail one or more commissioned officers as
appellate Government counsel and one or more
commissioned officers as appellate defense counsel
who are qualified under Article 27(b)(1).
(b) Duties.
(1) Appellate Government counsel. Appellate
Government counsel shall represent the United States
before the Court of Criminal Appeals or the United
States Court of Appeals for the Armed Forces when
directed to do so by the Judge Advocate General
concerned. Appellate Government counsel may
represent the United States before the United States
Supreme Court when requested to do so by the
Attorney General.
(2) Appellate defense counsel.
(A) In every general and special court-martial that
includes a finding of guilty, an appellate defense
counsel shall be detailed to review the case, unless the
accused has waived the right to appeal under Article 61
or submits a written statement declining
representation. Upon request, the detailed appellate
defense counsel shall represent the accused in
accordance with subparagraph (B).
Discussion
See R.C.M. 1203(c) and R.C.M. 1115.
(B) Appellate defense counsel shall represent the
accused before the Court of Criminal Appeals, the
Court of Appeals for the Armed Forces, or the Supreme
Court when the accused is a party in the case before
such court and:
(i) The accused requests to be represented by
appellate defense counsel;
Discussion
See Article 65(b) and Article 61.
(ii) The United States is represented by counsel;
or
(iii) The Judge Advocate General has sent the
case to the United States Court of Appeals for the
Armed Forces. Appellate defense counsel is authorized
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to communicate directly with the accused. The accused
is a party in the case when named as a party in
pleadings before the court or, even if not so named,
when the military judge is named as respondent in a
petition by the Government for extraordinary relief
from a ruling in favor of the accused at trial.
Discussion
For a discussion of the accused’s right to detailed appellate defense
counsel in any case eligible for review at the Court of Criminal
Appeals, see R.C.M. 1202. See R.C.M. 1204(b)(1) concerning
detailing counsel with respect to the right to appeal to the Court of
Appeals for the Armed Forces for review. For a discussion of the
duties of the trial defense counsel concerning post-trial and appellate
matters, see R.C.M. 502(d)(5) Discussion (E). Appellate defense
counsel may communicate with trial defense counsel concerning the
case. See also Mil. R. Evid. 502 (privileges).
If all or part of the findings and sentence are affirmed by the
Court of Criminal Appeals, appellate defense counsel should advise
the accused whether the accused should petition for further review
in the United States Court of Appeals for the Armed Forces and
concerning which issues should be raised.
The accused may be represented by civilian counsel before the
Court of Criminal Appeals, the Court of Appeals for the Armed
Forces, and the Supreme Court. Civilian counsel may represent the
accused before these courts in addition to or instead of military
counsel.
If, after any decision of the Court of Appeals for the Armed
Forces, the accused may apply for a writ of certiorari (see R.C.M.
1205), appellate defense counsel should advise the accused whether
to apply for review by the Supreme Court and which issues might be
raised. If authorized to do so by the accused, appellate defense
counsel may prepare and file a petition for a writ of certiorari on
behalf of the accused.
The accused has no right to select appellate defense counsel.
Under some circumstances, however, the accused may be entitled to
request that the detailed appellate defense counsel be replaced by
another appellate defense counsel.
(c) Counsel in capital cases. To the greatest extent
practicable, in any case in which death is adjudged, at
least one appellate defense counsel shall, as determined
by the Judge Advocate General, be learned in the law
applicable to capital cases. Such counsel may, if
necessary, be a civilian, and, if so, may be
compensated in accordance with regulations
prescribed by the Secretary of Defense or the Secretary
of Homeland Security, as applicable.
Discussion
See R.C.M. 502(d)(2)(C) concerning the qualifications for counsel
learned in the law applicable to capital cases.
Rule 1203. Review by a Court of Criminal Appeals
(a) In general. Each Judge Advocate General shall
establish a Court of Criminal Appeals composed of
appellate military judges who shall serve for a tour of
not less than three years, subject to such provision for
reassignment as may be prescribed in regulations
issued by the Secretary concerned.
Discussion
See Article 66 concerning the composition of the Courts of Criminal
Appeals, the qualifications of appellate military judges, the grounds
for their ineligibility, and restrictions upon the official relationship
of the members of the court to other members. Uniform rules of court
for the Courts of Criminal Appeals are prescribed by the Judge
Advocates General.
(b) Cases reviewed by a Court of Criminal Appeals—
Automatic Review. A Court of Criminal Appeals shall
review cases forwarded to it by the Judge Advocate
General under Article 65(b)(1).
Discussion
See R.C.M. 1116(b)(1).
Except for when an accused waives or withdraws the right to
appellate review, a Court of Criminal Appeals automatically reviews
cases in which the judgment entered into the record includes a
sentence of death; dismissal of a commissioned officer, cadet, or
midshipman; dishonorable discharge or bad-conduct discharge; or
confinement for 2 years or more. See Article 65(b)(1
),
Article
66(b)(3), R.C.M. 1116(b)(1).
An accused may not waive the right to appellate review or
withdraw an appeal before the Court of Criminal Appeals in any
general court-martial in which the judgment includes a sentence of
death. See R.C.M. 1115.
(c) Cases eligible for review by a Court of Criminal
Appeals—Appeal by the accused. A Court of Criminal
Appeals shall review a timely appeal from the
judgment of the court-martial in accordance with the
standards set forth in Article 66(b)(1) and the rules
prescribed under Article 66(h).
Discussion
The Court of Criminal Appeals may specify additional issues for
briefing, argument, and decision, and may review eligible cases for
plain error. See R.C.M. 1115 for waiver of appellate review or
withdrawal of an appeal. In those cases in which an accused chooses
not to file an appeal, the case will be reviewed by an attorney under
R.C.M. 1201(a)(2).
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If a Court of Criminal Appeals sets aside any finding of guilty
or the sentence, it may, except as to findings set aside for lack of
sufficient evidence in the record to support the findings, authorize an
appropriate type of rehearing or reassess the sentence as appropriate.
See R.C.M. 810 concerning rehearings. If the Court of Criminal
Appeals sets aside all the findings and the sentence and does not
authorize a rehearing, it must order the charges dismissed. See
Article 59(a) and Article 66.
A Court of Criminal Appeals may on petition for extraordinary
relief issue all writs necessary or appropriate in aid of its jurisdiction
and agreeable to the usages and principles of law. Any party may
petition a Court of Criminal Appeals for extraordinary relief.
See R.C.M. 908 concerning procedures for interlocutory
appeals by the Government. See R.C.M. 1117 concerning
Government appeals of certain sentences.
(d) Timeliness. In order for an appeal under subsection
(c) to be timely, it must be filed in accordance with
Article 66(c) and the rules prescribed under Article
66(h).
(e) Action on cases reviewed by a Court of Criminal
Appeals.
(1) Forwarding by the Judge Advocate General to
the Court of Appeals for the Armed Forces. The Judge
Advocate General may forward the decision of the
Court of Criminal Appeals to the Court of Appeals for
the Armed Forces for review with respect to any matter
of law. In such a case, the Judge Advocate General
shall cause a copy of the decision of the Court of
Criminal Appeals and the order forwarding the case to
be served on the accused and on appellate defense
counsel. While a review of a forwarded case is
pending, the Secretary concerned may defer further
service of a sentence to confinement that has been
ordered executed in such a case.
Discussion
Prior to forwarding a case to the Court of Appeals for the Armed
Forces for review, the Judge Advocate General concerned is required
to provide appropriate notification to the other Judge Advocates
General and the Staff Judge Advocate to the Commandant of the
Marine Corps. See Article 67(a)(2) and R.C.M. 1204(a)(2).
When a decision of the Court of Criminal Appeals has the
effect of setting aside confinement the appellant is serving, and the
Judge Advocate General has decided to forward the decision of the
Court of Criminal Appeals to the Court of Appeals for the Armed
Forces for review under this rule, a new R.C.M. 305 review may be
required if continued confinement is sought.
(2) Action when findings are set aside. In a case
reviewed by the Court of Criminal Appeals under this
rule in which it has set aside the findings and which is
not forwarded to the Court of Appeals for the Armed
Forces under R.C.M. 1203(e)(1), the Judge Advocate
General shall instruct an appropriate authority to take
action in accordance with the decision of the Court of
Criminal Appeals. If the Court of Criminal Appeals has
authorized a rehearing on findings, the record shall be
sent to an appropriate referral authority.
(A) If the Court has authorized a rehearing, but the
convening authority to whom the record is transmitted
finds a rehearing impracticable, the convening
authority shall dismiss the charges.
(B) If the Court has authorized a rehearing, but the
special trial counsel to whom the record is transmitted
finds a rehearing impracticable, special trial counsel
shall dismiss the charges.
Discussion
If charges are dismissed, see R.C.M. 1208 concerning restoration of
rights, privileges, and property. See R.C.M. 1111 concerning the
entry of judgment.
(3) Action when sentence is set aside. In a case
reviewed by the Court of Criminal Appeals under this
rule in which it has set aside the sentence and which is
not forwarded to the Court of Appeals for the Armed
Forces under R.C.M. 1203(e)(1), the Judge Advocate
General shall instruct an appropriate authority to
modify the judgment in accordance with the decision
of the Court of Criminal Appeals. If the Court of
Criminal Appeals has authorized a rehearing on
sentence, the record shall be sent to an appropriate
referral authority.
(A) If the convening authority finds a rehearing
impracticable, the applicable convening authority shall
order either that a sentence of no punishment be
imposed or that the applicable charges be dismissed.
(B) If special trial counsel finds a rehearing
impracticable, special trial counsel may dismiss the
applicable charges. If special trial counsel makes a
determination not to dismiss the applicable charges, the
convening authority shall order that a sentence of no
punishment be imposed.
(4) Action when sentence is affirmed in whole or
part.
(A) Sentence including death. If the Court of
Criminal Appeals affirms any sentence which includes
death, the Judge Advocate General shall transmit the
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record of trial and the decision of the Court of Criminal
Appeals directly to the Court of Appeals for the Armed
Forces when any period for reconsideration provided
by the rules of the Courts of Criminal Appeals has
expired.
(B) Other cases. If the Court of Criminal Appeals
affirms any sentence other than one which includes
death, the Judge Advocate General shall cause a copy
of the decision of the Court of Criminal Appeals to be
served on the accused in accordance with R.C.M.
1203(f).
Discussion
If charges are dismissed, see R.C.M. 1208 concerning restoration of
rights, privileges, and property. See R.C.M. 1111 concerning the
entry of judgment.
(5) Remission or suspension. If the Judge Advocate
General believes that a sentence as affirmed by the
Court of Criminal Appeals, other than one which
includes death, should be remitted or suspended in
whole or part, the Judge Advocate General may, before
taking action under R.C.M. 1203(e)(1) or (4), transmit
the record of trial and the decision of the Court of
Criminal Appeals to the Secretary concerned with a
recommendation for action under Article 74 or may
take such action as may be authorized by the Secretary
concerned under Article 74(a).
(6) Action when accused lacks mental capacity. In a
review conducted under R.C.M. 1203(b) or (c), the
Court of Criminal Appeals may not affirm the
proceedings while the accused lacks mental capacity to
understand and to conduct or cooperate intelligently in
the appellate proceedings. In the absence of substantial
evidence to the contrary, the accused is presumed to
have the capacity to understand and to conduct or
cooperate intelligently in the appellate proceedings. If
a substantial question is raised as to the requisite
mental capacity of the accused, the Court of Criminal
Appeals may direct an examination of the accused in
accordance with R.C.M. 706, but the examination may
be limited to determining the accused’s present
capacity to understand and cooperate in the appellate
proceedings. The Court may further order a remand
under R.C.M. 810(f) as may be necessary. If the record
is thereafter returned to the Court of Criminal Appeals,
the Court of Criminal Appeals may affirm part or all of
the findings or sentence unless it is established, by a
preponderance of the evidence—including matters
outside the record of trial—that the accused does not
have the requisite mental capacity. If the accused does
not have the requisite mental capacity, the Court of
Criminal Appeals shall stay the proceedings until the
accused regains appropriate capacity or take other
appropriate action. Nothing in this subsection shall
prohibit the Court of Criminal Appeals from making a
determination in favor of the accused which will result
in the setting aside of a conviction.
(f) Notification to accused.
(1) Notification of decision. The accused shall be
notified of the decision of the Court of Criminal
Appeals in accordance with regulations prescribed by
the Secretary concerned.
Discussion
The accused may be notified personally, or a copy of the decision
may be sent, after service on appellate counsel of record, if any, by
first class certified mail to the accused at an address provided by the
accused or, if no such address has been provided by the accused, at
the latest address listed for the accused in the accused’s official
service record.
If the Judge Advocate General has forwarded the case to the
Court of Appeals for the Armed Forces, the accused should be so
notified.
(2) Notification of right to petition the Court of
Appeals for the Armed Forces for review. If the
accused has the right to petition the Court of Appeals
for the Armed Forces for review, the accused shall be
provided with a copy of the decision of the Court of
Criminal Appeals bearing an endorsement notifying
the accused of this right. The endorsement shall inform
the accused that such a petition:
(A) May be filed only within 60 days from the
time the accused was in fact notified of the decision of
the Court of Criminal Appeals or the mailed copy of
the decision was postmarked, whichever is earlier; and
(B) May be forwarded through the officer
immediately exercising general court-martial
jurisdiction over the accused and through the
appropriate Judge Advocate General or filed directly
with the Court of Appeals for the Armed Forces.
Discussion
See Article 67(c); see also R.C.M. 1204(b).
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(3) Receipt by the accused—disposition. When the
accused has the right to petition the Court of Appeals
for the Armed Forces for review, the receipt of the
accused for the copy of the decision of the Court of
Criminal Appeals, a certificate of service on the
accused, or the postal receipt for delivery of certified
mail shall be transmitted in duplicate by expeditious
means to the appropriate Judge Advocate General. If
the accused is personally served, the receipt or
certificate of service shall show the date of service. The
Judge Advocate General shall forward one copy of the
receipt, certificate, or postal receipt to the clerk of the
Court of Appeals for the Armed Forces when required
by the court.
(g) Cases not reviewed by the Court of Appeals for the
Armed Forces. If the decision of the Court of Criminal
Appeals is not subject to review by the Court of
Appeals for the Armed Forces, or if the Judge
Advocate General has not forwarded the case to the
Court of Appeals for the Armed Forces and the accused
has not filed or the Court of Appeals for the Armed
Forces has denied a petition for review, then either:
(1) The Judge Advocate General shall, if the
sentence affirmed by the Court of Criminal Appeals
includes a dismissal, transmit the record, the decision
of the Court of Criminal Appeals, and the Judge
Advocate General’s recommendation to the Secretary
concerned for action under R.C.M. 1206; or
(2) If the sentence affirmed by the Court of Criminal
Appeals does not include a dismissal, the unexecuted
portion of the sentence affirmed by the Court of
Criminal Appeals shall be executed in accordance with
R.C.M. 1102.
Discussion
See R.C.M. 1102, 1206, and Article 74(a) concerning the authority
of the Secretary and others to take action.
Rule 1204. Review by the Court of Appeals for the
Armed Forces
(a) Cases reviewed by the Court of Appeals for the
Armed Forces. Under such rules as it may prescribe,
the Court of Appeals for the Armed Forces shall review
the record in all cases:
(1) in which the sentence, as affirmed by a Court of
Criminal Appeals, extends to death;
(2) reviewed by a Court of Criminal Appeals which
the Judge Advocate General, after appropriate
notification to the other Judge Advocate Generals and
the Staff Judge Advocate to the Commandant of the
Marine Corps, orders sent to the Court of Appeals for
the Armed Forces for review; and
(3) reviewed by a Court of Criminal Appeals in
which, upon petition of the accused and on good cause
shown, the Court of Appeals for the Armed Forces has
granted a review.
Discussion
See Article 67(a)(2) on the notification requirement when the Judge
Advocate General orders a case sent to the Court under R.C.M.
1204(a)(2). Notification ensures that the views of each of the Judge
Advocates General and the Staff Judge Advocate to the
Commandant of the Marine Corps are taken into consideration
before the certification process is used to present a case to the Court
of Appeals for the Armed Forces.
(b) Petition by the accused for review by the Court of
Appeals for the Armed Forces.
(1) Counsel. When the accused is notified of the right
to forward a petition for review by the Court of
Appeals for the Armed Forces, if requested by the
accused, associate counsel qualified under R.C.M.
502(d)(2) shall be detailed to advise and assist the
accused in connection with preparing a petition for
further appellate review.
Discussion
See R.C.M. 1202 for duties of appellate defense counsel.
(2) Forwarding petition. The accused shall file any
petition for review by the Court of Appeals for the
Armed Forces under paragraph (a)(3) of this rule
directly with the Court of Appeals for the Armed
Forces.
Discussion
See Article 67(b) and R.C.M. 1203(f)(2) concerning notifying the
accused of the right to petition the Court of Appeals for the Armed
Forces for review and the time limits for submitting a petition. See
also the rules of the Court of Appeals for the Armed Forces
concerning when the time for filing a petition begins to run and when
a petition is now timely.
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(c) Action on decision by the Court of Appeals for the
Armed Forces.
(1) In general. After it has acted on a case, the Court
of Appeals for the Armed Forces may direct the Judge
Advocate General to return the record to the Court of
Criminal Appeals for further proceedings in
accordance with the decision of the court. Otherwise,
unless the decision is subject to review by the Supreme
Court, or there is to be further action by the President
or the Secretary concerned, the Judge Advocate
General shall instruct the appropriate authority to take
action in accordance with that decision. If the Court has
authorized a rehearing, but the convening authority to
whom the record is transmitted finds a rehearing
impracticable, the convening authority may dismiss the
charges. If a special trial counsel referred the affected
charges, the special trial counsel shall determine if a
rehearing is impracticable. If a special trial counsel
determines a rehearing is impracticable, the special
trial counsel shall dismiss the charges.
Discussion
See R.C.M. 1111 concerning modification of the judgment in the
case. See also R.C.M. 1206 and Article 74(a).
(2) Sentence requiring approval of the President.
(A) If the Court of Appeals for the Armed Forces
has affirmed a sentence that must be approved by the
President before it may be executed, the Judge
Advocate General shall transmit the record of trial, the
decision of the Court of Criminal Appeals, the decision
of the Court of Appeals for the Armed Forces, and the
recommendation of the Judge Advocate General to the
Secretary concerned.
(B) If the Secretary concerned is the Secretary of
a military department, the Secretary concerned shall
forward the material received under subparagraph (A)
to the Secretary of Defense, together with the
recommendation of the Secretary concerned. The
Secretary of Defense shall forward the material, with
the recommendation of the Secretary concerned and
the recommendation of the Secretary of Defense, to the
President for the action of the President.
(C) If the Secretary concerned is the Secretary of
Homeland Security, the Secretary concerned shall
forward the material received under subparagraph (A)
to the President, together with the recommendation of
the Secretary concerned, for action of the President.
Discussion
See Article 57(a)(3) and R.C.M. 1207.
(3) Sentence requiring approval of the Secretary
concerned. If the Court of Appeals for the Armed
Forces has affirmed a sentence which requires
approval of the Secretary concerned before it may be
executed, the Judge Advocate General shall follow the
procedure in R.C.M. 1203(e)(3).
Discussion
See Article 57(a)(4) and R.C.M. 1206.
(4) Decisions subject to review by the Supreme
Court. If the decision of the Court of Appeals for the
Armed Forces is subject to review by the Supreme
Court, the Judge Advocate General shall take no action
under R.C.M. 1204(c)(1), (2), or (3) until:
(A) the time for filing a petition for a writ of
certiorari with the Supreme Court has expired; or
(B) the Supreme Court has denied any petitions for
writ of certiorari filed in the case.
(5) Upon the occurrence of an event described by
R.C.M. 1204(c)(4)(A) or (B), the Judge Advocate
General shall take action in accordance with R.C.M.
1204(c)(1), (2), or (3). If the Supreme Court issues a
writ of certiorari, the Judge Advocate General shall
take action under R.C.M. 1205(b).
Rule 1205. Review by the Supreme Court
(a) Cases subject to review by the Supreme Court.
Under 28 U.S.C. § 1259 and Article 67a, decisions of
the Court of Appeals for the Armed Forces may be
reviewed by the Supreme Court by writ of certiorari in
the following cases:
(1) Cases reviewed by the Court of Appeals for the
Armed Forces under Article 67(a)(1);
(2) Cases certified to the Court of Appeals for the
Armed Forces by the Judge Advocate General under
Article 67(a)(2);
(3) Cases in which the Court of Appeals for the
Armed Forces granted a petition for review under
Article 67(a)(3); and
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(4) Cases other than those described in paragraphs
(a)(1), (2), and (3) of this rule in which the Court of
Appeals for the Armed Forces granted relief.
The Supreme Court may not review by writ of
certiorari any action of the Court of Appeals for the
Armed Forces in refusing to grant a petition for review.
(b) Action by the Supreme Court. After the Supreme
Court has taken action, other than denial of a petition
for writ of certiorari, in any case, the Judge Advocate
General shall, unless the case is returned to the Court
of Appeals for the Armed Forces for further
proceedings, forward the case to the President or the
Secretary concerned in accordance with R.C.M.
1204(c)(2) or (3) when appropriate, or take action in
accordance with the decision.
Rule 1206. Powers and responsibilities of the
Secretary
(a) Sentences requiring approval by the Secretary. No
part of a sentence extending to dismissal of a
commissioned officer, cadet, or midshipman may be
executed until approved by the Secretary concerned or
such Under Secretary or Assistant Secretary as may be
designated by the Secretary.
Discussion
See Article 57(a)(4).
(b) Remission and suspension.
(1) In general. The Secretary concerned and, when
designated by the Secretary concerned, any Under
Secretary, Assistant Secretary, Judge Advocate
General, or commander may remit or suspend any part
or amount of the unexecuted part of any sentence,
including all uncollected forfeitures, other than a
sentence approved by the President.
(2) Substitution of discharge. The Secretary
concerned may, for good cause, substitute an
administrative discharge for a discharge or dismissal
executed in accordance with the sentence of a court-
martial.
(3) Sentence commuted by the President. When the
President has commuted a death sentence to a lesser
punishment, the Secretary concerned may remit or
suspend any remaining part or amount of the
unexecuted portion of the sentence of a person
convicted by a military tribunal under the Secretary’s
jurisdiction.
Rule 1207. Sentences requiring approval by the
President
No part of a court-martial sentence extending to
death may be executed until approved by the President.
Discussion
See Article 57(a)(3). See also R.C.M. 1203 and 1204 concerning
review by the Court of Criminal Appeals and Court of Appeals for
the Armed Forces in capital cases.
Rule 1208. Restoration
(a) New trial. All rights, privileges, and property
affected by an executed portion of a court-martial
sentence—except an executed dismissal or
discharge—which has not again been adjudged upon a
new trial or which, after the new trial, has not been
sustained upon the action of any reviewing authority,
shall be restored. So much of the findings and so much
of the sentence adjudged at the earlier trial shall be set
aside as may be required by the findings and sentence
at the new trial. Ordinarily, action taken under this
subsection shall be reflected in the new judgment
entered in the case.
Discussion
See Article 75(b) and (c) concerning the action to be taken on an
executed dismissal or discharge which is not imposed at a new trial.
(b) Other cases. In cases other than those in subsection
(a), all rights, privileges, and property affected by an
executed part of a court-martial sentence that has been
set aside or disapproved by any competent authority
shall be restored unless a new trial, other trial, or
rehearing is ordered and such executed part is included
in a sentence imposed at the new trial, other trial, or
rehearing. Ordinarily, any restoration shall be reflected
in the new judgment entered in the case. In accordance
with regulations established by the Secretary
concerned, for the period after the date on which an
executed part of a court-martial sentence is set aside,
an accused who is pending a rehearing, new trial, or
other trial shall receive the pay and allowances due at
the restored grade.
(c) Effective date of sentences. Once a sentence has
been set aside or disapproved, the effective date of a
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sentence that relates to that portion which was set aside
or disapproved shall be calculated from the date a new
sentence relating to that portion is adjudged at a new
trial, other trial, or rehearing and shall be in accordance
with R.C.M. 1102.
Discussion
See R.C.M. 1111 concerning entry of a new judgment in the case.
Rule 1209. Finality of courts-martial
(a) When a conviction is final.
(1) General and special courts-martial. A conviction
in a general or special court-martial is final when—
(A) Review is completed under R.C.M. 1201(a)
(Article 65);
(B) Review is completed by a Court of Criminal
Appeals and—
(i) The accused does not file a timely petition for
review by the Court of Appeals for the Armed Forces
and the case is not otherwise under review by that
court;
(ii) A petition for review is denied or otherwise
rejected by the Court of Appeals for the Armed Forces;
or
(iii) Review is completed in accordance with the
judgment of the Court of Appeals for the Armed Forces
and—
(I) A petition for a writ of certiorari is not filed
within the time limits prescribed by the Supreme
Court;
(II) A petition for writ of certiorari is denied
or otherwise rejected by the Supreme Court; or
(III) Review is otherwise completed in
accordance with the judgment of the Supreme Court.
Discussion
See R.C.M. 1201, 1203, 1204, and 1205 concerning cases subject to
review by a Court of Criminal Appeals, the Court of Appeals for the
Armed Forces, and the Supreme Court. See also R.C.M. 1115 for
waiver or withdrawal of appellate review.
(2) Summary courts-martial. A conviction in a
summary court-martial is final when a judge advocate
completes review under R.C.M. 1307(d) and no further
action is required under R.C.M. 1307(e).
Discussion
Although a summary court-martial conviction is final under R.C.M.
1209(a)(2), an accused may petition for post-final review pursuant
to R.C.M. 1307(h). See also R.C.M. 1201(h).
(b) Effect of finality. The appellate review of records of
trial provided by the UCMJ, the proceedings, findings,
and sentences of courts-martial as approved, reviewed,
or affirmed as required by the UCMJ, and all
dismissals and discharges carried into execution under
sentences by courts-martial following approval,
review, or affirmation as required by the UCMJ, are
final and conclusive. The judgment of a court-martial
and orders publishing the proceedings of courts-
martial and all action taken pursuant to those
proceedings are binding upon all departments, courts,
agencies, and officers of the United States, subject only
to action upon a petition for a new trial under Article
73, to action under Article 69, to action by the
Secretary concerned as provided in Article 74, and the
authority of the President.
Rule 1210. New trial
(a) In general. At any time within three years after the
date of entry of judgment, the accused may petition the
Judge Advocate General for a new trial on the ground
of newly discovered evidence or fraud on the court-
martial. A petition may not be submitted after the death
of the accused. A petition for a new trial of the facts
may not be submitted on the basis of newly discovered
evidence when the petitioner was found guilty of the
relevant offense pursuant to a guilty plea.
(b) Who may petition. A petition for a new trial may be
submitted by the accused personally, or by accused’s
counsel, regardless whether the accused has been
separated from the Service.
(c) Form of petition. A petition for a new trial shall be
written and shall be signed under oath or affirmation
by the accused, by a person possessing the power of
attorney of the accused for that purpose, or by a person
with the authorization of an appropriate court to sign
the petition as the representative of the accused. The
petition shall contain the following information, or an
explanation why such matters are not included:
(1) The name, service number, and current address
of the accused;
(2) The date and location of the trial;
(3) The type of court-martial and the title or position
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of the convening authority;
(4) The request for the new trial;
(5) The sentence or a description thereof as reflected
in the judgment of the case, with any later reduction
thereof by clemency or otherwise;
(6) A brief description of any finding or sentence
believed to be unjust;
(7) A full statement of the newly discovered
evidence or fraud on the court-martial which is relied
upon for the remedy sought;
(8) Affidavits pertinent to the matters in paragraph
(c)(7) of this rule; and
(9) The affidavit of each person whom the accused
expects to present as a witness in the event of a new
trial. Each such affidavit should set forth briefly the
relevant facts within the personal knowledge of the
witness.
(d) Effect of petition. The submission of a petition for
a new trial does not stay the execution of a sentence.
(e) Who may act on petition. If the accused’s case is
pending before a Court of Criminal Appeals or the
Court of Appeals for the Armed Forces, the Judge
Advocate General shall refer the petition to the
appropriate court for action. Otherwise, the Judge
Advocate General of the armed force which reviewed
the previous trial shall act on the petition, except that
petitions submitted by persons who, at the time of trial
and sentence from which the petitioner seeks relief,
were members of the Coast Guard, and who were
members of the Coast Guard at the time the petition is
submitted, shall be acted on in the Department in which
the Coast Guard is serving at the time the petition is so
submitted.
(f) Grounds for new trial.
(1) In general. A new trial may be granted only on
grounds of newly discovered evidence or fraud on the
court-martial.
(2) Newly discovered evidence. A new trial shall not
be granted on the grounds of newly discovered
evidence unless the petition shows that:
(A) The evidence was discovered after the trial;
(B) The evidence is not such that it would have
been discovered by the petitioner at the time of trial in
the exercise of due diligence; and
(C) The newly discovered evidence, if considered
by a court-martial in the light of all other pertinent
evidence, would probably produce a substantially more
favorable result for the accused.
(3) Fraud on court-martial. No fraud on the court-
martial warrants a new trial unless it had a substantial
contributing effect on a finding of guilty or the
sentence adjudged.
Discussion
Examples of fraud on a court-martial which may warrant granting a
new trial are: confessed or proved perjury in testimony or forgery of
documentary evidence that clearly had a substantial contributing
effect on a finding of guilty and without which there probably would
not have been a finding of guilty of the offense; willful concealment
by the prosecution from the defense of evidence favorable to the
defense that, if presented to the court-martial, would probably have
resulted in a finding of not guilty; and willful concealment of a
material ground for challenge of the military judge or any member
or of the disqualification of counsel or the convening authority, when
the basis for challenge or disqualification was not known to the
defense at the time of trial.
(g) Action on petition.
(1) In general. The authority considering the petition
may cause such additional investigation to be made and
such additional information to be secured as that
authority believes appropriate. Upon written request,
and in its discretion, the authority considering the
petition may permit oral argument on the matter.
(2) Courts of Criminal Appeals; Court of Appeals for
the Armed Forces. The Courts of Criminal Appeals and
the Court of Appeals for the Armed Forces shall act on
a petition for a new trial in accordance with their
respective rules.
(3) The Judge Advocates General. When a petition
is considered by the Judge Advocate General, any
hearing may be before the Judge Advocate General or
before an officer or officers designated by the Judge
Advocate General. If the Judge Advocate General
believes meritorious grounds for relief under Article 74
have been established but that a new trial is not
appropriate, the Judge Advocate General may act
under Article 74 if authorized to do so, or transmit the
petition and related papers to the Secretary concerned
with a recommendation. The Judge Advocate General
may also, in cases which have been finally reviewed
but have not been reviewed by a Court of Criminal
Appeals, act under Article 69.
Discussion
See also R.C.M. 1201(h).
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(h) Action when new trial is granted.
(1) Forwarding to appropriate authority. When a
petition for a new trial is granted, the Judge Advocate
General shall select and forward the case to an
appropriate authority for disposition.
(2) Charges at new trial. At a new trial, the accused
may not be tried for any offense of which the accused
was found not guilty or upon which the accused was
not tried at the earlier court-martial.
(3) Action by convening authority. The convening
authority’s action on the record of a new trial is the
same as in other courts-martial.
(4) Disposition of record. The disposition of the
record of a new trial is the same as for other courts-
martial.
(5) Judgment. After a new trial, a new judgment shall
be entered in accordance with R.C.M. 1111.
Discussion
See Article 75 and R.C.M. 1208.
(6) Action by persons charged with execution of the
sentence. Persons charged with the administrative duty
of executing a sentence adjudged upon a new trial shall
credit the accused with any executed portion or amount
of the original sentence included in the new sentence
in computing the term or amount of punishment
actually to be executed pursuant to the sentence.
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CHAPTER XIII. SUMMARY COURTS-MARTIAL
Rule 1301. Summary courts-martial
(a) Composition. A summary court-martial is
composed of one commissioned officer on active duty.
Unless otherwise prescribed by the Secretary
concerned, a summary court-martial shall be of the
same armed force as the accused. Summary courts-
martial shall be conducted in accordance with the
regulations of the military Service to which the accused
belongs. Whenever practicable, a summary court-
martial should be an officer whose grade is not below
lieutenant of the Navy or Coast Guard or captain of the
Army, Marine Corps, Air Force, or Space Force. When
only one commissioned officer is present with a
command or detachment, that officer shall be the
summary court-martial of that command or
detachment. When more than one commissioned
officer is present with a command or detachment, the
convening authority may not be the summary court-
martial of that command or detachment.
(b) Function. The function of the summary court-
martial is to promptly adjudicate minor offenses under
a simple disciplinary proceeding. A finding of guilt by
the summary court-martial does not constitute a
criminal conviction as it is not a criminal forum.
However, a summary court-martial shall constitute a
trial for purposes of determining former jeopardy
under Article 44. The summary court-martial shall
thoroughly and impartially inquire into both sides of
the matter and shall ensure that the interests of both the
Government and the accused are safeguarded and that
justice is done. A summary court-martial may seek
advice from a judge advocate or legal officer on
questions of law, but the summary court-martial may
not seek advice from any person on factual conclusions
that should be drawn from evidence or the sentence
that should be imposed, as the summary court-martial
has the independent duty to make these determinations.
Discussion
For a definition of “minor offenses,” see subparagraph 1.e, Part V.
See R.C.M. 1209(a)(2) for the finality of a finding of guilty at a
summary court-martial.
(c) Jurisdiction.
[Note: R.C.M. 1301(c) applies to offenses
committed on or after 24 June 2014.]
(1) Subject to Chapter II and R.C.M. 1301(c)(2),
summary courts-martial have the power to try persons
subject to the UCMJ, except commissioned officers,
warrant officers, cadets, aviation cadets, and
midshipmen, for any non-capital offense made
punishable by the UCMJ.
Discussion
See R.C.M. 103(4) for the definition of the term “capital offense.”
(2) Notwithstanding paragraph (c)(1), summary
courts-martial do not have jurisdiction over offenses
under Articles 120(a), 120(b), 120b(a), 120b(b), and
attempts thereof under Article 80. Such offenses shall
not be referred to a summary court-martial.
Discussion
Only a general court-martial has jurisdiction to try penetrative sex
offenses under subsections (a) and (b) of Article 120, subsections (a)
and (b) of Article 120b, and attempts to commit such penetrative sex
offenses under Article 80.
(d) Punishments.
(1) Limitations—amount. Subject to R.C.M. 1003,
summary courts-martial may impose any punishment
not forbidden by the UCMJ except death, dismissal,
dishonorable or bad-conduct discharge, confinement
for more than 1 month, hard labor without confinement
for more than 45 days, restriction to specified limits for
more than 2 months, or forfeiture of more than two-
thirds of 1 month’s pay.
Discussion
The maximum penalty that can be adjudged in a summary court-
martial is confinement for 30 days, forfeiture of two-thirds pay per
month for one month, and reduction to the lowest pay grade. See
R.C.M. 1301(d)(2) for additional limits on sentences that may be
adjudged where the accused is serving in a pay grade above the
fourth enlisted pay grade.
A summary court-martial may not suspend all or part of a
sentence, although the summary court-martial may recommend to
the convening authority that all or part of a sentence be suspended.
If a sentence includes both reduction in grade and forfeitures, the
maximum forfeiture is calculated at the reduced pay grade. See also
R.C.M. 1003 concerning other punishments which may be imposed,
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the effects of certain types of punishment, and the combination of
certain types of punishment.
(2) Limitations—pay grade. In the case of enlisted
members above the fourth enlisted pay grade, summary
courts-martial may not adjudge confinement, hard
labor without confinement, or reduction except to the
next pay grade.
Discussion
The provisions of this subsection apply to an accused in the fifth
enlisted pay grade who is reduced to the fourth enlisted pay grade by
the summary court-martial.
(e) Counsel. The accused at a summary court-martial
does not have the right to counsel. If the accused has
counsel qualified under R.C.M. 502(d)(2), that counsel
may be permitted to represent the accused at the
summary court-martial if such appearance will not
unreasonably delay the proceedings and if military
exigencies do not preclude it.
Discussion
Neither the Constitution nor any statute establishes any right to
counsel at summary courts-martial. Therefore, it is not error to deny
an accused the opportunity to be represented by counsel at a
summary court-martial. However, appearance of counsel is not
prohibited. The detailing authority may, as a matter of discretion,
detail, or otherwise make available, a military attorney to represent
the accused at a summary court-martial.
(f) Power to obtain witnesses and evidence. A
summary court-martial may obtain evidence pursuant
to R.C.M. 703.
Discussion
The summary court-martial must obtain witnesses for the
prosecution and the defense pursuant to the standards in R.C.M. 703.
The summary court-martial rules on any request by the accused for
witnesses or evidence in accordance with the procedure in R.C.M.
703(c) and (e).
(g) Secretarial limitations. The Secretary concerned
may prescribe procedural or other rules for summary
courts-martial not inconsistent with this Manual or the
UCMJ.
Rule 1302. Convening a summary court-martial
(a) Who may convene summary courts-martial. Unless
limited by competent authority summary courts-
martial may be convened by:
(1) Any person who may convene a general or
special court-martial;
(2) The commander of a detached company or other
detachment of the Army;
(3) The commander of a detached squadron or other
detachment of the Air Force or a corresponding unit of
the Space Force.
(4) The commander or officer in charge of any other
command when empowered by the Secretary
concerned; or
(5) A superior competent authority to any of the
above.
(b) When convening authority is accuser. If the
convening authority or the summary court-martial is
the accuser, it is discretionary with the convening
authority whether to forward the charges to a superior
authority with a recommendation to convene the
summary court-martial. If the convening authority or
the summary court-martial is the accuser, the
jurisdiction of the summary court-martial is not
affected.
(c) Procedure. After the requirements of Chapters III
and IV of this Part have been satisfied, summary
courts-martial shall be convened in accordance with
R.C.M. 504(d)(2). The convening order may be by
notation signed by the convening authority on the
charge sheet. Charges shall be referred to summary
courts-martial in accordance with R.C.M. 601.
Discussion
When the convening authority is the summary court-martial because
the convening authority is the only commissioned officer present
with the command or detachment, see R.C.M. 1301(a), that fact
should be noted on the charge sheet.
Rule 1303. Right to object to trial by summary
court-martial
No person who objects thereto before arraignment
may be tried by summary court-martial even if that
person also refused punishment under Article 15 and
demanded trial by court-martial for the same offenses.
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Rule 1304. Trial procedure
(a) Pretrial duties.
(1) Examination of file. The summary court-martial
shall carefully examine the charge sheet, allied papers,
and immediately available personnel records of the
accused before trial.
Discussion
“Personnel records” are those personnel records of the accused that
are maintained locally and are immediately available. “Allied
papers” in a summary court-martial include convening orders,
investigative reports, correspondence relating to the case, and
witness statements.
(2) Report of irregularity. The summary court-
martial shall report to the convening authority any
substantial irregularity in the charge sheet, allied
papers, or personnel records.
Discussion
The summary court-martial should examine the charge sheet, allied
papers, and personnel records to ensure that they are complete and
free from errors or omissions which might affect admissibility. The
summary court-martial should check the charges and specifications
to ensure that each alleges personal jurisdiction over the accused (see
R.C.M. 202) and an offense under the UCMJ (see R.C.M. 203 and
Part IV). Substantial defects or errors in the charges and
specifications must be reported to the convening authority, because
such defects cannot be corrected except by preferring and referring
the affected charge and specification anew in proper form. A defect
or error is substantial if correcting it would state an offense not
otherwise stated, or include an offense, person, or matter not fairly
included in the specification as preferred. See R.C.M. 1304(a)(3)
concerning minor errors.
(3) Correction and amendment. The summary court-
martial may, subject to R.C.M. 603, correct errors on
the charge sheet and amend charges and specifications.
Any such corrections or amendments shall be initialed.
(4) Rights of victims at summary courts-martial.
Pursuant to Article 6b, a victim at summary court-
martial is entitled to the following rights:
(A) To be reasonably protected from the accused;
(B) To reasonable, accurate, and timely notice of
the summary court-martial;
(C) To not be excluded from the summary court-
martial unless the summary court-martial officer, after
receiving clear and convincing evidence, determines
that testimony by the victim of an offense under this
chapter would be materially altered if the victim heard
other testimony at the summary court-martial;
(D) To be reasonably heard during sentencing in
accordance with R.C.M. 1001(c); and
(E) The reasonable right to confer with the
representative of the command and counsel for the
government, if any.
Discussion
The term “victim” has the same meaning as the term “victim of an
offense under this chapter” in Article 6b.
(b) Summary court-martial procedure.
Discussion
The Guide for Summary Courts-Martial is found at Appendix 8.
(1) Preliminary proceeding. After complying with
R.C.M. 1304(a), the summary court-martial shall hold
a preliminary proceeding during which the accused
shall be given a copy of the charge sheet and informed
of the following:
(A) The general nature of the charges;
(B) The fact that the charges have been referred to
a summary court-martial for trial and the date of
referral;
(C) The identity of the convening authority;
(D) The name(s) of the accuser(s);
(E) The names of the witnesses who could be
called to testify and any documents or physical
evidence which the summary court-martial expects to
introduce into evidence;
(F) The accused’s right to inspect the allied papers
and immediately available personnel records;
(G) That during the trial the summary court-
martial will not consider any matters, including
statements previously made by the accused to the
officer detailed as summary court-martial unless
admitted in accordance with the Military Rules of
Evidence;
(H) The accused’s right to plead not guilty or
guilty;
(I) The accused’s right to cross-examine witnesses
and have the summary court-martial cross-examine
witnesses on behalf of the accused;
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(J) The accused’s right to call witnesses and
produce evidence with the assistance of the summary
court-martial as necessary;
(K) The accused’s right to testify on the merits, or
to remain silent with the assurance that no adverse
inference will be drawn by the summary court-martial
from such silence;
(L) If any findings of guilty are announced, the
accused’s rights to remain silent, to make an unsworn
statement, oral or written or both, and to testify, and to
introduce evidence in extenuation or mitigation;
(M) The maximum sentence which the summary
court-martial may adjudge if the accused is found
guilty of the offense or offenses alleged; and
(N) The accused’s right to object to trial by
summary court-martial.
(2) Trial proceeding.
(A) Objection to trial. The summary court-martial
shall give the accused a reasonable period of time to
decide whether to object to trial by summary court-
martial. The summary court-martial shall thereafter
record the response. If the accused objects to trial by
summary court-martial, the summary court-martial
shall return the charge sheet, allied papers, and
personnel records to the convening authority. If the
accused fails to object to trial by summary court-
martial, trial shall proceed.
(B) Arraignment. After complying with R.C.M.
1304(b)(1) and (2)(A), the summary court-martial shall
read and show the charges and specifications to the
accused and, if necessary, explain them. The accused
may waive the reading of the charges. The summary
court-martial shall then ask the accused to plead to
each specification and charge.
(C) Motions. Before receiving pleas the summary
court-martial shall allow the accused to make motions
to dismiss or for other relief. The summary court-
martial shall take action on behalf of the accused, if
requested by the accused, or if it appears necessary in
the interests of justice.
(D) Pleas.
(i) Not guilty pleas. When a not guilty plea is
entered, the summary court-martial shall proceed to
trial.
(ii) Guilty pleas. If the accused pleads guilty to
any offense, the summary court-martial shall comply
with R.C.M. 910.
(iii) Rejected guilty pleas. If the summary court-
martial is in doubt that the accused’s pleas of guilty are
voluntarily and understandingly made, or if at any time
during the trial any matter inconsistent with pleas of
guilty arises, which inconsistency cannot be resolved,
the summary court-martial shall enter not guilty pleas
as to the affected charges and specifications.
(iv) No plea. If the accused refuses to plead, the
summary court-martial shall enter not guilty pleas.
(v) Changed pleas. The accused may change
any plea at any time before findings are announced.
The accused may change pleas from guilty to not guilty
after findings are announced only for good cause.
(E) Presentation of evidence.
(i) The Military Rules of Evidence (Part III)
apply to summary courts-martial.
(ii) The summary court-martial shall arrange for
the attendance of necessary witnesses for the
prosecution and defense, including those requested by
the accused.
Discussion
See R.C.M. 703. Ordinarily witnesses should be excluded from the
courtroom until called to testify. See Mil. R. Evid. 615.
(iii) Witnesses for the prosecution shall be
called first and examined under oath. The accused shall
be permitted to cross-examine these witnesses. The
summary court-martial shall aid the accused in cross-
examination if such assistance is requested or appears
necessary in the interests of justice. The witnesses for
the accused shall then be called and similarly examined
under oath.
(iv) The summary court-martial shall obtain
evidence which tends to disprove the accused’s guilt or
establishes extenuating circumstances.
Discussion
See R.C.M. 703 and 1001.
(F) Findings and sentence.
(i) The summary court-martial shall apply the
principles in R.C.M. 918 in determining the findings.
The summary court-martial shall announce the
findings to the accused in open session.
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(ii) The summary court-martial shall follow the
procedures in R.C.M. 1001 and 1002 and apply the
principles in the remainder of Chapter X in
determining a sentence, except as follows:
(I) If an accused is found guilty of more than
one offense, a summary court-martial shall determine
the appropriate confinement and fine, if any, for all
offenses of which the accused was found guilty. The
summary court-martial shall not determine or
announce separate terms of confinement or fines for
each offense; and
(II) The summary court-martial shall
announce the sentence to the accused in open session.
(iii) If the sentence includes confinement, the
summary court-martial shall advise the accused of the
right to apply to the convening authority for deferment
of the service of the confinement.
(iv) If the accused is found guilty, the summary
court-martial shall advise the accused of the rights
under R.C.M. 1306(a) and (h) and R.C.M. 1307(h)
after the sentence is announced.
(v) The summary court-martial shall, as soon as
practicable, inform the convening authority of the
findings, sentence, recommendations, if any, for
suspension of the sentence, and any deferment request.
(vi) If the sentence includes confinement, the
summary court-martial shall cause the delivery of the
accused to the accused’s commanding officer or the
commanding officer’s designee.
Discussion
If the accused’s immediate commanding officer is not the convening
authority, the summary court-martial should ensure that the
immediate commanding officer is informed of the findings, sentence,
and any recommendations pertaining thereto. See R.C.M. 1102
concerning post-trial confinement.
Rule 1305. Record of trial
(a) In general. The record of trial of a summary court-
martial shall be prepared as prescribed in subsection
(b) of this rule. The convening or higher authority may
prescribe additional requirements for the record of
trial.
Discussion
DD Form 2329 provides a sample Record of Trial by Summary
Court-Martial.
Any matters submitted under R.C.M. 1306(a) should be
appended to the record of trial.
(b) Contents. The summary court-martial shall prepare
a written record of trial, which shall include:
(1) The pleas, findings, and sentence, and if the
accused was represented by counsel at the summary
court-martial, a notation to that effect;
(2) The fact that the accused was advised of the
matters set forth in R.C.M. 1304(b)(1);
(3) If the summary court-martial is the convening
authority, a notation to that effect.
(c) Certification. The summary court-martial shall
certify the record by signing the record of trial. An
electronic record of trial may be certified with the
electronic signature of the summary court-martial.
Discussion
Certification means attesting that the record accurately reports the
proceedings and includes any matters prescribed by the Secretary
concerned.
(d) Forwarding copies of the record.
(1) Accused’s copy.
(A) Service. The summary court-martial shall
cause a copy of the record of trial to be served on the
accused as soon as it is certified. Service of a certified
electronic copy of the record of trial with a means to
review the record of trial satisfies the requirement of
service under this rule.
(B) Receipt. The summary court-martial shall
cause the accused’s receipt for the copy of the record
of trial to be obtained and attached to the original
record of trial or shall attach to the original record of
trial a certificate that the accused was served a copy of
the record. If the record of trial was not served on the
accused personally, the summary court-martial shall
attach a statement explaining how and when such
service was accomplished. If the accused was
represented by counsel, such counsel may be served
with the record of trial.
(C) Classified information. If classified
information is included in the record of trial of a
summary court-martial, R.C.M. 1112(e)(3)(A) shall
apply.
(2) Forwarding to the convening authority. The
original and one copy of the record of trial shall be
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forwarded to the convening authority after compliance
with paragraph (d)(1) of this rule.
(3) Further disposition. After compliance with
R.C.M. 1306(b) and (h) and R.C.M. 1307(h), if
applicable, the record of trial shall be disposed of under
regulations prescribed by the Secretary concerned.
(e) Loss of record; defective record; correction of
record.
(1) Loss of record. If the certified record of trial is
lost or destroyed, the summary court-martial shall, if
practicable, cause another record of trial to be prepared
for certification. The new record of trial shall become
the record of trial in the case if the requirements of this
rule are met.
(2) Defective record. A record of trial found to be
defective after certification may be returned to the
summary court-martial to be corrected. The summary
court-martial shall give notice of the proposed
correction to the parties and permit them to examine
and respond to the proposed correction before issuing
a certificate of correction. The parties shall be given
reasonable access to any recording of the proceedings.
Discussion
The type of opportunity to respond depends on the nature and scope
of the proposed correction. In many instances an adequate
opportunity can be provided by allowing the parties to present
affidavits and other documentary evidence to the person issuing the
certificate of correction or by a conference telephone call among the
summary court-martial, the parties, and the reporter, if any. In other
instances, an evidentiary hearing with witnesses may be required.
The accused need not be present at any hearing on a certificate of
correction.
(3) Certificate of correction; service on the accused.
The certificate of correction shall be certified as
provided in subsection (c) of this rule and a copy
served on the accused as provided in paragraph (d)(1)
of this rule. The certificate of correction and the
accused’s receipt for the certificate of correction shall
be attached to each copy of the record of trial required
to be prepared under this rule.
Rule 1306. Post-trial procedure, summary court-
martial
(a) Matters submitted. After a sentence is adjudged by
a summary court-martial, the accused and any crime
victim may submit matters to the convening authority
in accordance with R.C.M. 1106 and R.C.M. 1106A.
Discussion
For the definition of “crime victim,” see R.C.M. 1106A(b)(2).
(b) Convening authority’s action.
(1) In general. The convening authority shall take
action on the sentence of a summary court-martial and,
in the discretion of the convening authority, the
findings of a summary court-martial.
(2) Action on findings. Action on the findings is not
required. With respect to findings, the convening
authority may:
(A) change a finding of guilty to a charge or
specification to a finding of guilty to an offense that is
a lesser included offense of the offense stated in the
charge or specification; or
(B) set aside any finding of guilty and:
(i) dismiss the specification and, if appropriate,
the charge; or
(ii) direct a rehearing in accordance with R.C.M.
810 and subsection (e).
(3) Action on sentence. The convening authority
shall take action on the sentence. The convening
authority may approve the sentence as adjudged or
disapprove, commute, or suspend, in whole or in part,
any portion of an adjudged sentence. The convening
authority shall approve the sentence that is warranted
by the circumstances of the offense and appropriate for
the accused.
Discussion
In determining what sentence should be approved, the convening
authority should consider the sentencing guidance in R.C.M. 1002(f)
and all matters relating to clemency, such as pretrial confinement.
See R.C.M. 910(f)(5) on the effect of a plea agreement on the
sentence of a summary court-martial.
A sentence adjudged by a court-martial may be approved if it
was within the jurisdiction of the court-martial to adjudge (see
R.C.M. 201(f)) and did not exceed the maximum limits prescribed in
Part IV and Chapter X of this Part for the offense(s) of which the
accused legally has been found guilty.
See also R.C.M. 1003(b).
See R.C.M. 1103(c) for the convening authority’s ability to
defer service of a sentence to confinement in a summary court-
martial where the accused is in the custody of a state or foreign
country.
(4) When proceedings resulted in finding of not
guilty. The convening authority shall not take action
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disapproving a finding of not guilty, a finding of not
guilty only by reason of lack of mental responsibility,
or a ruling amounting to a finding of not guilty. When
an accused is found not guilty only by reason of lack
of mental responsibility, the convening authority,
however, shall commit the accused to a suitable facility
pending a hearing and disposition in accordance with
R.C.M. 1105.
(5) Action when accused lacks mental capacity. The
convening authority may not approve a sentence while
the accused lacks mental capacity to understand and to
conduct or cooperate intelligently in the post-trial
proceedings. If, before the convening authority takes
action, a substantial question is raised as to the
requisite mental capacity of the accused, the convening
authority shall either—
(A) direct an examination of the accused in
accordance with R.C.M. 706 to determine the
accused’s present capacity to understand and cooperate
in the post-trial proceedings; or
(B) disapprove the findings and sentence.
Discussion
See R.C.M. 909 regarding presumptions and standards governing
issues of mental competence.
(c) Ordering rehearing or other trial. The convening
authority may, in the convening authority’s discretion,
order a rehearing. A rehearing may be ordered as to
some or all offenses of which findings of guilty were
entered and the sentence, or as to sentence only. A
rehearing may not be ordered as to findings of guilty
when there is a lack of sufficient evidence in the record
to support the findings of guilty of the offense charged
or of any lesser included offense. A rehearing may be
ordered, however, if the proof of guilt consisted of
inadmissible evidence for which there is available an
admissible substitute. A rehearing may be ordered as
to any lesser offense included in an offense of which
the accused was found guilty, provided there is
sufficient evidence in the record to support the lesser
included offense.
Discussion
See R.C.M. 810 regarding procedures for rehearings and limitations
on sentence at rehearings.
(d) Contents of action and related matters.
(1) In general. The convening authority shall state in
writing and insert in the record of trial the convening
authority’s decision as to the sentence, whether any
findings of guilty are disapproved, whether any
charges or specifications are changed or dismissed and
an explanation for such action, and any orders as to
further disposition. The action shall be signed by the
convening authority. The convening authority’s
authority to sign shall appear below the signature. The
convening authority may recall and modify any action
taken by that convening authority at any time before it
has been published, or, if the action is favorable to the
accused, at any time prior to forwarding the record for
review or before the accused has been officially
notified.
(2) Sentence. The action shall state whether the
sentence adjudged by the court-martial is approved. If
only part of the sentence is approved, the action shall
state which parts are approved. A rehearing may not be
directed if any sentence is approved.
(3) Suspension. The action shall indicate, when
appropriate, whether an approved sentence is to be
executed or whether the execution of all or any part of
the sentence is to be suspended. No reasons need be
stated.
(4) Deferment of service of sentence to confinement.
Whenever the service of the sentence to confinement is
deferred by the convening authority under R.C.M.
1103 before or concurrently with the initial action in
the case, the action shall include the date on which the
deferment became effective. The reason for the
deferment need not be stated in the action.
(e) Incomplete, ambiguous, or erroneous action. When
the action of the convening authority or of a higher
authority is incomplete, ambiguous, or contains error,
the authority who took the incomplete, ambiguous, or
erroneous action may be instructed by an authority
acting under Article 64, 66, 67, 67a, or 69 to withdraw
the original action and substitute a corrected action.
(f) Service. A copy of the convening authority’s action
shall be served on the accused or on defense counsel
and, upon the victim’s request, the victim. If the action
is served on defense counsel, defense counsel shall, by
expeditious means, provide the accused with a copy.
Discussion
The term “victim” has the same meaning as “crime victim” in
R.C.M. 1106A(b)(2).
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(g) Subsequent action. Any action taken on a summary
court-martial after the initial action by the convening
authority shall be in writing, signed by the authority
taking the action, and promulgated in appropriate
orders.
(h) Review by a judge advocate. A judge advocate shall
review each summary court-martial in which there is a
finding of guilty pursuant to R.C.M. 1307.
Rule 1307. Review of summary courts-martial by a
judge advocate
(a) In general. Except as provided in subsection (b) of
this rule, under regulations of the Secretary concerned,
a judge advocate shall review each summary court-
martial in which there is a finding of guilty.
(b) Exception. If the accused is found not guilty or not
guilty only by reason of lack of mental responsibility
of all offenses or if the convening authority
disapproved all findings of guilty, no review under this
rule is required.
(c) Disqualification. No person may review a case
under this rule if that person has acted in the same case
as an accuser, preliminary hearing officer, summary
court-martial officer, or counsel, or has otherwise acted
on behalf of the prosecution or defense.
(d) Form and content of review. The judge advocate’s
review shall be in writing and shall contain the
following:
(1) Conclusions as to whether—
(A) the court-martial had jurisdiction over the
accused and each offense as to which there is a finding
of guilty that has not been disapproved;
(B) each specification as to which there is a
finding of guilty that has not been disapproved stated
an offense; and
(C) the sentence was legal.
(2) A response to each allegation of error made in
writing by the accused. Such allegations may be filed
under R.C.M. 1106 or directly with the judge advocate
who reviews the case; and
(3) If the case is sent for action to the officer
exercising general court-martial jurisdiction under
subsection (e) of this rule, a recommendation as to the
appropriate action to be taken and an opinion as to
whether corrective action is required as a matter of law.
A copy of the judge advocate’s review under this rule
shall be attached to the record of trial. A copy of the
review shall also be forwarded to the accused.
(e) Forwarding to officer exercising general court-
martial jurisdiction. In cases reviewed under this rule,
the record of trial shall be sent for action to the officer
exercising general court-martial convening authority
over the accused at the time the court-martial was held
(or to that officer’s successor) when:
(1) The judge advocate who reviewed the case
recommends corrective action; or
(2) Such action is otherwise required by regulations
of the Secretary concerned.
(f) Action by officer exercising general court-martial
jurisdiction.
(1) Action. The officer exercising general court-
martial jurisdiction who receives a record under
subsection (e) of this rule may—
(A) Disapprove or approve the findings or
sentence in whole or in part;
(B) Remit, commute, or suspend the sentence in
whole or in part;
(C) Except where the evidence was insufficient at
the trial to support the findings, order a rehearing on
the findings, on the sentence, or on both; or
(D) Dismiss the charges.
Discussion
See R.C.M. 1102(a) concerning when the officer exercising general
court-martial jurisdiction may order parts of the sentence executed.
See R.C.M. 1111(a)(3) explaining that the findings and sentence of
the court-martial, as modified or approved by the convening
authority, constitute the judgment in summary courts-martial.
(2) Rehearing. If the officer exercising general
court-martial jurisdiction orders a rehearing, but the
convening authority finds a rehearing impracticable,
the convening authority shall dismiss the charges.
(3) Notification. After the officer exercising general
court-martial jurisdiction has taken action, the accused
shall be notified of the action and the accused shall be
provided with a copy of the action.
(g) Records forwarded to the Judge Advocate General.
If the judge advocate who reviews the case under this
rule states that corrective action is required as a matter
of law, and the officer exercising general court-martial
jurisdiction does not take action that is at least as
favorable to the accused as that recommended by the
judge advocate, the record of trial and the action
thereon shall be forwarded to the Judge Advocate
General for review under R.C.M. 1201(j).
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(h) Application for post-final review by the Judge
Advocate General. Not later than one year after
completion of the judge advocate’s review of the case
under this rule, the accused may apply for review by
the Judge Advocate General under R.C.M. 1201(h) on
the grounds of newly discovered evidence, fraud on the
court-martial, lack of jurisdiction over the accused or
offense, error prejudicial to the substantial rights of the
accused, or the appropriateness of the sentence.
(i) Review by a Court of Criminal Appeals. After the
Judge Advocate General reviews a summary court-
martial under R.C.M. 1201(h) or (j), the case may be
sent to the Court of Criminal Appeals by order of the
Judge Advocate General, or the accused may submit an
application for review to the Court of Criminal Appeals
in accordance with R.C.M. 1201(k).
(j) Other records. Records reviewed under this rule
that are not forwarded under subsection (g) shall be
disposed of as prescribed by the Secretary concerned.
PART III
MILITARY RULES OF EVIDENCE:
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SECTION I
GENERAL PROVISIONS
Rule 101. Scope
(a) Scope. These rules apply to courts-martial
proceedings to the extent and with the exceptions
stated in Mil. R. Evid. 1101.
(b) Sources of Law. In the absence of guidance in this
Manual or these rules, courts-martial will apply:
(1) First, the Federal Rules of Evidence and the case
law interpreting them; and
(2) Second, when not inconsistent with subdivision
(b)(1), the rules of evidence at common law.
(c) Rule of Construction.
(1) Except as otherwise provided in these rules, the
term “military judge” includes:
(A) a military magistrate designated to preside at
a special court-martial or pre-referral judicial
proceeding; and
(B) a summary court-martial officer.
(2) A reference in these rules to any kind of written
material or any other medium includes electronically
stored information.
Discussion
Discussion was added to these Rules in 2013. The Discussion itself
does not have the force of law, even though it may describe legal
requirements derived from other sources. It is in the nature of a
treatise, and may be used as secondary authority. If a matter is
included in a rule, it is intended that the matter be binding, unless it
is clearly expressed as precatory. The Discussion will be revised
from time to time as warranted by changes in applicable law. See
Composition of the Manual for Courts-Martial in Appendix 15
Practitioners should also refer to the Analysis of the Military
Rules of Evidence contained in Appendix 16 of this Manual. The
Analysis is similar to Committee Notes accompanying the Federal
Rules of Evidence and is intended to address the basis of the rule,
deviation from the Federal Rules of Evidence, relevant precedent,
and drafters’ intent.
Rule 102. Purpose
These rules should be construed so as to administer
every proceeding fairly, eliminate unjustifiable
expense and delay, and promote the development of
evidence law, to the end of ascertaining the truth and
securing a just determination.
Rule 103. Rulings on evidence
(a) Preserving a Claim of Error. A party may claim
error in a ruling to admit or exclude evidence only if
the error materially prejudices a substantial right of the
party and:
(1) if the ruling admits evidence, a party, on the
record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was
apparent from the context; or
(2) if the ruling excludes evidence, a party informs
the military judge of its substance by an offer of proof,
unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of
Proof. Once the military judge rules definitively on the
record admitting or excluding evidence, either before
or at trial, a party need not renew an objection or offer
of proof to preserve a claim of error for appeal.
(c) Review of Constitutional Error. The standard
provided in subdivision (a)(2) does not apply to errors
implicating the United States Constitution as it applies
to members of the Armed Forces, unless the error
arises under these rules and subdivision (a)(2) provides
a standard that is more advantageous to the accused
than the constitutional standard.
(d) Military Judge’s Statement about the Ruling;
Directing an Offer of Proof. The military judge may
make any statement about the character or form of the
evidence, the objection made, and the ruling. The
military judge may direct that an offer of proof be made
in question-and-answer form.
(e) Preventing the Members from Hearing
Inadmissible Evidence. In a court-martial composed of
a military judge and members, to the extent practicable,
the military judge must conduct a trial so that
inadmissible evidence is not suggested to the members
by any means.
(f) Taking Notice of Plain Error. A military judge may
take notice of a plain error that materially prejudices a
substantial right, even if the claim of error was not
properly preserved.
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Rule 104. Preliminary questions
(a) In general. The military judge must decide any
preliminary question about whether a witness is
available or qualified, a privilege exists, a continuance
should be granted, or evidence is admissible. In so
deciding, the military judge is not bound by evidence
rules, except those on privilege.
(b) Relevance that Depends on a Fact. When the
relevance of evidence depends on whether a fact exists,
proof must be introduced sufficient to support a finding
that the fact does exist. The military judge may admit
the proposed evidence on the condition that the proof
be introduced later. A ruling on the sufficiency of
evidence to support a finding of fulfillment of a
condition of fact is the sole responsibility of the
military judge, except where these rules or this Manual
provide expressly to the contrary.
(c) Conducting a Hearing so that the Members Cannot
Hear It. The military judge must conduct any hearing
on a preliminary question so that the members cannot
hear it if:
(1) the hearing involves the admissibility of a
statement of the accused under Mil. R. Evid. 301-306;
(2) the accused is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining the Accused. By testifying on a
preliminary question, the accused does not become
subject to cross-examination on other issues in the
case.
(e) Evidence Relevant to Weight and Credibility. This
rule does not limit a party’s right to introduce before
the members evidence that is relevant to the weight or
credibility of other evidence.
Rule 105. Limiting evidence that is not admissible
against other parties or for other purposes
If the military judge admits evidence that is admissible
against a party or for a purpose - but not against another
party or for another purpose - the military judge, on
timely request, must restrict the evidence to its proper
scope and instruct the members accordingly.
Rule 106. Remainder of or related writings or
recorded statements
If a party introduces all or part of a writing or recorded
statement, an adverse party may require the
introduction, at that time, of any other part - or any
other writing or recorded statement - that in fairness
ought to be considered at the same time.
SECTION II
JUDICIAL NOTICE
Rule 201. Judicial notice of adjudicative facts
(a) Scope. This rule governs judicial notice of an
adjudicative fact only, not a legislative fact.
(b) Kinds of Facts that May Be Judicially Noticed. The
military judge may judicially notice a fact that is not
subject to reasonable dispute because it:
(1) is generally known universally, locally, or in the
area pertinent to the event; or
(2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be
questioned.
(c) Taking Notice. The military judge:
(1) may take judicial notice whether requested or
not; or
(2) must take judicial notice if a party requests it and
the military judge is supplied with the necessary
information.
The military judge must inform the parties in open
court when, without being requested, he or she takes
judicial notice of an adjudicative fact essential to
establishing an element of the case.
(d) Timing. The military judge may take judicial notice
at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party
is entitled to be heard on the propriety of taking judicial
notice and the nature of the fact to be noticed. If the
military judge takes judicial notice before notifying a
party, the party, on request, is still entitled to be heard.
(f) Instructing the Members. The military judge must
instruct the members that they may or may not accept
the noticed fact as conclusive.
Rule 202. Judicial notice of law
(a) Domestic Law. The military judge may take judicial
notice of domestic law. If a domestic law is a fact that
is of consequence to the determination of the action,
the procedural requirements of Mil. R. Evid. 201—
except Rule 201(f)—apply.
(b) Foreign Law. A party who intends to raise an issue
concerning the law of a foreign country must give
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reasonable written notice. The military judge, in
determining foreign law, may consider any relevant
material or source, in accordance with Mil. R. Evid.
104. Such a determination is a ruling on a question of
law.
SECTION III
EXCLUSIONARY RULES AND RELATED
MATTERS CONCERNING SELF-
INCRIMINATION, SEARCH AND SEIZURE,
AND EYEWITNESS IDENTIFICATION
Rule 301. Privilege concerning compulsory self-
incrimination
(a) General Rule. An individual may claim the most
favorable privilege provided by the Fifth Amendment
to the United States Constitution, Article 31, or these
rules. The privileges against self-incrimination are
applicable only to evidence of a testimonial or
communicative nature.
(b) Standing. The privilege of a witness to refuse to
respond to a question that may tend to incriminate the
witness is a personal one that the witness may exercise
or waive at his or her discretion.
(c) Limited Waiver. An accused who chooses to testify
as a witness waives the privilege against self-
incrimination only with respect to the matters about
which he or she testifies. If the accused is on trial for
two or more offenses and on direct examination
testifies about only one or some of the offenses, the
accused may not be cross-examined as to guilt or
innocence with respect to the other offenses unless the
cross-examination is relevant to an offense concerning
which the accused has testified. This waiver is subject
to Mil. R. Evid. 608(b).
Discussion
A military judge is not required to provide Article 31 warnings. If a
witness who seems uninformed of the privileges under this rule,
appears likely to incriminate himself or herself, the military judge
may advise the witness of the right to decline to make any answer
that might tend to incriminate the witness and that any self-
incriminating answer the witness might make can later be used as
evidence against the witness. Counsel for any party or for the witness
may ask the military judge to so advise a witness if such a request is
made out of the hearing of the witness and the members, if present.
Failure to so advise a witness does not make the testimony of the
witness inadmissible.
(d) Exercise of the Privilege. If a witness states that the
answer to a question may tend to incriminate him or
her, the witness cannot be required to answer unless the
military judge finds that the facts and circumstances
are such that no answer the witness might make to the
question would tend to incriminate the witness or that
the witness has, with respect to the question, waived
the privilege against self-incrimination. A witness may
not assert the privilege if he or she is not subject to
criminal penalty as a result of an answer by reason of
immunity, running of the statute of limitations, or
similar reason.
(1) Immunity Requirements. The minimum grant of
immunity adequate to overcome the privilege is that
which under either R.C.M. 704 or other proper
authority provides that neither the testimony of the
witness nor any evidence obtained from that testimony
may be used against the witness at any subsequent trial
other than in a prosecution for perjury, false swearing,
the making of a false official statement, or failure to
comply with an order to testify after the military judge
has ruled that the privilege may not be asserted by
reason of immunity.
(2) Notification of Immunity or Leniency. When a
prosecution witness before a court-martial has been
granted immunity or leniency in exchange for
testimony, the grant must be reduced to writing and
must be served on the accused prior to arraignment or
within a reasonable time before the witness testifies. If
notification is not made as required by this rule, the
military judge may grant a continuance until
notification is made, prohibit or strike the testimony of
the witness, or enter such other order as may be
required.
(e) Waiver of the Privilege. A witness who answers a
self-incriminating question without having asserted the
privilege against self-incrimination may be required to
answer questions relevant to the disclosure, unless the
questions are likely to elicit additional self-
incriminating information.
(1) If a witness asserts the privilege against self-
incrimination on cross-examination, the military judge,
upon motion, may strike the direct testimony of the
witness in whole or in part, unless the matters to which
the witness refuses to testify are purely collateral.
(2) Any limited waiver of the privilege under
subdivision (e) applies only at the trial in which the
answer is given, does not extend to a rehearing or new
or other trial, and is subject to Mil. R. Evid. 608(b).
(f) Effect of Claiming the Privilege.
(1) No Inference to Be Drawn. The fact that a witness
has asserted the privilege against self-incrimination
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cannot be considered as raising any inference
unfavorable to either the accused or the government.
(2) Pretrial Invocation Not Admissible. The fact that
the accused during official questioning and in exercise
of rights under the Fifth Amendment to the United
States Constitution or Article 31 remained silent,
refused to answer a certain question, requested
counsel, or requested that the questioning be
terminated, is not admissible against the accused.
(3) Instructions Regarding the Privilege. When the
accused does not testify at trial, defense counsel may
request that the members of the court be instructed to
disregard that fact and not to draw any adverse
inference from it. Defense counsel may request that the
members not be so instructed. Defense counsel’s
election will be binding upon the military judge except
that the military judge may give the instruction when
the instruction is necessary in the interests of justice.
Rule 302. Privilege concerning mental examination
of an accused
(a) General rule. The accused has a privilege to prevent
any statement made by the accused at a mental
examination ordered under R.C.M. 706 and any
derivative evidence obtained through use of such a
statement from being received into evidence against
the accused on the issue of guilt or innocence or during
sentencing proceedings. This privilege may be claimed
by the accused notwithstanding the fact that the
accused may have been warned of the rights provided
by Mil. R. Evid. 305 at the examination.
(b) Exceptions.
(1) There is no privilege under this rule when the
accused first introduces into evidence such statements
or derivative evidence.
(2) If the court-martial has allowed the defense to
present expert testimony as to the mental condition of
the accused, an expert witness for the prosecution may
testify as to the reasons for his or her conclusions, but
such testimony may not extend to statements of the
accused except as provided in subdivision (b)(1).
(c) Release of Evidence from an R.C.M. 706
Examination. If the defense offers expert testimony
concerning the mental condition of the accused, the
military judge, upon motion, must order the release to
the prosecution of the full contents, other than any
statements made by the accused, of any report prepared
pursuant to R.C.M. 706. If the defense offers
statements made by the accused at such examination,
the military judge, upon motion, may order the
disclosure of such statements made by the accused and
contained in the report as may be necessary in the
interests of justice.
(d) Noncompliance by the Accused. The military judge
may prohibit an accused who refuses to cooperate in a
mental examination authorized under R.C.M. 706 from
presenting any expert medical testimony as to any issue
that would have been the subject of the mental
examination.
(e) Procedure. The privilege in this rule may be
claimed by the accused only under the procedure set
forth in Mil. R. Evid. 304 for an objection or a motion
to suppress.
Rule 303. Degrading questions
Statements and evidence are inadmissible if they are
not material to the issue and may tend to degrade the
person testifying.
Rule 304. Confessions and admissions
(a) General rule. If the accused makes a timely motion
or objection under this rule, an involuntary statement
from the accused, or any evidence derived therefrom,
is inadmissible at trial except as provided in
subdivision (e).
(1) Definitions. As used in this rule:
(A) “Involuntary statement” means a statement
obtained in violation of the self-incrimination privilege
or Due Process Clause of the Fifth Amendment to the
United States Constitution, Article 31, or through the
use of coercion, unlawful influence, or unlawful
inducement.
(B) “Confession” means an acknowledgment of
guilt.
(C) “Admission” means a self-incriminating
statement falling short of an acknowledgment of guilt,
even if it was intended by its maker to be exculpatory.
(2) Failure to deny an accusation of wrongdoing is
not an admission of the truth of the accusation if at the
time of the alleged failure the person was under
investigation or was in confinement, arrest, or custody
for the alleged wrongdoing.
(b) Evidence Derived from a Statement of the Accused.
When the defense has made an appropriate and timely
motion or objection under this rule, evidence allegedly
derived from a statement of the accused may not be
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admitted unless the military judge finds by a
preponderance of the evidence that:
(1) the statement was made voluntarily,
(2) the evidence was not obtained by use of the
accused’s statement, or
(3) the evidence would have been obtained even if
the statement had not been made.
(c) Corroboration of a Confession or Admission.
(1) An admission or a confession of the accused may
be considered as evidence against the accused on the
question of guilt or innocence only if independent
evidence, either direct or circumstantial, has been
admitted into evidence that would tend to establish the
trustworthiness of the admission or confession.
(2) Other uncorroborated confessions or admissions
of the accused that would themselves require
corroboration may not be used to supply this
independent evidence. If the independent evidence
raises an inference of the truth of the admission or
confession, then it may be considered as evidence
against the accused. Not every element or fact
contained in the confession or admission must be
independently proven for the confession or admission
to be admitted into evidence in its entirety.
(3) Corroboration is not required for a statement
made by the accused before the court by which the
accused is being tried, for statements made prior to or
contemporaneously with the act, or for statements
offered under a rule of evidence other than that
pertaining to the admissibility of admissions or
confessions.
(4) Quantum of Evidence Needed. The independent
evidence necessary to establish corroboration need not
be sufficient of itself to establish beyond a reasonable
doubt the truth of facts stated in the admission or
confession. The independent evidence need raise only
an inference of the truth of the admission or confession.
The amount and type of evidence introduced as
corroboration is a factor to be considered by the trier of
fact in determining the weight, if any, to be given to the
admission or confession.
(5) Procedure. The military judge alone is to
determine when adequate evidence of corroboration
has been received. Corroborating evidence must be
introduced before the admission or confession is
introduced unless the military judge allows submission
of such evidence subject to later corroboration.
(d) Disclosure of Statements by the Accused and
Derivative Evidence. Before arraignment, the
prosecution must disclose to the defense the contents
of all statements, oral or written, made by the accused
that are relevant to the case, known to trial counsel, and
within the control of the Armed Forces, and all
evidence derived from such statements, that the
prosecution intends to offer against the accused.
(e) Limited Use of an Involuntary Statement. A
statement obtained in violation of Article 31 or Mil. R.
Evid. 305(b)-(c) may be used only:
(1) to impeach by contradiction the in-court
testimony of the accused; or
(2) in a later prosecution against the accused for
perjury, false swearing, or the making of a false official
statement.
(f) Motions and Objections.
(1) Motions to suppress or objections under this rule,
or Mil. R. Evid. 302 or 305, to any statement or
derivative evidence that has been disclosed must be
made by the defense prior to submission of a plea. In
the absence of such motion or objection, the defense
may not raise the issue at a later time except as
permitted by the military judge for good cause shown.
Failure to so move or object constitutes a waiver of the
objection.
(2) If the prosecution seeks to offer a statement made
by the accused or derivative evidence that was not
disclosed before arraignment, the prosecution must
provide timely notice to the military judge and defense
counsel. The defense may object at that time, and the
military judge may make such orders as are required in
the interests of justice.
(3) The defense may present evidence relevant to the
admissibility of evidence as to which there has been an
objection or motion to suppress under this rule. An
accused may testify for the limited purpose of denying
that the accused made the statement or that the
statement was made voluntarily.
(A) Prior to the introduction of such testimony by
the accused, the defense must inform the military judge
that the testimony is offered under subdivision (f)(3).
(B) When the accused testifies under subdivision
(f)(3), the accused may be cross-examined only as to
the matter on which he or she testifies. Nothing said by
the accused on either direct or cross-examination may
be used against the accused for any purpose other than
in a prosecution for perjury, false swearing, or the
making of a false official statement.
(4) Specificity. The military judge may require the
defense to specify the grounds upon which the defense
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moves to suppress or object to evidence. If defense
counsel, despite the exercise of due diligence, has been
unable to interview adequately those persons involved
in the taking of a statement, the military judge may
make any order required in the interests of justice,
including authorization for the defense to make a
general motion to suppress or general objection.
(5) Rulings. The military judge must rule, prior to
plea, upon any motion to suppress or objection to
evidence made prior to plea unless, for good cause, the
military judge orders that the ruling be deferred for
determination at trial or after findings. The military
judge may not defer ruling if doing so adversely affects
a party’s right to appeal the ruling. The military judge
must state essential findings of fact on the record when
the ruling involves factual issues.
(6) Burden of Proof. When the defense has made an
appropriate motion or objection under this rule, the
prosecution has the burden of establishing the
admissibility of the evidence. When the military judge
has required a specific motion or objection under
subdivision (f)(4), the burden on the prosecution
extends only to the grounds upon which the defense
moved to suppress or object to the evidence.
(7) Standard of Proof. The military judge must find
by a preponderance of the evidence that a statement by
the accused was made voluntarily before it may be
received into evidence.
(8) Effect of Guilty Plea. Except as otherwise
expressly provided in R.C.M. 910(a)(2), a plea of
guilty to an offense that results in a finding of guilty
waives all privileges against self-incrimination and all
motions and objections under this rule with respect to
that offense regardless of whether raised prior to plea.
(g) Weight of the Evidence. If a statement is admitted
into evidence, the military judge must permit the
defense to present relevant evidence with respect to the
voluntariness of the statement and must instruct the
members to give such weight to the statement as it
deserves under all the circumstances.
(h) Completeness. If only part of an alleged admission
or confession is introduced against the accused, the
defense, by cross-examination or otherwise, may
introduce the remaining portions of the statement.
(i) Evidence of an Oral Statement. A voluntary oral
confession or admission of the accused may be proved
by the testimony of anyone who heard the accused
make it, even if it was reduced to writing and the
writing is not accounted for.
(j) Refusal to Obey an Order to Submit a Body
Substance. If an accused refuses a lawful order to
submit for chemical analysis a sample of his or her
blood, breath, urine or other body substance, evidence
of such refusal may be admitted into evidence on:
(1) a charge of violating an order to submit such a
sample; or
(2) any other charge on which the results of the
chemical analysis would have been admissible.
Rule 305. Warnings about rights
(a) General rule. A statement obtained in violation of
this rule is involuntary and will be treated under Mil.
R. Evid. 304.
(b) Definitions. As used in this rule:
(1) “Person subject to the code” means a person
subject to the Uniform Code of Military Justice as
contained in Chapter 47 of Title 10, United States
Code. This term includes, for purposes of subdivision
(c) of this rule, a knowing agent of any such person or
of a military unit.
(2) “Interrogation” means any formal or informal
questioning in which an incriminating response either
is sought or is a reasonable consequence of such
questioning.
(3) “Custodial interrogation” means questioning that
takes place while the accused or suspect is in custody,
could reasonably believe himself or herself to be in
custody, or is otherwise deprived of his or her freedom
of action in any significant way.
(c) Warnings Concerning the Accusation, Right to
Remain Silent, and Use of Statements.
(1) Article 31 Rights Warnings. A statement
obtained from the accused in violation of the accused’s
rights under Article 31 is involuntary and therefore
inadmissible against the accused except as provided in
subdivision (d). Pursuant to Article 31, a person subject
to the code may not interrogate or request any
statement from an accused or a person suspected of an
offense without first:
(A) informing the accused or suspect of the nature
of the accusation;
(B) advising the accused or suspect that the
accused or suspect has the right to remain silent; and
(C) advising the accused or suspect that any
statement made may be used as evidence against the
accused or suspect in a trial by court-martial.
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(2) Fifth Amendment Right to Counsel. If a person
suspected of an offense and subjected to custodial
interrogation requests counsel, any statement made in
the interrogation after such request, or evidence
derived from the interrogation after such request, is
inadmissible against the accused unless counsel was
present for the interrogation.
(3) Sixth Amendment Right to Counsel. If an accused
against whom charges have been preferred is
interrogated on matters concerning the preferred
charges by anyone acting in a law enforcement
capacity, or the agent of such a person, and the accused
requests counsel, or if the accused has appointed or
retained counsel, any statement made in the
interrogation, or evidence derived from the
interrogation, is inadmissible unless counsel was
present for the interrogation.
(4) Exercise of Rights. If a person chooses to exercise
the privilege against self-incrimination, questioning
must cease immediately. If a person who is subjected
to interrogation under the circumstances described in
subdivisions (c)(2) or (c)(3) of this rule chooses to
exercise the right to counsel, questioning must cease
until counsel is present.
(d) Presence of Counsel. When a person entitled to
counsel under this rule requests counsel, a judge
advocate or an individual certified in accordance with
Article 27(b) will be provided by the United States at
no expense to the person and without regard to the
person’s indigency and must be present before the
interrogation may proceed. In addition to counsel
supplied by the United States, the person may retain
civilian counsel at no expense to the United States.
Unless otherwise provided by regulations of the
Secretary concerned, an accused or suspect does not
have a right under this rule to have military counsel of
his or her own selection.
(e) Waiver.
(1) Waiver of the Privilege Against Self-
Incrimination. After receiving applicable warnings
under this rule, a person may waive the rights described
therein and in Mil. R. Evid. 301 and make a statement.
The waiver must be made freely, knowingly, and
intelligently. A written waiver is not required. The
accused or suspect must affirmatively acknowledge
that he or she understands the rights involved,
affirmatively decline the right to counsel, and
affirmatively consent to making a statement.
(2) Waiver of the Right to Counsel. If the right to
counsel is applicable under this rule and the accused or
suspect does not affirmatively decline the right to
counsel, the prosecution must demonstrate by a
preponderance of the evidence that the individual
waived the right to counsel.
(3) Waiver After Initially Invoking the Right to
Counsel.
(A) Fifth Amendment Right to Counsel. If an
accused or suspect subjected to custodial interrogation
requests counsel, any subsequent waiver of the right to
counsel obtained during a custodial interrogation
concerning the same or different offenses is invalid
unless the prosecution can demonstrate by a
preponderance of the evidence that:
(i) the accused or suspect initiated the
communication leading to the waiver; or
(ii) the accused or suspect has not continuously
had his or her freedom restricted by confinement, or
other means, during the period between the request for
counsel and the subsequent waiver.
(B) Sixth Amendment Right to Counsel. If an
accused or suspect interrogated after preferral of
charges as described in subdivision (c)(3) requests
counsel, any subsequent waiver of the right to counsel
obtained during an interrogation concerning the same
offenses is invalid unless the prosecution can
demonstrate by a preponderance of the evidence that
the accused or suspect initiated the communication
leading to the waiver.
(f) Standards for Nonmilitary Interrogations.
(1) United States Civilian Interrogations. When a
person subject to the code is interrogated by an official
or agent of the United States, of the District of
Columbia, or of a State, Commonwealth, or possession
of the United States, or any political subdivision of
such a State, Commonwealth, or possession, the
person’s entitlement to rights warnings and the validity
of any waiver of applicable rights will be determined
by the principles of law generally recognized in the
trial of criminal cases in the United States district
courts involving similar interrogations.
(2) Foreign Interrogations. Warnings under Article
31 and the Fifth and Sixth Amendments to the United
States Constitution are not required during an
interrogation conducted outside of a State, district,
Commonwealth, territory, or possession of the United
States by officials of a foreign government or their
agents unless such interrogation is conducted,
instigated, or participated in by military personnel or
their agents or by those officials or agents listed in
III-8
subdivision (f)(1). A statement obtained from a foreign
interrogation is admissible unless the statement is
obtained through the use of coercion, unlawful
influence, or unlawful inducement. An interrogation is
not “participated in” by military personnel or their
agents or by the officials or agents listed in subdivision
(f)(1) merely because such a person was present at an
interrogation conducted in a foreign nation by officials
of a foreign government or their agents, or because
such a person acted as an interpreter or took steps to
mitigate damage to property or physical harm during
the foreign interrogation.
Rule 306. Statements by one of several accused
When two or more accused are tried at the same trial,
evidence of a statement made by one of them which is
admissible only against him or her or only against
some but not all of the accused may not be received in
evidence unless all references inculpating an accused
against whom the statement is inadmissible are deleted
effectively or the maker of the statement is subject to
cross-examination.
Rule 311. Evidence obtained from unlawful
searches and seizures
(a) General rule. Evidence obtained as a result of an
unlawful search or seizure made by a person acting in
a governmental capacity is inadmissible against the
accused if:
(1) the accused makes a timely motion to suppress or
an objection to the evidence under this rule;
(2) the accused had a reasonable expectation of
privacy in the person, place, or property searched;
the accused had a legitimate interest in the property or
evidence seized when challenging a seizure; or the
accused would otherwise have grounds to object to the
search or seizure under the Constitution of the United
States as applied to members of the Armed Forces; and
(3) exclusion of the evidence results in appreciable
deterrence of future unlawful searches or seizures and
the benefits of such deterrence outweigh the costs to
the justice system.
(b) Definition. As used in this rule, a search or seizure
is “unlawful” if it was conducted, instigated, or
participated in by:
(1) military personnel or their agents and was in
violation of the Constitution of the United States as
applied to members of the Armed Forces, a federal
statute applicable to trials by court-martial that requires
exclusion of evidence obtained in violation thereof, or
Mil. R. Evid. 312-317;
(2) other officials or agents of the United States, of
the District of Columbia, or of a State, Commonwealth,
or possession of the United States or any political
subdivision of such a State, Commonwealth, or
possession, and was in violation of the Constitution of
the United States, or is unlawful under the principles of
law generally applied in the trial of criminal cases in
the United States district courts involving a similar
search or seizure; or
(3) officials of a foreign government or their agents,
where evidence was obtained as a result of a foreign
search or seizure that subjected the accused to gross
and brutal maltreatment. A search or seizure is not
“participated in” by a United States military or civilian
official merely because that person is present at a
search or seizure conducted in a foreign nation by
officials of a foreign government or their agents, or
because that person acted as an interpreter or took steps
to mitigate damage to property or physical harm during
the foreign search or seizure.
(c) Exceptions.
(1) Impeachment. Evidence that was obtained as a
result of an unlawful search or seizure may be used to
impeach by contradiction the in-court testimony of the
accused.
(2) Inevitable Discovery. Evidence that was obtained
as a result of an unlawful search or seizure may be used
when the evidence would have been obtained even if
such unlawful search or seizure had not been made.
(3) Good Faith Exception of a Warrant or Search
Authorization: Evidence that was obtained as a result
of an unlawful search or seizure may be used if:
(A) the search or seizure resulted from an
authorization to search, seize, or apprehend issued by
an individual competent to issue the authorization
under Mil. R. Evid. 315(d) or from a search warrant or
arrest warrant issued by competent civilian authority,
or from such an authorization or warrant issued by an
individual whom the officials seeking and executing
the authorization or warrant reasonably and with good
faith believed was competent to issue the authorization
or warrant;
(B) the individual issuing the authorization or
warrant had a substantial basis for determining the
existence of probable cause or the officials seeking and
executing the authorization or warrant reasonably and
III-9
with good faith believed that the individual issuing the
authorization or warrant had a substantial basis for
determining the existence of probable cause; and
(C) the officials seeking and executing the
authorization or warrant reasonably and with good
faith relied on the issuance of the authorization or
warrant. Good faith is to be determined using an
objective standard.
Discussion
See U.S. v. Perkins, 78 M.J. 381 (C.A.A.F. 2019).
(4) Reliance on Statute or Binding Precedent.
Evidence that was obtained as a result of an unlawful
search or seizure may be used when the official seeking
the evidence acted in objectively reasonable reliance
on a statute or on binding precedent later held violative
of the Fourth Amendment.
(d) Motions to Suppress and Objections.
(1) Disclosure. Prior to arraignment, the prosecution
must disclose to the defense all evidence seized from
the person or property of the accused, or believed to be
owned by the accused, or evidence derived therefrom,
that it intends to offer into evidence against the accused
at trial.
(2) Time Requirements.
(A) When evidence has been disclosed prior to
arraignment under subdivision (d)(1), the defense must
make any motion to suppress or objection under this
rule prior to submission of a plea. In the absence of
such motion or objection, the defense may not raise the
issue at a later time except as permitted by the military
judge for good cause shown. Failure to so move or
object constitutes a waiver of the motion or objection.
(B) If the prosecution intends to offer evidence
described in subdivision (d)(1) that was not disclosed
prior to arraignment, the prosecution must provide
timely notice to the military judge and to counsel for
the accused. The defense may enter an objection at that
time and the military judge may make such orders as
are required in the interest of justice.
(3) Specificity. The military judge may require the
defense to specify the grounds upon which the defense
moves to suppress or object to evidence described in
subdivision (d)(1). If defense counsel, despite the
exercise of due diligence, has been unable to interview
adequately those persons involved in the search or
seizure, the military judge may enter any order
required by the interests of justice, including
authorization for the defense to make a general motion
to suppress or a general objection.
(4) Challenging Probable Cause.
(A) Relevant Evidence. If the defense challenges
evidence seized pursuant to a search warrant or search
authorization on the ground that the warrant or
authorization was not based upon probable cause, the
evidence relevant to the motion is limited to evidence
concerning the information actually presented to or
otherwise known by the authorizing officer, except as
provided in subdivision (d)(4)(B).
(B) False Statements. If the defense makes a
substantial preliminary showing that a government
agent knowingly and intentionally or with reckless
disregard for the truth included a false statement or
omitted a material fact in the information presented to
the authorizing officer, and if the allegedly false
statement or omitted material fact is necessary to the
finding of probable cause, the defense, upon request, is
entitled to a hearing. At the hearing, the defense has the
burden of establishing by a preponderance of the
evidence the allegation of knowing and intentional
falsity or reckless disregard for the truth. If the defense
meets its burden, the prosecution has the burden of
proving by a preponderance of the evidence, with the
false information set aside, that the remaining
information presented to the authorizing officer is
sufficient to establish probable cause. If the
prosecution does not meet its burden, the objection or
motion must be granted unless the search is otherwise
lawful under these rules.”
(5) Burden and Standard of Proof.
(A) In general. When the defense makes an
appropriate motion or objection under subdivision (d),
the prosecution has the burden of proving by a
preponderance of the evidence that the evidence was
not obtained as a result of an unlawful search or
seizure; that the evidence would have been obtained
even if the unlawful search or seizure had not been
made; that the evidence was obtained by officials who
reasonably and with good faith relied on the issuance
of an authorization to search, seize, or apprehend or a
search warrant or an arrest warrant; that the evidence
was obtained by officials in objectively reasonable
reliance on a statute or on binding precedent later held
violative of the Fourth Amendment; or that the
deterrence of future unlawful searches or seizures is
not appreciable or such deterrence does not outweigh
III-10
the costs to the justice system of excluding the
evidence.
(B) Statement Following Apprehension. In
addition to subdivision (d)(5)(A), a statement obtained
from a person apprehended in a dwelling in violation
of R.C.M. 302(d)(2) and (e), is admissible if the
prosecution shows by a preponderance of the evidence
that the apprehension was based on probable cause, the
statement was made at a location outside the dwelling
subsequent to the apprehension, and the statement was
otherwise in compliance with these rules.
(C) Specific Grounds of Motion or Objection.
When the military judge has required the defense to
make a specific motion or objection under subdivision
(d)(3), the burden on the prosecution extends only to
the grounds upon which the defense moved to suppress
or objected to the evidence.
(6) Defense Evidence. The defense may present
evidence relevant to the admissibility of evidence as to
which there has been an appropriate motion or
objection under this rule. An accused may testify for
the limited purpose of contesting the legality of the
search or seizure giving rise to the challenged
evidence. Prior to the introduction of such testimony
by the accused, the defense must inform the military
judge that the testimony is offered under subdivision
(d). When the accused testifies under subdivision (d),
the accused may be cross-examined only as to the
matter on which he or she testifies. Nothing said by the
accused on either direct or cross-examination may be
used against the accused for any purpose other than in
a prosecution for perjury, false swearing, or the making
of a false official statement.
(7) Rulings. The military judge must rule, prior to
plea, upon any motion to suppress or objection to
evidence made prior to plea unless, for good cause, the
military judge orders that the ruling be deferred for
determination at trial or after findings. The military
judge may not defer ruling if doing so adversely affects
a party’s right to appeal the ruling. The military judge
must state essential findings of fact on the record when
the ruling involves factual issues.
(8) Informing the Members. If a defense motion or
objection under this rule is sustained in whole or in
part, the court-martial members may not be informed
of that fact except when the military judge must
instruct the members to disregard evidence.
(e) Effect of Guilty Plea. Except as otherwise expressly
provided in R.C.M. 910(a)(2), a plea of guilty to an
offense that results in a finding of guilty waives all
issues under the Fourth Amendment to the Constitution
of the United States and Mil. R. Evid. 311-317 with
respect to the offense, whether or not raised prior to
plea.
Rule 312. Body views and intrusions
(a
) General rule. Evidence obtained from body views
and intrusions conducted in accordance with this rule
is admissible at trial when relevant and not otherwise
inadmissible under these rules.
(b) Visual examination of the body.
(1) Consensual Examination. Evidence obtained
from a visual examination of the unclothed body is
admissible if the person consented to the inspection in
accordance with Mil. R. Evid. 314(e).
(2) Involuntary Examination. Evidence obtained
from an involuntary display of the unclothed body,
including a visual examination of body cavities, is
admissible only if the inspection was conducted in a
reasonable fashion and authorized under the following
provisions of the Military Rules of Evidence:
(A) inspections and inventories under Mil. R.
Evid. 313;
(B) searches under Mil. R. Evid. 314(b) and 314(c)
if there is a reasonable suspicion that weapons,
contraband, or evidence of crime is concealed on the
body of the person to be searched;
(C) searches incident to lawful apprehension
under Mil. R. Evid. 314(g);
(D) searches within a jail, confinement facility, or
similar facility under Mil. R. Evid. 314(h) if reasonably
necessary to maintain the security of the institution or
its personnel;
(E) emergency searches under Mil. R. Evid.
314(i); and
(F) probable cause searches under Mil. R. Evid.
315.
Discussion
An examination of the unclothed body under this rule should be
conducted whenever practicable by a person of the same sex as that
of the person being examined; however, failure to comply with this
requirement does not make an examination an unlawful search
within the meaning of Mil. R. Evid. 311.
(c) Intrusion into Body Cavities.
III-11
(1) Mouth, Nose, and Ears. Evidence obtained from
a reasonable nonconsensual physical intrusion into the
mouth, nose, and ears is admissible under the same
standards that apply to a visual examination of the
body under subdivision (b).
(2) Other Body Cavities. Evidence obtained from
nonconsensual intrusions into other body cavities is
admissible only if made in a reasonable fashion by a
person with appropriate medical qualifications and if:
(A) at the time of the intrusion there was probable
cause to believe that a weapon, contraband, or other
evidence of crime was present;
(B) conducted to remove weapons, contraband, or
evidence of crime discovered under subdivisions (b) or
(c)(2)(A) of this rule;
(C) conducted pursuant to Mil. R. Evid.
316(c)(5)(C);
(D) conducted pursuant to a search warrant or
search authorization under Mil. R. Evid. 315; or
(E) conducted pursuant to Mil. R. Evid. 314(h)
based on a reasonable suspicion that the individual is
concealing a weapon, contraband, or evidence of
crime.
(d) Extraction of Body Fluids. Evidence obtained from
nonconsensual extraction of body fluids is admissible
if seized pursuant to a search warrant or a search
authorization under Mil. R. Evid. 315. Evidence
obtained from nonconsensual extraction of body fluids
made without such a warrant or authorization is
admissible, notwithstanding Mil. R. Evid. 315(g), only
when probable cause existed at the time of extraction
to believe that evidence of crime would be found and
that the delay necessary to obtain a search warrant or
search authorization could have resulted in the
destruction of the evidence. Evidence obtained from
nonconsensual extraction of body fluids is admissible
only when executed in a reasonable fashion by a person
with appropriate medical qualifications.
(e) Other Intrusive Searches. Evidence obtained from
a nonconsensual intrusive search of the body, other
than searches described in subdivisions (c) or (d),
conducted to locate or obtain weapons, contraband, or
evidence of crime is admissible only if obtained
pursuant to a search warrant or search authorization
under Mil. R. Evid. 315 and conducted in a reasonable
fashion by a person with appropriate medical
qualifications in such a manner so as not to endanger
the health of the person to be searched.
(f) Intrusions for Valid Medical Purposes. Evidence or
contraband obtained in the course of a medical
examination or an intrusion conducted for a valid
medical purpose is admissible. Such an examination or
intrusion may not, for the purpose of obtaining
evidence or contraband, exceed what is necessary for
the medical purpose.
Discussion
Nothing in this rule will be deemed to interfere with the lawful
authority of the Armed Forces to take whatever action may be
necessary to preserve the health of a service member.
Compelling a person to ingest substances for the purposes of
locating the property described above or to compel the bodily
elimination of such property is a search within the meaning of this
section.
(g) Medical Qualifications. The Secretary concerned
may prescribe appropriate medical qualifications for
persons who conduct searches and seizures under this
rule.
Rule 313. Inspections and inventories in the Armed
Forces
(a) General Rule. Evidence obtained from lawful
inspections and inventories in the Armed Forces is
admissible at trial when relevant and not otherwise
inadmissible under these rules. An unlawful weapon,
contraband, or other evidence of a crime discovered
during a lawful inspection or inventory may be seized
and is admissible in accordance with this rule.
(b) Lawful Inspections. An “inspection” is an
examination of the whole or part of a unit,
organization, installation, vessel, aircraft, or vehicle,
including an examination conducted at entrance and
exit points, conducted as an incident of command the
primary purpose of which is to determine and to ensure
the security, military fitness, or good order and
discipline of the unit, organization, installation, vessel,
aircraft, or vehicle. Inspections must be conducted in a
reasonable fashion and, if applicable, must comply
with Mil. R. Evid. 312. Inspections may utilize any
reasonable natural or technological aid and may be
conducted with or without notice to those inspected.
(1) Purpose of Inspections. An inspection may
include, but is not limited to, an examination to
determine and to ensure that any or all of the following
requirements are met: that the command is properly
equipped, functioning properly, maintaining proper
III-12
standards of readiness, sea or airworthiness, sanitation
and cleanliness; and that personnel are present, fit, and
ready for duty. An order to produce body fluids, such
as urine, is permissible in accordance with this rule.
(2) Searches for Evidence. An examination made for
the primary purpose of obtaining evidence for use in a
trial by court-martial or in other disciplinary
proceedings is not an inspection within the meaning of
this rule.
(3) Examinations to Locate and Confiscate Weapons
or Contraband.
(A) An inspection may include an examination to
locate and confiscate unlawful weapons and other
contraband provided that the criteria set forth in
subdivision (b)(3)(B) are not implicated.
(B) The prosecution must prove by clear and
convincing evidence that the examination was an
inspection within the meaning of this rule if a purpose
of an examination is to locate weapons or contraband,
and if:
(i) the examination was directed immediately
following a report of a specific offense in the unit,
organization, installation, vessel, aircraft, or vehicle
and was not previously scheduled;
(ii) specific individuals are selected for
examination; or
(iii) persons examined are subjected to
substantially different intrusions during the same
examination.
(c) Lawful Inventories. An “inventory” is a reasonable
examination, accounting, or other control measure
used to account for or control property, assets, or other
resources. It is administrative and not prosecutorial in
nature, and if applicable, the inventory must comply
with Mil. R. Evid. 312. An examination made for the
primary purpose of obtaining evidence for use in a trial
by court-martial or in other disciplinary proceedings is
not an inventory within the meaning of this rule.
Rule 314. Searches not requiring probable cause
(a) General Rule. Evidence obtained from reasonable
searches not requiring probable cause is admissible at
trial when relevant and not otherwise inadmissible
under these rules or the Constitution of the United
States as applied to members of the Armed Forces.
(b) Border Searches. Evidence from a border search
for customs or immigration purposes authorized by a
federal statute is admissible.
(c) Searches Upon Entry to or Exit from United States
Installations, Aircraft, and Vessels Abroad. In addition
to inspections under Mil. R. Evid. 313(b), evidence is
admissible when a commander of a United States
military installation, enclave, or aircraft on foreign soil,
or in foreign or international airspace, or a United
States vessel in foreign or international waters, has
authorized appropriate personnel to search persons or
the property of such persons upon entry to or exit from
the installation, enclave, aircraft, or vessel to ensure the
security, military fitness, or good order and discipline
of the command. A search made for the primary
purpose of obtaining evidence for use in a trial by
court-martial or other disciplinary proceeding is not
authorized by subdivision (c).
Discussion
Searches under subdivision (c) may not be conducted at a time or in
a manner contrary to an express provision of a treaty or agreement
to which the United States is a party; however, failure to comply with
a treaty or agreement does not render a search unlawful within the
meaning of Mil. R. Evid. 311.
(d) Searches of Government Property. Evidence
resulting from a search of government property
without probable cause is admissible under this rule
unless the person to whom the property is issued or
assigned has a reasonable expectation of privacy
therein at the time of the search. Normally a person
does not have a reasonable expectation of privacy in
government property that is not issued for personal use.
Wall or floor lockers in living quarters issued for the
purpose of storing personal possessions normally are
issued for personal use, but the determination as to
whether a person has a reasonable expectation of
privacy in government property issued for personal use
depends on the facts and circumstances at the time of
the search.
(e) Consent Searches.
(1) General Rule. Evidence of a search conducted
without probable cause is admissible if conducted
with lawful consent.
(2) Who May Consent. A person may consent to a
search of his or her person or property, or both, unless
control over such property has been given to another.
A person may grant consent to search property when
the person exercises control over that property.
III-13
Discussion
Where a co-occupant of property is physically present at the time of
the requested search and expressly states his refusal to consent to the
search, a warrantless search is unreasonable as to that co-occupant
and evidence from the search is inadmissible as to that co-occupant.
Georgia v. Randolph, 547 U.S. 103 (2006).
(3) Scope of Consent. Consent may be limited in any
way by the person granting consent, including
limitations in terms of time, place, or property, and
may be withdrawn at any time.
(4) Voluntariness. To be valid, consent must be
given voluntarily. Voluntariness is a question to be
determined from all the circumstances. Although a
person’s knowledge of the right to refuse to give
consent is a factor to be considered in determining
voluntariness, the prosecution is not required to
demonstrate such knowledge as a prerequisite to
establishing a voluntary consent. Mere submission to
the color of authority of personnel performing law
enforcement duties or acquiescence in an announced or
indicated purpose to search is not a voluntary consent.
(5) Burden and Standard of Proof. The prosecution
must prove consent by clear and convincing evidence.
The fact that a person was in custody while granting
consent is a factor to be considered in determining the
voluntariness of consent, but it does not affect the
standard of proof.
(f) Searches Incident to a Lawful Stop.
(1) Lawfulness. A stop is lawful when conducted by
a person authorized to apprehend under R.C.M. 302(b)
or others performing law enforcement duties and when
the person making the stop has information or observes
unusual conduct that leads him or her reasonably to
conclude in light of his or her experience that criminal
activity may be afoot. The stop must be temporary and
investigatory in nature.
(2) Stop and Frisk. Evidence is admissible if seized
from a person who was lawfully stopped and who was
frisked for weapons because he or she was reasonably
suspected to be armed and dangerous. Contraband or
evidence that is located in the process of a lawful frisk
may be seized.
Discussion
Mil. R. Evid. 314(f)(2) requires that the official making the stop have
a reasonable suspicion based on specific and articulable facts that the
person being frisked is armed and dangerous. Officer safety is a
factor, and the officer need not be absolutely certain that the
individual detained is armed for the purposes of frisking or patting
down that person’s outer clothing for weapons. The test is whether a
reasonably prudent person in similar circumstances would be
warranted in a belief that his or her safety was in danger. The purpose
of a frisk is to search for weapons or other dangerous items, including
but not limited to: firearms, knives, needles, or razor blades. A
limited search of outer clothing for weapons serves to protect both
the officer and the public; therefore, a frisk is reasonable under the
Fourth Amendment.
(3) Vehicles. Evidence is admissible if seized in the
course of a search for weapons in the areas of the
passenger compartment of a vehicle in which a weapon
may be placed or hidden, so long as the person lawfully
stopped is the driver or a passenger and the official who
made the stop has a reasonable suspicion that the
person stopped is dangerous and may gain immediate
control of a weapon.
Discussion
The scope of the search is similar to the “stop and frisk” defined in
Mil. R. Evid. 314(f)(2). During the search for weapons, the official
may seize any item that is immediately apparent as contraband or as
evidence related to the offense serving as the basis for the stop. As a
matter of safety, the official may, after conducting a lawful stop of a
vehicle, order the driver and any passengers out of the car without
any additional suspicion or justification
.
(g) Searches Incident to Apprehension.
(1) General Rule. Evidence is admissible if seized in
a search of a person who has been lawfully
apprehended or if seized as a result of a reasonable
protective sweep.
(2) Search for Weapons and Destructible Evidence.
A lawful search incident to apprehension may include
a search for weapons or destructible evidence in the
area within the immediate control of a person who has
been apprehended. “Immediate control” means that
area in which the individual searching could
reasonably believe that the person apprehended could
reach with a sudden movement to obtain such property.
Discussion
The scope of the search for weapons is limited to that which is
necessary to protect the arresting official. The official may not search
a vehicle for weapons if there is no possibility that the arrestee could
reach into the searched area, for example, after the arrestee is
handcuffed and removed from the vehicle. The scope of the search
is broader for destructible evidence related to the offense for which
the individual is being arrested. Unlike a search for weapons, the
search for destructible offense-related evidence may take place after
the arrestee is handcuffed and removed from a vehicle. If, however,
III-14
the official cannot expect to find destructible offense-related
evidence, this exception does not apply.
(3) Protective Sweep for Other Persons.
(A) Area of Potential Immediate Attack.
Apprehending officials may, incident to apprehension,
as a precautionary matter and without probable cause
or reasonable suspicion, look in closets and other
spaces immediately adjoining the place of
apprehension from which an attack could be
immediately launched.
(B) Wider Protective Sweep. When an
apprehension takes place at a location in which another
person might be present who might endanger the
apprehending officials or others in the area of the
apprehension, a search incident to arrest may lawfully
include a reasonable examination of those spaces
where a person might be found. Such a reasonable
examination is lawful under subdivision (g) if the
apprehending official has a reasonable suspicion based
on specific and articulable facts that the area to be
examined harbors an individual posing a danger to
those in the area of the apprehension.
(h) Searches within Jails, Confinement Facilities, or
Similar Facilities. Evidence obtained from a search
within a jail, confinement facility, or similar facility is
admissible even if conducted without probable cause
provided that it was authorized by persons with
authority over the institution.
(i) Emergency Searches to Save Life or for Related
Purposes. Evidence obtained from emergency
searches of persons or property conducted to save life,
or for a related purpose, is admissible provided that the
search was conducted in a good faith effort to render
immediate medical aid, to obtain information that will
assist in the rendering of such aid, or to prevent
immediate or ongoing personal injury.
(j) Searches of Open Fields or Woodlands. Evidence
obtained from a search of an open field or woodland is
admissible provided that the search was not unlawful
within the meaning of Mil. R. Evid. 311.
Rule 315. Probable cause searches
(a) General rule. Evidence obtained from reasonable
searches conducted pursuant to a search warrant or
search authorization, or under the exigent
circumstances described in this rule, is admissible at
trial when relevant and not otherwise inadmissible
under these rules or the Constitution of the United
States as applied to members of the Armed Forces.
(b) Definitions. As used in these rules:
(1) “Search authorization” means express
permission, written or oral, issued by competent
military authority to search a person or an area for
specified property or evidence or for a specific person
and to seize such property, evidence, or person. It may
contain an order directing subordinate personnel to
conduct a search in a specified manner.
(2) “Search warrant” means express permission to
search and seize issued by competent civilian authority
or under R.C.M. 703A.
(3) “Warrant for wire or electronic communications”
means a warrant issued by a military judge pursuant to
18 U.S.C. §§ 2703(a), (b)(1)(A), or (c)(1)(A) in
accordance with 10 U.S.C. § 846(d)(3) and R.C.M.
309(b)(2) and R.C.M. 703A.
(c) Scope of Search Authorization. A search
authorization may be valid under this rule for a search
of:
(1) the physical person of anyone subject to military
law or the law of war wherever found;
(2) military property of the United States or of
nonappropriated fund activities of an Armed force of
the United States wherever located;
(3) persons or property situated on or in a military
installation, encampment, vessel, aircraft, vehicle, or
any other location under military control, wherever
located; or
(4) nonmilitary property within a foreign country.
Discussion
If nonmilitary property within a foreign country is owned, used,
occupied by, or in the possession of an agency of the United States
other than the Department of Defense, a search should be conducted
in coordination with an appropriate representative of the agency
concerned, although failure to obtain such coordination would not
render a search unlawful within the meaning of Mil. R. Evid. 311. If
other nonmilitary property within a foreign country is to be searched,
the search should be conducted in accordance with any relevant
treaty or agreement or in coordination with an appropriate
representative of the foreign country, although failure to obtain such
coordination or noncompliance with a treaty or agreement would not
render a search unlawful within the meaning of Mil. R. Evid. 311.
(d) Who May Authorize. A search authorization under
this rule is valid only if issued by an impartial
individual in one of the categories set forth in
III-15
paragraphs (d)(1), (d)(2), and (d)(3) of this rule. Only
a military judge may issue a warrant for wire or
electronic communications under this rule. An
otherwise impartial authorizing official does not lose
impartiality merely because the official is present at the
scene of a search or is otherwise readily available to
persons who may seek the issuance of a search
authorization; nor does such an official lose impartial
character merely because the official previously and
impartially authorized investigative activities when
such previous authorization is similar in intent or
function to a pretrial authorization made by the United
States district courts.
(1) Commander. A commander or other person
serving in a position designated by the Secretary
concerned as either a position analogous to an officer
in charge or a position of command, who has control
over the place where the property or person to be
searched is situated or found, or, if that place is not
under military control, having control over persons
subject to military law or the law of war;
(2) Military Judge or Magistrate. A military judge
or magistrate if authorized under regulations
prescribed by the Secretary of Defense or the Secretary
concerned; or
(3) Other competent search authority. A competent,
impartial official as designated under regulations by
the Secretary of Defense or the Secretary concerned as
an individual authorized to issue search authorizations
under this rule.
(e) Who May Search.
(1) Search Authorization. Any commissioned
officer, warrant officer, petty officer,
noncommissioned officer, and, when in the execution
of guard or police duties, any criminal investigator,
member of the Air Force security forces, military
police, or shore patrol, or person designated by proper
authority to perform guard or police duties, or any
agent of any such person, may conduct or authorize a
search when a search authorization has been granted
under this rule or a search would otherwise be proper
under subdivision (g).
(2) Search Warrants. Any civilian or military
criminal investigator authorized to request search
warrants pursuant to applicable law or regulation is
authorized to serve and execute search warrants. The
execution of a search warrant affects admissibility only
insofar as exclusion of evidence is required by the
Constitution of the United States or an applicable
federal statute.
(f) Basis for Search Authorizations.
(1) Probable Cause Requirement. A search
authorization issued under this rule must be based upon
probable cause.
(2) Probable Cause Determination. Probable cause
to search exists when there is a reasonable belief that
the person, property, or evidence sought is located in
the place or on the person to be searched. A search
authorization may be based upon hearsay evidence in
whole or in part. A determination of probable cause
under this rule will be based upon any or all of the
following:
(A) written statements communicated to the
authorizing official;
(B) oral statements communicated to the
authorizing official in person, via telephone, or by
other appropriate means of communication; or
(C) such information as may be known by the
authorizing official that would not preclude the officer
from acting in an impartial fashion. The Secretary of
Defense or the Secretary concerned may prescribe
additional requirements through regulation.
(g) Exigencies. Evidence obtained from a probable
cause search is admissible without a search warrant or
search authorization when there is a reasonable belief
that the delay necessary to obtain a search warrant or
search authorization would result in the removal,
destruction, or concealment of the property or evidence
sought. Military operational necessity may create an
exigency by prohibiting or preventing communication
with a person empowered to grant a search
authorization.
Rule 316. Seizures
(a) General rule. Evidence obtained from reasonable
seizures is admissible at trial when relevant and not
otherwise inadmissible under these rules or the
Constitution of the United States as applied to
members of the Armed Forces.
(b) Apprehension. Apprehension is governed by
R.C.M. 302.
(c) Seizure of Property or Evidence.
(1) Based on Probable Cause. Evidence is admissible
when seized based on a reasonable belief that the
property or evidence is an unlawful weapon,
contraband, evidence of crime, or might be used to
resist apprehension or to escape.
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(2) Abandoned Property. Abandoned property may
be seized without probable cause and without a search
warrant or search authorization. Such seizure may be
made by any person.
(3) Consent. Property or evidence may be seized
with consent consistent with the requirements
applicable to consensual searches under Mil. R. Evid.
314.
(4) Government Property. Government property
may be seized without probable cause and without a
search warrant or search authorization by any person
listed in subdivision (d), unless the person to whom the
property is issued or assigned has a reasonable
expectation of privacy therein, as provided in Mil. R.
Evid. 314(d), at the time of the seizure.
(5) Other Property. Property or evidence not
included in subdivisions (c)(1)-(4) may be seized for
use in evidence by any person listed in subdivision (d)
if:
(A) Authorization. The person is authorized to
seize the property or evidence by a search warrant or a
search authorization under Mil. R. Evid. 315;
(B) Exigent Circumstances. The person has
probable cause to seize the property or evidence and
under Mil. R. Evid. 315(g) a search warrant or search
authorization is not required; or
(C) Plain View. The person while in the course of
otherwise lawful activity observes in a reasonable
fashion property or evidence that the person has
probable cause to seize.
(6) Temporary Detention. Nothing in this rule
prohibits temporary detention of property on less than
probable cause when authorized under the Constitution
of the United States.
(d) Who May Seize. Any commissioned officer,
warrant officer, petty officer, noncommissioned
officer, and, when in the execution of guard or police
duties, any criminal investigator, member of the Air
Force security forces, military police, or shore patrol,
or individual designated by proper authority to perform
guard or police duties, or any agent of any such person,
may seize property pursuant to this rule.
(e) Other Seizures. Evidence obtained from a seizure
not addressed in this rule is admissible provided that its
seizure was permissible under the Constitution of the
United States as applied to members of the Armed
Forces.
Rule 317. Interception of wire and oral
communications
(a) General rule. Wire or oral communications
constitute evidence obtained as a result of an unlawful
search or seizure within the meaning of Mil. R. Evid.
311 when such evidence must be excluded under the
Fourth Amendment to the Constitution of the United
States as applied to members of the Armed Forces or if
such evidence must be excluded under a federal statute
applicable to members of the Armed Forces.
(b) When Authorized by Court Order. Evidence from
the interception of wire or oral communications is
admissible when authorized pursuant to an application
to a federal judge of competent jurisdiction under the
provisions of a federal statute.
Discussion
Pursuant to 18 U.S.C. § 2516(1), the Attorney General, Deputy
Attorney General, Associate Attorney General, or any Assistant
Attorney General, any acting Assistant Attorney General, or any
Deputy Assistant Attorney General or acting Deputy Assistant
Attorney General in the Criminal Division or National Security
Division specially designated by the Attorney General, may
authorize an application to a Federal judge of competent jurisdiction
for, and such judge may grant in conformity with 18 U.S.C. § 2518,
an order authorizing or approving the interception of wire or oral
communications by the Federal Bureau of Investigation, or a Federal
agency having responsibility for the investigation of the offense as
to which the application is made, for purposes of obtaining evidence
concerning the offenses enumerated in 18 U.S.C. § 2516(1), to the
extent such offenses are punishable under the Uniform Code of
Military Justice
.
(c) Regulations. Notwithstanding any other provision
of these rules, evidence obtained by members of the
Armed Forces or their agents through interception of
wire or oral communications for law enforcement
purposes is not admissible unless such interception:
(1) takes place in the United States and is authorized
under subdivision (b);
(2) takes place outside the United States and is
authorized under regulations issued by the Secretary of
Defense or the Secretary concerned; or
(3) is authorized under regulations issued by the
Secretary of Defense or the Secretary concerned and is
not unlawful under applicable federal statutes.
Rule 321. Eyewitness identification
(a) General rule. Testimony concerning a relevant out-
of-court identification by any person is admissible,
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subject to an appropriate objection under this rule, if
such testimony is otherwise admissible under these
rules. The witness making the identification and any
person who has observed the previous identification
may testify concerning it. When in testimony a witness
identifies the accused as being, or not being, a
participant in an offense or makes any other relevant
identification concerning a person in the courtroom,
evidence that on a previous occasion the witness made
a similar identification is admissible to corroborate the
witness’ testimony as to identity even if the credibility
of the witness has not been attacked directly, subject to
appropriate objection under this rule.
(b) When Inadmissible. An identification of the
accused as being a participant in an offense, whether
such identification is made at the trial or otherwise, is
inadmissible against the accused if:
(1) The identification is the result of an unlawful
lineup or other unlawful identification process, as
defined in subdivision (c), conducted by the United
States or other domestic authorities and the accused
makes a timely motion to suppress or an objection to
the evidence under this rule; or
(2) Exclusion of the evidence is required by the Due
Process Clause of the Fifth Amendment to the
Constitution of the United States as applied to
members of the Armed Forces. Evidence other than an
identification of the accused that is obtained as a result
of the unlawful lineup or unlawful identification
process is inadmissible against the accused if the
accused makes a timely motion to suppress or an
objection to the evidence under this rule and if
exclusion of the evidence is required under the
Constitution of the United States as applied to
members of the Armed Forces.
(c) Unlawful Lineup or Identification Process.
(1) Unreliable. A lineup or other identification
process is unreliable, and therefore unlawful, if the
lineup or other identification process is so suggestive
as to create a substantial likelihood of
misidentification.
(2) In Violation of Right to Counsel. A lineup is
unlawful if it is conducted in violation of the accused’s
rights to counsel.
(A) Military Lineups. An accused or suspect is
entitled to counsel if, after preferral of charges or
imposition of pretrial restraint under R.C.M. 304 for
the offense under investigation, the accused is required
by persons subject to the code or their agents to
participate in a lineup for the purpose of identification.
When a person entitled to counsel under this rule
requests counsel, a judge advocate or a person certified
in accordance with Article 27(b) will be provided by
the United States at no expense to the accused or
suspect and without regard to indigency or lack thereof
before the lineup may proceed. The accused or suspect
may waive the rights provided in this rule if the waiver
is freely, knowingly, and intelligently made.
(B) Nonmilitary Lineups. When a person subject
to the code is required to participate in a lineup for
purposes of identification by an official or agent of the
United States, of the District of Columbia, or of a State,
Commonwealth, or possession of the United States, or
any political subdivision of such a State,
Commonwealth, or possession, and the provisions of
subdivision (c)(2)(A) do not apply, the person’s
entitlement to counsel and the validity of any waiver of
applicable rights will be determined by the principles
of law generally recognized in the trial of criminal
cases in the United States district courts involving
similar lineups.
(d) Motions to Suppress and Objections.
(1) Disclosure. Prior to arraignment, the prosecution
must disclose to the defense all evidence of, or derived
from, a prior identification of the accused as a lineup
or other identification process that it intends to offer
into evidence against the accused at trial.
(2) Time Requirement. When such evidence has been
disclosed, any motion to suppress or objection under
this rule must be made by the defense prior to
submission of a plea. In the absence of such motion or
objection, the defense may not raise the issue at a later
time except as permitted by the military judge for good
cause shown. Failure to so move constitutes a waiver
of the motion or objection.
(3) Continuing Duty. If the prosecution intends to
offer such evidence and the evidence was not disclosed
prior to arraignment, the prosecution must provide
timely notice to the military judge and counsel for the
accused. The defense may enter an objection at that
time, and the military judge may make such orders as
are required in the interests of justice.
(4) Specificity. The military judge may require the
defense to specify the grounds upon which the defense
moves to suppress or object to evidence. If defense
counsel, despite the exercise of due diligence, has been
unable to interview adequately those persons involved
in the lineup or other identification process, the
military judge may enter any order required by the
interests of justice, including authorization for the
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defense to make a general motion to suppress or a
general objection.
(5) Defense Evidence. The defense may present
evidence relevant to the issue of the admissibility of
evidence as to which there has been an appropriate
motion or objection under this rule. An accused may
testify for the limited purpose of contesting the legality
of the lineup or identification process giving rise to the
challenged evidence. Prior to the introduction of such
testimony by the accused, the defense must inform the
military judge that the testimony is offered under
subdivision (d). When the accused testifies under
subdivision (d), the accused may be cross-examined
only as to the matter on which he or she testifies.
Nothing said by the accused on either direct or cross-
examination may be used against the accused for any
purpose other than in a prosecution for perjury, false
swearing, or the making of a false official statement.
(6) Burden and Standard of Proof. When the defense
has raised a specific motion or objection under
subdivision (d)(3), the burden on the prosecution
extends only to the grounds upon which the defense
moved to suppress or object to the evidence.
(A) Right to Counsel.
(i) Initial Violation of Right to Counsel at a
Lineup. When the accused raises the right to presence
of counsel under this rule, the prosecution must prove
by a preponderance of the evidence that counsel was
present at the lineup or that the accused, having been
advised of the right to the presence of counsel,
voluntarily and intelligently waived that right prior to
the lineup.
(ii) Identification Subsequent to a Lineup
Conducted in Violation of the Right to Counsel. When
the military judge determines that an identification is
the result of a lineup conducted without the presence
of counsel or an appropriate waiver, any later
identification by one present at such unlawful lineup is
also a result thereof unless the military judge
determines that the contrary has been shown by clear
and convincing evidence.
(B) Unreliable Identification.
(i) Initial Unreliable Identification. When an
objection raises the issue of an unreliable
identification, the prosecution must prove by a
preponderance of the evidence that the identification
was reliable under the circumstances.
(ii) Identification Subsequent to an Unreliable
Identification. When the military judge determines that
an identification is the result of an unreliable
identification, a later identification may be admitted if
the prosecution proves by clear and convincing
evidence that the later identification is not the result of
the inadmissible identification.
(7) Rulings. A motion to suppress or an objection to
evidence made prior to plea under this rule will be
ruled upon prior to plea unless the military judge, for
good cause, orders that it be deferred for determination
at the trial of the general issue or until after findings,
but no such determination will be deferred if a party’s
right to appeal the ruling is affected adversely. Where
factual issues are involved in ruling upon such motion
or objection, the military judge will state his or her
essential findings of fact on the record.
(e) Effect of Guilty Pleas. Except as otherwise
expressly provided in R.C.M. 910(a)(2), a plea of
guilty to an offense that results in a finding of guilty
waives all issues under this rule with respect to that
offense whether or not raised prior to the plea.
SECTION IV
RELEVANCY AND ITS LIMITS
Rule 401. Test for relevant evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Rule 402. General admissibility of relevant evidence
(a) Relevant evidence is admissible unless any of the
following provides otherwise:
(1) the United States Constitution as it applies to
members of the Armed Forces;
(2) a federal statute applicable to trial by courts-
martial;
(3) these rules; or
(4) this Manual.
(b) Irrelevant evidence is not admissible.
Rule 403. Excluding relevant evidence for
prejudice, confusion, waste of time, or other
reasons
The military judge may exclude relevant evidence if its
probative value is substantially outweighed by a
III-19
danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the
members, undue delay, wasting time, or needlessly
presenting cumulative evidence.
Rule 404. Character evidence, crimes or other acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person’s
character or character trait is not admissible to prove
that on a particular occasion the person acted in
accordance with the character or trait.
(2) Exceptions for an Accused or Victim.
(A) The accused may offer evidence of the
accused’s pertinent trait and, if the evidence is
admitted, the prosecution may offer evidence to rebut
it. General military character is not a pertinent trait for
the purposes of showing the probability of innocence
of the accused for the following offenses under the
UCMJ:
(i) Article 105;
(ii) Articles 120-122;
(iii) Articles 123a-124;
(iv) Articles 126-127;
(v) Articles 129-131;
(vi) Any other offense in which evidence of
general military character of the accused is not relevant
to any element of an offense for which the accused has
been charged; or
(vii) An attempt or conspiracy to commit one of
the above offenses.
(B) Subject to the limitations in Mil. R. Evid. 412,
the accused may offer evidence of an alleged victim’s
pertinent trait, and if the evidence is admitted, the
prosecution may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the accused’s same trait;
and
(C) in a homicide or assault case, the prosecution
may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the
first aggressor.
(3) Exceptions for a Witness. Evidence of a witness’
character may be admitted under Mil R. Evid. 607,
608, and 609.
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime,
wrong, or act is not admissible to prove a person’s
character in order to show that on a particular occasion
the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be
admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of
accident.
(3) Notice in a Criminal Case. In a criminal case, the
trial counsel must:
(A) provide reasonable notice of any such
evidence that the trial counsel intends to offer at trial,
so the accused has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose
for which the trial counsel intends to offer the evidence
and the reasoning that supports the purpose; and
(C) do so in writing before trial—or in any form
during trial if the court, for good cause, excuses lack of
pretrial notice.
Rule 405. Methods of proving character
(a) By Reputation or Opinion. When evidence of a
person’s character or character trait is admissible, it
may be proved by testimony about the person’s
reputation or by testimony in the form of an opinion.
On cross-examination of the character witness, the
military judge may allow an inquiry into relevant
specific instances of the person’s conduct.
(b) By Specific Instances of Conduct. When a person’s
character or character trait is an essential element of a
charge, claim, or defense, the character or trait may
also be proved by relevant specific instances of the
person’s conduct.
(c) By Affidavit. The defense may introduce affidavits
or other written statements of persons other than the
accused concerning the character of the accused. If the
defense introduces affidavits or other written
statements under this subdivision, the prosecution
may, in rebuttal, also introduce affidavits or other
written statements regarding the character of the
accused. Evidence of this type may be introduced by
the defense or prosecution only if, aside from being
contained in an affidavit or other written statement, it
would otherwise be admissible under these rules.
(d) Definitions. “Reputation” means the estimation in
which a person generally is held in the community in
which the person lives or pursues a business or
profession. “Community” in the Armed Forces
III-20
includes a post, camp, ship, station, or other military
organization regardless of size.
Rule 406. Habit; routine practice
Evidence of a person’s habit or an organization’s
routine practice may be admitted to prove that on a
particular occasion the person or organization acted in
accordance with the habit or routine practice. The
military judge may admit this evidence regardless of
whether it is corroborated or whether there was an
eyewitness.
Rule 407. Subsequent remedial measures
(a) When measures are taken that would have made an
earlier injury or harm less likely to occur, evidence of
the subsequent measures is not admissible to prove:
(1) negligence;
(2) culpable conduct;
(3) a defect in a product or its design; or
(4) a need for a warning or instruction.
(b) The military judge may admit this evidence for
another purpose, such as impeachment or—if
disputed—proving ownership, control, or the
feasibility of precautionary measures.
Rule 408. Compromise offers and negotiations
(a) Prohibited Uses. Evidence of the following is not
admissible—on behalf of any party—either to prove or
disprove the validity or amount of a disputed claim or
to impeach by a prior inconsistent statement or a
contradiction:
(1) furnishing, promising, or offering—or accepting,
promising to accept, or offering to accept—a valuable
consideration in order to compromise the claim; and
(2) conduct or a statement made during compromise
negotiations about the claim - except when the
negotiations related to a claim by a public office in the
exercise of its regulatory, investigative, or enforcement
authority.
(b) Exceptions. The military judge may admit this
evidence for another purpose, such as proving witness
bias or prejudice, negating a contention of undue delay,
or proving an effort to obstruct a criminal investigation
or prosecution.
Rule 409. Offers to pay medical and similar
expenses
Evidence of furnishing, promising to pay, or offering
to pay medical, hospital, or similar expenses resulting
from an injury is not admissible to prove liability for
the injury.
Rule 410. Pleas, plea discussions, and related
statements
(a) Prohibited Uses. Evidence of the following is not
admissible against the accused who made the plea or
participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) any statement made in the course of any judicial
inquiry regarding either of the foregoing pleas; or
(4) any statement made during plea discussions with
the convening authority, staff judge advocate, trial
counsel or other counsel for the government if the
discussions did not result in a guilty plea or they
resulted in a later-withdrawn guilty plea.
(b) Exceptions. The military judge may admit a
statement described in subdivision (a)(3) or (a)(4):
(1) when another statement made during the same
plea or plea discussions has been introduced, if in
fairness the statements ought to be considered together;
or
(2) in a proceeding for perjury or false statement, if
the accused made the statement under oath, on the
record, and with counsel present.
(c) Request for Administrative Disposition. A
“statement made during plea discussions” includes a
statement made by the accused solely for the purpose
of requesting disposition under an authorized
procedure for administrative action in lieu of trial by
court-martial; “on the record” includes the written
statement submitted by the accused in furtherance of
such request.
Rule 411. Liability insurance
Evidence that a person was or was not insured against
liability is not admissible to prove whether the person
acted negligently or otherwise wrongfully. The
military judge may admit this evidence for another
purpose, such as proving witness bias or prejudice or
proving agency, ownership, or control.
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Rule 412. Sex offense cases: The victim’s sexual
behavior or predisposition
(a) Evidence generally inadmissible. The following
evidence is not admissible in any proceeding involving
an alleged sexual offense except as provided in
subdivisions (b) and (c):
(1) Evidence offered to prove that a victim engaged
in other sexual behavior; or
(2) Evidence offered to prove a victim’s sexual
predisposition.
(b) Exceptions. In a proceeding, the following evidence
is admissible, if otherwise admissible under these
rules:
(1) evidence of specific instances of a victim’s
sexual behavior, if offered to prove that someone other
than the accused was the source of semen, injury, or
other physical evidence;
(2) evidence of specific instances of a victim’s
sexual behavior with respect to the person accused of
the sexual misconduct, if offered by the accused to
prove consent or if offered by the prosecution; and
(3) evidence the exclusion of which would violate
the accused’s constitutional rights.
(c) Procedure to determine admissibility.
(1) A party intending to offer evidence under
subdivision (b) must—
(A) file a written motion at least 5 days prior to
entry of pleas specifically describing the evidence and
stating the purpose for which it is offered unless the
military judge, for good cause shown, requires a
different time for filing or permits filing during trial;
and
(B) serve the motion on the opposing party and the
military judge and notify the victim or, when
appropriate, the victim’s guardian or representative.
(2) Before admitting evidence under this rule, the
military judge must conduct a hearing, which shall be
closed. At this hearing, the parties may call witnesses,
including the victim, and offer relevant evidence. The
victim must be afforded a reasonable opportunity to
attend and be heard. However, the hearing may not be
unduly delayed for this purpose. The right to be heard
under this rule includes the right to be heard through
counsel, including Special Victims’ Counsel under
section 1044e of title 10, United States Code. In a case
before a court-martial composed of a military judge
and members, the military judge shall conduct the
hearing outside the presence of the members pursuant
to Article 39(a). The motion, related papers, and the
record of the hearing must be sealed in accordance with
R.C.M. 1113 and remain under seal unless the military
judge, the Judge Advocate General, or an appellate
court orders otherwise.
(3) If the military judge determines on the basis of
the hearing described in paragraph (2) of this
subdivision that the evidence that the accused seeks to
offer is relevant for a purpose under subdivision (b)(1)
or (2) of this rule and that the probative value of such
evidence outweighs the danger of unfair prejudice to
the victim’s privacy, or that the evidence is described
by subdivision (b)(3) of this rule, such evidence shall
be admissible under this rule to the extent an order
made by the military judge specifies evidence that may
be offered and areas with respect to which the victim
may be examined or cross-examined. Any evidence
introduced under this rule is subject to challenge under
Mil. R. Evid. 403.
(d) Definitions. For purposes of this rule, the term
“sexual offense” includes any sexual misconduct
punishable under the Uniform Code of Military
Justice, federal law or state law. “Sexual behavior”
includes any sexual behavior not encompassed by the
alleged offense. The term “sexual predisposition”
refers to a victim’s mode of dress, speech, or lifestyle
that does not directly refer to sexual activities or
thoughts but that may have a sexual connotation for the
fact finder. For purposes of this rule, the term “victim”
includes an alleged victim.
Rule 413. Similar crimes in sexual offense cases
(a) Permitted Uses. In a court-martial proceeding for a
sexual offense, the military judge may admit evidence
that the accused committed any other sexual offense.
The evidence may be considered on any matter to
which it is relevant.
(b) Disclosure to the Accused. If the prosecution
intends to offer this evidence, the prosecution must
disclose it to the accused, including any witnesses’
statements or a summary of the expected testimony.
The prosecution must do so at least 5 days prior to
entry of pleas or at a later time that the military judge
allows for good cause.
(c) Effect on Other Rules. This rule does not limit the
admission or consideration of evidence under any other
rule.
(d) Definition. As used in this rule, “sexual offense”
means an offense punishable under the Uniform Code
III-22
of Military Justice, or a crime under federal or state law
(as “state” is defined in 18 U.S.C. § 513), involving:
(1) any conduct prohibited by Article 120;
(2) any conduct prohibited by 18 U.S.C. chapter
109A;
(3) contact, without consent, between any part of the
accused’s body, or an object held or controlled by the
accused, and another person’s genitals or anus;
(4) contact, without consent, between the accused’s
genitals or anus and any part of another person’s body;
(5) contact with the aim of deriving sexual pleasure
or gratification from inflicting death, bodily injury, or
physical pain on another person; or
(6) an attempt or conspiracy to engage in conduct
described in subdivisions (d)(1)-(5).
Rule 414. Similar crimes in child-molestation cases
(a) Permitted Uses. In a court-martial proceeding in
which an accused is charged with an act of child
molestation, the military judge may admit evidence
that the accused committed any other offense of child
molestation. The evidence may be considered on any
matter to which it is relevant.
(b) Disclosure to the Accused. If the prosecution
intends to offer this evidence, the prosecution must
disclose it to the accused, including witnesses’
statements or a summary of the expected testimony.
The prosecution must do so at least 5 days prior to
entry of pleas or at a later time that the military judge
allows for good cause.
(c) Effect on Other Rules. This rule does not limit the
admission or consideration of evidence under any other
rule.
(d) Definitions. As used in this rule:
(1) “Child” means a person below the age of 16; and
(2) “Child molestation” means an offense punishable
under the Uniform Code of Military Justice, or a crime
under federal law or under state law (as “state” is
defined in 18 U.S.C. § 513), that involves:
(A) any conduct prohibited by Article 120 and
committed with a child, or prohibited by Article 120b.
(B) any conduct prohibited by 18 U.S.C. chapter
109A and committed with a child;
(C) any conduct prohibited by 18 U.S.C. chapter
110;
(D) contact between any part of the accused’s
body, or an object held or controlled by the accused,
and a child’s genitals or anus;
(E) contact between the accused’s genitals or anus
and any part of a child’s body;
(F) contact with the aim of deriving sexual
pleasure or gratification from inflicting death, bodily
injury, or physical pain on a child; or
(G) an attempt or conspiracy to engage in conduct
described in subdivisions (d)(2)(A)-(F).
SECTION V
PRIVILEGES
Rule 501. Privilege in general
(a) A person may not claim a privilege with respect to
any matter except as required by or provided for in:
(1) the United States Constitution as applied to
members of the Armed Forces;
(2) a federal statute applicable to trials by courts-
martial;
(3) these rules;
(4) this Manual; or
(5) the principles of common law generally
recognized in the trial of criminal cases in the United
States district courts under rule 501 of the Federal
Rules of Evidence, insofar as the application of such
principles in trials by courts-martial is practicable and
not contrary to or inconsistent with the Uniform Code
of Military Justice, these rules, or this Manual.
(b) A claim of privilege includes, but is not limited to,
the assertion by any person of a privilege to:
(1) refuse to be a witness;
(2) refuse to disclose any matter;
(3) refuse to produce any object or writing; or
(4) prevent another from being a witness or
disclosing any matter or producing any object or
writing.
(c) The term “person” includes an appropriate
representative of the Federal Government, a State, or
political subdivision thereof, or any other entity
claiming to be the holder of a privilege.
(d) Notwithstanding any other provision of these rules,
information not otherwise privileged does not become
privileged on the basis that it was acquired by a
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medical officer or civilian physician in a professional
capacity.
Rule 502. Lawyer-client privilege
(a) General Rule. A client has a privilege to refuse to
disclose and to prevent any other person from
disclosing confidential communications made for the
purpose of facilitating the rendition of professional
legal services to the client:
(1) between the client or the client’s representative
and the lawyer or the lawyer’s representative;
(2) between the lawyer and the lawyer’s
representative;
(3) by the client or the client’s lawyer to a lawyer
representing another in a matter of common interest;
(4) between representatives of the client or between
the client and a representative of the client; or
(5) between lawyers representing the client.
(b) Definitions. As used in this rule:
(1) “Client” means a person, public officer,
corporation, association, organization, or other entity,
either public or private, who receives professional legal
services from a lawyer, or who consults a lawyer with
a view to obtaining professional legal services from the
lawyer.
(2) “Lawyer” means a person authorized, or
reasonably believed by the client to be authorized, to
practice law; or a member of the Armed Forces
detailed, assigned, or otherwise provided to represent a
person in a court-martial case or in any military
investigation or proceeding. The term “lawyer” does
not include a member of the Armed Forces serving in
a capacity other than as a judge advocate, legal officer,
or law specialist as defined in Article 1, unless the
member:
(A) is detailed, assigned, or otherwise provided to
represent a person in a court-martial case or in any
military investigation or proceeding;
(B) is authorized by the Armed Forces, or
reasonably believed by the client to be authorized, to
render professional legal services to members of the
Armed Forces; or
(C) is authorized to practice law and renders
professional legal services during off-duty
employment.
(3) “Lawyer’s representative” means a person
employed by or assigned to assist a lawyer in providing
professional legal services.
(4) A communication is “confidential” if not
intended to be disclosed to third persons other than
those to whom disclosure is in furtherance of the
rendition of professional legal services to the client or
those reasonably necessary for the transmission of the
communication.
(c) Who May Claim the Privilege. The privilege may
be claimed by the client, the guardian or conservator of
the client, the personal representative of a deceased
client, or the successor, trustee, or similar
representative of a corporation, association, or other
organization, whether or not in existence. The lawyer
or the lawyer’s representative who received the
communication may claim the privilege on behalf of
the client. The authority of the lawyer to do so is
presumed in the absence of evidence to the contrary.
(d) Exceptions. There is no privilege under this rule
under any of the following circumstances:
(1) Crime or Fraud. If the communication clearly
contemplated the future commission of a fraud or
crime or if services of the lawyer were sought or
obtained to enable or aid anyone to commit or plan to
commit what the client knew or reasonably should
have known to be a crime or fraud;
(2) Claimants through Same Deceased Client. As to
a communication relevant to an issue between parties
who claim through the same deceased client, regardless
of whether the claims are by testate or intestate
succession or by inter vivos transaction;
(3) Breach of Duty by Lawyer or Client. As to a
communication relevant to an issue of breach of duty
by the lawyer to the client or by the client to the lawyer;
(4) Document Attested by the Lawyer. As to a
communication relevant to an issue concerning an
attested document to which the lawyer is an attesting
witness; or
(5) Joint Clients. As to a communication relevant to
a matter of common interest between two or more
clients if the communication was made by any of them
to a lawyer retained or consulted in common, when
offered in an action between any of the clients.
Rule 503. Communications to clergy
(a) General Rule. A person has a privilege to refuse to
disclose and to prevent another from disclosing a
confidential communication by the person to a clergy
member or to a clergy member’s assistant, if such
communication is made either as a formal act of
religion or as a matter of conscience.
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(b) Definitions. As used in this rule:
(1) “Clergy member” means a minister, priest, rabbi,
imam, chaplain, or other similar functionary of a
religious organization, or an individual reasonably
believed to be so by the person consulting the clergy
member.
(2) “Clergy member’s assistant” means a person
employed or assigned to assist a clergy member in the
clergy member’s capacity as a spiritual advisor.
(3) A communication is “confidential” if made to a
clergy member in the clergy member’s capacity as a
spiritual advisor or to a clergy member’s assistant in
the assistant’s official capacity and is not intended to
be disclosed to third persons other than those to whom
disclosure is in furtherance of the purpose of the
communication or to those reasonably necessary for
the transmission of the communication.
(c) Who May Claim the Privilege. The privilege may
be claimed by the person, guardian, or conservator, or
by a personal representative if the person is deceased.
The clergy member or clergy member’s assistant who
received the communication may claim the privilege
on behalf of the person. The authority of the clergy
member or clergy member’s assistant to do so is
presumed in the absence of evidence to the contrary.
Rule 504. Marital privilege
(a) Spousal Incapacity. A person has a privilege to
refuse to testify against his or her spouse. There is no
privilege under subdivision (a) when, at the time of the
testimony, the parties are divorced, or the marriage has
been annulled.
(b) Confidential Communication Made During the
Marriage.
(1) General Rule. A person has a privilege during
and after the marital relationship to refuse to disclose,
and to prevent another from disclosing, any
confidential communication made to the spouse of the
person while they were married and not separated as
provided by law.
(2) Who May Claim the Privilege. The privilege may
be claimed by the spouse who made the
communication or by the other spouse on his or her
behalf. The authority of the latter spouse to do so is
presumed in the absence of evidence of a waiver. The
privilege will not prevent disclosure of the
communication at the request of the spouse to whom
the communication was made if that spouse is an
accused regardless of whether the spouse who made
the communication objects to its disclosure.
(c) Exceptions.
(1) To Confidential Communications Only. Where
both parties have been substantial participants in illegal
activity, those communications between the spouses
during the marriage regarding the illegal activity in
which they have jointly participated are not marital
communications for purposes of the privilege in
subdivision (b) and are not entitled to protection under
the privilege in subdivision (b).
(2) To Spousal Incapacity and Confidential
Communications. There is no privilege under
subdivisions (a) or (b):
(A) In proceedings in which one spouse is charged
with a crime against the person or property of the other
spouse or a child of either, or with a crime against the
person or property of a third person committed in the
course of committing a crime against the other spouse;
(B) When the marital relationship was entered into
with no intention of the parties to live together as
spouses, but only for the purpose of using the purported
marital relationship as a sham, and with respect to the
privilege in subdivision (a), the relationship remains a
sham at the time the testimony or statement of one of
the parties is to be introduced against the other, or with
respect to the privilege in subdivision (b), the
relationship was a sham at the time of the
communication; or
(C) In proceedings in which a spouse is charged,
in accordance with Article 133 or 134, with importing
the other spouse as an alien for prostitution or other
immoral purpose in violation of 8 U.S.C. § 1328 with
transporting the other spouse in interstate commerce
for prostitution, immoral purposes, or another offense
in violation of 18 U.S.C. §§ 2421-2424; or with
violation of such other similar statutes under which
such privilege may not be claimed in the trial of
criminal cases in the United States district courts.
(d) Definitions. As used in this rule:
(1) “A child of either” means a biological child,
adopted child, or ward of one of the spouses and
includes a child who is under the permanent or
temporary physical custody of one of the spouses,
regardless of the existence of a legal parent-child
relationship. For purposes of this rule only, a child is:
(A) an individual under the age of 18; or
(B) an individual with a mental handicap who
functions under the age of 18.
III-25
(2) “Temporary physical custody” means a parent
has entrusted his or her child with another. There is no
minimum amount of time necessary to establish
temporary physical custody, nor is a written agreement
required. Rather, the focus is on the parent’s agreement
with another for assuming parental responsibility for
the child. For example, temporary physical custody
may include instances where a parent entrusts another
with the care of his or her child for recurring care or
during absences due to temporary duty or deployments.
(3) As used in this rule, a communication is
“confidential” if made privately by any person to the
spouse of the person and is not intended to be disclosed
to third persons other than those reasonably necessary
for transmission of the communication.
Rule 505. Classified information
(a) General Rule. Classified information must be
protected and is privileged from disclosure if
disclosure would be detrimental to the national
security. Under no circumstances may a military judge
order the release of classified information to any
person not authorized to receive such information. The
Secretary of Defense may prescribe security
procedures for protection against the compromise of
classified information submitted to courts-martial and
appellate authorities.
(b) Definitions. As used in this rule:
(1) “Classified information” means any information
or material that has been determined by the United
States Government pursuant to an executive order,
statute, or regulations, to require protection against
unauthorized disclosure for reasons of national
security, and any restricted data, as defined in 42
U.S.C. §2014(y).
(2) “National security” means the national defense
and foreign relations of the United States.
(3) “In camera hearing” means a session under
Article 39(a) from which the public is excluded.
(4) “In camera review” means an inspection of
documents or other evidence conducted by the military
judge alone in chambers and not on the record.
(5) “Ex parte” means a discussion between the
military judge and either defense counsel or
prosecution, without the other party or the public
present. This discussion can be on or off the record,
depending on the circumstances. The military judge
will grant a request for an ex parte discussion or
hearing only after finding that such discussion or
hearing is necessary to protect classified information
or other good cause. Prior to granting a request from
one party for an ex parte discussion or hearing, the
military judge must provide notice to the opposing
party on the record. If the ex parte discussion is
conducted off the record, the military judge should
later state on the record that such ex parte discussion
took place and generally summarize the subject matter
of the discussion, as appropriate.
(c) Access to Evidence. Any information admitted into
evidence pursuant to any rule, procedure, or order by
the military judge must be provided to the accused.
(d) Declassification. Trial counsel should, when
practicable, seek declassification of evidence that may
be used at trial, consistent with the requirements of
national security. A decision not to declassify evidence
under this section is not subject to review by a military
judge or upon appeal.
(e) Action Prior to Referral of Charges.
(1) Prior to referral of charges, upon a showing by
the accused that the classified information sought is
relevant and necessary to an element of the offense or
a legally cognizable defense, the convening authority
must respond in writing to a request by the accused for
classified information if the privilege in this rule is
claimed for such information. In response to such a
request, the convening authority may:
(A) delete specified items of classified
information from documents made available to the
accused;
(B) substitute a portion or summary of the
information for such classified documents;
(C) substitute a statement admitting relevant facts
that the classified information would tend to prove;
(D) provide the document subject to conditions
that will guard against the compromise of the
information disclosed to the accused; or
(E) withhold disclosure if actions under (A)
through (D) cannot be taken without causing
identifiable damage to the national security.
(2) An Article 32 preliminary hearing officer may
not rule on any objection by the accused to the release
of documents or information protected by this rule.
(3) Any objection by the accused to the withholding
of information or to the conditions of disclosure must
be raised through a motion for appropriate relief at a
pretrial conference.
(f) Actions after Referral of Charges.
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(1) Pretrial Conference. At any time after referral of
charges, any party may move for a pretrial conference
under Article 39(a) to consider matters relating to
classified information that may arise in connection
with the trial. Following such a motion, or when the
military judge recognizes the need for such conference,
the military judge must promptly hold a pretrial
conference under Article 39(a).
(2) Ex Parte Permissible. Upon request by either
party and with a showing of good cause, the military
judge must hold such conference ex parte to the extent
necessary to protect classified information from
disclosure.
(3) Matters to be Established at Pretrial Conference.
(A) Timing of Subsequent Actions. At the pretrial
conference, the military judge must establish the
timing of:
(i) requests for discovery;
(ii) the provision of notice required by
subdivision (i) of this rule; and
(iii) established by subdivision (j) of this rule.
(B) Other Matters. At the pretrial conference, the
military judge may also consider any matter that relates
to classified information or that may promote a fair and
expeditious trial.
(4) Convening Authority and Special Trial Counsel
Notice and Action. If a claim of privilege has been
made under this rule with respect to classified
information that apparently contains evidence that is
relevant and necessary to an element of the offense or
a legally cognizable defense and is otherwise
admissible in evidence in the court-martial proceeding,
the matter must be reported to the convening authority
and special trial counsel, as applicable.
(A) The convening authority may institute action
to obtain the classified information for use by the
military judge in making a determination under Mil. R.
Evid. 505(j).
(B) The convening authority or special trial
counsel, as applicable, may:
(i) dismiss the charges;
(ii) dismiss the charges or specifications or both
to which the information relates; or
(iii) take such other action as may be required in
the interests of justice.
(5) Remedies. If, after a reasonable period of time,
the information is not provided to the military judge in
circumstances where proceeding with the case without
such information would materially prejudice a
substantial right of the accused, the military judge must
dismiss the charges or specifications or both to which
the classified information relates.
(g) Protective Orders. Upon motion of trial counsel,
the military judge must issue an order to protect against
the disclosure of any classified information that has
been disclosed by the United States to any accused in
any court-martial proceeding or that has otherwise
been provided to, or obtained by, any such accused in
any such court-martial proceeding. The terms of any
such protective order may include, but are not limited
to, provisions:
(1) prohibiting the disclosure of the information
except as authorized by the military judge;
(2) requiring storage of material in a manner
appropriate for the level of classification assigned to
the documents to be disclosed;
(3) requiring controlled accesses to the material
during normal business hours and at other times upon
reasonable notice;
(4) mandating that all persons requiring security
clearances will cooperate with investigatory personnel
in any investigations that are necessary to obtain a
security clearance;
(5) requiring the maintenance of logs regarding
access by all persons authorized by the military judge
to have access to the classified information in
connection with the preparation of the defense;
(6) regulating the making and handling of notes
taken from material containing classified information;
or
(7) requesting the convening authority to authorize
the assignment of government security personnel and
the provision of government storage facilities.
(h) Discovery and Access by the Accused.
(1) Limitations.
(A) Government Claim of Privilege. In a court-
martial proceeding in which the government seeks to
delete, withhold, or otherwise obtain other relief with
respect to the discovery of or access to any classified
information, trial counsel must submit a declaration
invoking the United States’ classified information
privilege and setting forth the damage to the national
security that the discovery of or access to such
information reasonably could be expected to cause.
The declaration must be signed by the head, or
designee, of the executive or military department or
government agency concerned.
III-27
(B) Standard for Discovery or Access by the
Accused. Upon the submission of a declaration under
subdivision (h)(1)(A), the military judge may not
authorize the discovery of or access to such classified
information unless the military judge determines that
such classified information would be noncumulative
and relevant to a legally cognizable defense, rebuttal of
the prosecution’s case, or to sentencing. If the
discovery of or access to such classified information is
authorized, it must be addressed in accordance with the
requirements of subdivision (h)(2).
(2) Alternatives to Full Discovery.
(A) Substitutions and Other Alternatives. The
military judge, in assessing the accused’s right to
discover or access classified information under
subdivision (h), may authorize the government:
(i) to delete or withhold specified items of
classified information;
(ii) to substitute a summary for classified
information; or
(iii) to substitute a statement admitting relevant
facts that the classified information or material would
tend to prove, unless the military judge determines that
disclosure of the classified information itself is
necessary to enable the accused to prepare for trial.
(B) In Camera Review. The military judge must,
upon the request of the prosecution, conduct an in
camera review of the prosecution’s motion and any
materials submitted in support thereof and must not
disclose such information to the accused.
(C) Action by Military Judge. The military judge
must grant the request of trial counsel to substitute a
summary or to substitute a statement admitting
relevant facts, or to provide other relief in accordance
with subdivision (h)(2)(A), if the military judge finds
that the summary, statement, or other relief would
provide the accused with substantially the same ability
to make a defense as would discovery of or access to
the specific classified information.
(3) Reconsideration. An order of a military judge
authorizing a request of trial counsel to substitute,
summarize, withhold, or prevent access to classified
information under subdivision (h) is not subject to a
motion for reconsideration by the accused, if such
order was entered pursuant to an ex parte showing
under subdivision (h).
(i) Disclosure by the Accused.
(1) Notification to Trial Counsel and Military Judge.
If an accused reasonably expects to disclose, or to
cause the disclosure of, classified information in any
manner in connection with any trial or pretrial
proceeding involving the prosecution of such accused,
the accused must, within the time specified by the
military judge or, where no time is specified, prior to
arraignment of the accused, notify trial counsel and the
military judge in writing.
(2) Content of Notice. Such notice must include a
brief description of the classified information.
(3) Continuing Duty to Notify. Whenever the
accused learns of additional classified information the
accused reasonably expects to disclose, or to cause the
disclosure of, at any such proceeding, the accused must
notify trial counsel and the military judge in writing as
soon as possible thereafter and must include a brief
description of the classified information.
(4) Limitation on Disclosure by Accused. The
accused may not disclose, or cause the disclosure of,
any information known or believed to be classified in
connection with a trial or pretrial proceeding until:
(A) notice has been given under subdivision (i);
and
(B) the government has been afforded a reasonable
opportunity to seek a determination pursuant to the
procedure set forth in subdivision (j).
(5) Failure to comply. If the accused fails to comply
with the requirements of subdivision (i), the military
judge:
(A) may preclude disclosure of any classified
information not made the subject of notification; and
(B) may prohibit the examination by the accused
of any witness with respect to any such information.
(j) Procedure for Use of Classified Information in
Trials and Pretrial Proceedings.
(1) Hearing on Use of Classified Information.
(A) Motion for Hearing. Within the time specified
by the military judge for the filing of a motion under
this rule, either party may move for a hearing
concerning the use at any proceeding of any classified
information. Upon a request by either party, the
military judge must conduct such a hearing and must
rule prior to conducting any further proceedings.
(B) Request for In Camera Hearing. Any hearing
held pursuant to subdivision (j) (or any portion of such
hearing specified in the request of a knowledgeable
United States official) must be held in camera if a
knowledgeable United States official possessing
authority to classify information submits to the military
III-28
judge a declaration that a public proceeding may result
in the disclosure of classified information.
(C) Notice to Accused. Before the hearing, trial
counsel must provide the accused with notice of the
classified information that is at issue. Such notice must
identify the specific classified information at issue
whenever that information previously has been made
available to the accused by the United States. When the
United States has not previously made the information
available to the accused in connection with the case the
information may be described by generic category, in
such forms as the military judge may approve, rather
than by identification of the specific information of
concern to the United States.
(D) Standard for Disclosure. Classified
information is not subject to disclosure under
subdivision (j) unless the information is relevant and
necessary to an element of the offense or a legally
cognizable defense and is otherwise admissible in
evidence. In presenting proceedings, relevant and
material classified information pertaining to the
appropriateness of, or the appropriate degree of,
punishment must be admitted only if no unclassified
version of such information is available.
(E) Written Findings. As to each item of classified
information, the military judge must set forth in writing
the basis for the determination.
(2) Alternatives to Full Disclosure.
(A) Motion by the Prosecution. Upon any
determination by the military judge authorizing the
disclosure of specific classified information under the
procedures established by subdivision (j), trial counsel
may move that, in lieu of the disclosure of such specific
classified information, the military judge order:
(i) the substitution for such classified
information of a statement admitting relevant facts that
the specific classified information would tend to prove:
(ii) the substitution for such classified
information of a summary of the specific classified
information; or
(iii) any other procedure or redaction limiting
the disclosure of specific classified information.
(B) Declaration of Damage to National Security.
Trial counsel may, in connection with a motion under
subdivision (j), submit to the military judge a
declaration signed by the head, or designee, of the
executive or military department or government
agency concerned certifying that disclosure of
classified information would cause identifiable
damage to the national security of the United States
and explaining the basis for the classification of such
information. If so requested by trial counsel, the
military judge must examine such declaration during
an in camera review.
(C) Hearing. The military judge must hold a
hearing on any motion under subdivision (j). Any such
hearing must be held in camera at the request of a
knowledgeable United States official possessing
authority to classify information.
(D) Standard for Use of Alternatives. The military
judge must grant such a motion of trial counsel if the
military judge finds that the statement, summary, or
other procedure or redaction will provide the accused
with substantially the same ability to make his or her
defense as would disclosure of the specific classified
information.
(3) Sealing of Records of In Camera Hearings. If at
the close of an in camera hearing under subdivision (j)
(or any portion of a hearing under subdivision (j) that
is held in camera), the military judge determines that
the classified information at issue may not be disclosed
or elicited at the trial or pretrial proceeding, the record
of such in camera hearing must be sealed in accordance
with R.C.M. 1113 and preserved for use in the event of
an appeal. The accused may seek reconsideration of the
military judge’s determination prior to or during trial.
(4) Remedies.
(A) If the military judge determines that
alternatives to full disclosure may not be used and the
prosecution continues to object to disclosure of the
information, the military judge must issue any order
that the interests of justice require, including but not
limited to, an order:
(i) striking or precluding all or part of the
testimony of a witness;
(ii) declaring a mistrial;
(iii) finding against the government on any issue
as to which the evidence is relevant and material to the
defense;
(iv) dismissing the charges, with or without
prejudice; or
(v) dismissing the charges or specifications or
both to which the information relates.
(B) The government may avoid the sanction for
nondisclosure by permitting the accused to disclose the
information at the pertinent court-martial proceeding.
III-29
(5) Disclosure of Rebuttal Information. Whenever
the military judge determines that classified
information may be disclosed in connection with a trial
or pretrial proceeding, the military judge must, unless
the interests of fairness do not so require, order the
prosecution to provide the accused with the
information it expects to use to rebut the classified
information.
(A) Continuing Duty. The military judge may
place the prosecution under a continuing duty to
disclose such rebuttal information.
(B) Sanction for Failure to Comply. If the
prosecution fails to comply with its obligation under
subdivision (j), the military judge:
(i) may exclude any evidence not made the
subject of a required disclosure; and
(ii) may prohibit the examination by the
prosecution of any witness with respect to such
information.
(6) Disclosure at Trial of Previous Statements by a
Witness.
(A) Motion for Production of Statements in
Possession of the Prosecution. After a witness called
by trial counsel has testified on direct examination, the
military judge, on motion of the accused, may order
production of statements of the witness in the
possession of the prosecution that relate to the subject
matter as to which the witness has testified. This
paragraph does not preclude discovery or assertion of
a privilege otherwise authorized.
(B) Invocation of Privilege by the Government. If
the government invokes a privilege, trial counsel may
provide the prior statements of the witness to the
military judge for in camera review to the extent
necessary to protect classified information from
disclosure.
(C) Action by Military Judge. If the military judge
finds that disclosure of any portion of the statement
identified by the government as classified would be
detrimental to the national security in the degree
required to warrant classification under the applicable
Executive Order, statute, or regulation, that such
portion of the statement is consistent with the
testimony of the witness, and that the disclosure of
such portion is not necessary to afford the accused a
fair trial, the military judge must excise that portion
from the statement. If the military judge finds that such
portion of the statement is inconsistent with the
testimony of the witness or that its disclosure is
necessary to afford the accused a fair trial, the military
judge must, upon the request of trial counsel, consider
alternatives to disclosure in accordance with
subdivision (j)(2).
(k) Introduction into Evidence of Classified
Information.
(1) Preservation of Classification Status. Writings,
recordings, and photographs containing classified
information may be admitted into evidence in court-
martial proceedings under this rule without change in
their classification status.
(A) Precautions. The military judge in a trial by
court-martial, in order to prevent unnecessary
disclosure of classified information, may order
admission into evidence of only part of a writing,
recording, or photograph, or may order admission into
evidence of the whole writing, recording, or
photograph with excision of some or all of the
classified information contained therein, unless the
whole ought in fairness be considered.
(B) Classified Information Kept Under Seal. The
military judge must allow classified information
offered or accepted into evidence to remain under seal
during the trial, even if such evidence is disclosed in
the court-martial proceeding, and may upon motion by
the government, seal exhibits containing classified
information in accordance with R.C.M. 1113 for any
period after trial as necessary to prevent a disclosure of
classified information when a knowledgeable United
States official possessing authority to classify
information submits to the military judge a declaration
setting forth the damage to the national security that the
disclosure of such information reasonably could be
expected to cause.
(2) Testimony.
(A) Objection by Trial Counsel. During the
examination of a witness, trial counsel may object to
any question or line of inquiry that may require the
witness to disclose classified information not
previously found to be admissible.
(B) Action by Military Judge. Following an
objection under subdivision (k), the military judge
must take such suitable action to determine whether the
response is admissible as will safeguard against the
compromise of any classified information. Such action
may include requiring trial counsel to provide the
military judge with a proffer of the witness’ response
to the question or line of inquiry and requiring the
accused to provide the military judge with a proffer of
the nature of the information sought to be elicited by
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the accused. Upon request, the military judge may
accept an ex parte proffer by trial counsel to the extent
necessary to protect classified information from
disclosure.
(3) Closed session. The military judge may, subject
to the requirements of the United States Constitution,
exclude the public during that portion of the
presentation of evidence that discloses classified
information.
(l) Record of Trial. If under this rule any information
is reviewed in camera by the military judge and
withheld from the accused, the accused objects to such
withholding, and the trial continues to an adjudication
of guilt of the accused, the entire unaltered text of the
relevant documents as well as any motions and any
materials submitted in support thereof must be sealed
in accordance with R.C.M. 701(g)(2) or R.C.M. 1113
and attached to the record of trial as an appellate
exhibit. Such material will be made available to
reviewing and appellate authorities in accordance with
R.C.M. 1113. The record of trial with respect to any
classified matter will be prepared under R.C.M.
1112(e)(3).
Discussion
In addition to the Sixth Amendment right of an accused to a public
trial, the Supreme Court has held that the press and general public
have a constitutional right under the First Amendment to access to
criminal trials. United States v. Hershey, 20 M.J. 433, 436 (C.M.A.
1985) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555
(1980)). The test that must be met before closure of a criminal trial
to the public is set out in Press-Enterprise Co. v. Superior Court, 464
U.S. 501 (1984), to wit: the presumption of openness “may be
overcome only by an overriding interest based on findings that
closure is essential to preserve higher values and is narrowly tailored
to serve that interest.” Id. at 510.
The military judge must consider reasonable alternatives to
closure and must make adequate findings supporting the closure to
aid in review.
Rule 506. Government information
(a) Protection of Government Information. Except
where disclosure is required by a federal statute,
government information is privileged from disclosure
if disclosure would be detrimental to the public
interest.
(b) Scope. “Government information” includes official
communication and documents and other information
within the custody or control of the Federal
Government. This rule does not apply to the identity of
an informant (Mil. R. Evid. 507).
Discussion
For additional procedures concerning information contained in
safety investigations, consult Service regulations and DoD
Instruction 6055.07, “Mishap Notification, Investigation, Reporting,
and Record Keeping
.
(c) Definitions. As used in this rule:
(1) “In camera hearing” means a session under
Article 39(a) from which the public is excluded.
(2) “In camera review” means an inspection of
documents or other evidence conducted by the military
judge alone in chambers and not on the record.
(3) “Ex parte” means a discussion between the
military judge and either defense counsel or
prosecution, without the other party or the public
present. This discussion can be on or off the record,
depending on the circumstances. The military judge
will grant a request for an ex parte discussion or
hearing only after finding that such discussion or
hearing is necessary to protect government information
or other good cause. Prior to granting a request from
one party for an ex parte discussion or hearing, the
military judge must provide notice to the opposing
party on the record. If the ex parte discussion is
conducted off the record, the military judge should
later state on the record that such ex parte discussion
took place and generally summarize the subject matter
of the discussion, as appropriate.
(d) Who May Claim the Privilege. The privilege may
be claimed by the head, or designee, of the executive
or military department or government agency
concerned. The privilege for records and information
of the Inspector General may be claimed by the
immediate superior of the inspector general officer
responsible for creation of the records or information,
the Inspector General, or any other superior authority.
A person who may claim the privilege may authorize a
witness or trial counsel to claim the privilege on his or
her behalf. The authority of a witness or trial counsel
to do so is presumed in the absence of evidence to the
contrary.
(e) Action Prior to Referral of Charges.
(1) Prior to referral of charges, upon a showing by
the accused that the government information sought is
relevant and necessary to an element of the offense or
a legally cognizable defense, the convening authority
must respond in writing to a request by the accused for
government information if the privilege in this rule is
III-31
claimed for such information. In response to such a
request, the convening authority may:
(A) delete specified items of government
information claimed to be privileged from documents
made available to the accused;
(B) substitute a portion or summary of the
information for such documents;
(C) substitute a statement and admitting relevant
facts that the government information would tend to
prove;
(D) provide the document subject to conditions
similar to those set forth in subdivision (g) of this rule;
or
(E) withhold disclosure if actions under
subdivisions (e)(1)(A)-(D) cannot be taken without
causing identifiable damage to the public interest.
(2) Any objection by the accused to withholding of
information or to the conditions of disclosure must be
raised through a motion for appropriate relief at a
pretrial conference.
(f) Action After Referral of Charges.
(1) Pretrial Conference. At any time after referral of
charges, any party may move for a pretrial conference
under Article 39(a) to consider matters relating to
government information that may arise in connection
with the trial. Following such a motion, or when the
military judge recognizes the need for such conference,
the military judge must promptly hold a pretrial
conference under Article 39(a).
(2) Ex Parte Permissible. Upon request by either
party and with a showing of good cause, the military
judge must hold such conference ex parte to the extent
necessary to protect government information from
disclosure.
(3) Matters to be Established at Pretrial Conference.
(A) Timing of Subsequent Actions. At the pretrial
conference, the military judge must establish the
timing of:
(i) requests for discovery;
(ii) the provision of notice required by
subdivision (i) of this rule; and
(iii) the initiation of the procedure established
by subdivision (j) of this rule.
(B) Other Matters. At the pretrial conference, the
military judge may also consider any matter which
relates to government information or which may
promote a fair and expeditious trial.
(4) Convening Authority and Special Trial Counsel
Notice and Action. If a claim of privilege has been
made under this rule with respect to government
information that apparently contains evidence that is
relevant and necessary to an element of the offense or
a legally cognizable defense and is otherwise
admissible in evidence in the court-martial proceeding,
the matter must be reported to the convening authority
and special trial counsel, as applicable.
(A) The convening authority may institute action
to obtain the information for use by the military judge
in making a determination under Mil. R. Evid. 505(j).
(B) The convening authority or special trial
counsel, as applicable, may:
(i) dismiss the charges;
(ii) dismiss the charges or specifications or both
to which the information relates; or
(iii) take such other action as may be required in
the interests of justice.
(5) Remedies. If after a reasonable period of time the
information is not provided to the military judge in
circumstances where proceeding with the case without
such information would materially
prejudice a
substantial right of the accused, the military judge must
dismiss the charges or specifications or both to which
the information relates.
(g) Protective Orders. Upon motion of trial counsel,
the military judge must issue an order to protect against
the disclosure of any government information that has
been disclosed by the United States to any accused in
any court-martial proceeding or that has otherwise
been provided to, or obtained by, any such accused in
any such court-martial proceeding. The terms of any
such protective order may include, but are not limited
to, provisions:
(1) prohibiting the disclosure of the information
except as authorized by the military judge;
(2) requiring storage of the material in a manner
appropriate for the nature of the material to be
disclosed;
(3) requiring controlled access to the material during
normal business hours and at other times upon
reasonable notice;
(4) requiring the maintenance of logs recording
access by persons authorized by the military judge to
have access to the government information in
connection with the preparation of the defense;
III-32
(5) regulating the making and handling of notes
taken from material containing government
information; or
(6) requesting the convening authority to authorize
the assignment of government security personnel and
the provision of government storage facilities.
(h) Discovery and Access by the Accused.
(1) Limitations.
(A) Government Claim of Privilege. In a court-
martial proceeding in which the government seeks to
delete, withhold, or otherwise obtain other relief with
respect to the discovery of or access to any government
information subject to a claim of privilege, trial
counsel must submit a declaration invoking the United
States’ government information privilege and setting
forth the detriment to the public interest that the
discovery of or access to such information reasonably
could be expected to cause. The declaration must be
signed by a knowledgeable United States official as
described in subdivision (d) of this rule.
(B) Standard for Discovery or Access by the
Accused. Upon the submission of a declaration under
subdivision (h)(1)(A), the military judge may not
authorize the discovery of or access to such
government information unless the military judge
determines that such government information would
be noncumulative, relevant, and helpful to a legally
cognizable defense, rebuttal of the prosecution’s case,
or to sentencing. If the discovery of or access to such
governmental information is authorized, it must be
addressed in accordance with the requirements of
subdivision (h)(2).
(2) Alternatives to Full Disclosure.
(A) Substitutions and Other Alternatives. The
military judge, in assessing the accused’s right to
discovery or access government information under
subdivision (h), may authorize the government:
(i) to delete or withhold specified items of
government information;
(ii) to substitute a summary for government
information; or
(iii) to substitute a statement admitting relevant
facts that the government information or material
would tend to prove, unless the military judge
determines that disclosure of the government
information itself is necessary to enable the accused to
prepare for trial.
(B) In Camera Review. The military judge must,
upon the request of the prosecution, conduct an in
camera review of the prosecution’s motion and any
materials submitted in support thereof and must not
disclose such information to the accused.
(C) Action by Military Judge. The military judge
must grant the request of trial counsel to substitute a
summary or to substitute a statement admitting
relevant facts, or to provide other relief in accordance
with subdivision (h)(2)(A), if the military judge finds
that the summary, statement, or other relief would
provide the accused with substantially the same ability
to make a defense as would discovery of or access to
the specific government information.
(i) Disclosure by the Accused.
(1) Notification to Trial Counsel and Military Judge.
If an accused reasonably expects to disclose, or to
cause the disclosure of, government information
subject to a claim of privilege in any manner in
connection with any trial or pretrial proceeding
involving the prosecution of such accused, the accused
must, within the time specified by the military judge
or, where no time is specified, prior to arraignment of
the accused, notify trial counsel and the military judge
in writing.
(2) Content of Notice. Such notice must include a
brief description of the government information.
(3) Continuing Duty to Notify. Whenever the
accused learns of additional government information
the accused reasonably expects to disclose, or to cause
the disclosure of, at any such proceeding, the accused
must notify trial counsel and the military judge in
writing as soon as possible thereafter and must include
a brief description of the government information.
(4) Limitation on Disclosure by Accused. The
accused may not disclose, or cause the disclosure of,
any information known or believed to be subject to a
claim of privilege in connection with a trial or pretrial
proceeding until:
(A) notice has been given under subdivision (i);
and
(B) the government has been afforded a reasonable
opportunity to seek a determination pursuant to the
procedure set forth in subdivision (j).
(5) Failure to Comply. If the accused fails to comply
with the requirements of subdivision (i), the military
judge:
(A) may preclude disclosure of any government
information not made the subject of notification; and
(B) may prohibit the examination by the accused
of any witness with respect to any such information.
III-33
(j) Procedure for Use of Government Information
Subject to a Claim of Privilege in Trials and Pretrial
Proceedings.
(1) Hearing on Use of Government Information.
(A) Motion for Hearing. Within the time
specified by the military judge for the filing of a
motion under this rule, either party may move for an
in camera hearing concerning the use at any
proceeding of any government information that may
be subject to a claim of privilege. Upon a request by
either party, the military judge must conduct such a
hearing and must rule prior to conducting any further
proceedings.
(B) Request for In Camera Hearing. Any hearing
held pursuant to subdivision (j) must be held in camera
if a knowledgeable United States official described in
subdivision (d) of this rule submits to the military
judge a declaration that disclosure of the information
reasonably could be expected to cause identifiable
damage to the public interest.
(C) Notice to Accused. Subject to subdivision
(j)(2) below, the prosecution must disclose government
information claimed to be privileged under this rule for
the limited purpose of litigating, in camera, the
admissibility of the information at trial. The military
judge must enter an appropriate protective order to the
accused and all other appropriate trial participants
concerning the disclosure of the information according
to subdivision (g), above. The accused may not
disclose any information provided under subdivision
(j) unless, and until, such information has been
admitted into evidence by the military judge. In the in
camera hearing, both parties may have the opportunity
to brief and argue the admissibility of the government
information at trial.
(D) Standard for Disclosure. Government
information is subject to disclosure at the court-martial
proceeding under subdivision (j) if the party making
the request demonstrates a specific need for
information containing evidence that is relevant to the
guilt or innocence or to punishment of the accused, and
is otherwise admissible in the court-martial
proceeding.
(E) Written Findings. As to each item of
government information, the military judge must set
forth in writing the basis for the determination.
(2) Alternatives to Full Disclosure.
(A) Motion by the Prosecution. Upon any
determination by the military judge authorizing
disclosure of specific government information under
the procedures established by subdivision (j), the
prosecution may move that, in lieu of the disclosure of
such information, the military judge order:
(i) the substitution for such government
information of a statement admitting relevant facts that
the specific government information would tend to
prove;
(ii) the substitution for such government
information of a summary of the specific government
information; or
(iii) any other procedure or redaction limiting
the disclosure of specific government information.
(B) Hearing. The military judge must hold a
hearing on any motion under subdivision (j). At the
request of trial counsel, the military judge will conduct
an in camera hearing.
(C) Standard for Use of Alternatives. The military
judge must grant such a motion of trial counsel if the
military judge finds that the statement, summary, or
other procedure or redaction will provide the accused
with substantially the same ability to make his or her
defense as would disclosure of the specific government
information.
(3) Sealing of Records of In Camera Hearings. If at
the close of an in camera hearing under subdivision (j)
(or any portion of a hearing under subdivision (j) that
is held in camera), the military judge determines that
the government information at issue may not be
disclosed or elicited at the trial or pretrial proceeding,
the record of such in camera hearing must be sealed in
accordance with R.C.M. 1113 and preserved for use in
the event of an appeal. The accused may seek
reconsideration of the military judge’s determination
prior to or during trial.
(4) Remedies.
(A) If the military judge determines that
alternatives to full disclosure may not be used and the
prosecution continues to object to disclosure of the
information, the military judge must issue any order
that the interests of justice require, including but not
limited to, an order:
(i) striking or precluding all or part of the
testimony of a witness;
(ii) declaring a mistrial;
(iii) finding against the government on any issue
as to which the evidence is relevant and necessary to
the defense;
III-34
(iv) dismissing the charges, with or without
prejudice; or
(v) dismissing the charges or specifications or
both to which the information relates.
(B) The government may avoid the sanction for
nondisclosure by permitting the accused to disclose the
information at the pertinent court-martial proceeding.
(5) Disclosure of Rebuttal Information. Whenever
the military judge determines that government
information may be disclosed in connection with a trial
or pretrial proceeding, the military judge must, unless
the interests of fairness do not so require, order the
prosecution to provide the accused with the
information it expects to use to rebut the government
information.
(A) Continuing Duty. The military judge may
place the prosecution under a continuing duty to
disclose such rebuttal information.
(B) Sanction for Failure to Comply. If the
prosecution fails to comply with its obligation under
subdivision (j), the military judge may make such
ruling as the interests of justice require, to include:
(i) excluding any evidence not made the subject
of a required disclosure; and
(ii) prohibiting the examination by the
prosecution of any witness with respect to such
information.
(k) Appeals of Orders and Rulings. In a court-martial
in which a punitive discharge may be adjudged, the
government may appeal an order or ruling of the
military judge that terminates the proceedings with
respect to a charge or specification, directs the
disclosure of government information, or imposes
sanctions for nondisclosure of government
information. The government may also appeal an order
or ruling in which the military judge refuses to issue a
protective order sought by the United States to prevent
the disclosure of government information, or to enforce
such an order previously issued by appropriate
authority. The government may not appeal an order or
ruling that is, or amounts to, a finding of not guilty with
respect to the charge or specification.
(l) Introduction into Evidence of Government
Information Subject to a Claim of Privilege.
(1) Precautions. The military judge in a trial by
court-martial, in order to prevent unnecessary
disclosure of government information after there has
been a claim of privilege under this rule, may order
admission into evidence of only part of a writing,
recording, or photograph or admit into evidence the
whole writing, recording, or photograph with excision
of some or all of the government information contained
therein, unless the whole ought in fairness to be
considered.
(2) Government Information Kept Under Seal. The
military judge must allow government information
offered or accepted into evidence to remain under seal
during the trial, even if such evidence is disclosed in
the court-martial proceeding, and may, upon motion by
the prosecution, seal exhibits containing government
information in accordance with R.C.M. 1113 for any
period after trial as necessary to prevent a disclosure of
government information when a knowledgeable
United States official described in subdivision (d)
submits to the military judge a declaration setting forth
the detriment to the public interest that the disclosure
of such information reasonably could be expected to
cause.
(3) Testimony.
(A) Objection by Trial Counsel. During
examination of a witness, trial counsel may object to
any question or line of inquiry that may require the
witness to disclose government information not
previously found admissible if such information has
been or is reasonably likely to be the subject of a claim
of privilege under this rule.
(B) Action by Military Judge. Following such an
objection, the military judge must take such suitable
action to determine whether the response is admissible
as will safeguard against the compromise of any
government information. Such action may include
requiring trial counsel to provide the military judge
with a proffer of the witness’ response to the question
or line of inquiry and requiring the accused to provide
the military judge with a proffer of the nature of the
information sought to be elicited by the accused. Upon
request, the military judge may accept an ex parte
proffer by trial counsel to the extent necessary to
protect government information from disclosure.
(m) Record of Trial. If under this rule any information
is reviewed in camera by the military judge and
withheld from the accused, the accused objects to such
withholding, and the trial continues to an adjudication
of guilt of the accused, the entire unaltered text of the
relevant documents as well as any motions and any
materials submitted in support thereof must be sealed
in accordance with R.C.M. 701(g)(2) or 1113 and
attached to the record of trial as an appellate exhibit.
III-35
Such material will be made available to reviewing and
appellate authorities in accordance with R.C.M. 1113.
Rule 507. Identity of informants
(a) General Rule. The United States or a State or
subdivision thereof has a privilege to refuse to disclose
the identity of an informant. Unless otherwise
privileged under these rules, the communications of an
informant are not privileged except to the extent
necessary to prevent the disclosure of the informant’s
identity.
(b) Definitions. As used in this rule:
(1) “Informant” means a person who has furnished
information relating to or assisting in an investigation
of a possible violation of law to a person whose official
duties include the discovery, investigation, or
prosecution of crime.
(2) “In camera review” means an inspection of
documents or other evidence conducted by the military
judge alone in chambers and not on the record.
(c) Who May Claim the Privilege. The privilege may
be claimed by an appropriate representative of the
United States, regardless of whether information was
furnished to an officer of the United States or a State
or subdivision thereof. The privilege may be claimed
by an appropriate representative of a State or
subdivision if the information was furnished to an
officer thereof, except the privilege will not be allowed
if the prosecution objects.
(d) Exceptions.
(1) Voluntary Disclosures; Informant as a
Prosecution Witness. No privilege exists under this
rule:
(A) if the identity of the informant has been
disclosed to those who would have cause to resent the
communication by a holder of the privilege or by the
informants own action; or
(B) if the informant appears as a witness for the
prosecution.
(2) Informant as a Defense Witness. If a claim of
privilege has been made under this rule, the military
judge must, upon motion by the accused, determine
whether disclosure of the identity of the informant is
necessary to the accused’s defense on the issue of guilt
or innocence. Whether such a necessity exists will
depend on the particular circumstances of each case,
taking into consideration the offense charged, the
possible defense, the possible significance of the
informant’s testimony, and other relevant factors. If it
appears from the evidence in the case or from other
showing by a party that an informant may be able to
give testimony necessary to the accused’s defense on
the issue of guilt or innocence, the military judge may
make any order required by the interests of justice.
(3) Informant as a Witness regarding a Motion to
Suppress Evidence. If a claim of privilege has been
made under this rule with respect to a motion under
Mil. R. Evid. 311, the military judge must, upon
motion of the accused, determine whether disclosure of
the identity of the informant is required by the United
States Constitution as applied to members of the
Armed Forces. In making this determination, the
military judge may make any order required by the
interests of justice.
(e) Procedures.
(1) In Camera Review. If the accused has articulated
a basis for disclosure under the standards set forth in
this rule, the prosecution may ask the military judge to
conduct an in camera review of affidavits or other
evidence relevant to disclosure.
(2) Order by the Military Judge. If a claim of
privilege has been made under this rule, the military
judge may make any order required by the interests of
justice.
(3) Action by the Convening Authority or Special
Trial Counsel. If the military judge determines that
disclosure of the identity of the informant is required
under the standards set forth in this rule, and the
prosecution elects not to disclose the identity of the
informant, the matter must be reported to the
convening authority. The convening authority or the
special trial counsel, as applicable, may institute action
to secure disclosure of the identity of the informant,
terminate the proceedings, or take such other action as
may be appropriate under the circumstances.
(4) Remedies. If, after a reasonable period of time
disclosure is not made, the military judge, sua sponte
or upon motion of either counsel and after a hearing if
requested by either party, may dismiss the charge or
specifications or both to which the information
regarding the informant would relate if the military
judge determines that further proceedings would
materially prejudice a substantial right of the accused.
III-36
Rule 508. Political vote
A person has a privilege to refuse to disclose the tenor
of the person’s vote at a political election conducted by
secret ballot unless the vote was cast illegally.
Rule 509. Deliberations of courts and juries
Except as provided in Mil. R. Evid. 606, the
deliberations of courts, courts-martial, military judges,
and grand and petit juries are privileged to the extent
that such matters are privileged in trial of criminal
cases in the United States district courts, but the results
of the deliberations are not privileged.
Rule 510. Waiver of privilege by voluntary
disclosure
(a) A person upon whom these rules confer a privilege
against disclosure of a confidential matter or
communication waives the privilege if the person or
the person’s predecessor while holder of the privilege
voluntarily discloses or consents to disclosure of any
significant part of the matter or communication under
such circumstances that it would be inappropriate to
allow the claim of privilege. This rule does not apply if
the disclosure is itself a privileged communication.
(b) Unless testifying voluntarily concerning a
privileged matter or communication, an accused who
testifies in his or her own behalf or a person who
testifies under a grant or promise of immunity does not,
merely by reason of testifying, waive a privilege to
which he or she may be entitled pertaining to the
confidential matter or communication.
Rule 511. Privileged matter disclosed under
compulsion or without opportunity to claim
privilege
(a) General Rule.
Evidence of a statement or other disclosure of
privileged matter is not admissible against the holder
of the privilege if disclosure was compelled
erroneously or was made without an opportunity for
the holder of the privilege to claim the privilege.
(b) Use of Communications Media.
The telephonic transmission of information otherwise
privileged under these rules does not affect its
privileged character. Use of electronic means of
communication other than the telephone for
transmission of information otherwise privileged under
these rules does not affect the privileged character of
such information if use of such means of
communication is necessary and in furtherance of the
communication.
Rule 512. Comment upon or inference from claim
of privilege; instruction
(a) Comment or Inference not permitted.
(1) The claim of a privilege by the accused whether
in the present proceeding or upon a prior occasion is
not a proper subject of comment by the military judge
or counsel for any party. No inference may be drawn
therefrom.
(2) The claim of a privilege by a person other than
the accused whether in the present proceeding or upon
a prior occasion normally is not a proper subject of
comment by the military judge or counsel for any
party. An adverse inference may not be drawn
therefrom except when determined by the military
judge to be required by the interests of justice.
(b) Claiming a Privilege Without the Knowledge of the
Members. In a trial before a court-martial with
members, proceedings must be conducted, to the extent
practicable, so as to facilitate the making of claims of
privilege without the knowledge of the members.
(c) Instruction. Upon request, any party against whom
the members might draw an adverse inference from a
claim of privilege is entitled to an instruction that no
inference may be drawn therefrom except as provided
in subdivision (a)(2).
Rule 513. Psychotherapist—patient privilege
(a) General Rule. A patient has a privilege to refuse to
disclose and to prevent any other person from
disclosing a confidential communication made
between the patient and a psychotherapist or an
assistant to the psychotherapist, in a case arising under
the Uniform Code of Military Justice, if such
communication was made for the purpose of
facilitating diagnosis or treatment of the patient’s
mental or emotional condition.
(b) Definitions. As used in this rule:
(1) “Patient” means a person who consults with or is
examined or interviewed by a psychotherapist for
purposes of advice, diagnosis, or treatment of a mental
or emotional condition.
(2) “Psychotherapist” means a psychiatrist, clinical
psychologist, clinical social worker, or other mental
health professional who is licensed in any State,
III-37
territory, possession, the District of Columbia, or
Puerto Rico to perform professional services as such,
or who holds credentials to provide such services as
such, or who holds credentials to provide such services
from any military health care facility, or is a person
reasonably believed by the patient to have such license
or credentials.
(3) “Assistant to a psychotherapist” means a person
directed by or assigned to assist a psychotherapist in
providing professional services, or is reasonably
believed by the patient to be such.
(4) A communication is “confidential” if not
intended to be disclosed to third persons other than
those to whom disclosure is in furtherance of the
rendition of professional services to the patient or those
reasonably necessary for such transmission of the
communication.
(5) “Evidence of a patient’s records or
communications” means testimony of a
psychotherapist, or assistant to the same, or patient
records that pertain to communications by a patient to
a psychotherapist, or assistant to the same, for the
purposes of diagnosis or treatment of the patient’s
mental or emotional condition.
(c) Who May Claim the Privilege. The privilege may
be claimed by the patient or the guardian or
conservator of the patient. A person who may claim the
privilege may authorize trial counsel, defense counsel,
or any counsel representing the patient to claim the
privilege on his or her behalf. The psychotherapist or
assistant to the psychotherapist who received the
communication may claim the privilege on behalf of
the patient. The authority of such a psychotherapist,
assistant, guardian, or conservator to so assert the
privilege is presumed in the absence of evidence to the
contrary.
(d) Exceptions. There is no privilege under this rule:
(1) when the patient is dead;
(2) when the communication is evidence of child
abuse or of neglect, or in a proceeding in which one
spouse is charged with a crime against a child of either
spouse;
(3) when federal law, state law, or service regulation
imposes a duty to report information contained in a
communication;
(4) when a psychotherapist or assistant to a
psychotherapist believes that a patient’s mental or
emotional condition makes the patient a danger to any
person, including the patient;
(5) if the communication clearly contemplated the
future commission of a fraud or crime or if the services
of the psychotherapist are sought or obtained to enable
or aid anyone to commit or plan to commit what the
patient knew or reasonably should have known to be a
crime or fraud;
(6) when necessary to ensure the safety and security
of military personnel, military dependents, military
property, classified information, or the
accomplishment of a military mission; or
(7) when an accused offers statements or other
evidence concerning his mental condition in defense,
extenuation, or mitigation, under circumstances not
covered by R.C.M. 706 or Mil. R. Evid. 302. In such
situations, the military judge may, upon motion, order
disclosure of any statement made by the accused to a
psychotherapist as may be necessary in the interests of
justice.
(e) Procedure to Determine Admissibility of Patient
Records or Communications.
(1) In any case in which the production or admission
of records or communications of a patient other than
the accused is a matter in dispute, a party may seek an
interlocutory ruling by the military judge. In order to
obtain such a ruling, the party must:
(A) file a written motion at least 5 days prior to
entry of pleas specifically describing the evidence and
stating the purpose for which it is sought or offered, or
objected to, unless the military judge, for good cause
shown, requires a different time for filing or permits
filing during trial; and
(B) serve the motion on the opposing party, the
military judge and, if practical, notify the patient or the
patient’s guardian, conservator, or representative that
the motion has been filed and that the patient has an
opportunity to be heard as set forth in subdivision
(e)(2).
(2) Before ordering the production or admission of
evidence of a patient’s records or communication, the
military judge must conduct a hearing, which shall be
closed. At the hearing, the parties may call witnesses,
including the patient, and offer other relevant evidence.
The patient must be afforded a reasonable opportunity
to attend the hearing and be heard. However, the
hearing may not be unduly delayed for this purpose.
The right to be heard under this rule includes the right
to be heard through counsel, including Special
Victims’ Counsel under section 1044e of title 10,
United States Code. In a case before a court-martial
composed of a military judge and members, the
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military judge must conduct the hearing outside the
presence of the members.
(3) The military judge may examine the evidence or
a proffer thereof in camera, if such examination is
necessary to rule on the production or admissibility of
protected records or communications. Prior to
conducting an in-camera review, the military judge
must find by a preponderance of the evidence that the
moving party showed:
(A) a specific, credible factual basis demonstrating
a reasonable likelihood that the records or
communications would contain or lead to the discovery
of evidence admissible under an exception to the
privilege;
(B) that the requested information meets one of the
enumerated exceptions under subdivision (d) of this
rule;
(C) that the information sought is not merely
cumulative of other information available; and
(D) that the party made reasonable efforts to
obtain the same or substantially similar information
through non-privileged sources.
(4) Any production or disclosure permitted by the
military judge under this rule must be narrowly tailored
to only the specific records or communications, or
portions of such records or communications, that meet
the requirements for one of the enumerated exceptions
to the privilege under subdivision (d) of this Rule and
are included in the stated purpose for which the records
or communications are sought under subdivision
(e)(1)(A) of this Rule.
(5) To prevent unnecessary disclosure of a patient’s
records or communications, the military judge may
issue protective orders or may admit only portions of
the evidence.
(6) The motion, related papers, and the record of the
hearing must be sealed in accordance with R.C.M.
701(g)(2) or 1113 and must remain under seal unless
the military judge, the Judge Advocate General, or an
appellate court orders otherwise.
Rule 514. Victim advocate—victim privilege
(a) General Rule. A victim has a privilege to refuse to
disclose and to prevent any other person from
disclosing a confidential communication made
between the alleged victim and a victim advocate or
between the alleged victim and Department of Defense
Safe Helpline staff, in a case arising under the UCMJ,
if such communication was made for the purpose of
facilitating advice or assistance to the alleged victim.
(b) Definitions. As used in this rule:
(1) “Victim” means any person who is alleged to
have suffered direct physical or emotional harm as the
result of a sexual or violent offense.
(2) “Victim advocate” means a person, other than a
prosecutor, trial counsel, any victims’ counsel, law
enforcement officer, or military criminal investigator
in the case, who:
(A) is designated in writing as a victim advocate
in accordance with service regulation;
(B) is authorized to perform victim advocate
duties in accordance with service regulation and is
acting in the performance of those duties; or
(C) is certified as a victim advocate pursuant to
federal or state requirements.
(3) “Department of Defense Safe Helpline staff” are
persons who are designated by competent authority in
writing as Department of Defense Safe Helpline staff.
(4) A communication is “confidential” if made in the
course of the victim advocate-victim relationship or
Department of Defense Safe Helpline staff-victim
relationship and not intended to be disclosed to third
persons other than those to whom disclosure is made in
furtherance of the rendition of advice or assistance to
the alleged victim or those reasonably necessary for
such transmission of the communication.
(5) “Evidence of a victim’s records or
communications” means testimony of a victim
advocate or Department of Defense Safe Helpline staff,
or records that pertain to communications by a victim
to a victim advocate or Department of Defense Safe
Helpline staff, for the purposes of advising or
providing assistance to the victim.
(c) Who May Claim the Privilege. The privilege may
be claimed by the victim or the guardian or conservator
of the victim. A person who may claim the privilege
may authorize trial counsel or a counsel representing
the victim to claim the privilege on his or her behalf.
The victim advocate or Department of Defense Safe
Helpline staff who received the communication may
claim the privilege on behalf of the victim. The
authority of such a victim advocate, Department of
Defense Safe Helpline staff, guardian, conservator, or
a counsel representing the victim to so assert the
privilege is presumed in the absence of evidence to the
contrary.
(d) Exceptions. There is no privilege under this rule:
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(1) when the victim is dead;
(2) when federal law, state law, Department of
Defense regulation, or service regulation imposes a
duty to report information contained in a
communication;
(3) when a victim advocate or Department of
Defense Safe Helpline staff believes that a victim’s
mental or emotional condition makes the victim a
danger to any person, including the victim;
(4) if the communication clearly contemplated the
future commission of a fraud or crime, or if the services
of the victim advocate or Department of Defense Safe
Helpline staff are sought or obtained to enable or aid
anyone to commit or plan to commit what the victim
knew or reasonably should have known to be a crime
or fraud;
(5) when necessary to ensure the safety and security
of military personnel, military dependents, military
property, classified information, or the
accomplishment of a military mission; or
(6) when admission or disclosure of a
communication is constitutionally required.
(e) Procedure to Determine Admissibility of Victim
Records or Communications.
(1) In any case in which the production or admission
of records or communications of a victim is a matter in
dispute, a party may seek an interlocutory ruling by the
military judge. In order to obtain such a ruling, the
party must:
(A) file a written motion at least 5 days prior to
entry of pleas specifically describing the evidence and
stating the purpose for which it is sought or offered, or
objected to, unless the military judge, for good cause
shown, requires a different time for filing or permits
filing during trial; and
(B) serve the motion on the opposing party, the
military judge and, if practicable, notify the victim or
the victim’s guardian, conservator, or representative
that the motion has been filed and that the victim has
an opportunity to be heard as set forth in subdivision
(e)(2).
(2) Before ordering the production or admission of
evidence of a patient’s records or communication, the
military judge must conduct a hearing, which shall be
closed. At the hearing, the parties may call witnesses,
including the victim, and offer other relevant evidence.
The victim must be afforded a reasonable opportunity
to attend the hearing and be heard. However, the
hearing may not be unduly delayed for this purpose.
The right to be heard under this rule includes the right
to be heard through counsel, including Special
Victims’ Counsel under section 1044e of title 10,
United States Code. In a case before a court-martial
composed of a military judge and members, the
military judge must conduct the hearing outside the
presence of the members.
(3) The military judge may examine the evidence or
a proffer thereof in camera, if such examination is
necessary to rule on the production or admissibility of
protected records or communications. Prior to
conducting an in camera review, the military judge
must find by a preponderance of the evidence that the
moving party showed:
(A) a specific, credible factual basis demonstrating
a reasonable likelihood that the records or
communications would contain or lead to the discovery
of evidence admissible under an exception to the
privilege;
(B) that the requested information meets one of the
enumerated exceptions under subdivision (d) of this
rule;
(C) that the information sought is not merely
cumulative of other information available; and
(D) that the party made reasonable efforts to
obtain the same or substantially similar information
through non-privileged sources.
(4) Any production of disclosure permitted by the
military judge under this rule must be narrowly tailored
to only the specific records or communications, or
portions of such records or communications, that meet
the requirements for one of the enumerated exceptions
to the privilege under subdivision (d) of this Rule and
are included in the stated purpose for which the records
or communications are sought under subdivision
(e)(1)(A) of this rule.
(5) To prevent unnecessary disclosure of evidence of
a victim’s records or communications, the military
judge may issue protective orders or may admit only
portions of the evidence.
(6) The motion, related papers, and the record of the
hearing must be sealed in accordance with R.C.M.
701(g)(2) or 1113 and must remain under seal unless
the military judge, the Judge Advocate General, or an
appellate court orders otherwise.
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SECTION VI
WITNESSES
Rule 601. Competency to testify in general
Every person is competent to be a witness unless these
rules provide otherwise.
Rule 602. Need for personal knowledge
A witness may testify to a matter only if evidence is
introduced sufficient to support a finding that the
witness has personal knowledge of the matter.
Evidence to prove personal knowledge may consist of
the witness’ own testimony. This rule does not apply
to a witness’ expert testimony under Mil. R. Evid. 703.
Rule 603. Oath or affirmation to testify truthfully
Before testifying, a witness must give an oath or
affirmation to testify truthfully. It must be in a form
designed to impress that duty on the witness’
conscience.
Rule 604. Interpreter
An interpreter must be qualified and must give an oath
or affirmation to make a true translation.
Rule 605. Military judge’s competency as a witness
(a) The presiding military judge may not testify as a
witness at any proceeding of that court-martial. A party
need not object to preserve the issue.
(b) This rule does not preclude the military judge from
placing on the record matters concerning docketing of
the case.
Rule 606. Member’s competency as a witness
(a) At the Trial by Court-Martial. A member of a court-
martial may not testify as a witness before the other
members at any proceeding of that court-martial. If a
member is called to testify, the military judge must
give the opposing party an opportunity to object
outside the presence of the members.
(b) During an Inquiry into the Validity of a Finding or
Sentence.
(1) Prohibited Testimony or Other Evidence. During
an inquiry into the validity of a finding or sentence, a
member of a court-martial may not testify about any
statement made or incident that occurred during the
deliberations of that court-martial; the effect of
anything on that member’s or another member’s vote;
or any member’s mental processes concerning the
finding or sentence. The military judge may not receive
a member’s affidavit or evidence of a member’s
statement on these matters.
(2) Exceptions. A member may testify about
whether:
(A) extraneous prejudicial information was
improperly brought to the members’ attention;
(B) unlawful command influence or any other
outside influence was improperly brought to bear on
any member; or
(C) a mistake was made in entering the finding or
sentence on the finding or sentence forms.
Rule 607. Who may impeach a witness
Any party, including the party that called the witness,
may attack the witness’ credibility.
Rule 608. A witness’ character for truthfulness or
untruthfulness
(a) Reputation or Opinion Evidence. A witness’
credibility may be attacked or supported by testimony
about the witness’ reputation for having a character for
truthfulness or untruthfulness, or by testimony in the
form of an opinion about that character. Evidence of
truthful character is admissible only after the witness’
character for truthfulness has been attacked.
(b) Specific Instances of Conduct. Except for a criminal
conviction under Mil. R. Evid. 609, extrinsic evidence
is not admissible to prove specific instances of a
witness’ conduct in order to attack or support the
witness’ character for truthfulness. The military judge
may, on cross-examination, allow them to be inquired
into if they are probative of the character for
truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness
being cross-examined has testified about. By testifying
on another matter, a witness does not waive any
privilege against self-incrimination for testimony that
relates only to the witness’ character for truthfulness.
(c) Evidence of Bias. Bias, prejudice, or any motive to
misrepresent may be shown to impeach the witness
either by examination of the witness or by evidence
otherwise adduced.
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Rule 609. Impeachment by evidence of a criminal
conviction or finding of guilty by summary court-
martial
(a) In General. The following rules apply to attacking
a witness’ character for truthfulness by evidence of a
criminal conviction or finding of guilty by summary
court-martial.
(1) For an offense that, in the convicting jurisdiction,
was punishable by death, dishonorable discharge, or by
imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Mil. R. Evid. 403,
in a court-martial in which the witness is not the
accused; and
(B) must be admitted in a court-martial in which
the witness is the accused, if the probative value of the
evidence outweighs its prejudicial effect to that
accused; and
(2) For any offense regardless of the punishment, the
evidence must be admitted if the court can readily
determine that establishing the elements of the crime
required proving – or the witness’ admitting – a
dishonest act or false statement.
(3) In determining whether an offense tried by court-
martial was punishable by death, dishonorable
discharge, or imprisonment in excess of one year, the
maximum punishment prescribed by the President
under Article 56 at the time of the conviction applies
without regard to whether the case was tried by
general, special, or summary court-martial.
(b) Limit on Using the Evidence After 10 Years.
Subdivision (b) applies if more than 10 years have
passed since the witness’ conviction or finding of
guilty by summary court-martial or release from
confinement for it, whichever is later. Evidence of the
conviction or finding of guilty by summary court-
martial is admissible only if:
(1) its probative value, supported by specific facts
and circumstances, substantially outweighs its
prejudicial effect; and
(2) the proponent gives an adverse party reasonable
written notice of the intent to use it so that the party has
a fair opportunity to contest its use.
(c) Effect of a Pardon, Annulment, or Certificate of
Rehabilitation. Evidence of a conviction or finding of
guilty by summary court-martial is not admissible if:
(1) the conviction or finding of guilty by summary
court-martial has been the subject of a pardon,
annulment, certificate of rehabilitation, or other
equivalent procedure based on a finding that the person
has been rehabilitated, and the person has not been
convicted of a later crime punishable by death,
dishonorable discharge, or imprisonment for more than
one year; or
(2) the conviction or finding of guilty by summary
court-martial has been the subject of a pardon,
annulment, or other equivalent procedure based on a
finding of innocence.
(d) Juvenile Adjudications. Evidence of a juvenile
adjudication is admissible under this rule only if:
(1) the adjudication was of a witness other than the
accused;
(2) an adult’s conviction for that offense would be
admissible to attack the adult’s credibility; and
(3) admitting the evidence is necessary to fairly
determine guilt or innocence.
(e) Limit on use of a finding of guilty by summary
court-martial. A finding of guilty by summary court-
martial may not be used for purposes of impeachment
unless the accused at the summary court-martial
proceeding was represented by military or civilian
defense counsel.
(f) Pendency of an Appeal. A conviction that satisfies
this rule is admissible even if an appeal is pending,
except that a finding of guilty by summary court-
martial may not be used for purposes of impeachment
until review has been completed under Article 64.
Evidence of the pendency is also admissible.
(g) Definition. For purposes of this rule, there is a
conviction in a general or special court-martial when a
sentence has been adjudged.
Rule 610. Religious beliefs or opinions
Evidence of a witness’ religious beliefs or opinions is
not admissible to attack or support the witness’
credibility.
Rule 611. Mode and order of examining witnesses
and presenting evidence
(a) Control by the Military Judge; Purposes.
The military judge should exercise reasonable control
over the mode and order of examining witnesses and
presenting evidence so as to:
(1) make those procedures effective for determining
the truth;
(2) avoid wasting time; and
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(3) protect witnesses from harassment or undue
embarrassment.
(b) Scope of Cross-Examination. Cross-examination
should not go beyond the subject matter of the direct
examination and matters affecting the witness’
credibility. The military judge may allow inquiry into
additional matters as if on direct examination.
(c) Leading Questions. Leading questions should not
be used on direct examination except as necessary to
develop the witness’ testimony. Ordinarily, the
military judge should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness or a witness
identified with an adverse party.
(d) Remote live testimony of a child.
(1) In a case involving domestic violence or a case
involving the abuse of a child, the military judge must,
subject to the requirements of subdivision (d)(3) of this
rule, allow a child victim or child witness to testify
from an area outside the courtroom as prescribed in
R.C.M. 914A.
(2) Definitions.
As used in this rule:
(A) “Child” means a person who is under the age
of 16 at the time of his or her testimony.
(B) “Abuse of a child” means the physical or
mental injury, sexual abuse or exploitation, or
negligent treatment of a child.
(C) “Exploitation” means child pornography or
child prostitution.
(D) “Negligent treatment” means the failure to
provide, for reasons other than poverty, adequate food,
clothing, shelter, or medical care so as to endanger
seriously the physical health of the child.
(E) “Domestic violence” means conduct that may
constitute an offense under Article 128b.
(3) Remote live testimony will be used only where
the military judge makes the following three findings
on the record:
(A) that it is necessary to protect the welfare of the
particular child witness;
(B) that the child witness would be traumatized,
not by the courtroom generally, but by the presence of
the accused; and
(C) that the emotional distress suffered by the
child witness in the presence of the accused is more
than de minimis.
(4) Remote live testimony of a child will not be used
when the accused elects to absent himself from the
courtroom in accordance with R.C.M. 804(d).
(5) In making a determination under subdivision
(d)(3), the military judge may question the child in
chambers, or at some comfortable place other than the
courtroom, on the record for a reasonable period of
time, in the presence of the child, a representative of
the prosecution, a representative of the defense, and the
child’s attorney or guardian ad litem.
Rule 612. Writing used to refresh a witness’
memory
(a) Scope. This rule gives an adverse party certain
options when a witness uses a writing to refresh
memory:
(1) while testifying; or
(2) before testifying, if the military judge decides
that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated
Matter. An adverse party is entitled to have the writing
produced at the hearing, to inspect it, to cross-examine
the witness about it, and to introduce in evidence any
portion that relates to the witness’ testimony. If the
producing party claims that the writing includes
unrelated or privileged matter, the military judge must
examine the writing in camera, delete any unrelated or
privileged portion, and order that the rest be delivered
to the adverse party. Any portion deleted over
objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a
writing is not produced or is not delivered as ordered,
the military judge may issue any appropriate order. If
the prosecution does not comply, the military judge
must strike the witness’ testimony or - if justice so
requires - declare a mistrial.
(d) No Effect on Other Disclosure Requirements. This
rule does not preclude disclosure of information
required to be disclosed under other provisions of these
rules or this Manual.
Rule 613. Witness’ prior statement
(a) Showing or Disclosing the Statement During
Examination. When examining a witness about the
witness’ prior statement, a party need not show it or
disclose its contents to the witness. The party must, on
request, show it or disclose its contents to an adverse
party’s attorney.
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(b) Extrinsic Evidence of a Prior Inconsistent
Statement. Extrinsic evidence of a witness’ prior
inconsistent statement is admissible only if the witness
is given an opportunity to explain or deny the statement
and an adverse party is given an opportunity to
examine the witness about it, or if justice so requires.
Subdivision (b) does not apply to an opposing party’s
statement under Mil R. Evid. 801(d)(2).
Rule 614. Court-martial’s calling or examining a
witness
(a) Calling. The military judge may—sua sponte or at
the request of the members or the suggestion of a
party—call a witness. Each party is entitled to cross-
examine the witness. When the members wish to call
or recall a witness, the military judge must determine
whether the testimony would be relevant and not
barred by any rule or provision of this Manual.
(b) Examining. The military judge or members may
examine a witness regardless of who calls the witness.
Members must submit their questions to the military
judge in writing. Following the opportunity for review
by both parties, the military judge must rule on the
propriety of the questions, and ask the questions in an
acceptable form on behalf of the members. When the
military judge or the members call a witness who has
not previously testified, the military judge may conduct
the direct examination or may assign the responsibility
to counsel for any party.
(c) Objections. Objections to the calling of witnesses
by the military judge or the members or to the
interrogation by the military judge or the members may
be made at the time or at the next available opportunity
when the members are not present.
Rule 615. Excluding witnesses
At a party’s request, the military judge must order
witnesses excluded so that they cannot hear other
witnesses’ testimony, or the military judge may do so
sua sponte. This rule does not authorize excluding:
(a) the accused;
(b) a member of an Armed service or an employee of
the United States after being designated as a
representative of the United States by trial counsel;
(c) a person whose presence a party shows to be
essential to presenting the party’s case;
(d) a person authorized by statute to be present; or
(e) a victim of an offense from the trial of an accused
for that offense, unless the military judge, after
receiving clear and convincing evidence, determines
that testimony by the victim would be materially
altered if the victim heard other testimony at that
hearing or proceeding.
SECTION VII
OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion testimony by lay witnesses
If a witness is not testifying as an expert, testimony in
the form of an opinion is limited to one that is:
(a) rationally based on the witness’ perception;
(b) helpful to clearly understanding the witness’
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Mil. R.
Evid. 702.
Rule 702. Testimony by expert witnesses
A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in
the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles
and methods; and
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Rule 703. Bases of an expert’s opinion testimony
An expert may base an opinion on facts or data in the
case that the expert has been made aware of or
personally observed. If experts in the particular field
would reasonably rely on those kinds of facts or data
in forming an opinion on the subject, they need not be
admissible for the opinion to be admitted. If the facts
or data would otherwise be inadmissible, the proponent
of the opinion may disclose them to the members of a
court-martial only if the military judge finds that their
probative value in helping the members evaluate the
opinion substantially outweighs their prejudicial
effect.
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Rule 704. Opinion on an ultimate issue
An opinion is not objectionable just because it
embraces an ultimate issue.
Rule 705. Disclosing the facts or data underlying an
expert’s opinion
Unless the military judge orders otherwise, an expert
may state an opinion - and give the reasons for it –
without first testifying to the underlying facts or data.
The expert may be required to disclose those facts or
data on cross-examination.
Rule 706. Court-appointed expert witnesses
(a) Appointment Process. Trial counsel, defense
counsel, and the court-martial have equal opportunity
to obtain expert witnesses under Article 46 and R.C.M.
703.
(b) Compensation. The compensation of expert
witnesses is governed by R.C.M. 703.
(c) Accused’s Choice of Experts. This rule does not
limit an accused in calling any expert at the accused’s
own expense.
Rule 707. Polygraph examinations
(a) Prohibitions. Notwithstanding any other provision
of law, the result of a polygraph examination, the
polygraph examiner’s opinion, or any reference to an
offer to take, failure to take, or taking of a polygraph
examination is not admissible.
(b) Statements Made During a Polygraph
Examination. This rule does not prohibit admission of
an otherwise admissible statement made during a
polygraph examination.
SECTION VIII
HEARSAY
Rule 801. Definitions that apply to this section;
exclusions from hearsay
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if
the person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made the statement.
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at
the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
(d) Statements that Are Not Hearsay. A statement that
meets the following conditions is not hearsay:
(1) A Declarant-Witness’ Prior Statement. The
declarant testifies and is subject to cross-examination
about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony
and was given under penalty of perjury at a trial,
hearing, or other proceeding or in a deposition;
(B) is consistent with the declarant’s testimony
and is offered:
(i) to rebut an express or implied charge that the
declarant recently fabricated it or acted from a recent
improper influence or motive in so testifying; or
(ii) to rehabilitate the declarant’s credibility as a
witness when attacked on another ground; or
(C) identifies a person as someone the declarant
perceived earlier.
(2) An Opposing Party’s Statement. The statement is
offered against an opposing party and:
(A) was made by the party in an individual or
representative capacity;
(B) is one the party manifested that it adopted or
believed to be true;
(C) was made by a person whom the party
authorized to make a statement on the subject;
(D) was made by the party’s agent or employee on
a matter within the scope of that relationship and while
it existed; or
(E) was made by the party’s co-conspirator during
and in furtherance of the conspiracy. The statement
must be considered but does not by itself establish the
declarant’s authority under (C); the existence or scope
of the relationship under (D); or the existence of the
conspiracy or participation in it under (E).
Rule 802. The rule against hearsay
Hearsay is not admissible unless any of the
following provides otherwise:
(a) a federal statute applicable in trial by courts-
martial; or
(b) these rules.
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Rule 803. Exceptions to the rule against hearsay –
regardless of whether the declarant is available as a
witness
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
available as a witness:
(1) Present Sense Impression. A statement describing
or explaining an event or condition, made while or
immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a
startling event or condition, made while the declarant
was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical
Condition. A statement of the declarant’s then-existing
state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as
mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the
fact remembered or believed unless it relates to the
validity or terms of the declarant’s will.
(4) Statement Made for Medical Diagnosis or
Treatment. A statement that—
(A) is made for—and is reasonably pertinent to—
medical diagnosis or treatment; and
(B) describes medical history; past or present
symptoms or sensations; their inception; or their
general cause.
(5) Recorded Recollection. A record that—
(A) is on a matter the witness once knew about but
now cannot recall well enough to testify fully and
accurately;
(B) was made or adopted by the witness when the
matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’ knowledge.
If admitted, the record may be read into evidence but
may be received as an exhibit only if offered by an
adverse party.
(6) Records of a Regularly Conducted Activity. A
record of an act, event, condition, opinion, or diagnosis
if:
(A) the record was made at or near the time by - or
from information transmitted by - someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a uniformed service, business,
institution, association, profession, organization,
occupation, or calling of any kind, whether or not
conducted for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony
of the custodian or another qualified witness, or by a
certification that complies with Mil. R. Evid. 902(11)
or with a statute permitting certification in a criminal
proceeding in a court of the United States; and
(E) the opponent does not show that the source of
information or the method or circumstance of
preparation indicate a lack of trustworthiness. Records
of regularly conducted activities include, but are not
limited to, enlistment papers, physical examination
papers, fingerprint cards, forensic laboratory reports,
chain of custody documents, morning reports and other
personnel accountability documents, service records,
officer and enlisted qualification records, logs, unit
personnel diaries, individual equipment records, daily
strength records of prisoners, and rosters of prisoners.
(7) Absence of a Record of a Regularly Conducted
Activity. Evidence that a matter is not included in a
record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter
did not occur or exist;
(B) a record was regularly kept for a matter of that
kind; and
(C) the opponent does not show that the possible
source of the information or other circumstances
indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public
office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty
to report, but not including a matter observed by law-
enforcement personnel and other personnel acting in a
law enforcement capacity; or
(iii) against the government, factual findings
from a legally authorized investigation; and
(B) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness. Notwithstanding subdivision
(8)(A)(ii), the following are admissible as a record of a
fact or event if made by a person within the scope of
the person’s official duties and those duties included a
duty to know or to ascertain through appropriate and
trustworthy channels of information the truth of the
fact or event and to record such fact or event:
enlistment papers, physical examination papers,
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fingerprint cards, forensic laboratory reports, chain of
custody documents, morning reports and other
personnel accountability documents, service records,
officer and enlisted qualification records, court-martial
conviction records, logs, unit personnel diaries,
individual equipment records, daily strength records of
prisoners, and rosters of prisoners.
(9) Public Records of Vital Statistics. A record of a
birth, death, or marriage, if reported to a public office
in accordance with a legal duty.
(10) Absence of a Public Record.
Testimony - or a certification under Rule 902 - that a
diligent search failed to disclose a public record or
statement if:
(A) the testimony or certification is admitted to
prove that
(i) the record or statement does not exist; or
(ii) a matter did not occur or exist, if a public office
regularly kept a record or statement for a matter of that
kind; and
(B) a counsel for the government who intends to
offer a certification provides written notice of that
intent at least 14 days before trial, and the accused does
not object in writing within 7 days of receiving the
notice - unless the military judge sets a different time
for the notice or the objection.
(11) Records of Religious Organizations Concerning
Personal or Family History. A statement of birth,
legitimacy, ancestry, marriage, divorce, death,
relationship by blood or marriage, or similar facts of
personal or family history, contained in a regularly
kept record of a religious organization.
(12) Certificates of Marriage, Baptism, and Similar
Ceremonies. A statement of fact contained in a
certificate:
(A) made by a person who is authorized by a
religious organization or by law to perform the act
certified;
(B) attesting that the person performed a marriage or
similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the
act or within a reasonable time after it.
(13) Family Records. A statement of fact about
personal or family history contained in a family record,
such as a Bible, genealogy, chart, engraving on a ring,
inscription on a portrait, or engraving on an urn or
burial marker.
(14) Records of Documents that Affect an Interest in
Property. The record of a document that purports to
establish or affect an interest in property if:
(A) the record is admitted to prove the content of the
original recorded document, along with its signing and
its delivery by each person who purports to have signed
it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that
kind in that office.
(15) Statements in Documents that Affect an Interest in
Property. A statement contained in a document that
purports to establish or affect an interest in property if
the matter stated was relevant to the document’s
purpose unless later dealings with the property are
inconsistent with the truth of the statement or the
purport of the document.
(16) Statements in Ancient Documents. A statement in
a document that was prepared before January 1, 1998,
and whose authenticity is established.
(17) Market Reports and Similar Commercial
Publications. Market quotations, lists (including
government price lists), directories, or other
compilations that are generally relied on by the public
or by persons in particular occupations.
(18) Statements in Learned Treatises, Periodicals, or
Pamphlets. A statement contained in a treatise,
periodical, or pamphlet if:
(A) the statement is called to the attention of an
expert witness on cross-examination or relied on by the
expert on direct examination; and
(B) the publication is established as a reliable
authority by the expert’s admission or testimony, by
another expert’s testimony, or by judicial notice.
If admitted, the statement may be read into evidence
but not received as an exhibit.
(19) Reputation Concerning Personal or Family
History. A reputation among a person’s family by
blood, adoption, or marriage - or among a person’s
associates or in the community - concerning the
person’s birth, adoption, legitimacy, ancestry,
marriage, divorce, death, relationship by blood,
adoption, or marriage, or similar facts of personal or
family history, age, ancestry, or other similar fact of
the person’s personal or family history.
(20) Reputation Concerning Boundaries or General
History. A reputation in a community - arising before
the controversy - concerning boundaries of land in the
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community or customs that affect the land, or
concerning general historical events important to that
community, State, or nation.
(21) Reputation Concerning Character. A reputation
among a person’s associates or in the community
concerning the person’s character.
(22) Judgment of a Previous Conviction. Evidence of a
final judgment of conviction if:
(A) the judgment was entered after a trial or guilty
plea, but not a nolo contendere plea;
(B) the conviction was for a crime punishable by
death, dishonorable discharge, or imprisonment for
more than a year;
(C) the evidence is admitted to prove any fact
essential to the judgment; and
(D) when offered by the prosecution for a purpose
other than impeachment, the judgment was against the
accused.
The pendency of an appeal may be shown but does not
affect admissibility. In determining whether a crime
tried by court-martial was punishable by death,
dishonorable discharge, or imprisonment for more than
one year, the maximum punishment prescribed by the
President under Article 56 of the Uniform Code of
Military Justice at the time of the conviction applies
without regard to whether the case was tried by
general, special, or summary court-martial.
(23) Judgments Involving Personal, Family, or
General History, or a Boundary. A judgment that is
admitted to prove a matter of personal, family, or
general history, or boundaries, if the matter:
(A) was essential to the judgment; and
(B) could be proved by evidence of reputation.
Rule 804. Exceptions to the rule against hearsay –
when the declarant is unavailable as a witness
(a) Criteria for Being Unavailable. A declarant is
considered to be unavailable as a witness if the
declarant:
(1) is exempted from testifying about the subject
matter of the declarant’s statement because the military
judge rules that a privilege applies;
(2) refuses to testify about the subject matter despite
the military judge’s order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical
illness, or mental illness; or
(5) is absent from the trial or hearing and the
statement’s proponent has not been able, by process or
other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a
hearsay exception under subdivision (b)(1) or (b)(5);
(B) the declarant’s attendance or testimony, in the
case of a hearsay exception under subdivision (b)(2),
(b)(3), or (b)(4); or
(6) has previously been deposed about the subject
matter and is absent due to military necessity, age,
imprisonment, non-amenability to process, or other
reasonable cause.
Subdivision (a) does not apply if the statement’s
proponent procured or wrongfully caused the
declarant’s unavailability as a witness in order to
prevent the declarant from attending or testifying.
(b) The Exceptions. The following are exceptions to the
rule against hearsay, and are not excluded by that rule
if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given by a witness at a trial, hearing, or
lawful deposition, whether given during the current
proceeding or a different one; and
(B) is now offered against a party who had an
opportunity and similar motive to develop it by direct,
cross-, or redirect examination.
Subject to the limitations in Articles 49 and 50, a
record of testimony given before a court-martial, court
of inquiry, military commission, other military
tribunal, or preliminary hearing under Article 32 is
admissible under subdivision (b)(1) if the record of the
testimony is a verbatim record.
(2) Statement under the Belief of Imminent Death. In
a prosecution for any offense resulting in the death of
the alleged victim, a statement that the declarant, while
believing the declarant’s death to be imminent, made
about its cause or circumstances.
(3) Statement against Interest. A statement that:
(A) a reasonable person in the declarant’s position
would have made only if the person believed it to be
true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim
against someone else or to expose the declarant to civil
or criminal liability; and
III-48
(B) is supported by corroborating circumstances
that clearly indicate its trustworthiness, if it tends to
expose the declarant to criminal liability and is offered
to exculpate the accused.
(4) Statement of Personal or Family History. A
statement about:
(A) the declarant’s own birth, adoption,
legitimacy, ancestry, marriage, divorce, relationship by
blood or marriage, or similar facts of personal or family
history, even though the declarant had no way of
acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts,
as well as death, if the declarant was related to the
person by blood, adoption, or marriage or was so
intimately associated with the person’s family that the
declarant’s information is likely to be accurate
(5) Other Exceptions. [Transferred to Mil. R. Evid.
807]
(6) Statement Offered against a Party that
Wrongfully Caused the Declarant’s Unavailability. A
statement offered against a party that wrongfully
caused or acquiesced in wrongfully causing the
declarant’s unavailability as a witness, and did so
intending that result.
Rule 805. Hearsay within hearsay
Hearsay within hearsay is not excluded by the rule
against hearsay if each part of the combined statements
conforms with an exception or exclusion to the rule.
Rule 806. Attacking and supporting the declarant’s
credibility
When a hearsay statement - or a statement described in
Mil. R. Evid. 801(d)(2)(C), (D), or (E) - has been
admitted in evidence, the declarant’s credibility may be
attacked, and then supported, by any evidence that
would be admissible for those purposes if the declarant
had testified as a witness. The military judge may
admit evidence of the declarant’s inconsistent
statement or conduct, regardless of when it occurred or
whether the declarant had an opportunity to explain or
deny it. If the party against whom the statement was
admitted calls the declarant as a witness, the party may
examine the declarant on the statement as if on cross-
examination.
Rule 807. Residual exception
(a) In General. Under the following conditions, a
hearsay statement is not excluded by the rule against
hearsay even if the statement is not admissible under a
hearsay exception in Mil. R. Evid. 803 or 804:
(1) the statement is supported by sufficient
guarantees of trustworthiness—after considering the
totality of the circumstances under which it is made
and evidence, if any, corroborating the statement; and
(2) the statement is more probative on the point for
which it is offered than any other evidence that the
proponent can obtain through reasonable efforts.
(b) Notice. The statement is admissible only if the
proponent gives an adverse party reasonable notice of
the intent to offer the statement—including its
substance and the declarant’s name—so that the party
has a fair opportunity to meet it. The notice must be
provided in writing before the trial or hearing—or in
any form during the trial or hearing if the court, for
good cause, excuses a lack of earlier notice.
SECTION IX
AUTHENTICATION AND IDENTIFICATION
Rule 901. Authenticating or identifying evidence
(a) In General. To satisfy the requirement of
authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it
is.
(b) Examples. The following are examples only - not a
complete list - of evidence that satisfies the
requirement:
(1) Testimony of a Witness with Knowledge.
Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion about Handwriting. A
nonexpert’s opinion that handwriting is genuine, based
on a familiarity with it that was not acquired for the
current litigation.
(3) Comparison by an Expert Witness or the Trier of
Fact. A comparison with an authenticated specimen by
an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The
appearance, contents, substance, internal patterns, or
other distinctive characteristics of the item, taken
together with all the circumstances.
III-49
(5) Opinion about a Voice. An opinion identifying a
person’s voice—whether heard firsthand or through
mechanical or electronic transmission or recording—
based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.
(6) Evidence about a Telephone Conversation. For a
telephone conversation, evidence that a call was made
to the number assigned at the time to:
(A) a particular person, if circumstances,
including self-identification, show that the person
answering was the one called; or
(B) a particular business, if the call was made to a
business and the call related to business reasonably
transacted over the telephone.
(7) Evidence about Public Records. Evidence that:
(A) a document was recorded or filed in a public
office as authorized by law; or
(B) a purported public record or statement is from
the office where items of this kind are kept.
(8) Evidence about Ancient Documents or Data
Compilations. For a document or data compilation,
evidence that it:
(A) is in a condition that creates no suspicion
about its authenticity;
(B) was in a place where, if authentic, it would
likely be; and
(C) is at least 20 years old when offered.
(9) Evidence about a Process or System. Evidence
describing a process or system and showing that it
produces an accurate result.
(10) Methods Provided by a Statute or Rule. Any
method of authentication or identification allowed by a
federal statute, a rule prescribed by the Supreme Court,
or an applicable regulation prescribed pursuant to
statutory authority.
Rule 902. Evidence that is self-authenticating
The following items of evidence are self-
authenticating; they require no extrinsic evidence of
authenticity in order to be admitted:
(1) Domestic Public Documents that are Sealed and
Signed. A document that bears:
(A) a seal purporting to be that of the United States;
any State, district, Commonwealth, territory, or insular
possession of the United States; the former Panama
Canal Zone; the Trust Territory of the Pacific Islands;
a political subdivision of any of these entities; or a
department, agency, or officer of any entity named
above; and
(B) a signature purporting to be an execution or
attestation.
(2) Domestic Public Documents that are Not Sealed
but are Signed and Certified. A document that bears no
seal if:
(A) it bears the signature of an officer or employee
of an entity named in subdivision (1)(A) above; and
(B) another public officer who has a seal and official
duties within that same entity certifies under seal—or
its equivalent—that the signer has the official capacity
and that the signature is genuine.
(3) Foreign Public Documents. A document that
purports to be signed or attested by a person who is
authorized by a foreign country’s law to do so. The
document must be accompanied by a final certification
that certifies the genuineness of the signature and
official position of the signer or attester - or of any
foreign official whose certificate of genuineness
relates to the signature or attestation or is in a chain of
certificates of genuineness relating to the signature or
attestation. The certification may be made by a
secretary of a United States embassy or legation; by a
consul general, vice consul, or consular agent of the
United States; or by a diplomatic or consular official of
the foreign country assigned or accredited to the United
States. If all parties have been given a reasonable
opportunity to investigate the document’s authenticity
and accuracy, the military judge may, for good cause,
either:
(A) order that it be treated as presumptively
authentic without final certification; or
(B) allow it to be evidenced by an attested summary
with or without final certification.
(4) Certified Copies of Public Records. A copy of an
official record - or a copy of a document that was
recorded or filed in a public office as authorized by law
- if the copy is certified as correct by:
(A) the custodian or another person authorized to
make the certification; or
(B) a certificate that complies with subdivision (1),
(2), or (3) above, a federal statute, a rule prescribed by
the Supreme Court, or an applicable regulation
prescribed pursuant to statutory authority.
(4a) Documents or Records of the United States
Accompanied by Attesting Certificates. Documents or
records kept under the authority of the United States by
any department, bureau, agency, office, or court
III-50
thereof when attached to or accompanied by an
attesting certificate of the custodian of the document or
record without further authentication.
(5) Official Publications. A book, pamphlet, or other
publication purporting to be issued by a public
authority.
(6) Newspapers and Periodicals. Printed material
purporting to be a newspaper or periodical.
(7) Trade Inscriptions and the Like. An inscription,
sign, tag, or label purporting to have been affixed in the
course of business and indicating origin, ownership, or
control.
(8) Acknowledged Documents. A document
accompanied by a certificate of acknowledgment that
is lawfully executed by a notary public or another
officer who is authorized to take acknowledgments.
(9) Commercial Paper and Related Documents.
Commercial paper, a signature on it, and related
documents, to the extent allowed by general
commercial law.
(10) Presumptions under a Federal Statute or
Regulation. A signature, document, or anything else
that a federal statute, or an applicable regulation
prescribed pursuant to statutory authority, declares to
be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly
Conducted Activity. The original or a copy of a
domestic record that meets the requirements of Mil. R.
Evid. 803(6)(A)-(C), as shown by a certification of the
custodian or another qualified person that complies
with a federal statute or a rule prescribed by the
Supreme Court. Before the trial or hearing, or at a later
time that the military judge allows for good cause, the
proponent must give an adverse party reasonable
written notice of the intent to offer the record and must
make the record and certification available for
inspection so that the party has a fair opportunity to
challenge them.
(12) Reserved.
(13) Certified Records Generated by an Electronic
Process or System. A record generated by an electronic
process or system that produces an accurate result, as
shown by a certification of a qualified person that
complies with the certification requirements of Mil. R.
Evid. 902(11). The proponent also must meet the
notice requirements of Mil. R. Evid. Rule 902(11).
(14) Certified Data Copied from an Electronic Device,
Storage Medium, or File. Data copied from an
electronic device, storage medium, or file, if
authenticated by a process of digital identification, as
shown by a certification of a qualified person that
complies with the certification requirements of Mil. R.
Evid. 902(11). The proponent also must meet the
notice requirements of Mil. R. Evid. 902(11).
Rule 903. Subscribing witness’ testimony
A subscribing witness’ testimony is necessary to
authenticate a writing only if required by the law of the
jurisdiction that governs its validity.
SECTION X
CONTENTS OF WRITINGS, RECORDINGS,
AND PHOTOGRAPHS
Rule 1001. Definitions that apply to this section
In this section:
(a) A “writing” consists of letters, words, numbers, or
their equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers,
or their equivalent recorded in any manner.
(c) A “photograph” means a photographic image or its
equivalent stored in any form.
(d) An “original” of a writing or recording means the
writing or recording itself or any counterpart intended
to have the same effect by the person who executed or
issued it. For electronically stored information,
“original” means any printout or other output readable
by sight if it accurately reflects the information. An
“original” of a photograph includes the negative or a
print from it.
(e) A “duplicate” means a counterpart produced by a
mechanical, photographic, chemical, electronic, or
other equivalent process or technique that accurately
reproduces the original.
Rule 1002. Requirement of the original
An original writing, recording, or photograph is
required in order to prove its content unless these rules,
this Manual, or a federal statute provides otherwise.
Rule 1003. Admissibility of duplicates
A duplicate is admissible to the same extent as the
original unless a genuine question is raised about the
original’s authenticity or the circumstances make it
unfair to admit the duplicate.
III-51
Rule 1004. Admissibility of other evidence of
content
An original is not required and other evidence of the
content of a writing, recording, or photograph is
admissible if:
(a) Originals lost or destroyed. All the originals are lost
or destroyed, and not by the proponent acting in bad
faith;
(b) Original not obtainable. An original cannot be
obtained by any available judicial process;
(c) Original in possession of opponent. The party
against whom the original would be offered had control
of the original; was at that time put on notice, by
pleadings or otherwise, that the original would be a
subject of proof at the trial or hearing; and fails to
produce it at the trial or hearing; or
(d) Collateral matters. The writing, recording, or
photograph is not closely related to a controlling issue.
Rule 1005. Copies of public records to prove
content
The proponent may use a copy to prove the content of
an official record—or of a document that was recorded
or filed in a public office as authorized by law—if these
conditions are met: the record or document is otherwise
admissible; and the copy is certified as correct in
accordance with Mil. R. Evid. 902(4) or is testified to
be correct by a witness who has compared it with the
original. If no such copy can be obtained by reasonable
diligence, then the proponent may use other evidence
to prove the content.
Rule 1006. Summaries to prove content
The proponent may use a summary, chart, or
calculation to prove the content of voluminous
writings, recordings, or photographs that cannot be
conveniently examined in court. The proponent must
make the originals or duplicates available for
examination or copying, or both, by other parties at a
reasonable time or place. The military judge may order
the proponent to produce them in court.
Rule 1007. Testimony or statement of a party to
prove content
The proponent may prove the content of a writing,
recording, or photograph by the testimony, deposition,
or written statement of the party against whom the
evidence is offered. The proponent need not account
for the original.
Rule 1008. Functions of the military judge and the
members
Ordinarily, the military judge determines whether the
proponent has fulfilled the factual conditions for
admitting other evidence of the content of a writing,
recording, or photograph under Mil. R. Evid. 1004 or
1005. When a court-martial is composed of a military
judge and members, the members determine - in
accordance with Mil. R. Evid. 104(b) - any issue about
whether:
(a) an asserted writing, recording, or photograph ever
existed;
(b) another one produced at the trial or hearing is the
original; or
(c) other evidence of content accurately reflects the
content.
SECTION XI
MISCELLANEOUS RULES
Rule 1101. Applicability of these rules
(a) In General. Except as otherwise provided in this
Manual, these rules apply generally to all courts-
martial, including summary courts-martial, Article
39(a) sessions, Article 30a proceedings, remands,
proceedings in revision, and contempt proceedings
other than contempt proceedings in which the judge
may act summarily.
(b) Rules Relaxed. The application of these rules may
be relaxed in presentencing proceedings as provided
under R.C.M. 1001 and otherwise as provided in this
Manual.
(c) Rules on Privilege. The rules on privilege apply at
all stages of a case or proceeding.
(d) Exceptions. Unless otherwise provided for in this
Manual, these rules—except for Mil. R. Evid. 412 and
those on privilege—do not apply to the following:
(1) the military judge’s determination, under Rule
104(a), on a preliminary question of fact governing
admissibility;
(2) preliminary hearings under Article 32;
(3) proceedings for vacation of suspension of
sentence under Article 72; and
III-52
(4) miscellaneous actions and proceedings related to
search authorizations, pretrial restraint, pretrial
confinement, or other proceedings authorized under
the Uniform Code of Military Justice or this Manual
that are not listed in subdivision (a).
Rule 1102. Amendments
(a) General Rule. Amendments to the Federal Rules of
Evidence—other than Articles III and V—will amend
parallel provisions of the Military Rules of Evidence
by operation of law 18 months after the effective date
of such amendments, unless action to the contrary is
taken by the President.
(b) Rules Determined Not to Apply. The President has
determined that the following Federal Rules of
Evidence do not apply to the Military Rules of
Evidence: Rules 301, 302, 415, and 902(12).
Rule 1103. Title
These rules may be cited as the Military Rules of
Evidence.
Part IV
PUNITIVE ARTICLES
(Statutory text of each Article is in bold)
IV-1
Discussion
Part IV of the Manual addresses the punitive articles, 10 U.S.C.§§
877-934. Part IV is organized by paragraph beginning with Article
77; therefore, each paragraph number is associated with an article.
For example, paragraph 60 addresses Article 120, Rape and sexual
assault generally. Article 77, Principals, and Article 79, Lesser
included offenses, are located in the punitive article subchapter of
Title 10 but are not chargeable offenses as such.
Other than Articles 77 and 79, the punitive articles of the code
are discussed using the following sequence:
a. Text of the article
b. Elements of the offense or offenses
c. Explanation
d. Maximum punishment
e. Sample specifications
Presidentially prescribed lesser included offenses, as
authorized under Article 79(b)(2), are established in Appendix 12A.
For offenses not listed in Appendix 12A that may or may not be
lesser included offenses, see R.C.M. 307(c)(3) and its accompanying
Discussion regarding charging in the alternative. Practitioners are
advised to read and comply with United States v. Jones, 68 M.J. 465
(C.A.A.F. 2010).
Sample specifications are provided in subparagraph e of each
paragraph in Part IV and are meant to serve as a guide. The
specifications may be varied in form and content as necessary.
R.C.M. 307 prescribes rules for preferral of charges and for
drafting specifications. The discussion under that rule explains how
to allege violations under the code using the format of charge and
specification; however, practitioners are advised to read and comply
with United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) and
United States v. Jones, 68 M.J. 465 (C.A.A.F. 2010).
The term “elements,” as used in Part IV, includes both the
statutory elements of the offense and any aggravating factors listed
under the President’s authority which increases the maximum
permissible punishment when specified aggravating factors are pled
and proven.
The prescriptions of maximum punishments in subparagraph d
of each paragraph of Part IV must be read in conjunction with
R.C.M. 1003, which prescribes additional punishments that may be
available and additional limitations on punishments.
1. Article 77 (10 U.S.C. 877)—Principals
a. Text of statute.
Any person punishable under this chapter who—
(1) commits an offense punishable by this
chapter, or aids, abets, counsels, commands, or
procures its commission; or
(2) causes an act to be done which if directly
performed by him would be punishable by this
chapter;
is a principal.
b. Explanation
.
(1) Purpose. Article 77 does not define an offense.
Its purpose is to make clear that a person need not
personally perform the acts necessary to constitute an
offense to be guilty of it. A person who aids, abets,
counsels, commands, or procures the commission of an
offense, or who causes an act to be done which, if done
by that person directly would be an offense, is equally
guilty of the offense as one who commits it directly,
and may be punished to the same extent.
Article 77 eliminates the common law distinctions
between principal in the first degree (“perpetrator”);
principal in the second degree (one who aids, counsels,
commands, or encourages the commission of an
offense and who is present at the scene of the crime—
commonly known as an “aider and abettor”); and
accessory before the fact (one who aids, counsels,
commands, or encourages the commission of an
offense and who is not present at the scene of the
crime). All of these are now “principals.”
(2) Who may be liable for an offense.
(a) Perpetrator. A perpetrator is one who actually
commits the offense, either by the perpetrator’s own
hand, or by causing an offense to be committed by
knowingly or intentionally inducing or setting in
motion acts by an animate or inanimate agency or
instrumentality which result in the commission of an
offense. For example, a person who knowingly
conceals contraband drugs in an automobile, and then
induces another person, who is unaware and has no
reason to know of the presence of drugs, to drive the
automobile onto a military installation, is, although not
present in the automobile, guilty of wrongful
introduction of drugs onto a military installation. (On
these facts, the driver would be guilty of no crime.)
Similarly, if, upon orders of a superior, a soldier shot a
person who appeared to the soldier to be an enemy, but
was known to the superior as a friend, the superior
would be guilty of murder (but the soldier would be
guilty of no offense).
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(b) Other Parties. If one is not a perpetrator, to be
guilty of an offense committed by the perpetrator, the
person must:
(i) Assist, encourage, advise, instigate, counsel,
command, or procure another to commit, or assist,
encourage, advise, counsel, or command another in the
commission of the offense; and
(ii) Share in the criminal purpose or design.
One who, without knowledge of the criminal venture
or plan, unwittingly encourages or renders assistance
to another in the commission of an offense is not guilty
of a crime. See the parentheticals in the examples in
subparagraph 1.b.(2)(a) of this paragraph. In some
circumstances, inaction may make one liable as a party,
where there is a duty to act. If a person (for example, a
security guard) has a duty to interfere in the
commission of an offense, but does not interfere, that
person is a party to the crime if such a noninterference
is intended to and does operate as an aid or
encouragement to the actual perpetrator.
(3) Presence.
(a) Not necessary. Presence at the scene of the
crime is not necessary to make one a party to the crime
and liable as a principal. For example, one who,
knowing that a person intends to shoot another person
and intending that such an assault be carried out,
provides the person with a pistol, is guilty of assault
when the offense is committed, even though not
present at the scene.
(b) Not sufficient. Mere presence at the scene of a
crime does not make one a principal unless the
requirements of subparagraph 1.b.(2)(a) or (b) have
been met.
(4) Parties whose intent differs from the
perpetrator’s. When an offense charged requires proof
of a specific intent or particular state of mind as an
element, the evidence must prove that the accused had
that intent or state of mind, whether the accused is
charged as a perpetrator or an “other party” to crime. It
is possible for a party to have a state of mind more or
less culpable than the perpetrator of the offense. In
such a case, the party may be guilty of a more or less
serious offense than that committed by the perpetrator.
For example, when a homicide is committed, the
perpetrator may act in the heat of sudden passion
caused by adequate provocation and be guilty of
manslaughter, while the party who, without such
passion, hands the perpetrator a weapon and
encourages the perpetrator to kill the victim, would be
guilty of murder. On the other hand, if a party assists a
perpetrator in an assault on a person who, known only
to the perpetrator, is an officer, the party would be
guilty only of assault, while the perpetrator would be
guilty of assault on an officer.
(5) Responsibility for other crimes. A principal may
be convicted of crimes committed by another principal
if such crimes are likely to result as a natural and
probable consequence of the criminal venture or
design. For example, the accused who is a party to a
burglary is guilty as a principal not only of the offense
of burglary, but also, if the perpetrator kills an
occupant in the course of the burglary, of murder. (See
also paragraph 5, Conspiracy, concerning liability for
offenses committed by co-conspirators.)
(6) Principals independently liable. One may be a
principal, even if the perpetrator is not identified or
prosecuted, or is acquitted.
(7) Withdrawal. A person may withdraw from a
common venture or design and avoid liability for any
offenses committed after the withdrawal. To be
effective, the withdrawal must meet the following
requirements:
(a) It must occur before the offense is committed;
(b) The assistance, encouragement, advice,
instigation, counsel, command, or procurement given
by the person must be effectively countermanded or
negated; and
(c) The withdrawal must be clearly communicated
to the would-be perpetrators or to appropriate law
enforcement authorities in time for the perpetrators to
abandon the plan or for law enforcement authorities to
prevent the offense.
2. Article 78 (10 U.S.C. 878)—Accessory after the
fact
a. Text of statute.
Any person subject to this chapter who, knowing
that an offense punishable by this chapter has been
committed, receives, comforts, or assists the
offender in order to hinder or prevent his
apprehension, trial, or punishment shall be
punished as a court-martial may direct.
b. Elements.
(1) That an offense punishable by the UCMJ was
committed by a certain person;
(2) That the accused knew that this person had
committed such offense;
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(3) That thereafter the accused received, comforted,
or assisted the offender; and
(4) That the accused did so for the purpose of
hindering or preventing the apprehension, trial, or
punishment of the offender.
c. Explanation
.
(1) In general. The assistance given a principal by an
accessory after the fact is not limited to assistance
designed to effect the escape or concealment of the
principal, but also includes acts performed to conceal
the commission of the offense by the principal (for
example, by concealing evidence of the offense).
(2) Failure to report offense. The mere failure to
report a known offense will not make one an accessory
after the fact. Such failure may violate a general order
or regulation, however, and thus constitute an offense
under Article 92. See paragraph 18. If the offense
involved is a serious offense, and the accused does
anything to conceal it, failure to report it may constitute
the offense of misprision of a serious offense, under
Article 131c. See paragraph 84.
(3) Offense punishable by the UCMJ. The term
“offense punishable by this chapter” in the text of the
article means any offense described in the UCMJ.
(4) Status of principal. The principal who committed
the offense in question need not be subject to the
UCMJ, but the offense committed must be punishable
by the UCMJ.
(5) Conviction or acquittal of principal. The
prosecution must prove that a principal committed the
offense to which the accused is allegedly an accessory
after the fact. However, evidence of the conviction or
acquittal of the principal in a separate trial is not
admissible to show that the principal did or did not
commit the offense. Furthermore, an accused may be
convicted as an accessory after the fact despite the
acquittal in a separate trial of the principal whom the
accused allegedly comforted, received, or assisted.
(6) Accessory after the fact not a lesser included
offense. The offense of being an accessory after the fact
is not a lesser included offense of the primary offense.
(7) Actual knowledge. Actual knowledge is required
but may be proved by circumstantial evidence.
d. Maximum punishment.
Any person subject to the
UCMJ who is found guilty as an accessory after the
fact to an offense punishable under the UCMJ shall be
subject to the maximum punishment authorized for the
principal offense, except that in no case shall the death
penalty nor more than one-half of the maximum
confinement authorized for that offense be adjudged,
nor shall the period of confinement exceed 10 years in
any case, including offenses for which life
imprisonment may be adjudged.
e. Sample specification.
In that __________ (personal jurisdiction data),
knowing that (at/on board—location), on or about
_____ 20 __, had committed an offense punishable by
the Uniform Code of Military Justice, to wit:
__________, did, (at/on board—location) (subject-
matter jurisdiction data, if required), on or about _____
20 __, in order to (hinder) (prevent) the (apprehension)
(trial) (punishment) of the said __________, (receive)
(comfort) (assist) the said __________ by
__________.
3. Article 79 (10 U.S.C. 879)—Conviction of offense
charged, Lesser included offenses, and attempts
a. Text of statute.
(a) IN GENERAL.—An accused may be found
guilty of any of the following:
(1) The offense charged.
(2) A lesser included offense.
(3) An attempt to commit the offense charged.
(4) An attempt to commit a lesser included
offense, if the attempt is an offense in its own right.
(b) LESSER INCLUDED OFFENSE
DEFINED.—In this section (article), the term
“lesser included offense” means—
(1) an offense that is necessarily included in the
offense charged; and
(2) any lesser included offense so designated by
regulation prescribed by the President.
(c) REGULATORY AUTHORITY.—Any
designation of a lesser included offense in a
regulation referred to in subsection (b) shall be
reasonably included in the greater offense.
b. Explanation.
(1) In general. Article 79 contains two provisions
concerning notice of Lesser included offenses: (1)
offenses that are “necessarily included” in the charged
offense in accordance with Article 79(b)(1); and (2)
offenses designated as Lesser included offenses by the
President under Article 79(b)(2). Each provision sets
forth an independent basis for providing notice of a
lesser included offense.
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(2) “Necessarily included” offenses. Under Article
79(b)(1), an offense is “necessarily included” in a
charged offense when the elements of the lesser
offense are a subset of the elements of the charged
offense, thereby putting the accused on notice to be
prepared to defend against the lesser offense in
addition to the offense specifically charged. A lesser
offense is “necessarily included” when:
(a) All of the elements of the lesser offense are
included in the greater offense, and the common
elements are identical (for example, wrongful
appropriation as a lesser included offense of larceny);
(b) All of the elements of the lesser offense are
included in the greater offense, but at least one element
is a subset by being legally less serious (for example,
unlawful entry as a lesser included offense of
burglary); or
(c) All of the elements of the lesser offense are
“included and necessary” parts of the greater offense,
but the mental element is a subset by being legally less
serious (for example, voluntary manslaughter as a
lesser included offense of premeditated murder).
(3) Offenses designated by the President. Under
Article 79(b)(2), Congress has authorized the President
to designate Lesser included offenses by regulation.
(a) The President may designate an offense as a
lesser included offense under Article 79(b)(2), subject
to the requirement in Article 79(c) that the designated
lesser included offense “shall be reasonably included
in the greater offense.”
(b) Appendix 12A sets forth the list of Lesser
included offenses designated by the President under
Article 79(b)(2).
(c) The President may include a “necessarily
included offense” in the list of offenses prescribed
under Article 79(b)(2), but is not required to do so. A
court may identify an offense as a “necessarily
included” offense under Article 79(b)(1) regardless of
whether the offense has been designated under Article
79(b)(2).
Discussion
For offenses that may or may not be lesser included offenses, see
R.C.M. 307(c)(3) and its accompanying Discussion regarding
charging in the alternative.
(4) Sua sponte duty. Subject to R.C.M. 920(g), a
military judge must instruct panel members on lesser
included offenses reasonably raised by the evidence.
(5) Multiple Lesser included offenses. When the
offense charged is a compound offense comprising two
or more Lesser included offenses, an accused may be
found guilty of any or all of the offenses included in
the offense charged.
(6) Findings of guilty to a lesser included offense. A
court-martial may find an accused not guilty of the
offense charged, but guilty of a lesser included offense
by the process of exception and substitution. The court-
martial may except (that is, delete) the words in the
specification that pertain to the offense charged and, if
necessary, substitute language appropriate to the lesser
included offense. For example, the accused is charged
with murder in violation of Article 118, but found
guilty of voluntary manslaughter in violation of Article
119. Such a finding may be worded as follows:
Of the Specification: Guilty, except the word
“murder” substituting therefor the words “willfully and
unlawfully kill,” of the excepted word, not guilty, of
the substituted words, guilty.
Of the Charge: Not guilty, but guilty of a violation
of Article 119.
If a court-martial finds an accused guilty of a lesser
included offense, the finding as to the charge shall state
a violation of the specific punitive article violated and
not a violation of Article 79.
4. Article 80 (10 U.S.C. 880)—Attempts
a. Text of statute.
(a) An act, done with specific intent to commit an
offense under this chapter, amounting to more than
mere preparation and tending, even though failing
to effect its commission, is an attempt to commit
that offense.
(b) Any person subject to this chapter who
attempts to commit any offense punishable by this
chapter shall be punished as a court-martial may
direct, unless otherwise specifically prescribed.
(c) Any person subject to this chapter may be
convicted of an attempt to commit an offense
although it appears on the trial that the offense was
consummated.
b. Elements.
(1) That the accused did a certain overt act;
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(2) That the act was done with the specific intent to
commit a certain offense under the UCMJ;
(3) That the act amounted to more than mere
preparation; and
(4) That the act apparently tended to effect the
commission of the intended offense.
c. Explanation.
(1) In general. To constitute an attempt there must
be a specific intent to commit the offense accompanied
by an overt act which directly tends to accomplish the
unlawful purpose.
(2) More than preparation. Preparation consists of
devising or arranging the means or measures necessary
for the commission of the offense. The overt act
required goes beyond preparatory steps and is a direct
movement toward the commission of the offense. For
example, a purchase of matches with the intent to burn
a haystack is not an attempt to commit arson, but it is
an attempt to commit arson to apply a burning match
to a haystack, even if no fire results. The overt act need
not be the last act essential to the consummation of the
offense. For example, an accused could commit an
overt act, and then voluntarily decide not to go through
with the intended offense. An attempt would
nevertheless have been committed, for the combination
of a specific intent to commit an offense, plus the
commission of an overt act directly tending to
accomplish it, constitutes the offense of attempt.
Failure to complete the offense, whatever the cause, is
not a defense.
(3) Factual impossibility. A person who purposely
engages in conduct which would constitute the offense
if the attendant circumstances were as that person
believed them to be is guilty of an attempt. For
example, if A, without justification or excuse and with
intent to kill B, points a gun at B and pulls the trigger,
A is guilty of attempt to murder, even though,
unknown to A, the gun is defective and will not fire.
Similarly, a person who reaches into the pocket of
another with the intent to steal that person’s billfold is
guilty of an attempt to commit larceny, even though the
pocket is empty.
(4) Voluntary abandonment. It is a defense to an
attempt offense that the person voluntarily and
completely abandoned the intended crime, solely
because of the person’s own sense that it was wrong,
prior to the completion of the crime. The voluntary
abandonment defense is not allowed if the
abandonment results, in whole or in part, from other
reasons, for example, the person feared detection or
apprehension, decided to await a better opportunity for
success, was unable to complete the crime, or
encountered unanticipated difficulties or unexpected
resistance. A person who is entitled to the defense of
voluntary abandonment may nonetheless be guilty of a
lesser included, completed offense. For example, a
person who voluntarily abandoned an attempted armed
robbery may nonetheless be guilty of assault with a
dangerous weapon.
(5) Solicitation. Soliciting another to commit an
offense does not constitute an attempt. See paragraph
6 for a discussion of Article 82, Solicitation.
(6) Attempts not under Article 80. While most
attempts should be charged under Article 80, the
following attempts are specifically addressed by some
other article, and should be charged accordingly:
(a) Article 85—Desertion
(b) Article 94—Mutiny or sedition
(c) Article 100—Subordinate compelling
surrender
(d) Article 103a—Espionage
(e) Article 103b—Aiding the enemy
(f) Article 119a—Death or injury of an unborn
child
(g) Article 128—Assault
(7) Regulations. An attempt to commit conduct
which would violate a lawful general order or
regulation under Article 92 (see paragraph 18) should
be charged under Article 80. It is not necessary in such
cases to prove that the accused intended to violate the
order or regulation, but it must be proved that the
accused intended to commit the prohibited conduct.
d. Maximum punishment. Any person subject to the
UCMJ who is found guilty of an attempt under Article
80 to commit any offense punishable by the UCMJ
shall be subject to the same maximum punishment
authorized for the commission of the offense
attempted, except that in no case shall the death penalty
be adjudged, and in no case, other than attempted
murder, shall confinement exceeding 20 years be
adjudged. Except in the cases of attempts of rape and
sexual assault under Article 120(a) or (b), and rape and
sexual assault of a child under Article 120b(a) or (b),
mandatory minimum punishment provisions shall not
apply.
e. Sample specification.
In that __________ (personal jurisdiction data) did,
(at/on board—location) (subject-matter jurisdiction
IV-6
data, if required), on or about _____ 20 __, attempt to
(describe offense with sufficient detail to include
expressly or by necessary implication every element).
5. Article 81 (10 U.S.C. 881)—Conspiracy
a. Text of statute.
(a) Any person subject to this chapter who
conspires with any other person to commit an
offense under this chapter shall, if one or more of
the conspirators does an act to effect the object of
the conspiracy, be punished as a court-martial may
direct.
(b) Any person subject to this chapter who
conspires with any other person to commit an
offense under the law of war, and who knowingly
does an overt act to effect the object of the
conspiracy, shall be punished, if death results to one
or more of the victims, by death or such other
punishment as a court-martial or military
commission may direct, and, if death does not result
to any of the victims, by such punishment, other
than death, as a court-martial or military
commission may direct.
b. Elements.
(1) Conspiracy.
(a) That the accused entered into an agreement
with one or more persons to commit an offense under
the UCMJ; and
(b) That, while the agreement continued to exist,
and while the accused remained a party to the
agreement, the accused or at least one of the co-
conspirators performed an overt act for the purpose of
bringing about the object of the conspiracy.
(2) Conspiracy when offense is an offense under the
law of war resulting in the death of one or more
victims.
(a) That the accused entered into an agreement
with one or more persons to commit an offense under
the law of war;
(b) That, while the agreement continued to exist,
and while the accused remained a party to the
agreement, the accused knowingly performed an overt
act for the purpose of bringing about the object of the
conspiracy; and
(c) That death resulted to one or more victims.
c. Explanation.
(1) Co-conspirators. Two or more persons are
required in order to have a conspiracy. Knowledge of
the identity of co-conspirators and their particular
connection with the criminal purpose need not be
established. The accused must be subject to the UCMJ,
but the other co-conspirators need not be. A person
may be guilty of conspiracy although incapable of
committing the intended offense. For example, a
bedridden conspirator may knowingly furnish the car
to be used in a robbery. The joining of another
conspirator after the conspiracy has been established
does not create a new conspiracy or affect the status of
the other conspirators. However, the conspirator who
joined an existing conspiracy can be convicted of this
offense only if, at or after the time of joining the
conspiracy, an overt act in furtherance of the object of
the agreement is committed.
(2) Agreement. The agreement in a conspiracy need
not be in any particular form or manifested in any
formal words. It is sufficient if the minds of the parties
arrive at a common understanding to accomplish the
object of the conspiracy, and this may be shown by the
conduct of the parties. The agreement need not state
the means by which the conspiracy is to be
accomplished or what part each conspirator is to play.
(3) Object of the agreement. The object of the
agreement must, at least in part, involve the
commission of one or more offenses under the UCMJ.
An agreement to commit several offenses is ordinarily
but a single conspiracy. Some offenses require two or
more culpable actors acting in concert. There can be no
conspiracy where the agreement exists only between
the persons necessary to commit such an offense.
Examples include dueling, bigamy, extramarital sexual
conduct, and bribery.
(4) Overt act.
(a) The overt act must be independent of the
agreement to commit the offense; must take place at
the time of or after the agreement; must be done by one
or more of the conspirators, but not necessarily the
accused; and must be done to effectuate the object of
the agreement.
(b) The overt act need not be in itself criminal, but
it must be a manifestation that the agreement is being
executed. Although committing the intended offense
may constitute the overt act, it is not essential that the
object offense be committed. Any overt act is enough,
no matter how preliminary or preparatory in nature, as
long as it is a manifestation that the agreement is being
executed.
(c) An overt act by one conspirator becomes the
act of all without any new agreement specifically
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directed to that act and each conspirator is equally
guilty even though each does not participate in, or have
knowledge of, all of the details of the execution of the
conspiracy.
(5) Liability for offenses. Each conspirator is liable
for all offenses committed pursuant to the conspiracy
by any of the co-conspirators while the conspiracy
continues and the person remains a party to it.
(6) Withdrawal. A party to the conspiracy who
abandons or withdraws from the agreement to commit
the offense before the commission of an overt act by
any conspirator is not guilty of conspiracy. An
effective withdrawal or abandonment must consist of
affirmative conduct which is wholly inconsistent with
adherence to the unlawful agreement and which shows
that the party has severed all connection with the
conspiracy. A conspirator who effectively abandons or
withdraws from the conspiracy after the performance
of an overt act by one of the conspirators remains guilty
of conspiracy and of any offenses committed pursuant
to the conspiracy up to the time of the abandonment or
withdrawal. However, a person who has abandoned or
withdrawn from the conspiracy is not liable for
offenses committed thereafter by the remaining
conspirators. The withdrawal of a conspirator from the
conspiracy does not affect the status of the remaining
members.
(7) Factual impossibility. It is not a defense that the
means adopted by the conspirators to achieve their
object, if apparently adapted to that end, were actually
not capable of success, or that the conspirators were not
physically able to accomplish their intended object.
(8) Conspiracy as a separate offense. A conspiracy
to commit an offense is a separate and distinct offense
from the offense which is the object of the conspiracy,
and both the conspiracy and the consummated offense
which was its object may be charged, tried, and
punished. The commission of the intended offense may
also constitute the overt act which is an element of the
conspiracy to commit that offense.
(9) Special conspiracies under Article 134. The
United States Code prohibits conspiracies to commit
certain specific offenses which do not require an overt
act. These conspiracies should be charged under
Article 134. Examples include conspiracies to impede
or injure any federal officer in the discharge of duties
under 18 U.S.C. § 372, conspiracies against civil rights
under 18 U.S.C. § 241, and certain drug conspiracies
under 21 U.S.C. § 846. See subparagraph
91.c.(4)(a)(1)(iii).
d. Maximum punishment.
(1) Offenses under the UCMJ. Any person subject to
the UCMJ who is found guilty of conspiracy shall be
subject to the maximum punishment authorized for the
offense that is the object of the conspiracy, except that
in no case shall the death penalty be imposed, subject
to subparagraph d.(2) of this paragraph.
(2) Offenses under the law of war resulting in the
death of one or more victims. Any person subject to the
UCMJ who conspires with any other person to commit
an offense under the law of war, and who knowingly
does an overt act to effect the object of the conspiracy,
shall be punished, if death results to one or more of the
victims, by death or such other punishment as a court-
martial or military commission may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a court-martial or
military commission may direct.
e. Sample specification.
(1) Conspiracy.
In that ________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____20__, conspire
with _______ (and______) to commit an offense under
the Uniform Code of Military Justice, to wit: (larceny
of ______, of a value of (about) $____, the property of
_____), and in order to effect the object of the
conspiracy the said ______ (and _____) did _____.
(2) Conspiracy when an offense is an offense under
the law of war resulting in the death of one or more
victims.
In that ________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____20__, conspire
with _______ (and______) to commit an offense under
the law of war, to wit: (murder of ________), and in
order to effect the object of the conspiracy the said
_______ knowingly did ______ resulting in the death
of _______.
6. Article 82 (10 U.S.C. 882)—Soliciting commission
of offenses
a. Text of statute.
(a) SOLICITING COMMISSION OF
OFFENSES GENERALLY.—Any person subject
to this chapter who solicits or advises another to
commit an offense under this chapter (other than
an offense specified in subsection (b)) shall be
punished as a court-martial may direct.
IV-8
(b) SOLICITING DESERTION, MUTINY,
SEDITION, OR MISBEHAVIOR BEFORE THE
ENEMY.—Any person subject to this chapter who
solicits or advises another to violate section 885 of
this title (article 85), section 894 of this title (article
94), or section 899 of this title (article 99)—
(1) if the offense solicited or advised is attempted
or is committed, shall be punished with the
punishment provided for the commission of the
offense; and
(2) if the offense solicited or advised is not
attempted or committed, shall be punished as a
court-martial may direct.
b. Elements.
(1) That the accused solicited or advised a certain
person or persons to commit a certain offense under the
UCMJ; and
(2) That the accused did so with the intent that the
offense actually be committed.
[Note: If the offense solicited or advised was
attempted or committed, add the following element]
(3) That the offense solicited or advised was
(committed) (attempted) as the proximate result of the
solicitation.
c. Explanation.
(1) Instantaneous offense. The offense is complete
when a solicitation is made or advice is given with the
specific wrongful intent to influence another or others
to commit any offense under the UCMJ. It is not
necessary that the person or persons solicited or
advised agree to or act upon the solicitation or advice.
(2) Form of solicitation. Solicitation may be by
means other than word of mouth or writing. Any act or
conduct which reasonably may be construed as a
serious request or advice to commit any offense under
the UCMJ may constitute solicitation. It is not
necessary that the accused act alone in the solicitation
or in the advising; the accused may act through other
persons in committing this offense.
(3) Solicitations as an element in another offense.
Some offenses require, as an element of proof, some
act of solicitation by the accused. These offenses are
separate and distinct from solicitations under Article
82. When the accused’s act of solicitation constitutes,
by itself, a separate offense, the accused should be
charged with that separate, distinct offense—for
example, pandering and obstructing justice.
d. Maximum punishment.
(1) Solicitation of espionage. Such punishment that
a court-martial may direct, other than death.
(2) Solicitation of desertion; mutiny or sedition;
misbehavior before the enemy. If the offense solicited
or advised is committed or attempted, then the accused
shall be punished with the punishment provided for the
commission of the offense solicited or advised. If the
offense solicited or advised is not committed or
attempted, then the following punishment may be
imposed: dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 15 years, or the
maximum punishment of the underlying offense,
whichever is lesser.
(3) Solicitation of all other offenses. Any person
subject to the UCMJ who is found guilty of soliciting
or advising another person to commit an offense not
specified in subparagraph d.(1)-(2) of this paragraph
that, if committed by one subject to the UCMJ, would
be punishable under the UCMJ, shall be subject to the
following maximum punishment: dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 10 years, or the maximum punishment
of the underlying offense, whichever is lesser.
e. Sample specifications.
(1) For soliciting another to commit an offense.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(solicit) (advise) __________ (to disobey a general
regulation, to wit: __________) (to steal __________,
of a value of (about) $__________, the property of
__________) (to __________), by_____________.
(2) For soliciting desertion (Article 85) or mutiny
(Article 94(a)).
In that __________ (personal jurisdiction data), did,
(at/on board—location), on or about _____ 20 __, (a
time of war) by (here state the manner and form of
solicitation or advice), (solicit) (advise) __________
(and __________) to (desert in violation of Article 85)
(mutiny in violation of Article 94(a)) [*and, as a result
of such (solicitation) (advice), the offense (solicited)
(advised) was, on or about __________, 20 __, (at/on
board—location), (attempted) (committed) by
__________ (and __________)].
[*Note: This language should be added to the end of
the specification if the offense solicited or advised is
actually committed.]
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(3) For soliciting sedition (Article 94(a)) or
misbehavior before or in the presence of the enemy
(Article 99).
In that __________ (personal jurisdiction data) did,
(at/on board—location), on or about _____ 20 __, (a
time of war) by (here state the manner and form of
solicitation or advice), (solicit) (advise) __________
(and __________) to commit (an act of misbehavior
before the enemy in violation of Article 99) (sedition
in violation of Article 94(a)) [*and, as a result of such
(solicitation) (advice), the offense (solicited) (advised)
was, on or about _____ 20 __, (at/on board—location),
committed by __________ (and __________)].
[*Note: This language should be added to the end of
the specification if the offense solicited or advised is
actually committed.]
7. Article 83 (10 U.S.C. 883)—Malingering
a. Text of statute.
Any person subject to this chapter who, with the
intent to avoid work, duty, or service—
(1) feigns illness, physical disablement, mental
lapse, or mental derangement; or
(2) intentionally inflicts self-injury;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused was assigned to, or was aware
of prospective assignment to, or availability for, the
performance of work, duty, or service;
(2) That the accused feigned illness, physical
disablement, mental lapse, mental derangement, or
intentionally inflicted injury upon himself or herself;
and
(3) That the accused’s purpose or intent in doing so
was to avoid the work, duty, or service.
[Note: If the offense was committed in time of war
or in a hostile fire pay zone, add the following element]
(4) That the offense was committed (in time of war)
(in a hostile fire pay zone).
c. Explanation.
(1) Nature of offense. The essence of this offense is
the design to avoid performance of any work, duty, or
service which may properly or normally be expected of
one in the military service. Whether to avoid all duty,
or only a particular job, it is the purpose to shirk which
characterizes the offense. Hence, the nature or
permanency of a self-inflicted injury is not material on
the question of guilt. The seriousness of a sham
physical or mental disability is also not material on the
question of guilt. Evidence of the extent of the self-
inflicted injury or feigned disability may, however, be
relevant as a factor indicating the presence or absence
of the purpose.
(2) How injury inflicted. The injury may be inflicted
by nonviolent as well as by violent means and may be
accomplished by any act or omission which produces,
prolongs, or aggravates any sickness or disability.
Thus, voluntary starvation which results in debility is a
self-inflicted injury and when done for the purpose of
avoiding work, duty, or service constitutes a violation
of this article.
Discussion
Bona fide suicide attempts should not be charged as criminal
offenses. When making a determination whether the injury by the
Servicemember was a bona fide suicide attempt, the convening
authority should consider factors including, but not limited to, health
conditions, personal stressors, and DoD policy related to suicide
prevention.
d. Maximum punishment.
(1) Feigning illness, physical disablement, mental
lapse, or mental derangement. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(2) Feigning illness, physical disablement, mental
lapse, or mental derangement in a hostile fire pay zone
or in time of war. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 3 years.
(3) Intentional self-inflicted injury. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
(4) Intentional self-inflicted injury in a hostile fire
pay zone or in time of war. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 10 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (in a hostile fire pay zone)
(subject-matter jurisdiction data, if required) (on or
about _____ 20 __) (from about _____ 20 __ to about
_____ 20 __), (a time of war) for the purpose of
avoiding ((his) (her) duty as officer of the day) ((his)
(her) duty as aircraft mechanic) (work in the mess hall)
(service as an enlisted person) (__________) (feign (a
headache) (a sore back) (illness) (mental lapse) (mental
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derangement) (__)) (intentionally injure
himself/herself by __________).
8. Article 84 (10 U.S.C. 884)—Breach of medical
quarantine
a. Text of statute.
Any person subject to this chapter—
(1) who is ordered into medical quarantine by a
person authorized to issue such order; and
(2) who, with knowledge of the quarantine and
the limits of the quarantine, goes beyond those
limits before being released from the quarantine by
proper authority;
shall be punished as a court-martial may direct.
b. Elements.
(1) That a certain person ordered the accused into
medical quarantine;
(2) That the person was authorized to order the
accused into medical quarantine;
(3) That the accused knew of this medical quarantine
and the limits thereof; and
(4) That the accused went beyond the limits of the
medical quarantine before being released therefrom by
proper authority.
[Note: If the offense involved violation of a medical
quarantine imposed in response to emergence of a
“quarantinable communicable disease” as defined in
42 C.F.R. § 70.1, add the following element]
(5) That the medical quarantine was imposed in
reference to a quarantinable communicable disease (to
wit:__________) as defined in 42 C.F.R. § 70.1.
c. Explanation.
(1) Distinguishing “quarantine” from “quarters”
orders. Putting a person “on quarters” or other
otherwise excusing a person from duty because of
illness does not of itself constitute a medical
quarantine.
d. Maximum punishment.
(1) Breach of medical quarantine involving a
quarantinable communicable disease defined by 42
C.F.R. § 70.1. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 1 year.
(2) Breach of medical quarantine—all other cases.
Bad-conduct discharge, forfeiture of two-thirds pay per
month for 6 months, and confinement for 6 months.
e. Sample specification.
In that __________ (personal jurisdiction data)
having been placed in medical quarantine by a person
authorized to order the accused into medical quarantine
(for a quarantinable communicable disease as defined
in 42 C.F.R. § 70.1, to wit: _________), having
knowledge of the quarantine and the limits of the
quarantine, did, (at/on board—location) (subject-
matter jurisdiction data, if required), on or about _____
20 __, break said medical quarantine.
9. Article 85 (10 U.S.C. 885)—Desertion
a. Text of statute.
(a) Any member of the armed forces who—
(1) without authority goes or remains absent
from his unit, organization, or place of duty with
intent to remain away therefrom permanently;
(2) quits his unit, organization, or place of duty
with intent to avoid hazardous duty or to shirk
important service; or
(3) without being regularly separated from one
of the armed forces enlists or accepts an
appointment in the same or another one of the
armed forces without fully disclosing the fact that
he has not been regularly separated, or enters any
foreign armed service except when authorized by
the United States;
is guilty of desertion.
(b) Any commissioned officer of the armed forces
who, after tender of his resignation and before
notice of its acceptance, quits his post or proper
duties without leave and with intent to remain away
therefrom permanently is guilty of desertion.
(c) Any person found guilty of desertion or
attempt to desert shall be punished, if the offense is
committed in time of war, by death or such other
punishment as a court-martial may direct, but if the
desertion or attempt to desert occurs at any other
time, by such punishment, other than death, as a
court-martial may direct.
b. Elements.
(1) Desertion with intent to remain away
permanently.
(a) That the accused absented himself or herself
from his or her unit, organization, or place of duty;
(b) That such absence was without authority;
(c) That the accused, at the time the absence began
or at some time during the absence, intended to remain
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away from his or her unit, organization, or place of
duty permanently; and
(d) That the accused remained absent until the date
alleged.
[Note: If the absence was terminated by
apprehension, add the following element]
(e) That the accused’s absence was terminated by
apprehension.
(2) Desertion with intent to avoid hazardous duty or
to shirk important service.
(a) That the accused quit his or her unit,
organization, or other place of duty;
(b) That the accused did so with the intent to avoid
a certain duty or shirk a certain service;
(c) That the duty to be performed was hazardous
or the service important;
(d) That the accused knew that he or she would be
required for such duty or service; and
(e) That the accused remained absent until the date
alleged.
(3) Desertion before notice of acceptance of
resignation.
(a) That the accused was a commissioned officer
of an armed force of the United States, and had
tendered his or her resignation;
(b) That before he or she received notice of the
acceptance of the resignation, the accused quit his or
her post or proper duties;
(c) That the accused did so with the intent to
remain away permanently from his or her post or
proper duties; and
(d) That the accused remained absent until the date
alleged.
[Note: If the absence was terminated by
apprehension, add the following element]
(e) That the accused’s absence was terminated by
apprehension.
(4) Attempted desertion.
(a) That the accused did a certain overt act;
(b) That the act was done with the specific intent
to desert;
(c) That the act amounted to more than mere
preparation; and
(d) That the act apparently tended to effect the
commission of the offense of desertion.
c. Explanation.
(1) Desertion with intent to remain away
permanently.
(a) In general. Desertion with intent to remain
away permanently is complete when the person absents
himself or herself without authority from his or her
unit, organization, or place of duty, with the intent to
remain away therefrom permanently. A prompt
repentance and return, while material in extenuation, is
no defense. It is not necessary that the person be absent
entirely from military jurisdiction and control.
(b) Absence without authority—inception,
duration, termination. See subparagraph 10.c.
(c) Intent to remain away permanently.
(i) The intent to remain away permanently from
the unit, organization, or place of duty may be formed
any time during the unauthorized absence. The intent
need not exist throughout the absence, or for any
particular period of time, as long as it exists at some
time during the absence.
(ii) The accused must have intended to remain
away permanently from the unit, organization, or place
of duty. When the accused had such an intent, it is no
defense that the accused also intended to report for
duty elsewhere, or to enlist or accept an appointment
in the same or a different armed force.
(iii) The intent to remain away permanently may
be proved by circumstantial evidence. Among the
circumstances from which an inference may be drawn
that an accused intended to remain absent permanently
are: that the period of absence was lengthy; that the
accused attempted to, or did, dispose of uniforms or
other military property; that the accused purchased a
ticket for a distant point or was arrested, apprehended,
or surrendered a considerable distance from the
accused’s station; that the accused could have
conveniently surrendered to military control but did
not; that the accused was dissatisfied with the
accused’s unit, ship, or with military service; that the
accused made remarks indicating an intention to
desert; that the accused was under charges or had
escaped from confinement at the time of the absence;
that the accused made preparations indicative of an
intent not to return (for example, financial
arrangements); or that the accused enlisted or accepted
an appointment in the same or another armed force
without disclosing the fact that the accused had not
been regularly separated, or entered any foreign armed
service without being authorized by the United States.
On the other hand, the following are included in the
circumstances which may tend to negate an inference
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that the accused intended to remain away permanently:
previous long and excellent service; that the accused
left valuable personal property in the unit or on the
ship; or that the accused was under the influence of
alcohol or drugs during the absence. These lists are
illustrative only.
(iv) Entries on documents, such as personnel
accountability records, which administratively refer to
an accused as a “deserter” are not evidence of intent to
desert.
(v) Proof of, or a plea of guilty to, an
unauthorized absence, even of extended duration, does
not, without more, prove guilt of desertion.
(d) Effect of enlistment or appointment in the same
or a different armed force. Article 85(a)(3) does not
state a separate offense. Rather, it is a rule of evidence
by which the prosecution may prove intent to remain
away permanently. Proof of an enlistment or
acceptance of an appointment in a Service without
disclosing a preexisting duty status in the same or a
different service provides the basis from which an
inference of intent to permanently remain away from
the earlier unit, organization, or place of duty may be
drawn. Furthermore, if a person, without being
regularly separated from one of the armed forces,
enlists or accepts an appointment in the same or
another armed force, the person’s presence in the
military service under such an enlistment or
appointment is not a return to military control and does
not terminate any desertion or absence without
authority from the earlier unit or organization, unless
the facts of the earlier period of service are known to
military authorities. If a person, while in desertion,
enlists or accepts an appointment in the same or
another armed force, and deserts while serving the
enlistment or appointment, the person may be tried and
convicted for each desertion.
(2) Quitting unit, organization, or place of duty with
intent to avoid hazardous duty or to shirk important
service.
(a) Hazardous duty or important service.
“Hazardous duty” or “important service” may include
service such as duty in a combat or other dangerous
area; embarkation for certain foreign or sea duty;
movement to a port of embarkation for that purpose;
entrainment for duty on the border or coast in time of
war or threatened invasion or other disturbances; strike
or riot duty; or employment in aid of the civil power in,
for example, protecting property, or quelling or
preventing disorder in times of great public disaster.
Such services as drill, target practice, maneuvers, and
practice marches are not ordinarily “hazardous duty or
important service.” Whether a duty is hazardous or a
service is important depends upon the circumstances of
the particular case, and is a question of fact for the
court-martial to decide.
(b) Quits. “Quits” in Article 85 means “goes
absent without authority.”
(c) Actual knowledge. Article 85(a)(2) requires
proof that the accused actually knew of the hazardous
duty or important service. Actual knowledge may be
proved by circumstantial evidence.
(3) Attempting to desert. Once the attempt is made,
the fact that the person desists, voluntarily or
otherwise, does not cancel the offense. The offense is
complete, for example, if the person, intending to
desert, hides in an empty freight car on a military
reservation, intending to escape by being taken away
in the car. Entering the car with the intent to desert is
the overt act. For a more detailed discussion of
attempts, see paragraph 4. For an explanation
concerning intent to remain away permanently, see
paragraph 9.c.(1)(c).
(4) Prisoner with executed punitive discharge. A
prisoner whose dismissal or dishonorable or bad-
conduct discharge has been executed is not a “member
of the armed forces” within the meaning of Articles 85
or 86, although the prisoner may still be subject to
military law under Article 2(a)(7). If the facts warrant,
such a prisoner could be charged with escape from
confinement under Article 87a or an offense under
Article 134.
d. Maximum punishment.
(1) Completed or attempted desertion with intent to
avoid hazardous duty or to shirk important service.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(2) Other cases of completed or attempted desertion.
(a) Terminated by apprehension. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
(b) Terminated otherwise. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
(3) In time of war. Death or such other punishment
as a court-martial may direct.
e. Sample specifications.
IV-13
(1) Desertion with intent to remain away
permanently.
In that __________ (personal jurisdiction data), did,
on or about _____ 20 __, (a time of war) without
authority and with intent to remain away therefrom
permanently, absent himself/herself from (his) (her)
(unit) (organization) (place of duty), to wit:
__________, located at (__________), and did remain
so absent in desertion until ((he) (she) was
apprehended) on or about _____ 20 __.
(2) Desertion with intent to avoid hazardous duty or
shirk important service.
In that __________ (personal jurisdiction data),
knowing that (he) (she) would be required to perform
(hazardous duty) (important service), namely:
__________, did, on or about _____ 20 __, (a time of
war) with intent to (avoid said hazardous duty) (shirk
said important service), quit (his) (her) (unit)
(organization) (place of duty), to wit: __________,
located at (__________), and did remain so absent in
desertion until on or about _____ 20 __.
(3) Desertion prior to acceptance of resignation.
In that __________ (personal jurisdiction data)
having tendered (his) (her) resignation and prior to due
notice of the acceptance of the same, did, on or about
_____ 20 __, (a time of war) without leave and with
intent to remain away therefrom permanently, quit
(his) (her) (post) (proper duties), to wit: __________,
and did remain so absent in desertion until ((he) (she)
was apprehended) on or about _____ 20 __.
(4) Attempted desertion.
In that __________ (personal jurisdiction data), did
(at/on board—location), on or about _____ 20 __, (a
time of war) attempt to (absent himself/herself from
(his) (her) (unit) (organization) (place of duty) to wit:
__________, without authority and with intent to
remain away therefrom permanently) (quit (his) (her)
(unit) (organization) (place of duty), to wit:
__________, located at __________, with intent to
(avoid hazardous duty) (shirk important service)
namely ____) (_____).
10. Article 86 (10 U.S.C. 886)—Absence without
leave
a. Text of statute.
Any member of the armed forces who, without
authority—
(1) fails to go to his appointed place of duty at the
time prescribed;
(2) goes from that place; or
(3) absents himself or remains absent from his
unit, organization, or place of duty at which he is
required to be at the time prescribed;
shall be punished as a court-martial may direct.
b. Elements.
(1) Failure to go to appointed place of duty.
(a) That a certain authority appointed a certain
time and place of duty for the accused;
(b) That the accused knew of that time and place;
and
(c) That the accused, without authority, failed to
go to the appointed place of duty at the time prescribed.
(2) Going from appointed place of duty.
(a) That a certain authority appointed a certain
time and place of duty for the accused;
(b) That the accused knew of that time and place;
and
(c) That the accused, without authority, went from
the appointed place of duty after having reported at
such place.
(3) Absence from unit, organization, or place of duty.
(a) That the accused absented himself or herself
from his or her unit, organization, or place of duty at
which he or she was required to be;
(b) That the absence was without authority from
anyone competent to give him or her leave; and
(c) That the absence was for a certain period of
time.
[Note: if the absence was terminated by
apprehension, add the following element]
(d) That the absence was terminated by
apprehension.
(4) Abandoning watch or guard.
(a) That the accused was a member of a guard,
watch, or duty;
(b) That the accused absented himself or herself
from his or her guard, watch, or duty section;
(c) That absence of the accused was without
authority; and
[Note: If the absence was with intent to abandon the
accused’s guard, watch, or duty section, add the
following element]
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(d) That the accused intended to abandon his or her
guard, watch, or duty section.
(5) Absence from unit, organization, or place of duty
with intent to avoid maneuvers or field exercises.
(a) That the accused absented himself or herself
from his or her unit, organization, or place of duty at
which he or she was required to be;
(b) That the absence of the accused was without
authority;
(c) That the absence was for a certain period of
time;
(d) That the accused knew that the absence would
occur during a part of a period of maneuvers or field
exercises; and
(e) That the accused intended to avoid all or part
of a period of maneuvers or field exercises.
c. Explanation.
(1) In general. This article is designed to cover every
case not elsewhere provided for in which any member
of the armed forces is through the member’s own fault
not at the place where the member is required to be at
a prescribed time. It is not necessary that the person be
absent entirely from military jurisdiction and control.
The first part of this article—relating to the appointed
place of duty—applies whether the place is appointed
as a rendezvous for several or for one only.
(2) Actual knowledge. The offenses of failure to go
to and going from appointed place of duty require
proof that the accused actually knew of the appointed
time and place of duty. The offense of absence from
unit, organization, or place of duty with intent to avoid
maneuvers or field exercises requires proof that the
accused actually knew that the absence would occur
during a part of a period of maneuvers or field
exercises. Actual knowledge may be proved by
circumstantial evidence.
(3) Intent. Specific intent is not an element of
unauthorized absence. Specific intent is an element for
certain aggravated unauthorized absences.
(4) Aggravated forms of unauthorized absence.
There are variations of unauthorized absence under
Article 86(3) which are more serious because of
aggravating circumstances such as duration of the
absence, a special type of duty from which the accused
absents himself or herself, and a particular specific
intent which accompanies the absence. These
circumstances are not essential elements of a violation
of Article 86. They simply constitute special matters in
aggravation. The following are aggravated
unauthorized absences:
(a) Unauthorized absence for more than 3 days
(duration).
(b) Unauthorized absence for more than 30 days
(duration).
(c) Unauthorized absence from a guard, watch, or
duty (special type of duty).
(d) Unauthorized absence from guard, watch, or
duty section with the intent to abandon it (special type
of duty and specific intent).
(e) Unauthorized absence with the intent to avoid
maneuvers or field exercises (special type of duty and
specific intent).
(5) Control by civilian authorities. A member of the
armed forces turned over to the civilian authorities
upon request under Article 14 (see R.C.M. 106) is not
absent without leave while held by them under that
delivery. When a member of the armed forces, being
absent with leave, or absent without leave, is held,
tried, and acquitted by civilian authorities, the
member’s status as absent with leave, or absent without
leave, is not thereby changed, regardless how long
held. The fact that a member of the armed forces is
convicted by the civilian authorities, or adjudicated to
be a juvenile offender, or the case is “diverted” out of
the regular criminal process for a probationary period
does not excuse any unauthorized absence, because the
member’s inability to return was the result of willful
misconduct. If a member is released by the civilian
authorities without trial, and was on authorized leave
at the time of arrest or detention, the member may be
found guilty of unauthorized absence only if it is
proved that the member actually committed the offense
for which detained, thus establishing that the absence
was the result of the member’s own misconduct.
(6) Inability to return. The status of absence without
leave is not changed by an inability to return through
sickness, lack of transportation facilities, or other
disabilities. But the fact that all or part of a period of
unauthorized absence was in a sense enforced or
involuntary is a factor in extenuation and should be
given due weight when considering the initial
disposition of the offense. When, however, a person on
authorized leave, without fault, is unable to return at
the expiration thereof, that person has not committed
the offense of absence without leave.
(7) Determining the unit or organization of an
accused. A person undergoing transfer between
IV-15
activities is ordinarily considered to be attached to the
activity to which ordered to report. A person on
temporary additional duty continues as a member of
the regularly assigned unit and if the person is absent
from the temporary duty assignment, the person
becomes absent without leave from both units, and
may be charged with being absent without leave from
either unit.
(8) Duration. Unauthorized absence under Article
86(3) is an instantaneous offense. It is complete at the
instant an accused absents himself or herself without
authority. Duration of the absence is a matter in
aggravation for the purpose of increasing the
maximum punishment authorized for the offense. Even
if the duration of the absence is not over 3 days, it is
ordinarily alleged in an Article 86(3) specification. If
the duration is not alleged or if alleged but not proved,
an accused can be convicted of and punished for only
1 day of unauthorized absence.
(9) Computation of duration. In computing the
duration of an unauthorized absence, any one
continuous period of absence found that totals not more
than 24 hours is counted as 1 day; any such period that
totals more than 24 hours and not more than 48 hours
is counted as 2 days, and so on. The hours of departure
and return on different dates are assumed to be the
same if not alleged and proved. For example, if an
accused is found guilty of unauthorized absence from
0600 hours, 4 April, to 1000 hours, 7 April of the same
year (76 hours), the maximum punishment would be
based on an absence of 4 days. However, if the accused
is found guilty simply of unauthorized absence from 4
April to 7 April, the maximum punishment would be
based on an absence of 3 days.
(10) Termination—methods of return to military
control.
(a) Surrender to military authority. A surrender
occurs when a person presents himself or herself to any
military authority, whether or not a member of the
same armed force, notifies that authority of his or her
unauthorized absence status, and submits or
demonstrates a willingness to submit to military
control. Such a surrender terminates the unauthorized
absence.
(b) Apprehension by military authority.
Apprehension by military authority of a known
absentee terminates an unauthorized absence.
(c) Delivery to military authority. Delivery of a
known absentee by anyone to military authority
terminates the unauthorized absence.
(d) Apprehension by civilian authorities at the
request of the military. When an absentee is taken into
custody by civilian authorities at the request of military
authorities, the absence is terminated.
(e) Apprehension by civilian authorities without
prior military request. When an absentee is in the
hands of civilian authorities for other reasons and these
authorities make the absentee available for return to
military control, the absence is terminated when the
military authorities are informed of the absentee’s
availability.
(11) Findings of more than one absence under one
specification. An accused may properly be found guilty
of two or more separate unauthorized absences under
one specification, provided that each absence is
included within the period alleged in the specification
and provided that the accused was not misled. If an
accused is found guilty of two or more unauthorized
absences under a single specification, the maximum
authorized punishment shall not exceed that authorized
if the accused had been found guilty as charged in the
specification.
d. Maximum punishment.
(1) Failing to go to, or going from, the appointed
place of duty. Confinement for 1 month and forfeiture
of two-thirds pay per month for 1 month.
(2) Absence from unit, organization, or other place
of duty.
(a) For not more than 3 days. Confinement for 1
month and forfeiture of two-thirds pay per month for 1
month.
(b) For more than 3 days but not more than 30
days. Confinement for 6 months and forfeiture of two-
thirds pay per month for 6 months.
(c) For more than 30 days. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(d) For more than 30 days and terminated by
apprehension. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 18 months.
(3) From guard or watch. Confinement for 3 months
and forfeiture of two-thirds pay per month for 3
months.
(4) From guard or watch with intent to abandon.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 6 months.
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(5) With intent to avoid maneuvers or field exercises.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 6 months.
e. Sample specifications.
(1) Failing to go or leaving place of duty.
In that _____ (personal jurisdiction data), did (at/on
board—location), on or about _____ 20 __, without
authority, (fail to go at the time prescribed to) (go
from) (his) (her) appointed place of duty, to wit: (here
set forth the appointed place of duty).
(2) Absence from unit, organization, or place of duty.
In that __________ (personal jurisdiction data), did,
on or about _____ 20 __, without authority, absent
himself/herself from (his) (her) (unit) (organization)
(place of duty at which (he) (she) was required to be),
to wit: __________, located at __________, and did
remain so absent until ((he) (she) was apprehended) on
or about _____ 20 __.
(3) Absence from unit, organization, or place of duty
with intent to avoid maneuvers or field exercises.
In that _____ (personal jurisdiction data), did, on or
about _____ 20 __, without authority and with intent
to avoid (maneuvers) (field exercises), absent
himself/herself from (his) (her) (unit) (organization)
(place of duty at which (he) (she) was required to be),
to wit: _____ located at (_____), and did remain so
absent until on or about _____ 20 __.
(4) Abandoning watch or guard.
In that __________ (personal jurisdiction data),
being a member of the __________ (guard) (watch)
(duty section), did, (at/on board—location), on or
about _____ 20 __, without authority, go from (his)
(her) (guard) (watch) (duty section) (with intent to
abandon the same).
11. Article 87 (10 U.S.C. 887)—Missing movement;
jumping from vessel
a. Text of statute.
(a) MISSING MOVEMENT.—Any person
subject to this chapter who, through neglect or
design, misses the movement of a ship, aircraft, or
unit with which the person is required in the course
of duty to move shall be punished as a court-martial
may direct.
(b) JUMPING FROM VESSEL INTO THE
WATER.—Any person subject to this chapter who
wrongfully and intentionally jumps into the water
from a vessel in use by the armed forces shall be
punished as a court-martial may direct.
b. Elements.
(1) Missing movement.
(a) That the accused was required in the course of
duty to move with a ship, aircraft, or unit;
(b) That the accused knew of the prospective
movement of the ship, aircraft, or unit; and
(c) That the accused missed the movement through
design or neglect.
(2) Jumping from vessel into the water.
(a) That the accused jumped from a vessel in use
by the armed forces into the water; and
(b) That such act by the accused was wrongful and
intentional.
c. Explanation
.
(1) Missing movement.
(a) Movement. “Movement” as used in Article 87
includes a move, transfer, or shift of a ship, aircraft, or
unit involving a substantial distance and period of time.
Whether a particular movement is substantial is a
question to be determined by the court-martial
considering all the circumstances. Changes which do
not constitute a “movement” include practice marches
of a short duration with a return to the point of
departure, and minor changes in location of ships,
aircraft, or units, as when a ship is shifted from one
berth to another in the same shipyard or harbor or when
a unit is moved from one barracks to another on the
same post.
(b) Mode of movement.
(i) Unit. If a person is required in the course of
duty to move with a unit, the mode of travel is not
important, whether it be military or commercial, and
includes travel by ship, train, aircraft, truck, bus, or
walking. The word “unit” is not limited to any specific
technical category such as those listed in a table of
organization and equipment, but also includes units
which are created before the movement with the
intention that they have organizational continuity upon
arrival at their destination regardless of their technical
designation, and units intended to be disbanded upon
arrival at their destination.
(ii) Ship, aircraft. If a person is assigned as a
crew member or is ordered to move as a passenger
aboard a particular ship or aircraft, military or
chartered, then missing the particular sailing or flight
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is essential to establish the offense of missing
movement.
(c) Design. “Design” means on purpose,
intentionally, or according to plan and requires specific
intent to miss the movement.
(d) Neglect. “Neglect” means the omission to take
such measures as are appropriate under the
circumstances to assure presence with a ship, aircraft,
or unit at the time of a scheduled movement, or doing
some act without giving attention to its probable
consequences in connection with the prospective
movement, such as a departure from the vicinity of the
prospective movement to such a distance as would
make it likely that one could not return in time for the
movement.
(e) Actual knowledge. In order to be guilty of the
offense, the accused must have actually known of the
prospective movement that was missed. Knowledge of
the exact hour or even of the exact date of the
scheduled movement is not required. It is sufficient if
the approximate date was known by the accused as
long as there is a causal connection between the
conduct of the accused and the missing of the
scheduled movement. Knowledge may be proved by
circumstantial evidence.
(f) Proof of absence. That the accused actually
missed the movement may be proved by documentary
evidence, as by a proper entry or absence of entry in a
log or a morning report. This fact may also be proved
by the testimony of personnel of the ship, aircraft, or
unit (or by other evidence) that the movement occurred
at a certain time, together with evidence that the
accused was physically elsewhere at that time.
(2) Jumping from vessel into the water. The phrase
“in use by” means any vessel operated by or under the
control of the armed forces. This offense may be
committed at sea, at anchor, or in port.
Discussion
Bona fide suicide attempts should not be charged as criminal
offenses. When making a determination whether an action by the
Servicemember was a bona fide suicide attempt, the convening
authority should consider factors including, but not limited to, health
conditions, personal stressors, and DoD policy related to suicide
prevention.
d. Maximum punishment.
(1) Missing movement.
(a) Design. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 2 years.
(b) Neglect. Bad-conduct discharge, forfeiture of
all pay and allowances, and confinement for 1 year.
(2) Jumping from vessel into the water. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
e. Sample specifications.
(1) Missing movement.
In that __________ (personal jurisdiction data), did,
(at/on board—location), on or about _____ 20 __,
through (neglect) (design) miss the movement of
(Aircraft No. __________) (Flight __________) (the
USS __________) (Company A, 1st Battalion, 7th
Infantry) (__________) with which (he) (she) was
required in the course of duty to move.
(2) Jumping from vessel into the water.
In that __________ (personal jurisdiction data), did,
on board __________, at (location), on or about _____
20 __, wrongfully and intentionally jump from
__________, a vessel in use by the armed forces, into
the (sea) (lake) (river).
12. Article 87a (10 U.S.C. 887a)—Resistance, flight,
breach of arrest, and escape
a. Text of statute.
Any person subject to this chapter who—
(1) resists apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or confinement;
shall be punished as a court-martial may direct.
b. Elements.
(1) Resisting apprehension.
(a) That a certain person attempted to apprehend
the accused;
(b) That said person was authorized to apprehend
the accused; and
(c) That the accused actively resisted the
apprehension.
(2) Flight from apprehension.
(a) That a certain person attempted to apprehend
the accused;
(b) That said person was authorized to apprehend
the accused; and
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(c) That the accused fled from the apprehension.
(3) Breaking arrest.
(a) That a certain person ordered the accused into
arrest;
(b) That said person was authorized to order the
accused into arrest; and
(c) That the accused went beyond the limits of
arrest before being released from that arrest by proper
authority.
(4) Escape from custody.
(a) That a certain person apprehended the accused;
(b) That said person was authorized to apprehend
the accused; and
(c) That the accused freed himself or herself from
custody before being released by proper authority.
(5) Escape from confinement.
(a) That a certain person ordered the accused into
confinement;
(b) That said person was authorized to order the
accused into confinement; and
(c) That the accused freed himself or herself from
confinement before being released by proper authority.
[Note: If the escape was post-trial confinement,
add the following element]
(d) That the confinement was the result of a court-
martial conviction.
c. Explanation.
(1) Resisting apprehension.
(a) Apprehension. Apprehension is the taking of a
person into custody. See R.C.M. 302.
(b) Authority to apprehend. See R.C.M. 302(b)
concerning who may apprehend. Whether the status of
a person authorized that person to apprehend the
accused is a question of law to be decided by the
military judge. Whether the person who attempted to
make an apprehension had such a status is a question
of fact to be decided by the factfinder.
(c) Nature of the resistance. The resistance must
be active, such as assaulting the person attempting to
apprehend. Mere words of opposition, argument, or
abuse, and attempts to escape from custody after the
apprehension is complete, do not constitute the offense
of resisting apprehension although they may constitute
other offenses.
(d) Mistake. It is a defense that the accused held a
reasonable belief that the person attempting to
apprehend did not have authority to do so. However,
the accused’s belief at the time that no basis exists for
the apprehension is not a defense.
(e) Illegal apprehension. A person may not be
convicted of resisting apprehension if the attempted
apprehension is illegal, but may be convicted of other
offenses, such as assault, depending on all the
circumstances. An attempted apprehension by a person
authorized to apprehend is presumed to be legal in the
absence of evidence to the contrary. Ordinarily the
legality of an apprehension is a question of law to be
decided by the military judge.
(2) Flight from apprehension. The flight must be
active, such as running or driving away.
(3) Breaking arrest.
(a) Arrest. There are two types of arrest: pretrial
arrest under Article 9 (see R.C.M. 304) and arrest
under Article 15 (see subparagraph 5.c.(3), Part V,
MCM). This article prohibits breaking any arrest.
(b) Authority to order arrest. See R.C.M. 304(b)
and paragraph 2 and subparagraph 5.b., Part V, MCM
concerning authority to order arrest.
(c) Nature of restraint imposed by arrest. In arrest,
the restraint is moral restraint imposed by orders fixing
the limits of arrest.
(d) Breaking. Breaking arrest is committed when
the person in arrest infringes the limits set by orders.
The reason for the infringement is immaterial. For
example, innocence of the offense with respect to
which an arrest may have been imposed is not a
defense.
(e) Illegal arrest. A person may not be convicted
of breaking arrest if the arrest is illegal. An arrest
ordered by one authorized to do so is presumed to be
legal in the absence of some evidence to the contrary.
Ordinarily, the legality of an arrest is a question of law
to be decided by the military judge.
(4) Escape from custody.
(a) Custody. Custody is restraint of free
locomotion imposed by lawful apprehension. The
restraint may be physical or, once there has been a
submission to apprehension or a forcible taking into
custody, it may consist of control exercised in the
presence of the prisoner by official acts or orders.
Custody is temporary restraint intended to continue
until other restraint (arrest, restriction, confinement) is
imposed or the person is released.
(b) Authority to apprehend. See subparagraph
(1)(b) of this paragraph.
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(c) Escape. For a discussion of escape, see
subparagraph c.(5)(c) of this paragraph.
(d) Illegal custody. A person may not be convicted
of this offense if the custody was illegal. An
apprehension effected by one authorized to apprehend
is presumed to be lawful in the absence of evidence to
the contrary. Ordinarily, the legality of an
apprehension is a question of law to be decided by the
military judge.
(e) Correctional custody. See paragraph 13.
(5) Escape from confinement.
(a) Confinement. Confinement is physical restraint
imposed under R.C.M. 305, 1102, or subparagraph
5.b., Part V, MCM. For purposes of the element of
post-trial confinement (subparagraph b.(5)(d)) and
increased punishment therefrom (subparagraph e.(4)),
the confinement must have been imposed pursuant to
an adjudged sentence of a court-martial and not as a
result of pretrial restraint or nonjudicial punishment.
(b) Authority to order confinement. See R.C.M.
304(b), 1102(b)(2); and paragraph 2 and subparagraph
5.b., Part V, MCM concerning who may order
confinement.
(c) Escape. An escape may be either with or
without force or artifice, and either with or without the
consent of the custodian. However, where a prisoner is
released by one with apparent authority to do so, the
prisoner may not be convicted of escape from
confinement. See also subparagraph 24.c.(2)(b). Any
completed casting off of the restraint of confinement,
before release by proper authority, is an escape, and
lack of effectiveness of the restraint imposed is
immaterial. An escape is not complete until the
prisoner is momentarily free from the restraint. If the
movement toward escape is opposed, or before it is
completed, an immediate pursuit follows, there is no
escape until opposition is overcome or pursuit is
eluded.
(d) Status when temporarily outside confinement
facility. A prisoner who is temporarily escorted outside
a confinement facility for a work detail or other reason
by a guard, who has both the duty and means to prevent
that prisoner from escaping, remains in confinement.
(e) Legality of confinement. A person may not be
convicted of escape from confinement if the
confinement is illegal. Confinement ordered by one
authorized to do so is presumed to be lawful in the
absence of evidence to the contrary. Ordinarily, the
legality of confinement is a question of law to be
decided by the military judge.
d. Maximum punishment.
(1) Resisting apprehension. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
(2) Flight from apprehension. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(3) Breaking arrest. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
(4) Escape from custody, pretrial confinement, or
confinement pursuant to Article 15. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(5) Escape from post-trial confinement.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
e. Sample specifications.
(1) Resisting apprehension.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, resist being
apprehended by __________, (an armed force
policeman) (__________), a person authorized to
apprehend the accused.
(2) Flight from apprehension.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, flee
apprehension by __________, (an armed force
policeman) (__________), a person authorized to
apprehend the accused.
(3) Breaking arrest.
In that __________ (personal jurisdiction data),
having been placed in arrest (in quarters) (in (his) (her)
company area) (__________) by a person authorized
to order the accused into arrest, did, (at/on board—
location) on or about _____ 20 __, break said arrest.
(4) Escape from custody.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, escape from
the custody of __________, a person authorized to
apprehend the accused.
(5) Escape from confinement.
IV-20
In that __________ (personal jurisdiction data),
having been placed in (post-trial) confinement in
(place of confinement), by a person authorized to order
said accused into confinement did, (at/on board—
location) (subject-matter jurisdiction data, if required),
on or about _____ 20 __, escape from confinement.
13. Article 87b (10 U.S.C. 887b)—Offenses against
correctional custody and restriction
a. Text of statute.
(a) ESCAPE FROM CORRECTIONAL
CUSTODY.—Any person subject to this chapter—
(1) who is placed in correctional custody by a
person authorized to do so;
(2) who, while in correctional custody, is under
physical restraint; and
(3) who escapes from the physical restraint
before being released from the physical restraint by
proper authority
shall be punished as a court-martial may direct.
(b) BREACH OF CORRECTIONAL
CUSTODY.—Any person subject to this chapter—
(1) who is placed in correctional custody by a
person authorized to do so;
(2) who, while in correctional custody, is under
restraint other than physical restraint; and
(3) who goes beyond the limits of the restraint
before being released from the correctional custody
or relieved of the restraint by proper authority;
shall be punished as a court-martial may direct.
(c) BREACH OF RESTRICTION.—Any person
subject to this chapter—
(1) who is ordered to be restricted to certain
limits by a person authorized to do so; and
(2) who, with knowledge of the limits of the
restriction, goes beyond those limits before being
released by proper authority;
shall be punished as a court-martial may direct.
b. Elements.
(1) Escape from correctional custody.
(a) That the accused was placed in correctional
custody by a person authorized to do so;
(b) That, while in such correctional custody, the
accused was under physical restraint; and
(c) That the accused freed himself or herself from
the physical restraint of this correctional custody
before being released therefrom by proper authority.
(2) Breach of correctional custody.
(a) That the accused was placed in correctional
custody by a person authorized to do so;
(b) That, while in correctional custody, a certain
restraint was imposed upon the accused; and
(c) That the accused went beyond the limits of the
restraint imposed before having been released from the
correctional custody or relieved of the restraint by
proper authority.
(3) Breach of restriction.
(a) That a certain person ordered the accused to be
restricted to certain limits;
(b) That said person was authorized to order said
restriction;
(c) That the accused knew of the restriction and
the limits thereof; and
(d) That the accused went beyond the limits of the
restriction before being released therefrom by proper
authority.
c. Explanation.
(1) Escape from correctional custody. Escape from
correctional custody is the act of a person undergoing
the punishment of correctional custody pursuant to
Article 15, who, before being set at liberty by proper
authority, casts off any physical restraint imposed by
the custodian or by the place or conditions of custody.
(2) Breach of correctional custody. Breach of
restraint during correctional custody is the act of a
person undergoing the punishment who, in the absence
of physical restraint imposed by a custodian or by the
place or conditions of custody, breaches any form of
restraint imposed during this period.
(3) Authority to impose correctional custody. See
Part V concerning who may impose correctional
custody. Whether the status of a person authorized that
person to impose correctional custody is a question of
law to be decided by the military judge. Whether the
person who imposed correctional custody had such a
status is a question of fact to be decided by the
factfinder.
(4) Breach of restriction. Restriction is the moral
restraint of a person imposed by an order directing a
person to remain within certain specified limits.
“Restriction” includes restriction under R.C.M.
304(a)(2), restriction resulting from imposition of
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either nonjudicial punishment (see Part V) or the
sentence of a court-martial (see R.C.M. 1003(b)(5)),
and administrative restriction in the interest of training,
operations, security, or safety.
d. Maximum punishment.
(1) Escape from correctional custody. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(2) Breach of correctional custody. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
(3) Breach of restriction. Confinement for 1 month
and forfeiture of two-thirds pay per month for 1 month.
e. Sample specifications.
(1) Escape from correctional custody.
In that _____ (personal jurisdiction data), while
undergoing the punishment of correctional custody
imposed by a person authorized to do so, did, (at/on
board—location), on or about _____ 20 __, escape
from correctional custody.
(2) Breach of correctional custody.
In that __________ (personal jurisdiction data),
while duly undergoing the punishment of correctional
custody imposed by a person authorized to do so, did,
(at/on board—location), on or about _____ 20 __,
breach the restraint imposed thereunder by
__________.
(3) Breach of restriction.
In that __________ (personal jurisdiction data),
having been restricted to the limits of __________, by
a person authorized to do so, did, (at/on board—
location), on or about _____ 20 __, break said
restriction.
14. Article 88 (10 U.S.C. 888)—Contempt toward
officials
a. Text of statute.
Any commissioned officer who uses contemptuous
words against the President, the Vice President,
Congress, the Secretary of Defense, the Secretary of
a military department, the Secretary of Homeland
Security, or the Governor or legislature of any
State, Commonwealth, or possession in which he is
on duty or present shall be punished as a court-
martial may direct.
b. Elements.
(1) That the accused was a commissioned officer of
the United States armed forces;
(2) That the accused used certain words against an
official or legislature named in the article;
(3) That by an act of the accused these words came
to the knowledge of a person other than the accused;
and
(4) That the words used were contemptuous, either
in themselves or by virtue of the circumstances under
which they were used.
[Note: If the words were against a Governor or
legislature, add the following element]
(5) That the accused was then present in the State,
Commonwealth, or possession of the Governor or
legislature concerned.
c. Explanation.
The official or legislature against whom the words
are used must be occupying one of the offices or be one
of the legislatures named in Article 88 at the time of
the offense. Neither “Congress” nor “legislature”
includes its members individually. “Governor” does
not include “lieutenant governor.” It is immaterial
whether the words are used against the official in an
official or private capacity. If not personally
contemptuous, adverse criticism of one of the officials
or legislatures named in the article in the course of a
political discussion, even though emphatically
expressed, may not be charged as a violation of the
article. Similarly, expressions of opinion made in a
purely private conversation should not ordinarily be
charged. Giving broad circulation to a written
publication containing contemptuous words of the kind
made punishable by this article, or the utterance of
contemptuous words of this kind in the presence of
military subordinates, aggravates the offense. The truth
or falsity of the statements is immaterial.
d. Maximum punishment. Dismissal, forfeiture of all
pay and allowances, and confinement for 1 year.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location), on or about _____ 20 __, [use
(orally and publicly) (_____) the following
contemptuous words] [in a contemptuous manner, use
(orally and publicly) (__________) the following
words] against the [(President) (Vice President)
(Congress) (Secretary of _____)] [(Governor)
(legislature) of the (State of _____) (________), a
(State) (__________) in which (he) (she), the said
IV-22
__________, was then (on duty), (present)], to wit:
“__________,” or words to that effect.
15. Article 89 (10 U.S.C. 889)—Disrespect toward
superior commissioned officer; assault of superior
commissioned officer
a. Text of statute
.
(a) DISRESPECT.—Any person subject to this
chapter who behaves with disrespect toward that
person’s superior commissioned officer shall be
punished as a court-martial may direct.
(b) ASSAULT.—Any person subject to this
chapter who strikes that person’s superior
commissioned officer or draws or lifts up any
weapon or offers any violence against that officer
while the officer is in the execution of the officer’s
office shall be punished—
(1) if the offense is committed in time of war, by
death or such other punishment as a court-martial
may direct; and
(2) if the offense is committed at any other time,
by such punishment, other than death, as a court-
martial may direct.
b. Elements.
(1) Disrespect toward superior commissioned
officer.
(a) That the accused did or omitted certain acts or
used certain language to or concerning a certain
commissioned officer;
(b) That such behavior or language was directed
toward that officer;
(c) That the officer toward whom the acts,
omissions, or words were directed was the superior
commissioned officer of the accused;
(d) That the accused then knew that the
commissioned officer toward whom the acts,
omissions, or words were directed was the accused’s
superior commissioned officer; and
(e) That, under the circumstances, the behavior or
language was disrespectful to that commissioned
officer.
(2) Striking or assaulting superior commissioned
officer.
(a) That the accused struck, drew, or lifted up a
weapon against, or offered violence against, a certain
commissioned officer;
(b) That the officer was the superior
commissioned officer of the accused;
(c) That the accused then knew that the officer was
the accused’s superior commissioned officer; and
(d) That the superior commissioned officer was
then in the execution of office.
[Note: if the offense was committed in time of war,
add the following element]
(e) That the offense was committed in time of war.
c. Explanation.
(1) Superior Commissioned Officer. See 10 U.S.C. §
801(5) (“The term ‘superior commissioned officer’
means a commissioned officer superior in rank or
command.”).
(2) Disrespect toward superior commissioned
officer.
(a) Knowledge. If the accused did not know that
the person against whom the acts or words were
directed was the accused’s superior commissioned
officer, the accused may not be convicted of a violation
of this article. Knowledge may be proved by
circumstantial evidence.
(b) Disrespect. Disrespectful behavior is that
which detracts from the respect due the authority and
person of a superior commissioned officer. It may
consist of acts or language, however expressed, and it
is immaterial whether they refer to the superior as an
officer or as a private individual. Disrespect by words
may be conveyed by abusive epithets or other
contemptuous or denunciatory language. Truth is no
defense. Disrespect by acts includes neglecting the
customary salute, or showing a marked disdain,
indifference, insolence, impertinence, undue
familiarity, or other rudeness in the presence of the
superior officer.
(c) Presence. It is not essential that the
disrespectful behavior be in the presence of the
superior, but ordinarily one should not be held
accountable under this article for what was said or done
in a purely private conversation.
(d) Special defense—unprotected victim. A
superior commissioned officer whose conduct in
relation to the accused under all the circumstances
departs substantially from the required standards
appropriate to that officer’s rank or position under
similar circumstances loses the protection of this
article. That accused may not be convicted of being
disrespectful to the officer who has so lost the
entitlement to respect protected by Article 89.
IV-23
(3) Striking or assaulting superior commissioned
officer.
(a) Superior commissioned officer. The definition
in subparagraph 15.c.(1) of this paragraph, applies
here.
(b) Knowledge. The explanation in subparagraph
15.c.(2)(a) of this paragraph applies here.
(c) Strikes. “Strikes” means an intentional contact
and includes any offensive touching of the person of an
officer, however slight.
(d) Draws or lifts up any weapon against. The
phrase “draws or lifts up any weapon against” covers
any simple assault committed in the manner stated. The
drawing of any weapon in an aggressive manner or the
raising or brandishing of the same in a threatening
manner in the presence of and at the superior is the sort
of act proscribed. The raising in a threatening manner
of a firearm, whether or not loaded, of a club, or of
anything by which a serious blow or injury could be
given is included in “lifts up.”
(e) Offers any violence against. The phrase “offers
any violence against” includes any form of battery or
of mere assault not embraced in the preceding more
specific terms “strikes” and “draws or lifts up.” If not
executed, the violence must be physically attempted or
menaced. A mere threatening in words is not an
offering of violence in the sense of this article.
(f) Execution of office. An officer is in the
execution of office when engaged in any act or service
required or authorized by treaty, statute, regulation, the
order of a superior, or military usage. In general, any
striking or use of violence against any superior
commissioned officer by a person over whom it is the
duty of that officer to maintain discipline at the time,
would be striking or using violence against the officer
in the execution of office. The commanding officer on
board a ship or the commanding officer of a unit in the
field is generally considered to be on duty at all times.
(g) Defenses. In a prosecution for striking or
assaulting a superior commissioned officer in violation
of this article, it is a defense that the accused acted in
the proper discharge of some duty, or that the victim
behaved in a manner toward the accused such as to lose
the protection of this article (see subparagraph
15.c.(2)(d)). For example, if the victim initiated an
unlawful attack on the accused, this would deprive the
victim of the protection of this article, and, in addition,
could excuse any lesser included offense of assault as
done in self-defense, depending on the circumstances
(see subparagraph 77.c.; R.C.M. 916(e)).
d. Maximum punishment.
(1) Disrespect toward superior commissioned officer
in command. Bad-conduct discharge, forfeiture of all
pay and allowances, and confinement for 1 year.
(2) Disrespect toward superior commissioned officer
superior in rank. Bad-conduct discharge, forfeiture of
all pay and allowances, and confinement for 6 months.
(3) Striking, drawing or lifting up a weapon or
offering any violence to superior commissioned officer
in execution of office in time of war. Death or such
other punishment as a court-martial may direct.
(4) Striking, drawing or lifting up a weapon or
offering any violence to superior commissioned officer
in execution of office at any other time. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
e. Sample specifications.
(1) Disrespect toward superior commissioned
officer.
In that _________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, behave
himself/herself with disrespect toward _______ , (his)
(her) superior commissioned officer (in command) (in
rank), then known by the said _________ to be (his)
(her) superior commissioned officer (in command) (in
rank), by (saying to (him) (her) “_________,” or words
to that effect) (contemptuously turning from and
leaving (him) (her) while (he) (she), the said ________,
was talking to (him) (her), the said ________)
(_________).
(2) Striking superior commissioned officer.
In that ________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20 ________,
(a time of war) strike ________, (his) (her) superior
commissioned officer (in command) (in rank), then
known by the said ________ to be (his) (her) superior
commissioned officer (in command) (in rank), who
was then in the execution of (his) (her) office, (in) (on)
the ________ with (a) ((his) (her)) ________.
(3) Drawing or lifting up a weapon against superior
commissioned officer.
In that ________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20 __, (a time
of war) (draw) (lift up) a weapon, to wit: a ________,
against ________, (his) (her) superior commissioned
officer (in command) (in rank), then known by the said
IV-24
________ to be (his) (her) superior commissioned
officer (in command) (in rank), who was then in the
execution of (his) (her) office.
(4) Offering violence to superior commissioned
officer.
In that ________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20 __, (a time
of war) offer violence against ________, his/ her
superior commissioned officer (in command) (in rank),
then known by the said ________ to be (his) (her)
superior commissioned officer (in command) (in rank),
who was then in the execution of (his) (her) office, by
________.
16. Article 90 (10 U.S.C. 890)—Willfully disobeying
superior commissioned officer
a. Text of statute.
Any person subject to this chapter who willfully
disobeys a lawful command of that person’s
superior commissioned officer shall be punished—
(1) if the offense is committed in time of war, by
death or such other punishment as a court-martial
may direct; and
(2) if the offense is committed at any other time,
by such punishment, other than death, as a court-
martial may direct.
b. Elements.
(1) That the accused received a lawful command
from a superior commissioned officer;
(2) That this officer was the superior commissioned
officer of the accused;
(3) That the accused then knew that this officer was
the accused’s superior commissioned officer; and
(4) That the accused willfully disobeyed the lawful
command.
[Note: if the offense was committed in time of war,
add the following element]
(5) That the offense was committed in time of war.
c. Explanation.
(1) Superior commissioned officer. The definition in
subparagraph 15.c.(1) applies here.
(2) Disobeying superior commissioned officer.
(a) Lawfulness of the order.
(i) Inference of lawfulness. An order requiring
the performance of a military duty or act may be
inferred to be lawful, and it is disobeyed at the peril of
the subordinate. This inference does not apply to a
patently illegal order, such as one that directs the
commission of a crime.
(ii) Determination of lawfulness. The lawfulness
of an order is a question of law to be determined by the
military judge.
(iii) Authority of issuing officer. The
commissioned officer issuing the order must have
authority to give such an order. Authorization may be
based on law, regulation, custom of the Service, or
applicable order to direct, coordinate, or control the
duties, activities, health, welfare, morale, or discipline
of the accused.
(iv) Relationship to military duty. The order
must relate to military duty, which includes all
activities reasonably necessary to accomplish a
military mission, or safeguard or promote the morale,
discipline, and usefulness of members of a command
and directly connected with the maintenance of good
order in the Service. The order may not, without such
a valid military purpose, interfere with private rights or
personal affairs. However, the dictates of a person’s
conscience, religion, or personal philosophy cannot
justify or excuse the disobedience of an otherwise
lawful order. Disobedience of an order which has for
its sole object the attainment of some private end, or
which is given for the sole purpose of increasing the
penalty for an offense which it is expected the accused
may commit, is not punishable under this article.
(v) Relationship to statutory or constitutional
rights. The order must not conflict with the statutory or
constitutional rights of the person receiving the order.
(b) Personal nature of the order. The order must
be directed specifically to the subordinate. Violations
of regulations, standing orders or directives, or failure
to perform previously established duties are not
punishable under this article, but may violate Article
92.
(c) Form and transmission of the order. As long
as the order is understandable, the form of the order is
immaterial, as is the method by which it is transmitted
to the accused.
(d) Specificity of the order. The order must be a
specific mandate to do or not to do a specific act. An
exhortation to “obey the law” or to perform one’s
military duty does not constitute an order under this
article.
IV-25
(e) Knowledge. The accused must have actual
knowledge of the order and of the fact that the person
issuing the order was the accused’s superior
commissioned officer. Actual knowledge may be
proved by circumstantial evidence.
(f) Nature of the disobedience. “Willful
disobedience” is an intentional defiance of authority.
Failure to comply with an order through heedlessness,
remissness, or forgetfulness is not a violation of this
article but may violate Article 92.
(g) Time for compliance. When an order requires
immediate compliance, an accused’s declared intent
not to obey and the failure to make any move to comply
constitutes disobedience. Immediate compliance is
required for any order that does not explicitly or
implicitly indicate that delayed compliance is
authorized or directed. If an order requires
performance in the future, an accused’s present
statement of intention to disobey the order does not
constitute disobedience of that order, although carrying
out that intention may.
(3) Civilians and discharged prisoners. A
discharged prisoner or other civilian subject to military
law (see Article 2) and under the command of a
commissioned officer is subject to the provisions of
this article.
d. Maximum punishment.
(1) Willfully disobeying a lawful order of superior
commissioned officer in time of war. Death or such
other punishment as a court-martial may direct.
(2) At any other time. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data),
having received a lawful command from __________,
(his) (her) superior commissioned officer, then known
by the said __________ to be (his) (her) superior
commissioned officer, to __________, or words to that
effect, did, (at/on board—location), on or about _____
20 __, willfully disobey the same.
17. Article 91 (10 U.S.C. 891)—Insubordinate
conduct toward warrant officer, noncommissioned
officer, or petty officer
a. Text of statute.
Any warrant officer or enlisted member who—
(1) strikes or assaults a warrant officer,
noncommissioned officer, or petty officer, while
that officer is in the execution of his office;
(2) willfully disobeys the lawful order of a
warrant officer, noncommissioned officer, or petty
officer; or
(3) treats with contempt or is disrespectful in
language or deportment toward a warrant officer,
noncommissioned officer, or petty officer, while
that officer is in the execution of his office;
shall be punished as a court-martial may direct.
b. Elements.
(1) Striking or assaulting warrant,
noncommissioned, or petty officer.
(a) That the accused was a warrant officer or
enlisted member;
(b) That the accused struck or assaulted a certain
warrant, noncommissioned, or petty officer;
(c) That the striking or assault was committed
while the victim was in the execution of office; and
(d) That the accused then knew that the person
struck or assaulted was a warrant, noncommissioned,
or petty officer.
[Note: If the victim was the superior
noncommissioned or petty officer of the accused, add
the following elements]
(e) That the victim was the superior
noncommissioned, or petty officer of the accused; and
(f) That the accused then knew that the person
struck or assaulted was the accused’s superior
noncommissioned, or petty officer.
(2) Disobeying a warrant, noncommissioned, or
petty officer.
(a) That the accused was a warrant officer or
enlisted member;
(b) That the accused received a certain lawful
order from a certain warrant, noncommissioned, or
petty officer;
(c) That the accused then knew that the person
giving the order was a warrant, noncommissioned, or
petty officer;
(d) That the accused had a duty to obey the order;
and
(e) That the accused willfully disobeyed the order.
(3) Treating with contempt or being disrespectful in
language or deportment toward a warrant,
noncommissioned, or petty officer.
IV-26
(a) That the accused was a warrant officer or
enlisted member;
(b) That the accused did or omitted certain acts, or
used certain language;
(c) That such behavior or language was used
toward and within sight or hearing of a certain warrant,
noncommissioned, or petty officer;
(d) That the accused then knew that the person
toward whom the behavior or language was directed
was a warrant, noncommissioned, or petty officer;
(e) That the victim was then in the execution of
office; and
(f) That under the circumstances the accused, by
such behavior or language, treated with contempt or
was disrespectful to said warrant, noncommissioned,
or petty officer.
[Note: If the victim was the superior
noncommissioned, or petty officer of the accused, add
the following elements]
(g) That the victim was the superior
noncommissioned, or petty officer of the accused; and
(h) That the accused then knew that the person
toward whom the behavior or language was directed
was the accused’s superior noncommissioned, or petty
officer.
c. Explanation.
(1) In general. Article 91 has the same general
objects with respect to warrant, noncommissioned, and
petty officers as Articles 89 and 90 have with respect
to commissioned officers, namely, to ensure obedience
to their lawful orders, and to protect them from
violence, insult, or disrespect. Unlike Articles 89 and
90, however, this article does not require a superior-
subordinate relationship as an element of any of the
offenses denounced. This article does not protect an
acting noncommissioned officer or acting petty officer,
nor does it protect military police or members of the
shore patrol who are not warrant, noncommissioned, or
petty officers.
(2) Knowledge. All of the offenses prohibited by
Article 91 require that the accused have actual
knowledge that the victim was a warrant,
noncommissioned, or petty officer. Actual knowledge
may be proved by circumstantial evidence.
(3) Striking or assaulting a warrant,
noncommissioned, or petty officer. For a discussion of
“strikes” and “in the execution of office,” see
subparagraph 15.c. For a discussion of “assault,” see
subparagraph 77.c. An assault by a prisoner who has
been discharged from the Service, or by any other
civilian subject to military law, upon a warrant,
noncommissioned, or petty officer should be charged
under Article 128 or 134.
(4) Disobeying a warrant, noncommissioned, or
petty officer. See subparagraph 16.c for a discussion of
lawfulness, personal nature, form, transmission, and
specificity of the order, nature of the disobedience, and
time for compliance with the order.
(5) Treating with contempt or being disrespectful in
language or deportment toward a warrant,
noncommissioned, or petty officer. “Toward” requires
that the behavior and language be within the sight or
hearing of the warrant, noncommissioned, or petty
officer concerned. For a discussion of “in the execution
of his office,” see subparagraph 15.c. For a discussion
of “disrespect,” see subparagraph 15.c.
d. Maximum punishment.
(1) Striking or assaulting warrant officer.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(2) Striking or assaulting superior noncommissioned
or petty officer. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 3 years.
(3) Striking or assaulting other noncommissioned or
petty officer. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 1 year.
(4) Willfully disobeying the lawful order of a
warrant officer. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 2 years.
(5) Willfully disobeying the lawful order of a
noncommissioned or petty officer. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(6) Contempt or disrespect to warrant officer. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 9 months.
(7) Contempt or disrespect to superior
noncommissioned or petty officer. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
(8) Contempt or disrespect to other
noncommissioned or petty officer. Forfeiture of two-
thirds pay per month for 3 months, and confinement for
3 months.
e. Sample specifications.
IV-27
(1) Striking or assaulting warrant,
noncommissioned, or petty officer.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (strike)
(assault) __________, a __________ officer, then
known to the said __________ to be a (superior)
__________ officer who was then in the execution of
(his) (her) office, by __________ (him) (her) (in) (on)
(the __________) with (a) __________ ((his) (her))
_____________.
(2) Willful disobedience of warrant,
noncommissioned, or petty officer.
In that __________ (personal jurisdiction data),
having received a lawful order from __________, a
_____ officer, then known by the said _____ to be a
_____ officer, to _____, an order which it was (his)
(her) duty to obey, did (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about _____ 20 __, willfully disobey the same.
(3) Contempt or disrespect toward warrant,
noncommissioned, or petty officer.
In that __________ (personal jurisdiction data)
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, [did treat
with contempt] [was disrespectful in (language)
(deportment) toward] __________, a __________
officer, then known by the said __________ to be a
(superior) __________ officer, who was then in the
execution of (his) (her) office, by (saying to (him)
(her), “__________,” or words to that effect) (spitting
at (his) (her) feet) (__________).
18. Article 92 (10 U.S.C. 892)—Failure to obey
order or regulation
a. Text of statute.
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general
order or regulation;
(2) having knowledge of any other lawful order
issued by a member of the armed forces, which it is
his duty to obey, fails to obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
b. Elements.
(1) Violation of or failure to obey a lawful general
order or regulation.
(a) That there was in effect a certain lawful general
order or regulation;
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the
order or regulation.
(2) Failure to obey other lawful order.
(a) That a member of the armed forces issued a
certain lawful order;
(b) That the accused had knowledge of the order;
(c) That the accused had a duty to obey the order;
and
(d) That the accused failed to obey the order.
(3) Dereliction in the performance of duties.
(a) That the accused had certain duties;
(b) That the accused knew or reasonably should
have known of the duties; and
(c) That the accused was (willfully) (through
neglect or culpable inefficiency) derelict in the
performance of those duties.
[Note: In cases where the dereliction of duty resulted
in death or grievous bodily harm, add the following
element as applicable]
(d) That such dereliction of duty resulted in death
or grievous bodily harm to a person other than the
accused.
c. Explanation.
(1) Violation of or failure to obey a lawful general
order or regulation.
(a) Authority to issue general orders and
regulations. General orders or regulations are those
orders or regulations generally applicable to an armed
force which are properly published by the President or
the Secretary of Defense, of Homeland Security, or of
a military department, and those orders or regulations
generally applicable to the command of the officer
issuing them throughout the command or a particular
subdivision thereof which are issued by:
(i) an officer having general court-martial
jurisdiction;
(ii) a general or flag officer in command; or
(iii) a commander superior to (i) or (ii).
(b) Effect of change of command on validity of
order. A general order or regulation issued by a
commander with authority under Article 92(1) retains
its character as a general order or regulation when
another officer takes command, until it expires by its
IV-28
own terms or is rescinded by separate action, even if it
is issued by an officer who is a general or flag officer
in command and command is assumed by another
officer who is not a general or flag officer.
(c) Lawfulness. A general order or regulation is
lawful unless it is contrary to the Constitution, the laws
of the United States, or lawful superior orders or for
some other reason is beyond the authority of the
official issuing it. See the discussion of lawfulness in
subparagraph 16.c.
(d) Knowledge. Knowledge of a general order or
regulation need not be alleged or proved as knowledge
is not an element of this offense and a lack of
knowledge does not constitute a defense.
(e) Enforceability. Not all provisions in general
orders or regulations can be enforced under Article
92(1). Regulations which only supply general
guidelines or advice for performing military functions
may not be enforceable under Article 92(1).
(2) Violation of or failure to obey other lawful order.
(a) Scope. Article 92(2) includes all other lawful
orders which may be issued by a member of the armed
forces, violations of which are not chargeable under
Article 90, 91, or 92(1). It includes the violation of
written regulations which are not general regulations.
See also subparagraph (1)(e) of this paragraph as
applicable.
(b) Knowledge. In order to be guilty of this
offense, a person must have had actual knowledge of
the order or regulation. Knowledge of the order may be
proved by circumstantial evidence.
(c) Duty to obey order.
(i) From superior. A member of one armed
force who is senior in rank to a member of another
armed force is the superior of that member with
authority to issue orders which that member has a duty
to obey under the same circumstances as a
commissioned officer of one armed force is the
superior commissioned officer of a member of another
armed force for the purposes of Articles 89 and 90. See
subparagraph 13.c.(1).
(ii) From one not a superior. Failure to obey the
lawful order of one not a superior is an offense under
Article 92(2), provided the accused had a duty to obey
the order, such as one issued by a sentinel or a member
of the armed forces police. See subparagraph 17.b.(2)
if the order was issued by a warrant, noncommissioned,
or petty officer in the execution of office.
(3) Dereliction in the performance of duties.
(a) Duty. A duty may be imposed by treaty, statute,
regulation, lawful order, standard operating procedure,
or custom of the Service.
(b) Knowledge. Actual knowledge of duties may
be proved by circumstantial evidence. Actual
knowledge need not be shown if the individual
reasonably should have known of the duties. This may
be demonstrated by regulations, training or operating
manuals, customs of the Service, academic literature or
testimony, testimony of persons who have held similar
or superior positions, or similar evidence.
(c) Derelict. A person is derelict in the
performance of duties when that person willfully or
negligently fails to perform that person’s duties or
when that person performs them in a culpably
inefficient manner. “Willfully” means intentionally. It
refers to the doing of an act knowingly and purposely,
specifically intending the natural and probable
consequences of the act. “Negligently” means an act or
omission of a person who is under a duty to use due
care which exhibits a lack of that degree of care which
a reasonably prudent person would have exercised
under the same or similar circumstances. Culpable
inefficiency is inefficiency for which there is no
reasonable or just excuse.
(d) Ineptitude. A person is not derelict in the
performance of duties if the failure to perform those
duties is caused by ineptitude rather than by
willfulness, negligence, or culpable inefficiency, and
may not be charged under this article, or otherwise
punished. For example, a recruit who has tried
earnestly during rifle training and throughout record
firing is not derelict in the performance of duties if the
recruit fails to qualify with the weapon.
(e) Grievous bodily harm. For purposes of this
offense, the term “grievous bodily harm” has the same
meaning ascribed to it in Article 128 (paragraph 77).
(f) Where the dereliction of duty resulted in death
or grievous bodily harm, the intent to cause death or
grievous bodily harm is not required.
d. Maximum punishment.
(1) Violation of or failure to obey lawful general
order or regulation. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 2 years.
(2) Violation of or failure to obey other lawful order.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 6 months.
(3) Dereliction in the performance of duties.
IV-29
(a) Through neglect or culpable inefficiency.
Forfeiture of two-thirds pay per month for 3 months
and confinement for 3 months.
(b) Through neglect or culpable inefficiency
resulting in death or grievous bodily harm. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 18 months.
(c) Willful. Bad-conduct discharge, forfeiture of
all pay and allowances, and confinement for 6 months.
(d) Willful dereliction of duty resulting in death or
grievous bodily harm. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 2 years.
[Note: For (1) and (2) of this rule, the punishment set
forth does not apply in the following cases: if, in the
absence of the order or regulation which was violated
or not obeyed, the accused would on the same facts be
subject to conviction for another specific offense for
which a lesser punishment is prescribed; or if the
violation or failure to obey is a breach of restraint
imposed as a result of an order. In these instances, the
maximum punishment is that specifically prescribed
elsewhere for that particular offense.]
e. Sample specifications.
(1) Violation or failure to obey lawful general order
or regulation.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (violate)
(fail to obey) a lawful general (order) (regulation)
which was (his)(her) duty to obey, to wit: paragraph __
(Army) (Air Force) Regulation, dated ____) (Article,
U.S. Navy Regulations, dated __) (General Order
No.__, U.S. Navy, dated ____) (_______), by
(wrongfully_______).
(2) Violation or failure to obey other lawful written
order.
In that __________ (personal jurisdiction data),
having knowledge of a lawful order issued by _____,
to wit: (paragraph, (the Combat Group Regulation No.
__) (USS_____, Regulation ______), dated____)
(_________), an order which it was (his) (her) duty to
obey, did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about _____ 20 __,
fail to obey the same by (wrongfully)
_______________________.
(3) Failure to obey other lawful order.
In that__________ (personal jurisdiction data)
having knowledge of a lawful order issued by
__________ (to submit to certain medical treatment)
(to) (not to ____________) (__________________),
an order which it was (his) (her) duty to obey (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about__20__, fail to obey the same (by
(wrongfully) ________________________.
(4) Dereliction in the performance of duties.
In that, _________ (personal jurisdiction data), who
(knew) (should have known) of (his) (her) duties (at/on
board—location) (subject-matter jurisdiction data, if
required), (on or about ____ 20__) (from about ____
20__ to about _____ 20__), was derelict in the
performance of those duties in that (he) (she)
(negligently) (willfully) (by culpable inefficiency)
failed _______, as it was (his) (her) duty to do, [ and
that such dereliction of duty resulted in (grievous
bodily harm, to wit: (broken leg) (deep cut) (fractured
skull) (______) to _______) (the death of
____________)].
19. Article 93 (10 U.S.C. 893)—Cruelty and
maltreatment
a. Text of statute.
Any person subject to this chapter who is guilty of
cruelty toward, or oppression or maltreatment of,
any person subject to his orders shall be punished
as a court-martial may direct.
b. Elements.
(1) That a certain person was subject to the orders of
the accused; and
(2) That the accused was cruel toward, or oppressed,
or maltreated that person.
c. Explanation.
(1) Nature of victim. “Any person subject to his
orders” means not only those persons under the direct
or immediate command of the accused but extends to
all persons, subject to the UCMJ or not, who by reason
of some duty are required to obey the lawful orders of
the accused, regardless whether the accused is in the
direct chain of command over the person.
(2) Nature of act. The cruelty, oppression, or
maltreatment, although not necessarily physical, must
be measured by an objective standard. Assault,
improper punishment, and sexual harassment may
constitute this offense if the conduct meets the
elements of this offense. Sexual harassment under this
paragraph includes influencing, offering to influence,
or threatening the career, pay, or job of another person
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in exchange for sexual favors, and deliberate or
repeated offensive comments or gestures of a sexual
nature. The imposition of necessary or proper duties
and the exaction of their performance does not
constitute this offense even though the duties are
arduous or hazardous or both.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification
.
In that (personal jurisdiction data), (at/on board—
location) (subject-matter jurisdiction data, if required),
on or about _________ 20__, (was cruel toward) did
(oppress) (maltreat) ____________), a person subject
to (his) (her) orders, by (kicking (him) (her) in the
stomach) (confining (him) (her) for twenty-four hours
without water) (________________).
20. Article 93a (10 U.S.C. 893a)—Prohibited
activities with military recruit or trainee by person
in position of special trust
a. Text of statute.
(a) ABUSE OF TRAINING LEADERSHIP
POSITION.—Any person subject to this chapter—
(1) who is an officer, a noncommissioned
officer, or a petty officer;
(2) who is in a training leadership position with
respect to a specially protected junior member of
the armed forces; and
(3) who engages in prohibited sexual activity
with such specially protected junior member of the
armed forces;
shall be punished as a court-martial may direct.
(b) ABUSE OF POSITION AS MILITARY
RECRUITER.—Any person subject to this
chapter—
(1) who is a military recruiter and engages in
prohibited sexual activity with an applicant for
military service; or
(2) who is a military recruiter and engages in
prohibited sexual activity with a specially protected
junior member of the armed forces who is enlisted
under a delayed entry program;
shall be punished as a court-martial may direct.
(c) CONSENT.—Consent is not a defense for any
conduct at issue in a prosecution under this section
(article).
(d) DEFINITIONS.—In this section (article):
(1) SPECIALLY PROTECTED JUNIOR
MEMBER OF THE ARMED FORCES.—The
term “specially protected junior member of the
armed forces” means—
(A) a member of the armed forces who is
assigned to, or is awaiting assignment to, basic
training or other initial active duty for training,
including a member who is enlisted under a delayed
entry program;
(B) a member of the armed forces who is a
cadet, a midshipman, an officer candidate, or a
student in any other officer qualification program;
and
(C) a member of the armed forces in any
program that, by regulation prescribed by the
Secretary concerned, is identified as a training
program for initial career qualification.
(2) TRAINING LEADERSHIP POSITION.—
The term “training leadership position” means,
with respect to a specially protected junior member
of the armed forces, any of the following:
(A) Any drill instructor position or other
leadership position in a basic training program, an
officer candidate school, a reserve officers’ training
corps unit, a training program for entry into the
armed forces, or any program that, by regulation
prescribed by the Secretary concerned, is identified
as a training program for initial career
qualification.
(B) Faculty and staff of the United States
Military Academy, the United States Naval
Academy, the United States Air Force Academy,
and the United States Coast Guard Academy.
(3) APPLICANT FOR MILITARY
SERVICE.—The term “applicant for military
service” means a person who, under regulations
prescribed by the Secretary concerned, is an
applicant for original enlistment or appointment in
the armed forces.
(4) MILITARY RECRUITER.—The term
“military recruiter” means a person who, under
regulations prescribed by the Secretary concerned,
has the primary duty to recruit persons for military
service.
(5) PROHIBITED SEXUAL ACTIVITY.—
The term “prohibited sexual activity” means, as
specified in regulations prescribed by the Secretary
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concerned, inappropriate physical intimacy under
circumstances described in such regulations.
b. Elements.
(1) Abuse of training leadership position.
(a) That the accused was a commissioned, warrant,
noncommissioned, or petty officer;
(b) That the accused was in a training leadership
position with respect to a specially protected member
of the armed forces; and
(c) That the accused engaged in prohibited sexual
activity with a person the accused knew was a specially
protected junior member of the armed forces.
(2) Abuse of position as a military recruiter.
(a) That the accused was a commissioned, warrant,
noncommissioned, or petty officer;
(b) That the accused was performing duties as a
military recruiter; and
(c) That the accused engaged in prohibited sexual
activity with a person the accused knew was an
applicant for military service or a specially protected
junior member of the armed forces who is enlisted
under a delayed entry program.
c. Explanation.
(1) In general. The prevention of inappropriate
sexual activity by trainers, recruiters, and drill
instructors with recruits, trainees, students attending
service academies, and other potentially vulnerable
persons in the initial training environment is crucial to
the maintenance of good order and military discipline.
Military law, regulation, and custom invest officers,
non-commissioned officers, drill instructors,
recruiters, cadre, and others with the right and
obligation to exercise control over those they
supervise. In this context, inappropriate sexual activity
between those potentially vulnerable persons and those
with authority to exercise control over them is
inherently destructive to good order and discipline.
(2) Prohibited activity. The responsibility for
identifying relationships subject to this offense and
those outside the scope of this offense is entrusted to
the individual Services to determine and specify by
appropriate regulations. This offense is intended to
cover those situations that involve the improper use of
authority by virtue of an individual’s position in either
a training or recruiting environment. Not all contact or
associations are prohibited by this article. Service
regulations must consider circumstances where pre-
existing relationships (for example, marriage
relationships) exist. Additionally, this offense
criminalizes only activity occurring when there is a
training or recruiting relationship between the accused
and the alleged victim of this offense.
(3) Knowledge. The accused must have actual or
constructive knowledge that a person was a “specially
protected junior member of the armed forces” or an
“applicant for military service” (as those terms are
defined in this offense). Knowledge may be proved by
circumstantial evidence.
(4) Consent. Consent is not a defense to this offense.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specifications.
(1) Prohibited act with specially protected junior
member of the armed forces.
In that ___ (personal jurisdiction data), a
(commissioned) (warrant) (noncommissioned) (petty)
officer, while in a training leadership position over
___, did (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ___ 20__,
engage in a prohibited act, to wit: _____________ with
____________, whom the accused knew was a
specially protected junior Servicemember in initial
active duty training.
(2) Prohibited act with an applicant for military
service.
In that ___ (personal jurisdiction data), a
(commissioned) (warrant) (noncommissioned) (petty)
officer, while in a training leadership position over
___, did (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ___ 20__,
engage in a prohibited act, to wit: ____________ with
_________________, whom the accused knew was (an
applicant for military service) (a specially protected
junior member of the armed forces who is enlisted
under a delayed entry program).
21. Article 94 (10 U.S.C. 894)—Mutiny or sedition
a. Text of statute.
(a) Any person subject to this chapter who—
(1) with intent to usurp or override lawful
military authority, refuses, in concert with any
other person, to obey orders or otherwise do his
duty or creates any violence or disturbance is guilty
of mutiny;
IV-32
(2) with intent to cause the overthrow or
destruction of lawful civil authority, creates, in
concert with any other person, revolt, violence, or
other disturbance against that authority is guilty of
sedition;
(3) fails to do his utmost to prevent and
suppress a mutiny or sedition being committed in
his presence, or fails to take all reasonable means to
inform his superior commissioned officer or
commanding officer of a mutiny or sedition which
he knows or has reason to believe is taking place, is
guilty of a failure to suppress or report a mutiny or
sedition.
(b) A person who is found guilty of attempted
mutiny, mutiny, sedition, or failure to suppress or
report a mutiny or sedition shall be punished by
death or such other punishment as a court-martial
may direct.
b. Elements.
(1) Mutiny by creating violence or disturbance.
(a) That the accused created violence or a
disturbance; and
(b) That the accused created this violence or
disturbance with intent to usurp or override lawful
military authority.
(2) Mutiny by refusing to obey orders or perform
duty.
(a) That the accused refused to obey orders or
otherwise do the accused’s duty;
(b) That the accused in refusing to obey orders or
perform duty acted in concert with another person or
persons; and
(c) That the accused did so with intent to usurp or
override lawful military authority.
(3) Sedition.
(a) That the accused created revolt, violence, or
disturbance against lawful civil authority;
(b) That the accused acted in concert with another
person or persons; and
(c) That the accused did so with the intent to cause
the overthrow or destruction of that authority.
(4) Failure to prevent and suppress a mutiny or
sedition.
(a) That an offense of mutiny or sedition was
committed in the presence of the accused; and
(b) That the accused failed to do the accused’s
utmost to prevent and suppress the mutiny or sedition.
(5) Failure to report a mutiny or sedition.
(a) That an offense of mutiny or sedition occurred;
(b) That the accused knew or had reason to believe
that the offense was taking place; and
(c) That the accused failed to take all reasonable
means to inform the accused’s superior commissioned
officer or commander of the offense.
(6) Attempted mutiny.
(a) That the accused committed a certain overt act;
(b) That the act was done with specific intent to
commit the offense of mutiny;
(c) That the act amounted to more than mere
preparation; and
(d) That the act apparently tended to effect the
commission of the offense of mutiny.
c. Explanation.
(1) Mutiny. Article 94(a)(1) defines two types of
mutiny, both requiring an intent to usurp or override
military authority.
(a) Mutiny by creating violence or disturbance.
Mutiny by creating violence or disturbance may be
committed by one person acting alone or by more than
one acting together.
(b) Mutiny by refusing to obey orders or perform
duties. Mutiny by refusing to obey orders or perform
duties requires collective insubordination and
necessarily includes some combination of two or more
persons in resisting lawful military authority. This
concert of insubordination need not be preconceived,
nor is it necessary that the insubordination be active or
violent. It may consist simply of a persistent and
concerted refusal or omission to obey orders, or to do
duty, with an insubordinate intent, that is, with an
intent to usurp or override lawful military authority.
The intent may be declared in words or inferred from
acts, omissions, or surrounding circumstances.
(2) Sedition. Sedition requires a concert of action in
resistance to civil authority. This differs from mutiny
by creating violence or disturbance. See subparagraph
c.(1)(a) of this paragraph.
(3) Failure to prevent and suppress a mutiny or
sedition. “Utmost” means taking those measures to
prevent and suppress a mutiny or sedition which may
properly be called for by the circumstances, including
the rank, responsibilities, or employment of the person
concerned. “Utmost” includes the use of such force,
including deadly force, as may be reasonably necessary
IV-33
under the circumstances to prevent and suppress a
mutiny or sedition.
(4) Failure to report a mutiny or sedition.
(a) In general. Failure to “take all reasonable
means to inform” includes failure to take the most
expeditious means available. When the circumstances
known to the accused would have caused a reasonable
person in similar circumstances to believe that a
mutiny or sedition was occurring, this may establish
that the accused had such “reason to believe” that
mutiny or sedition was occurring. Failure to report an
impending mutiny or sedition is not an offense in
violation of Article 94. But see subparagraph 18.c.(3)
(dereliction of duty).
(b) Superior commissioned officer. For purposes
of this paragraph, “a superior commissioned officer”
means a superior commissioned officer in the chain of
command.
(5) Attempted mutiny. For a discussion of attempts,
see paragraph 4.
d. Maximum punishment. Death or such other
punishment as a court-martial may direct.
e. Sample specifications.
(1) Mutiny by creating violence or disturbance.
In that __________ (personal jurisdiction data), with
intent to (usurp) (override) (usurp and override) lawful
military authority, did, (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about _____ 20 __, create (violence) (a disturbance) by
(attacking the officers of the said ship) (barricading
himself/herself in Barracks T7, firing (his) (her) rifle at
__________, and exhorting other persons to join (him)
(her) in defiance of _____) (_____).
(2) Mutiny by refusing to obey orders or perform
duties.
In that __________ (personal jurisdiction data), with
intent to (usurp) (override) (usurp and override) lawful
military authority, did, (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about _____ 20 __, refuse, in concert with __________
(and __________) (others whose names are unknown),
to (obey the orders of __________ to __________)
(perform (his) (her) duty as __________).
(3) Sedition.
In that __________ (personal jurisdiction data), with
intent to cause the (overthrow) (destruction)
(overthrow and destruction) of lawful civil authority,
to wit: __________, did, (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about _____ 20 __, in concert with (__________) and
(__________) (others whose names are unknown),
create (revolt) (violence) (a disturbance) against such
authority by (entering the Town Hall of __________
and destroying property and records therein)
(marching upon and compelling the surrender of the
police of __________) (__________).
(4) Failure to prevent and suppress a mutiny or
sedition.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, fail to do
(his) (her) utmost to prevent and suppress a (mutiny)
(sedition) among the (Soldiers) (Sailors) Airmen)
(Marines) (__________) of __________, which
(mutiny) (sedition) was being committed in (his) (her)
presence, in that ((he) (she) took no means to compel
the dispersal of the assembly) ((he) (she) made no
effort to assist __________ who was attempting to
quell the mutiny) (__________).
(5) Failure to report a mutiny or sedition.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, fail to take
all reasonable means to inform (his) (her) superior
commissioned officer or (his) (her) commander of a
(mutiny) (sedition) among the (Soldiers) (Sailors)
(Airmen) (Marines) (__________) of __________,
which (mutiny) (sedition) (he) (she), the said
__________ (knew) (had reason to believe) was taking
place.
(6) Attempted mutiny.
In that __________ (personal jurisdiction data), with
intent to (usurp) (override) (usurp and override) lawful
military authority, did, (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about _____ 20 __, attempt to (create (violence) (a
disturbance) by _____) (_____).
22. Article 95 (10 U.S.C. 895)—Offenses by sentinel
or lookout
a. Text of statute.
(a) DRUNK OR SLEEPING ON POST, OR
LEAVING POST BEFORE BEING
RELIEVED.—Any sentinel or lookout who is
drunk on post, who sleeps on post, or who leaves
post before being regularly relieved, shall be
punished—
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(1) if the offense is committed in time of war, by
death or such other punishment as a court-martial
may direct; and
(2) if the offense is committed other than in time
of war, by such punishment, other than death, as a
court-martial may direct.
(b) LOITERING OR WRONGFULLY SITTING
ON POST.—Any sentinel or lookout who loiters or
wrongfully sits down on post shall be punished as a
court-martial may direct.
b. Elements.
(1) Drunk or sleeping on post, or leaving post before
being relieved.
(a) That the accused was posted or on post as a
sentinel or lookout;
(b) That the accused was drunk while on post, was
sleeping while on post, or left post before being
regularly relieved.
[Note: If the offense was committed in time of war
or while the accused was receiving special pay under
37 U.S.C. § 310, add the following element:]
(c) That the offense was committed (in time of
war) (while the accused was receiving special pay
under 37 U.S.C. § 310).
(2) Loitering or wrongfully sitting on post.
(a) That the accused was posted as a sentinel or
lookout; and
(b) That while so posted, the accused loitered or
wrongfully sat down on post.
[Note: If the offense was committed in time of war
or while the accused was receiving special pay under
37 U.S.C. § 310, add the following element:]
(c) That the accused was so posted (in time of war)
(while receiving special pay under 37 U.S.C. § 310).
c. Explanation.
(1) Drunk or sleeping on post, or leaving post before
being relieved.
(a) In general. Article 95(a) defines three kinds of
misbehavior committed by sentinels or lookouts: being
drunk on post, sleeping on post, or leaving it before
being regularly relieved. Article 95(a) does not include
an officer or enlisted person of the guard, or of a ship’s
watch, not posted or performing the duties of a sentinel
or lookout, nor does it include a person whose duties
as a watchman or attendant do not require constant
alertness.
(b) Post. “Post” is the area where the sentinel or
lookout is required to be for the performance of duties.
It is not limited by an imaginary line, but includes,
according to orders or circumstances, such surrounding
area as may be necessary for the proper performance
of the duties for which the sentinel or lookout was
posted. The offense of leaving post is not committed
when a sentinel or lookout goes an immaterial distance
from the post, unless it is such a distance that the ability
to fully perform the duty for which posted is impaired.
(c) On post. A sentinel or lookout becomes “on
post” after having been given a lawful order to go “on
post” as a sentinel or lookout and being formally or
informally posted. The fact that a sentinel or lookout is
not posted in the regular way is not a defense. It is
sufficient, for example, if the sentinel or lookout has
taken the post in accordance with proper instruction,
whether or not formally given. A sentinel or lookout is
“on post” within the meaning of the article not only
when at a post physically defined, as is ordinarily the
case in garrison or aboard ship, but also, for example,
when stationed in observation against the approach of
an enemy, or detailed to use any equipment designed
to locate friend, foe, or possible danger, or at a
designated place to maintain internal discipline, or to
guard stores, or to guard prisoners while in
confinement or at work.
(d) Sentinel or lookout. A “sentinel” or a “lookout”
is a person whose duties include the requirement to
maintain constant alertness, be vigilant, and remain
awake, in order to observe for the possible approach of
the enemy, or to guard persons, property, or a place and
to sound the alert, if necessary.
(e) Drunk. For an explanation of “drunk,” see
subparagraph 51.c.(6).
(f) Sleeping. As used in this article, “sleeping” is
that condition of insentience which is sufficient
sensibly to impair the full exercise of the mental and
physical faculties of a sentinel or lookout. It is not
necessary to show that the accused was in a wholly
comatose condition. The fact that the accused’s
sleeping resulted from a physical incapacity caused by
disease or accident is an affirmative defense. See
R.C.M. 916(i).
(2) Loitering or wrongfully sitting on post by a
sentinel or lookout.
(a) In general. The discussion set forth in
subparagraph 22.c.(1) applies to loitering or sitting
down while posted as a sentinel or lookout in violation
of Article 95(b) as well.
IV-35
(b) Loiter. “Loiter” means to stand around, to
move about slowly, to linger, or to lag behind when
that conduct is in violation of known instructions or
accompanied by a failure to give complete attention to
duty.
d. Maximum punishment.
(1) Drunk or sleeping on post, or leaving post before
being relieved.
(a) In time of war. Death or such other punishment
as a court-martial may direct.
(b) While receiving special pay under 37 U.S.C. §
310. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 10 years.
(c) In all other places. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
(2) Loitering or wrongfully sitting on post by a
sentinel or lookout.
(a) In time of war or while receiving special pay
under 37 U.S.C. § 310. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 2 years.
(b) Other cases. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 6
months.
e. Sample specifications.
(1) Drunk or sleeping on post, or leaving post before
being relieved.
In that __________ (personal jurisdiction data), on
or about _____ 20 __ (a time of war) (at/on board—
location), (while receiving special pay under 37 U.S.C.
§ 310), being (posted) (on post) as a (sentinel)
(lookout) at (warehouse no. 7) (post no. 11) (for radar
observation) (__________) (was (drunk) (sleeping)
upon (his) (her) post) (did leave (his) (her) post before
(he) (she) was regularly relieved).
(2) Loitering or wrongfully sitting down on post by a
sentinel or lookout.
In that __________ (personal jurisdiction data),
while posted as a (sentinel) (lookout), did, (at/on
board—location) (while receiving special pay under 37
U.S.C. § 310) on or about _____ 20 __, (a time of war)
(loiter) (wrongfully sit down) on (his) (her) post.
23. Article 95a (10 U.S.C. 895a)—Disrespect toward
sentinel or lookout
a. Text of statute.
(a) DISRESPECTFUL LANGUAGE TOWARD
SENTINEL OR LOOKOUT.—Any person subject
to this chapter who, knowing that another person is
a sentinel or lookout, uses wrongful and
disrespectful language that is directed toward and
within the hearing of the sentinel or lookout, who is
in the execution of duties as a sentinel or lookout,
shall be punished as a court-martial may direct.
(b) DISRESPECTFUL BEHAVIOR TOWARD
SENTINEL OR LOOKOUT.—Any person subject
to this chapter who, knowing that another person is
a sentinel or lookout, behaves in a wrongful and
disrespectful manner that is directed toward and
within the sight of the sentinel or lookout, who is in
the execution of duties as a sentinel or lookout, shall
be punished as a court-martial may direct.
b. Elements.
(1) Disrespectful language toward sentinel or
lookout.
(a) That a certain person was a sentinel or lookout;
(b) That the accused knew that said person was a
sentinel or lookout;
(c) That the accused used certain disrespectful
language;
(d) That such language was wrongful;
(e) That such language was directed toward and
within the hearing of the sentinel or lookout; and
(f) That said person was at the time in the
execution of duties as a sentinel or lookout.
(2) Disrespectful behavior toward sentinel or
lookout.
(a) That a certain person was a sentinel or lookout;
(b) That the accused knew that said person was a
sentinel or lookout;
(c) That the accused behaved in a certain
disrespectful manner;
(d) That such behavior was wrongful;
(e) That such behavior was directed toward and
within the sight of the sentinel or lookout; and
(f) That said person was at the time in the
execution of duties as a sentinel or lookout.
c. Explanation. See subparagraph 15.c.(2)(b) for a
discussion of “disrespect.”
d. Maximum punishment.
Confinement for 3 months
and forfeiture of two-thirds pay per month for 3
months.
e. Sample specification.
IV-36
(1) Disrespectful language toward sentinel or
lookout.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, then knowing that
__________ was a sentinel or lookout, wrongfully use
the following disrespectful language “__________,” or
words to that effect, to __________, and that such
language was directed toward and within the hearing
of __________, the (sentinel) (lookout) in the
execution of (his) (her) duty.
(2) Disrespectful behavior toward sentinel or
lookout.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, then knowing that
__________ was a sentinel or lookout, wrongfully
behave in a disrespectful manner toward __________,
by __________, and that such behavior was directed
toward and within the sight of ________, the (sentinel)
(lookout) in the execution of (his) (her) duty.
24. Article 96 (10 U.S.C. 896)—Release of prisoner
without authority; drinking with prisoner
a. Text of statute.
(a) RELEASE OF PRISONER WITHOUT
AUTHORITY.—Any person subject to this
chapter—
(1) who, without authority to do so, releases a
prisoner; or
(2) who, through neglect or design, allows a
prisoner to escape; shall be punished as a court-
martial may direct, whether or not the prisoner was
committed in strict compliance with the law.
(b) DRINKING WITH PRISONER.—Any
person subject to this chapter who unlawfully
drinks any alcoholic beverage with a prisoner shall
be punished as a court-martial may direct.
b. Elements.
(1) Releasing a prisoner without authority.
(a) That a certain person was a prisoner; and
(b) That the accused released the prisoner without
authority.
(2) Allowing a prisoner to escape through neglect.
(a) That a certain person was a prisoner;
(b) That the prisoner escaped;
(c) That the accused did not take such care to
prevent the escape as a reasonably careful person,
acting in the capacity in which the accused was acting,
would have taken in the same or similar circumstances;
and
(d) That the escape was the proximate result of the
neglect.
(3) Allowing a prisoner to escape through design.
(a) That a certain person was a prisoner;
(b) That the design of the accused was to allow the
escape of that prisoner; and
(c) That the prisoner escaped as a result of the
carrying out of the design of the accused.
(4) Drinking with prisoner.
(a) That a certain person was a prisoner; and
(b) That the accused unlawfully drank any
alcoholic beverage with that prisoner.
c. Explanation.
(1) Prisoner. A prisoner is a person who is in
confinement or custody imposed under R.C.M. 302,
304, or 305, or under sentence of a court-martial who
has not been set free by a person with authority to
release the prisoner.
(2) Releasing a prisoner without authority.
(a) Release. The release of a prisoner is removal
of restraint by the custodian rather than by the prisoner.
(b) Authority to release. See R.C.M. 305(g) as to
who may release pretrial prisoners. Normally, the
lowest authority competent to order release of a post-
trial prisoner is the commander who convened the
court-martial that sentenced the prisoner or the officer
exercising general court-martial jurisdiction over the
prisoner. See also R.C.M. 1103.
(3) Allowing a prisoner to escape through neglect.
(a) Allow. “Allow” means to permit; not to forbid
or hinder.
(b) Neglect. “Neglect” is a relative term. It is the
absence of conduct that would have been taken by a
reasonably careful custodian in the same or similar
circumstances.
(c) Escape. “Escape” is defined in subparagraph
12.c.(5)(c).
(d) Status of prisoner after escape not a defense.
After escape, the fact that a prisoner returns, is
captured, killed, or otherwise dies is not a defense.
(4) Allowing a prisoner to escape through design.
An escape is allowed through design when it is
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intended by the custodian. Such intent may be inferred
from conduct so wantonly devoid of care that the only
reasonable inference which may be drawn is that the
escape was contemplated as a probable result.
(5) Drinking with prisoner. For purposes of this
section, “unlawful” is synonymous with “wrongful.”
That is, it is unlawful to drink an alcoholic beverage
with a prisoner unless the accused had a legal
justification or excuse to do so. In this context, any
consumption of alcohol with a prisoner would be
unlawful unless the accused had been granted specific
authority to do so by competent authority (e.g., a
commander of a confinement facility authorizing
limited alcohol consumption by prisoners on a holiday
or special occasion).
d. Maximum punishment.
(1) Releasing a prisoner without authority.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(2) Allowing a prisoner to escape through neglect.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(3) Allowing a prisoner to escape through design.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(4) Drinking with prisoner. Confinement for 1 year
and forfeiture of two-thirds pay per month for 1 year.
e. Sample specifications.
(1) Releasing a prisoner without authority.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, without authority,
release __________, a prisoner.
(2) Allowing a prisoner to escape through neglect or
design.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, through (neglect)
(design), allow __________, a prisoner, to escape.
(3) Drinking with prisoner.
In that _____ (personal jurisdiction data), did, (at/on
board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, unlawfully drink
alcohol with __________, a prisoner.
25. Article 97 (10 U.S.C. 897)—Unlawful detention
a. Text of statute.
Any person subject to this chapter who, except as
provided by law, apprehends, arrests, or confines
any person shall be punished as a court-martial
may direct.
b. Elements.
(1) That the accused apprehended, arrested, or
confined a certain person; and
(2) That the accused unlawfully exercised the
accused’s authority to do so.
c. Explanation.
(1) Scope. This article prohibits improper acts by
those empowered by the UCMJ to arrest, apprehend, or
confine. See Articles 7 and 9; R.C.M. 302, 304, 305,
and 1103, and paragraph 2 and subparagraph 5.b., Part
V. It does not apply to private acts of false
imprisonment or unlawful restraint of another’s
freedom of movement by one not acting under such a
delegation of authority under the UCMJ.
(2) No force required. The apprehension, arrest, or
confinement must be against the will of the person
restrained, but force is not required.
(3) Defense. A reasonable belief held by the person
imposing restraint that it is lawful is a defense.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification
.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), did, (at/on
board—location), on or about _____ 20 __, unlawfully
(apprehend __________) (place __________ in arrest)
(confine __________ in __________).
26. Article 98 (10 U.S.C. 898)—Misconduct as
prisoner
a. Text of statute.
Any person subject to this chapter who, while in the
hands of the enemy in time of war—
(1) for the purpose of securing favorable
treatment by his captors acts without proper
authority in a manner contrary to law, custom, or
regulation, to the detriment of others of whatever
nationality held by the enemy as civilian or military
prisoners; or
(2) while in a position of authority over such
persons maltreats them without justifiable cause;
shall be punished as a court-martial may direct.
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b. Elements.
(1) Acting without authority to the detriment of
another for the purpose of securing favorable
treatment.
(a) That without proper authority the accused
acted in a manner contrary to law, custom, or
regulation;
(b) That the act was committed while the accused
was in the hands of the enemy in time of war;
(c) That the act was done for the purpose of
securing favorable treatment of the accused by the
captors; and
(d) That other prisoners held by the enemy, either
military or civilian, suffered some detriment because
of the accused’s act.
(2) Maltreating prisoners while in a position of
authority.
(a) That the accused maltreated a prisoner held by
the enemy;
(b) That the act occurred while the accused was in
the hands of the enemy in time of war;
(c) That the accused held a position of authority
over the person maltreated; and
(d) That the act was without justifiable cause.
c. Explanation
.
(1) Enemy. For a discussion of “enemy,” see
subparagraph 27.c.(1)(b).
(2) In time of war. See R.C.M. 103(21).
(3) Acting without authority to the detriment of
another for the purpose of securing favorable
treatment.
(a) Nature of offense. Unauthorized conduct by a
prisoner of war must be intended to result in
improvement by the enemy of the accused’s condition
and must operate to the detriment of other prisoners
either by way of closer confinement, reduced rations,
physical punishment, or other harm. Examples of this
conduct include reporting plans of escape being
prepared by others or reporting secret food caches,
equipment, or arms. The conduct of the prisoner must
be contrary to law, custom, or regulation.
(b) Escape. Escape from the enemy is authorized
by custom. An escape or escape attempt which results
in closer confinement or other measures against fellow
prisoners still in the hands of the enemy is not an
offense under this article.
(4) Maltreating prisoners while in a position of
authority.
(a) Authority. The source of authority is not
material. It may arise from the military rank of the
accused or—despite Service regulations or customs to
the contrary—designation by the captor authorities, or
voluntary election or selection by other prisoners for
their self-government.
(b) Maltreatment. The maltreatment must be real,
although not necessarily physical, and it must be
without justifiable cause. Abuse of an inferior by
inflammatory and derogatory words may, through
mental anguish, constitute this offense.
d. Maximum punishment. Any punishment other than
death that a court-martial may direct.
e. Sample specifications.
(1) Acting without authority to the detriment of
another for the purpose of securing favorable
treatment.
In that __________ (personal jurisdiction data),
while in the hands of the enemy, did, (at/on board—
location) (subject-matter jurisdiction, if required), on
or about _____ 20 __, a time of war, without proper
authority and for the purpose of securing favorable
treatment by (his) (her) captors, (report to the
commander of Camp __________ the preparations by
__________, a prisoner at said camp, to escape, as a
result of which report the said _____ was placed in
solitary confinement) (_____).
(2) Maltreating prisoner while in a position of
authority.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, a time of war,
while in the hands of the enemy and in a position of
authority over __________, a prisoner at __________,
as (officer in charge of prisoners at _____) (_____),
maltreat the said _____ by (depriving (him) (her) of
_____) (_____), without justifiable cause.
27. Article 99 (10 U.S.C. 899)—Misbehavior before
the enemy
a. Text of statute.
Any member of the armed forces who before or in
the presence of the enemy—
(1) runs away;
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(2) shamefully abandons, surrenders, or delivers
up any command, unit, place, or military property
which it is his duty to defend;
(3) through disobedience, neglect, or intentional
misconduct endangers the safety of any such
command, unit, place, or military property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or pillage;
(7) causes false alarms in any command, unit, or
place under control of the armed forces;
(8) willfully fails to do his utmost to encounter,
engage, capture, or destroy any enemy troops,
combatants, vessels, aircraft, or any other thing,
which it is his duty so to encounter, engage, capture,
or destroy; or
(9) does not afford all practicable relief and
assistance to any troops, combatants, vessels, or
aircraft of the armed forces belonging to the United
States or their allies when engaged in battle;
shall be punished by death or such other
punishment as a court-martial may direct.
b. Elements.
(1) Running away.
(a) That the accused was before or in the presence
of the enemy;
(b) That the accused misbehaved by running away;
and
(c) That the accused intended to avoid actual or
impending combat with the enemy by running away.
(2) Shamefully abandoning, surrendering, or
delivering up command.
(a) That the accused was charged by orders or
circumstances with the duty to defend a certain
command, unit, place, ship, or military property;
(b) That, without justification, the accused
shamefully abandoned, surrendered, or delivered up
that command, unit, place, ship, or military property;
and
(c) That this act occurred while the accused was
before or in the presence of the enemy.
(3) Endangering safety of a command, unit, place,
ship, or military property.
(a) That it was the duty of the accused to defend a
certain command, unit, place, ship, or certain military
property;
(b) That the accused committed certain
disobedience, neglect, or intentional misconduct;
(c) That the accused thereby endangered the safety
of the command, unit, place, ship, or military property;
and
(d) That this act occurred while the accused was
before or in the presence of the enemy.
(4) Casting away arms or ammunition.
(a) That the accused was before or in the presence
of the enemy; and
(b) That the accused cast away certain arms or
ammunition.
(5) Cowardly conduct.
(a) That the accused committed an act of
cowardice;
(b) That this conduct occurred while the accused
was before or in the presence of the enemy; and
(c) That this conduct was the result of fear.
(6) Quitting place of duty to plunder or pillage.
(a) That the accused was before or in the presence
of the enemy;
(b) That the accused quit the accused’s place of
duty; and
(c) That the accused’s intention in quitting was to
plunder or pillage public or private property.
(7) Causing false alarms.
(a) That an alarm was caused in a certain
command, unit, or place under control of the armed
forces of the United States;
(b) That the accused caused the alarm;
(c) That the alarm was caused without any
reasonable or sufficient justification or excuse; and
(d) That this act occurred while the accused was
before or in the presence of the enemy.
(8) Willfully failing to do utmost to encounter enemy.
(a) That the accused was serving before or in the
presence of the enemy;
(b) That the accused had a duty to encounter,
engage, capture, or destroy certain enemy troops,
combatants, vessels, aircraft, or a certain other thing;
and
(c) That the accused willfully failed to do the
utmost to perform that duty.
(9) Failing to afford relief and assistance.
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(a) That certain troops, combatants, vessels, or
aircraft of the armed forces belonging to the United
States or an ally of the United States were engaged in
battle and required relief and assistance;
(b) That the accused was in a position and able to
render relief and assistance to these troops,
combatants, vessels, or aircraft, without jeopardy to the
accused’s mission;
(c) That the accused failed to afford all practicable
relief and assistance; and
(d) That, at the time, the accused was before or in
the presence of the enemy.
c. Explanation.
(1) Running away.
(a) Running away. “Running away” means an
unauthorized departure to avoid actual or impending
combat. It need not, however, be the result of fear, and
there is no requirement that the accused literally run.
(b) Enemy. Enemy includes organized forces of
the enemy in time of war, any hostile body that our
forces may be opposing, such as a rebellious mob or a
band of renegades, and includes civilians as well as
members of military organizations. Enemy is not
restricted to the enemy government or its armed forces.
All the citizens of one belligerent are enemies of the
government and all the citizens of the other.
(c) Before or in the presence of the enemy.
Whether a person is before or in the presence of the
enemy is a question of tactical relation, not distance.
For example, a member of an antiaircraft gun crew
charged with opposing anticipated attack from the air,
or a member of a unit about to move into combat may
be before the enemy although miles from the enemy
lines. On the other hand, an organization some distance
from the front or immediate area of combat which is
not a part of a tactical operation then going on or in
immediate prospect is not “before or in the presence of
the enemy” within the meaning of this article.
(2) Shamefully abandoning, surrendering, or
delivering up of command.
(a) Scope. This provision concerns primarily
commanders chargeable with responsibility for
defending a command, unit, place, ship or military
property. Abandonment by a subordinate would
ordinarily be charged as running away.
(b) Shameful. Surrender or abandonment without
justification is shameful within the meaning of this
article.
(c) Surrender; deliver up. “Surrender” and
“deliver up” are synonymous for the purposes of this
article.
(d) Justification. Surrender or abandonment of a
command, unit, place, ship, or military property by a
person charged with its defense can be justified only
by the utmost necessity or extremity.
(3) Endangering safety of a command, unit, place,
ship, or military property.
(a) Neglect. Neglect is the absence of conduct
which would have been taken by a reasonably careful
person in the same or similar circumstances.
(b) Intentional misconduct. Intentional
misconduct does not include a mere error in judgment.
(4) Casting away arms or ammunition. Self-
explanatory.
(5) Cowardly conduct.
(a) Cowardice. Cowardice is misbehavior
motivated by fear.
(b) Fear. Fear is a natural feeling of apprehension
when going into battle. The mere display of
apprehension does not constitute this offense.
(c) Nature of offense. Refusal or abandonment of
a performance of duty before or in the presence of the
enemy as a result of fear constitutes this offense.
(d) Defense. Genuine and extreme illness, not
generated by cowardice, is a defense.
(6) Quitting place of duty to plunder or pillage.
(a) Place of duty. Place of duty includes any place
of duty, whether permanent or temporary, fixed or
mobile.
(b) Plunder or pillage. “Plunder or pillage” means
to seize or appropriate public or private property
unlawfully.
(c) Nature of offense. The essence of this offense
is quitting the place of duty with intent to plunder or
pillage. Merely quitting with that purpose is sufficient,
even if the intended misconduct is not done.
(7) Causing false alarms. This provision covers
spreading of false or disturbing rumors or reports, as
well as the false giving of established alarm signals.
(8) Willfully failing to do utmost to encounter enemy.
Willfully refusing a lawful order to go on a combat
patrol may violate this provision.
(9) Failing to afford relief and assistance.
(a) All practicable relief and assistance. “All
practicable relief and assistance” means all relief and
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assistance which should be afforded within the
limitations imposed upon a person by reason of that
person’s own specific tasks or mission.
(b) Nature of offense. This offense is limited to a
failure to afford relief and assistance to forces engaged
in battle.
d. Maximum punishment. All offenses under Article
99. Death or such other punishment as a court-martial
may direct.
e. Sample specifications.
(1) Running away.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, run away (from (his) (her)
company) (and hide) (_____), (and did not return until
after the engagement had been concluded)
(__________).
(2) Shamefully abandoning, surrendering, or
delivering up command.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, shamefully (abandon)
(surrender) (deliver up) __________, which it was
(his) (her) duty to defend.
(3) Endangering safety of a command, unit, place,
ship, or military property.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, endanger the safety of
__________, which it was (his) (her) duty to defend,
by (disobeying an order from __________ to engage
the enemy) (neglecting (his) (her) duty as a sentinel by
engaging in a card game while on (his) (her) post)
(intentional misconduct in that (he) (she) became
drunk and fired flares, thus revealing the location of
(his) (her) unit) (_____).
(4) Casting away arms or ammunition.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, cast away (his) (her) (rifle)
(ammunition) (_____).
(5) Cowardly conduct.
In that __________ (personal jurisdiction data),
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, was guilty of cowardly
conduct as a result of fear, in that ____________.
(6) Quitting place of duty to plunder or pillage.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, quit (his) (her) place of duty
for the purpose of (plundering) (pillaging) (plundering
and pillaging).
(7) Causing false alarms.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, cause a false alarm in (Fort
_____) (the said ship) (the camp) (_____) by
(needlessly and without authority (causing the call to
arms to be sounded) (sounding the general alarm)
(_____).
(8) Willfully failing to do utmost to encounter enemy.
In that __________ (personal jurisdiction data),
being (before) (in the presence of) the enemy, did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, by, (ordering (his)
(her) troops to halt their advance) (__________),
willfully fail to do (his) (her) utmost to (encounter)
(engage) (capture) (destroy), as it was (his) (her) duty
to do, (certain enemy troops which were in retreat)
(__________).
(9) Failing to afford relief and assistance.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (before) (in the
presence of) the enemy, fail to afford all practicable
relief and assistance to (the USS __________, which
was engaged in battle and had run aground, in that (he)
(she) failed to take her in tow) (certain troops of the
ground forces of __________, which were engaged in
battle and were pinned down by enemy fire, in that (he)
(she) failed to furnish air cover) (__________) as (he)
(she) properly should have done.
28. Article 100 (10 U.S.C. 900)—Subordinate
compelling surrender
a. Text of statute.
Any person subject to this chapter who compels or
attempts to compel the commander of any place,
vessel, aircraft, or other military property, or of any
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body of members of the armed forces, to give it up
to an enemy or to abandon it, or who strikes the
colors or flag to an enemy without proper authority,
shall be punished by death or such other
punishment as a court-martial may direct.
b. Elements
.
(1) Compelling surrender.
(a) That a certain person was in command of a
certain place, vessel, aircraft, or other military property
or of a body of members of the armed forces;
(b) That the accused did an overt act which was
intended to and did compel that commander to give it
up to the enemy or abandon it; and
(c) That the place, vessel, aircraft, or other military
property or body of members of the armed forces was
actually given up to the enemy or abandoned.
(2) Attempting to compel surrender.
(a) That a certain person was in command of a
certain place, vessel, aircraft, or other military property
or of a body of members of the armed forces;
(b) That the accused did a certain overt act;
(c) That the act was done with the intent to compel
that commander to give up to the enemy or abandon
the place, vessel, aircraft, or other military property or
body of members of the armed forces;
(d) That the act amounted to more than mere
preparation; and
(e) That the act apparently tended to bring about
the compelling of surrender or abandonment.
(3) Striking the colors or flag.
(a) That there was an offer of surrender to an
enemy;
(b) That this offer was made by striking the colors
or flag to the enemy or in some other manner;
(c) That the accused made or was responsible for
the offer; and
(d) That the accused did not have proper authority
to make the offer.
c. Explanation
.
(1) Compelling surrender.
(a) Nature of offense. The offenses under this
article are similar to mutiny or attempted mutiny
designed to bring about surrender or abandonment.
Unlike some cases of mutiny, however, concert of
action is not an essential element of the offenses under
this article. The offense is not complete until the place,
military property, or command is actually abandoned
or given up to the enemy.
(b) Surrender. “Surrender” and “to give it up to an
enemy” are synonymous.
(c) Acts required. The surrender or abandonment
must be compelled or attempted to be compelled by
acts rather than words.
(2) Attempting to compel surrender. The offense of
attempting to compel a surrender or abandonment does
not require actual abandonment or surrender, but there
must be some act done with this purpose in view, even
if it does not accomplish the purpose.
(3) Striking the colors or flag.
(a) In general. To “strike the colors or flag” is to
haul down the colors or flag in the face of the enemy
or to make any other offer of surrender. It is traditional
wording for an act of surrender.
(b) Nature of offense. The offense is committed
when one assumes the authority to surrender a military
force or position when not authorized to do so either by
competent authority or by the necessities of battle. If
continued battle has become fruitless and it is
impossible to communicate with higher authority,
those facts will constitute proper authority to surrender.
The offense may be committed whenever there is
sufficient contact with the enemy to give the
opportunity of making an offer of surrender and it is
not necessary that an engagement with the enemy be in
progress. It is unnecessary to prove that the offer was
received by the enemy or that it was rejected or
accepted. The sending of an emissary charged with
making the offer or surrender is an act sufficient to
prove the offer, even though the emissary does not
reach the enemy.
(4) Enemy. For a discussion of “enemy,” see
subparagraph 27.c.(1)(b).
d. Maximum punishment. All offenses under Article
100. Death or such other punishment as a court-martial
may direct.
e. Sample specifications.
(1) Compelling surrender or attempting to compel
surrender.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (attempt to)
compel __________, the commander of __________,
(to give up to the enemy) (to abandon) said
__________, by __________.
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(2) Striking the colors or flag.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, without proper
authority, offer to surrender to the enemy by (striking
the (colors) (flag)) (_____).
29. Article 101 (10 U.S.C. 901)—Improper use of
countersign
a. Text of statute
.
Any person subject to this chapter who in time of
war discloses the parole or countersign to any
person not entitled to receive it or who gives to
another who is entitled to receive and use the parole
or countersign a different parole or countersign
from that which, to his knowledge, he was
authorized and required to give, shall be punished
by death or such other punishment as a court-
martial may direct.
b. Elements.
(1) Disclosing the parole or countersign to one not
entitled to receive it.
(a) That, in time of war, the accused disclosed the
parole or countersign to a person, identified or
unidentified; and
(b) That this person was not entitled to receive it.
(2) Giving a parole or countersign different from
that authorized.
(a) That, in time of war, the accused knew that the
accused was authorized and required to give a certain
parole or countersign; and
(b) That the accused gave to a person entitled to
receive and use this parole or countersign a different
parole or countersign from that which the accused was
authorized and required to give.
c. Explanation
.
(1) Countersign. A countersign is a word, signal, or
procedure given from the principal headquarters of a
command to aid guards and sentinels in their scrutiny
of persons who apply to pass the lines. It consists of a
secret challenge and a password, signal, or procedure.
(2) Parole. A parole is a word used as a check on the
countersign; it is given only to those who are entitled
to inspect guards and to commanders of guards.
(3) Who may receive countersign. The class of
persons entitled to receive the countersign or parole
will expand and contract under the varying
circumstances of war. Who these persons are will be
determined largely, in any particular case, by the
general or special orders under which the accused was
acting. Before disclosing such a word, a person subject
to military law must determine at that person’s peril
that the recipient is a person authorized to receive it.
(4) Intent, motive, negligence, mistake, ignorance
not defense. The accused’s intent or motive in
disclosing the countersign or parole is immaterial to the
issue of guilt, as is the fact that the disclosure was
negligent or inadvertent. It is no defense that the
accused did not know that the person to whom the
countersign or parole was given was not entitled to
receive it.
(5) How accused received countersign or parole. It
is immaterial whether the accused had received the
countersign or parole in the regular course of duty or
whether it was obtained in some other way.
(6) In time of war. See R.C.M. 103(21).
d. Maximum punishment.
Death or such other
punishment as a court-martial may direct.
e. Sample specifications.
(1) Disclosing the parole or countersign to one not
entitled to receive it.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, a time of war,
disclose the (parole) (countersign), to wit:
__________, to __________, a person who was not
entitled to receive it.
(2) Giving a parole or countersign different from
that authorized.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, a time of war, give
to __________, a person entitled to receive and use the
(parole) (countersign), a (parole) (countersign),
namely: __________ which was different from that
which, to (his) (her) knowledge, (he) (she) was
authorized and required to give, to wit: __________.
30. Article 102 (10 U.S.C. 902)—Forcing a
safeguard
a. Text of statute
.
Any person subject to this chapter who forces a
safeguard shall suffer death or such other
punishment as a court-martial may direct.
b. Elements
.
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(1) That a safeguard had been issued or posted for
the protection of a certain person or persons, place, or
property;
(2) That the accused knew or should have known of
the safeguard; and
(3) That the accused forced the safeguard.
c. Explanation
.
(1) Safeguard. A safeguard is a detachment, guard,
or detail posted by a commander for the protection of
persons, places, or property of the enemy, or of a
neutral affected by the relationship of belligerent
forces in their prosecution of war or during
circumstances amounting to a state of belligerency.
The term also includes a written order left by a
commander with an enemy subject or posted upon
enemy property for the protection of that person or
property. A safeguard is not a device adopted by a
belligerent to protect its own property or nationals or
to ensure order within its own forces, even if those
forces are in a theater of combat operations, and the
posting of guards or of off-limits signs does not
establish a safeguard unless a commander takes those
actions to protect enemy or neutral persons or property.
The effect of a safeguard is to pledge the honor of the
nation that the person or property shall be respected by
the national armed forces.
(2) Forcing a safeguard. “Forcing a safeguard”
means to perform an act or acts in violation of the
protection of the safeguard.
(3) Nature of offense. Any trespass on the protection
of the safeguard will constitute an offense under this
article, whether the safeguard was imposed in time of
war or in circumstances amounting to a state of
belligerency short of a formal state of war.
(4) Knowledge. Actual knowledge of the safeguard
is not required. It is sufficient if an accused should have
known of the existence of the safeguard.
d. Maximum punishment. Death or such other
punishment as a court-martial may direct.
e. Sample specification
.
In that ________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, force a safeguard,
(known by (him) (her) to have been placed over the
premises occupied by __________ at __________ by
(overwhelming the guard posted for the protection of
the same) (__________)) (__________).
31. Article 103 (10 U.S.C. 903)—Spies
a. Text of statute.
Any person who in time of war is found lurking as
a spy or acting as a spy in or about any place, vessel,
or aircraft, within the control or jurisdiction of any
of the armed forces, or in or about any shipyard,
any manufacturing or industrial plant, or any other
place or institution engaged in work in aid of the
prosecution of the war by the United States, or
elsewhere, shall be tried by a general court-martial
or by a military commission and on conviction shall
be punished by death or such other punishment as
a court-martial or a military commission may
direct. This section does not apply to a military
commission established under chapter 47A of this
title.
b. Elements.
(1) That the accused was found in, about, or in and
about a certain place, vessel, or aircraft within the
control or jurisdiction of an armed force of the United
States, or a shipyard, manufacturing or industrial plant,
or other place or institution engaged in work in aid of
the prosecution of the war by the United States, or
elsewhere;
(2) That the accused was lurking, acting
clandestinely or under false pretenses;
(3) That the accused was collecting or attempting to
collect certain information;
(4) That the accused did so with the intent to convey
this information to the enemy; and
(5) That this was done in time of war.
c. Explanation
.
(1) In time of war. See R.C.M. 103(21).
(2) Enemy. For a discussion of “enemy,” see
subparagraph 27.c.(1)(b).
(3) Scope of offense. The words “any person” bring
within the jurisdiction of general courts-martial and
military commissions all persons of whatever
nationality or status who commit spying.
(4) Nature of offense. A person can be a spy only
when, acting clandestinely or under false pretenses,
that person obtains or seeks to obtain information with
the intent to convey it to a hostile party. It is not
essential that the accused obtain the information sought
or that it be communicated. The offense is complete
with lurking or acting clandestinely or under false
pretenses with intent to accomplish these objects.
IV-45
(5) Intent. It is necessary to prove an intent to convey
information to the enemy. This intent may be inferred
from evidence of a deceptive insinuation of the accused
among our forces, but evidence that the person had
come within the lines for a comparatively innocent
purpose, as to visit family or to reach friendly lines by
assuming a disguise, is admissible to rebut this
inference.
(6) Persons not included under “spying.”
(a) Members of a military organization not
wearing a disguise, dispatch drivers, whether members
of a military organization or civilians, and persons in
ships or aircraft who carry out their missions openly
and who have penetrated enemy lines are not spies
because, while they may have resorted to concealment,
they have not acted under false pretenses.
(b) A spy who, after rejoining the armed forces to
which the spy belongs, is later captured by the enemy
incurs no responsibility for previous acts of spying.
(c) A person living in occupied territory who,
without lurking, or acting clandestinely or under false
pretenses, merely reports what is seen or heard through
agents to the enemy may be charged under Article 103a
with giving intelligence to or communicating with the
enemy, but may not be charged under this article as
being a spy.
d. Maximum punishment.
Death or such other
punishment as a court-martial or military commission
may direct.
e. Sample specification
.
In that _____ (personal jurisdiction data), was, (at/on
board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, a time of war,
found (lurking) (acting) as a spy (in) (about) (in and
about) __________, (a (fortification) (port) (base)
(vessel) (aircraft) (__________) within the (control)
(jurisdiction) (control and jurisdiction) of an armed
force of the United States, to wit: __________) (a
(shipyard) (manufacturing plant) (industrial plant)
(__________) engaged in work in aid of the
prosecution of the war by the United States)
(__________), for the purpose of (collecting)
(attempting to collect) information in regard to the
[(numbers) (resources) (operations) (__) of the armed
forces of the United States] [(military production)
(_____) of the United States] [_____], with intent to
impart the same to the enemy.
32. Article 103a (10 U.S.C. 903a)—Espionage
a. Text of statute.
(a)(1) Any person subject to this chapter who,
with intent or reason to believe that it is to be used
to the injury of the United States or to the
advantage of a foreign nation, communicates,
delivers, or transmits, or attempts to communicate,
deliver, or transmit, to any entity described in
paragraph (2), either directly or indirectly,
anything described in paragraph (3) shall be
punished as a court-martial may direct, except that
if the accused is found guilty of an offense that
directly concerns (A) nuclear weaponry, military
spacecraft or satellites, early warning systems, or
other means of defense or retaliation against large
scale attack, (B) war plans, (C) communications
intelligence or cryptographic information, or (D)
any other major weapons system or major element
of defense strategy, the accused shall be punished
by death or such other punishment as a court-
martial may direct.
(2) An entity referred to in paragraph (1) is—
(A) a foreign government;
(B) a faction or party or military or naval
force within a foreign country, whether recognized
or unrecognized by the United States; or
(C) a representative, officer, agent, employee,
subject, or citizen of such a government, faction,
party, or force.
(3) A thing referred to in paragraph (1) is a
document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint,
plan, map, model, note, instrument, appliance, or
information relating to the national defense.
(b)(1) No person may be sentenced by court-
martial to suffer death for an offense under this
section (article) unless—
(A) the members of the court-martial
unanimously find at least one of the aggravating
factors set out in subsection (c); and
(B) the members unanimously determine
that any extenuating or mitigating circumstances
are substantially outweighed by any aggravating
circumstances, including the aggravating factors
set out in subsection (c).
(2) Findings under this subsection may be
based on—
(A) evidence introduced on the issue of guilt
or innocence;
IV-46
(B) evidence introduced during the
sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be given broad latitude to
present matters in extenuation and mitigation.
(c) A sentence of death may be adjudged by a
court-martial for an offense under this section
(article) only if the members unanimously find,
beyond a reasonable doubt, one or more of the
following aggravating factors:
(1) The accused has been convicted of another
offense involving espionage or treason for which
either a sentence of death or imprisonment for life
was authorized by statute.
(2) In the commission of the offense, the
accused knowingly created a grave risk of
substantial damage to the national security.
(3) In the commission of the offense, the
accused knowingly created a grave risk of death to
another person.
(4) Any other factor that may be prescribed by
the President by regulations under section 836 of
this title (article 36).
b. Elements.
(1) Espionage.
(a) That the accused communicated, delivered, or
transmitted any document, writing, code book, signal
book, sketch, photograph, photographic negative,
blueprint, plan, map, model, note, instrument,
appliance, or information relating to the national
defense;
(b) That this matter was communicated, delivered,
or transmitted to any foreign government, or to any
faction or party or military or naval force within a
foreign country, whether recognized or unrecognized
by the United States, or to any representative, officer,
agent, employee, subject or citizen thereof, either
directly or indirectly; and
(c) That the accused did so with intent or reason to
believe that such matter would be used to the injury of
the United States or to the advantage of a foreign
nation.
(2) Attempted espionage.
(a) That the accused did a certain overt act;
(b) That the act was done with the intent to commit
the offense of espionage;
(c) That the act amounted to more than mere
preparation; and
(d) That the act apparently tended to bring about
the offense of espionage.
(3) Espionage as a capital offense.
(a) That the accused committed espionage or
attempted espionage; and
(b) That the offense directly concerned (1) nuclear
weaponry, military spacecraft or satellites, early
warning systems, or other means of defense or
retaliation against large scale attack, (2) war plans, (3)
communications intelligence or cryptographic
information, or (4) any other major weapons system or
major element of defense strategy.
c. Explanation
.
(1) Intent. “Intent or reason to believe that the
information is to be used to the injury of the United
States or to the advantage of a foreign nation” means
that the accused acted in bad faith and without lawful
authority with respect to information that is not
lawfully accessible to the public.
(2) National defense information. “Instrument,
appliance, or information relating to the national
defense” includes the full range of modern technology
and matter that may be developed in the future,
including chemical or biological agents, computer
technology, and other matter related to the national
defense.
(3) Espionage as a capital offense. Capital
punishment is authorized if the government alleges and
proves that the offense directly concerned (1) nuclear
weaponry, military spacecraft or satellites, early
warning systems, or other means of defense or
retaliation against large scale attack, (2) war plans, (3)
communications intelligence or cryptographic
information, or (4) any other major weapons system or
major element of defense strategy. See R.C.M. 1004
concerning presentencing proceedings in capital cases.
d. Maximum punishment.
(1) Espionage as a capital offense. Death or such
other punishment as a court-martial may direct.
(2) Espionage or attempted espionage. Any
punishment, other than death, that a court-martial may
direct.
e. Sample specification
.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, with intent or
IV-47
reason to believe it would be used to the injury of the
United States or to the advantage of __________, a
foreign nation, (attempt to) (communicate) (deliver)
(transmit) __________ (description of item), (a
document) (a writing) (a code book) (a sketch) (a
photograph) (a photographic negative) (a blueprint) (a
plan) (a map) (a model) (a note) (an instrument) (an
appliance) (information) relating to the national
defense, [(which directly concerned (nuclear
weaponry) (military spacecraft) (military satellites)
(early warning systems) (__________, a means of
defense or retaliation against a large scale attack) (war
plans) (communications intelligence) (cryptographic
information) (_____, a major weapons system) (_____,
a major element of defense strategy)] to __________
((a representative of) (an officer of) (an agent of) (an
employee of) (a subject of) (a citizen of)) ((a foreign
government) (a faction within a foreign country) (a
party within a foreign country) (a military force within
a foreign country) (a naval force within a foreign
country)) (indirectly by __________).
33. Article 103b (10 U.S.C. 903b)—Aiding the
enemy
a. Text of statute.
Any person who—
(1) aids, or attempts to aid, the enemy with arms,
ammunition, supplies, money, or other things; or
(2) without proper authority, knowingly harbors
or protects or gives intelligence to, or communicates
or corresponds with or holds any intercourse with
the enemy, either directly or indirectly;
shall suffer death or such other punishment as a
court-martial or military commission may direct.
This section does not apply to a military commission
established under chapter 47A of this title.
b. Elements
.
(1) Aiding the enemy.
(a) That the accused aided the enemy; and
(b) That the accused did so with certain arms,
ammunition, supplies, money, or other things.
(2) Attempting to aid the enemy.
(a) That the accused did a certain overt act;
(b) That the act was done with the intent to aid the
enemy with certain arms, ammunition, supplies,
money, or other things;
(c) That the act amounted to more than mere
preparation; and
(d) That the act apparently tended to bring about
the offense of aiding the enemy with certain arms,
ammunition, supplies, money, or other things.
(3) Harboring or protecting the enemy.
(a) That the accused, without proper authority,
harbored or protected a person;
(b) That the person so harbored or protected was
the enemy; and
(c) That the accused knew that the person so
harbored or protected was an enemy.
(4) Giving intelligence to the enemy.
(a) That the accused, without proper authority,
knowingly gave intelligence information to the enemy;
and
(b) That the intelligence information was true, or
implied the truth, at least in part.
(5) Communicating with the enemy.
(a) That the accused, without proper authority,
communicated, corresponded, or held intercourse with
the enemy; and
(b) That the accused knew that the accused was
communicating, corresponding, or holding intercourse
with the enemy.
c. Explanation
.
(1) Scope of Article 103b. This article denounces
offenses by all persons whether or not otherwise
subject to military law. Offenders may be tried by
court-martial or by military commission.
(2) Enemy. For a discussion of “enemy,” see
subparagraph 27.c.(1)(b).
(3) Aiding or attempting to aid the enemy. It is not a
violation of this article to furnish prisoners of war
subsistence, quarters, and other comforts or aid to
which they are lawfully entitled.
(4) Harboring or protecting the enemy.
(a) Nature of offense. An enemy is harbored or
protected when, without proper authority, that enemy
is shielded, either physically or by use of any artifice,
aid, or representation from any injury or misfortune
which in the chance of war may occur.
(b) Knowledge. Actual knowledge is required, but
may be proved by circumstantial evidence.
(5) Giving intelligence to the enemy.
(a) Nature of offense. Giving intelligence to the
enemy is a particular case of corresponding with the
enemy made more serious by the fact that the
communication contains intelligence that may be
IV-48
useful to the enemy for any of the many reasons that
make information valuable to belligerents. This
intelligence may be conveyed by direct or indirect
means.
(b) Intelligence. Intelligence imports that the
information conveyed is true or implies the truth, at
least in part.
(c) Knowledge. Actual knowledge is required but
may be proved by circumstantial evidence.
(6) Communicating with the enemy.
(a) Nature of the offense. No unauthorized
communication, correspondence, or intercourse with
the enemy is permissible. The intent, content, and
method of the communication, correspondence, or
intercourse are immaterial. No response or receipt by
the enemy is required. The offense is complete the
moment the communication, correspondence, or
intercourse issues from the accused. The
communication, correspondence, or intercourse may
be conveyed directly or indirectly. A prisoner of war
may violate this Article by engaging in unauthorized
communications with the enemy. See also
subparagraph 26.c.(3).
(b) Knowledge. Actual knowledge is required but
may be proved by circumstantial evidence.
(c) Citizens of neutral powers. Citizens of neutral
powers resident in or visiting invaded or occupied
territory can claim no immunity from the customary
laws of war relating to communication with the enemy.
12A.
d. Maximum punishment.
Death or such other punishment as a court-martial or
military commission may direct.
e. Sample specifications.
(1) Aiding or attempting to aid the enemy.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (attempt to) aid the
enemy with (arms) (ammunition) (supplies) (money)
(_____), by (furnishing and delivering to _____,
members of the enemy’s armed forces _____) (____).
(2) Harboring or protecting the enemy.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, without proper
authority, knowingly (harbor) (protect) __________,
an enemy, by (concealing the said _____ in (his) (her)
house) (_____).
(3) Giving intelligence to the enemy.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, without proper
authority, knowingly give intelligence to the enemy, by
(informing a patrol of the enemy’s forces of the
whereabouts of a military patrol of the United States
forces) (____).
(4) Communicating with the enemy.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, without proper
authority, knowingly (communicate with) (correspond
with) (hold intercourse with) the enemy (by writing
and transmitting secretly through the lines to one
__________, whom (he) (she), the said __________,
knew to be (an officer of the enemy’s armed forces)
(_____) a communication in words and figures
substantially as follows, to wit: _____) (indirectly by
publishing in _____, a newspaper published at _____,
a communication in words and figures as follows, to
wit: _____, which communication was intended to
reach the enemy) (_____).
34. Article 104 (10 U.S.C. 904)—Public records
offenses
a. Text of statute
.
Any person subject to this chapter who, willfully
and unlawfully—
(1) alters, conceals, removes, mutilates,
obliterates, or destroys a public record; or
(2) takes a public record with the intent to alter,
conceal, remove, mutilate, obliterate, or destroy the
public record;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused altered, concealed, removed,
mutilated, obliterated, destroyed, or took with the
intent to alter, conceal, remove, mutilate, obliterate, or
destroy, a certain public record; and
(2) That the act of the accused was willful and
unlawful.
c. Explanation
. “Public records” include records,
reports, statements, or data compilations, in any form,
of public offices or agencies, setting forth the activities
of the office or agency, or matters observed pursuant
to duty imposed by law as to which matters there was
IV-49
a duty to report. “Public records” include classified
matters.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification
.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and unlawfully [(alter) (conceal) (remove) (mutilate)
(obliterate) (destroy)] [take with intent to (alter)
(conceal) (remove) (mutilate) (obliterate) (destroy)] a
public record, to wit: __________.
35. Article 104a (10 U.S.C. 904a)—Fraudulent
enlistment, appointment, or separation
a. Text of statute
.
Any person who—
(1) procures his own enlistment or appointment
in the armed forces by knowingly false
representation or deliberate concealment as to his
qualifications for that enlistment or appointment
and receives pay or allowances thereunder; or
(2) procures his own separation from the armed
forces by knowingly false representation or
deliberate concealment as to his eligibility for that
separation;
shall be punished as a court-martial may direct.
b. Elements.
(1) Fraudulent enlistment or appointment.
(a) That the accused was enlisted or appointed in
an armed force;
(b) That the accused knowingly misrepresented or
deliberately concealed a certain material fact or facts
regarding qualifications of the accused for enlistment
or appointment;
(c) That the accused’s enlistment or appointment
was obtained or procured by that knowingly false
representation or deliberate concealment; and
(d) That under this enlistment or appointment that
accused received pay or allowances or both.
(2) Fraudulent separation.
(a) That the accused was separated from an armed
force;
(b) That the accused knowingly misrepresented or
deliberately concealed a certain material fact or facts
about the accused’s eligibility for separation; and
(c) That the accused’s separation was obtained or
procured by that knowingly false representation or
deliberate concealment.
c. Explanation
.
(1) In general. A fraudulent enlistment,
appointment, or separation is one procured by either a
knowingly false representation as to any of the
qualifications prescribed by law, regulation, or orders
for the specific enlistment, appointment, or separation,
or a deliberate concealment as to any of those
disqualifications. Matters that may be material to an
enlistment, appointment, or separation include any
information used by the recruiting, appointing, or
separating officer in reaching a decision as to
enlistment, appointment, or separation in any
particular case, and any information that normally
would have been so considered had it been provided to
that officer.
(2) Receipt of pay or allowances. A member of the
armed forces who enlists or accepts an appointment
without being regularly separated from a prior
enlistment or appointment should be charged under
Article 104a only if that member has received pay or
allowances under the fraudulent enlistment or
appointment. Acceptance of food, clothing, shelter, or
transportation from the Government constitutes receipt
of allowances. However, whatever is furnished the
accused while in custody, confinement, arrest, or other
restraint pending trial for fraudulent enlistment or
appointment is not considered an allowance. The
receipt of pay or allowances may be proved by
circumstantial evidence.
(3) One offense. One who procures one’s own
enlistment, appointment, or separation by several
misrepresentations or concealment as to qualifications
for the one enlistment, appointment, or separation so
procured, commits only one offense under Article
104a.
d. Maximum punishment.
(1) Fraudulent enlistment or appointment.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(2) Fraudulent separation. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specifications.
(1) For fraudulent enlistment or appointment.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
IV-50
required), on or about _____ 20 __, by means of
[knowingly false representations that (here state the
fact or facts material to qualification for enlistment or
appointment which were represented), when in fact
(here state the true fact or facts)] [deliberate
concealment of the fact that (here state the fact or facts
disqualifying the accused for enlistment or
appointment which were concealed)], procure
himself/herself to be (enlisted as a __________)
(appointed as a __________) in the (here state the
armed force in which the accused procured the
enlistment or appointment), and did thereafter, (at/on
board—location), receive (pay) (allowances) (pay and
allowances) under the enlistment) (appointment) so
procured.
(2) For fraudulent separation.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, by means of
[knowingly false representations that (here state the
fact or facts material to eligibility for separation which
were represented), when in fact (here state the true fact
or facts)] [deliberate concealment of the fact that (here
state the fact or facts concealed which made the
accused ineligible for separation)], procure
himself/herself to be separated from the (here state the
armed force from which the accused procured (his)
(her) separation).
36. Article 104b (10 U.S.C. 904b)—Unlawful
enlistment, appointment, or separation
a. Text of statute.
Any person subject to this chapter who effects an
enlistment or appointment in or a separation from
the armed forces of any person who is known to him
to be ineligible for that enlistment, appointment, or
separation because it is prohibited by law,
regulation, or order shall be punished as a court-
martial may direct.
b. Elements
.
(1) That the accused effected the enlistment,
appointment, or separation of the person named;
(2) That this person was ineligible for this
enlistment, appointment, or separation because it was
prohibited by law, regulation, or order; and
(3) That the accused knew of the ineligibility at the
time of the enlistment, appointment, or separation.
c. Explanation
. It must be proved that the enlistment,
appointment, or separation was prohibited by law,
regulation, or order when effected and that the accused
then knew that the person enlisted, appointed, or
separated was ineligible for the enlistment,
appointment, or separation.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification
.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, effect [the
(enlistment) (appointment) of __________ as a
__________ in (here state the armed force in which the
person was enlisted or appointed)] [the separation of
__________ from (here state the armed force from
which the person was separated)], then well knowing
that the said __________ was ineligible for such
(enlistment) (appointment) (separation) because (here
state facts whereby the enlistment, appointment, or
separation was prohibited by law, regulation, or order).
37. Article 105 (10 U.S.C. 905)—Forgery
a. Text of statute.
Any person subject to this chapter who, with intent
to defraud—
(1) falsely makes or alters any signature to, or any
part of, any writing which would, if genuine,
apparently impose a legal liability on another or
change his legal right or liability to his prejudice; or
(2) utters, offers, issues, or transfers such a
writing, known by him to be so made or altered;
is guilty of forgery and shall be punished as a court-
martial may direct.
b. Elements.
(1) Forgery—making or altering.
(a) That the accused falsely made or altered a
certain signature or writing;
(b) That the signature or writing was of a nature
which would, if genuine, apparently impose a legal
liability on another or change another’s legal rights or
liabilities to that person’s prejudice; and
(c) That the false making or altering was with the
intent to defraud.
(2) Forgery—uttering.
(a) That a certain signature or writing was falsely
made or altered;
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(b) That the signature or writing was of a nature
which would, if genuine, apparently impose a legal
liability on another or change another’s legal rights or
liabilities to that person’s prejudice;
(c) That the accused uttered, offered, issued, or
transferred the signature or writing;
(d) That at such time the accused knew that the
signature or writing had been falsely made or altered;
and
(e) That the uttering, offering, issuing or
transferring was with the intent to defraud.
c. Explanation
.
(1) In general. Forgery may be committed either by
falsely making a writing or by knowingly uttering a
falsely made writing. There are three elements
common to both aspects of forgery: a writing falsely
made or altered; an apparent capability of the writing
as falsely made or altered to impose a legal liability on
another or to change another’s legal rights or liabilities
to that person’s prejudice; and an intent to defraud.
(2) False. “False” refers not to the contents of the
writing or to the facts stated therein but to the making
or altering of it. Hence, forgery is not committed by the
genuine making of a false instrument even when made
with intent to defraud. A person who, with intent to
defraud, signs that person’s own signature as the maker
of a check drawn on a bank in which that person does
not have money or credit does not commit forgery.
Although the check falsely represents the existence of
the account, it is what it purports to be, a check drawn
by the actual maker, and therefore it is not falsely
made. But see paragraph 70. Likewise, if a person
makes a false signature of another to an instrument, but
adds the word “by” with that person’s own signature
thus indicating authority to sign, the offense is not
forgery even if no such authority exists. False recitals
of fact in a genuine document, as an aircraft flight
report which is “padded” by the one preparing it, do
not make the writing a forgery. But see paragraph 41
concerning false official statements.
(3) Signatures. Signing the name of another to an
instrument having apparent legal efficacy without
authority and with intent to defraud is forgery as the
signature is falsely made. The distinction is that in this
case the falsely made signature purports to be the act
of one other than the actual signer. Likewise, a forgery
may be committed by a person signing that person’s
own name to an instrument. For example, when a
check payable to the order of a certain person comes
into the hands of another of the same name, forgery is
committed if, knowing the check to be another’s, that
person indorses it with that person’s own name
intending to defraud. Forgery may also be committed
by signing a fictitious name, as when Roe makes a
check payable to Roe and signs it with a fictitious
name—Doe—as drawer.
(4) Nature of writing. The writing must be one which
would, if genuine, apparently impose a legal liability
on another, as a check or promissory note, or change
that person’s legal rights or liabilities to that person’s
prejudice, as a receipt. Some other instruments which
may be the subject of forgery are orders for the delivery
of money or goods, railroad tickets, and military orders
directing travel. A writing falsely “made” includes an
instrument that may be partially or entirely printed,
engraved, written with a pencil, or made by
photography or other device. A writing may be falsely
“made” by materially altering an existing writing, by
filling in a paper signed in blank, or by signing an
instrument already written. With respect to the
apparent legal efficacy of the writing falsely made or
altered, the writing must appear either on its face or
from extrinsic facts to impose a legal liability on
another, or to change a legal right or liability to the
prejudice of another. If under all the circumstances the
instrument has neither real nor apparent legal efficacy,
there is no forgery. Thus, the false making with intent
to defraud of an instrument affirmatively invalid on its
face is not forgery nor is the false making or altering,
with intent to defraud, of a writing which could not
impose a legal liability, as a mere letter of introduction.
However, the false making of another’s signature on an
instrument with intent to defraud is forgery, even if
there is no resemblance to the genuine signature and
the name is misspelled.
(5) Intent to defraud. See subparagraph 70.c.(14).
The intent to defraud need not be directed toward
anyone in particular nor be for the advantage of the
offender. It is immaterial that nobody was actually
defrauded, or that no further step was made toward
carrying out the intent to defraud other than the false
making or altering of a writing.
(6) Alteration. The alteration must effect a material
change in the legal tenor of the writing. Thus, an
alteration which apparently increases, diminishes, or
discharges any obligation is material. Examples of
material alterations in the case of a promissory note are
changing the date, amount, or place of payment. If a
genuine writing has been delivered to the accused and
while in the accused’s possession is later found to be
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altered, it may be inferred that the writing was altered
by the accused.
(7) Uttering. See subparagraph 70.c.(4).
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specifications.
(1) Forgery—making or altering.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to defraud, falsely [make (in its entirety) (the signature
of __________ as an indorsement to) (the signature of
_____ to) (_____) a certain (check) (writing) (_____)
in the following words and figures, to wit: _____ ]
[alter a certain (check) (writing) (_____) in the
following words and figures, to wit: _____, by (adding
thereto _____) (_____) ], which said (check) (writing)
(_____) would, if genuine, apparently operate to the
legal harm of another [*and which _____ (could be)
(was) used to the legal harm of _____, in that _____ ].
[*Note: This allegation should be used when the
document specified is not one which by its nature
would clearly operate to the legal prejudice of
another—for example, an insurance application. The
manner in which the document could be or was used to
prejudice the legal rights of another should be alleged
in the last blank.]
(2) Forgery—uttering.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to defraud, (utter) (offer) (issue) (transfer) a certain
(check) (writing) (__________) in the following
words and figures, to wit: __________, a writing which
would, if genuine, apparently operate to the legal harm
of another, (which said (check) (writing) (_____)) (the
signature to which said (check) (writing) (_____))
(_____) was, as (he) (she), the said _____, then well
knew, falsely (made) (altered) (*and which _____
(could be) (was) used to the legal harm of _____, in
that _____).
[*Note: See the note following (1), of subparagraph e.]
38. Article 105a (10 U.S.C. 905a)—False or
unauthorized pass offenses
a. Text of statute
.
(a) WRONGFUL MAKING, ALTERING,
ETC.—Any person subject to this chapter who,
wrongfully and falsely, makes, alters, counterfeits,
or tampers with a military or official pass, permit,
discharge certificate, or identification card shall be
punished as a court-martial may direct.
(b) WRONGFUL SALE, ETC.—Any person
subject to this chapter who wrongfully sells, gives,
lends, or disposes of a false or unauthorized
military or official pass, permit, discharge
certificate, or identification card, knowing that the
pass, permit, discharge certificate, or identification
card is false or unauthorized, shall be punished as a
court-martial may direct.
(c) WRONGFUL USE OR POSSESSION.—Any
person subject to this chapter who wrongfully uses
or possesses a false or unauthorized military or
official pass, permit, discharge certificate, or
identification card, knowing that the pass, permit,
discharge certificate, or identification card is false
or unauthorized, shall be punished as a court-
martial may direct.
b. Elements.
(1) Wrongful making, altering, counterfeiting, or
tampering with a military or official pass, permit,
discharge certificate, or identification card.
(a) That the accused wrongfully and falsely made,
altered, counterfeited, or tampered with a certain
military or official pass, permit, discharge certificate,
or identification card; and
(b) That the accused then knew that the pass,
permit, discharge certificate, or identification card was
false or unauthorized.
(2) Wrongful sale, gift, loan, or disposition of a
military or official pass, permit, discharge certificate,
or identification card.
(a) That the accused wrongfully sold, gave,
loaned, or disposed of a certain military or official
pass, permit, discharge certificate, or identification
card;
(b) That the pass, permit, discharge certificate, or
identification card was false or unauthorized; and
(c) That the accused then knew that the pass,
permit, discharge certificate, or identification card was
false or unauthorized.
(3) Wrongful use or possession of a false or
unauthorized military or official pass, permit,
discharge certificate, or identification card.
IV-53
(a) That the accused wrongfully used or possessed
a certain military or official pass, permit, discharge
certificate, or identification card;
(b) That the pass, permit, discharge certificate, or
identification card was false or unauthorized; and
(c) That the accused then knew that the pass,
permit, discharge certificate, or identification card was
false or unauthorized.
[Note: When there is intent to defraud or deceive, add
the following element:]
(d) That the accused used or possessed the pass,
permit, discharge certificate, or identification card with
intent to defraud or deceive.
c. Explanation
.
(1) In general. Military or official pass, permit,
discharge certificate, or identification card includes, as
well as the more usual forms of these documents, all
documents issued by any governmental agency for the
purpose of identification and copies thereof.
(2) Intent to defraud or deceive. See subparagraphs
70.c.(14) and (15).
d. Maximum punishment.
(1) Possessing or using with intent to defraud or
deceive, or making, altering, counterfeiting, tampering
with, or selling. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 3 years.
(2) All other cases. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
e. Sample specifications.
(1) Wrongful making, altering, counterfeiting, or
tampering with military or official pass, permit,
discharge certificate, or identification card.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
and falsely (make) (forge) (alter by __________)
(counterfeit) (tamper with by __________) (a certain
instrument purporting to be) (a) (an) (another’s)
(naval) (military) (official) (pass) (permit) (discharge
certificate) (identification card) (__________) in
words and figures as follows _________.
(2) Wrongful sale, gift, loan, or disposition of a
military or official pass, permit, discharge certificate,
or identification card.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(sell to _____) (give to _____) (loan to _____) (dispose
of by _____) (a certain instrument purporting to be) (a)
(an) (another’s) (naval) (military) (official) (pass)
(permit) (discharge certificate) (identification card)
(_____) in words and figures as follows: _____, (he)
(she), the said _____, then well knowing the same to
be (false) (unauthorized).
(3) Wrongful use or possession of a false or
unauthorized military or official pass, permit,
discharge certificate, or identification card.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(use) (possess) (with intent to (defraud) (deceive)) (a
certain instrument purporting to be) (a) (an) (another’s)
(naval) (military) (official) (pass) (permit) (discharge
certificate) (identification card) (__________), (he)
(she), the said __________, then well knowing the
same to be (false) (unauthorized).
39. Article 106 (10 U.S.C. 906)—Impersonation of
officer, noncommissioned or petty officer, or agent
or official
a. Text of statute.
(a) IN GENERAL.—Any person subject to this
chapter who, wrongfully and willfully,
impersonates—
(1) an officer, a noncommissioned officer, or a
petty officer;
(2) an agent of superior authority of one of the
armed forces; or
(3) an official of a government; shall be
punished as a court-martial may direct.
(b) IMPERSONATION WITH INTENT TO
DEFRAUD.—Any person subject to this chapter
who, wrongfully, willfully, and with intent to
defraud, impersonates any person referred to in
paragraph (1), (2), or (3) of subsection (a) shall be
punished as a court-martial may direct.
(c) IMPERSONATION OF GOVERNMENT
OFFICIAL WITHOUT INTENT TO
DEFRAUD.—Any person subject to this chapter
who, wrongfully, willfully, and without intent to
defraud, impersonates an official of a government
by committing an act that exercises or asserts the
authority of the office that the person claims to have
shall be punished as a court-martial may direct.
b. Elements.
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(1) That the accused impersonated an officer,
noncommissioned officer, or petty officer, or an agent
of superior authority of one of the armed forces, or an
official of a certain government, in a certain manner;
and
(2) That the impersonation was wrongful and willful.
[Note 1: If intent to defraud is in issue, add the
following element:]
(3) That the accused did so with the intent to defraud
a certain person or organization in a certain manner.
[Note 2: If the accused is charged with impersonating
an official of a certain government without an intent to
defraud, use the following element:]
(3) That the accused committed one or more acts
which exercised or asserted the authority of the office
the accused claimed to have.
c. Explanation
.
(1) Nature of offense. Impersonation does not
depend upon the accused deriving a benefit from the
deception or upon some third party being misled,
although this is an aggravating factor.
(2) Officer. The term “officer” has the same meaning
as that term carries in 10 U.S.C. § 101(b)(1).
(3) Willfulness. “Willful” means with the knowledge
that one is falsely holding one’s self out as such.
(4) Intent to defraud. See subparagraph 70.c.(14).
d. Maximum punishment.
(1) With intent to defraud. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
(2) All other cases. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
f. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
and willfully impersonate (a(n) (officer)
(noncommissioned officer) (petty officer) (agent of
superior authority) of the (Army) (Navy) (Marine
Corps) (Air Force) (Coast Guard)) (an official of the
Government of __________) by (publicly wearing the
uniform and insignia of rank of a (lieutenant of the
__________) (_____)) (showing the credentials of
__________) (_____) [*with intent to defraud _____
by _____] [**and (exercised) (asserted) the authority
of _____ by _____].
[*See subparagraph b note 1.]
[**See subparagraph b note 2.]
40. Article 106a (10 U.S.C. 906a)—Wearing
unauthorized insignia, decoration, badge, ribbon,
device, or lapel button
a. Text of statute.
Any person subject to this chapter—
(1) who is not authorized to wear an insignia,
decoration, badge, ribbon, device, or lapel button;
and
(2) who wrongfully wears such insignia,
decoration, badge, ribbon, device, or lapel button
upon the person’s uniform or civilian clothing;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused wore a certain insignia,
decoration, badge, ribbon, device, or lapel button upon
the accused’s uniform or civilian clothing;
(2) That the accused was not authorized to wear the
item; and
(3) That the wearing was wrongful.
[Note: If applicable, add the following element]
(4) That the accused wore any of the following
decorations: (Medal of Honor); (Distinguished Service
Cross); (Navy Cross); (Air Force Cross); (Silver Star);
(Purple Heart) (or any valor device on any personal
award).
c. Explanation
.
(1) In general. Authorization of the wearing of a
military insignia, decoration, badge, ribbon, device, or
lapel pin is governed by Department of Defense and
Service regulations. The wearing of an item is
“wrongful” where it is intentional and the accused
knew that the accused was not entitled to wear it.
(2) Scope of “unauthorized” wearing. The wearing
of an item is not unauthorized if the circumstances
reveal it to be in jest or for an innocent or legitimate
purpose—for instance, as part of a costume for
dramatic or other reasons, or for legitimate law
enforcement activities.
(3) Wrongful. Conduct is wrongful when it is done
without legal justification or excuse. Actual knowledge
that the accused was not authorized to wear the item in
question is required. Knowledge may be proved by
circumstantial evidence.
d. Maximum punishment.
IV-55
(1) Wrongful wearing of the Medal of Honor;
Distinguished Service Cross; Navy Cross; Air Force
Cross; Silver Star; Purple Heart; or a valor device on
any personal award. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 1 year.
(2) All other cases. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
e. Sample specification
.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, wrongfully,
without authority, wear upon (his) (her) (uniform)
(civilian clothing) (the insignia or grade of a (master
sergeant of __________) (chief gunner’s mate of
__________)) (Combat Infantryman Badge) (the
Distinguished Service Cross) (the ribbon representing
the Silver Star) (the lapel button representing the
Legion of Merit) (__________).
41. Article 107 (10 U.S.C. 907)—False official
statements; false swearing
a. Text of statute.
(a) FALSE OFFICIAL STATEMENTS.—Any
person subject to this chapter who, with intent to
deceive—
(1) signs any false record, return, regulation,
order, or other official document, knowing it to be
false; or
(2) makes any other false official statement
knowing it to be false; shall be punished as a court-
martial may direct.
(b) FALSE SWEARING.—Any person subject to
this chapter—
(1) who takes an oath that—
(A) is administered in a matter in which such
oath is required or authorized by law; and
(B) is administered by a person with
authority to do so; and
(2) who, upon such oath, makes or subscribes
to a statement; if the statement is false and at the
time of taking the oath, the person does not believe
the statement to be true, shall be punished as a
court-martial may direct.
b. Elements.
(1) False official statements.
(a) That the accused signed a certain official
document or made a certain official statement;
(b) That the document or statement was false in
certain particulars;
(c) That the accused knew it to be false at the time
of signing it or making it; and
(d) That the false document or statement was made
with the intent to deceive.
(2) False swearing.
(a) That the accused took an oath or equivalent;
(b) That the oath or equivalent was administered
to the accused in a matter in which such oath or
equivalent was required or authorized by law;
(c) That the oath or equivalent was administered
by a person having authority to do so;
(d) That upon this oath or equivalent the accused
made or subscribed a certain statement;
(e) That the statement was false; and
(f) That the accused did not then believe the
statement to be true.
c. Explanation
.
(1) False official statements.
(a) Statements. Statements may be made orally or
in writing and include records, returns, regulations,
orders, or other documents.
(b) Official statements. Official statements are
those that affect military functions, which encompass
matters within the jurisdiction of the military
departments and Services. There are three broad
categories of official statements under this offense:
(i) where the accused makes a statement while
acting in the line of duty or where the statement bears
a clear and direct relationship to the accused’s official
duties;
(ii) where the accused makes a statement to a
military member who is carrying out a military duty at
the time the statement is made; or
(iii) where the accused makes a statement to a
civilian who is necessarily performing a military
function at the time the accused makes the statement.
(c) Status of victim of deception. The rank or status
of any person intended to be deceived is immaterial if
that person was authorized in the execution of a
particular duty to require or receive the statement from
the accused. The Government may be the victim of this
offense.
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(d) Intent to deceive. The false representation must
be made with the intent to deceive. It is not necessary
that the false statement be material to the issue inquiry.
If, however, the falsity is in respect to a material
matter, it may be considered as some evidence of the
intent to deceive, while immateriality may tend to
show an absence of this intent.
(e) Material gain. The expectation of material gain
is not an element of this offense. Such expectation or
lack of it, however, is circumstantial evidence bearing
on the element of intent to deceive.
(f) Knowledge that the statement was false. The
false representation must be one which the accused
actually knew was false. Actual knowledge may be
proved by circumstantial evidence. An honest,
although erroneous, belief that a statement made is
true, is a defense.
(2) False swearing.
(a) Nature of offense. False swearing is the making
under a lawful oath or equivalent of any false
statement, oral or written, not believing the statement
to be true. It does not include such statements made in
a judicial proceeding or course of justice, as those are
under Article 131, perjury (see paragraph 81). Unlike
a false official statement, there is no requirement that
the statement be made with an intent to deceive or that
the statement be official.
(b) Oath. See Article 136 and R.C.M. 807 as to the
authority to administer oaths, and see Section IX of
Part III (Military Rules of Evidence) concerning proof
of the signatures of persons authorized to administer
oaths. An oath includes an affirmation when authorized
in lieu of an oath.
d. Maximum punishment.
(1) False official statement. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
(2) False swearing. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specifications.
(1) False official statements.
In that __________ (personal jurisdiction data), did,
(at/on board—location), (subject-matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to deceive, [sign an official (record) (return) (_____),
to wit: _____] [make to _____, an official statement, to
wit: _____], which (record) (return) (statement)
(_____) was (totally false) (false in that _____), and
was then known by the said _____ to be so false.
(2) False swearing.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (in an
affidavit) (in __________), (make) (subscribe) under
lawful (oath) (affirmation) a false statement in
substance as follows: __________, which statement
(he) (she) did not then believe to be true.
42. Article 107a (10 U.S.C. 907a)—Parole violation
a. Text of statute.
Any person subject to this chapter—
(1) who, having been a prisoner as the result of a
court-martial conviction or other criminal
proceeding, is on parole with conditions; and
(2) who violates the conditions of parole;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused was a prisoner as the result of a
court-martial conviction or other criminal proceeding;
(2) That the accused was on parole;
(3) That there were certain conditions of parole that
the parolee was bound to obey; and
(4) That the accused violated the conditions of parole
by doing an act or failing to do an act.
c. Explanation
.
(1) “Prisoner” refers only to those in confinement
resulting from conviction at a court-martial or other
criminal proceeding.
(2) “Parole” is defined as “word of 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
IV-57
to abide by a parole plan and conditions of parole, the
prisoner is granted parole.
d. Maximum punishment.
Bad-conduct discharge,
confinement for 6 months, and forfeiture of two-thirds
pay per month for 6 months.
e. Sample specification
.
In that __________ (personal jurisdiction data), a
prisoner on parole, did, (at/on board—location)
(subject-matter jurisdiction, if required), on or about
_____ 20 __, violate the conditions of (his) (her) parole
by __________.
43. Article 108 (10 U.S.C. 908)—Military property
of United States—Loss, damage, destruction, or
wrongful disposition
a. Text of statute.
Any person subject to this chapter who, without
proper authority—
(1) sells or otherwise disposes of;
(2) willfully or through neglect damages,
destroys, or loses; or
(3) willfully or through neglect suffers to be lost,
damaged, destroyed, sold, or wrongfully disposed
of; any military property of the United States,
shall be punished as a court-martial may direct.
b. Elements.
(1) Selling or otherwise disposing of military
property.
(a) That the accused sold or otherwise disposed of
certain property (which was a firearm or explosive);
(b) That the sale or disposition was without proper
authority;
(c) That the property was military property of the
United States; and
(d) That the property was of a certain value.
(2) Damaging, destroying, or losing military
property.
(a) That the accused, without proper authority,
damaged or destroyed certain property in a certain
way, or lost certain property;
(b) That the property was military property of the
United States;
(c) That the damage, destruction, or loss was
willfully caused by the accused or was the result of
neglect by the accused; and
(d) That the property was of a certain value or the
damage was of a certain amount.
(3) Suffering military property to be lost, damaged,
destroyed, sold, or wrongfully disposed of.
(a) That certain property (which was a firearm or
explosive) was lost, damaged, destroyed, sold, or
wrongfully disposed of;
(b) That the property was military property of the
United States;
(c) That the loss, damage, destruction, sale, or
wrongful disposition was suffered by the accused,
without proper authority, through a certain omission of
duty by the accused;
(d) That the omission was willful or negligent; and
(e) That the property was of a certain value or the
damage was of a certain amount.
c. Explanation
.
(1) Military property. Military property is all
property, real or personal, owned, held, or used by one
of the armed forces of the United States. Military
property is a term of art, and should not be confused
with Government property. The terms are not
interchangeable. While all military property is
Government property, not all Government property is
military property. An item of Government property is
not military property unless the item in question meets
the definition provided in this paragraph. It is
immaterial whether the property sold, disposed,
destroyed, lost, or damaged had been issued to the
accused, to someone else, or even issued at all. If it is
proved by either direct or circumstantial evidence that
items of individual issue were issued to the accused, it
may be inferred, depending on all the evidence, that the
damage, destruction, or loss proved was due to the
neglect of the accused. Retail merchandise of Service
exchange stores is not military property under this
article.
(2) Suffering military property to be lost, damaged,
destroyed, sold, or wrongfully disposed of. “To suffer”
means to allow or permit. The willful or negligent
sufferance specified by this article includes: deliberate
violation or intentional disregard of some specific law,
regulation, or order; reckless or unwarranted personal
use of the property; causing or allowing it to remain
exposed to the weather, insecurely housed, or not
guarded; permitting it to be consumed, wasted, or
injured by other persons; or loaning it to a person,
known to be irresponsible, by whom it is damaged.
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(3) Value and damage. In the case of loss,
destruction, sale, or wrongful disposition, the value of
the property controls the maximum punishment which
may be adjudged. In the case of damage, the amount of
damage controls. As a general rule, the amount of
damage is the estimated or actual cost of repair by the
Government agency normally employed in such work,
or the cost of replacement, as shown by Government
price lists or otherwise, whichever is less.
(4) Firearm or explosive. For purposes of
determining the maximum punishment for this offense
(see subparagraphs d.(1)(b) and d.(3)(b)), the term
“explosive” includes ammunition. See generally
R.C.M. 103(11), (12).
d. Maximum punishment.
(1) Selling or otherwise disposing of military
property.
(a) Of a value of $1,000 or less. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(b) Of a value of more than $1,000 or any firearm
or explosive. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 10 years.
(2) Through neglect damaging, destroying, or losing,
or through neglect suffering to be lost, damaged,
destroyed, sold, or wrongfully disposed of, military
property.
(a) Of a value or damage of $1,000 or less.
Confinement for 6 months, and forfeiture of two-thirds
pay per month for 6 months.
(b) Of a value or damage of more than $1,000.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(3) Willfully damaging, destroying, or losing, or
willfully suffering to be lost, damaged, destroyed, sold,
or wrongfully disposed of, military property.
(a) Of a value or damage of $1,000 or less. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 1 year.
(b) Of a value or damage of more than $1,000, or
of any firearm or explosive. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 10 years.
e. Sample specifications.
(1) Selling or disposing of military property.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, without
proper authority, (sell to __________) (dispose of by
__________) __________, [(a firearm) (an explosive)]
of a value of (about) $__________, military property
of the United States.
(2) Damaging, destroying, or losing military
property.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, without
proper authority, (willfully) (through neglect) (damage
by __________) (destroy by __________) (lose)
__________, of a value of (about) $__________,
military property of the United States (the amount of
said damage being in the sum of (about)
$__________).
(3) Suffering military property to be lost, damaged,
destroyed, sold, or wrongfully disposed of.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, without
proper authority, (willfully) (through neglect) suffer
__________, [(a firearm) (an explosive)] (of a value of
(about) $__________) military property of the United
States, to be (lost) (damaged by __________)
(destroyed by __________) (sold to __________)
(wrongfully disposed of by __________) (the amount
of said damage being in the sum of (about
$__________).
44. Article 108a (10 U.S.C. 908a)—Captured or
abandoned property
a. Text of statute.
(a) All persons subject to this chapter shall secure
all public property taken from the enemy for the
service of the United States, and shall give notice
and turn over to the proper authority without delay
all captured or abandoned property in their
possession, custody, or control.
(b) Any person subject to this chapter who—
(1) fails to carry out the duties prescribed in
subsection (a);
(2) buys, sells, trades, or in any way deals in or
disposes of captured or abandoned property,
whereby he receives or expects any profit, benefit,
or advantage to himself or another directly or
indirectly connected with himself; or
(3) engages in looting or pillaging; shall be
punished as a court-martial may direct.
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b. Elements.
(1) Failing to secure public property taken from the
enemy.
(a) That certain public property was taken from the
enemy;
(b) That this property was of a certain value; and
(c) That the accused failed to do what was
reasonable under the circumstances to secure this
property for the service of the United States.
(2) Failing to report and turn over captured or
abandoned property.
(a) That certain captured or abandoned public or
private property came into the possession, custody, or
control of the accused;
(b) That this property was of a certain value; and
(c) That the accused failed to give notice of its
receipt and failed to turn over to proper authority,
without delay, the captured or abandoned public or
private property.
(3) Dealing in captured or abandoned property.
(a) That the accused bought, sold, traded, or
otherwise dealt in or disposed of certain public or
private captured or abandoned property;
(b) That this property was of certain value; and
(c) That by so doing the accused received or
expected some profit, benefit, or advantage to the
accused or to a certain person or persons connected
directly or indirectly with the accused.
(4) Looting or pillaging.
(a) That the accused engaged in looting, pillaging,
or looting and pillaging by unlawfully seizing or
appropriating certain public or private property;
(b) That this property was located in enemy or
occupied territory, or that it was on board a seized or
captured vessel; and
(c) That this property was:
(i) left behind, owned by, or in the custody of
the enemy, an occupied state, an inhabitant of an
occupied state, or a person under the protection of the
enemy or occupied state, or who, immediately prior to
the occupation of the place where the act occurred, was
under the protection of the enemy or occupied state; or
(ii) part of the equipment of a seized or captured
vessel; or
(iii) owned by, or in the custody of the officers,
crew, or passengers on board a seized or captured
vessel.
c. Explanation
.
(1) Failing to secure public property taken from the
enemy.
(a) Nature of property. Unlike the remaining
offenses under this article, failing to secure public
property taken from the enemy involves only public
property. Immediately upon its capture from the enemy
public property becomes the property of the United
States. Neither the person who takes it nor any other
person has any private right in this property.
(b) Nature of duty. Every person subject to
military law has an immediate duty to take such steps
as are reasonably within that person’s power to secure
public property for the service of the United States and
to protect it from destruction or loss.
(2) Failing to report and turn over captured or
abandoned property.
(a) Reports. Reports of receipt of captured or
abandoned property are to be made directly or through
such channels as are required by current regulations,
orders, or the customs of the Service.
(b) Proper authority. “Proper authority” is any
authority competent to order disposition of the
property in question.
(3) Dealing in captured or abandoned property.
“Disposed of” includes destruction or abandonment.
(4) Looting or pillaging. “Looting or pillaging”
means unlawfully seizing or appropriating property
which is located in enemy or occupied territory.
(5) Enemy. For a discussion of “enemy,” see
subparagraph 27.c.(1)(b).
(6) Firearms or explosive. For purposes of
determining the maximum punishment for this offense
(see subparagraph d.(1)(b)), the term “explosive”
includes ammunition. See generally R.C.M. 103(11),
(12).
d. Maximum punishment.
(1) Failing to secure public property taken from the
enemy; failing to secure, give notice and turn over,
selling, or otherwise wrongfully dealing in or
disposing of captured or abandoned property:
(a) Of a value of $1,000 or less. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
(b) Of a value of more than $1,000 or any firearm
or explosive. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 5 years.
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(2) Looting or pillaging. Any punishment, other than
death, that a court-martial may direct.
e. Sample specifications.
(1) Failing to secure public property taken from the
enemy.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, fail to secure for
the service of the United States certain public property
taken from the enemy, to wit: __, of a value of (about)
$_____.
(2) Failing to report and turn over captured or
abandoned property.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, fail to give notice
and turn over to proper authority without delay certain
(captured) (abandoned) property which had come into
(his) (her) (possession) (custody) (control), to wit:
__________, of a value of (about) $__________.
(3) Dealing in captured or abandoned property.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, (buy) (sell) (trade)
(deal in) (dispose of) (__) certain (captured)
(abandoned) property, to wit: _____, (a firearm) (an
explosive), of a value of (about) $__________, thereby
(receiving) (expecting) a (profit) (benefit) (advantage)
to (himself/herself) (_____, (his) (her) accomplice)
(_____, (his) (her) brother) (__________).
(4) Looting or pillaging.
In that (personal jurisdiction data), did,
(at/onboard—location) (subject-matter jurisdiction, if
required), on or about (date), engage in (looting) (and)
(pillaging) by unlawfully (seizing) (appropriating)
__________, (property which had been left behind)
(the property of __________), [(an inhabitant of
__________) (__________)].
45. Article 109 (10 U.S.C. 909)—Property other
than military property of United States—waste,
spoilage, or destruction
a. Text of statute.
Any person subject to this chapter who willfully or
recklessly wastes, spoils, or otherwise willfully and
wrongfully destroys or damages any property other
than military property of the United States shall be
punished as a court-martial may direct.
b. Elements.
(1) Wasting or spoiling of non-military property.
(a) That the accused willfully or recklessly wasted
or spoiled certain real property in a certain manner;
(b) That the property was that of another person;
and
(c) That the property was of a certain value.
(2) Damaging non-military property.
(a) That the accused willfully and wrongfully
damaged certain personal property in a certain manner;
(b) That the property was that of another person;
and
(c) that the damage inflicted on the property was
of a certain amount.
(3) Destroying non-military property.
(a) That the accused willfully and wrongfully
destroyed certain personal property in a certain
manner;
(b) That the property was that of another person;
and
(c) That the property was of a certain value.
c. Explanation
.
(1) Wasting or spoiling non-military property. This
portion of Article 109 proscribes willful or reckless
waste or spoliation of the real property of another. The
terms “wastes” and “spoils” as used in this article refer
to such wrongful acts of voluntary destruction of or
permanent damage to real property as burning down
buildings, burning piers, tearing down fences, or
cutting down trees. This destruction is punishable
whether done willfully, that is intentionally, recklessly,
or is through a culpable disregard of the foreseeable
consequences of some voluntary act.
(2) Destroying or damaging non-military property.
This portion of Article 109 proscribes the willful and
wrongful destruction or damage of the personal
property of another. To be destroyed, the property need
not be completely demolished or annihilated, but must
be sufficiently injured to be useless for its intended
purpose. Damage consists of any physical injury to the
property. To constitute an offense under this section,
the destruction or damage of the property must have
been willful and wrongful. As used in this section
“willfully” means intentionally and “wrongfully”
means contrary to law, regulation, lawful order, or
custom. Willfulness may be proved by circumstantial
evidence, such as the manner in which the acts were
done.
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(3) Value and damage. In the case of destruction, the
value of the property destroyed controls the maximum
punishment which may be adjudged. In the case of
damage, the amount of the damage controls. As a
general rule, the amount of damage is the estimated or
actual cost of repair by artisans employed in this work
who are available to the community wherein the owner
resides, or the replacement cost, whichever is less. See
also subparagraph 64.c.(1)(g).
d. Maximum punishment.
(1) Wasting or spoiling, non-military property—real
property.
(a) Of property valued at $1,000 or less. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 1 year.
(b) Of property valued at more than $1,000.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(2) Damaging any property other than military
property of the United States.
(a) Inflicting damage of $1,000 or less. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 1 year.
(b) Inflicting damage of more than $1,000.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(3) Destroying any property other than military
property of the United States.
(a) Destroying property valued at $1,000 or less.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(b) Destroying property valued at more than
$1,000. Dishonorable discharge; forfeiture of all pay
and allowances, and confinement for 5 years.
e. Sample specifications.
(1) Wasting or spoiling real property other than
military property of the United States.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, [(willfully)
recklessly) waste _______] [(willfully) (recklessly)
spoil______] (of a value of (about) $__________) (the
amount of said damage being in the sum of (about)
$__________), the property of __________.
(2) Damaging any property other than military
property of the United States.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and wrongfully damage by (method of damage)
(identify property damaged__________) (the amount
of said damage being in the sum of (about)
$__________), the property of __________.
(3) Destroying personal property other than military
property of the United States.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and wrongfully destroy (identify property destroyed
__________), of a value of (about) $__________ the
property of __________.
46. Article 109a (10 U.S.C. 909a)—Mail matter:
wrongful taking, opening, etc.
a. Text of statute
.
(a) TAKING.—Any person subject to this
chapter who, with the intent to obstruct the
correspondence of, or to pry into the business or
secrets of, any person or organization, wrongfully
takes mail matter before the mail matter is
delivered to or received by the addressee shall be
punished as a court-martial may direct.
(b) OPENING, SECRETING, DESTROYING,
STEALING.—Any person subject to this chapter
who wrongfully opens, secretes, destroys, or steals
mail matter before the mail matter is delivered to
or received by the addressee shall be punished as a
court-martial may direct.
b. Elements.
(1) Taking.
(a) That the accused took certain mail matter;
(b) That such taking was wrongful;
(c) That the mail matter was taken by the accused
before it was delivered to or received by the addressee;
and
(d) That such taking was with the intent to obstruct
the correspondence or pry into the business or secrets
of any person or organization.
(2) Opening, secreting, destroying, or stealing.
(a) That the accused opened, secreted, destroyed,
or stole certain mail matter;
(b) That such opening, secreting, destroying, or
stealing was wrongful; and
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(c) That the mail matter was opened, secreted,
destroyed, or stolen by the accused before it was
delivered to or received by the addressee.
c. Explanation. These offenses are intended to protect
the mail and mail system. “Mail matter” means any
matter deposited in a postal system of any government
or any authorized depository thereof or in official mail
channels of the United States or an agency thereof
including the armed forces. The value of the mail
matter is not an element. See subparagraph 64.c.(1)
concerning “steal.”
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specifications.
(1) Taking.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
take certain mail matter, to wit: (a) (letter(s)) (postal
card(s)) (package(s)), addressed to __________, (out
of the (__________ Post Office __________) (orderly
room of __________) (unit mail box of __________)
(__________) (from __________) before (it) (they)
(was) (were) (delivered) (actually received) (to) (by)
the (addressee) with intent to (obstruct the
correspondence) (pry into the (business) (secrets)) of
__________.
(2) Opening, secreting, destroying, or stealing.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____, 20 __,
(wrongfully (open) (secret) (destroy)) (steal) certain
mail matter, to wit: (a) (letter(s)) (postal card(s))
(package(s)) addressed to __________, which said
(letters(s)) (__________) (was) (were) then (in (the
__________ Post Office __________) (orderly room
of __________) (unit mail box of __________)
(custody of __________) (__________) (had
previously been committed to __________, (a
representative of __________,) (an official agency for
the transmission of communications)) before said
(letter(s)) (__________) (was) (were) (delivered)
(actually received) (to) (by) the (addressee).
47. Article 110 (10 U.S.C. 910)—Improper
hazarding of vessel or aircraft
a. Text of statute.
(a) WILLFUL AND WRONGFUL
HAZARDING.—Any person subject to this
chapter who, willfully and wrongfully, hazards or
suffers to be hazarded any vessel or aircraft of the
armed forces shall be punished by death or such
other punishment as a court-martial may direct.
(b) NEGLIGENT HAZARDING.—Any person
subject to this chapter who negligently hazards or
suffers to be hazarded any vessel or aircraft of the
armed forces shall be punished as a court-martial
may direct.
b. Elements.
(1) That a vessel or aircraft of the armed forces was
hazarded in a certain manner; and
(2) That the accused by certain acts or omissions,
willfully and wrongfully, or negligently, caused or
suffered the vessel or aircraft to be hazarded.
c. Explanation
.
(1) Hazard. “Hazard” means to put in danger of loss
or injury. Actual damage to, or loss of, a vessel or
aircraft of the armed forces by collision, stranding,
running upon a shoal or a rock, or by any other cause,
is conclusive evidence that the vessel or aircraft was
hazarded but not of the fact of culpability on the part
of any particular person. “Strand” means run a vessel
aground so that the vessel is fast for a time.
(2) Willfully and wrongfully. As used in this article,
“willfully” means intentionally and “wrongfully”
means contrary to law, regulation, lawful order, or
custom.
(3) Negligence. “Negligence” as used in this article
means the failure to exercise the care, prudence, or
attention to duties which the interests of the
Government require a prudent and reasonable person
to exercise under the circumstances. This negligence
may consist of the omission to do something the
prudent and reasonable person would have done, or the
doing of something which such a person would not
have done under the circumstances. No person is
relieved of culpability who fails to perform such duties
as are imposed by the general responsibilities of that
person’s grade or rank, or by the customs of the Service
for the safety and protection of vessels and aircraft of
the armed forces, simply because these duties are not
specifically enumerated in a regulation or order.
However, a mere error in judgment that a reasonably
able person might have committed under the same
circumstances does not constitute an offense under this
article.
IV-63
(4) Suffer. “To suffer” means to allow or permit. A
ship or aircraft is willfully suffered to be hazarded by
one who, although not in direct control of the vessel or
aircraft, knows a danger to be imminent but takes no
steps to prevent it, for example, as by a navigator of a
ship under way who fails to report to the officer of the
deck a radar target which is observed to be on a
collision course with, and dangerously close to, the
ship, or an aircraft’s copilot or navigator who similarly
fails to report an imminent danger. A suffering through
neglect implies an omission to take such measures as
were appropriate under the circumstances to prevent a
foreseeable danger.
(5) Vessel. See 1 U.S.C. § 3.
(6) Aircraft. See 18 U.S.C. § 31(a)(1). Additionally,
aircraft includes remotely piloted aircraft and
unmanned aerial vehicles.
d. Maximum punishment.
(1) Willfully and wrongfully. Death or such other
punishment as a court-martial may direct.
(2) Negligently. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 2 years.
e. Sample specifications.
(1) Hazarding or suffering to be hazarded any vessel
or aircraft, willfully and wrongfully.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), did, on _____
20 __, while serving as _____ (aboard) (on) the
________ in the vicinity of _______, willfully and
wrongfully (hazard the said (vessel) (aircraft)) (suffer
the said (vessel) (aircraft)) to be hazarded) by (causing
the said (vessel) (aircraft) to collide with __________)
(allowing the said vessel to run aground) (allowing said
aircraft to ) (_____________).
(2) Hazarding of vessel or aircraft, negligently.
(a) Example 1.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), on _____ 20
__, while serving (in command of the __________) (as
the pilot of _________), (making entrance to (Boston
Harbor)) (approaching (______ Air Force Base)
(______ Air Field)) did negligently hazard the said
(vessel) (aircraft) by failing and neglecting to maintain
or cause to be maintained an accurate (running plot of
the true position) (location) of said (vessel) (aircraft)
while making said approach, as a result of which
neglect the said __________, at or about __________,
hours on the day aforesaid, became (stranded)
(_____________) in the vicinity of (Channel Buoy
Number Three) (__________ runway)
(_______________________).
(b) Example 2.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), on _____ 20
__, while serving as navigator of the __________,
cruising on special service in the __________ Ocean
off the coast of __________, notwithstanding the fact
that at about midnight, _____ 20 __, the northeast point
of _____ Island bore abeam and was about six miles
distant, the said ship being then under way and making
a speed of about ten knots, and well knowing the
position of the said ship at the time stated, and that the
charts of the locality were unreliable and the currents
thereabouts uncertain, did then and there negligently
hazard the said vessel or aircraft by failing and
neglecting to exercise proper care and attention in
navigating said ship while approaching __________
Island, in that (he) (she) neglected and failed to lay a
course that would carry said ship clear of the last
aforesaid island, and to change the course in due time
to avoid disaster; and the said ship, as a result of said
negligence on the part of said __________, ran upon a
rock off the southwest coast of __________ Island, at
about _____ hours, _____, 20 __, in consequence of
which the said __________ was lost.
(c) Example 3.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), on _____ 20
__, while serving as navigator of the __________ and
well knowing that at about sunset of said day the said
ship had nearly run her estimated distance from the
__________ position, obtained and plotted by (him)
(her), to the position of __________, and well knowing
the difficulty of sighting __________, from a safe
distance after sunset, did then and there negligently
hazard the said vessel by failing and neglecting to
advise (his) (her) commanding officer to lay a safe
course for said ship to the northward before continuing
on a westerly course, as it was the duty of said
__________ to do; in consequence of which the said
ship was, at about __________ hours on the day above
mentioned, run upon _____ bank in the __________
Sea, about latitude __ degrees, __ minutes, north, and
longitude __ degrees, __ minutes, west, and seriously
injured.
(3) Suffering a vessel or aircraft to be hazarded,
negligently.
(a) Example 1.
IV-64
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), while serving
as combat intelligence center officer on board the
__________, making passage from Boston to
Philadelphia, and having, between _____ and _____
hours on _____, 20 __, been duly informed of
decreasing radar ranges and constant radar bearing
indicating that the said __________ was upon a
collision course approaching a radar target, did then
and there negligently suffer the said vessel or aircraft
to be hazarded by failing and neglecting to report said
collision course with said radar target to the officer of
the deck, as it was (his) (her) duty to do, and (he) (she),
the said __________, through negligence, did cause
the said __________ to collide with the __________ at
or about __________ hours on said date, with resultant
damage to ________.
(b) Example 2.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction, if required), while serving
as (navigator) (________) on ______________,
transiting from (_________ Air Force Base) to
(__________ Air Force Base), and having, between
______ and ________ hours on ________, 20 ___,
becoming aware of (inclement weather conditions)
(inaccurate fuel calculations) threatening said aircraft,
did then and there negligently suffer the said aircraft to
be hazarded by failing and neglecting to report said
(weather conditions) (inaccurate fuel calculations) to
the (pilot) (copilot), as it was (his) (her) duty to do, the
said (navigator) (________), through negligence, did
cause the said aircraft to ________, at or about
_________ hours on said date, with resultant damage
to wit: ____________.
48. Article 111 (10 U.S.C. 911)—Leaving scene of
vehicle accident
a. Text of statute.
(a) DRIVER.—Any person subject to this
chapter—
(1) who is the driver of a vehicle that is involved
in an accident that results in personal injury or
property damage; and
(2) who wrongfully leaves the scene of the
accident—
(A) without providing assistance to an
injured person; or
(B) without providing personal identification
to others involved in the accident or to appropriate
authorities;
shall be punished as a court-martial may direct.
(b) SENIOR PASSENGER.—Any person subject
to this chapter—
(1) who is a passenger in a vehicle that is
involved in an accident that results in personal
injury or property damage;
(2) who is the superior commissioned or
noncommissioned officer of the driver of the vehicle
or is the commander of the vehicle; and
(3) who wrongfully and unlawfully orders,
causes, or permits the driver to leave the scene of
the accident—
(A) without providing assistance to an
injured person; or
(B) without providing personal identification
to others involved in the accident or to appropriate
authorities;
shall be punished as a court-martial may direct.
b. Elements.
(1) Driver.
(a) That the accused was the driver of a vehicle;
(b) That while the accused was driving the vehicle
was involved in an accident;
(c) That the accused knew that the vehicle had
been in an accident;
(d) That the accused left the scene of the accident
without (providing assistance to the victim who had
been struck (and injured) by the said vehicle) or
(providing identification); and
(e) That such leaving was wrongful.
(2) Senior passenger.
(a) That the accused was a passenger in a vehicle
which was involved in an accident;
(b) That the accused knew that said vehicle had
been in an accident; and
(c) That the accused was the superior
commissioned or noncommissioned officer of the
driver, or commander of the vehicle, and wrongfully
and unlawfully ordered, caused, or permitted the driver
to leave the scene of the accident without (providing
assistance to the victim who had been struck (and
injured) by the said vehicle) (or) (providing
identification).
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c. Explanation
.
(1) Nature of offense. This offense covers “hit and
run” situations where there is damage to property other
than the driver’s vehicle or injury to someone other
than the driver or a passenger in the driver’s vehicle. It
also covers accidents caused by the accused, even if the
accused’s vehicle does not contact other people,
vehicles, or property.
(2) Knowledge. Actual knowledge that an accident
has occurred is an essential element of this offense.
Actual knowledge may be proved by circumstantial
evidence.
(3) Passenger. A passenger other than a senior
passenger may also be liable under this paragraph. See
paragraph 1 of this Part.
d. Maximum punishment. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
e. Sample specification
.
In that __________ (personal jurisdiction data), [the
driver of)][*a passenger in] [the senior
officer/noncommissioned officer in] (_____ in) a
vehicle at the time of an accident in which said vehicle
was involved, and having knowledge of said accident,
did, at _____ (subject-matter jurisdiction data, if
required), on or about _____ 20 __ [wrongfully leave]
[*by _____, assist the driver of the said vehicle in
wrongfully leaving] [wrongfully order, cause, or
permit the driver to leave] the scene of the accident
without (providing assistance to _____, who had been
struck (and injured) by the said vehicle) (making (his)
(her) (the driver’s) identity known).
[*Note: This language should be used when the
accused was a passenger and is charged as a principal.
See paragraph 1 of this Part.]
49. Article 112 (10 U.S.C. 912)—Drunkenness and
other incapacitation offenses
a. Text of statute.
(a) DRUNK ON DUTY.—Any person subject to
this chapter who is drunk on duty shall be punished
as a court-martial may direct.
(b) INCAPACITATION FOR DUTY FROM
DRUNKENNESS OR DRUG USE.—Any person
subject to this chapter who, as a result of indulgence
in any alcoholic beverage or any drug, is
incapacitated for the proper performance of duty
shall be punished as a court-martial may direct.
(c) DRUNK PRISONER.—Any person subject to
this chapter who is a prisoner and, while in such
status, is drunk shall be punished as a court-martial
may direct.
b. Elements.
(1) Drunk on duty.
(a) That the accused was on a certain duty; and
(b) That the accused was drunk while on this duty.
(2) Incapacitation for duty from drunkenness or drug
use.
(a) That the accused had certain duties to perform;
(b) That the accused was incapacitated for the
proper performance of such duties; and
(c) That such incapacitation was the result of
previous indulgence in intoxicating liquor or any drug.
(3) Drunk prisoner.
(a) That the accused was a prisoner; and
(b) That while in such status the accused was
drunk.
c. Explanation
.
(1) Drunk on duty.
(a) Drunk. “Drunk” means—
(i) the state of intoxication by alcohol that is
sufficient to impair the rational and full exercise of
mental or physical faculties; or
(ii) the state of meeting or exceeding a blood
alcohol content limit with respect to alcohol
concentration in a person’s blood of 0.08 grams of
alcohol per 100 milliliters of blood and with respect to
alcohol concentration in a person’s breath of 0.08
grams of alcohol per 210 liters of breath, as shown by
chemical analysis.
(b) Duty. “Duty” as used in this article means
military duty. Every duty which an officer or enlisted
person may legally be required by superior authority to
execute is necessarily a military duty. Within the
meaning of this article, when in the actual exercise of
command, the commander of a post, or of a command,
or of a detachment in the field is constantly on duty, as
is the commanding officer on board a ship. In the case
of other officers or enlisted persons, “on duty” relates
to duties or routine or detail, in garrison, at a station, or
in the field, and does not relate to those periods when,
no duty being required of them by orders or
regulations, officers and enlisted persons occupy the
status of leisure known as “off duty” or “on liberty.” In
a region of active hostilities, the circumstances are
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often such that all members of a command may
properly be considered as being continuously on duty
within the meaning of this article. So also, an officer of
the day and members of the guard, or of the watch, are
on duty during their entire tour within the meaning of
this article.
(c) Nature of offense. It is necessary that the
accused be drunk while actually on the duty alleged,
and the fact the accused became drunk before going on
duty, although material in extenuation, does not affect
the question of guilt. If, however, the accused does not
undertake the responsibility or enter upon the duty at
all, the accused’s conduct does not fall within the terms
of this article, nor does that of a person who absents
himself or herself from duty and is drunk while so
absent. Included within the article is drunkenness while
on duty of an anticipatory nature such as that of an
aircraft crew ordered to stand by for flight duty, or of
an enlisted person ordered to stand by for guard duty.
(d) Defenses. If the accused is known by superior
authorities to be drunk at the time a duty is assigned,
and the accused is thereafter allowed to assume that
duty anyway, or if the drunkenness results from an
accidental over dosage administered for medicinal
purposes, the accused will have a defense to this
offense.
(2) Incapacitation for duty from drunkenness or drug
use.
(a) Incapacitated. “Incapacitated” means unfit or
unable to properly perform duties as a result of
previous alcohol consumption or drug use. Illness
resulting from previous indulgence is an example of
being “unable” to perform duties.
(b) Affirmative defense. The accused’s lack of
knowledge of the duties assigned is an affirmative
defense to this offense.
(3) Drunk prisoner.
(a) Prisoner. See subparagraph 24.c.(1).
(b) Drunk. See subparagraph 49.c.(1)(a).
d. Maximum punishment.
(1) Drunk on duty. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 9
months.
(2) Incapacitation for duty from drunkenness or drug
use. Confinement for 3 months and forfeiture of two-
thirds pay per month for 3 months.
(3) Drunk prisoner. Confinement for 3 months and
forfeiture of two-thirds pay per month for 3 months.
e. Sample specifications.
(1) Drunk on duty.
In that __________ (personal jurisdiction data),
was, (at/on board—location) (subject-matter
jurisdiction, if required), on or about _____ 20 __,
found drunk while on duty as __________.
(2) Incapacitation for duty from drunkenness or
drug use.
In that _________ (personal jurisdiction data), was,
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, as a result of
previous overindulgence in intoxicating liquor or drugs
incapacitated for the proper performance of (his) (her)
duties.
(3) Drunk prisoner.
In that __________ (personal jurisdiction data), a
prisoner, was (at/on board—location) (subject-matter
jurisdiction, if required), on or about _____ 20 __,
found drunk.
50. Article 112a (10 U.S.C. 912a)—Wrongful use,
possession, etc., of controlled substances
a. Text of statute.
(a) Any person subject to this chapter who
wrongfully uses, possesses, manufactures,
distributes, imports into the customs territory of
the United States, exports from the United States,
or introduces into an installation, vessel, vehicle, or
aircraft used by or under the control of the armed
forces a substance described in subsection (b) shall
be punished as a court-martial may direct.
(b) The substances referred to in subsection (a)
are the following:
(1) Opium, heroin, cocaine, amphetamine,
lysergic acid diethylamide, methamphetamine,
phencyclidine, barbituric acid, and marijuana and
any compound or derivative of any such substance.
(2) Any substance not specified in clause (1)
that is listed on a schedule of controlled substances
prescribed by the President for the purposes of this
article.
(3) Any other substance not specified in clause
(1) or contained on a list prescribed by the
President under clause (2) that is listed in schedules
I through V of section 202 of the Controlled
Substances Act (21 U.S.C. § 812).
b. Elements.
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(1) Wrongful possession of controlled substance.
(a) That the accused possessed a certain amount of
a controlled substance; and
(b) That the possession by the accused was
wrongful.
(2) Wrongful use of controlled substance.
(a) That the accused used a controlled substance;
and
(b) That the use by the accused was wrongful.
(3) Wrongful distribution of controlled substance.
(a) That the accused distributed a certain amount
of a controlled substance; and
(b) That the distribution by the accused was
wrongful.
(4) Wrongful introduction of a controlled substance.
(a) That the accused introduced onto a vessel,
aircraft, vehicle, or installation used by the armed
forces or under the control of the armed forces a certain
amount of a controlled substance; and
(b) That the introduction was wrongful.
(5) Wrongful manufacture of a controlled substance.
(a) That the accused manufactured a certain
amount of a controlled substance; and
(b) That the manufacture was wrongful.
(6) Wrongful possession, manufacture, or
introduction of a controlled substance with intent to
distribute.
(a) That the accused (possessed) (manufactured)
(introduced) a certain amount of a controlled
substance;
(b) That the (possession) (manufacture)
(introduction) was wrongful; and
(c) That the (possession) (manufacture)
(introduction) was with the intent to distribute.
(7) Wrongful importation or exportation of a
controlled substance.
(a) That the accused (imported into the customs
territory of) (exported from) the United States a certain
amount of a controlled substance; and
(b) That the (importation) (exportation) was
wrongful.
[Note: When any of the aggravating circumstances
listed in subparagraph d. is alleged, it must be listed as
an element.]
c. Explanation
.
(1) Controlled substance. “Controlled substance”
means amphetamine, cocaine, heroin, lysergic acid
diethylamide, marijuana, methamphetamine, opium,
phencyclidine, and barbituric acid, including
phenobarbital and secobarbital. “Controlled
substance” also means any substance that is included
in Schedules I through V established by the Controlled
Substances Act of 1970 (21 U.S.C. § 812).
(2) Possess. “Possess” means to exercise control of
something. Possession may be direct physical custody
like holding an item in one’s hand, or it may be
constructive, as in the case of a person who hides an
item in a locker or car to which that person may return
to retrieve it. Possession must be knowing and
conscious. Possession inherently includes the power or
authority to preclude control by others. It is possible,
however, for more than one person to possess an item
simultaneously, as when several people share control
of an item. An accused may not be convicted of
possession of a controlled substance if the accused did
not know that the substance was present under the
accused’s control. Awareness of the presence of a
controlled substance may be inferred from
circumstantial evidence.
(3) Distribute, deliver. “Distribute” means to deliver
to the possession of another. “Deliver” means the
actual, constructive, or attempted transfer of an item,
whether or not there exists an agency relationship.
(4) Manufacture. “Manufacture” means the
production, preparation, propagation, compounding, or
processing of a drug or other substance, either directly
or indirectly or by extraction from substances of
natural origin, or independently by means of chemical
synthesis or by a combination of extraction and
chemical synthesis, and includes any packaging or
repackaging of such substance or labeling or relabeling
of its container. Production, as used in this
subparagraph, includes the planting, cultivating,
growing, or harvesting of a drug or other substance.
(5) Wrongfulness. To be punishable under Article
112a, possession, use, distribution, introduction, or
manufacture of a controlled substance must be
wrongful. Possession, use, distribution, introduction,
or manufacture of a controlled substance is wrongful if
it is without legal justification or authorization.
Possession, distribution, introduction, or manufacture
of a controlled substance is not wrongful if such act or
acts are: (A) done pursuant to legitimate law
enforcement activities (for example, an informant who
receives drugs as part of an undercover operation is not
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in wrongful possession); (B) done by authorized
personnel in the performance of medical duties; or (C)
without knowledge of the contraband nature of the
substance (for example, a person who possesses
cocaine, but actually believes it to be sugar, is not
guilty of wrongful possession of cocaine). Possession,
use, distribution, introduction, or manufacture of a
controlled substance may be inferred to be wrongful in
the absence of evidence to the contrary. The burden of
going forward with evidence with respect to any such
exception in any court-martial or other proceeding
under the UCMJ shall be upon the person claiming its
benefit. If such an issue is raised by the evidence
presented, then the burden of proof is upon the United
States to establish that the use, possession, distribution,
manufacture, or introduction was wrongful.
(6) Intent to distribute. Intent to distribute may be
inferred from circumstantial evidence. Examples of
evidence which may tend to support an inference of
intent to distribute are: possession of a quantity of
substance in excess of that which one would be likely
to have for personal use; market value of the substance;
the manner in which the substance is packaged; and
that the accused is not a user of the substance. On the
other hand, evidence that the accused is addicted to or
is a heavy user of the substance may tend to negate an
inference of intent to distribute.
(7) Certain amount. When a specific amount of a
controlled substance is believed to have been
possessed, distributed, introduced, or manufactured by
an accused, the specific amount should ordinarily be
alleged in the specification. It is not necessary to allege
a specific amount, however, and a specification is
sufficient if it alleges that an accused possessed,
distributed, introduced, or manufactured “some,”
“traces of,” or “an unknown quantity of” a controlled
substance.
(8) Missile launch facility. A missile launch facility
includes the place from which missiles are fired and
launch control facilities from which the launch of a
missile is initiated or controlled after launch.
(9) Customs territory of the United States. Customs
territory of the United States includes only the States,
the District of Columbia, and Puerto Rico.
(10) Use. “Use” means to inject, ingest, inhale, or
otherwise introduce into the human body, any
controlled substance. Knowledge of the presence of the
controlled substance is a required component of use.
Knowledge of the presence of the controlled substance
may be inferred from the presence of the controlled
substance in the accused’s body or from other
circumstantial evidence. This permissive inference
may be legally sufficient to satisfy the Government’s
burden of proof as to knowledge.
(11) Deliberate ignorance. An accused who
consciously avoids knowledge of the presence of a
controlled substance or the contraband nature of the
substance is subject to the same criminal liability as
one who has actual knowledge.
d. Maximum punishment.
(1) Wrongful use, possession, manufacture, or
introduction of controlled substance.
(a) Amphetamine, cocaine, heroin, lysergic acid
diethylamide, marijuana (except possession of less
than 30 grams or use of marijuana),
methamphetamine, opium, phencyclidine,
secobarbital, and Schedule I, II, III controlled
substances. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 5 years.
(b) Marijuana (possession of less than 30 grams
or use), phenobarbital, and Schedule IV and V
controlled substances. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 2 years.
(2) Wrongful distribution, possession, manufacture,
or introduction of controlled substance with intent to
distribute, or wrongful importation or exportation of a
controlled substance.
(a) Amphetamine, cocaine, heroin, lysergic acid
diethylamide, marijuana, methamphetamine, opium,
phencyclidine, secobarbital, and Schedule I, II, and III
controlled substances. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 15 years.
(b) Phenobarbital and Schedule IV and V
controlled substances. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 10 years.
When any offense under this paragraph is
committed; while the accused is on duty as a sentinel
or lookout; on board a vessel or aircraft used by or
under the control of the armed forces; in or at a missile
launch facility used by or under the control of the
armed forces; while receiving special pay under 37
U.S.C. § 310; in time of war; or in a confinement
facility used by or under the control of the armed
forces, the maximum period of confinement authorized
for such offense shall be increased by 5 years.
e. Sample specifications.
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(1) Wrongful possession, manufacture, or
distribution of controlled substance.
In that __________ (personal jurisdiction data) did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____, 20 __, wrongfully
(possess) (distribute) (manufacture) _____ (grams)
(ounces) (pounds) (_____) of _____ (a schedule
(_____) controlled substance), (with the intent to
distribute the said controlled substance) (while on duty
as a sentinel or lookout) (while (on board a
vessel/aircraft) (in or at a missile launch facility) used
by the armed forces or under the control of the armed
forces, to wit: _____) (while receiving special pay
under 37 U.S.C. § 310) (during time of war).
(2) Wrongful use of controlled substance.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____, 20 __, wrongfully
use __________ (a Schedule __ controlled substance)
(while on duty as a sentinel or lookout) (while (on
board a vessel/aircraft) (in or at a missile launch
facility) used by the armed forces or under the control
of the armed forces, to wit: __________) (while
receiving special pay under 37 U.S.C. § 310) (during
time of war).
(3) Wrongful introduction of controlled substance.
In that __________ (personal jurisdiction data) did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____, 20 __, wrongfully
introduce __________ (grams) (ounces) (pounds)
(__________) of __________ (a Schedule
(__________) controlled substance) onto a vessel,
aircraft, vehicle, or installation used by the armed
forces or under control of the armed forces, to wit:
__________ (with the intent to distribute the said
controlled substance) (while on duty as a sentinel or
lookout) (while receiving special pay under 37 U.S.C.
§ 310) (during a time of war).
(4) Wrongful importation or exportation of
controlled substance.
In that __________ (personal jurisdiction data) did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____, 20 __, wrongfully
(import) (export) _____ (grams) (ounces) (pounds)
(__________) of __________ (a Schedule (__)
controlled substance) (into the customs territory of)
(from) the United States (while on board a
vessel/aircraft used by the armed forces or under the
control of the armed forces, to wit: __________)
(during time of war).
51. Article 113 (10 U.S.C. 913)—Drunken or
reckless operation of a vehicle, aircraft, or vessel
a. Text of statute.
(a) Any person subject to this chapter who—
(1) operates or physically controls any vehicle,
aircraft, or vessel in a reckless or wanton manner
or while impaired by a substance described in
section 912a(b) of this title (article 112a(b)), or
(2) operates or is in actual physical control of
any vehicle, aircraft, or vessel while drunk or when
the alcohol concentration in the person’s blood or
breath is equal to or exceeds the applicable limit
under subsection (b), shall be punished as a court-
martial may direct.
(b)(1) For purposes of subsection (a), the
applicable limit on the alcohol concentration in a
person’s blood or breath is as follows:
(A) In the case of the operation or control of
a vehicle, aircraft, or vessel in the United States,
such limit is the lesser of—
(i) the blood alcohol content limit under the
law of the State in which the conduct occurred,
except as may be provided under paragraph (2) for
conduct on a military installation that is in more
than one State; or
(ii) the blood alcohol content limit specified
in paragraph (3).
(B) In the case of the operation or control of
a vehicle, aircraft, or vessel outside the United
States, the applicable blood alcohol content limit is
the blood alcohol content limit specified in
paragraph (3) or such lower limit as the Secretary
of Defense may by regulation prescribe.
(2) In the case of a military installation that is
in more than one State, if those States have different
blood alcohol content limits under their respective
State laws, the Secretary may select one such blood
alcohol content limit to apply uniformly on that
installation.
(3) For purposes of paragraph (1), the blood
alcohol content limit with respect to alcohol
concentration in a person’s blood is 0.08 grams of
alcohol per 100 milliliters of blood and with respect
to alcohol concentration in a person’s breath is 0.08
grams of alcohol per 210 liters of breath, as shown
by chemical analysis. The Secretary may by
regulation prescribe limits that are lower than the
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limits specified in the preceding sentence, if such
lower limits are based on scientific developments, as
reflected in Federal law of general applicability.
(4) In this subsection:
(A) The term “blood alcohol content limit”
means the amount of alcohol concentration in a
person’s blood or breath at which operation or
control of a vehicle, aircraft, or vessel is prohibited.
(B) The term “United States” includes the
District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, and American
Samoa and the term “State” includes each of those
jurisdictions.
b. Elements.
(1) That the accused was operating or in physical
control of a vehicle, aircraft, or vessel; and
(2) That while operating or in physical control of a
vehicle, aircraft, or vessel, the accused—
(a) did so in a wanton or reckless manner; or
(b) was drunk or impaired; or
(c) the alcohol concentration in the accused’s
blood or breath equaled or exceeded the applicable
limit under Article 113(b).
[Note: Add the following if applicable]
(3) That the accused thereby caused the vehicle,
aircraft, or vessel to injure a person.
c. Explanation
.
(1) Vehicle. See 1 U.S.C. § 4.
(2) Vessel. See 1 U.S.C. § 3.
(3) Aircraft. See 18 U.S.C. § 31(a)(1).
(4) Operates. Operating a vehicle, aircraft, or vessel
includes not only driving or guiding a vehicle, aircraft,
or vessel while it is in motion, either in person or
through the agency of another, but also setting of its
motive power in action or the manipulation of its
controls so as to cause the particular vehicle, aircraft,
or vessel to move.
(5) Physical control and actual physical control.
These terms as used in the statute are synonymous.
They describe the present capability and power to
dominate, direct, or regulate the vehicle, vessel, or
aircraft, either in person or through the agency of
another, regardless of whether such vehicle, aircraft, or
vessel is operated. For example, the intoxicated person
seated behind the steering wheel of a vehicle with the
keys of the vehicle in or near the ignition but with the
engine not turned on could be deemed in actual
physical control of that vehicle. However, the person
asleep in the back seat with the keys in his or her pocket
would not be deemed in actual physical control.
Physical control necessarily encompasses operation.
(6) Drunk or impaired. Drunk and impaired mean
any intoxication which is sufficient to impair the
rational and full exercise of the mental or physical
faculties. The term drunk is used in relation to
intoxication by alcohol. The term impaired is used in
relation to intoxication by a substance described in
Article 112(a).
(7) Reckless. The operation or physical control of a
vehicle, vessel, or aircraft is reckless when it exhibits a
culpable disregard of foreseeable consequences to
others from the act or omission involved. Recklessness
is not determined solely by reason of the happening of
an injury, or the invasion of the rights of another, nor
by proof alone of excessive speed or erratic operation,
but all these factors may be admissible and relevant as
bearing upon the ultimate question: whether, under all
the circumstances, the accused’s manner of operation
or physical control of the vehicle, vessel, or aircraft
was of that heedless nature which made it actually or
imminently dangerous to the occupants, or to the rights
or safety of others. It is operating or physically
controlling a vehicle, vessel, or aircraft with such a
high degree of negligence that if death were caused, the
accused would have committed involuntary
manslaughter, at least. The nature of the conditions in
which the vehicle, vessel, or aircraft is operated or
controlled, the time of day or night, the proximity and
number of other vehicles, vessels, or aircraft and the
condition of the vehicle, vessel, or aircraft, are often
matters of importance in the proof of an offense
charged under this article and, where they are of
importance, may properly be alleged.
(8) Wanton. Wanton includes “reckless,” but in
describing the operation or physical control of a
vehicle, vessel, or aircraft, wanton may, in a proper
case, connote willfulness, or a disregard of probable
consequences, and thus describe a more aggravated
offense.
(9) Causation. The accused’s drunken or reckless
driving must be a proximate cause of injury for the
accused to be guilty of drunken or reckless driving
resulting in personal injury. To be proximate, the
accused’s actions need not be the sole cause of the
injury, nor must they be the immediate cause of the
injury, that is, the latest in time and space preceding the
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injury. A contributing cause is deemed proximate only
if it plays a material role in the victim’s injury.
(10) Separate offenses. While the same course of
conduct may constitute violations of both paragraphs
(a)(1) and (2) of Article 113, e.g., both drunken and
reckless operation or physical control, this article
proscribes the conduct described in both paragraphs
(a)(1) and (2) as separate offenses, which may be
charged separately. However, as recklessness is a
relative matter, evidence of all the surrounding
circumstances that made the operation dangerous,
whether alleged or not, may be admissible. Thus, on a
charge of reckless driving, for example, evidence of
drunkenness might be admissible as establishing one
aspect of the recklessness, and evidence that the
vehicle exceeded a safe speed, at a relevant prior point
and time, might be admissible as corroborating other
evidence of the specific recklessness charged.
Similarly, on a charge of drunken driving, relevant
evidence of recklessness might have probative value as
corroborating other proof of drunkenness.
d. Maximum punishment.
(1) Resulting in personal injury. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 18 months.
(2) No personal injury involved. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
e. Sample specification
.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____, 20 __, (in the
motor pool area) (near the Officers’ Club) (at the
intersection of __________ and __________) (while in
the Gulf of Mexico) (while in flight over North
America) physically control [a vehicle, to wit: (a truck)
(a passenger car) (_____)] [an aircraft, to wit: (an AH-
64 helicopter) (an F-14A fighter) (a KC-135 tanker)
(_____)] [a vessel, to wit: (the aircraft carrier USS
__________) (the Coast Guard Cutter __________)
(__________)], [while drunk] [while impaired by
__________] [while the alcohol concentration in (his)
(her) (blood or breath) equaled or exceeded the
applicable limit under subsection (b) of the text of the
statute in paragraph 51 as shown by chemical analysis]
[in a (reckless) (wanton) manner by (attempting to pass
another vehicle on a sharp curve) (ordering that the
aircraft be flown below the authorized altitude)] [and
did thereby cause said (vehicle) (aircraft) (vessel) to
(strike and) (injure __________)].
52. Article 114 (10 U.S.C. 914)—Endangerment
offenses
a. Text of statute.
(a) RECKLESS ENDANGERMENT.—Any
person subject to this chapter who engages in
conduct that—
(1) is wrongful and reckless or is wanton; and
(2) is likely to produce death or grievous bodily
harm to another person;
shall be punished as a court-martial may direct.
(b) DUELING.—Any person subject to this
chapter—
(1) who fights or promotes, or is concerned in
or connives at fighting, a duel; or
(2) who, having knowledge of a challenge sent
or about to be sent, fails to report the facts promptly
to the proper authority;
shall be punished as a court-martial may direct.
(c) FIREARM DISCHARGE, ENDANGERING
HUMAN LIFE.—Any person subject to this
chapter who, willfully and wrongly, discharges a
firearm, under circumstances such as to endanger
human life shall be punished as a court-martial may
direct.
(d) CARRYING CONCEALED WEAPON.—
Any person subject to this chapter who unlawfully
carries a dangerous weapon concealed on or about
his person shall be punished as a court-martial may
direct.
b. Elements.
(1) Reckless endangerment.
(a) That the accused did engage in conduct;
(b) That the conduct was wrongful and reckless or
wanton; and
(c) That the conduct was likely to produce death
or grievous bodily harm to another person.
(2) Dueling.
(a) That the accused fought another person with
deadly weapons;
(b) That the combat was for private reasons; and
(c) That the combat was by prior agreement.
(3) Promoting a duel.
(a) That the accused promoted a duel between
certain persons; and
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(b) That the accused did so in a certain manner.
(4) Conniving at fighting a duel.
(a) That certain persons intended to and were
about to engage in a duel;
(b) That the accused had knowledge of the planned
duel; and
(c) That the accused connived at the fighting of the
duel in a certain manner.
(5) Failure to report a duel.
(a) That a challenge to fight a duel had been sent
or was about to be sent;
(b) That the accused had knowledge of this
challenge; and
(c) That the accused failed to report this fact
promptly to proper authority.
(6) Firearm discharge, endangering human life.
(a) That the accused discharged a firearm;
(b) That the discharge was willful and wrongful;
and
(c) That the discharge was under circumstances
such as to endanger human life.
(7) Carrying concealed weapon.
(a) That the accused carried a certain weapon
concealed on or about the accused’s person;
(b) That the carrying was unlawful; and
(c) That the weapon was a dangerous weapon.
Discussion
For negligent discharge of a firearm, see paragraph 100.
c. Explanation
.
(1) Reckless endangerment.
(a) In general. This offense is intended to prohibit
and therefore deter reckless or wanton conduct that
wrongfully creates a substantial risk of death or
grievous bodily harm to others.
(b) Wrongfulness. Conduct is wrongful when it is
without legal justification or excuse.
(c) Recklessness. “Reckless” conduct is conduct
that exhibits a culpable disregard of foreseeable
consequences to others from the act or omission
involved. The accused need not intentionally cause a
resulting harm or know that his conduct is substantially
certain to cause that result. The ultimate question is
whether, under all the circumstances, the accused’s
conduct was of that heedless nature that made it
actually or imminently dangerous to the rights or safety
of others.
(d) Wantonness. “Wanton” includes “reckless” but
may connote willfulness, or a disregard of probable
consequences, and thus describe a more aggravated
offense.
(e) Likely to produce. When the natural or
probable consequence of particular conduct would be
death or grievous bodily harm, it may be inferred that
the conduct is likely to produce that result.
(f) Grievous bodily harm. This phrase has the
same meaning given it in subparagraph 77.c.(1)(c).
(g) Death or injury not required. It is not
necessary that death or grievous bodily harm be
actually inflicted to prove reckless endangerment.
(2) Dueling.
(a) Duel. A duel is combat between two persons
for private reasons fought with deadly weapons by
prior agreement.
(b) Promoting a duel. Urging or taunting another
to challenge or to accept a challenge to duel, acting as
a second or as carrier of a challenge or acceptance, or
otherwise furthering or contributing to the fighting of
a duel are examples of promoting a duel.
(c) Conniving at fighting a duel. Anyone who has
knowledge that steps are being taken or have been
taken toward arranging or fighting a duel and who fails
to take reasonable preventive action thereby connives
at the fighting of a duel.
(3) Firearm discharge, endangering human life.
“Under circumstances such as to endanger human life”
refers to a reasonable potentiality for harm to human
beings in general. The test is not whether the life was
in fact endangered but whether, considering the
circumstances surrounding the wrongful discharge of
the weapon, the act was unsafe to human life in
general.
(4) Carrying concealed weapon.
(a) Concealed weapon. A weapon is concealed
when it is carried by a person and intentionally covered
or kept from sight.
(b) Dangerous weapon. For purposes of this
paragraph, a weapon is dangerous if it was specifically
designed for the purpose of doing grievous bodily
harm, or it was used or intended to be used by the
accused to do grievous bodily harm.
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(c) On or about. “On or about” means the weapon
was carried on the accused’s person or was within the
immediate reach of the accused.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
e. Sample specifications.
(1) Reckless endangerment.
In that __________ (personal jurisdiction data), did,
(at/on board—location)
(subject-matter jurisdiction data, if required), on or
about _____ 20 __, wrongfully and (recklessly)
(wantonly) engage in conduct, to wit: ________,
conduct likely to cause death or grievous bodily harm
to __________.
(2) Dueling.
(a) Dueling.
In that___________ (personal jurisdiction data)
(and___________), did, (at/onboard—location)
(subject-matter jurisdiction data, if required), on or
about _____20_____, fight a duel (with ______), using
as weapons therefor (pistols) (swords) (______).
(b) Promoting a duel.
In that_________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ______20____, promote
a duel between ___________ and ________ by (telling
said ________ (he) (she) would be a coward if (he)
(she) failed to challenge said _______ to a duel)
(knowingly carrying from said _______ to said
_______ a challenge to fight a duel).
(c) Conniving at fighting a duel.
In that __________ (personal jurisdiction data),
having knowledge that ______ and ______ were about
to engage in a duel, did (at/onboard—location)
(subject-matter jurisdiction data, if required), on or
about ______ 20____, connive at the fighting of said
duel by (failing to take reasonable preventive action)
(_________).
(d) Failure to report a duel.
In that _________ (personal jurisdiction data),
having knowledge that a challenge to fight a duel (had
been sent) (was about to be sent) by ______ to
_______, did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about _____
20_____, fail to report that fact promptly to the proper
authority.
(3) Firearm discharge, endangering human life.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
and willfully discharge a firearm, to wit: _____, (in the
mess hall of _____) (_____), under circumstances such
as to endanger human life.
(4) Carrying concealed weapon.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, unlawfully
carry on or about (his) (her) person a concealed
weapon, to wit: a __________.
53. Article 115 (10 U.S.C. 915)—Communicating
threats
a. Text of statute.
(a) COMMUNICATING THREATS
GENERALLY.—Any person subject to this
chapter who wrongfully communicates a threat to
injure the person, property, or reputation of
another shall be punished as a court-martial may
direct.
(b) COMMUNICATING THREAT TO USE
EXPLOSIVE, ETC.—Any person subject to this
chapter who wrongfully communicates a threat to
injure the person or property of another by use of
(1) an explosive, (2) a weapon of mass destruction,
(3) a biological or chemical agent, substance, or
weapon, or (4) a hazardous material, shall be
punished as a court-martial may direct.
(c) COMMUNICATING FALSE THREAT
CONCERNING USE OF EXPLOSIVE, ETC.—
Any person subject to this chapter who maliciously
communicates a false threat concerning injury to
the person or property of another by use of (1) an
explosive, (2) a weapon of mass destruction, (3) a
biological or chemical agent, substance, or weapon,
or (4) a hazardous material, shall be punished as a
court-martial may direct. As used in the preceding
sentence, the term “false threat” means a threat
that, at the time the threat is communicated, is
known to be false by the person communicating the
threat.
b. Elements.
(1) Threats generally.
(a) That the accused communicated certain
language expressing a present determination or intent
to injure the person, property, or reputation of another
person, presently or in the future;
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(b) That the communication was made known to
that person or to a third person; and
(c) That the communication was wrongful.
(2) Threat to use explosive, etc.
(a) That the accused communicated certain
language;
(b) That the information communicated amounted
to a threat;
(c) That the harm threatened was to be done by
means of an explosive; weapon of mass destruction;
biological or chemical agent, substance, or weapon; or
hazardous material; and
(d) That the communication was wrongful.
(3) False threats concerning use of explosives, etc.
(a) That the accused communicated or conveyed
certain information;
(b) That the information communicated or
conveyed concerned an attempt being made or to be
made by means of an explosive; weapon of mass
destruction; biological or chemical agent, substance, or
weapon; or hazardous material, to unlawfully kill,
injure, or intimidate a person or to unlawfully damage
or destroy certain property;
(c) That the information communicated or
conveyed by the accused was false and that the accused
then knew it to be false; and
(d) That the communication of the information by
the accused was malicious.
c. Explanation
.
(1) Threat. A “threat” means an expressed present
determination or intent to kill, injure, or intimidate a
person or to damage or destroy certain property
presently or in the future. The communication must be
one that a reasonable person would understand as
expressing a present determination or intent to
wrongfully injure the person, property, or reputation of
another person, presently or in the future. Proof that the
accused actually intended to kill, injure, intimidate,
damage or destroy is not required.
(2) Wrongful. A communication must be wrongful in
order to constitute this offense. The wrongfulness of
the communication relates to the accused’s subjective
intent. For purposes of this paragraph, the mental state
requirement is satisfied if the accused transmitted the
communication for the purpose of issuing a threat or
with knowledge that the communication will be
viewed as a threat. A statement made under
circumstances that reveal it to be in jest or for an
innocent or legitimate purpose that contradicts the
expressed intent to commit the act is not wrongful. Nor
is the offense committed by the mere statement of
intent to commit an unlawful act not involving a threat.
(3) Explosive. “Explosive” means gunpowder,
powders used for blasting, all forms of high explosives,
blasting materials, fuses (other than electrical circuit
breakers), detonators, and other detonating agents,
smokeless powders, any explosive bomb, grenade,
missile, or similar device, and any incendiary bomb or
grenade, fire bomb, or similar device, and any other
explosive compound, mixture, or similar material.
(4) Weapon of mass destruction. A “weapon of mass
destruction” means any device, explosive or otherwise,
that is intended, or has the capability, to cause death or
serious bodily injury to a significant number of people
through the release, dissemination, or impact of: toxic
or poisonous chemicals, or their precursors; a disease
organism; or radiation or radioactivity.
(5) Biological agent. The term “biological agent”
means any microorganism (including bacteria, viruses,
fungi, rickettsiac, or protozoa), pathogen, or infectious
substance, and any naturally occurring, bioengineered,
or synthesized component of any such micro-
organism, pathogen, or infectious substance, whatever
its origin or method of production, that is capable of
causing—
(a) death, disease, or other biological malfunction
in a human, an animal, a plant, or another living
organism;
(b) deterioration of food, water, equipment,
supplies, or materials of any kind; or
(c) deleterious alteration of the environment.
(6) Chemical agent, substance, or weapon. A
“chemical agent, substance, or weapon” refers to a
toxic chemical and its precursors or a munition or
device, specifically designed to cause death or other
harm through toxic properties of those chemicals that
would be released as a result of the employment of
such munition or device, and any equipment
specifically designed for use directly in connection
with the employment of such munitions or devices.
(7) Hazardous material. A substance or material
(including explosive, radioactive material, etiologic
agent, flammable or combustible liquid or solid,
poison, oxidizing or corrosive material, and
compressed gas, or mixture thereof) or a group or class
of material designated as hazardous by the Secretary of
Transportation.
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(8) Malicious. A communication is malicious if the
accused believed that the information would probably
interfere with the peaceful use of the building, vehicle,
aircraft, or other property concerned, or would cause
fear or concern to one or more persons.
d. Maximum punishment.
(1) Threats and false threats generally.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 3 years.
(2) Threats and false threats concerning use of
explosives, etc. Dishonorable discharge, forfeitures of
all pay and allowances, and confinement for 10 years.
e. Sample specifications.
(1) Threats generally.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
communicate to __________ a threat (to injure _____
by _____) (to accuse _____ of having committed the
offense of _____) (_____).
(2) Threats concerning use of explosives, etc.
In that __________ (personal jurisdiction data) did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
communicate certain information, to wit: __________,
which language constituted a threat to harm a person
or property by means of a(n) [explosive; weapon of
mass destruction; biological agent, substance, or
weapon; chemical agent, substance, or weapon; and/or
(a) hazardous material(s)].
(3) False threats concerning use of explosives, etc.
In that __________ (personal jurisdiction data) did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, maliciously
(communicate) (convey) certain information
concerning an attempt being made or to be made to
unlawfully [(kill) (injure) (intimidate) __________ ]
[(damage) (destroy) __________ ] by means of a(n)
[explosive; weapon of mass destruction; biological
agent, substance, or weapon; chemical agent,
substance, or weapon; and/or (a) hazardous
material(s)], to wit: __________, which information
was false and which the accused then knew to be false.
54. Article 116 (10 U.S.C. 916)—Riot or breach of
peace
a. Text of statute.
Any person subject to this chapter who causes or
participates in any riot or breach of the peace shall
be punished as a court-martial may direct.
b. Elements.
(1) Riot.
(a) That the accused was a member of an assembly
of three or more persons;
(b) That the accused and at least two other
members of this group mutually intended to assist one
another against anyone who might oppose them in
doing an act for some private purpose;
(c) That the group or some of its members, in
furtherance of such purpose, unlawfully committed a
tumultuous disturbance of the peace in a violent or
turbulent manner; and
(d) That these acts terrorized the public in general
in that they caused or were intended to cause public
alarm or terror.
(2) Breach of the peace.
(a) That the accused caused or participated in a
certain act of a violent or turbulent nature; and
(b) That the peace was thereby unlawfully
disturbed.
c. Explanation
.
(1) Riot. A riot is a tumultuous disturbance of the
peace by three or more persons assembled together in
furtherance of a common purpose to execute some
enterprise of a private nature by concerted action
against anyone who might oppose them, committed in
such a violent and turbulent manner as to cause or be
calculated to cause public terror. The gravamen of the
offense of riot is terrorization of the public. It is
immaterial whether the act intended was lawful.
Furthermore, it is not necessary that the common
purpose be determined before the assembly. It is
sufficient if the assembly begins to execute in a
tumultuous manner a common purpose formed after it
assembled.
(2) Breach of the peace. A breach of the peace is an
unlawful disturbance of the peace by an outward
demonstration of a violent or turbulent nature. The acts
or conduct contemplated by this article are those which
disturb the public tranquility or impinge upon the peace
and good order to which the community is entitled.
Engaging in an affray and unlawful discharge of
firearms in a public street are examples of conduct
which may constitute a breach of the peace. Loud
speech and unruly conduct may also constitute a breach
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of the peace by the speaker. A speaker may also be
guilty of causing a breach of the peace if the speaker
uses language which can reasonably be expected to
produce a violent or turbulent response and a breach of
the peace results. The fact that the words are true or
used under provocation is not a defense, nor is
tumultuous conduct excusable because incited by
others.
(3) Community and public. Community and public
include a military organization, post, camp, ship,
aircraft, or station.
d. Maximum punishment.
(1) Riot. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 10 years.
(2) Breach of the peace. Confinement for 6 months
and forfeiture of two-thirds pay per month for 6
months.
e. Sample specifications.
(1) Riot.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (cause)
(participate in) a riot by unlawfully assembling with
_____ (and _____) (and) (others to the number of
about _____ whose names are unknown) for the
purpose of (resisting the police of _____) (assaulting
passers-by) (_____), and in furtherance of said purpose
did (fight with said police) (assault certain persons, to
wit: _____) (_____), to the terror and disturbance of
_____.
(2) Breach of the peace.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (cause)
(participate in) a breach of the peace by (wrongfully
engaging in a fist fight in the dayroom with
__________) (using the following provoking language
(toward _____), to wit: “_____,” or words to that
effect) (wrongfully shouting and singing in a public
place, to wit: _____) (_____).
55. Article 117 (10 U.S.C. 917)—Provoking
speeches or gestures
a. Text of statute.
Any person subject to this chapter who uses
provoking or reproachful words or gestures
towards any other person subject to this chapter
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused wrongfully used words or
gestures toward a certain person;
(2) That the words or gestures used were provoking
or reproachful; and
(3) That the person toward whom the words or
gestures were used was a person subject to the UCMJ.
c. Explanation.
(1) In general. As used in this article, provoking and
reproachful describe those words or gestures which are
used in the presence of the person to whom they are
directed and which a reasonable person would expect
to induce a breach of the peace under the
circumstances. These words and gestures do not
include reprimands, censures, reproofs and the like
which may properly be administered in the interests of
training, efficiency, or discipline in the armed forces.
(2) Knowledge. It is not necessary that the accused
have knowledge that the person toward whom the
words or gestures are directed is a person subject to the
UCMJ.
d. Maximum punishment. Confinement for 6 months
and forfeiture of two-thirds pay per month for 6
months.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
use (provoking) (reproachful) (words, to wit:
“__________” or words to that effect) (and) (gestures,
to wit: __________) towards (Sergeant __________,
U.S. Air Force) (__________).
55a. Article 117a (10 U.S.C. 917a)—Wrongful
broadcast or distribution of intimate visual
images
a. Text of statute.
(a) P
ROHIBITION.—Any person subject to this
chapter—
(1) who knowingly and wrongfully broadcasts or
distributes an intimate visual image of another
person or a visual image of sexually explicit conduct
involving a person who—
(A) is at least 18 years of age at the time the
intimate visual image or visual image of sexually
explicit conduct was created;
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(B) is identifiable from the intimate visual
image or visual image of sexually explicit conduct
itself, or from information displayed in connection
with the intimate visual image or visual image of
sexually explicit conduct; and
(C) does not explicitly consent to the broadcast
or distribution of the intimate visual image or visual
image of sexually explicit conduct;
(2) who knows or reasonably should have known
that the intimate visual image or visual image of
sexually explicit conduct was made under
circumstances in which the person depicted in the
intimate visual image or visual image of sexually
explicit conduct retained a reasonable expectation
of privacy regarding any broadcast or distribution
of the intimate visual image or visual image of
sexually explicit conduct;
(3) who knows or reasonably should have known
that the broadcast or distribution of the intimate
visual image or visual image of sexually explicit
conduct is likely—
(A) to cause harm, harassment, intimidation,
emotional distress, or financial loss for the person
depicted in the intimate visual image or visual
image of sexually explicit conduct; or
(B) to harm substantially the depicted person
with respect to that person’s health, safety,
business, calling, career, financial condition,
reputation, or personal relationships; and
(4) whose conduct, under the circumstances, had
a reasonably direct and palpable connection to a
military mission or military environment,
is guilty of wrongful distribution of intimate visual
images or visual images of sexually explicit conduct
and shall be punished as a court-martial may direct.
(b) D
EFINITIONS.—In this section:
(1) B
ROADCAST.—The term “broadcast” means
to electronically transmit a visual image with the
intent that it be viewed by a person or persons.
(2) D
ISTRIBUTE.—The term “distribute” means to
deliver to the actual or constructive possession of
another person, including transmission by mail or
electronic means.
(3) I
NTIMATE VISUAL IMAGE.—The term
"intimate visual image" means a visual image that
depicts a private area of a person.
(4) P
RIVATE AREA. —The term "private area"
means the naked or underwear-clad genitalia, anus,
buttocks, or female areola or nipple.
(5) R
EASONABLE EXPECTATION OF PRIVACY. —
The term "reasonable expectation of privacy"
means circumstances in which a reasonable person
would believe that a private
area of the person, or sexually explicit conduct
involving the person, would not be visible to the
public.
(6) S
EXUALLY EXPLICIT CONDUCT. —The term
"sexually explicit conduct" means actual or
simulated genital-genital contact, oral-genital
contact, anal-genital contact, or oral-anal contact,
whether between persons of the same or opposite
sex, bestiality, masturbation, or sadistic or
masochistic abuse.
(7) V
ISUAL IMAGE. —The term "visual image"
means the following:
(A) Any developed or undeveloped photograph,
picture, film, or video.
(B) Any digital or computer image, picture,
film, or video made by any means, including those
transmitted by any means, including streaming
media, even if not stored in a permanent format.
(C) Any digital or electronic data capable of
conversion into a visual image.
b. Elements.
(1) That the accused knowingly and wrongfully
broadcasted or distributed a visual image;
(2) That the visual image is an intimate visual image
of another person or a visual image of sexually explicit
conduct involving another person;
(3) That the person depicted in the intimate visual
image or visual image of sexually explicit conduct—
(a) is at least 18 years of age at the time the
intimate visual image or visual image of sexually
explicit conduct was created;
(b) is identifiable from the intimate visual image
or visual image of sexually explicit conduct itself or
from information displayed in connection with the
intimate visual image or visual image of sexually
explicit conduct; and
(c) does not explicitly consent to the broadcast or
distribution of the intimate visual image or visual
image of sexually explicit conduct;
(4) That the accused knew or reasonably should have
known that the intimate visual image or visual image
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of sexually explicit conduct was made under
circumstances in which the person depicted retained a
reasonable expectation of privacy regarding any
broadcast or distribution of the intimate visual image
or visual image of sexually explicit conduct;
(5) That the accused knew or reasonably should have
known that the broadcast or distribution of the intimate
visual image or visual image of sexually explicit
conduct was likely to—
(a) cause harm, harassment, intimidation,
emotional distress, or financial loss for the person
depicted in the intimate visual image or visual image
of sexually explicit conduct; or
(b) harm substantially the depicted person with
respect to that person's health, safety, business, calling,
career, financial condition, reputation, or personal
relationships; and
(6) That the conduct of the accused, under the
circumstances, had a reasonably direct and palpable
connection to a military mission or military
environment.
c. Explanation. See Paragraph 55a.a.(b) for definitions.
(1) Wrongful. Wrongful means without legal
justification or excuse. This paragraph shall not apply
in the case of a visual image the disclosure of which is
in the bona fide public interest. For example, this
paragraph does not prohibit any lawful law
enforcement, correctional, or intelligence activity;
shall not apply to the reporting of unlawful activity;
and shall not apply to a subpoena or court order for use
in a legal proceeding.
(2) Reasonable Expectation of Privacy. A
reasonable expectation of privacy is determined based
on the totality of the circumstances.
(3) A reasonably direct and palpable connection to
a military mission or military environment. The
connection between the conduct and a military mission
or military environment is contextually oriented and
cannot be evidenced by conduct that is connected only
in a remote or indirect sense. To constitute an offense
under the UCMJ, the conduct must have a measurably
divisive effect on unit or organization discipline,
morale, or cohesion, or must be clearly detrimental to
the authority or stature of or respect toward a
Servicemember.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 2 years.
e. Sample specification.
In that ____ (personal jurisdiction data), did (at/on
board-location), on or about __ 20 _, knowingly and
wrongfully [(distribute) (broadcast)] [(an intimate
visual image of _______) (a visual image of sexually
explicit conduct involving ________)], a person who
was at least 18 years of age when the image was
created, is identifiable from (the image itself)
(information conveyed in connection with the image),
and did not explicitly consent to the (broadcast)
(distribution) of the image, when the accused (knew)
(reasonably should have known) the image was made
under circumstances in which ___________ retained a
reasonable expectation of privacy regarding any
(broadcast) (distribution) of the image, and where the
accused (knew) (reasonably should have known) that
the (broadcast) (distribution) of the image was likely to
[cause (harm) (harassment) (intimidation) (emotional
distress) (financial loss), to wit: ____ ] [harm
substantially the (health) (safety) (business) (calling)
(career) (financial condition) (reputation) (personal
relationships), to wit: ______ ] and that, under the
circumstances, such conduct had a reasonably direct
and palpable connection to a (military mission)
(military environment)."
56. Article 118 (10 U.S.C. 918)—Murder
a. Text of statute.
Any person subject to this chapter who, without
justification or excuse, unlawfully kills a human
being, when he—
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently
dangerous to another and evinces a wanton
disregard of human life; or
(4) is engaged in the perpetration or attempted
perpetration of burglary, rape, rape of a child,
sexual assault, sexual assault of a child, aggravated
sexual contact, sexual abuse of a child, robbery or
aggravated arson;
is guilty of murder, and shall suffer such
punishment as a court-martial may direct, except
that if found guilty under clause (1) or (4), he shall
suffer death or imprisonment for life as a court-
martial may direct.
b. Elements.
(1) Premeditated murder.
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(a) That a certain named or described person is
dead;
(b) That the death resulted from the act or
omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had
a premeditated design to kill.
(2) Intent to kill or inflict great bodily harm.
(a) That a certain named or described person is
dead;
(b) That the death resulted from the act or
omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had
the intent to kill or inflict great bodily harm upon a
person.
(3) Act inherently dangerous to another.
(a) That a certain named or described person is
dead;
(b) That the death resulted from the intentional act
of the accused;
(c) That this act was inherently dangerous to
another and showed a wanton disregard for human life;
(d) That the accused knew that death or great
bodily harm was a probable consequence of the act;
and
(e) That the killing was unlawful.
(4) During certain offenses.
(a) That a certain named or described person is
dead;
(b) That the death resulted from the act or
omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused was
engaged in the perpetration or attempted perpetration
of burglary, rape, rape of a child, sexual assault, sexual
assault of a child, aggravated sexual contact, sexual
abuse of a child, robbery, or aggravated arson.
c. Explanation.
(1) In general. Killing a human being is unlawful
when done without justification or excuse. See R.C.M.
916. Whether an unlawful killing constitutes murder or
a lesser offense depends upon the circumstances. The
offense is committed at the place of the act or omission
although the victim may have died elsewhere. Whether
death occurs at the time of the accused’s act or
omission, or at some time thereafter, it must have
followed from an injury received by the victim which
resulted from the act or omission.
(2) Premeditated murder.
(a) Premeditation. A murder is not premeditated
unless the thought of taking life was consciously
conceived and the act or omission by which it was
taken was intended. Premeditated murder is murder
committed after the formation of a specific intent to kill
someone and consideration of the act intended. It is not
necessary that the intention to kill have been
entertained for any particular or considerable length of
time. When a fixed purpose to kill has been
deliberately formed, it is immaterial how soon
afterwards it is put into execution. The existence of
premeditation may be inferred from the circumstances.
(b) Transferred premeditation. When an accused
with a premeditated design attempted to unlawfully kill
a certain person, but, by mistake or inadvertence, killed
another person, the accused is still criminally
responsible for a premeditated murder, because the
premeditated design to kill is transferred from the
intended victim to the actual victim.
(c) Intoxication. Voluntary intoxication (see
R.C.M. 916(l)(2)) not amounting to legal insanity may
reduce premeditated murder (Article 118(1)) to
unpremeditated murder (Article 118(2) or (3)) but it
does not reduce either premeditated murder or
unpremeditated murder to manslaughter (Article 119)
or any other lesser offense.
(3) Intent to kill or inflict great bodily harm.
(a) Intent. An unlawful killing without
premeditation is also murder when the accused had
either an intent to kill or inflict great bodily harm. It
may be inferred that a person intends the natural and
probable consequences of an act purposely done.
Hence, if a person does an intentional act likely to
result in death or great bodily injury, it may be inferred
that death or great bodily injury was intended. The
intent need not be directed toward the person killed, or
exist for any particular time before commission of the
act, or have previously existed at all. It is sufficient that
it existed at the time of the act or omission (except if
death is inflicted in the heat of a sudden passion caused
by adequate provocation – see paragraph 57). For
example, a person committing housebreaking who
strikes and kills the householder attempting to prevent
flight can be guilty of murder even if the householder
was not seen until the moment before striking the fatal
blow.
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(b) Great bodily harm. “Great bodily harm” means
serious injury; it does not include minor injuries such
as a black eye or a bloody nose, but it does include
fractured or dislocated bones, deep cuts, torn members
of the body, serious damage to internal organs, and
other serious bodily injuries. It is synonymous with the
term “grievous bodily harm.”
(c) Intoxication. Voluntary intoxication not
amounting to legal insanity does not reduce
unpremeditated murder to manslaughter (Article 119)
or any other lesser offense.
(4) Act inherently dangerous to others.
(a) Wanton disregard of human life. Intentionally
engaging in an act inherently dangerous to another—
although without an intent to cause the death of or great
bodily harm to any particular person, or even with a
wish that death will not be caused—may also constitute
murder if the act shows wanton disregard of human
life. Such disregard is characterized by heedlessness of
the probable consequences of the act or omission, or
indifference to the likelihood of death or great bodily
harm. Examples include throwing a live grenade
toward another in jest or flying an aircraft very low
over one or more persons to cause alarm.
(b) Knowledge. The accused must know that death
or great bodily harm was a probable consequence of
the inherently dangerous act. Such knowledge may be
proved by circumstantial evidence.
(5) During certain offenses.
(a) In general. The commission or attempted
commission of any of the offenses listed in Article
118(4) is likely to result in homicide, and when an
unlawful killing occurs as a consequence of the
perpetration or attempted perpetration of one of these
offenses, the killing is murder. Under these
circumstances it is not a defense that the killing was
unintended or accidental.
(b) Separate offenses. The perpetration or
attempted perpetration of burglary, rape, rape of a
child, sexual assault, sexual assault of a child,
aggravated sexual contact, sexual abuse of a child,
robbery, or aggravated arson may be charged
separately from the homicide.
d. Maximum punishment.
(1) Article 118(1) or (4)—death. Mandatory
minimum—imprisonment for life with the eligibility
for parole.
(2) Article 118(2) or (3)—such punishment other than
death as a court-martial may direct.
e. Sample specification
.
In that ______________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ______
20___, (with premeditation) (while (perpetrating)
(attempting to perpetrate)__________) murder
__________________ by means of (shooting (him)
(her) with a rifle) (_________).
57. Article 119 (10 U.S.C. 919)—Manslaughter
a. Text of statute.
(a) Any person subject to this chapter who, with
an intent to kill or inflict great bodily harm,
unlawfully kills a human being in the heat of sudden
passion caused by adequate provocation is guilty of
voluntary manslaughter and shall be punished as a
court-martial may direct.
(b) Any person subject to this chapter who,
without an intent to kill or inflict great bodily harm,
unlawfully kills a human being—
(1) by culpable negligence; or
(2) while perpetrating or attempting to
perpetrate an offense, other than those named in
clause (4) of section 918 of this title (article 118),
directly affecting the person;
is guilty of involuntary manslaughter and shall be
punished as a court-martial may direct.
b. Elements.
(1) Voluntary manslaughter.
(a) That a certain named or described person is
dead;
(b) That the death resulted from the act or
omission of the accused;
(c) That the killing was unlawful; and
(d) That, at the time of the killing, the accused had
the intent to kill or inflict great bodily harm upon the
person killed.
[Note: Add the following if applicable]
(e) That the person killed was a child under the age
of 16 years.
(2) Involuntary manslaughter.
(a) That a certain named or described person is
dead;
(b) That the death resulted from the act or
omission of the accused;
(c) That the killing was unlawful; and
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(d) That this act or omission of the accused
constituted culpable negligence, or occurred while the
accused was perpetrating or attempting to perpetrate an
offense directly affecting the person other than
burglary, rape, rape of a child, sexual assault, sexual
assault of a child, aggravated sexual contact, sexual
abuse of a child, robbery, or aggravated arson.
[Note: Add the following if applicable]
(e) That the person killed was a child under the age
of 16 years.
c. Explanation.
(1) Voluntary manslaughter.
(a) Nature of offense. An unlawful killing,
although done with an intent to kill or inflict great
bodily harm, is not murder but voluntary manslaughter
if committed in the heat of sudden passion caused by
adequate provocation. Heat of passion may result from
fear or rage. A person may be provoked to such an
extent that in the heat of sudden passion caused by the
provocation, although not in necessary defense of life
or to prevent bodily harm, a fatal blow may be struck
before self-control has returned. Although adequate
provocation does not excuse the homicide, it does
preclude conviction of murder.
(b) Nature of provocation. The provocation must
be adequate to excite uncontrollable passion in a
reasonable person, and the act of killing must be
committed under and because of the passion. However,
the provocation must not be sought or induced as an
excuse for killing or doing harm. If, judged by the
standard of a reasonable person, sufficient cooling time
elapses between the provocation and the killing, the
offense is murder, even if the accused’s passion
persists. Examples of acts which may, depending on
the circumstances, constitute adequate provocation are
the unlawful infliction of great bodily harm, unlawful
imprisonment, and the sight by one spouse of an act of
adultery committed by the other spouse. Insulting or
abusive words or gestures, a slight blow with the hand
or fist, and trespass or other injury to property are not,
standing alone, adequate provocation.
(c) When committed upon a child under 16 years
of age. The maximum punishment is increased when
voluntary manslaughter is committed upon a child
under 16 years of age. The accused’s knowledge that
the child was under 16 years of age at the time of the
offense is not required for the increased maximum
punishment.
(2) Involuntary manslaughter.
(a) Culpable negligence.
(i) Nature of culpable negligence. Culpable
negligence is a degree of carelessness greater than
simple negligence. It is a negligent act or omission
accompanied by a culpable disregard for the
foreseeable consequences to others of that act or
omission. Thus, the basis of a charge of involuntary
manslaughter may be a negligent act or omission
which, when viewed in the light of human experience,
might foreseeably result in the death of another, even
though death would not necessarily be a natural and
probable consequence of the act or omission. Acts
which may amount to culpable negligence include
negligently conducting target practice so that the
bullets go in the direction of an inhabited house within
range; pointing a pistol in jest at another and pulling
the trigger, believing, but without taking reasonable
precautions to ascertain, that it would not be
dangerous; and carelessly leaving poisons or
dangerous drugs where they may endanger life.
(ii) Legal duty required. When there is no legal
duty to act there can be no neglect. Thus, when a
stranger makes no effort to save a drowning person, or
a person allows a beggar to freeze or starve to death,
no crime is committed.
(b) Offense directly affecting the person. An
“offense directly affecting the person” means an
offense affecting some particular person as
distinguished from an offense affecting society in
general. Among offenses directly affecting the person
are the various types of assault, battery, false
imprisonment, voluntary engagement in an affray, and
maiming.
(c) When committed upon a child under 16 years
of age. The maximum punishment is increased when
involuntary manslaughter is committed upon a child
under 16 years of age. The accused’s knowledge that
the child was under 16 years of age at the time of the
offense is not required for the increased maximum
punishment.
d. Maximum punishment.
(1) Voluntary manslaughter. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 15 years.
(2) Involuntary manslaughter. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
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(3) Voluntary manslaughter of a child under 16
years of age. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 20 years.
(4) Involuntary manslaughter of a child under 16
years of age. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 15 years.
e. Sample specification
.
(1) Voluntary manslaughter.
In that _________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 ___, willfully
and unlawfully kill ___________, (a child under 16
years of age) by ___________ (him) (her) (in) (on) the
____________ with a __________.
(2) Involuntary manslaughter.
In that _________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 ___, (by
culpable negligence) (while (perpetrating) (attempting
to perpetrate) an offense directly affecting the person
of __________, to wit: (maiming) (a battery)
(_______)) unlawfully kill ___________, (a child
under 16 years of age) by ___________ (him) (her) (in)
(on) the ____________ with a __________.
58. Article 119a (10 U.S.C. 919a)—Death or injury
of an unborn child
a. Text of statute.
(a)(1) Any person subject to this chapter who
engages in conduct that violates any of the
provisions of law listed in subsection (b) and
thereby causes the death of, or bodily injury (as
defined in section 1365 of title 18) to, a child, who is
in utero at the time the conduct takes place, is guilty
of a separate offense under this section and shall,
upon conviction, be punished by such punishment,
other than death, as a court-martial may direct,
which shall be consistent with the punishments
prescribed by the President for that conduct had
that injury or death occurred to the unborn child’s
mother.
(2) An offense under this section does not
require proof that—
(i) the person engaging in the conduct had
knowledge or should have had knowledge that the
victim of the underlying offense was pregnant; or
(ii) the accused intended to cause the death
of, or bodily injury to, the unborn child.
(3) If the person engaging in the conduct
thereby intentionally kills or attempts to kill the
unborn child, that person shall, instead of being
punished under paragraph (1), be punished as
provided under sections 880, 918, and 919(a) of this
title (articles 80, 118, and 119(a)) for intentionally
killing or attempting to kill a human being.
(4) Notwithstanding any other provision of law,
the death penalty shall not be imposed for an
offense under this section.
(b) The provisions referred to in subsection (a)
are sections 918, 919(a), 919(b)(2), 920(a), 922, 926,
928, and 928a of this title (articles 118, 119(a),
119(b)(2), 120(a), 122, 126, 128, and 128a).
(c) Nothing in this section shall be construed to
permit the prosecution—
(1) of any person for conduct relating to an
abortion for which the consent of the pregnant
woman, or a person authorized by law to act on her
behalf, has been obtained or for which such consent
is implied by law;
(2) of any person for any medical treatment of
the pregnant woman or her unborn child; or
(3) of any woman with respect to her unborn
child.
(d) In this section, the term “unborn child” means
a child in utero, and the term “child in utero” or
“child, who is in utero” means a member of the
species homo sapiens, at any stage of development,
who is carried in the womb.
b. Elements.
(1) Injuring an unborn child.
(a) That the accused was engaged in the [(murder
(article 118)), (voluntary manslaughter (article
119(a))), (involuntary manslaughter (article
119(b)(2))), (rape (article 120(a))), (robbery (article
122)), (maiming (article 128a)), (assault (article 128)),
of] or [burning or setting afire, as arson (article 126),
of (a dwelling inhabited by) (a structure or property
(known to be occupied by) (belonging to))] a woman;
(b) That the woman was then pregnant; and
(c) That the accused thereby caused bodily injury
to the unborn child of that woman.
(2) Killing an unborn child.
(a) That the accused was engaged in the [(murder
(article 118)), (voluntary manslaughter (article
119(a))), (involuntary manslaughter (article
119(b)(2))), (rape (article 120(a))), (robbery (article
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122)), (maiming (article 128a)), (assault (article 128)),
of] or [burning or setting afire, as arson (article 126),
of (a dwelling inhabited by) (a structure or property
(known to be occupied by) (belonging to))] a woman;
(b) That the woman was then pregnant; and
(c) That the accused thereby caused the death of
the unborn child of that woman.
(3) Attempting to kill an unborn child.
(a) That the accused was engaged in the [(murder
(article 118)), (voluntary manslaughter (article
119(a))), (involuntary manslaughter (article
119(b)(2))), (rape (article 120(a))), (robbery (article
122)), (maiming (article 128a)), (assault (article 128)),
of] or [burning or setting afire, as arson (article 126),
of (a dwelling inhabited by) (a structure or property
(known to be occupied by) (belonging to))] a woman;
(b) That the woman was then pregnant; and
(c) That the accused thereby intended and
attempted to kill the unborn child of that woman.
(4) Intentionally killing an unborn child.
(a) That the accused was engaged in the [(murder
(article 118)), (voluntary manslaughter (article
119(a))), (involuntary manslaughter (article
119(b)(2))), (rape (article 120(a))), (robbery (article
122)), (maiming (article 128a)), (assault (article 128)),
of] or [burning or setting afire, as arson (article 126),
of (a dwelling inhabited by) (a structure or property
(known to be occupied by) (belonging to))] a woman;
(b) That the woman was then pregnant; and
(c) That the accused thereby intentionally killed
the unborn child of that woman.
c. Explanation
.
(1) Nature of offense. This article makes it a separate,
punishable crime to cause the death of or bodily injury
to an unborn child while engaged in arson (article 126,
UCMJ); murder (article 118, UCMJ); voluntary
manslaughter (article 119(a), UCMJ); involuntary
manslaughter (article 119(b)(2), UCMJ); rape (article
120(a), UCMJ); robbery (article 122, UCMJ);
maiming (article 128a, UCMJ); or assault (article 128,
UCMJ) against a pregnant woman. For all underlying
offenses, except arson, this article requires that the
victim of the underlying offense be the pregnant
mother. For purposes of arson, the pregnant mother
must have some nexus to the arson such that she
sustained some bodily injury due to the arson. For the
purposes of this article the term “woman” means a
female of any age. This article does not permit the
prosecution of any—
(a) person for conduct relating to an abortion for
which the consent of the pregnant woman, or a person
authorized by law to act on her behalf, has been
obtained or for which such consent is implied by law;
(b) person for any medical treatment of the
pregnant woman or her unborn child; or
(c) woman with respect to her unborn child.
(2) The offenses of injuring an unborn child and
killing an unborn child do not require proof that—
(a) the accused had knowledge or should have had
knowledge that the victim of the underlying offense
was pregnant; or
(b) the accused intended to cause the death of, or
bodily injury to, the unborn child.
(3) The offense of attempting to kill an unborn child
requires that the accused intended by his conduct to
cause the death of the unborn child (see subparagraph
b.(3)(c) of this paragraph).
(4) Bodily injury. For the purpose of this offense, the
term “bodily injury” is that which is provided by
section 1365 of title 18, to wit: a cut, abrasion, bruise,
burn, or disfigurement; physical pain; illness;
impairment of the function of a bodily member, organ,
or mental faculty; or any other injury to the body, no
matter how temporary.
(5) Unborn child. “Unborn child” means a child in
utero or a member of the species homo sapiens who is
carried in the womb, at any stage of development, from
conception to birth.
d. Maximum punishment.
The maximum punishment
for (1) Injuring an unborn child; (2) Killing an unborn
child; (3) Attempting to kill an unborn child; or (4)
Intentionally killing an unborn child is such
punishment, other than death, as a court-martial may
direct, but shall be consistent with the punishment had
the bodily injury, death, attempt to kill, or intentional
killing occurred to the unborn child’s mother.
d. Sample specifications.
(1) Injuring an unborn child.
In that _____________ (personal jurisdiction data),
did (at/on board—location), (subject-matter
jurisdiction data, if required), on or about _________
20 ____, cause bodily injury to the unborn child of a
pregnant woman, by engaging in the [(murder)
(voluntary manslaughter) (involuntary manslaughter)
(rape) (robbery) (maiming) (assault) of] [(burning)
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(setting afire) of (a dwelling inhabited by) (a structure
or property known to (be occupied by) (belong to))]
that woman.
(2) Killing an unborn child.
In that _____________ (personal jurisdiction data),
did (at/on board—location), (subject-matter
jurisdiction data, if required), on or about _________
20 ____, cause the death of the unborn child of a
pregnant woman, by engaging in the [(murder)
(voluntary manslaughter) (involuntary manslaughter)
(rape) (robbery) (maiming) (assault) of] [(burning)
(setting afire) of (a dwelling inhabited by) (a structure
or property known to (be occupied by) (belong to))]
that woman.
(3) Attempting to kill an unborn child.
In that _____________ (personal jurisdiction data),
did (at/on board—location), (subject-matter
jurisdiction data, if required), on or about _________
20 ____, attempt to kill the unborn child of a pregnant
woman, by engaging in the [(murder) (voluntary
manslaughter) (involuntary manslaughter) (rape)
(robbery) (maiming) (assault) of] [(burning) (setting
afire) of (a dwelling inhabited by) (a structure or
property known to (be occupied by) (belong to))] that
woman.
(4) Intentionally killing an unborn child.
In that _____________ (personal jurisdiction data),
did (at/on board—location), (subject-matter
jurisdiction data, if required), on or about _________
20 ____, intentionally kill the unborn child of a
pregnant woman, by engaging in the [(murder)
(voluntary manslaughter) (involuntary manslaughter)
(rape) (robbery) (maiming) (assault) of] [(burning)
(setting afire) of (a dwelling inhabited by) (a structure
or property known to (be occupied by) (belong to))]
that woman.
59. Article 119b (10 U.S.C. 919b)—Child
endangerment
a. Text of statute.
Any person subject to this chapter—
(1) who has a duty for the care of a child under
the age of 16 years; and
(2) who, through design or culpable negligence,
endangers the child’s mental or physical health,
safety, or welfare;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused had a duty for the care of a
certain child;
(2) That the child was under the age of 16 years; and
(3) That the accused endangered the child’s mental
or physical health, safety, or welfare through design or
culpable negligence.
c. Explanation.
(1) Design. “Design” means on purpose,
intentionally, or according to plan and requires specific
intent to endanger the child.
(2) Culpable negligence. Culpable negligence is a
degree of carelessness greater than simple negligence.
It is a negligent act or omission accompanied by a
culpable disregard for the foreseeable consequences to
others of that act or omission. In the context of this
offense, culpable negligence may include acts that,
when viewed in the light of human experience, might
foreseeably result in harm to a child. The age and
maturity of the child, the conditions surrounding the
neglectful conduct, the proximity of assistance
available, the nature of the environment in which the
child may have been left, the provisions made for care
of the child, and the location of the parent or adult
responsible for the child relative to the location of the
child, among others, may be considered in determining
whether the conduct constituted culpable negligence.
(3) Harm. Actual physical or mental harm to the
child is not required. The offense requires that the
accused’s actions reasonably could have caused
physical or mental harm or suffering. However, if the
accused’s conduct does cause actual physical or mental
harm, the potential maximum punishment increases.
See subparagraph 77.c.(1)(c) for an explanation of
grievous bodily harm.
(4) Endanger. “Endanger” means to subject one to a
reasonable probability of harm.
(5) Age of victim as a factor. While this offense may
be committed against any child under 16, the age of the
victim is a factor in the culpable negligence
determination. Leaving a teenager alone for an evening
may not be culpable (or even simple) negligence;
leaving an infant or toddler for the same period might
constitute culpable negligence. On the other hand,
leaving a teenager without supervision for an extended
period while the accused was on temporary duty
outside commuting distance might constitute culpable
negligence.
(6) Duty required. The duty of care is determined by
the totality of the circumstances and may be
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established by statute, regulation, legal parent-child
relationship, mutual agreement, or assumption of
control or custody by affirmative act. When there is no
duty of care of a child, there is no offense under this
paragraph. Thus, there is no offense when a stranger
makes no effort to feed a starving child or an individual
not charged with the care of a child does not prevent
the child from running and playing in the street.
d. Maximum punishment.
(1) Endangerment by design resulting in grievous
bodily harm. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 8 years.
(2) Endangerment by design resulting in harm.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(3) Other cases by design. Dishonorable discharge,
forfeiture of all pay and allowances and confinement
for 4 years.
(4) Endangerment by culpable negligence resulting
in grievous bodily harm. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
(5) Endangerment by culpable negligence resulting
in harm. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 2 years.
(6) Other cases by culpable negligence. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
e. Sample specifications.
(1) Resulting in grievous bodily harm.
In that____________(personal jurisdiction data),
(at/on board—location) (subject-matter jurisdiction
data, if required) on or about ____ 20 __, had a duty
for the care of ________, a child under the age of 16
years and did endanger the (mental health) (physical
health) (safety) (welfare) of said ____________, by
(leaving the said _________ unattended in (his) (her)
quarters for over _________ (hours) (days) with no
adult present in the home) (by failing to obtain medical
care for the said _______’s diabetic condition)
(_________), and that such conduct (was by design)
(constituted culpable negligence) (which resulted in
grievous bodily harm, to wit:________________)
(broken leg) (deep cut) (fractured skull)).
(2) Resulting in harm.
In that _________ (personal jurisdiction data), (at/on
board—location) (subject-matter jurisdiction data, if
required) on or about _________ 20 __, had a duty for
the care of _________, a child under the age of 16
years, and did endanger the (mental health) (physical
health) (safety) (welfare) of said _________, by
(leaving the said _________unattended in (his) (her)
quarters for over _________ (hours) (days) with no
adult present in the home) (by failing to obtain medical
care for the said _________’s diabetic condition)
(______________), and that such conduct (was by
design) (constituted culpable negligence) (which
resulted in (harm, to wit:________) (a black eye)
(bloody nose) (minor cut)).
(3) Other cases.
In that __________(personal jurisdiction data),
(at/on board—location) (subject-matter jurisdiction
data, if required) on or about ______ 20 __, was
responsible for the care of __________, a child under
the age of 16 years, and did endanger the (mental
health) (physical health) (safety) (welfare) of
said________, by (leaving the said _____________
unattended in (his) (her) quarters for over _________
(hours) (days) with no adult present in the home) (by
failing to obtain medical care for the said
___________’s diabetic condition) (___________),
and that such conduct (was by design) (constituted
culpable negligence).
60. Article 120 (10 U.S.C. 920)—Rape and sexual
assault generally
[Note: This statute applies to offenses committed on or
after 1 January 2019. Previous versions of Article 120
are located as follows: for offenses committed on or
before 30 September 2007, see Appendix 20; for
offenses committed during the period 1 October 2007
through 27 June 2012, see Appendix 21; for offenses
committed during the period 28 June 2012 through 31
December 2018, see Appendix 22.]
a. Text of statute.
(a) RAPE.—Any person subject to this chapter
who commits a sexual act upon another person by—
(1) using unlawful force against that other
person;
(2) using force causing or likely to cause death
or grievous bodily harm to any person;
(3) threatening or placing that other person in
fear that any person will be subjected to death,
grievous bodily harm, or kidnapping;
(4) first rendering that other person
unconscious; or
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(5) administering to that other person by force
or threat of force, or without the knowledge or
consent of that person, a drug, intoxicant, or other
similar substance and thereby substantially
impairing the ability of that other person to
appraise or control conduct;
is guilty of rape and shall be punished as a court-
martial may direct.
(b) SEXUAL ASSAULT.—Any person subject to
this chapter who—
(1) commits a sexual act upon another person
by—
(A) threatening or placing that other person
in fear;
(B) making a fraudulent representation that
the sexual act serves a professional purpose; or
(C) inducing a belief by any artifice, pretense,
or concealment that the person is another person;
(2) commits a sexual act upon another person—
(A) without the consent of the other person;
or
(B) when the person knows or reasonably
should know that the other person is asleep,
unconscious, or otherwise unaware that the sexual
act is occurring;
(3) commits a sexual act upon another person
when the other person is incapable of consenting to
the sexual act due to—
(A) impairment by any drug, intoxicant, or
other similar substance, and that condition is
known or reasonably should be known by the
person; or
(B) a mental disease or defect, or physical
disability, and that condition is known or
reasonably should be known by the person;
is guilty of sexual assault and shall be punished as a
court-martial may direct.
(c) AGGRAVATED SEXUAL CONTACT.—
Any person subject to this chapter who commits or
causes sexual contact upon or by another person, if
to do so would violate subsection (a) (rape) had the
sexual contact been a sexual act, is guilty of
aggravated sexual contact and shall be punished as
a court-martial may direct.
(d) ABUSIVE SEXUAL CONTACT.—Any
person subject to this chapter who commits or
causes sexual contact upon or by another person, if
to do so would violate subsection (b) (sexual assault)
had the sexual contact been a sexual act, is guilty of
abusive sexual contact and shall be punished as a
court-martial may direct.
(e) PROOF OF THREAT.—In a prosecution
under this section, in proving that a person made a
threat, it need not be proven that the person
actually intended to carry out the threat or had the
ability to carry out the threat.
(f) DEFENSES.—An accused may raise any
applicable defenses available under this chapter or
the Rules for Court-Martial. Marriage is not a
defense for any conduct in issue in any prosecution
under this section.
(g) DEFINITIONS.—In this section:
(1) SEXUAL ACT.—The term “sexual act”
means—
(A) the penetration, however slight, of the
penis into the vulva or anus or mouth;
(B) contact between the mouth and the penis,
vulva, scrotum, or anus; or
(C) the penetration, however slight, of the
vulva or penis or anus of another by any part of the
body or any object, with an intent to abuse,
humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(2) SEXUAL CONTACT.—The term “sexual
contact” means touching, or causing another
person to touch, either directly or through the
clothing, the vulva, penis, scrotum, anus, groin,
breast, inner thigh, or buttocks of any person, with
an intent to abuse, humiliate, harass, or degrade
any person or to arouse or gratify the sexual desire
of any person. Touching may be accomplished by
any part of the body or an object.
(3) GRIEVOUS BODILY HARM.—The term
“grievous bodily harm” means serious bodily
injury. It includes fractured or dislocated bones,
deep cuts, torn members of the body, serious
damage to internal organs, and other severe bodily
injuries. It does not include minor injuries such as
a black eye or a bloody nose.
(4) FORCE.—The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or
violence as is sufficient to overcome, restrain, or
injure a person; or
(C) inflicting physical harm sufficient to
coerce or compel submission by the victim.
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(5) UNLAWFUL FORCE.—The term
“unlawful force” means an act of force done
without legal justification or excuse.
(6) THREATENING OR PLACING THAT
OTHER PERSON IN FEAR.—The term
“threatening or placing that other person in fear”
means a communication or action that is of
sufficient consequence to cause a reasonable fear
that non-compliance will result in the victim or
another person being subjected to the wrongful
action contemplated by the communication or
action.
(7) CONSENT.—
(A) The term “consent” means a freely given
agreement to the conduct at issue by a competent
person. An expression of lack of consent through
words or conduct means there is no consent. Lack
of verbal or physical resistance does not constitute
consent. Submission resulting from the use of force,
threat of force, or placing another person in fear
also does not constitute consent. A current or
previous dating or social or sexual relationship by
itself or the manner of dress of the person involved
with the accused in the conduct at issue does not
constitute consent.
(B) A sleeping, unconscious, or incompetent
person cannot consent. A person cannot consent to
force causing or likely to cause death or grievous
bodily harm or to being rendered unconscious. A
person cannot consent while under threat or in fear
or under the circumstances described in
subparagraph (B) or (C) of subsection (b)(1).
(C) All the surrounding circumstances are to
be considered in determining whether a person
gave consent.
(8) INCAPABLE OF CONSENTING.—The
term “incapable of consenting” means the person
is—
(A) incapable of appraising the nature of the
conduct at issue; or
(B) physically incapable of declining
participation in, or communicating unwillingness to
engage in, the sexual act at issue.
b. Elements.
(1) Rape.
(a) By unlawful force.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so with unlawful force.
(b) By force causing or likely to cause death or
grievous bodily harm.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by using force
causing or likely to cause death or grievous bodily
harm to any person.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by threatening or
placing that other person in fear that any person would
be subjected to death, grievous bodily harm, or
kidnapping.
(d) By first rendering that other person
unconscious.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by first rendering
that other person unconscious.
(e) By administering a drug, intoxicant, or other
similar substance.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by administering to
that other person by force or threat of force, or without
the knowledge or consent of that person, a drug,
intoxicant, or other similar substance and thereby
substantially impairing the ability of that other person
to appraise or control conduct.
(2) Sexual assault.
(a) By threatening or placing that other person in
fear.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by threatening or
placing that other person in fear.
(b) By fraudulent representation.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by making a
fraudulent representation that the sexual act served a
professional purpose.
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(c) By artifice, pretense, or concealment.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so by inducing a belief
by any artifice, pretense, or concealment that the
accused was another person.
(d) Without consent.
(i) That the accused committed a sexual act
upon another person; and
(ii) That the accused did so without the consent
of the other person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring.
(i) That the accused committed a sexual act
upon another person;
(ii) That the other person was asleep,
unconscious, or otherwise unaware that the sexual act
was occurring; and
(iii) That the accused knew or reasonably should
have known that the other person was asleep,
unconscious, or otherwise unaware that the sexual act
was occurring.
(f) When the other person is incapable of
consenting.
(i) That the accused committed a sexual act
upon another person;
(ii) That the other person was incapable of
consenting to the sexual act due to:
(A) Impairment by any drug, intoxicant or
other similar substance; or
(B) A mental disease or defect, or physical
disability; and
(iii) That the accused knew or reasonably should
have known of that condition.
(3) Aggravated sexual contact.
(a) By force.
(i) That the accused committed sexual contact
upon or by another person; and
(ii) That the accused did so with unlawful force.
(b) By force causing or likely to cause death or
grievous bodily harm.
(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so by using force
causing or likely to cause death or grievous bodily
harm to any person.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping.
(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so by threatening or
placing that other person in fear that any person would
be subjected to death, grievous bodily harm, or
kidnapping.
(d) By first rendering that other person
unconscious.
(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so by first rendering
that other person unconscious.
(e) By administering a drug, intoxicant, or other
similar substance.
(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so by administering to
that other person by force or threat of force, or without
the knowledge or consent of that person, a drug,
intoxicant, or other similar substance and thereby
substantially impairing the ability of that other person
to appraise or control conduct.
(4) Abusive sexual contact.
(a) By threatening or placing that other person in
fear.
(i) That the accused committed sexual contact
upon or by another person; and
(ii) That the accused did so by threatening or
placing that other person in fear.
(b) By fraudulent representation.
(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so by making a
fraudulent representation that the sexual act served a
professional purpose.
(c) By artifice, pretense, or concealment.
(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so by inducing a belief
by any artifice, pretense, or concealment that the
accused was another person.
(d) Without consent.
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(i) That the accused committed sexual contact
upon another person; and
(ii) That the accused did so without the consent
of the other person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the contact is occurring.
(i) That the accused committed sexual contact
upon another person;
(ii) That the other person was asleep,
unconscious, or otherwise unaware that the sexual
contact was occurring; and
(iii) That the accused knew or reasonably should
have known that the other person was asleep,
unconscious, or otherwise unaware that the sexual
contact was occurring.
(f) When the other person is incapable of
consenting.
(i) That the accused committed sexual contact
upon another person;
(ii) That the other person was incapable of
consenting to the sexual contact due to:
(A) Impairment by any drug, intoxicant or
other similar substance; or
(B) A mental disease or defect, or physical
disability; and
(iii) That the accused knew or reasonably should
have known of that condition.
c. Explanation.
(1) In general. Sexual offenses have been separated
into three statutes: offenses against adults (Art. 120),
offenses against children (Art. 120b), and other
offenses (Art. 120c).
(2) Definitions. The terms are defined in
subparagraph 60.a.(g).
(3) Victim sexual behavior or predisposition and
privilege. See Mil. R. Evid. 412 concerning rules of
evidence relating to the sexual behavior or
predisposition of the victim of an alleged sexual
offense. See Mil. R. Evid. 514 concerning rules of
evidence relating to privileged communications
between the victim and victim advocate.
(4) Scope of “threatening or placing that other
person in fear.” For purposes of this offense, the
phrase “wrongful action” within Article 120(g)(6)
(defining “threatening or placing that other person in
fear”) includes an abuse of military rank, position, or
authority in order to engage in a sexual act or sexual
contact with a victim. This includes, but is not limited
to, threats to initiate an adverse personnel action unless
the victim submits to the accused’s requested sexual
act or contact; and threats to withhold a favorable
personnel action unless the victim submits to the
accused’s requested sexual act or sexual contact.
Superiority in rank is a factor in, but not dispositive of,
whether a reasonable person in the position of the
victim would fear that his or her noncompliance with
the accused’s desired sexual act or sexual contact
would result in the threatened wrongful action
contemplated by the communication or action.
d. Maximum punishment.
(1) Rape. Forfeiture of all pay and allowances and
confinement for life without eligibility for parole.
Mandatory minimum—Dismissal or dishonorable
discharge.
(2) Sexual assault. Forfeiture of all pay and
allowances, and confinement for 30 years. Mandatory
minimum—Dismissal or dishonorable discharge.
(3) Aggravated sexual contact. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
(4) Abusive sexual contact. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 7 years.
e. Sample specifications.
(1) Rape.
(a) By force.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about________ 20__, commit
a sexual act upon ________________ by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and __________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:__________, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]], by using unlawful force.
(b) By force causing or likely to cause death or
grievous bodily harm.
In that ___________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about __________ 20__,
commit a sexual act upon __________ by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
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_______’s mouth and ____________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (__________’s body part) (an
object) to wit:___________, with an intent to [(abuse)
(humiliate) (harass) (degrade) _______] [(arouse)
(gratify) the sexual desire of _________]], by using
force likely to cause death or grievous bodily harm to
_______, to wit:______________.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ___________ 20______,
commit a sexual act upon __________ by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ____________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (___________’s body part) (an
object) to wit:______, with an intent to [(abuse)
(humiliate) (harass) (degrade) _______] [(arouse)
(gratify) the sexual desire of _________]], by
(threatening ______) (placing ______ in fear) that
___________ would be subjected to (death) (grievous
bodily harm) (kidnapping).
(d) By first rendering that other person
unconscious.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _________ 20____,
commit a sexual act upon __________ by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ______________’s (penis)
(vulva) (scrotum) (anus)] [penetrating _______’s
(vulva) (penis) (anus) with (______’s body part) (an
object) to wit:______, with an intent to [(abuse)
(humiliate) (harass) (degrade) _______] [(arouse)
(gratify) the sexual desire of _________]], by first
rendering __________ unconscious by____________.
(e) By administering a drug, intoxicant, or other
similar substance.
In that ___________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _________ 20__,
commit a sexual act upon ___________ by
[penetrating ___________’s (vulva) (anus) (mouth)
with __________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (__________’s body part) (an
object) to wit:___________, with an intent to [(abuse)
(humiliate) (harass) (degrade) _______] [(arouse)
(gratify) the sexual desire of _________]], by
administering to __________ (by force) (by threat of
force) (without the knowledge or permission of
__________) a (drug) (intoxicant) (list other similar
substance), to wit: ___________, thereby substantially
impairing the ability of __________to appraise or
control (his) (her) conduct.
(2) Sexual assault.
(a) By threatening or placing that other person in
fear.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________20__, commit
a sexual act upon _________, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ___________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (_________’s body part) (an
object) to wit:______, with an intent to [(abuse)
(humiliate) (harass) (degrade) _______] [(arouse)
(gratify) the sexual desire of _________]], by
(threatening _______) (placing_______ in fear).
(b) By fraudulent representation.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _________20__, commit
a sexual act upon ___________, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]], by making a fraudulent
representation that the sexual act served a professional
purpose, to wit:_______________.
(c) By false pretense.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________20__, commit
a sexual act upon __________, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
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(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]], by inducing a belief by
(artifice) (pretense) (concealment) that the said
accused was another person.
(d)Without consent.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________20__, commit
a sexual act upon __________, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus),] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]], without the consent of
___________.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ______20__, commit a
sexual act upon_________, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]], when (he) (she) knew or
reasonably should have known that _______ was
(asleep) (unconscious) (unaware the sexual act was
occurring due to __________).
(f) When the other person is incapable of
consenting.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20__, commit
a sexual act upon _______, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]], when ________was
incapable of consenting to the sexual act because (he)
(she) [was impaired by (a drug, to wit: __________)
(an intoxicant, to wit:_________) (________)] [had a
(mental disease, to wit:___________) (mental defect,
to wit:___________) (physical disability, to
wit:__________)], and the accused (knew) (reasonably
should have known) of that condition.
(3) Aggravated sexual contact.
(a) By force.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _______ 20____,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________] by using unlawful force.
(b) By force causing or likely to cause death or
grievous bodily harm.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _______ 20__, [(touch)
(cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], by using force likely to cause
death or grievous bodily harm to ________, to wit:
___________.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about __________ 20__,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], by (threatening _________)
(placing __________ in fear) that ___________ would
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be subjected to (death) (grievous bodily harm)
(kidnapping).
(d) By first rendering that other person
unconscious.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20____,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], by rendering _________
unconscious by__________________.
(e) By administering a drug, intoxicant, or other
similar substance.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ___________ 20___,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], by administering to _______ (by
force) (by threat of force) (without the knowledge or
permission of _________) a (drug) (intoxicant)
(______) thereby substantially impairing the ability of
_______ to appraise or control (his) (her) conduct..
(4) Abusive sexual contact.
(a) By threatening or placing that other person in
fear.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about __________ 20__,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], by (threatening _______)
(placing __________ in fear).
(b) By fraudulent representation.
In that ____________ (personal jurisdiction data),
did (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ________
20__, [(touch) (cause ____ to touch)] [(directly)
(through the clothing)] the (vulva) (penis) (scrotum)
(anus) (groin) (breast) (inner thigh) (buttocks) of
________, with [(______’s body part) (an object), to
wit: _______] with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________], by making a fraudulent
representation that the sexual contact served a
professional purpose, to wit: __________.
(c) By false pretense.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _________ 20__,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], by inducing a belief by (artifice)
(pretense) (concealment) that the said accused was
another person.
(d) Without consent.
In that ______(personal jurisdiction data), did (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about _______ 20___, [(touch) (cause
____ to touch)] [(directly) (through the clothing)] the
(vulva) (penis) (scrotum) (anus) (groin) (breast) (inner
thigh) (buttocks) of ________, with [(______’s body
part) (an object), to wit: _______] with an intent to
[(abuse) (humiliate) (harass) (degrade) ______]
[(arouse) (gratify) the sexual desire of ________]
without the consent of _____.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring.
In that ______ (personal jurisdiction data), did (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about __________ 20____, [(touch)
(cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], when (he) (she) (knew)
(reasonably should have known) that __________ was
(asleep) (unconscious) (unaware the sexual contact
was occurring due to ___________).
(f) When that person is incapable of consenting.
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In that _______ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _______ 20_____,
[(touch) (cause ____ to touch)] [(directly) (through the
clothing)] the (vulva) (penis) (scrotum) (anus) (groin)
(breast) (inner thigh) (buttocks) of ________, with
[(______’s body part) (an object), to wit: _______]
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________], when _________ was incapable
of consenting to the sexual contact because (he) (she)
[was impaired by (a drug, to wit: ____________) (an
intoxicant, to wit: __________) (_________)] [had a
(mental disease, to wit: _________) (mental defect, to
wit: _____________) (physical disability, to wit:
____________)] and the accused (knew) (reasonably
should have known) of that condition..
61. Article 120a (10 U.S.C. 920a)—Mails: deposit of
obscene matter
a. Text of statute.
Any person subject to this chapter who, wrongfully
and knowingly, deposits obscene matter for mailing
and delivery shall be punished as a court-martial
may direct.
b. Elements.
(1) That the accused deposited or caused to be
deposited in the mails certain matter for mailing and
delivery;
(2) That the act was done wrongfully and knowingly;
and
(3) That the matter was obscene.
c. Explanation. Whether something is obscene is a
question of fact. Obscene is synonymous with indecent
as the latter is defined in subparagraph 104.c. The
matter must violate community standards of decency
or obscenity and must go beyond customary limits of
expression. “Knowingly” means the accused deposited
the material with knowledge of its nature. Knowingly
depositing obscene matter in the mails is wrongful if it
is done without legal justification or authorization.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification.
In that ______________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about __ 20____,
wrongfully and knowingly (deposit) (cause to be
deposited) in the (United States) (________) mails, for
mailing and delivery a (letter) (picture) (_________)
(containing) (portraying) (suggesting) (__________)
certain obscene matters, to wit: __________.
62. Article 120b (10 U.S.C. 920b)—Rape and sexual
assault of a child
[Note: This statute applies to offenses committed on or
after 1 January 2019. Previous versions of child sexual
offenses are located as follows: for offenses committed
on or before 30 September 2007, see Appendix 20; for
offenses committed during the period 1 October 2007
through 27 June 2012, see Appendix 21; for offenses
committed during the period 28 June 2012 through 31
December 2018, see Appendix 22.]
a. Text of statute.
(a) RAPE OF A CHILD.—Any person subject to
this chapter who—
(1) commits a sexual act upon a child who has
not attained the age of 12 years; or
(2) commits a sexual act upon a child who has
attained the age of 12 years by—
(A) using force against any person;
(B) threatening or placing that child in fear;
(C) rendering that child unconscious; or
(D) administering to that child a drug,
intoxicant, or other similar substance;
is guilty of rape of a child and shall be punished as
a court-martial may direct.
(b) SEXUAL ASSAULT OF A CHILD.—Any
person subject to this chapter who commits a sexual
act upon a child who has attained the age of 12 years
is guilty of sexual assault of a child and shall be
punished as a court-martial may direct.
(c) SEXUAL ABUSE OF A CHILD.—Any
person subject to this chapter who commits a lewd
act upon a child is guilty of sexual abuse of a child
and shall be punished as a court-martial may direct.
(d) AGE OF CHILD.—
(1) UNDER 12 YEARS.—In a prosecution
under this section, it need not be proven that the
accused knew the age of the other person engaging
in the sexual act or lewd act. It is not a defense that
the accused reasonably believed that the child had
attained the age of 12 years.
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(2) UNDER 16 YEARS.—In a prosecution
under this section, it need not be proven that the
accused knew that the other person engaging in the
sexual act or lewd act had not attained the age of 16
years, but it is a defense in a prosecution under
subsection (b) (sexual assault of a child) or
subsection (c) (sexual abuse of a child), which the
accused must prove by a preponderance of the
evidence, that the accused reasonably believed that
the child had attained the age of 16 years, if the
child had in fact attained at least the age of 12 years.
(e) PROOF OF THREAT.—In a prosecution
under this section, in proving that a person made a
threat, it need not be proven that the person
actually intended to carry out the threat or had the
ability to carry out the threat.
(f) MARRIAGE.—In a prosecution under
subsection (b) (sexual assault of a child) or
subsection (c) (sexual abuse of a child), it is a
defense, which the accused must prove by a
preponderance of the evidence, that the persons
engaging in the sexual act or lewd act were at that
time married to each other, except where the
accused commits a sexual act upon the person when
the accused knows or reasonably should know that
the other person is asleep, unconscious, or
otherwise unaware that the sexual act is occurring
or when the other person is incapable of consenting
to the sexual act due to impairment by any drug,
intoxicant, or other similar substance, and that
condition was known or reasonably should have
been known by the accused.
(g) CONSENT.—Lack of consent is not an
element and need not be proven in any prosecution
under this section. A child not legally married to the
person committing the sexual act, lewd act, or use
of force cannot consent to any sexual act, lewd act,
or use of force.
(h) DEFINITIONS.—In this section:
(1) SEXUAL ACT AND SEXUAL
CONTACT.—The terms “sexual act” and “sexual
contact” have the meanings given those terms in
section 920(g) of this title (article 120(g)), except
that the term “sexual act” also includes the
intentional touching, not through the clothing, of
the genitalia of another person who has not attained
the age of 16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.
(2) FORCE.—The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or
violence as is sufficient to overcome, restrain, or
injure a child; or
(C) inflicting physical harm.
In the case of a parent-child or similar
relationship, the use or abuse of parental or similar
authority is sufficient to constitute the use of force.
(3) THREATENING OR PLACING THAT
CHILD IN FEAR.—The term “threatening or
placing that child in fear” means a communication
or action that is of sufficient consequence to cause
the child to fear that non-compliance will result in
the child or another person being subjected to the
action contemplated by the communication or
action.
(4) CHILD.—The term “child” means any
person who has not attained the age of 16 years.
(5) LEWD ACT.—The term “lewd act”
means—
(A) any sexual contact with a child;
(B) intentionally exposing one’s genitalia,
anus, buttocks, or female areola or nipple to a child
by any means, including via any communication
technology, with an intent to abuse, humiliate, or
degrade any person, or to arouse or gratify the
sexual desire of any person;
(C) intentionally communicating indecent
language to a child by any means, including via any
communication technology, with an intent to abuse,
humiliate, or degrade any person, or to arouse or
gratify the sexual desire of any person; or
(D) any indecent conduct, intentionally done
with or in the presence of a child, including via any
communication technology, that amounts to a form
of immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or
deprave morals with respect to sexual relations.
b. Elements.
(1) Rape of a child.
(a) Rape of a child who has not attained the age of
12.
(i) That the accused committed a sexual act
upon a child; and
(ii) That at the time of the sexual act the child
had not attained the age of 12 years.
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(b) Rape by force of a child who has attained the
age of 12.
(i) That the accused committed a sexual act
upon a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained the
age of 16 years; and
(iii) That the accused did so by using force
against that child or any other person.
(c) Rape by threatening or placing in fear a child
who has attained the age of 12.
(i) That the accused committed a sexual act
upon a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained the
age of 16 years; and
(iii) That the accused did so by threatening the
child or another person or placing that child in fear.
(d) Rape by rendering unconscious a child who
has attained the age of 12.
(i) That the accused committed a sexual act
upon a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained the
age of 16 years; and
(iii) That the accused did so by rendering that
child unconscious.
(e) Rape by administering a drug, intoxicant, or
other similar substance to a child who has attained the
age of 12.
(i) That the accused committed a sexual act
upon a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained the
age of 16 years; and
(iii) That the accused did so by administering to
that child a drug, intoxicant, or other similar substance.
(2) Sexual assault of a child.
(a) Sexual assault of a child who has attained the
age of 12.
(i) That the accused committed a sexual act
upon a child; and
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained the
age of 16 years.
(3) Sexual abuse of a child. That the accused
committed a lewd act upon a child.
c. Explanation.
(1) In general. Sexual offenses have been separated
into three statutes: offenses against adults (120),
offenses against children (120b), and other offenses
(120c).
(2) Definitions. Terms not defined in this paragraph
are defined in subparagraph 60.a.(g), supra, except that
the term “sexual act” also includes the intentional
touching, not through the clothing, of the genitalia of
another person who has not attained the age of 16 years
with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.
d. Maximum punishment.
(1) Rape of a child. Forfeiture of all pay and
allowances, and confinement for life without eligibility
for parole. Mandatory minimum—Dismissal or
dishonorable discharge.
(2) Sexual assault of a child. Forfeiture of all pay and
allowances, and confinement for 30 years. Mandatory
minimum—Dismissal or dishonorable discharge.
(3) Sexual abuse of a child.
(a) Cases involving sexual contact. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
(b) Other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 15 years.
e. Sample specifications.
(1) Rape of a child.
(a) Rape of a child who has not attained the age of
12.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about________ 20__, commit a sexual
act upon ________________, a child who had not
attained the age of 12 years, by [penetrating
___________’s (vulva) (anus) (mouth) with
__________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________ ]] [intentionally touching,
not through the clothing, the genitalia of _________,
with an intent to [(abuse) (humiliate) (harass)
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(degrade) _______] [(arouse) (gratify) the sexual
desire of _________]].
(b) Rape by force of a child who has attained the
age of 12 years.
In that ___________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _______ 20__, commit a sexual
act upon __________, a child who had attained the age
of 12 years but had not attained the age of 16 years, by
[penetrating ___________’s (vulva) (anus) (mouth)
with __________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]] [intentionally touching,
not through the clothing, the genitalia of _________,
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________]], by using force against
________, to wit: ______________.
(c) Rape by threatening or placing in fear a child
who has attained the age of 12 years.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about ______ 20__, commit a sexual
act upon __________, a child who had attained the age
of 12 years but had not attained the age of 16 years, by
[penetrating ___________’s (vulva) (anus) (mouth)
with __________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]] [intentionally touching,
not through the clothing, the genitalia of _________,
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________]], by (threatening ______)
(placing _______ in fear).
(d) Rape by rendering unconscious of a child who
has attained the age of 12 years.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20__, commit a sexual act
upon ________, a child who had attained the age of 12
years but had not attained the age of 16 years, by
[penetrating ___________’s (vulva) (anus) (mouth)
with __________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]] [intentionally touching,
not through the clothing, the genitalia of _________,
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________]], by rendering __________
unconscious by ___________________.
(e) Rape by administering a drug, intoxicant, or
other similar substance to a child who has attained the
age of 12 years.
In that ___________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about ______ 20__, commit a sexual
act upon __________, a child who had attained the age
of 12 years but had not attained the age of 16 years, by
[penetrating ___________’s (vulva) (anus) (mouth)
with __________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________ ]] [intentionally touching,
not through the clothing, the genitalia of _________,
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________]], by administering to
____________ a (drug) (intoxicant) (____), to wit:
_____________.
(2) Sexual assault of a child.
(a) Sexual assault of a child who has attained the
age of 12 years.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _____ 20__, commit a sexual act
upon _______, a child who had attained the age of 12
years but had not attained the age of 16 years, by
[penetrating ___________’s (vulva) (anus) (mouth)
with __________’s penis] [causing contact between
_______’s mouth and ________’s (penis) (vulva)
(scrotum) (anus)] [penetrating _______’s (vulva)
(penis) (anus) with (______’s body part) (an object) to
wit:______, with an intent to [(abuse) (humiliate)
(harass) (degrade) _______] [(arouse) (gratify) the
sexual desire of _________]] [intentionally touching,
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not through the clothing, the genitalia of _________,
with an intent to [(abuse) (humiliate) (harass)
(degrade) _______] [(arouse) (gratify) the sexual
desire of _________]].
(3) Sexual abuse of a child.
(a) Sexual abuse of a child involving sexual
contact.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about ______ 20__, commit a lewd act
upon __________, a child who had not attained the age
of 16 years, by (touching) (causing _____ to touch) the
(vulva) (penis) (scrotum) (anus) (groin) (breast) (inner
thigh) (buttocks) of________, with [(______’s body
part) (an object) to wit: _______], with an intent to
[(abuse) (humiliate) (harass) (degrade) __________ ]
[(arouse) (gratify) the sexual desire of __________].
(b) Sexual abuse of a child involving indecent
exposure.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about ____ 20__, commit a lewd act
upon _______, a child who had not attained the age of
16 years, by intentionally exposing [his (genitalia)
(anus) (buttocks)] [her (genitalia) (anus) (buttocks)
(areola) (nipple)] to __________, with an intent to
[(abuse) (humiliate) (degrade) ______] [(arouse)
(gratify) the sexual desire of __________].
(c) Sexual abuse of a child involving indecent
communication.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _______ 20__, commit a lewd
act upon __________, a child who had not attained the
age of 16 years, by intentionally communicating to
________ indecent language to wit: ___________,
with an intent to [(abuse) (humiliate) (degrade)_____]
[(arouse) (gratify) the sexual desire of _________].
(d) Sexual abuse of a child involving indecent
conduct.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _______ 20__, commit a lewd
act upon __________, a child who had not attained the
age of 16 years, by engaging in indecent conduct, to
wit: _________, intentionally done (with) (in the
presence of) _______, which conduct amounted to a
form of immorality relating to sexual impurity which
is grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations.
63. Article 120c (10 U.S.C. 920c)—Other sexual
misconduct
[Previous versions of offenses included in Article 120c
are located as follows: for the offense of indecent
exposure committed on or before 30 September 2007,
a previous version of Article 134, indecent exposure,
applies and is located at Appendix 20; for the offense
of forcible pandering committed on or before 30
September 2007, a previous version of Article 134,
pandering and prostitution, applies and is located at
Appendix 20; for Article 120c offenses committed
during the period 1 October 2007 through 27 June
2012, see Appendix 21; for Article 120c offenses
committed during the period 28 June 2012 through 31
December 2018, the previous version of Article 120c
applies and is located at Appendix 22.]
a. Text of statute.
(a) INDECENT VIEWING, VISUAL
RECORDING, OR BROADCASTING.—Any
person subject to this chapter who, without legal
justification or lawful authorization—
(1) knowingly and wrongfully views the private
area of another person, without that other person’s
consent and under circumstances in which that
other person has a reasonable expectation of
privacy;
(2) knowingly photographs, videotapes, films,
or records by any means the private area of another
person, without that other person’s consent and
under circumstances in which that other person has
a reasonable expectation of privacy; or
(3) knowingly broadcasts or distributes any
such recording that the person knew or reasonably
should have known was made under the
circumstances proscribed in paragraphs (1) and
(2);
is guilty of an offense under this section and shall be
punished as a court-martial may direct.
(b) FORCIBLE PANDERING.—Any person
subject to this chapter who compels another person
to engage in an act of prostitution with any person
is guilty of forcible pandering and shall be punished
as a court-martial may direct.
(c) INDECENT EXPOSURE.—Any person
subject to this chapter who intentionally exposes, in
an indecent manner, the genitalia, anus, buttocks,
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or female areola or nipple is guilty of indecent
exposure and shall by punished as a court-martial
may direct.
(d) DEFINITIONS.—In this section:
(1) ACT OF PROSTITUTION.—The term
“act of prostitution” means a sexual act or sexual
contact (as defined in section 920(g) of this title
(article 120(g))) on account of which anything of
value is given to, or received by, any person.
(2) PRIVATE AREA.—The term “private
area” means the naked or underwear-clad
genitalia, anus, buttocks, or female areola or nipple.
(3) REASONABLE EXPECTATION OF
PRIVACY.—The term “under circumstances in
which that other person has a reasonable
expectation of privacy” means—
(A) circumstances in which a reasonable
person would believe that he or she could disrobe in
privacy, without being concerned that an image of
a private area of the person was being captured; or
(B) circumstances in which a reasonable
person would believe that a private area of the
person would not be visible to the public.
(4) BROADCAST.—The term “broadcast”
means to electronically transmit a visual image with
the intent that it be viewed by a person or persons.
(5) DISTRIBUTE.—The term “distribute”
means delivering to the actual or constructive
possession of another, including transmission by
electronic means.
(6) INDECENT MANNER.—The term
“indecent manner” means conduct that amounts to
a form of immorality relating to sexual impurity
which is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite sexual desire
or deprave morals with respect to sexual relations.
b. Elements.
(1) Indecent viewing.
(a) That the accused, without legal justification or
lawful authorization, knowingly and wrongfully
viewed the private area of another person;
(b) That said viewing was without the other
person’s consent; and
(c) That said viewing took place under
circumstances in which the other person had a
reasonable expectation of privacy.
(2) Indecent recording.
(a) That the accused, without legal justification or
lawful authorization, knowingly recorded
(photographed, videotaped, filmed, or recorded by any
means) the private area of another person;
(b) That said recording was without the other
person’s consent; and
(c) That said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy.
(3) Broadcasting of an indecent recording.
(a) That the accused, without legal justification or
lawful authorization, knowingly broadcast a certain
recording of another person’s private area;
(b) That said recording was made without the
other person’s consent;
(c) That the accused knew or reasonably should
have known that the recording was made without the
other person’s consent;
(d) That said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy; and
(e) That the accused knew or reasonable should
have known that said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy.
(4) Distribution of an indecent recording.
(a) That the accused, without legal justification or
lawful authorization, knowingly distributed a certain
recording of another person’s private area;
(b) That said recording was made without the
other person’s consent;
(c) That the accused knew or reasonably should
have known that said recording was made without the
other person’s consent;
(d) That said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy; and
(e) That the accused knew or reasonably should
have known that said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy.
(5) Forcible pandering.
That the accused compelled another person to engage
in an act of prostitution with any person.
(6) Indecent exposure.
(a) That the accused exposed the accused’s
genitalia, anus, buttocks, or female areola or nipple;
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(b) That the exposure was in an indecent manner;
and
(c) That the exposure was intentional.
c. Explanation.
(1) In general. Sexual offenses have been separated
into three statutes: offenses against adults (120),
offenses against children (120b), and other offenses
(120c).
(2) Definitions.
(a) Recording. A recording is a still or moving
visual image captured or recorded by any means.
(b) Other terms are defined in subparagraph
60.a.(g), supra.
d. Maximum punishment.
(1) Indecent viewing. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
(2) Indecent recording. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
(3) Broadcasting or distribution of an indecent
recording. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 7 years.
(4) Forcible pandering. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 20 years.
(5) Indecent exposure. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
e. Sample specifications.
(1) Indecent viewing, recording, or broadcasting.
(a) Indecent viewing.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _______ 20__, without legal
justification or lawful authorization, knowingly and
wrongfully view the private area of __________,
without (his) (her) consent and under circumstances in
which (he) (she) had a reasonable expectation of
privacy.
(b) Indecent recording.
In that ________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _______ 20__, without legal
justification or lawful authorization, knowingly
(photograph) (videotape) (film) (make a recording of)
the private area of __________, without (his) (her)
consent and under circumstances in which (he) (she)
had a reasonable expectation of privacy.
(c) Broadcasting or distributing an indecent
recording.
In that _________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), on or about _______ 20__, without legal
justification or lawful authorization, knowingly
(broadcast) (distribute) a recording of the private area
of __________, when the said accused knew or
reasonably should have known that the said recording
was made without the consent of _____________ and
under circumstances in which (he) (she) had a
reasonable expectation of privacy.
64. Article 121 (10 U.S.C. 921)—Larceny and
wrongful appropriation
a. Text of statute.
(a) Any person subject to this chapter who
wrongfully takes, obtains, or withholds, by any
means, from the possession of the owner or of any
other person any money, personal property, or
article of value of any kind—
(1) with intent permanently to deprive or
defraud another person of the use and benefit of
property or to appropriate it to his own use or the
use of any person other than the owner, steals that
property and is guilty of larceny; or
(2) with intent temporarily to deprive or
defraud another person of the use and benefit of
property or to appropriate it to his own use or the
use of any person other than the owner,
is guilty of wrongful appropriation.
(b) Any person found guilty of larceny or
wrongful appropriation shall be punished as a
court-martial may direct.
b. Elements.
(1) Larceny.
(a) That the accused wrongfully took, obtained, or
withheld certain property from the possession of the
owner or of any other person;
(b) That the property belonged to a certain person;
(c) That the property was of a certain value, or of
some value; and
(d) That the taking, obtaining, or withholding by
the accused was with the intent permanently to deprive
or defraud another person of the use and benefit of the
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property or permanently to appropriate the property for
the use of the accused or for any person other than the
owner.
[Note: If the property is alleged to be military property,
as defined in subparagraph 64.c.(1)(h), add the
following element]
(e) That the property was military property.
(2) Wrongful appropriation.
(a) That the accused wrongfully took, obtained, or
withheld certain property from the possession of the
owner or of any other person;
(b) That the property belonged to a certain person;
(c) That the property was of a certain value, or of
some value; and
(d) That the taking, obtaining, or withholding by
the accused was with the intent temporarily to deprive
or defraud another person of the use and benefit of the
property or temporarily to appropriate the property for
the use of the accused or for any person other than the
owner.
c. Explanation.
(1) Larceny.
(a) In general. A wrongful taking with intent
permanently to deprive includes the common law
offense of larceny; a wrongful obtaining with intent
permanently to defraud includes the offense formerly
known as obtaining by false pretense; and a wrongful
withholding with intent permanently to appropriate
includes the offense formerly known as embezzlement.
Any of the various types of larceny under Article 121
may be charged and proved under a specification
alleging that the accused did steal the property in
question.
(b) Taking, obtaining, or withholding. There must
be a taking, obtaining, or withholding of the property
by the thief. For instance, there is no taking if the
property is connected to a building by a chain and the
property has not been disconnected from the building;
property is not obtained by merely acquiring title
thereto without exercising some possessory control
over it. As a general rule, however, any movement of
the property or any exercise of dominion over it is
sufficient if accompanied by the requisite intent. Thus,
if an accused enticed another’s horse into the accused’s
stable without touching the animal, or procured a
railroad company to deliver another’s trunk by
changing the check on it, or obtained the delivery of
another’s goods to a person or place designated by the
accused, or had the funds of another transferred to the
accused’s bank account, the accused is guilty of
larceny if the other elements of the offense have been
proved. A person may obtain the property of another
by acquiring possession without title, and one who
already has possession of the property of another may
obtain it by later acquiring title to it. A withholding
may arise as a result of a failure to return, account for,
or deliver property to its owner when a return,
accounting, or delivery is due, even if the owner has
made no demand for the property, or it may arise as a
result of devoting property to a use not authorized by
its owner. Generally, this is so whether the person
withholding the property acquired it lawfully or
unlawfully. See subparagraph c.(1)(f) of this
paragraph. However, acts which constitute the offense
of unlawfully receiving, buying, or concealing stolen
property or of being an accessory after the fact are not
included within the meaning of withholds. Therefore,
neither a receiver of stolen property nor an accessory
after the fact can be convicted of larceny on that basis
alone. The taking, obtaining, or withholding must be of
specific property. A debtor does not withhold specific
property from the possession of a creditor by failing or
refusing to pay a debt, for the relationship of debtor and
creditor does not give the creditor a possessory right in
any specific money or other property of the debtor.
(c) Ownership of the property.
(i) In general. Article 121 requires that the
taking, obtaining, or withholding be from the
possession of the owner or of any other person. Care,
custody, management, and control are among the
definitions of possession.
(ii) Owner. “Owner” refers to the person who,
at the time of the taking, obtaining, or withholding, had
the superior right to possession of the property in the
light of all conflicting interests therein which may be
involved in the particular case. For instance, an
organization is the true owner of its funds as against
the custodian of the funds charged with the larceny
thereof.
(iii) Any other person. “Any other person”
means any person—even a person who has stolen the
property—who has possession or a greater right to
possession than the accused. In pleading a violation of
this article, the ownership of the property may be
alleged to have been in any person, other than the
accused, who at the time of the theft was a general
owner or a special owner thereof. A general owner of
property is a person who has title to it, whether or not
that person has possession of it; a special owner, such
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as a borrower or hirer, is one who does not have title
but who does have possession, or the right of
possession, of the property.
(iv) Person. Person, as used in referring to one
from whose possession property has been taken,
obtained, or withheld, and to any owner of property,
includes (in addition to a natural person) a government,
a corporation, an association, an organization, and an
estate. Such a person need not be a legal entity.
(d) Wrongfulness of the taking, obtaining, or
withholding. The taking, obtaining, or withholding of
the property must be wrongful. As a general rule, a
taking or withholding of property from the possession
of another is wrongful if done without the consent of
the other, and an obtaining of property from the
possession of another is wrongful if the obtaining is by
false pretense. However, such an act is not wrongful if
it is authorized by law or apparently lawful superior
orders, or, generally, if done by a person who has a
right to the possession of the property either equal to or
greater than the right of one from whose possession the
property is taken, obtained, or withheld. An owner of
property who takes or withholds it from the possession
of another, without the consent of the other, or who
obtains it therefrom by false pretense, does so
wrongfully if the other has a superior right—such as a
lien—to possession of the property. A person who
takes, obtains, or withholds property as the agent of
another has the same rights and liabilities as does the
principal, but may not be charged with a guilty
knowledge or intent of the principal which that person
does not share.
(e) False pretense. With respect to obtaining
property by false pretense, the false pretense may be
made by means of any act, word, symbol, or token. The
pretense must be in fact false when made and when the
property is obtained, and it must be knowingly false in
the sense that it is made without a belief in its truth. A
false pretense is a false representation of past or
existing fact. In addition to other kinds of facts, the fact
falsely represented by a person may be that person’s or
another’s power, authority, or intention. Thus, a false
representation by a person that the person presently
intends to perform a certain act in the future is a false
representation of an existing fact—the intention—and
thus a false pretense. Although the pretense need not
be the sole cause inducing the owner to part with the
property, it must be an effective and intentional cause
of the obtaining. A false representation made after the
property was obtained will not result in a violation of
Article 121. A larceny is committed when a person
obtains the property of another by false pretense and
with intent to steal, even though the owner neither
intended nor was requested to part with title to the
property. Thus, a person who gets another’s watch by
pretending that it will be borrowed briefly and then
returned, but who really intends to sell it, is guilty of
larceny.
(f) Intent.
(i) In general. The offense of larceny requires
that the taking, obtaining, or withholding by the thief
be accompanied by an intent permanently to deprive or
defraud another of the use and benefit of property or
permanently to appropriate the property to the thief’s
own use or the use of any person other than the owner.
These intents are collectively called an intent to steal.
Although a person gets property by a taking or
obtaining which was not wrongful or which was
without a concurrent intent to steal, a larceny is
nevertheless committed if an intent to steal is formed
after the taking or obtaining and the property is
wrongfully withheld with that intent. For example, if a
person rents another’s vehicle, later decides to keep it
permanently, and then either fails to return it at the
appointed time or uses it for a purpose not authorized
by the terms of the rental, larceny has been committed,
even though at the time the vehicle was rented, the
person intended to return it after using it according to
the agreement.
(ii) Inference of intent. An intent to steal may be
proved by circumstantial evidence. Thus, if a person
secretly takes property, hides it, and denies knowing
anything about it, an intent to steal may be inferred; if
the property was taken openly and returned, this would
tend to negate such an intent. Proof of sale of the
property may show an intent to steal, and therefore,
evidence of such a sale may be introduced to support a
charge of larceny. An intent to steal may be inferred
from a wrongful and intentional dealing with the
property of another in a manner likely to cause that
person to suffer a permanent loss thereof.
(iii) Special situations.
(A) Motive does not negate intent. The
accused’s purpose in taking an item ordinarily is
irrelevant to the accused’s guilt as long as the accused
had the intent required under subparagraph c.(1)(f)(i)
of this paragraph. For example, if the accused
wrongfully took property as a joke or “to teach the
owner a lesson” this would not be a defense, although
if the accused intended to return the property, the
accused would be guilty of wrongful appropriation, not
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larceny. When a person takes property intending only
to return it to its lawful owner, as when stolen property
is taken from a thief in order to return it to its owner,
larceny or wrongful appropriation is not committed.
(B) Intent to pay for or replace property not a
defense. An intent to pay for or replace the stolen
property is not a defense, even if that intent existed at
the time of the theft. If, however, the accused takes
money or a negotiable instrument having no special
value above its face value, with the intent to return an
equivalent amount of money, the offense of larceny is
not committed although wrongful appropriation may
be.
(C) Return of property not a defense. Once a
larceny is committed, a return of the property or
payment for it is no defense. See subparagraph c.(2) of
this paragraph when the taking, obtaining, or
withholding is with the intent to return.
(g) Value.
(i) In general. Value is a question of fact to be
determined on the basis of all of the evidence admitted.
(ii) Government property. When the stolen
property is an item issued or procured from
Government sources, the price listed in an official
publication for that property at the time of the theft is
admissible as evidence of its value. See Mil. R. Evid.
803(17). However, the stolen item must be shown to
have been, at the time of the theft, in the condition upon
which the value indicated in the official price list is
based. The price listed in the official publication is not
conclusive as to the value of the item, and other
evidence may be admitted on the question of its
condition and value.
(iii) Other property. As a general rule, the value
of other stolen property is its legitimate market value
at the time and place of the theft. If this property,
because of its character or the place where it was
stolen, had no legitimate market value at the time and
place of the theft or if that value cannot readily be
ascertained, its value may be determined by its
legitimate market value in the United States at the time
of the theft, or by its replacement cost at that time,
whichever is less. Market value may be established by
proof of the recent purchase price paid for the article in
the legitimate market involved or by testimony or other
admissible evidence from any person who is familiar
through training or experience with the market value in
question. The owner of the property may testify as to
its market value if familiar with its quality and
condition. The fact that the owner is not an expert of
the market value of the property goes only to the
weight to be given that testimony, and not to its
admissibility. See Mil. R. Evid. 701. When the
character of the property clearly appears in evidence—
for instance, when it is exhibited to the court-martial—
the court-martial, from its own experience, may infer
that it has some value. If as a matter of common
knowledge the property is obviously of a value
substantially in excess of $1,000, the court-martial may
find a value of more than $1,000. Writings representing
value may be considered to have the value—even
though contingent—which they represented at the time
of the theft.
(iv) Limited interest in property. If an owner of
property or someone acting in the owner’s behalf steals
it from a person who has a superior, but limited,
interest in the property, such as a lien, the value for
punishment purposes shall be that of the limited
interest.
(h) Military property. Military property is all
property, real or personal, owned, held, or used by one
of the armed forces of the United States. Military
property is a term of art, and should not be confused
with Government property. The terms are not
interchangeable. While all military property is
Government property, not all Government property is
military property. An item of Government property is
not military property unless the item in question meets
the definition provided in this paragraph. Retail
merchandise of Service exchange stores is not military
property under this article.
(i) Miscellaneous considerations.
(i) Lost property. A taking or withholding of lost
property by the finder is larceny if accompanied by an
intent to steal and if a clue to the identity of the general
or special owner, or through which such identity may
be traced, is furnished by the character, location, or
marketing of the property, or by other circumstances.
(ii) Multiple article larceny. When a larceny of
several articles is committed at substantially the same
time and place, it is a single larceny even though the
articles belong to different persons. Thus, if a thief
steals a suitcase containing the property of several
persons or goes into a room and takes property
belonging to various persons, there is but one larceny,
which should be alleged in but one specification.
(iii) Special kinds of property which may also be
the subject of larceny. Included in property which may
be the subject of larceny is property which is taken,
obtained, or withheld by severing it from real estate
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and writings which represent value such as commercial
paper.
(iv) Services. Theft of services may not be
charged under this paragraph. But see paragraph 66.
(v) Credit, debit, and electronic transactions.
Wrongfully engaging in a credit, debit, or electronic
transaction to obtain goods or money ordinarily should
be charged under paragraph 65.
(2) Wrongful appropriation.
(a) In general. Wrongful appropriation requires an
intent to temporarily—as opposed to permanently—
deprive the owner of the use and benefit of, or
appropriate to the use of another, the property
wrongfully taken, withheld, or obtained. In all other
respects wrongful appropriation and larceny are
identical.
(b) Examples. Wrongful appropriation includes:
taking another’s automobile without permission or
lawful authority with intent to drive it a short distance
and then return it or cause it to be returned to the
owner; obtaining a service weapon by falsely
pretending to be about to go on guard duty with intent
to use it on a hunting trip and later return it; and while
driving a Government vehicle on a mission to deliver
supplies, withholding the vehicle from Government
service by deviating from the assigned route without
authority, to visit a friend in a nearby town and later
restore the vehicle to its lawful use. An inadvertent
exercise of control over the property of another will not
result in wrongful appropriation. For example, a person
who fails to return a borrowed boat at the time agreed
upon because the boat inadvertently went aground is
not guilty of this offense.
d. Maximum punishment.
(1) Larceny.
(a) Property of a value of $1,000 or less. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 1 year.
(b) Military property of a value of more than
$1,000 or of any military motor vehicle, aircraft,
vessel, firearm, or explosive. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 10 years.
(c) Property other than military property of a
value of more than $1,000 or any motor vehicle,
aircraft, vessel, firearm, or explosive not included in
subparagraph d.(1)(b). Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.”
(2) Wrongful appropriation.
(a) Of a value of $1,000 or less. Confinement for
3 months, and forfeiture of two-thirds pay per month
for 3 months.
(b) Of a value of more than $1,000. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(c) Of any motor vehicle, aircraft, vessel, firearm,
explosive, or military property of a value of more than
$1,000. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 2 years.
e. Sample specifications.
(1) Larceny.
In that ______________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ______
20___, steal ______________, (military property), of
a value of (about) $_________, the property of
______________.
(2) Wrongful appropriation.
In that ___________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about _______
20___, wrongfully appropriate ______________, of a
value of (about) $__________, the property of
_____________.
65. Article 121a (10 U.S.C. 921a)—Fraudulent use
of credit cards, debit cards, and other access devices
a. Text of statute.
(a) IN GENERAL.—Any person subject to this
chapter who, knowingly and with intent to defraud,
uses—
(1) a stolen credit card, debit card, or other
access device;
(2) a revoked, cancelled, or otherwise invalid
credit card, debit card, or other access device; or
(3) a credit card, debit card, or other access
device without the authorization of a person whose
authorization is required for such use; to obtain
money, property, services, or anything else of value
shall be punished as a court-martial may direct.
(b) ACCESS DEVICE DEFINED.—In this
section (article), the term “access device” has the
meaning given that term in section 1029 of title 18.
b. Elements.
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(1) That the accused knowingly used a stolen credit
card, debit card, or other access device; or
(2) That the accused knowingly used a revoked,
cancelled, or otherwise invalid credit card, debit card;
or
(3) That the accused knowingly used a credit card,
debit card, or other access device without the
authorization of a person whose authorization was
required for such use;
(4) That the use was to obtain money, property,
services, or anything else of value; and
(5) The use by the accused was with the intent to
defraud.
c. Explanation.
(1) In general. This offense focuses on the intent of
the accused and the technology used by the accused.
(2) Intent to defraud. See subparagraph 70.c.(14).
(3) Inference of intent. An intent to defraud may be
proved by circumstantial evidence.
(4) Use of a credit card, debit card, or other access
device without the authorization of a person whose
authorization was required for such use. This
provision applies to situations where an accused has no
authorization to use the access device from a person
whose authorization is required for such use, as well as
situations where an accused exceeds the authorization
of a person whose authorization is required for such
use.
d. Maximum punishment.
(1) Fraudulent use of a credit card, debit card, or
other access device to obtain property of a value of
$1,000 or less. Bad-conduct discharge, forfeiture of all
pay and allowances, and confinement for 10 years.
(2) Fraudulent use during any 1-year period of a
credit card, debit card, or other access device to obtain
property the aggregate value of which is more than
$1,000. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 15 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, knowingly
and with the intent to defraud, use a (debit card) (credit
card) (access device, to wit:________) (that was
stolen) (that was revoked, cancelled, or otherwise
invalid) (without the authorization of __________, a
person whose authorization was required for such use),
to obtain (money) (property) (services) (_______) (of
a value of about $_______).
66. Article 121b (10 U.S.C. 921b)—False pretenses
to obtain services
a. Text of statute.
Any person subject to this chapter who, with intent
to defraud, knowingly uses false pretenses to obtain
services shall be punished as a court-martial may
direct.
b. Elements.
(1) That the accused wrongfully obtained certain
services;
(2) That the obtaining was done by using false
pretenses;
(3) That the accused then knew of the falsity of the
pretenses;
(4) That the obtaining was with intent to defraud; and
(5) That the services were of a certain value, or of
some value.
c. Explanation. This offense is similar to the offenses
of larceny and wrongful appropriation by false
pretenses, except that the object of the obtaining is
services (for example, telephone service) rather than
money, personal property, or articles of value of any
kind as under Article 121. See paragraph 64.c. See
paragraph 70.c.(14) for a definition of intent to
defraud.
d. Maximum punishment.
Obtaining services under
false pretenses.
(1) Of a value of $1,000 or less. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 1 year.
(2) Of a value of more than $1,000. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to defraud, falsely pretend to __________ that
__________, then knowing that the pretenses were
false, and by means thereof did wrongfully obtain
from__________ services, of a value of (about)
$__________, to wit: __________.
67. Article 122 (10 U.S.C. 922)—Robbery
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a. Text of statute.
Any person subject to this chapter who takes
anything of value from the person or in the presence
of another, against his will, by means of force or
violence or fear of immediate or future injury to his
person or property or to the person or property of
a relative or member of his family or of anyone in
his company at the time of the robbery, is guilty of
robbery and shall be punished as a court-martial
may direct.
b. Elements.
(1) That the accused wrongfully took certain
property from the person or from the possession and in
the presence of a person named or described;
(2) That the taking was against the will of that
person;
(3) That the taking was by means of force, violence,
or force and violence, or putting the person in fear of
immediate or future injury to that person, a relative, a
member of the person’s family, anyone accompanying
the person at the time of the robbery, the person’s
property, or the property of a relative, family member,
or anyone accompanying the person at the time of the
robbery;
(4) That the property belonged to a person named or
described; and
(5) That the property was of a certain or of some
value.
[Note: If the robbery was committed with a dangerous
weapon, add the following element]
(6) That the means of force or violence or of putting
the person in fear was a dangerous weapon.
c. Explanation.
(1) Taking in the presence of the victim. It is not
necessary that the property taken be located within any
certain distance of the victim. If persons enter a house
and force the owner by threats to disclose the hiding
place of valuables in an adjoining room, and, leaving
the owner tied, go into that room and steal the
valuables, they have committed robbery.
(2) Force or violence. For a robbery to be committed
by force or violence, there must be actual force or
violence to the person, preceding or accompanying the
taking against the person’s will, and it is immaterial
that there is no fear engendered in the victim. Any
amount of force is enough to constitute robbery if the
force overcomes the actual resistance of the person
robbed, puts the person in such a position that no
resistance is made, or suffices to overcome the
resistance offered by a chain or other fastening by
which the article is attached to the person. The offense
is not robbery if an article is merely snatched from the
hand of another or a pocket is picked by stealth, no
other force is used, and the owner is not put in fear. But
if resistance is overcome in snatching the article, there
is sufficient violence, as when an earring is torn from a
person’s ear. There is sufficient violence when a
person’s attention is diverted by being jostled by a
confederate of a pickpocket, who is thus enabled to
steal the person’s watch, even though the person had
no knowledge of the act; or when a person is knocked
insensible and that person’s pockets rifled; or when a
guard steals property from the person of a prisoner in
the guard’s charge after handcuffing the prisoner on the
pretext of preventing escape.
(3) Fear. For a robbery to be committed by putting
the victim in fear, there need be no actual force or
violence, but there must be a demonstration of force or
menace by which the victim is placed in such fear that
the victim is warranted in making no resistance. The
fear must be a reasonable apprehension of present or
future injury, and the taking must occur while the
apprehension exists. The injury apprehended may be
death or bodily injury to the person or to a relative or
family member, or to anyone in the person’s company
at the time, or it may be the destruction of the person’s
habitation or other property or that of a relative or
family member or anyone in the person’s company at
the time of sufficient gravity to warrant giving up the
property demanded by the assailant.
(4) Multiple-victim robberies. Robberies of different
persons at the same time and place are separate
offenses and each such robbery should be alleged in a
separate specification.
(5) Dangerous weapon. For purposes of qualifying
for the maximum punishment for this offense as
specified in subparagraph d.(1), the term “dangerous
weapon” has the same meaning as that ascribed to the
term in subparagraph 77.c.(5)(a)(iii).
d. Maximum punishment.
(1) When committed with a dangerous weapon.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 15 years.
(2) All other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 10 years.
e. Sample specification.
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In that ___________________ (personal jurisdiction
data), did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about _______
20____, by means of (force) (violence) (force and
violence) (and) (putting (him) (her) in fear) [with a
dangerous weapon, to wit: ______________] seize
from the (person) (presence) of ______________,
against (his) (her) will, (a watch) (__________) of
value of (about) $__________, the property of
______________.
68. Article 122a (10 U.S.C. 922a)—Receiving stolen
property
a. Text of statute.
Any person subject to this chapter who wrongfully
receives, buys, or conceals stolen property, knowing
the property to be stolen property, shall be
punished as a court-martial may direct.
b. Elements.
(1) That the accused wrongfully received, bought, or
concealed certain property of some value;
(2) That the property belonged to another person;
(3) That the property had been stolen; and
(4) That the accused knew that the property had been
stolen.
c. Explanation.
(1) In general. The actual thief is not criminally
liable for receiving the property stolen; however a
principal to the larceny (see paragraph 1), when not the
actual thief, may be found guilty of knowingly
receiving the stolen property but may not be found
guilty of both the larceny and receiving the property.
(2) Knowledge. Actual knowledge that the property
was stolen is required. Knowledge may be proved by
circumstantial evidence.
(3) Wrongfulness. Receiving stolen property is
wrongful if it is without justification or excuse. For
example, it would not be wrongful for a person to
receive stolen property for the purpose of returning it
to its rightful owner, or for a law enforcement officer
to seize it as evidence.
d. Maximum punishment.
(1) Receiving, buying, or concealing stolen property
of a value of $1,000 or less. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
(2) Receiving, buying, or concealing stolen property
of a value of more than $1,000. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 3 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(receive) (buy) (conceal) __________, of a value of
(about) $__________, the property of __________
which property, as (he) (she), the said _____________,
then knew, had been stolen.
69. Article 123 (10 U.S.C. 923)—Offenses
concerning Government computers
a. Text of statute.
(a) IN GENERAL.—Any person subject to this
chapter who—
(1) knowingly accesses a Government
computer, with an unauthorized purpose, and by
doing so obtains classified information, with reason
to believe such information could be used to the
injury of the United States, or to the advantage of
any foreign nation, and intentionally
communicates, delivers, transmits, or causes to be
communicated, delivered, or transmitted such
information to any person not entitled to receive it;
(2) intentionally accesses a Government
computer, with an unauthorized purpose, and
thereby obtains classified or other protected
information from any such Government computer;
or
(3) knowingly causes the transmission of a
program, information, code, or command, and as a
result of such conduct, intentionally causes damage
without authorization to a Government computer;
shall be punished as a court-martial may direct.
(b) DEFINITIONS.—In this section:
(1) The term “computer” has the meaning
given that term in section 1030 of title 18.
(2) The term “Government computer” means a
computer owned or operated by or on behalf of the
United States Government.
(3) The term “damage” has the meaning given
that term in section 1030 of title 18.
b. Elements.
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(1) Unauthorized distribution of classified
information obtained from a Government computer.
(a) That the accused knowingly accessed a
Government computer with an unauthorized purpose;
(b) That the accused obtained classified
information;
(c) That the accused had reason to believe the
information could be used to injure the United States
or benefit a foreign nation; and
(d) That the accused intentionally communicated,
delivered, transmitted, or caused to be communicated,
delivered, or transmitted, such information to any
person not entitled to receive it.
(2) Unauthorized access of a Government computer
and obtaining classified or other protected
information.
(a) That the accused intentionally accessed a
Government computer with an unauthorized purpose;
and
(b) That the accused thereby obtained classified or
other protected information from any such
Government computer.
(3) Causing damage to a Government computer.
(a) That the accused knowingly caused the
transmission of a program, information, code, or
command; and
(b) That the accused, as a result, intentionally and
without authorization caused damage to a Government
computer.
c. Explanation.
(1) Access. “Access” means to gain entry to, instruct,
cause input to, cause output from, cause data
processing with, or communicate with, the logical,
arithmetical, or memory function resources of a
computer, computer system, or computer network.
(2) With an unauthorized purpose. The phrase “with
an unauthorized purpose” may refer to more than one
unauthorized purpose, or an unauthorized purpose in
conjunction with an authorized purpose. The phrase
covers persons accessing Government computers
without any authorization, i.e., “outsiders,” as well as
persons with authorization who access Government
computers for an improper purpose or who exceed their
authorization, i.e., “insiders.” The key criterion to
determine criminality is whether the person
intentionally used the computer for a purpose that was
clearly contrary to the interests or intent of the
authorizing party.
(3) Classified Information. See 10 U.S.C. § 801(15).
(4) Protected Information. Non-classified protected
information includes Personally Identifiable
Information (PII), as well as information designated as
Controlled Unclassified Information (CUI) by the
Secretary of Defense, and information designated as
For Official Use Only (FOUO), Law Enforcement
Sensitive (LES), Unclassified Nuclear Information
(UCNI), and Limited Distribution.
(5) Damage. The definition of “damage” is taken
from 18 U.S.C. § 1030 and means any impairment to
the integrity or availability of data, a program, a
system, or information.
(6) Computer. The definition of “computer” is taken
from 18 U.S.C. § 1030 and means an electronic,
magnetic, optical, electrochemical, or other high speed
data processing device performing logical, arithmetic,
or storage functions, and includes any data storage
facility or communications facility directly related to
or operating in conjunction with such device, but such
term does not include an automated typewriter or
typesetter, a portable hand held calculator, or other
similar device. A portable computer, including a
smartphone, is a computer.
d. Maximum punishment.
(1) Unauthorized distribution of classified
information obtained from a Government computer.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 10 years.
(2) Unauthorized access of a Government computer
and obtaining classified or other protected
information. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 5 years.
(3) Causing damage to a Government computer.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 10 years.
e. Sample specifications.
(1) Unauthorized distribution of classified
information obtained from a Government computer.
In that __________ (personal jurisdiction data), did
(at/on board—location), (subject-matter jurisdiction
data, if required), (on or about _____ 20 __) (from
about _____ to about _____ 20 __), knowingly access
a government computer with an unauthorized purpose
and obtained classified information, to wit:_____, with
reason to believe the information could be used to
injure the United States or benefit a foreign nation, and
intentionally (communicated) (delivered) (transmitted)
(caused to be communicated/delivered/transmitted)
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such information to ______, a person not entitled to
receive it.
(2) Accessing a computer and obtaining information.
In that __________ (personal jurisdiction data), did
(at/on board—location), (subject-matter jurisdiction
data, if required), (on or about _____ 20 __) (from
about _____ to about _____ 20 __), intentionally
access a government computer with an unauthorized
purpose and thereby knowingly obtained (classified)
(protected) information, to wit:______ from such
government computer.
(3) Causing damage by computer contaminant.
In that __________ (personal jurisdiction data), did
(at/on board—location), (subject-matter jurisdiction
data, if required), (on or about _____ 20 __) (from
about _____ to about _____ 20 __), knowingly cause
the transmission of a program, information, code, or
command, and as a result, intentionally and without
authorization caused damage to a government
computer.
70. Article 123a (10 U.S.C. 923a)—Making,
drawing, or uttering check, draft, or order without
sufficient funds
a. Text of statute.
Any person subject to this chapter who—
(1) for the procurement of any article or thing of
value, with intent to defraud; or
(2) for the payment of any past due obligation, or
for any other purpose, with intent to deceive;
makes, draws, utters, or delivers any check, draft,
or order for the payment of money upon any bank
or other depository, knowing at the time that the
maker or drawer has not or will not have sufficient
funds in, or credit with, the bank or other
depository for the payment of that check, draft, or
order in full upon its presentment, shall be
punished as a court-martial may direct. The
making, drawing, uttering, or delivering by a
maker or drawer of a check, draft, or order,
payment of which is refused by the drawee because
of insufficient funds of the maker or drawer in the
drawee’s possession or control, is prima facie
evidence of his intent to defraud or deceive and of
his knowledge of insufficient funds in, or credit
with, that bank or other depository, unless the
maker or drawer pays the holder the amount due
within five days after receiving notice, orally or in
writing, that the check, draft, or order was not paid
on presentment. In this section, the word “credit”
means an arrangement or understanding, express
or implied, with the bank or other depository for
the payment of that check, draft, or order.
b. Elements.
(1) For the procurement of any article or thing of
value, with intent to defraud.
(a) That the accused made, drew, uttered, or
delivered a check, draft, or order for the payment of
money payable to a named person or organization;
(b) That the accused did so for the purpose of
procuring an article or thing of value;
(c) That the act was committed with intent to
defraud; and
(d) That at the time of making, drawing, uttering,
or delivery of the instrument the accused knew that the
accused or the maker or drawer had not or would not
have sufficient funds in, or credit with, the bank or
other depository for the payment thereof upon
presentment.
(2) For the payment of any past due obligation, or
for any other purpose, with intent to deceive.
(a) That the accused made, drew, uttered, or
delivered a check, draft, or order for the payment of
money payable to a named person or organization;
(b) That the accused did so for the purpose or
purported purpose of effecting the payment of a past
due obligation or for some other purpose;
(c) That the act was committed with intent to
deceive; and
(d) That at the time of making, drawing, uttering,
or delivering of the instrument, the accused knew that
the accused or the maker or drawer had not or would
not have sufficient funds in, or credit with, the bank or
other depository for the payment thereof upon
presentment.
c. Explanation.
(1) Written instruments. The written instruments
covered by this article include any check, draft
(including share drafts), or order for the payment of
money drawn upon any bank or other depository,
whether or not the drawer bank or depository is
actually in existence. It may be inferred that every
check, draft, or order carries with it a representation
that the instrument will be paid in full by the bank or
other depository upon presentment by a holder when
due.
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(2) Bank or other depository. Bank or other
depository includes any business regularly but not
necessarily exclusively engaged in public banking
activities.
(3) Making or drawing. Making and drawing are
synonymous and refer to the act of writing and signing
the instrument.
(4) Uttering or delivering. Uttering and delivering
have similar meanings. Both mean transferring the
instrument to another, but uttering has the additional
meaning of offering to transfer. A person need not
personally be the maker or drawer of an instrument in
order to violate this article if that person utters or
delivers it. For example, if a person holds a check
which that person knows is worthless, and utters or
delivers the check to another, that person may be guilty
of an offense under this article despite the fact that the
person did not personally draw the check.
(5) For the procurement. “For the procurement”
means for the purpose of obtaining any article or thing
of value. It is not necessary that an article or thing of
value actually be obtained, and the purpose of the
obtaining may be for the accused’s own use or benefit
or for the use or benefit of another.
(6) For the payment. “For the payment” means for
the purpose or purported purpose of satisfying in whole
or in part any past due obligation. Payment need not be
legally effected.
(7) For any other purpose. For any other purpose
includes all purposes other than the payment of a past
due obligation or the procurement of any article or
thing of value. For example, it includes paying or
purporting to pay an obligation which is not yet past
due. The check, draft, or order, whether made or
negotiated for the procurement of an article or thing of
value or for the payment of a past due obligation or for
some other purpose, need not be intended or
represented as payable immediately. For example, the
making of a postdated check, delivered at the time of
entering into an installment purchase contract and
intended as payment for a future installment, would, if
made with the requisite intent and knowledge, be a
violation of this article.
(8) Article or thing of value. Article or thing of value
extends to every kind of right or interest in property, or
derived from contract, including interests and rights
which are intangible or contingent or which mature in
the future.
(9) Past due obligation. A past due obligation is an
obligation to pay money, which obligation has legally
matured before making, drawing, uttering, or
delivering the instrument.
(10) Knowledge. The accused must have knowledge,
at the time the accused makes, draws, utters, or delivers
the instrument, that the maker or drawer, whether the
accused or another, has not or will not have sufficient
funds in, or credit with, the bank or other depository
for the payment of the instrument in full upon its
presentment. Such knowledge may be proved by
circumstantial evidence.
(11) Sufficient funds. “Sufficient funds” refers to a
condition in which the account balance of the maker or
drawer in the bank or other depository at the time of
the presentment of the instrument for payment is not
less than the face amount of the instrument and has not
been rendered unavailable for payment by
garnishment, attachment, or other legal procedures.
(12) Credit. “Credit” means an arrangement or
understanding, express or implied, with the bank or
other depository for the payment of the check, draft, or
order. An absence of credit includes those situations in
which an accused writes a check on a nonexistent bank
or on a bank in which the accused has no account.
(13) Upon its presentment. “Upon its presentment”
refers to the time the demand for payment is made upon
presentation of the instrument to the bank or other
depository on which it was drawn.
(14) Intent to defraud. “Intent to defraud” means an
intent to obtain, through a misrepresentation, an article
or thing of value and to apply it to one’s own use and
benefit or to the use and benefit of another, either
permanently or temporarily.
(15) Intent to deceive. “Intent to deceive” means an
intent to mislead, cheat, or trick another by means of a
misrepresentation made for the purpose of gaining an
advantage for oneself or for a third person, or of
bringing about a disadvantage to the interests of the
person to whom the representation was made or to
interests represented by that person.
(16) The relationship of time and intent. Under this
article, two times are involved: (a) when the accused
makes, draws, utters, or delivers the instrument; and
(b) when the instrument is presented to the bank or
other depository for payment. With respect to (a), the
accused must possess the requisite intent and must
know that the maker or drawer does not have or will
not have sufficient funds in, or credit with, the bank or
the depository for payment of the instrument in full
upon its presentment when due. With respect to (b), if
it can otherwise be shown that the accused possessed
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the requisite intent and knowledge at the time the
accused made, drew, uttered, or delivered the
instrument, neither proof of presentment nor refusal of
payment is necessary, as when the instrument is one
drawn on a nonexistent bank.
(17) Statutory rule of evidence. The provision of this
article with respect to establishing prima facie
evidence of knowledge and intent by proof of notice
and nonpayment within 5 days is a statutory rule of
evidence. The failure of an accused who is a maker or
drawer to pay the holder the amount due within 5 days
after receiving either oral or written notice from the
holder of a check, draft, or order, or from any other
person having knowledge that such check, draft, or
order was returned unpaid because of insufficient
funds, is prima facie evidence (a) that the accused had
the intent to defraud or deceive as alleged; and (b) that
the accused knew at the time the accused made, drew,
uttered, or delivered the check, draft, or order that the
accused did not have or would not have sufficient
funds in, or credit with, the bank or other depository
for the payment of such check, draft, or order upon its
presentment for payment. Prima facie evidence is that
evidence from which the accused’s intent to defraud or
deceive and the accused’s knowledge of insufficient
funds in or credit with the bank or other depository may
be inferred, depending on all the circumstances. The
failure to give notice referred to in the article, or
payment by the accused, maker, or drawer to the holder
of the amount due within 5 days after such notice has
been given, precludes the prosecution from using the
statutory rule of evidence but does not preclude
conviction of this offense if all the elements are
otherwise proved.
(18) Affirmative defense. Honest mistake is an
affirmative defense to offenses under this article. See
R.C.M. 916(j).
d. Maximum punishment.
(1) For the procurement of any article or thing of
value, with intent to defraud, in the face amount of:
(a) $1,000 or less. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
(b) More than $1,000. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
(2) For the payment of any past due obligation, or
for any other purpose, with intent to deceive. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 6 months.
e. Sample specifications.
(1) For the procurement of any article or thing of
value, with intent to defraud.
In that _______________ (personal jurisdiction
data), did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about __________
20___, with intent to defraud and for the procurement
of (lawful currency) (and) (________ (an article) (a
thing) of value), wrongfully and unlawfully ((make
(draw)) (utter) (deliver) to __________,) a certain
(check) (draft) (money order) upon the (_________
Bank) (__________ depository) in words and figures
as follows, to wit: ____________________, then
knowing that (he) (she) (___________), the (maker)
(drawer) thereof, did not or would not have sufficient
funds in or credit with such (bank) (depository) for the
payment of the said (check) (draft) (order) in full upon
its presentment.
(2) For the payment of any past due obligation, or
for any other purpose, with intent to deceive.
In that ______________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about _________
20____, with intent to deceive and for the payment of
a past due obligation, to wit: ________________ (for
the purpose of ___________) wrongfully and
unlawfully ((make) (draw)) (utter) (deliver) to
______________, a certain (check) (draft) (money
order) for the payment of money upon (_____ Bank)
(______ depository), in words and figures as follows,
to wit: __________, then knowing that (he) (she)
(__________), the (maker) (drawer) thereof, did not or
would not have sufficient funds in or credit with such
(bank) (depository) for the payment of the said (check)
(draft) (order) in full upon its presentment.
71. Article 124 (10 U.S.C. 924)—Frauds against the
United States
a. Text of statute.
Any person subject to this chapter—
(1) who, knowing it to be false or fraudulent—
(A) makes any claim against the United States
or any officer thereof; or
(B) presents to any person in the civil or
military service thereof, for approval or payment,
any claim against the United States or any officer
thereof;
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(2) who, for the purpose of obtaining the
approval, allowance, or payment of any claim
against the United States or any officer thereof—
(A) makes or uses any writing or other paper
knowing it to contain any false or fraudulent
statements;
(B) makes any oath to any fact or to any writing
or other paper knowing the oath to be false; or
(C) forges or counterfeits any signature upon
any writing or other paper, or uses any such
signature knowing it to be forged or counterfeited;
(3) who, having charge, possession, custody or
control of any money, or other property of the
United States, furnished or intended for the armed
forces thereof, knowingly delivers to any person
having authority to receive it, any amount thereof
less than that for which he receives a certificate or
receipt; or
(4) who, being authorized to make or deliver any
paper certifying the receipt of any property of the
United States furnished or intended for the armed
forces thereof, makes or delivers to any person such
writing without having full knowledge of the truth
of the statements therein contained and with intent
to defraud the United States;
shall, upon conviction, be punished as a court-
martial may direct.
b. Elements.
(1) Making a false or fraudulent claim.
(a) That the accused made a certain claim against
the United States or an officer thereof;
(b) That the claim was false or fraudulent in
certain particulars; and
(c) That the accused then knew that the claim was
false or fraudulent in these particulars.
(2) Presenting for approval or payment a false or
fraudulent claim.
(a) That the accused presented for approval or
payment to a certain person in the civil or military
service of the United States having authority to
approve or pay it a certain claim against the United
States or an officer thereof;
(b) That the claim was false or fraudulent in
certain particulars; and
(c) That the accused then knew that the claim was
false or fraudulent in these particulars.
(3) Making or using a false writing or other paper in
connection with a claim.
(a) That the accused made or used a certain writing
or other paper;
(b) That certain material statements in the writing
or other paper were false or fraudulent;
(c) That the accused then knew the statements
were false or fraudulent; and
(d) That the act of the accused was for the purpose
of obtaining the approval, allowance, or payment of a
certain claim or claims against the United States or an
officer thereof.
(4) False oath in connection with a claim.
(a) That the accused made an oath to a certain fact
or to a certain writing or other paper;
(b) That the oath was false in certain particulars;
(c) That the accused then knew it was false; and
(d) That the act was for the purpose of obtaining
the approval, allowance, or payment of a certain claim
or claims against the United States or an officer
thereof.
(5) Forgery of signature in connection with a claim.
(a) That the accused forged or counterfeited the
signature of a certain person on a certain writing or
other paper; and
(b) That the act was for the purpose of obtaining
the approval, allowance, or payment of a certain claim
against the United States or an officer thereof.
(6) Using forged signature in connection with a
claim.
(a) That the accused used the forged or
counterfeited signature of a certain person;
(b) That the accused then knew that the signature
was forged or counterfeited; and
(c) That the act was for the purpose of obtaining
the approval, allowance, or payment of a certain claim
against the United States or an officer thereof.
(7) Delivering less than amount called for by receipt.
(a) That the accused had charge, possession,
custody, or control of certain money or property of the
United States furnished or intended for the armed
forces thereof;
(b) That the accused obtained a certificate or
receipt for a certain amount or quantity of that money
or property;
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(c) That for the certificate or receipt the accused
knowingly delivered to a certain person having
authority to receive it, an amount or quantity of money
or property less than the amount or quantity thereof
specified in the certificate or receipt; and
(d) That the undelivered money or property was of
a certain value.
(8) Making or delivering receipt without having full
knowledge that it is true.
(a) That the accused was authorized to make or
deliver a paper certifying the receipt from a certain
person of certain property of the United States
furnished or intended for the armed forces thereof;
(b) That the accused made or delivered to that
person a certificate or receipt;
(c) That the accused made or delivered the
certificate without having full knowledge of the truth
of a certain material statement or statements therein;
(d) That the act was done with intent to defraud the
United States; and
(e) That the property certified as being received
was of a certain value.
c. Explanation.
(1) Making a false or fraudulent claim.
(a) Claim. A claim is a demand for a transfer of
ownership of money or property and does not include
requisitions for the mere use of property. This article
applies only to claims against the United States or any
officer thereof as such, and not to claims against an
officer of the United States in that officer’s private
capacity.
(b) Making a claim. Making a claim is a distinct
act from presenting it. A claim may be made in one
place and presented in another. The mere writing of a
paper in the form of a claim, without any further act to
cause the paper to become a demand against the United
States or an officer thereof, does not constitute making
a claim. However, any act placing the claim in official
channels constitutes making a claim, even if that act
does not amount to presenting a claim. It is not
necessary that the claim be allowed or paid or that it be
made by the person to be benefited by the allowance or
payment. See also subparagraph c.(2).
(c) Knowledge. The claim must be made with
knowledge of its fictitious or dishonest character. This
article does not proscribe claims, however groundless
they may be, that the maker believes to be valid, or
claims that are merely made negligently or without
ordinary prudence.
(2) Presenting for approval or payment a false or
fraudulent claim.
(a) False and fraudulent. False and fraudulent
claims include not only those containing some material
false statement, but also claims that the claimant knows
to have been paid or for some other reason the claimant
knows the claimant is not authorized to present or upon
which the claimant knows the claimant has no right to
collect.
(b) Presenting a claim. The claim must be
presented, directly or indirectly, to some person having
authority to pay it. The person to whom the claim is
presented may be identified by position or authority to
approve the claim, and need not be identified by name
in the specification. A false claim may be tacitly
presented, as when a person who knows that there is no
entitlement to certain pay accepts it nevertheless
without disclosing a disqualification, even though the
person may not have made any representation of
entitlement to the pay. For example, a person cashing
a pay check that includes an amount for a dependency
allowance, knowing at the time that the entitlement no
longer exists because of a change in that dependency
status, has tacitly presented a false claim. See also
subparagraph (1) of this paragraph.
(3) Making or using a false writing or other paper in
connection with a claim. The false or fraudulent
statement must be material, that is, it must have a
tendency to mislead governmental officials in their
consideration or investigation of the claim. The offense
of making a writing or other paper known to contain a
false or fraudulent statement for the purpose of
obtaining the approval, allowance, or payment of a
claim is complete when the writing or paper is made
for that purpose, whether or not any use of the paper
has been attempted and whether or not the claim has
been presented. See also the explanation in
subparagraphs (1) and (2) of this paragraph.
(4) False oath in connection with a claim. See
subparagraphs (1) and (2) of this paragraph.
(5) Forgery of signature in connection with a claim.
Any fraudulent making of the signature of another is
forging or counterfeiting, whether or not an attempt is
made to imitate the handwriting. See subparagraph
37.c. and subparagraphs (1) and (2) of this paragraph.
(6) Delivering less than amount called for by receipt.
It is immaterial by what means—whether deceit,
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collusion, or otherwise—the accused effected the
transaction, or what was the accused’s purpose.
(7) Making or delivering receipt without having full
knowledge that it is true. When an officer or other
person subject to military law is authorized to make or
deliver any paper certifying the receipt of any property
of the United States furnished or intended for the
armed forces thereof, and a receipt or other paper is
presented for signature stating that a certain amount of
supplies has been furnished by a certain contractor, it
is that person’s duty before signing the paper to know
that the full amount of supplies therein stated to have
been furnished has in fact been furnished, and that the
statements contained in the paper are true. If the person
signs the paper with intent to defraud the United States
and without that knowledge, that person is guilty of a
violation of this section of the article. If the person
signs the paper with knowledge that the full amount
was not received, it may be inferred that the person
intended to defraud the United States.
d. Maximum punishment.
(1) Article 124 (1) and (2). Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
(2) Article 124 (3) and (4).
(a) When amount is $1,000 or less. Bad-conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
(b) When amount is more than $1,000.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
e. Sample specifications.
(1) Making false claim.
In that ______________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ______
20___, (by preparing (a voucher) (_______) for
presentation for approval or payment) (_____), make a
claim against the (United States) (finance officer at
_____) (________) in the amount of $________ for
(private property alleged to have been (lost)
(destroyed) in the military service) (___________),
which claim was (false) (fraudulent) (false and
fraudulent) in the amount of $________ in that
_______ and was then known by the said _______ to
be (false) (fraudulent) (false and fraudulent).
(2) Presenting false claim.
In that ______________ (personal jurisdiction data),
did, (at/on board—location) (subject-matter
jurisdiction data, if required), on or about ______
20___, by presenting (a voucher) (_______) to ______,
an officer of the United States duly authorized to
(approve) (pay) (approve and pay) such claim, present
for (approval) (payment) (approval and payment) a
claim against the (United States) (finance officer at
_________) (________) in the amount of $________
for (services alleged to have been rendered to the
United States by ___________ during __________)
(___________), which claim was (false) (fraudulent)
(false and fraudulent) in the amount of $________ in
that _______, and was then known by the said _______
to be (false) (fraudulent) (false and fraudulent).
(3) Making or using false writing.
In that ________________ (personal jurisdiction
data), for the purpose of obtaining the (approval)
(allowance) (payment) (approval, allowance, and
payment) of a claim against the United States in the
amount of $______, did (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about ________ 20____, (make) (use) (make and use)
a certain (writing) (paper), to wit:___________, which
said (writing) (paper), as (he) (she), the said _______,
then knew, contained a statement that ____________,
which statement was (false) (fraudulent) (false and
fraudulent) in that ___________, and was then known
by the said ___________ to be (false) (fraudulent)
(false and fraudulent).
(4) Making false oath.
In that ________________ (personal jurisdiction
data), for the purpose of obtaining the (approval)
(allowance) (payment) (approval, allowance, and
payment) of a claim against the United States, did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20____, make
an oath (to the fact that __________) (to a certain
(writing) (paper), to wit: _____________), to the effect
that ___________, which said oath was false in that
___________, and was then known by the said
___________ to be false.
(5) Forging or counterfeiting signature.
In that ________________ (personal jurisdiction
data), for the purpose of obtaining the (approval)
(allowance) (payment) (approval, allowance, and
payment) of a claim against the United States, did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20____,
(forge) (counterfeit) (forge and counterfeit) the
signature of _______ upon a ___________in words
and figures as follows: __________.
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(6) Using forged signature.
In that ________________ (personal jurisdiction
data), for the purpose of obtaining the (approval)
(allowance) (payment) (approval, allowance, and
payment) of a claim against the United States, did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about ________ 20____, use
the signature of ___________ on a certain (writing)
(paper), to wit: __________, then knowing such
signature to be (forged) (counterfeited) (forged and
counterfeited).
(7) Paying amount less than called for by a receipt.
In that ________________ (personal jurisdiction
data), having (charge) (possession) (custody) (control)
of (money) (________) of the United States,
(furnished) (intended) (furnished and intended) for the
armed forces thereof, did, (at/on board—location)
(subject-matter jurisdiction data, if required), on or
about ________ 20____, knowingly deliver to _____,
the said __________ having authority to receive the
same, (an amount) (_____), which, as (he) (she),
________, then knew, was ($______)
(_____________) less than the (amount) (______) for
which (he) (she) received a (certificate) (receipt) from
the said __________.
(8) Making receipt without knowledge of the facts.
In that ________________ (personal jurisdiction
data), being authorized to (make) (deliver) (make and
deliver) a paper certifying the receipt of property of the
United States (furnished) (intended) (furnished and
intended) for the armed forces thereof, did, (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about ________ 20____, without
having full knowledge of the statement therein
contained and with intent to defraud the United States,
(make) (deliver) (make and deliver) to ____________,
such a writing, in words and figures as follows:
____________, the property therein certified as
received being of a value of about $_________.
72. Article 124a (10 U.S.C. 924a)—Bribery
a. Text of statute.
(a) ASKING, ACCEPTING, OR RECEIVING
THING OF VALUE.—Any person subject to this
chapter—
(1) who occupies an official position or who has
official duties; and
(2) who wrongfully asks, accepts, or receives a
thing of value with the intent to have the person’s
decision or action influenced with respect to an
official matter in which the United States is
interested;
shall be punished as a court-martial may direct.
(b) PROMISING, OFFERING, OR GIVING
THING OF VALUE.—Any person subject to this
chapter who wrongfully promises, offers, or gives a
thing of value to another person, who occupies an
official position or who has official duties, with the
intent to influence the decision or action of the other
person with respect to an official matter in which
the United States is interested, shall be punished as
a court-martial may direct.
b. Elements.
(1) Asking, accepting, or receiving.
(a) That the accused wrongfully asked, accepted,
or received a thing of value from a certain person or
organization;
(b) That the accused then occupied a certain
official position or had certain official duties;
(c) That the accused asked, accepted, or received
this thing of value with the intent to have the accused’s
decision or action influenced with respect to a certain
matter; and
(d) That this certain matter was an official matter
in which the United States was interested.
(2) Promising, offering, or giving.
(a) That the accused wrongfully promised,
offered, or gave a thing of value to a certain person;
(b) That this person then occupied a certain
official position or had certain official duties;
(c) That this thing of value was promised, offered,
or given with the intent to influence the decision or
action of this person; and
(d) That this matter was an official matter in which
the United States was interested.
c. Explanation. Bribery requires an intent to influence
or be influenced in an official matter.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specifications.
(1) Asking, accepting, or receiving.
In that __________ (personal jurisdiction data),
being at the time (a contracting officer for _____) (the
personnel officer of _____) (_____), did, (at/on
board—location) (subject-matter jurisdiction data, if
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required), on or about _____ 20 __, wrongfully (ask)
(accept) (receive) from _____, (a contracting company
engaged in _____) (_____), (the sum of $_____)
(__________, of a value of (about) $_____) (_____),
(with intent to have (his) (her) (decision) (action)
influenced with respect to) ((as compensation for) (in
recognition of)) service (rendered) (to be rendered).
(2) Promising, offering, or giving.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(promise) (offer) (give) to __________, ((his) (her)
commanding officer) (the claims officer of _____)
(_____), (the sum of $_____) (_____, of a value of
(about) $_____) (_____), (with intent to influence the
(decision) (action) of the said _____ with respect to)
((as compensation for) (in recognition of)) services
(rendered) (to be rendered).
73. Article 124b (10 U.S.C. 924b)—Graft
a. Text of statute.
(a) ASKING, ACCEPTING, OR RECEIVING
THING OF VALUE.—Any person subject to this
chapter—
(1) who occupies an official position or who has
official duties; and
(2) who wrongfully asks, accepts, or receives a
thing of value as compensation for or in recognition
of services rendered or to be rendered by the person
with respect to an official matter in which the
United States is interested;
shall be punished as a court-martial may direct.
(b) PROMISING, OFFERING, OR GIVING
THING OF VALUE.—Any person subject to this
chapter who wrongfully promises, offers, or gives a
thing of value to another person, who occupies an
official position or who has official duties, as
compensation for or in recognition of services
rendered or to be rendered by the other person with
respect to an official matter in which the United
States is interested, shall be punished as a court-
martial may direct.
b. Elements.
(1) Asking, accepting, or receiving.
(a) That the accused wrongfully asked, accepted,
or received a thing of value from a certain person or
organization;
(b) That the accused then occupied a certain
official position or had certain official duties;
(c) That the accused asked, accepted, or received
this thing of value as compensation for or in
recognition of services rendered, to be rendered, or
both, by the accused in relation to a certain matter; and
(d) That this certain matter was an official matter
in which the United States was interested.
(2) Promising, offering, or giving.
(a) That the accused wrongfully promised,
offered, or gave a thing of value to a certain person;
(b) That this person then occupied a certain
official position or had certain official duties;
(c) That this thing of value was promised, offered,
or given as compensation for or in recognition of
services rendered, to be rendered, or both, by this
person in relation to a certain matter; and
(d) That this matter was an official matter in which
the United States was interested.
c. Explanation. Graft does not require an intent to
influence or be influenced in an official matter. Graft
involves compensation for services performed in an
official matter when no compensation is due.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specifications.
(1) Asking, accepting, or receiving.
In that __________ (personal jurisdiction data),
being at the time (a contracting officer for _____) (the
personnel officer of _____) (_____), did,(at/on
board—location) (subject-matter jurisdiction data, if
required), on or about _____ 20 __, wrongfully (ask)
(accept) (receive) from _____, (a contracting company
engaged in _____) (_____), (the sum of $_____)
(__________, of a value of (about) $_____) (_____),
(rendered or to be rendered) by (him) (her) the said
_____ in relation to) an official matter in which the
United States was interested, to wit: (the purchasing of
military supplies from _____) (the transfer of _____ to
duty with _____) (_____).
(2) Promising, offering, or giving.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(promise) (offer) (give) to __________, ((his) (her)
commanding officer) (the claims officer of _____)
(_____), (the sum of $_____) (_____, of a value of
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(about) $_____) (_____, (rendered or to be rendered)
by the said _____ in relation to) an official matter in
which the United States was interested, to wit: (the
granting of leave to _____) (the processing of a claim
against the United States in favor of _____) (_____).
74. Article 125 (10 U.S.C. 925)—Kidnapping
a. Text of statute.
Any person subject to this chapter who
wrongfully—
(1) seizes, confines, inveigles, decoys, or carries
away another person; and
(2) holds the other person against that person’s
will;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused seized, confined, inveigled,
decoyed, or carried away a certain person;
(2) That the accused then held such person against
that person’s will; and
(3) That the accused did so wrongfully.
c. Explanation.
(1) Inveigle, decoy. “Inveigle” means to lure, lead
astray, or entice by false representations or other
deceitful means. For example, a person who entices
another to ride in a car with a false promise to take the
person to a certain destination has inveigled the
passenger into the car. “Decoy” means to entice or lure
by means of some fraud, trick, or temptation. For
example, one who lures a child into a trap with candy
has decoyed the child.
(2) Held. “Held” means detained. The holding must
be more than a momentary or incidental detention. For
example, a robber who holds the victim at gunpoint
while the victim hands over a wallet, or a rapist who
throws his victim to the ground, does not, by such acts,
commit kidnapping. On the other hand, if, before or
after such robbery or rape, the victim is involuntarily
transported some substantial distance, as from a
housing area to a remote area of the base or post, this
may be kidnapping, in addition to robbery or rape.
(3) Against the will. “Against that person’s will”
means that the victim was held involuntarily. The
involuntary nature of the detention may result from
force, mental or physical coercion, or from other
means, including false representations. If the victim is
incapable of having a recognizable will, as in the case
of a very young child or a mentally incompetent
person, the holding must be against the will of the
victim’s parents or legal guardian. Evidence of the
availability or nonavailability to the victim of means of
exit or escape is relevant to the voluntariness of the
detention, as is evidence of threats or force, or lack
thereof, by the accused to detain the victim.
(4) Financial or personal gain. The holding need not
have been for financial or personal gain or for any other
particular purpose. It may be an aggravating
circumstance that the kidnapping was for ransom,
however. See R.C.M. 1001(b)(4).
(5) Wrongfully. “Wrongfully” means without
justification or excuse. For example, a law
enforcement official may justifiably apprehend and
detain, by force if reasonably necessary (see R.C.M.
302(d)(3)), a person reasonably believed to have
committed an offense. An official who unlawfully uses
the official’s authority to apprehend someone is not
guilty of kidnapping, but may be guilty of unlawful
detention. See paragraph 25.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for life without eligibility for parole.
e. Sample specification.
In that _____, (personal jurisdiction data), did, (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about _____ 20 __, wrongfully (seize)
(confine) (inveigle) (decoy) (carry away) and hold
_____ (a minor whose parent or legal guardian the
accused was not) (a person not a minor) against (his)
(her) will.
75. Article 126 (10 U.S.C. 926)—Arson; burning
property with intent to defraud
a. Text of statute.
(a) AGGRAVATED ARSON.—Any person
subject to this chapter who, willfully and
maliciously, burns or sets on fire an inhabited
dwelling, or any other structure, movable or
immovable, wherein, to the knowledge of that
person, there is at the time a human being, is guilty
of aggravated arson and shall be punished as a
court-martial may direct.
(b) SIMPLE ARSON.—Any person subject to
this chapter who, willfully and maliciously, burns
or sets fire to the property of another is guilty of
simple arson and shall be punished as a court-
martial may direct.
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(c) BURNING PROPERTY WITH INTENT TO
DEFRAUD.—Any person subject to this chapter
who, willfully, maliciously, and with intent to
defraud, burns or sets fire to any property shall be
punished as a court-martial may direct.
b. Elements.
(1) Aggravated arson.
(a) Inhabited dwelling.
(i) That the accused burned or set on fire an
inhabited dwelling; and
(ii) That the act was willful and malicious.
(b) Structure.
(i) That the accused burned or set on fire a
certain structure;
(ii) That the act was willful and malicious;
(iii) That there was a human being in the
structure at the time; and
(iv) That the accused knew that there was a
human being in the structure at the time.
(2) Simple arson.
(a) That the accused burned or set fire to certain
property of another; and
(b) That the act was willful and malicious.
[Note: if the property is of a value of more than $1,000,
add the following element:]
(c) That the property is of a value of more than
$1,000.
(3) Burning with the intent to defraud.
(a) That the accused burned or set fire to certain
property; and
(b) That the act was willful and malicious; and
(c) That such burning or setting on fire was with
the intent to defraud a certain person or organization.
c. Explanation.
(1) In general. In aggravated arson, danger to human
life is the essential element; in simple arson, it is injury
to the property of another. In either case, it is
immaterial that no one is, in fact, injured. It must be
shown that the accused set the fire willfully and
maliciously, that is, not merely by negligence or
accident. In burning with intent to defraud, it is the
fraudulent intent motivating the burning of any
property that is the essential element. It is immaterial
to whom the property belonged; the focus is that the
burning of that property was for a fraudulent purpose
(e.g., the intent to file a false insurance claim for the
property burned by the accused).
(2) Aggravated arson.
(a) Inhabited dwelling. “An inhabited dwelling”
means the structure must be used for habitation, not
that a human being must be present therein at the time
the dwelling is burned or set on fire. It includes the
outbuildings that form part of the cluster of buildings
used as a residence. A shop or store is not an inhabited
dwelling unless occupied as such, nor is a house that
has never been occupied or that has been temporarily
abandoned. A person may be guilty of aggravated
arson of the person’s dwelling, whether as owner or
tenant.
(b) Structure. Aggravated arson may also be
committed by burning or setting on fire any other
structure, movable or immovable, such as a theater,
church, boat, trailer, tent, auditorium, or any other sort
of shelter or edifice, whether public or private, when
the offender knows that there is a human being inside
at the time. It may be that the offender had this
knowledge when the nature of the structure—as a
department store or theater during hours of business, or
other circumstances—are shown to have been such that
a reasonable person would have known that a human
being was inside at the time.
(c) Damage to property. It is not necessary that the
dwelling or structure be consumed or materially
injured; it is enough if fire is actually communicated to
any part thereof. Any actual burning or charring is
sufficient, but a mere scorching or discoloration by
heat is not.
(d) Value and ownership of property. For the
offense of aggravated arson, the value and ownership
of the dwelling or other structure are immaterial, but
may be alleged and proved to permit the finding in an
appropriate case of the included offense of simple
arson.
(3) Simple arson. Simple arson is the willful and
malicious burning or setting fire to the property of
another under circumstances not amounting to
aggravated arson. The offense includes burning or
setting fire to real or personal property of someone
other than the offender. See subparagraph 75.c.(1) for
discussion of willful and malicious.
(4) Burning with the intent to defraud. See
subparagraph 70.c.(14) for a discussion of intent to
defraud.
d. Maximum punishment.
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(1) Aggravated arson. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 25 years.
(2) Simple arson—
(a) Where the property is of some value.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 5 years.
(b) Where the property is of a value of more than
$1,000. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 10 years.
(3) Burning with intent to defraud. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 10 years.
e. Sample specifications.
(1) Aggravated arson.
(a) Inhabited dwelling.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and maliciously (burn) (set on fire) an inhabited
dwelling, to wit: (a house) (an apartment)
(__________).
(b) Structure.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and maliciously (burn) (set on fire), knowing that a
human being was therein at the time, (the Post Theater)
(__________).
(2) Simple arson.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and maliciously (burn) (set fire to) (an automobile)
(__________), (of some value) (of a value of more than
$1,000), the property of another.
(3) Burning with intent to defraud.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, willfully
and maliciously (burn) (set fire to) (a dwelling) (a barn)
(an automobile) (_________), with intent to defraud
(the insurer thereof, to wit: ________) (________).
76. Article 127 (10 U.S.C. 927)—Extortion
a. Text of statute.
Any person subject to this chapter who
communicates threats to another person with the
intention thereby to obtain anything of value or any
acquittance, advantage, or immunity is guilty of
extortion and shall be punished as a court-martial
may direct.
b. Elements.
(1) That the accused communicated a certain threat
to another; and
(2) That the accused intended to unlawfully obtain
something of value, or any acquittance, advantage, or
immunity.
c. Explanation.
(1) In general. Extortion is complete upon
communication of the threat with the requisite intent.
The actual or probable success of the extortion need
not be proved.
(2) Threat. A threat may be communicated by any
means but must be received by the intended victim.
The threat may be: a threat to do any unlawful injury
to the person or property of the person threatened or to
any member of that person’s family or any other person
held dear to that person; a threat to accuse the person
threatened, or any member of that person’s family or
any other person held dear to that person, of any crime;
a threat to expose or impute any deformity or disgrace
to the person threatened or to any member of that
person’s family or any other person held dear to that
person; a threat to expose any secret affecting the
person threatened or any member of that person’s
family or any other person held dear to that person; or
a threat to do any other harm.
(3) Acquittance. An acquittance is a release or
discharge from an obligation.
(4) Advantage or immunity. Unless it is clear from
the circumstances, the advantage or immunity sought
should be described in the specification. An intent to
make a person do an act against that person’s will is
not, by itself, sufficient to constitute extortion.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specifications.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, with intent
unlawfully to obtain (something of value, to wit:
________) (an acquittance) (an advantage, to wit:
__________) (an immunity, to wit: __________),
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communicate to __________ a threat to (here describe
the threat).
77. Article 128 (10 U.S.C. 928)—Assault
a. Text of statute.
(a) ASSAULT.—Any person subject to this
chapter who, unlawfully and with force
or violence—
(1) attempts to do bodily harm to another
person;
(2) offers to do bodily harm to another person;
or
(3) does bodily harm to another person;
is guilty of assault and shall be punished as a court-
martial may direct.
(b) AGGRAVATED ASSAULT.—Any person
subject to this chapter—
(1) who, with the intent to do bodily harm,
offers to do bodily harm with a
dangerous weapon;
(2) who, in committing an assault, inflicts
substantial bodily harm or grievous bodily
harm on another person; or
(3) who commits an assault by strangulation or
suffocation;
is guilty of aggravated assault and shall be punished
as a court-martial may direct.
(c) ASSAULT WITH INTENT TO COMMIT
SPECIFIED OFFENSES.—
(1) IN GENERAL.—Any person subject to this
chapter who commits assault with intent to commit
an offense specified in paragraph (2) shall be
punished as a court-martial may direct.
(2) OFFENSES SPECIFIED.—The offenses
referred to in paragraph (1) are murder, voluntary
manslaughter, rape, sexual assault, rape of a child,
sexual assault of a child, robbery, arson, burglary,
and kidnapping.
b. Elements.
(1) Simple assault.
(a) That the accused attempted to do or offered to
do bodily harm to a certain person;
(b) That the attempt or offer was done unlawfully;
and
(c) That the attempt or offer was done with force
or violence.
(2) Assault consummated by a battery.
(a) That the accused did bodily harm to a certain
person;
(b) That the bodily harm was done unlawfully; and
(c) That the bodily harm was done with force or
violence.
(3) Assaults permitting increased punishment based
on status of victim.
(a) Assault upon a commissioned, warrant,
noncommissioned, or petty officer.
(i) That the accused attempted to do, offered to
do, or did bodily harm to a certain person;
(ii) That the attempt, offer, or bodily harm was
done unlawfully;
(iii) That the attempt, offer, or bodily harm was
done with force or violence;
(iv) That the person was a commissioned,
warrant, noncommissioned, or petty officer; and
(v) That the accused then knew that the person
was a commissioned, warrant, noncommissioned, or
petty officer.
(b) Assault upon a sentinel or lookout in the
execution of duty, or upon a person in the execution of
law enforcement duties.
(i) That the accused attempted to do, offered to
do, or did bodily harm to a certain person;
(ii) That the attempt, offer, or bodily harm was
done unlawfully;
(iii) That the attempt, offer, or bodily harm was
done with force or violence;
(iv) That the person was a sentinel or lookout in
the execution of duty or was a person who then had and
was in the execution of security police, military police,
shore patrol, master at arms, or other military or
civilian law enforcement duties; and
(v) That the accused then knew that the person
was a sentinel or lookout in the execution of duty or
was a person who then had and was in the execution of
security police, military police, shore patrol, master at
arms, or other military or civilian law enforcement
duties.
(c) Assault consummated by a battery upon a child
under 16 years.
(i) That the accused did bodily harm to a certain
person;
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(ii) That the bodily harm was done unlawfully;
(iii) That the bodily harm was done with force
or violence; and
(iv) That the person was then a child under the
age of 16 years.
(4) Aggravated assault.
(a) Assault with a dangerous weapon.
(i) That the accused offered to do bodily harm
to a certain person;
(ii) The offer was made with the intent to do
bodily harm; and
(iii) That the accused did so with a dangerous
weapon.
[Note: Add any of the following elements as
applicable:]
(iv) That the dangerous weapon was a loaded
firearm.
(v) That the person was a child under the age of
16 years.
(b) Assault in which substantial bodily harm is
inflicted.
(i) That the accused assaulted a certain person;
and
(ii) That substantial bodily harm was thereby
inflicted upon such person.
[Note: Add any of the following elements as
applicable:]
(iii) That the injury was inflicted with a loaded
firearm.
(iv) That the person was a child under the age of
16 years.
(c) Assault in which grievous bodily harm is
inflicted.
(i) That the accused assaulted a certain person;
and
(ii) That grievous bodily harm was thereby
inflicted upon such person.
[Note: Add any of the following elements as
applicable:]
(iii) That the injury was inflicted with a loaded
firearm.
(iv) That the person was a child under the age of
16 years.
(d) Aggravated Assault by strangulation or
suffocation.
(i) That the accused assaulted a certain person;
(ii) That the accused did so by strangulation or
suffocation; and;
(iii) That the strangulation or suffocation was
done with unlawful force or
violence;
[Note: Add the following as applicable]
(iv) That the person was a child under the age of
16 years.
(5) Assault with intent to commit specified offenses.
(a) That the accused assaulted a certain person;
and
(b) That the accused, at the time of the assault,
intended to: kill (as required for murder or voluntary
manslaughter), or commit rape, rape of a child, sexual
assault, sexual assault of a child, robbery, arson,
burglary, or kidnapping.
c. Explanation.
(1) Definitions of bodily harm.
(a) “Bodily harm” means an offensive touching of
another, however slight.
(b) “Substantial bodily harm” means a bodily
injury that involves:
(i) a temporary but substantial disfigurement, or
(ii) a temporary but substantial loss or
impairment of function of any bodily member, organ,
or mental faculty.
(c) “Grievous bodily harm” means a bodily injury
that involves:
(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) protracted and obvious disfigurement; or
(iv) protracted loss or impairment of the
function of a bodily member, organ, or mental faculty.
(2) Simple assault.
(a) Definition of assault. An assault is an unlawful
attempt or offer, made with force or violence, to do
bodily harm to another, whether or not the attempt or
offer is consummated. It must be done without legal
justification or excuse and without the lawful consent
of the person affected.
(b) Difference between attempt and offer type
assaults.
(i) Attempt-type assault. An attempt-type assault
requires a specific intent to inflict bodily harm, and an
overt act—that is, an act that amounts to more than
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mere preparation and apparently tends to effect the
intended bodily harm. An attempt-type assault may be
committed even though the victim had no knowledge
of the incident at the time.
(ii) Offer-type assault. An offer-type assault is
an unlawful demonstration of violence, either by an
intentional or by a culpably negligent act or omission,
which creates in the mind of another a reasonable
apprehension of receiving immediate bodily harm.
Specific intent to inflict bodily harm is not required.
(iii) Examples.
(A) If Doe swings a fist at Roe’s head
intending to hit Roe but misses, Doe has committed an
attempt-type assault, whether or not Roe is aware of
the attempt.
(B) If Doe swings a fist in the direction of
Roe’s head either intentionally or as a result of
culpable negligence, and Roe sees the blow coming
and is thereby put in apprehension of being struck, Doe
has committed an offer-type assault whether or not Doe
intended to hit Roe.
(C) If Doe swings at Roe’s head, intending to
hit it, and Roe sees the blow coming and is thereby put
in apprehension of being struck, Doe has committed
both on offer- and an attempt-type assault.
(D) If Doe swings at Roe’s head simply to
frighten Roe, not intending to hit Roe, and Roe does
not see the blow and is not placed in fear, then no
assault of any type has been committed.
(c) Situations not amounting to assault.
(i) Mere preparation. Preparation not
amounting to an overt act, such as picking up a stone
without any attempt or offer to throw it, does not
constitute an assault.
(ii) Threatening words. The use of threatening
words alone does not constitute an assault. However, if
the threatening words are accompanied by a menacing
act or gesture, there may be an assault, since the
combination constitutes a demonstration of violence.
(iii) Circumstances negating intent to harm. If
the circumstances known to the person menaced
clearly negate an intent to do bodily harm, there is no
assault. Thus, if a person accompanies an apparent
attempt to strike another by an unequivocal
announcement in some form of an intention not to
strike, there is no assault. For example, if Doe raises a
stick and shakes it at Roe within striking distance
saying, “If you weren’t an old man, I would knock you
down,” Doe has committed no assault. However, an
offer to inflict bodily injury upon another instantly if
that person does not comply with a demand that the
assailant has no lawful right to make is an assault.
Thus, if Doe points a pistol at Roe and says, “If you
don’t hand over your watch, I will shoot you,” Doe has
committed an assault upon Roe. See also paragraph 67
(Robbery) of this Part.
(d) Situations not constituting defenses to assault.
(i) Assault attempt fails. It is not a defense to a
charge of assault that for some reason unknown to the
assailant, an assault attempt was bound to fail. Thus, if
a person loads a rifle with what is believed to be a good
cartridge and, pointing it at another, pulls the trigger,
that person may be guilty of assault although the
cartridge was defective and did not fire. Likewise, if a
person in a house shoots through the roof at a place
where a policeman is believed to be, that person may
be guilty of assault even though the policeman is at
another place on the roof.
(ii) Retreating victim. An assault is complete if
there is a demonstration of violence and an apparent
ability to inflict bodily injury causing the person at
whom it was directed to reasonably apprehend that
unless the person retreats bodily harm will be inflicted.
This is true even though the victim retreated and was
never within actual striking distance of the assailant.
There must, however, be an apparent present ability to
inflict the injury. Thus, to aim a pistol at a person at
such a distance that it clearly could not injure would
not be an assault.
(3) Battery.
(a) In general. A battery is an assault in which the
attempt or offer to do bodily harm is consummated by
the infliction of that harm.
(b) Application of force. The force applied in a
battery may have been directly or indirectly applied.
Thus, a battery can be committed by inflicting bodily
injury on a person through striking the horse on which
the person is mounted causing the horse to throw the
person, as well as by striking the person directly.
(c) Examples of battery. It may be a battery to spit
on another, push a third person against another, set a
dog at another that bites the person, cut another’s
clothes while the person is wearing them though
without touching or intending to touch the person,
shoot a person, cause a person to take poison, or drive
an automobile into a person. A person who, although
excused in using force, uses more force than is
required, commits a battery. Throwing an object into a
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crowd may be a battery on anyone whom the object
hits.
(d) Situations not constituting battery. If bodily
harm is inflicted unintentionally and without culpable
negligence, there is no battery. It is also not a battery
to touch another to attract the other’s attention or to
prevent injury.
(4) Assaults permitting increased punishment based
on status of victims.
(a) Assault upon a commissioned, warrant,
noncommissioned, or petty officer. The maximum
punishment is increased when assault is committed
upon a commissioned officer of the armed forces of the
United States, or of a friendly foreign power, or upon
a warrant, noncommissioned, or petty officer of the
armed forces of the United States. Knowledge of the
status of the victim is an essential element of the
offense and may be proved by circumstantial evidence.
It is not necessary that the victim be superior in rank or
command to the accused, that the victim be in the same
armed force, or that the victim be in the execution of
office at the time of the assault.
(b) Assault upon a sentinel or lookout in the
execution of duty, or upon a person in the execution of
law enforcement duties. The maximum punishment is
increased when assault is committed upon a sentinel or
lookout in the execution of duty or upon a person who
was then performing security police, military police,
shore patrol, master at arms, or other military or
civilian law enforcement duties. Knowledge of the
status of the victim is an essential element of this
offense and may be proved by circumstantial evidence.
See subparagraph 22.c.(1)(d) for the definition of
sentinel or lookout.
(c) Assault consummated by a battery upon a child
under 16 years of age. The maximum punishment is
increased when assault consummated by a battery is
committed upon a child under 16 years of age.
Knowledge that the person assaulted was under 16
years of age is not an element of this offense.
(5) Aggravated assault.
(a) Assault with a dangerous weapon.
(i) In general. It must be proved that the accused
specifically intended to do bodily harm. Culpable
negligence will not suffice.
(ii) Proving intent. Specific intent may be
proved by circumstantial evidence. When bodily harm
has been inflicted by means of intentionally using force
in a manner capable of achieving that result, it may be
inferred that bodily harm was intended.
(iii) Dangerous weapon. A weapon is dangerous
when used in a manner capable of inflicting death or
grievous bodily harm. What constitutes a dangerous
weapon depends not on the nature of the object itself
but on its capacity, given the manner of its use, to kill
or inflict grievous bodily harm. Thus, a bottle, beer
glass, a rock, a bunk adaptor, a piece of pipe, a piece of
wood, boiling water, drugs, or a rifle butt may be used
in a manner capable of inflicting death or grievous
bodily harm. Furthermore, under the appropriate
circumstances, fists, teeth, feet, elbows, etc. may be
considered a dangerous weapon when employed in a
manner capable of inflicting death or grievous bodily
harm.
(iv) Injury not required. It is not necessary that
bodily harm be actually inflicted to prove assault with
a dangerous weapon.
(v) When committed upon a child under 16
years of age. The maximum punishment is increased
when assault with a dangerous weapon is committed
upon a child under 16 years of age. Knowledge that the
person assaulted was under the age of 16 years is not
an element of the offense.
(b) Assault in which substantial or grievous bodily
harm is inflicted.
(i) In general. Assault in which substantial or
grievous bodily harm is inflicted is a general intent
crime which requires that the accused assaulted
another person and that the assault resulted in
substantial or grievous bodily harm. The offense does
not require specific intent to cause substantial or
grievous bodily harm. The focus of the offense is the
degree of bodily harm resulting from an assault. This
contrasts with the offense of assault with a dangerous
weapon, where the focus of the offense is the accused’s
intent to do bodily harm and the use of a dangerous
weapon, regardless of whether any bodily harm results.
(ii) When committed on a child under 16 years
of age. The maximum punishment is increased when
assault involving infliction of substantial or grievous
bodily harm is inflicted upon a child under 16 years of
age. Knowledge that the person assaulted was under
the age of 16 years is not an element of the offense.
(c) Aggravated Assault by strangulation or
suffocation.
(i) In general. Assault by strangulation or
suffocation is an assault committed intentionally,
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knowingly, or recklessly, regardless of whether that
conduct results in any visible injury or whether there is
any intent to kill or protractedly injure the victim.
(ii) Assault. See paragraph 77.c.(2)(a).
(iii) Strangulation. Intentionally, knowingly, or
recklessly impeding the normal breathing or
circulation of the blood of a person by applying
pressure to the throat or neck, regardless of whether
that conduct results in any visible injury or whether
there is any intent to kill or protractedly injure the
victim.
(iv) Suffocation. Intentionally, knowingly, or
recklessly impeding the normal breathing of a person
by covering the mouth of the person, the nose of the
person, or both, regardless of whether that conduct
results in any visible injury or whether there is any
intent to kill or protractedly injure the victim.
(v) When committed upon a child under 16
years of age. The maximum punishment is increased
when aggravated assault by strangulation or
suffocation is inflicted upon a child under 16 years of
age. Knowledge that the person assaulted was under
the age of 16 years is not an element of the offense.
(6) Assault with intent to commit specified offenses.
(a) In general. An assault with intent to commit
any of the offenses referenced below is not necessarily
the equivalent of an attempt to commit the intended
offense, for an assault can be committed with intent to
commit an offense without achieving that proximity to
consummation of an intended offense that is essential
to an attempt. See paragraph 4 of this Part.
(b) Assault with intent to murder. Assault with
intent to commit murder is assault with the specific
intent to kill. Actual infliction of injury is not
necessary. To constitute an assault with intent to
murder with a firearm, it is not necessary that the
weapon be discharged. When the intent to kill exists,
the fact that for some unknown reason the actual
consummation of the murder by the means employed
is impossible is not a defense if the means are
apparently adapted to the end in view. The intent to kill
need not be directed against the person assaulted if the
assault is committed with intent to kill some person.
For example, if a person, intending to kill Jones, shoots
Smith, mistaking Smith for Jones, that person is guilty
of assaulting Smith with intent to murder. If a person
fires into a group with intent to kill anyone in the
group, that person is guilty of an assault with intent to
murder each member of the group.
(c) Assault with intent to commit voluntary
manslaughter. Assault with intent to commit voluntary
manslaughter is an assault committed with a specific
intent to kill under such circumstances that, if death
resulted therefrom, the offense of voluntary
manslaughter would have been committed. There can
be no assault with intent to commit involuntary
manslaughter, for it is not a crime capable of being
intentionally committed.
(d) Assault with intent to commit rape, rape of a
child, sexual assault, and sexual assault of a child. In
assault with intent to commit any rape or sexual
assault, the accused must have intended to complete
the offense. Any lesser intent will not suffice. No
actual touching is necessary. Once an assault with
intent to commit rape is made, it is no defense that the
accused voluntarily desisted.
(e) Assault with intent to rob. For assault with intent
to rob, the fact that the accused intended to take money
and that the person the accused intended to rob had
none is not a defense.
d. Maximum punishment.
(1) Simple assault.
(a) Generally. Confinement for 3 months and
forfeiture of two-thirds pay per month for 3 months.
(b) When committed with a firearm or other
dangerous weapon. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 2 years.
(c) When committed with a loaded firearm.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 4 years.
(2) Battery.
(a) Assault consummated by a battery. Bad-
conduct discharge, forfeiture of all pay and
allowances, and confinement for 6 months.
(b) Assault consummated by a battery upon a child
under 16 years. See paragraph 77.d.(3)(e).
(3) Assaults permitting increased punishments based
upon status of victim.
(a) Assault upon a commissioned officer of the
armed forces of the United States or of a friendly
foreign power, not in the execution of office.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 3 years.
(b) Assault upon a warrant officer, not in the
execution of office. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 18
months.
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(c) Assault upon a noncommissioned or petty
officer, not in the execution of office. Bad conduct
discharge, forfeiture of all pay and allowances, and
confinement for 6 months.
(d) Assault upon a sentinel or lookout in the
execution of duty, or upon any person who, in the
execution of office, is performing security policy,
military police, shore patrol, master at arms, or other
military or civilian law enforcement duties.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 3 years.
(e) Assault consummated by a battery upon a child
under 16 years. Dishonorably discharge, forfeiture of
all pay and allowances, and confinement for 2 years.
(4) Aggravated assault.
(a) Aggravated assault with a dangerous weapon.
(i) When committed with a loaded firearm.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 8 years.
(ii) When committed upon a child under the age
of 16 years. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 5 years.
(iii) Other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
(b) Aggravated assault in which substantial bodily
harm is inflicted.
(i) When the injury is inflicted with a loaded
firearm. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 8 years.
(ii) When the injury is inflicted upon a child
under the age of 16 years. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 6 years.
(iii) Other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
(c) Aggravated assault in which grievous bodily
harm is inflicted.
(i) When the injury is inflicted with loaded
firearm. Dishonorable discharge, forfeiture of all pay
and allowance, and confinement for 10 years.
(ii) When the injury is inflicted upon a child
under the age of 16 years. Dishonorable, forfeiture of
all pay and allowances, and confinement for 8 years.
(iii) Other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
(d) Aggravated Assault by strangulation or
suffocation.
(i) Aggravated assault by strangulation or
suffocation when committed upon a child under the age
of 16 years. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 8 years.
(ii) Other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
(5) Assault with intent to commit specified offenses.
(a) Assault with intent to commit murder, rape, or
rape of a child. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 20 years.
(b) Assault with intent to commit voluntary
manslaughter, robbery, arson, burglary, kidnapping,
sexual assault, or sexual assault of a child.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 10 years.
e. Sample specifications.
(1) Simple assault.
In that __________ (personal jurisdiction data), did,
(at/on board—location), (subject-matter jurisdiction
data, if required), on or about _____ 20 __, assault
__________ by (striking at (him) (her) with a
__________) (__________).
(2) Assault consummated by a battery.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, unlawfully
(strike) (__________) __________ (on) (in) the
__________ with __________.
(3) Assault upon a commissioned officer.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, assault
_____, who then was and was then known by the
accused to be a commissioned officer of (_____, a
friendly foreign power) [the United States (Army)
(Navy) (Marine Corps) (Air Force) (Coast Guard)
(______)] by _______________.
(4) Assault upon a warrant, noncommissioned, or
petty officer.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, assault
__________, who then was and was then known by the
accused to be a (warrant) (noncommissioned) (petty)
officer of the [the United States (Army) (Navy)
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(Marine Corps) (Air Force) (Coast Guard) (______)]
by _______________.
(5) Assault upon a sentinel or lookout.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, assault
__________, who then was and was then known by the
accused to be a (sentinel) (lookout) in the execution of
(his) (her) duty, ((in) (on) the __________) by
__________.
(6) Assault upon a person in the execution of law
enforcement duties.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, assault
__________, who then was and was then known by the
accused to be a person then having and in the execution
of (Air Force security police) (military police) (shore
patrol) (master at arms) ((military) (civilian) law
enforcement)) duties, by __________.
(7) Assault consummated by a battery upon a child
under 16 years.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject-matter jurisdiction data,
if required), on or about _____ 20 __, unlawfully
(strike) (_______) _________ (a child under the age of
16 years) (in) (on) the _____ with ____________.
(8) Assault, aggravated―with a dangerous weapon.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject matter jurisdiction data,
if required), on or about _____ 20 __, with the intent to
inflict bodily harm, commit an assault upon
__________ (a child under the age of 16 years) by
(shooting) (pointing) (striking) (cutting) (_____) (at
(him) (her)) with a dangerous weapon, to wit: a (loaded
firearm) (pickax) (bayonet) (club) (_________).
(9) Assault, aggravated―inflicting substantial bodily
harm.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject matter jurisdiction data,
if required), on or about _____ 20 __, commit an
assault upon _____ (a child under the age of 16 years)
by (shooting) (striking) (cutting) (___) (him) (her) (on)
the _____ with a (loaded firearm) (club) (rock) (brick)
(________) and did thereby inflict substantial bodily
harm upon (him) (her), to wit: (severe bruising of the
face) (head concussion) (temporary blindness)
(__________).
(10) Assault, aggravated―inflicting grievous bodily
harm.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject matter jurisdiction data,
if required), on or about _____ 20 __, commit an
assault upon _____ (a child under the age of 16 years)
by (shooting) (striking) (cutting) (___) (him) (her) (on)
the _____ with a (loaded firearm) (club) (rock) (brick)
(_________) and did thereby inflict grievous bodily
harm upon (him) (her), to wit: a (broken leg) (deep cut)
(fractured skull) (__________).
(11) Assault, aggravated―by strangulation or
suffocation.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject matter jurisdiction data,
if required), on or about _____ 20 __, commit an
assault upon __________ (a child under the age of 16
years) by unlawfully (strangling) (suffocating) (him)
(her) (with/by __________).
(12) Assault with intent to commit specified offenses.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject matter jurisdiction data,
if required), on or about _____ 20 __, with intent to
commit (murder) (voluntary manslaughter) (rape)
(rape of a child) (sexual assault) (sexual assault of a
child) (robbery) (arson) (burglary) (kidnapping),
assault____________ by (striking at (him) (her) with a
__________) (__________).
78. Article 128a (10 U.S.C. 928a)—Maiming
a. Text of statute.
Any person subject to this chapter who, with intent
to injure, disfigure, or disable, inflicts upon the
person of another an injury which—
(1) seriously disfigures his person by any
mutilation thereof;
(2) destroys or disables any member or organ of
his body; or
(3) seriously diminishes his physical vigor by the
injury of any member or organ;
is guilty of maiming and shall be punished as a
court-martial may direct.
b. Elements.
(1) That the accused inflicted a certain injury upon a
certain person;
(2) That this injury seriously disfigured the person’s
body, destroyed or disabled an organ or member, or
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seriously diminished the person’s physical vigor by the
injury to an organ or member; and
(3) That the accused inflicted this injury with an
intent to cause some injury to a person.
c. Explanation
.
(1) Nature of offense. It is maiming to put out a
person’s eye, to cut off a hand, foot, or finger, or to
knock out a tooth, as these injuries destroy or disable
those members or organs. It is also maiming to injure
an internal organ so as to seriously diminish the
physical vigor of a person. Likewise, it is maiming to
cut off an ear or to scar a face with acid, as these
injuries seriously disfigure a person. A disfigurement
need not mutilate any entire member to come within
the article, or be of any particular type, but must be
such as to impair perceptibly and materially the
victim’s comeliness. The disfigurement, diminishment
of vigor, or destruction or disablement of any member
or organ must be a serious injury of a substantially
permanent nature. However, the offense is complete if
such an injury is inflicted even though there is a
possibility that the victim may eventually recover the
use of the member or organ, or that the disfigurement
may be cured by surgery.
(2) Means of inflicting injury. To prove the offense
it is not necessary to prove the specific means by which
the injury was inflicted. However, such evidence may
be considered on the question of intent.
(3) Intent. Maiming requires a specific intent to
injure generally but not a specific intent to maim. Thus,
one commits the offense who intends only a slight
injury, if in fact there is infliction of an injury of the
type specified in this article. Infliction of the type of
injuries specified in this article upon the person of
another may support an inference of the intent to injure,
disfigure, or disable.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 20 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required) on or about _____ 20 __, maim
__________ by (crushing (his) (her) foot with a sledge
hammer) (__________).
78a. Article 128b (10 U.S.C. 928b) – Domestic
Violence
a. Text of statute.
Any person who—
(1) commits a violent offense against a spouse, an
intimate partner, or an immediate family member
of that person;
(2) with intent to threaten or intimidate a spouse,
an intimate partner, or an immediate family
member of that person—
(A) commits an offense under this chapter
against any person; or
(B) commits an offense under this chapter
against any property, including an animal;
(3) with intent to threaten or intimidate a spouse,
an intimate partner, or an immediate family
member of that person, violates a protection order;
(4) with intent to commit a violent offense against
a spouse, an intimate partner, or an immediate
family member of that person, violates a protection
order; or
(5) assaults a spouse, an intimate partner, or an
immediate family member of that person by
strangling or suffocating; shall be punished as a
court-martial may direct.
b. Elements.
(1) Commission of a violent offense against a spouse,
intimate partner, or immediate family member of that
person.
(a) That the accused committed a violent offense;
and
(b) That the violent offense was committed against
a spouse, intimate partner, or immediate family
member of the accused.
[Note: Add the following as applicable]
(c) That the immediate family member was a child
under the age of 16 years.
(2) Commission of a violation of the UCMJ against
any person with intent to threaten or intimidate a
spouse, an intimate partner, or an immediate family
member of that person.
(a) That the accused committed an act in violation
of the UCMJ;
(b) That the accused committed the act against any
person; and
(c) That the accused committed the act with the
intent to threaten or intimidate a spouse, an intimate
partner, or an immediate family member of the
accused.
(3) Commission of a violation of the UCMJ against
any property, including an animal, with the intent to
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threaten or intimidate a spouse, intimate partner, or an
immediate family member of that person.
(a) That the accused committed an act in violation
of the UCMJ;
(b) That the accused committed the act against any
property, including an animal; and
(c) That the accused committed the act with the
intent to threaten or intimidate a spouse, an intimate
partner, or an immediate family member of the
accused.
(4) Violation of a protection order with the intent to
threaten or intimidate a spouse, an intimate partner, or
an immediate family member of that person.
(a) That a lawful protection order was in place;
(b) That the accused committed an act in violation
of that lawful protection order; and
(c) That the accused committed the act with the
intent to threaten or intimidate a spouse, an intimate
partner, or an immediate family member of the
accused.
(5) Violation of a protection order with the intent to
commit a violent offense against a spouse, an intimate
partner, or an immediate family member of that
person.
(a) That a lawful protection order was in place;
(b) That the accused committed an act in violation
of that lawful protection order; and
(c) That the accused committed the act with the
intent to commit a violent offense against a spouse, an
intimate partner, or an immediate family member of
the accused.
(6) Assaulting a spouse, an intimate partner, or an
immediate family member of that person by
strangulation or suffocation.
(a) That the accused assaulted a spouse, an
intimate partner, or an immediate family member of
the accused;
(b) That the accused did so by strangulation or
suffocation; and
(c) That the strangulation or suffocation was done
with unlawful force or violence;
[Note: Add the following as applicable]
(d) That the person was a child under the age of 16
years.
c. Explanation.
(1) Violent Offense. The term “violent offense”
means a violation of the following:
(a) 10 U.S.C. § 918 (article 118)
(b) 10 U.S.C. § 919(a) (article 119(a))
(c) 10 U.S.C. § 919a (article 119a)
(d) 10 U.S.C. § 920 (article 120)
(e) 10 U.S.C. § 920b (article 120b)
(f) 10 U.S.C. § 922 (article 122)
(g) 10 U.S.C. § 925 (article 125)
(h) 10 U.S.C. § 926 (article 126)
(i) 10 U.S.C. § 928 (article 128)
(j) 10 U.S.C. § 928a (article 128a)
(k) 10 U.S.C. § 930 (article 130)
(l) Any other offense that has an element that
includes the use, attempted use, or threatened use of
physical force against the person or property of
another.
(2) Spouse. The term “spouse” means one’s husband
or wife by lawful marriage.
(3) Intimate partner. The term “intimate partner”
means—
(a) one’s former spouse, a person with whom one
shares a child in common, or a person with whom one
cohabits or with whom one has cohabited as a spouse;
or
(b) a person with whom one has been in a social
relationship of a romantic or intimate nature, as
determined by the length of the relationship, the type
of relationship, and the frequency of interaction
between the persons involved in the relationship.
(4) Immediate family. The term “immediate family”
means—
(a) one’s spouse, parent, brother or sister, child, or
other person to whom he or she stands in loco parentis;
or
(b) any other person living in one’s household to
whom he or she is related by blood or marriage.
(5) Strangulation. The term “strangulation” has the
same meaning ascribed to that term in subparagraph
77.c.(5)(c)(iii).
(6) Suffocation. The term “suffocation” has the same
meaning ascribed to that term in subparagraph
77.c.(5)(c)(iv).
(7) Protection order. The term “protection order”
means—
(a) a military protective order enforceable under
10 U.S.C. § 892 (article 92); or
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(b) a protection order, as defined in 18 U.S.C. §
2266 and, if issued by a State, tribal, or territorial court,
is in accordance with the standards specified in 18
U.S.C. § 2265.
(8) Mandatory Minimum Punishments. In
accordance with 10 U.S.C. § 856 (article 56), for a
conviction of an offense under this paragraph,
mandatory minimum punishment provisions
shall not apply.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
as follows:
(1) Commission of a violent offense against a spouse,
an intimate partner, or an immediate family member of
that person. Any person subject to the UCMJ who is
found guilty of violating Article 128b by committing a
violent offense against a spouse, an intimate partner, or
an immediate family member of that person shall be
subject to the same maximum period of confinement
authorized for the commission of the underlying
offense plus an additional 3 years of confinement
except for those violent offenses for which the
maximum punishment includes death, confinement for
life without eligibility for parole, or confinement for
life.
(2) Commission of a violation of the UCMJ against
any person with intent to threaten or intimidate a
spouse, an intimate partner, or an immediate family
member of that person. Any person subject to the
UCMJ who is found guilty of violating Article 128b by
committing an offense punishable under the UCMJ
with intent to threaten or intimidate a spouse, an
intimate partner, or an immediate family member of
that person shall be subject to the same maximum
period of confinement authorized for the commission
of the underlying offense plus an additional 3 years,
with the exception of those offenses for which the
maximum punishment includes death, confinement for
life without eligibility for parole, or confinement for
life.
(3) Commission of a violation of the UCMJ against
any property, including an animal, with the intent to
threaten or intimidate a spouse, intimate partner, or an
immediate family member of that person. Any person
subject to the UCMJ who is found guilty of violating
Article 128b by committing an offense punishable
under the UCMJ against any property, including an
animal, with the intent to threaten or intimidate a
spouse, an intimate partner, or an immediate family
member of that person shall be subject to the same
maximum period of confinement authorized for the
commission of the underlying offense plus an
additional 3 years, with the exception of those offenses
for which the maximum punishment includes death,
confinement for life without eligibility for parole, or
confinement for life.
(4) Violation of a protection order with the intent to
threaten or intimidate a spouse, an intimate partner, or
an immediate family member of that person.
Confinement for 3 years.
(5) Violation of a protection order with the intent to
commit a violent offense against a spouse, an intimate
partner, or an immediate family member of that
person. Confinement for 5 years.
(6) Assaulting a spouse, an intimate partner, or an
immediate family member of that person by
strangulation or suffocation.
(a) Aggravated assault by strangulation or
suffocation when committed upon a child under the age
of 16 years. Confinement for 11 years.
(b) Other cases. Confinement for 8 years.
e. Sample Specifications.
(1) In that __________ (personal jurisdiction data),
did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, commit a
violent offense against ___________, the (spouse)
(intimate partner) (immediate family member)
(immediate family member under the age of 16 years)
of the accused, to wit: (describe offense with sufficient
detail to include expressly or by necessary implication
every element and any applicable sentence enhancer
from the underlying offense).
(2) In that __________ (personal jurisdiction data),
did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, with the
intent to (threaten) (intimidate) the (spouse) (intimate
partner) (immediate family member) of the accused,
commit an offense in violation of the UCMJ against
(any person) (a child under the age of 16 years), to wit:
(describe offense with sufficient detail to include
expressly or by necessary implication every element
and any applicable sentence enhancer from the
underlying offense).
(3) In that __________ (personal jurisdiction data),
did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, with the
intent to (threaten) (intimidate) the (spouse) (intimate
partner) (immediate family member) of the accused,
commit an offense in violation of the UCMJ against
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any property, to wit: (describe offense with sufficient
detail to include expressly or by necessary implication
every element and any applicable sentence enhancer
from the underlying offense).
(4) In that __________ (personal jurisdiction data),
did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, with the
intent to (threaten) (intimidate) the (spouse) (intimate
partner) (immediate family member) of the accused,
wrongfully violate a protection order by
_____________________.
(5) In that __________ (personal jurisdiction data),
did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, violate a
protection order, to wit: _______________, with the
intent to commit a violent offense, to wit: (describe
offense with sufficient detail to include expressly or by
necessary implication every element), against the
(spouse) (intimate partner) (immediate family
member) of the accused.
(6) In that __________ (personal jurisdiction data),
did, (at/on board-location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, commit an
assault upon ____________, the (spouse) (intimate
partner) (immediate family member) (immediate
family member under the age of 16 years) of the
accused, by unlawfully (strangling) (suffocating)
him/her (with/by __________).”
79. Article 129 (10 U.S.C. 929)—Burglary; unlawful
entry
a. Text of statute.
(a) BURGLARY.—Any person subject to this
chapter who, with intent to commit an offense
under this chapter, breaks and enters the building
or structure of another shall be punished as a court-
martial may direct.
(b) UNLAWFUL ENTRY.—Any person subject
to this chapter who unlawfully enters—
(1) the real property of another; or
(2) the personal property of another which
amounts to a structure usually used for habitation
or storage;
shall be punished as a court-martial may direct.
b. Elements.
(1) Burglary.
(a) That the accused unlawfully broke and entered
the building or structure of another; and
(b) That the breaking and entering were done with
the intent to commit an offense punishable under the
UCMJ.
[Note: If the breaking and entering were with the
intent to commit an offense punishable under sections
918-920, 920b-921, 922, 925-928a, and 930 of this title
(Article 118-120, 120b-121, 122, 125-128a, and 130),
add the following element:]
(c) That the breaking and entering were with the
intent to commit an offense punishable under Article
118-120, 120b-121, 122, 125-128a, and 130.
(2) Unlawful entry.
(a) That the accused entered—
(i) the real property of another; or
(ii) certain personal property of another which
amounts to a structure usually used for habitation or
storage; and
(b) That the entry was unlawful.
c. Explanation.
(1) In general. This article combines and
consolidates the crimes of burglary, housebreaking,
and unlawful entry. There is no requirement that an
accused break and enter in the nighttime or that the
structure entered constitute the dwelling house of
another to commit the offense of burglary.
(2) Breaking. There must be a breaking, actual or
constructive. Merely entering through a hole left in the
wall or roof or through an open window or door will
not constitute a breaking; but if a person moves any
obstruction to entry of the house without which
movement the person could not have entered, the
person has committed a breaking. Opening a closed
door or window or other similar fixture, opening wider
a door or window already partly open but insufficient
for the entry, or cutting out the glass of a window or
the netting of a screen is a sufficient breaking. The
breaking of an inner door by one who has entered the
house without breaking, or by a person lawfully within
the house who has no authority to enter the particular
room, is a sufficient breaking, but unless such a
breaking is followed by an entry into the particular
room with the requisite intent, burglary is not
committed. There is a constructive breaking when the
entry is gained by a trick, such as concealing oneself in
a box; under false pretense, such as impersonating a
gas or telephone inspector; by intimidating the
occupants through violence or threats into opening the
door; through collusion with a confederate, an
occupant of the house; or by descending a chimney,
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even if only a partial descent is made and no room is
entered.
(3) Entry. An entry must be effected before the
offense is complete, but the entry of any part of the
body, even a finger, is sufficient. Insertion into the
house of a tool or other instrument is also a sufficient
entry, unless the insertion is solely to facilitate the
breaking or entry. An entry is unlawful if made without
consent of any person authorized to consent to entry or
without other lawful authority.
(4) Building, structure. Building includes room,
shop, store, office, or apartment in a building. Structure
refers only to those structures that are in the nature of
a building or dwelling. Examples of these structures
are a stateroom, hold, or other compartment of a vessel,
an inhabitable trailer, an enclosed truck or freight car,
a tent, and a houseboat. It is not necessary that the
building or structure be in use at the time of the entry.
(5) Intent to commit offense.
(a) Burglary. Both the breaking and entry must be
done with the intent to commit an offense punishable
under the UCMJ in the building or structure. If, after
the breaking and entering, the accused commits one or
more of these offenses, it may be inferred that the
accused intended to commit the offense or offenses at
the time of the breaking and entering. If the evidence
warrants, the intended offense may be separately
charged. It is immaterial whether the offense intended
is committed or even attempted. If the offense is
intended, it is no defense that its commission was
impossible. For example, if an accused enters a house
with intent to murder a resident, but the resident is not
present in the house, the accused may still be found
guilty of burglary.
(b) Unlawful entry. Neither specific intent to
commit an offense, nor breaking is required for this
offense.
(6) Property protected from unlawful entry. The
property protected against unlawful entry includes real
property and the sort of personal property that amounts
to a structure usually used for habitation or storage,
which would usually include vehicles expressly used
for habitation, such as mobile homes and recreational
vehicles. It would usually not include an aircraft,
automobile, tracked vehicle, or a person’s locker, even
though used for storage purposes. However, depending
on the circumstances, an intrusion into such property
may be punishable under Article 134, UCMJ as
conduct prejudicial to good order and discipline or of a
nature to bring discredit upon the armed forces.
(7) Unlawfulness of entry. An entry is unlawful if
made without the consent of any person authorized to
consent to entry or without other lawful authority.
d. Maximum punishment.
(1) Burglary (with the intent to commit an offense
punishable under Article 118-120, 120b-121, 122, 125-
128a, or 130). Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 10 years.
(2) Burglary (with intent to commit any other
offense punishable under the UCMJ). Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
(3) Unlawful entry. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
e. Sample specifications.
(1) Burglary
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, unlawfully
break and enter the (building) (structure) of
__________, to wit _______, with intent to commit an
offense under the Uniform Code of Military Justice
therein, to wit: _________________.
(2) Unlawful entry.
In that __________, (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, unlawfully
enter the (real property) (personal property) (a
structure usually used for habitation or storage) of
____________, to wit ____________.
80. Article 130 (10 U.S.C. 930)—Stalking
a. Text of statute.
(a) IN GENERAL.—Any person subject to this
chapter—
(1) who wrongfully engages in a course of
conduct directed at a specific person that would
cause a reasonable person to fear death or bodily
harm, including sexual assault, to himself or
herself, to a member of his or her immediate family,
or to his or her intimate partner;
(2) who has knowledge, or should have
knowledge, that the specific person will be placed in
reasonable fear of death or bodily harm, including
sexual assault, to himself or herself, to a member of
his or her immediate family, or to his or her
intimate partner; and
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(3) whose conduct induces reasonable fear in
the specific person of death or bodily harm,
including sexual assault, to himself or herself, to a
member of his or her immediate family, or to his or
her intimate partner;
is guilty of stalking and shall be punished as a
court-martial may direct.
(b) DEFINITIONS.—In this section:
(1) The term “conduct” means conduct of any
kind, including use of surveillance, the mails, an
interactive computer service, an electronic
communication service, or an electronic
communication system.
(2) The term “course of conduct” means—
(A) a repeated maintenance of visual or
physical proximity to a specific person;
(B) a repeated conveyance of verbal threat,
written threats, or threats implied by conduct, or a
combination of such threats, directed at or toward
a specific person; or
(C) a pattern of conduct composed of
repeated acts evidencing a continuity of purpose.
(3) The term “repeated”, with respect to
conduct, means two or more occasions of such
conduct.
(4) The term “immediate family”, in the case of
a specific person, means—
(A) that person’s spouse, parent, brother or
sister, child, or other person to whom he or she
stands in loco parentis; or
(B) any other person living in his or her
household and related to him or her by blood or
marriage.
(5) The term “intimate partner”, in the case of
a specific person, means—
(A) a former spouse of the specific person, a
person who shares a child in common with the
specific person, or a person who cohabits with or
has cohabited as a spouse with the specific person;
or
(B) a person who has been in a social
relationship of a romantic or intimate nature with
the specific person, as determined by the length of
the relationship, the type of relationship, and the
frequency of interaction between the persons
involved in the relationship.
b. Elements.
(1) That the accused wrongfully engaged in a course
of conduct directed at a specific person that would
cause a reasonable person to fear death or bodily harm,
including sexual assault, to himself or herself, to a
member of his or her immediate family, or to his or her
intimate partner;
(2) That the accused had knowledge, or should have
had knowledge, that the specific person would be
placed in reasonable fear of death or bodily harm,
including sexual assault, to himself or herself, to a
member of his or her immediate family, or to his or her
intimate partner; and
(3) That the accused’s conduct induced reasonable
fear in the specific person of death or bodily harm,
including sexual assault, to himself or herself, to a
member of his or her immediate family, or to his or her
intimate partner.
c. Explanation.
(1) Bodily Harm. “Bodily harm” means any
offensive touching of another, however slight,
including sexual assault. See subparagraph 77.c.(1).
(2) Threat. “Threat” means a communication, by
words or conduct, of a present determination or intent
to cause bodily harm to a specific person, an immediate
family member of that person, or intimate partner of
that person, presently or in the future. The threat may
be made directly to or in the presence of the person it
is directed at or towards, or the threat may be conveyed
to such person in some manner. Actual intent to cause
bodily harm is not required.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specifications.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction, if
required), (on or about _____ 20 __) (from about
_____ to about _____ 20 __), engage in a course of
conduct directed at ________, that would cause a
reasonable person to fear (death) (bodily harm, to
wit:_______), to (himself) (herself) (a member of (his)
(her) immediate family) ((his) (her) intimate partner);
that the accused knew or should have known that the
course of conduct would place ______ in reasonable
fear of (death) (bodily harm, to wit _____) to (himself)
(herself) (a member of (his) (her) immediate family)
((his) (her) intimate partner); and that the accused’s
conduct placed ______ in reasonable fear of (death)
(bodily harm, to wit:_____) to (himself) (herself) (a
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member of (his) (her) immediate family) ((his) (her)
intimate partner).
81. Article 131 (10 U.S.C. 931)—Perjury
a. Text of statute.
Any person subject to this chapter who in a
judicial proceeding or in a course of justice willfully
and corruptly—
(1) upon a lawful oath or in any form allowed by
law to be substituted for an oath, gives any false
testimony material to the issue or matter of inquiry;
or
(2) in any declaration, certificate, verification, or
statement under penalty of perjury as permitted
under section 1746 of title 28, subscribes any false
statement material to the issue or matter of inquiry;
is guilty of perjury and shall be punished as a court-
martial may direct.
b. Elements.
(1) Giving false testimony.
(a) That the accused took an oath or affirmation in
a certain judicial proceeding or course of justice;
(b) That the oath or affirmation was administered
to the accused in a matter in which an oath or
affirmation was required or authorized by law;
(c) That the oath or affirmation was administered
by a person having authority to do so;
(d) That upon the oath or affirmation that accused
willfully gave certain testimony;
(e) That the testimony was material;
(f) That the testimony was false; and
(g) That the accused did not then believe the
testimony to be true.
(2) Subscribing false statement.
(a) That the accused subscribed a certain statement
in a judicial proceeding or course of justice;
(b) That in the declaration, certification,
verification, or statement under penalty of perjury, the
accused declared, certified, verified, or stated the truth
of that certain statement;
(c) That the accused willfully subscribed the
statement;
(d) That the statement was material;
(e) That the statement was false; and
(f) That the accused did not then believe the
statement to be true.
c. Explanation.
(1) In general. Judicial proceeding includes a trial by
court-martial, and course of justice includes
preliminary hearings conducted under Article 32. If the
accused is charged with having committed perjury
before a court-martial, it must be shown that the court-
martial was duly constituted.
(2) Giving false testimony.
(a) Nature. The testimony must be false and must
be willfully and corruptly given; that is, it must be
proved that the accused gave the false testimony
willfully and did not believe it to be true. A witness
may commit perjury by testifying to the truth of a
matter when in fact the witness knows nothing about it
at all or is not sure about it, whether the thing is true or
false in fact. A witness may also commit perjury in
testifying falsely as to a belief, remembrance, or
impression, or as to a judgment or opinion. It is no
defense that the witness voluntarily appeared, that the
witness was incompetent as a witness, or that the
testimony was given in response to questions that the
witness could have declined to answer.
(b) Material matter. The false testimony must be
with respect to a material matter, but that matter need
not be the main issue in the case. Thus, perjury may be
committed by giving false testimony with respect to the
credibility of a material witness or in an affidavit in
support of a request for a continuance, as well as by
giving false testimony with respect to a fact from
which a legitimate inference may be drawn as to the
existence or nonexistence of a fact in issue.
(c) Proof. The falsity of the allegedly perjured
statement cannot be proved by circumstantial evidence
alone, except with respect to matters which by their
nature are not susceptible of direct proof. The falsity of
the statement cannot be proved by the testimony of a
single witness unless that testimony directly
contradicts the statement and is corroborated by other
evidence either direct or circumstantial, tending to
prove the falsity of the statement. However,
documentary evidence directly disproving the truth of
the statement charged to have been perjured need not
be corroborated if: the document is an official record
shown to have been well known to the accused at the
time the oath was taken; or the documentary evidence
originated from the accused—or had in any manner
been recognized by the accused as containing the
truth—before the allegedly perjured statement was
made.
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(d) Oath. The oath must be one recognized or
authorized by law and must be duly administered by
one authorized to administer it. When a form of oath
has been prescribed, a literal following of that form is
not essential; it is sufficient if the oath administered
conforms in substance to the prescribed form. Oath
includes an affirmation when the latter is authorized in
lieu of an oath.
(e) Belief of accused. The fact that the accused did
not believe the statement to be true may be proved by
testimony of one witness without corroboration or by
circumstantial evidence.
(3) Subscribing false statement. See subparagraphs
(1) and (2), above, as applicable. Section 1746 of title
28, United States Code, provides for subscribing to the
truth of a document by signing it expressly subject to
the penalty for perjury. The signing must take place in
a judicial proceeding or course of justice—for
example, if a witness signs under penalty of perjury
summarized testimony given at an Article 32
preliminary hearing. It is not required that the
document be sworn before a third party. Section 1746
does not change the requirement that a deposition be
given under oath or alter the situation where an oath is
required to be taken before a specific person.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specifications.
(1) Giving false testimony.
In that __________ (personal jurisdiction data),
having taken a lawful (oath) (affirmation) in a (trial by
__________ court-martial of __________) (trial by a
court of competent jurisdiction, to wit: __________ of
__________) (deposition for use in a trial by
__________ of __________) (__________) that (he)
(she) would (testify) (depose) truly, did, (at/on board—
location) (subject-matter jurisdiction data, if required),
on or about _____ 20 __, willfully, corruptly, and
contrary to such (oath) (affirmation), (testify) (depose)
falsely in substance that __________, which
(testimony) (deposition) was upon a material matter
and which (he) (she) did not then believe to be true.
(2) Subscribing false statement.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, in a
(judicial proceeding) (course of justice), and in a
(declaration) (certification) (verification) (statement)
under penalty of perjury pursuant to section 1746 of
title 28, United States Code, willfully and corruptly
subscribed a false statement material to the (issue)
(matter of inquiry), to wit: __________, which
statement was false in that __________, and which
statement (he) (she) did not then believe to be true.
82. Article 131a (10 U.S.C. 931a)—Subornation of
perjury
a. Text of statute.
(a) IN GENERAL.—Any person subject to this
chapter who induces and procures another
person—
(1) to take an oath; and
(2) to falsely testify, depose, or state upon such
oath;
shall, if the conditions specified in subsection (b) are
satisfied, be punished as a court-martial may direct.
(b) CONDITIONS.—The conditions referred to
in subsection (a) are the following:
(1) The oath is administered with respect to a
matter for which such oath is required or
authorized by law.
(2) The oath is administered by a person having
authority to do so.
(3) Upon the oath, the other person willfully
makes or subscribes a statement.
(4) The statement is material.
(5) The statement is false.
(6) When the statement is made or subscribed,
the person subject to this chapter and the other
person do not believe that the statement is true.
b. Elements.
(1) That the accused induced and procured a certain
person to take an oath or its equivalent and to falsely
testify, depose, or state upon such oath or its equivalent
concerning a certain matter;
(2) That the oath or its equivalent was administered
to said person in a matter in which an oath or its
equivalent was required or authorized by law;
(3) That the oath or its equivalent was administered
by a person having authority to do so;
(4) That upon the oath or its equivalent said person
willfully made or subscribed a certain statement;
(5) That the statement was material;
(6) That the statement was false; and
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(7) That the accused and the said person did not then
believe that the statement was true.
c. Explanation.
(1) See subparagraph 81.c for applicable principles.
(2) “Induce and procure” means to influence,
persuade, or cause.
(3) The word “oath” includes affirmation, and sworn
includes affirmed. See 1 U.S.C. § 1.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, procure
__________ to commit perjury by inducing (him)
(her), the said _____, to take a lawful (oath)
(affirmation) in a (trial by court-martial of _____) (trial
by a court of competent jurisdiction, to wit: _____ of
_____) (deposition for use in a trial by _____ of
__________) (_____) that (he) (she), the said _____,
would (testify) (depose) (_____) truly, and to (testify)
(depose) (_____) willfully, corruptly, and contrary to
such (oath) (affirmation) in substance that _____,
which (testimony) (deposition) (_____) was upon a
material matter and which the accused and the said
_____ did not then believe to be true.
83. Article 131b (10 U.S.C. 931b)—Obstructing
justice
a. Text of statute.
Any person subject to this chapter who engages in
conduct in the case of a certain person against
whom the accused had reason to believe there were
or would be criminal or disciplinary proceedings
pending, with intent to influence, impede, or
otherwise obstruct the due administration of justice
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused wrongfully did a certain act;
(2) That the accused did so in the case of a certain
person against whom the accused had reason to believe
there were or would be criminal or disciplinary
proceedings pending; and
(3) That the act was done with the intent to influence,
impede, or otherwise obstruct the due administration of
justice.
c. Explanation.
This offense may be based on conduct that occurred
before preferral of charges. Actual obstruction of
justice is not an element of this offense. Criminal
proceedings include general courts-martial, special
courts-martial, and all other criminal proceedings. For
purposes of this paragraph, disciplinary proceedings
include summary courts-martial as well as nonjudicial
punishment proceedings under Part V of this Manual.
Examples of obstruction of justice include wrongfully
influencing, intimidating, impeding, or injuring a
witness, a person acting on charges under this chapter,
a preliminary hearing officer, or a party; and by means
of bribery, intimidation, misrepresentation, or force or
threat of force delaying or preventing communication
of information relating to a violation of any criminal
statute of the United States to a person authorized by a
department, agency, or armed force of the United
States to conduct or engage in investigations or
prosecutions of such offenses; or endeavoring to do so.
See also paragraph 87 and Article 37.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
do a certain act, to wit: _______________, with intent
to (influence) (impede) (obstruct) the due
administration of justice in the case of
_____________, against whom the accused had reason
to believe that there were or would be (criminal)
(disciplinary) proceedings pending.
84. Article 131c (10 U.S.C. 931c)—Misprision of
serious offense
a. Text of statute.
IN GENERAL.—Any person subject to this
chapter—
(1) who knows that another person has
committed a serious offense; and
(2) wrongfully conceals the commission of the
offense and fails to make the commission of the
offense known to civilian or military authorities as
soon as possible;
shall be punished as a court-martial may direct.
b. Elements.
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(1) That a certain serious offense was committed by
a certain person;
(2) That the accused knew that the said person had
committed the serious offense; and
(3) That, thereafter, the accused wrongfully
concealed the serious offense and failed to make it
known to civilian or military authorities as soon as
possible.
c. Explanation.
(1) In general. Misprision of a serious offense is the
offense of concealing a serious offense committed by
another but without such previous concert with or
subsequent assistance to the principal as would make
the accused an accessory. See paragraph 2. An intent to
benefit the principal is not necessary to this offense.
(2) Serious offense. For purposes of this paragraph,
a serious offense is any offense punishable under the
authority of the UCMJ by death or by confinement for
a term exceeding 1 year.
(3) Positive act of concealment. A mere failure or
refusal to disclose the serious offense without some
positive act of concealment does not make one guilty
of this offense. Making a false entry in an account book
for the purpose of concealing a theft committed by
another is an example of a positive act of concealment.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification.
In that __________ (personal jurisdiction data),
having knowledge that __________ had actually
committed a serious offense to wit: (the murder of
__________) (__________), did, (at/on board—
location) (subject-matter jurisdiction data, if required),
from about _____ 20 __, to about _____ 20 __,
wrongfully conceal such serious offense by
__________ and fail to make the same known to the
civil or military authorities as soon as possible.
85. Article 131d (10 U.S.C. 931d)—Wrongful
refusal to testify
a. Text of statute.
Any person subject to this chapter who, in the
presence of a court-martial, a board of officers, a
military commission, a court of inquiry,
preliminary hearing, or an officer taking a
deposition, of or for the United States, wrongfully
refuses to qualify as a witness or to answer a
question after having been directed to do so by the
person presiding shall be punished as a court-
martial may direct.
b. Elements.
(1) That the accused was in the presence of a court-
martial, board of officers, military commission, court
of inquiry, an officer conducting a preliminary hearing
under Article 32, or an officer taking a deposition, of
or for the United States, at which a certain person was
presiding;
(2) That the said person presiding directed the
accused to qualify as a witness or, having so qualified,
to answer a certain question;
(3) That the accused refused to qualify as a witness
or answer said question; and
(4) That the refusal was wrongful.
c. Explanation.
“To qualify as a witness” means that
the witness declares that the witness will testify
truthfully. See R.C.M. 807; Mil. R. Evid. 603. A good
faith but legally incorrect belief in the right to remain
silent does not constitute a defense to a charge of
wrongful refusal to testify. See also Mil. R. Evid. 301
and Section V of the Military Rules of Evidence.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data),
being in the presence of (a) (an) ((general) (special)
(summary) court-martial) (board of officers) (military
commission) (court of inquiry) (officer conducting a
preliminary hearing under Article 32, Uniform Code of
Military Justice) (officer taking a deposition) (_____)
(of) (for) the United States, of which _____ was
(military judge) (president), (_____), (and having been
directed by the said _____ to qualify as a witness) (and
having qualified as a witness and having been directed
by the said _____ to answer the following question(s)
put to (him) (her) as a witness, “_____”), did, (at/on
board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, wrongfully refuse
(to qualify as a witness) (to answer said question(s)).
86. Article 131e (10 U.S.C. 931e)—Prevention of
authorized seizure of property
a. Text of statute.
Any person subject to this chapter who, knowing
that one or more persons authorized to make
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searches and seizures are seizing, are about to seize,
or are endeavoring to seize property, destroys,
removes, or otherwise disposes of the property with
intent to prevent the seizure thereof shall be
punished as a court-martial may direct.
b. Elements.
(1) That one or more persons authorized to make
searches and seizures were seizing, about to seize, or
endeavoring to seize certain property;
(2) That the accused destroyed, removed, or
otherwise disposed of that property with intent to
prevent the seizure thereof; and
(3) That the accused then knew that person(s)
authorized to make searches were seizing, about to
seize, or endeavoring to seize the property.
c. Explanation
. See Mil. R. Evid. 316 concerning
military personnel who may make seizures. It is not a
defense that a search or seizure was technically
defective.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to prevent its seizure, (destroy) (remove) (dispose of)
__________, property which, as __________ then
knew, (a) person(s) authorized to make searches and
seizures were (seizing) (about to seize) (endeavoring to
seize).
87. Article 131f (10 U.S.C. 931f)—Noncompliance
with procedural rules
a. Text of statute.
Any person subject to this chapter who—
(1) is responsible for unnecessary delay in the
disposition of any case of a person accused of an
offense under this chapter; or
(2) knowingly and intentionally fails to enforce or
comply with any provision of this chapter
regulating the proceedings before, during, or after
trial of an accused;
shall be punished as a court-martial may direct.
b. Elements.
(1) Unnecessary delay in disposing of case.
(a) That the accused was charged with a certain
duty in connection with the disposition of a case of a
person accused of an offense under the UCMJ;
(b) That the accused knew that the accused was
charged with this duty;
(c) That delay occurred in the disposition of the
case;
(d) That the accused was responsible for the delay;
and
(e) That, under the circumstances, the delay was
unnecessary.
(2) Knowingly and intentionally failing to enforce or
comply with provisions of the UCMJ.
(a) That the accused failed to enforce or comply
with a certain provision of the UCMJ regulating a
proceeding before, during, or after a trial;
(b) That the accused had the duty of enforcing or
complying with that provision of the UCMJ;
(c) That the accused knew that the accused was
charged with this duty; and
(d) That the accused’s failure to enforce or comply
with that provision was intentional.
c. Explanation.
(1) Unnecessary delay in disposing of case. The
purpose of section (1) of Article 131f is to ensure
expeditious disposition of cases of persons accused of
offenses under the UCMJ. A person may be
responsible for delay in the disposition of a case only
when that person’s duties require action with respect to
the disposition of that case.
(2) Knowingly and intentionally failing to enforce or
comply with provisions of the UCMJ. Section (2) of
Article 131f does not apply to errors made in good faith
before, during, or after trial. It is designed to punish
intentional failure to enforce or comply with the
provisions of the UCMJ regulating the proceedings
before, during, and after trial. Unlawful command
influence under Article 37 may be prosecuted under
this Article. See also Article 31 and R.C.M. 104.
d. Maximum punishment.
(1) Unnecessary delay in disposing of case. Bad-
conduct discharge, forfeiture of all pay and allowances,
and confinement for 6 months.
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(2) Knowingly and intentionally failing to enforce or
comply with provisions of the UCMJ. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
e. Sample specifications.
(1) Unnecessary delay in disposing of case.
In that __________ (personal jurisdiction data),
being charged with the duty of ((investigating) (taking
immediate steps to determine the proper disposition of)
charges preferred against __________, a person
accused of an offense under the Uniform Code of
Military Justice) (__________), was, (at/on board—
location) (subject-matter jurisdiction, if required), on
or about _____ 20 __, responsible for unnecessary
delay in (investigating said charges) (determining the
proper disposition of said charges (_____), in that (he)
(she) (did _____) (failed to _____) (_____).
(2) Knowingly and intentionally failing to enforce or
comply with provisions of the UCMJ.
In that __________ (personal jurisdiction data),
being charged with the duty of __________, did, (at/on
board—location) (subject-matter jurisdiction, if
required), on or about _____ 20 __, knowingly and
intentionally fail to (enforce) (comply with) Article
__________, Uniform Code of Military Justice, in that
(he) (she) __________.
88. Article 131g (10 U.S.C. 931g)—Wrongful
interference with adverse administrative
proceeding
a. Text of statute.
Any person subject to this chapter who, having
reason to believe that an adverse administrative
proceeding is pending against any person subject to
this chapter, wrongfully acts with the intent—
(1) to influence, impede, or obstruct the conduct
of the proceeding; or
(2) otherwise to obstruct the due administration
of justice;
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused wrongfully did a certain act;
(2) That the accused did so in the case of a certain
person against whom the accused had reason to believe
there was or would be an adverse administrative
proceeding pending; and
(3) That the act was done with the intent to influence,
impede, or obstruct the conduct of such administrative
proceeding, or otherwise obstruct the due
administration of justice.
c. Explanation. For purposes of this paragraph an
adverse administrative proceeding includes any
administrative proceeding or action, initiated against a
Servicemember, that could lead to discharge, loss of
special or incentive pay, administrative reduction in
grade, loss of a security clearance, bar to reenlistment,
or reclassification. Examples of wrongful interference
include wrongfully influencing, intimidating,
impeding, or injuring a witness, an investigator, or
other person acting on an adverse administrative
action; by means of bribery, intimidation,
misrepresentation, or force or threat of force delaying
or preventing communication of information relating
to such administrative proceeding; and the wrongful
destruction or concealment of information relevant to
such adverse administrative proceeding.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (wrongfully
endeavor to) [impede (an adverse administrative
proceeding) (an investigation) (_____)] [influence the
actions of _____, (an officer responsible for making a
recommendation concerning the adverse
administrative action) (an individual responsible for
making a decision concerning an adverse
administrative proceeding) (an individual responsible
for processing an adverse administrative proceeding)
(_____)] [(influence) (alter) the testimony of _____ a
witness before (a board established to consider an
administrative proceeding or elimination) (an
investigating officer) (_____)] in the case of _____,
by](promising) (offering) (giving) to the said _____,
(the sum of $_____) (_____, of a value of (about)
$_____)] [communicating to the said _____ a threat to
_____ ] [ _____ ], (if) (unless) the said _____, would
[recommend dismissal of the action against said _____
] [(wrongfully refuse to testify) (testify falsely
concerning _____) (_____)] [(at such administrative
proceeding) (before such investigating officer) (before
such administrative board)] [ _____ ].
89. Article 132 (10 U.S.C. 932)—Retaliation
a. Text of statute.
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(a) IN GENERAL.—Any person subject to this
chapter who, with the intent to retaliate against any
person for reporting or planning to report a
criminal offense, or making or planning to make a
protected communication, or with the intent to
discourage any person from reporting a criminal
offense or making or planning to make a protected
communication—
(1) wrongfully takes or threatens to take an
adverse personnel action against any person; or
(2) wrongfully withholds or threatens to
withhold a favorable personnel action with respect
to any person;
shall be punished as a court-martial may direct.
(b) DEFINITIONS.—In this section:
(1) The term “protected communication”
means the following:
(A) A lawful communication to a Member of
Congress or an Inspector General.
(B) A communication to a covered individual
or organization in which a member of the armed
forces complains of, or discloses information that
the member reasonably believes constitutes
evidence of, any of the following:
(i) A violation of law or regulation,
including a law or regulation prohibiting sexual
harassment or unlawful discrimination.
(ii) Gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and
specific danger to public health or safety.
(2) The term “Inspector General” has the
meaning given that term in section 1034(j) of this
title.
(3) The term “covered individual or
organization” means any recipient of a
communication specified in clauses (i) through (v)
of section 1034(b)(1)(B) of this title.
(4) The term “unlawful discrimination” means
discrimination on the basis of race, color, religion,
sex, or national origin.
b. Elements.
(1) Retaliation
(a) That the accused wrongfully
(i) took or threatened to take an adverse
personnel action against any person, or
(ii) withheld or threatened to withhold a
favorable personnel action with respect to any person;
and
(b) That, at the time of the action, the accused
intended to retaliate against any person for reporting or
planning to report a criminal offense, or for making or
planning to make a protected communication.
(2) Discouraging a report of criminal offense or
protected communication.
(a) That the accused wrongfully
(i) took or threatened to take an adverse
personnel action against any person, or
(ii) withheld or threatened to withhold a
favorable personnel action with respect to any person;
and
(b) That, at the time of the action, the accused
intended to discourage any person from reporting a
criminal offense or making a protected
communication.
c. Explanation.
(1) In general. This offense focuses upon the abuse
of otherwise lawful military authority for the purpose
of retaliating against any person for reporting or
planning to report a criminal offense or for making or
planning to make a protected communication or to
discourage any person from reporting a criminal
offense or for making or planning to make a protected
communication. The offense prohibits personnel
actions, either favorable or adverse, taken or withheld,
or threatened to be taken or withheld, with the specific
intent to retaliate against any person for reporting or
planning to report a criminal offense or for making or
planning to make a protected communication or to
discourage any person from reporting a criminal
offense or for making or planning to make a protected
communication. The offense may be committed by any
person subject to the UCMJ with the authority to
initiate, forward, recommend, decide, or otherwise act
on a favorable or adverse personnel action who takes
such action wrongfully and with the requisite specific
intent. This offense does not prohibit the lawful and
appropriate exercise of command authority to
discipline or reward Servicemembers.
(2) Personnel action. For purposes of this offense,
“personnel action” means—
(a) any action taken on a Servicemember that
affects, or has the potential to affect, that
Servicemember’s current position or career, including
promotion; disciplinary or other corrective action;
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transfer or reassignment; performance evaluations;
decisions concerning pay, benefits, awards, or training;
relief and removal; separation; discharge; referral for
mental health evaluations; and any other personnel
actions as defined by law or regulation, such as 5
U.S.C. § 2302 and DoD Directive 7050.06 (17 April
2015); or,
(b) any action taken on a civilian employee that
affects, or has the potential to affect, that person’s
current position or career, including promotion;
disciplinary or other corrective action; transfer or
reassignment; performance evaluations; decisions
concerning pay benefits, awards, or training; relief and
removal; discharge; and any other personnel actions as
defined by law or regulation such as 5 U.S.C. § 2302.
(3) Intent to retaliate. An action is taken with the
intent to retaliate when the personnel action taken or
withheld, or threatened to be taken or withheld, is done
for the purpose of reprisal, retribution, or revenge for
reporting or planning to report a criminal offense or for
making or planning to make a protected
communication.
(4) Threatens to take or withhold. This offense
requires that the accused had the intent to retaliate, but
proof that the accused actually intended to take an
adverse personnel action, or to withhold a favorable
personnel action, is not required. A declaration made
under circumstances which reveal it to be in jest or for
an innocent or legitimate purpose, or which contradict
the expressed intent to commit the act, does not
constitute this offense. Nor is the offense committed by
the mere statement of intent to commit an unlawful act
not involving a favorable or adverse personnel action.
(5) Criminal offense. Criminal offense for purposes
of this offense includes violations of the UCMJ, the
United States Code, or state law.
(6) Wrongful. Taking or threatening to take adverse
personnel action, or withholding or threatening to
withhold favorable personnel action, is wrongful when
used for the purpose of reprisal, rather than for
purposes of lawful personnel administration.
(7) Other retaliatory actions. This offense does not
prohibit the Secretary of Defense and Secretaries of the
Military Services from proscribing other types or
categories of prohibited retaliatory actions by
regulation, which may be punished as violations of
Article 92.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specifications.
(1) Retaliation
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to retaliate against _________________for
[(reporting) (planning to report) a criminal offense]
[(making) (planning to make) a protected
communication], wrongfully [(took) (threatened to
take) an adverse personnel action against
_______________ to
wit:_______________][(withheld) (threatened to
withhold) a favorable personnel action with respect to
_____________ to wit:___________].
(2) Discouraging a report of criminal offense or
protected communication
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject matter jurisdiction
data, if required), on or about _____ 20 __, with intent
to discourage ___________________ from (reporting
a criminal offense) (making a protected
communication), wrongfully [(took) (threatened to
take) an adverse personnel action against
_______________, to wit
:_______________][(withheld) (threatened to
withhold) a favorable personnel action with respect to
_____________, to wit:___________].
90. Article 133 (10 U.S.C. 933)—Conduct
unbecoming an officer
a. Text of statute.
Any commissioned officer, cadet, or midshipman
who is convicted of conduct unbecoming an officer
shall be punished as a court-martial may direct.
b. Elements.
(1) That the accused was a commissioned officer,
cadet, or midshipman;
(2) That the accused did or omitted to do certain acts;
and
(3) That, under the circumstances, these acts or
omissions constituted conduct unbecoming an officer.
c. Explanation.
(1) Officership generally. As used in the phrase
“conduct unbecoming an officer” in this article,
“officer” refers to a “commissioned officer, cadet, or
midshipman..
(2) Nature of the offense. The focus of this article is
conduct that is likely to seriously compromise the
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accused’s standing as an officer. A military officer
holds a particular position of responsibility in the
armed forces, and one critically important
responsibility of a military officer is to inspire the trust
and respect of the personnel who must obey the
officer’s orders. Conduct violative of this article is
action or behavior in an official capacity that, in
dishonoring or disgracing the person as an officer,
seriously compromises the officer’s character, or
action or behavior in an unofficial or private capacity
that, in dishonoring or disgracing the officer
personally, seriously compromises the person’s
standing as an officer. This article includes misconduct
that approximates, but may not meet every element of,
another enumerated offense. An officer’s conduct need
not violate other provisions of the UCMJ or be
otherwise criminal to violate Article 133. The
gravamen of the offense is that the officer’s conduct
disgraces the officer personally or brings dishonor to
the military profession in a manner that affects the
officer’s fitness to command the obedience of the
officer’s subordinates so as to effectively complete the
military mission. The absence of a “custom of the
service,” statute, regulation, or order expressly
prohibiting certain conduct is not dispositive of
whether the officer was on sufficient notice that such
conduct was unbecoming.
(3) Examples of offenses. Instances of violation of
this article include knowingly making a false official
statement; dishonorable failure to pay a debt; cheating
on an exam; opening and reading a letter of another
without authority; using insulting or defamatory
language to another officer in that officer’s presence or
about that officer to other military persons; being drunk
and disorderly in a public place; committing or
attempting to commit a crime involving moral
turpitude; and failing without good cause to support the
officer’s family.
(4) Relation to Other Punitive Articles: conduct
unbecoming an officer. Thus, a commissioned officer
who steals property violates both this article and
Article 121. Whenever the offense charged is the same
as a specific offense set forth in this Manual, the
elements of proof are the same as those set forth in the
paragraph that treats that specific offense, with the
additional requirement that the act or omission
constitutes conduct unbecoming an officer.
d. Maximum punishment.
Dismissal, forfeiture of all
pay and allowances, and confinement for a period not
in excess of that authorized for the most analogous
offense for which a punishment is prescribed in this
Manual, or, if none is prescribed, for 1 year.
e. Sample specifications.
(1) Copying or using examination paper.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, while
undergoing a written examination on the subject of
__________, wrongfully and dishonorably (receive)
(request) unauthorized aid by ((using) (copying) the
examination paper of __)).
(2) Drunk or disorderly.
In that __________ (personal jurisdiction data), was,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, in a public
place, to wit: __________, (drunk) (disorderly) (drunk
and disorderly) while in uniform, to the disgrace of the
armed forces.
91. Article 134 (10 U.S.C. 934)—General article
a. Text of statute.
Though not specifically mentioned in this chapter,
all disorders and neglects to the prejudice of good
order and discipline in the armed forces, all conduct
of a nature to bring discredit upon the armed
forces, and crimes and offenses not capital, of which
persons subject to this chapter may be guilty, shall
be taken cognizance of by a general, special, or
summary court-martial, according to the nature
and degree of the offense, and shall be punished at
the discretion of that court. As used in the preceding
sentence, the term “crimes and offenses not capital”
includes any conduct engaged in outside the United
States, as defined in section 5 of title 18, that would
constitute a crime or offense not capital if the
conduct had been engaged in within the special
maritime and territorial jurisdiction of the United
States, as defined in section 7 of title 18.
Discussion
The terminal element is merely the expression of one of the clauses
under Article 134. See subparagraph c. 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.
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b. Elements. The proof required for conviction of an
offense under Article 134 depends upon the nature of
the misconduct charged. If the conduct is punished as
a crime or offense not capital, the proof must establish
every element of the crime or offense as required by
the applicable law. All offenses under Article 134
require proof of a single terminal element.
(1) For clause 1 offenses under Article 134, the
following proof is required:
(a) That the accused did or failed to do certain acts;
and
(b) That, under the circumstances, the accused’s
conduct was to the prejudice of good order and
discipline in the armed forces
(2) For clause 2 offenses under Article 134, the
following proof is required:
(a) That the accused did or failed to do certain acts;
and
(b) That, under the circumstances, the accused’s
conduct was of a nature to bring discredit upon the
armed forces.
(3) For clause 3 offenses under Article 134, the
following proof is required:
(a) That the accused did or failed to do certain acts
that satisfy each element of the federal statute
(including, in the case of a prosecution under 18 U.S.C.
§ 13, each element of the assimilated State, Territory,
Possession, or District law); and
(b) That the offense charged was an offense not
capital.
c. Explanation.
(1) In general. Article 134 makes punishable acts in
three categories of offenses not specifically covered in
any other article of the UCMJ. These are referred to as
“clauses 1, 2, and 3” of Article 134. Clause 1 offenses
involve disorders and neglects to the prejudice of good
order and discipline in the armed forces. Clause 2
offenses involve conduct of a nature to bring discredit
upon the armed forces. Clause 3 offenses involve
noncapital crimes or offenses which violate federal
civilian law including law made applicable through the
Federal Assimilative Crimes Act, see subparagraph
c.(4). If any conduct of this nature is specifically made
punishable by another article of the UCMJ, it must be
charged as a violation of that article. See subparagraph
c.(5)(a). However, see subparagraph 90.c for offenses
committed by commissioned officers, cadets, and
midshipmen.
(2) Disorders and neglects to the prejudice of good
order and discipline in the armed forces (clause 1).
(a) To the prejudice of good order and discipline.
To the prejudice of good order and discipline refers
only to acts directly prejudicial to good order and
discipline and not to acts which are prejudicial only in
a remote or indirect sense. Almost any irregular or
improper act on the part of a member of the military
service could be regarded as prejudicial in some
indirect or remote sense; however, this article does not
include these distant effects. It is confined to cases in
which the prejudice is reasonably direct and palpable.
An act in violation of a local civil law or of a foreign
law may be punished if it constitutes a disorder or
neglect to the prejudice of good order and discipline in
the armed forces. However, see R.C.M. 203
concerning subject-matter jurisdiction.
(b) Breach of custom of the Service. A breach of a
custom of the Service may result in a violation of
clause 1 of Article 134. In its legal sense, “custom”
means more than a method of procedure or a mode of
conduct or behavior which is merely of frequent or
usual occurrence. Custom arises out of long established
practices which by common usage have attained the
force of law in the military or other community
affected by them. No custom may be contrary to
existing law or regulation. A custom which has not
been adopted by existing statute or regulation ceases to
exist when its observance has been generally
abandoned. Many customs of the Service are now set
forth in regulations of the various armed forces.
Violations of these customs should be charged under
Article 92 as violations of the regulations in which they
appear if the regulation is punitive. See subparagraph
18.b.(1).
(3) Conduct of a nature to bring discredit upon the
armed forces (clause 2). “Discredit” means to injure
the reputation of. This clause of Article 134 makes
punishable conduct which has a tendency to bring the
service into disrepute or which tends to lower it in
public esteem. Acts in violation of a local civil law or
a foreign law may be punished if they are of a nature
to bring discredit upon the armed forces. However, see
R.C.M. 203 concerning subject-matter jurisdiction.
(4) Crimes and offenses not capital (Article 134,
clause 3).
(a) In general. For the purpose of court-martial
jurisdiction, the laws that may be applied under clause
3 of Article 134 are divided into two categories:
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(1) Federal crimes and offenses according to the
terms of jurisdiction set forth in the applicable federal
criminal statute.
(i) Noncapital crimes and offenses prohibited
by the United States Code that are punishable
regardless where the wrongful act or omission
occurred.
Discussion
Counterfeiting is an example of a crime punishable regardless where
the wrongful act or omission occurred. See 18 U.S.C. § 471.
(ii) Noncapital crimes and offenses prohibited
by the United States Code within a limited jurisdiction
that are punishable when committed within a specified
area.
(iii) The Federal Assimilative Crimes Act (18
U.S.C. § 13) is an adoption by Congress of state
criminal laws for areas of exclusive or concurrent
federal jurisdiction, provided federal criminal law,
including the UCMJ, has not defined an applicable
offense for the misconduct committed. The Act applies
to state laws validly existing at the time of the offense
without regard to when these laws were enacted,
whether before or after passage of the Act, and whether
before or after the acquisition of the land where the
offense was committed. For example, if a person
committed an act on a military installation in the
United States as a certain location over which the
United States had either exclusive or concurrent
jurisdiction, and it was not an offense specifically
defined by federal law (including the UCMJ), that
person could be punished for that act by a court-martial
if it was a violation of a noncapital offense under the
law of the State where the military installation was
located. This is possible because the Act adopts the
criminal law of the State wherein the military
installation is located and applies it as though it were
federal law. The text of the Act’s first paragraph is as
follows: “Whoever within or upon any of the places
now existing or hereafter reserved or acquired as
provided in section 7 of this title, or on, above, or
below any portion of the territorial sea of the United
States not within the jurisdiction of any State,
Commonwealth, territory, possession, or district is
guilty of any act or omission which, although not made
punishable by any enactment of Congress, would be
punishable if committed or omitted within the
jurisdiction of the State, Territory, Possession, or
District in which such place is situated, by the laws
thereof in force at the time of such act or omission,
shall be guilty of a like offense and subject to a like
punishment.”
Discussion
If the direct prosecution of state and federal crimes under Article
134, clause 3 is unavailable because the offense is committed outside
of otherwise applicable areas of jurisdiction, the substance of these
crimes may still be prosecuted, in an appropriate case, under clause
1 or clause 2 of Article 134. In such a case, the Government would
be required to prove the terminal element under clause 1 or clause 2
that the underlying misconduct was either prejudicial to good order
and discipline; of a nature to bring discredit upon the armed forces;
or both.
18 U.S.C. § 5 provides, “The term ‘United States’, as used in
this title in a territorial sense, includes all places and waters,
continental or insular, subject to the jurisdiction of the United States,
except the Canal Zone.”
18 U.S.C. § 7 provides, “The term “special maritime and
territorial jurisdiction of the United States”, as used in this title,
includes:
(1) The high seas, any other waters within the admiralty
and maritime jurisdiction of the United States and out of the
jurisdiction of any particular State, and any vessel belonging in
whole or in part to the United States or any citizen thereof, or to any
corporation created by or under the laws of the United States, or of
any State, Territory, District, or possession thereof, when such vessel
is within the admiralty and maritime jurisdiction of the United States
and out of the jurisdiction of any particular State.
(2) Any vessel registered, licensed, or enrolled under the
laws of the United States, and being on a voyage upon the waters of
any of the Great Lakes, or any of the waters connecting them, or
upon the Saint Lawrence River where the same constitutes the
International Boundary Line.
(3) Any lands reserved or acquired for the use of the United
States, and under the exclusive or concurrent jurisdiction thereof, or
any place purchased or otherwise acquired by the United States by
consent of the legislature of the State in which the same shall be, for
the erection of a fort, magazine, arsenal, dockyard, or other needful
building.
(4) Any island, rock, or key containing deposits of guano,
which may, at the discretion of the President, be considered as
appertaining to the United States.
(5) Any aircraft belonging in whole or in part to the United
States, or any citizen thereof, or to any corporation created by or
under the laws of the United States, or any State, Territory, district,
or possession thereof, while such aircraft is in flight over the high
seas, or over any other waters within the admiralty and maritime
jurisdiction of the United States and out of the jurisdiction of any
particular State.
(6) Any vehicle used or designed for flight or navigation
in space and on the registry of the United States pursuant to the
Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies and the Convention on Registration of Objects
Launched into Outer Space, while that vehicle is in flight, which is
from the moment when all external doors are closed on Earth
following embarkation until the moment when one such door is
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opened on Earth for disembarkation or in the case of a forced
landing, until the competent authorities take over the responsibility
for the vehicle and for persons and property aboard.
(7) Any place outside the jurisdiction of any nation with
respect to an offense by or against a national of the United States.
(8) To the extent permitted by international law, any
foreign vessel during a voyage having a scheduled departure from or
arrival in the United States with respect to an offense committed by
or against a national of the United States.
(9) With respect to offenses committed by or against a
national of the United States as that term is used in section 101 of the
Immigration and Nationality Act—
(a) the premises of United States diplomatic, consular,
military or other United States Government missions or entities in
foreign States, including the buildings, parts of buildings, and land
appurtenant or ancillary thereto or used for purposes of those
missions or entities, irrespective of ownership; and
(b) residences in foreign States and the land
appurtenant or ancillary thereto, irrespective of ownership, used for
purposes of those missions or entities or used by United States
personnel assigned to those missions or entities.
Nothing in this paragraph shall be deemed to supersede
any treaty or international agreement with which this paragraph
conflicts. This paragraph does not apply with respect to an offense
committed by a person described in section 3261(a) of this title.”
(5) Limitations on Article 134.
(a) Preemption doctrine. The preemption doctrine
prohibits application of Article 134 to conduct covered
by Articles 80 through 132. For example, larceny is
covered in Article 121, and if an element of that
offense is lacking—for example, intent—there can be
no larceny or larceny-type offense, either under Article
121 or, because of preemption, under Article 134.
Article 134 cannot be used to create a new kind of
larceny offense, one without the required intent, where
Congress has already set the minimum requirements
for such an offense in Article 121.
Discussion
Although the preemption doctrine generally does not preclude
charging Article 134, clause 3 offenses (crimes or offense, not
capital), the preemption doctrine does preclude charging a federal
“crime or offense, not capital” under Article 134 clause 3 where
either direct legislative language or direct legislative history
demonstrate that Congress intended a factually similar UCMJ
punitive article to cover a class of offenses in a complete way.
(b) Capital offense. A capital offense may not be
tried under Article 134.
(6) Drafting specifications for Article 134 offenses.
(a) Specifications under clause 1 or 2. When
alleging a clause 1 or 2 violation, the specification must
expressly allege that the conduct was “to the prejudice
of good order and discipline” or that it was “of a nature
to bring discredit upon the armed forces.” The same
conduct may be prejudicial to good order and
discipline in the armed forces and at the same time be
of a nature to bring discredit upon the armed forces.
Both clauses may be alleged; however, only one must
be proven to satisfy the terminal element. If conduct by
an accused does not fall under any of the enumerated
Article 134 offenses (paragraphs 92 through 109 of this
Part), a specification not listed in this Manual may be
used to allege the offense.
Discussion
Clauses 1 and 2 are theories of liability that must be expressly alleged
in a specification so that the accused will have 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
subparagraph c.(2)(a), prejudice to good order and discipline, and
subparagraph c.(2)(b), breach of custom of the Service.
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
17 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
11 of this Manual, Art. 134. However, use of the term “or” as a
charging mechanism for alleging the terminal element in an Article
134 specification (i.e. “such conduct was prejudicial to good order
and discipline or of a nature to bring discredit upon the armed
forces”) is not recommended due to the risk of creating a vague and
duplicitous specification, which may lead to uncertainty as to which
theory of liability the members convicted the accused. To avoid
ambiguity, an Article 134 clause 1 or 2 violation should be alleged
as follows: (1) the conduct was prejudicial to good order and
discipline; (2) the conduct was of a nature to bring discredit upon the
armed forces; or (3) the conduct was prejudicial to good order and
discipline and of a nature to bring discredit upon the armed forces.
See Appendix 12A for a chart of lesser included offenses.
(b) Specifications under clause 3. When alleging a
clause 3 violation, each element of the federal statute
(including, in the case of a prosecution under 18 U.S.C.
§ 13, each element of the assimilated State, Territory,
Possession, or District law) must be alleged expressly
or by necessary implication, and the specification must
expressly allege that the conduct was “an offense not
capital.” In addition, any applicable statutes should be
identified in the specification.
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92. Article 134—(Animal abuse)
a. Text of statute. See paragraph 91.
b. Elements.
(1) Abuse, neglect, or abandonment of an animal.
(a) That the accused wrongfully abused,
neglected, or abandoned a certain (public*) animal
(and the accused caused serious injury or death of the
animal*); and
(b) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
[Note: Add these elements as applicable.]
(2) Sexual act with an animal.
(a) That the accused engaged in a sexual act with
a certain animal; and
(b) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
c. Explanation.
(1) In general. This offense prohibits intentional
abuse, culpable neglect, and abandonment of an
animal. This offense does not include legal hunting,
trapping, or fishing; reasonable and recognized acts of
training, handling, or disciplining of an animal; normal
and accepted farm or veterinary practices; research or
testing conducted in accordance with approved
governmental protocols; protection of person or
property from an unconfined animal; or authorized
military operations or military training.
(2) Definitions. As used in this paragraph:
(a) “Abuse” means intentionally and unjustifiably
overdriving, overloading, overworking, tormenting,
beating, depriving of necessary sustenance, allowing to
be housed in a manner that results in chronic or
repeated serious physical harm, carrying or confining
in or upon any vehicles in a cruel or reckless manner,
or otherwise mistreating an animal. Abuse may include
any sexual touching of an animal if not included in the
definition of sexual act with an animal below.
(b) “Neglect” means knowingly allowing another
to abuse an animal, or, having the charge or custody of
any animal, knowingly, or through culpable
negligence, failing to provide it with proper food,
drink, or protection from the weather consistent with
the species, breed, and type of animal involved.
(c) “Abandon” means, while having the charge or
custody of an animal, knowingly or through culpable
negligence leaving of that animal at a location without
providing minimum care for the animal.
(d) “Animal” means pets and animals of the type
that are raised by individuals for resale to others,
including: cattle, horses, sheep, pigs, goats, chickens,
dogs, cats, and similar animals owned or under the
control of any person. Animal does not include reptiles,
insects, arthropods, or any animal defined or declared
to be a pest by the administrator of the United States
Environmental Protection Agency.
(e) “Public animal” means any animal owned or
used by the United States or any animal owned or used
by a local or State government in the United States, its
territories or possessions. This would include, for
example, drug detector dogs used by the Government.
(f) “Sexual act with an animal” means
(i) contact between the sex organ or anus of a
person and the sex organ, anus, or mouth of an animal;
or
(ii) contact between the sex organ or anus of an
animal and a person or object manipulated by a person,
if done with an intent to arouse or gratify the sexual
desire of any person.
(g) “Serious injury of an animal” means physical
harm that involves a temporary but substantial
disfigurement; causes a temporary but substantial loss
or impairment of the function of any bodily part or
organ; causes a fracture of any bodily part; causes
permanent maiming; causes acute pain of a duration
that results in suffering; or carries a substantial risk of
death. Serious injury includes burning, torturing,
poisoning, or maiming.
d. Maximum punishment.
(1) Abuse, neglect, or abandonment of an animal.
Bad-conduct discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(2) Abuse, neglect, or abandonment of a public
animal. Bad-conduct discharge, forfeiture of all pay
and allowances, and confinement for 2 years.
(3) Sexual act with an animal or cases where the
accused caused the serious injury or death of the
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animal. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 5 years.
e. Sample specification.
In that _________, (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __ (date),
(wrongfully [abuse] [neglect] [abandon]) (*engage in
a sexual act, to wit: _________, with) a certain
(*public) animal (*and caused [serious injury to] [the
death of] the animal), and that said conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and was of a nature to bring discredit
upon the armed forces).
93. Article 134—(Bigamy)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused had a living lawful spouse;
(2) That while having such spouse the accused
wrongfully married another person; and
(3) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. Bigamy is contracting another
marriage by one who already has a living lawful
spouse. If a prior marriage was void, it will have
created no status of “lawful spouse.” A belief that a
prior marriage has been terminated by divorce, death
of the other spouse, or otherwise, constitutes a mistake
of fact defense only if the belief was reasonable. See
R.C.M. 916(j)(1).
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 2 years.
e. Sample specification.
In that ____________ (personal jurisdiction data),
did, at, (subject-matter jurisdiction data, if required),
on or about _____ 20 __, wrongfully marry
____________, having at the time of (his) (her) said
marriage to a lawful spouse then living, to
wit:____________________ , and that such conduct
was (to the prejudice of good order and discipline in
the armed forces) (of a nature to bring discredit upon
the armed forces) (to the prejudice of good order and
discipline in the armed forces and of a nature to bring
discredit upon the armed forces).
94. Article 134—(Check, worthless making and
uttering – by dishonorably failing to maintain
funds)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused made and uttered a certain
check;
(2) That the check was made and uttered for the
purchase of a certain thing, in payment of a debt, or for
a certain purpose;
(3) That the accused subsequently failed to place or
maintain sufficient funds in or credit with the drawee
bank for payment of the check in full upon its
presentment for payment;
(4) That this failure was dishonorable; and
(5) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. This offense differs from an Article
123a offense (paragraph 70) in that there need be no
intent to defraud or deceive at the time of making,
drawing, uttering, or delivery, and that the accused
need not know at that time that the accused did not or
would not have sufficient funds for payment. The gist
of the offense lies in the conduct of the accused after
uttering the instrument. Mere negligence in
maintaining one’s bank balance is insufficient for this
offense, for the accused’s conduct must reflect bad
faith or gross indifference in this regard. As in the
offense of dishonorable failure to pay debts (see
paragraph 96), dishonorable conduct of the accused is
necessary, and the other principles discussed in
paragraph 96 also apply here.
d. Maximum punishment. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
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data, if required), on or about _____ 20 __, make and
utter to __________ a certain check, in words and
figures as follows, to wit: __________, (for the
purchase of __________) (in payment of a debt) (for
the purpose of __________), and did thereafter
dishonorably fail to (place) (maintain) sufficient funds
in the __________ Bank for payment of such check in
full upon its presentment for payment, and that said
conduct was (to the prejudice of good order and
discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and was
of a nature to bring discredit upon the armed forces).
95. Article 134—(Child pornography)
a. Text of statute. See paragraph 91.
b. Elements.
(1) Possessing, receiving, or viewing child
pornography.
(a) That the accused knowingly and wrongfully
possessed, received, or viewed child pornography; and
(b) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
(2) Possessing child pornography with intent to
distribute.
(a) That the accused knowingly and wrongfully
possessed child pornography;
(b) That the possession was with the intent to
distribute; and
(c) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
(3) Distributing child pornography.
(a) That the accused knowingly and wrongfully
distributed child pornography to another; and
(b) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
(4) Producing child pornography.
(a) That the accused knowingly and wrongfully
produced child pornography; and
(b) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
c. Explanation.
(1) In general. The Article 134 offense of child
pornography is broader than the federal and state
statutes referenced below and extends to visual
depictions of what appear to be minors. That is, the
images include sexually explicit images that may not
actually involve minors, but either resemble or are
staged to appear so. Article 134—Child pornography
is not intended to preempt prosecution of other federal
and state law child pornography and obscenity offenses
which may be amenable to courts-martial via Article
134 clauses 2 and 3.
(2) Federal “Child pornography” and “Obscenity”
offenses. Practitioners are advised that the Title 18,
United States Code, criminalizes the production,
distribution, possession with intent to distribute,
possession, and receipt of sexually explicit images of
actual children under the age of 18. See 18 U.S.C. §§
2251; 2252A. Practitioners may charge these offenses
utilizing Article 134, clause 3 (crimes and offenses not
capital). Practitioners are further advised that Title 18
United States Code, Chapter 71, criminalizes the
production of “obscene images,” that is, visual
depictions of any kind, including a drawing, cartoon,
sculpture, or painting. Such images are considered
obscene under federal law when they depict minors
involved in sexually explicit activity, and/or engaging
in bestiality, sadistic or masochistic abuse. See 18
U.S.C. § 1466A. These federal obscenity offenses may
likewise be prosecuted at courts-martial via Article
134, clause 3.
(3) State “child pornography” and “obscenity”
offenses. If a Servicemember violates an applicable
state child pornography or obscenity statute within the
jurisdiction of a given state, the substance of that state
child pornography and obscenity law may be charged
via Article 134, clause 2 as conduct “of a nature to
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bring discredit upon the armed forces.” When so
charged, the Article 134 charge should recite every
applicable element under the state statute. The
maximum punishment for such offenses is the
applicable maximum punishment prescribed for such
an offense under state law.
(4) “Child pornography” means material that
contains either an obscene visual depiction of a minor
engaging in sexually explicit conduct or a visual
depiction of an actual minor engaging in sexually
explicit conduct.
(5) An accused may not be convicted of possessing,
receiving, viewing, distributing, or producing child
pornography if he was not aware that the images were
of minors, or what appeared to be minors, engaged in
sexually explicit conduct. Awareness may be inferred
from circumstantial evidence such as the name of a
computer file or folder, the name of the host website
from which a visual depiction was viewed or received,
search terms used, and the number of images
possessed.
(6) “Distributing” means delivering to the actual or
constructive possession of another.
(7) “Minor” means any person under the age of 18
years.
(8) “Possessing” means exercising control of
something. Possession may be direct physical custody
like holding an item in one’s hand, or it may be
constructive, as in the case of a person who hides
something in a locker or a car to which that person may
return to retrieve it. Possession must be knowing and
conscious. Possession inherently includes the power or
authority to preclude control by others. It is possible
for more than one person to possess an item
simultaneously, as when several people share control
over an item.
(9) “Producing” means creating or manufacturing.
As used in this paragraph, it refers to making child
pornography that did not previously exist. It does not
include reproducing or copying.
(10) “Sexually explicit conduct” means actual or
simulated:
(a) sexual intercourse or sodomy, including
genital to genital, oral to genital, anal to genital, or oral
to anal, whether between persons of the same or
opposite sex;
(b) bestiality;
(c) masturbation;
(d) sadistic or masochistic abuse; or
(e) lascivious exhibition of the genitals or pubic
area of any person.
(11) Visual depiction includes any developed or
undeveloped photograph, picture, film, or video; any
digital or computer image, picture, film, or video made
by any means, including those transmitted by any
means including streaming media, even if not stored in
a permanent format; or any digital or electronic data
capable of conversion into a visual image.
(12) Wrongfulness. Any facts or circumstances that
show that a visual depiction of child pornography was
unintentionally or inadvertently acquired are relevant
to wrongfulness, including, but not limited to, the
method by which the visual depiction was acquired, the
length of time the visual depiction was maintained, and
whether the visual depiction was promptly, and in good
faith, destroyed or reported to law enforcement.
(13) On motion of the Government, in any
prosecution under this paragraph, except for good
cause shown, the name, address, social security
number, or other nonphysical identifying information,
other than the age or approximate age, of any minor
who is depicted in any child pornography or visual
depiction or copy thereof shall not be admissible and
may be redacted from any otherwise admissible
evidence, and the panel shall be instructed, upon
request of the Government, that it can draw no
inference from the absence of such evidence.
d. Maximum punishment.
(1) Possessing, receiving, or viewing child
pornography. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for 10 years.
(2) Possessing child pornography with intent to
distribute. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for 15 years.
(3) Distributing child pornography. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
(4) Producing child pornography. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 30 years.
e. Sample specification.
In that _____ (personal jurisdiction data), did (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about _____ 20 __ knowingly and
wrongfully (possess) (receive) (view) (distribute)
(produce) child pornography, to wit: a (photograph)
(picture) (film) (video) (digital image) (computer
image) of a minor, or what appears to be a minor,
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engaging in sexually explicit conduct (with intent to
distribute the said child pornography), and that said
conduct was (to the prejudice of good order and
discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and was
of a nature to bring discredit upon the armed forces).
96. Article 134—(Debt, dishonorably failing to pay)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused was indebted to a certain person
or entity in a certain sum;
(2) That this debt became due and payable on or
about a certain date;
(3) That while the debt was still due and payable the
accused dishonorably failed to pay this debt; and
(4) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. More than negligence in nonpayment
is necessary. The failure to pay must be characterized
by deceit, evasion, false promises, or other distinctly
culpable circumstances indicating a deliberate
nonpayment or grossly indifferent attitude toward
one’s just obligations. For a debt to form the basis of
this offense, the accused must not have had a defense,
or an equivalent offset or counterclaim, either in fact or
according to the accused’s belief, at the time alleged.
The offense should not be charged if there was a
genuine dispute between the parties as to the facts or
law relating to the debt which would affect the
obligation of the accused to pay. The offense is not
committed if the creditor or creditors involved are
satisfied with the conduct of the debtor with respect to
payment. The length of the period of nonpayment and
any denial of indebtedness which the accused may
have made may tend to prove that the accused’s
conduct was dishonorable, but the court-martial may
convict only if it finds from all of the evidence that the
conduct was in fact dishonorable.
d. Maximum punishment. Bad-conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
e. Sample specification.
In that __________ (personal jurisdiction data),
being indebted to _____ in the sum of $_____ for
_____, which amount became due and payable (on)
(about) (on or about) _____ 20 __, did (at/on board—
location) (subject-matter jurisdiction data, if required),
from _____ 20 __, to _____ 20 __, dishonorably fail to
pay said debt, and that said conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon
the armed forces).
97. Article 134—(Disloyal statements)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused made a certain statement;
(2) That the statement was communicated to another
person;
(3) That the statement was disloyal to the United
States;
(4) That the statement was made with the intent to
promote disloyalty or disaffection toward the United
States by any member of the armed forces or to
interfere with or impair the loyalty to the United States
or good order and discipline of any member of the
armed forces; and
(5) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. Certain disloyal statements by military
personnel may not constitute an offense under 18
U.S.C. §§ 2385, 2387, and 2388, but may, under the
circumstances, be punishable under this article.
Examples include praising the enemy, attacking the
war aims of the United States, or denouncing our form
of government with the intent to promote disloyalty or
disaffection among members of the armed Services. A
declaration of personal belief can amount to a disloyal
statement if it disavows allegiance owed to the United
States by the declarant. The disloyalty involved for this
offense must be to the United States as a political entity
and not merely to a department or other agency that is
a part of its administration.
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d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction),
on or about _____ 20 __, with intent to (promote
(disloyalty) (disaffection) (disloyalty and
disaffection)) ((interfere with) (impair) the (loyalty)
(good order and discipline)) of any member of the
armed forces of the United States communicate to
__________, a statement, to wit: “__________,” or
words to that effect, which statement was disloyal to
the United States, and that such conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon
the armed forces).
98. Article 134—(Disorderly conduct, drunkenness)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused was drunk, disorderly, or drunk
and disorderly on board ship or in some other place;
and
(2) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) Drunkenness. See subparagraph 49.c.(1)(a) for a
discussion of drunk.
(2) Disorderly. Disorderly conduct is conduct of
such a nature as to affect the peace and quiet of persons
who may witness it and who may be disturbed or
provoked to resentment thereby. It includes conduct
that endangers public morals or outrages public
decency and any disturbance of a contentious or
turbulent character.
(3) Service discrediting. Conduct of a nature to bring
discredit upon the armed forces must be included in the
specification and proved in order to authorize the
higher maximum punishment when the offense is
Service discrediting.
d. Maximum punishment.
(1) Disorderly conduct.
(a) Under such circumstances as to bring discredit
upon the military Service. Confinement for 4 months
and forfeiture of two-thirds pay per month for 4
months.
(b) Other cases. Confinement for 1 month and
forfeiture of two-thirds pay per month for 1 month.
(2) Drunkenness.
(a) Aboard ship or under such circumstances as to
bring discredit upon the military Service. Confinement
for 3 months and forfeiture of two-thirds pay per month
for 3 months.
(b) Other cases. Confinement for 1 month and
forfeiture of two-thirds pay per month for 1 month.
(3) Drunk and disorderly.
(a) Aboard ship. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 6
months.
(b) Under such circumstances as to bring discredit
upon the military Service. Confinement for 6 months
and forfeiture of two-thirds pay per month for 6
months.
(c) Other cases. Confinement for 3 months and
forfeiture of two-thirds pay per month for 3 months.
e. Sample specification.
In that __________ (personal jurisdiction data), was,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (drunk)
(disorderly) (drunk and disorderly) (which conduct
was of a nature to bring discredit upon the armed
forces), and that said conduct was (to the prejudice of
good order and discipline in the armed forces) (of a
nature to bring discredit upon the armed forces) (to the
prejudice of good order and discipline in the armed
forces and was of a nature to bring discredit upon the
armed forces).
99. Article 134—(Extramarital sexual conduct)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused wrongfully engaged in
extramarital conduct as described in subparagraph
c.(2) with a certain person;
(2) That, at the time, the accused knew that the
accused or the other person was married to someone
else; and
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(3) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) Conduct prejudicial to good order and discipline
or of a nature to bring discredit upon the armed forces.
To constitute an offense under the UCMJ, the
extramarital conduct must either be directly prejudicial
to good order and discipline or service discrediting or
both. Extramarital conduct that is directly prejudicial
to good order and discipline includes conduct that has
an obvious, and measurably divisive effect on unit or
organization discipline, morale, or cohesion, or is
clearly detrimental to the authority or stature of or
respect toward a Servicemember, or both. Extramarital
conduct may be Service discrediting, even though the
conduct is only indirectly or remotely prejudicial to
good order and discipline. “Discredit” means to injure
the reputation of the armed forces and includes
extramarital conduct that has a tendency, because of its
open or notorious nature, to bring the Service into
disrepute, make it subject to public ridicule, or lower it
in public esteem. While extramarital conduct that is
private and discreet in nature may not be service
discrediting by this standard, under the circumstances,
it may be determined to be conduct prejudicial to good
order and discipline. Commanders should consider all
relevant circumstances, including but not limited to the
following factors, when determining whether
extramarital conduct is prejudicial to good order and
discipline or is of a nature to bring discredit upon the
armed forces, or both:
(a) The accused’s marital status, military rank,
grade, or position
(b) The co-actor’s marital status, military rank,
grade, and position, or relationship to the armed forces
(c) The military status of the accused’s spouse or
the spouse of the co-actor, or their relationship to the
armed forces;
(d) The impact, if any, of the extramarital conduct
on the ability of the accused, the co-actor, or the spouse
of either to perform their duties in support of the armed
forces;
(e) The misuse, if any, of Government time and
resources to facilitate the commission of the conduct;
(f) Whether the conduct persisted despite
counseling or orders to desist; the flagrancy of the
conduct, such as whether any notoriety ensued; and
whether the extramarital conduct was accompanied by
other violations of the UCMJ;
(g) The negative impact of the conduct on the units
or organizations of the accused, the co-actor or the
spouse of either of them, such as a detrimental effect
on unit or organization morale, teamwork, and
efficiency;
(h) Whether the accused’s or co-actor’s marriage
was pending legal dissolution, which is defined as an
action with a view towards divorce proceedings, such
as the filing of a petition for divorce; and
(i) Whether the extramarital conduct involves an
ongoing or recent relationship or is remote in time.
(2) Extramarital conduct. The conduct covered
under this paragraph means any of the following acts
engaged in by persons of the same or opposite sex:
(a) genital to genital sexual intercourse;
(b) oral to genital sexual intercourse;
(c) anal to genital sexual intercourse; and
(d) oral to anal sexual intercourse.
(3) Marriage. A marriage exists until it is dissolved
in accordance with the laws of a competent state or
foreign jurisdiction.
(4) Legal Separation. It is an affirmative defense to
the offense of Extramarital sexual conduct that the
accused, co-actor, or both were legally separated by
order of a court of competent jurisdiction. The
affirmative defense does not apply unless all parties to
the conduct are either legally separated or unmarried at
the time of the conduct.
(5) Mistake of fact: A defense of mistake of fact
exists if the accused had an honest and reasonable
belief either that the accused and the co-actor were
both unmarried or legally separated, or that they were
lawfully married to each other. If this defense is raised
by the evidence, then the burden of proof is upon the
United States to establish that the accused’s belief was
unreasonable or not honest.
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
e. Sample specification.
In that ____________ (personal jurisdiction data), (a
married person), did, (at/on board—location) (subject-
matter jurisdiction data, if required), on or about
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________ 20 ___, wrongfully engage in extramarital
conduct, (to wit: _____________) with
_____________, (a person the accused knew was
married to a person other than the accused) (a person
the accused knew was not the accused’s spouse), and
that such conduct was (to the prejudice of good order
and discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces).
100. Article 134—(Firearm, discharging—through
negligence)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused discharged a firearm;
(2) That such discharge was caused by the
negligence of the accused; and
(3) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. For a discussion of negligence, see
subparagraph 103.c.(2).
d. Maximum punishment.
Confinement for 3 months
and forfeiture of two-thirds pay per month for 3
months.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, through
negligence, discharge a (service rifle) (__) in the
(squadron) (tent) (barracks) (_____) of _____, and that
said conduct was (to the prejudice of good order and
discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and was
of a nature to bring discredit upon the armed forces).
101. Article 134—(Fraternization)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused was a commissioned or warrant
officer;
(2) That the accused fraternized on terms of military
equality with one or more certain enlisted member(s)
in a certain manner;
(3) That the accused then knew the person(s) to be
(an) enlisted member(s);
(4) That such fraternization violated the custom of
the accused’s Service that officers shall not fraternize
with enlisted members on terms of military equality;
and
(5) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) In general. The gist of this offense is a violation
of the custom of the armed forces against
fraternization. Not all contact or association between
officers and enlisted persons is an offense. Whether the
contact or association in question is an offense depends
on the surrounding circumstances. Factors to be
considered include whether the conduct has
compromised the chain of command, resulted in the
appearance of partiality, or otherwise undermined
good order, discipline, authority, or morale. The facts
and circumstances must be such as to lead a reasonable
person experienced in the problems of military
leadership to conclude that the good order and
discipline of the armed forces has been prejudiced by
their tendency to compromise the respect of enlisted
persons for the professionalism, integrity, and
obligations of an officer.
(2) Regulations. Regulations, directives, and orders
may also govern conduct between officer and enlisted
personnel on both a Service-wide and a local basis.
Relationships between enlisted persons of different
ranks, or between officers of different ranks may be
similarly covered. Violations of such regulations,
directives, or orders may be punishable under Article
92. See paragraph 18.
d. Maximum punishment. Dismissal, forfeiture of all
pay and allowances, and confinement for 2 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, knowingly
fraternize with __________, an enlisted person, on
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terms of military equality, to wit: __________, in
violation of the custom of (the Naval Service of the
United States) (the United States Army) (the United
States Air Force) (the United States Coast Guard) that
officers shall not fraternize with enlisted persons on
terms of military equality, and that said conduct was
(to the prejudice of good order and discipline in the
armed forces) (of a nature to bring discredit upon the
armed forces) (to the prejudice of good order and
discipline in the armed forces and was of a nature to
bring discredit upon the armed forces).
102. Article 134—(Gambling with subordinate)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused gambled with a certain
Servicemember;
(2) That the accused was then a noncommissioned or
petty officer;
(3) That the Servicemember was not then a
noncommissioned or petty officer and was subordinate
to the accused;
(4) That the accused knew that the Servicemember
was not then a noncommissioned or petty officer and
was subordinate to the accused; and
(5) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. This offense can only be committed by
a noncommissioned or petty officer gambling with an
enlisted person of less than noncommissioned or petty
officer rank. Gambling by an officer with an enlisted
person may be a violation of Article 133. See also
paragraph 90.
d. Maximum punishment.
Confinement for 3 months
and forfeiture of two-thirds pay per month for 3
months.
e. Sample specification.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, gamble
with __________, then knowing that the said
__________ was not a noncommissioned or petty
officer and was subordinate to the said ______, and
that said conduct was (to the prejudice of good order
and discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and was
of a nature to bring discredit upon the armed forces).
103. Article 134—(Homicide, negligent)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That a certain person is dead;
(2) That this death resulted from the act or failure to
act of the accused;
(3) That the killing by the accused was unlawful;
(4) That the act or failure to act of the accused which
caused the death amounted to simple negligence; and
(5) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) Nature of offense. Negligent homicide is any
unlawful homicide which is the result of simple
negligence. An intent to kill or injure is not required.
(2) Simple negligence. Simple negligence is the
absence of due care, that is, an act or omission of a
person who is under a duty to use due care which
exhibits a lack of that degree of care of the safety of
others which a reasonably careful person would have
exercised under the same or similar circumstances.
Simple negligence is a lesser degree of carelessness
than culpable negligence. See subparagraph
57.c.(2)(a).
d. Maximum punishment.
Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, unlawfully
kill _____, (by negligently _____ the said _____ (in)
(on) the _____ with a _____) (by driving a (motor
vehicle) (_____) against the said _____ in a negligent
manner) (_____), and that said conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
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forces) (to the prejudice of good order and discipline in
the armed forces and was of a nature to bring discredit
upon the armed forces).
104. Article 134―(Indecent conduct)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused engaged in certain conduct;
(2) That the conduct was indecent; and
(3) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) “Indecent” means that form of immorality
relating to sexual impurity which is grossly vulgar,
obscene, and repugnant to common propriety, and
tends to excite sexual desire or deprave morals with
respect to sexual relations.
(2) Indecent conduct includes offenses previously
proscribed by “Indecent acts with another” except that
the presence of another person is no longer required.
For purposes of this offense, the words “conduct” and
“act” are synonymous. For child offenses, some
indecent conduct may be included in the definition of
lewd act and preempted by Article 120b(c). See
subparagraph 91.c.(5)(a).
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that ______ (personal jurisdiction data), did (at/on
board—location) (subject-matter jurisdiction data, if
required), on or about ________20___ , commit
indecent conduct, to wit: _________, and that said
conduct was (to the prejudice of good order and
discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and was
of a nature to bring discredit upon the armed forces).
105. Article 134—(Indecent language)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused orally or in writing
communicated to another person certain language;
(2) That such language was indecent; and
(3) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
[Note: If applicable, add the following additional
element:]
(4) That the person to whom the language was
communicated was a child under the age of 16.
c. Explanation. Indecent language is that which is
grossly offensive to modesty, decency, or propriety, or
shocks the moral sense, because of its vulgar, filthy, or
disgusting nature, or its tendency to incite lustful
thought. Language is indecent if it tends reasonably to
corrupt morals or incite libidinous thoughts. The
language must violate community standards. See
paragraph 62 if the communication was made in the
physical presence of a child.
d. Maximum punishment.
(1) Communicated to any child under the age of 16
years. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 2 years.
(2) Other cases. Bad-conduct discharge; forfeiture of
all pay and allowances, and confinement for 6 months.
e. Sample specification.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, (orally) (in
writing) communicate to __________, (a child under
the age of 16 years), certain indecent language, to wit:
__________, and that such conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon
the armed forces).
106. Article 134—(Pandering and prostitution)
a. Text of statute. See paragraph 91.
b. Elements.
(1) Prostitution.
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(a) That the accused engaged in a sexual act with
another person not the accused’s spouse;
(b) That the accused did so for the purpose of
receiving money or other compensation;
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
(2) Patronizing a prostitute.
(a) That the accused engaged in a sexual act with
another person not the accused’s spouse;
(b) That the accused compelled, induced, enticed,
or procured such person to engage in a sexual act in
exchange for money or other compensation;
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
(3) Pandering by inducing, enticing, or procuring
act of prostitution.
(a) That the accused induced, enticed, or procured
a certain person to engage in a sexual act for hire and
reward with a person to be directed to said person by
the accused;
(b) That this inducing, enticing, or procuring was
wrongful;
(c) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
(4) Pandering by arranging or receiving
consideration for arranging for a sexual act.
(a) That the accused arranged for, or received
valuable consideration for arranging for, a certain
person to engage in a sexual act;
(b) That the arranging (and receipt of
consideration) was wrongful; and
(c) That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good
order and discipline in the armed forces; (ii) was of a
nature to bring discredit upon the armed forces; or (iii)
to the prejudice of good order and discipline in the
armed forces and of a nature to bring discredit upon the
armed forces.
c. Explanation.
(1) Sexual act. Sexual act as used in this paragraph
shall be as defined in paragraph 60.a.(g)(1).
(2) Other regulations. This offense does not preempt
any other lawful regulations or orders prescribed by a
proper authority that proscribe other forms of sexual
conduct for compensation by military personnel.
Violations of such regulations or orders may be
punishable under Article 92. See paragraph 18.
d. Maximum punishment.
(1) Prostitution and patronizing a prostitute.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(2) Pandering. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 5 years.
e. Sample specifications.
(1) Prostitution.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
engage in (a sexual act) (sexual acts), to
wit:_________, with _____, a person not (his) (her)
spouse, for the purpose of receiving (money) (_____),
and that such conduct was (to the prejudice of good
order and discipline in the armed forces) (of a nature to
bring discredit upon the armed forces) (to the prejudice
of good order and discipline in the armed forces and of
a nature to bring discredit upon the armed forces).
(2) Patronizing a prostitute.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(compel) (induce) (entice) (procure) __________, a
person not (his) (her) spouse, to engage in (a sexual
act) (sexual acts), to wit:_________, with the accused
in exchange for (money) (__________), and that such
conduct was (to the prejudice of good order and
discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces).
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(3) Inducing, enticing, or procuring act of
prostitution.
In that __________ (personal jurisdiction data), did
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(induce) (entice) (procure) __________ to engage in (a
sexual act) (sexual acts), to wit:_________, for hire
and reward with persons to be directed to (him) (her)
by the said __________, and that such conduct was (to
the prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon
the armed forces).
(4) Arranging, or receiving consideration for
arranging for a sexual act.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required), on or about _____ 20 __, wrongfully
(arrange for) (receive valuable consideration, to wit:
__________ on account of arranging for) __________
to engage in (a sexual act) (sexual acts) to
wit:_________, with __________, and that such
conduct was (to the prejudice of good order and
discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces).
107. Article 134—(Self-injury without intent to
avoid service)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused intentionally inflicted injury
upon himself or herself;
(2) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
[Note: If the offense was committed in time of war or
in a hostile fire pay zone, add the following element:]
(3) That the offense was committed (in time of war)
(in a hostile fire pay zone).
c. Explanation.
(1) Nature of offense. This offense differs from
malingering (see paragraph 7) in that for this offense,
the accused need not have harbored a design to avoid
performance of any work, duty, or service which may
properly or normally be expected of one in the military
service. This offense is characterized by intentional
self-injury under such circumstances as prejudice good
order and discipline or discredit the armed forces. It is
not required that the accused be unable to perform
duties, or that the accused actually be absent from his
or her place of duty as a result of the injury. For
example, the accused may inflict the injury while on
leave or pass. The circumstances and extent of injury,
however, are relevant to a determination that the
accused’s conduct was prejudicial to good order and
discipline, or Service discrediting.
(2) How injury inflicted. The injury may be inflicted
by nonviolent as well as by violent means and may be
accomplished by any act or omission that produces,
prolongs, or aggravates a sickness or disability. Thus,
voluntary starvation that results in debility is a self-
inflicted injury. Similarly, the injury may be inflicted
by another at the accused’s request.
Discussion
Bona fide suicide attempts should not be charged as criminal
offenses. When making a determination whether the injury by the
Servicemember was a bona fide suicide attempt, the convening
authority should consider factors including, but not limited to, health
conditions, personal stressors, and DoD policy related to suicide
prevention.
d. Maximum punishment.
(1) Intentional self-inflicted injury. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 2 years.
(2) Intentional self-inflicted injury in time of war or
in a hostile fire pay zone. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board—location) (subject-matter jurisdiction
data, if required) (in a hostile fire pay zone) on or about
_____ 20 __, (a time of war,) intentionally injure
(himself) (herself) by __________ (nature and
circumstances of injury), and that such conduct was (to
the prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
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forces) (to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon
the armed forces).
107a. Article 134—(Sexual Harassment)
a. Text of statute. See paragraph 91.
b. Elements.
(1) That the accused knowingly made sexual
advances, demands or requests for sexual
favors, or knowingly engaged in other conduct of a
sexual nature;
(2) That such conduct was unwelcome;
(3) That, under the circumstances, such conduct:
(a) Would cause a reasonable person to believe,
and a certain person did believe, that submission to
such conduct would be made, either explicitly or
implicitly, a term or condition of a person’s job, pay,
career, benefits, or entitlements;
(b) Would cause a reasonable person to believe,
and a certain person did believe, that submission to, or
rejection of, such conduct would be used as a basis for
decisions affecting that person’s job, pay, career,
benefits, or entitlements; or
(c) Was so severe, repetitive, or pervasive that a
reasonable person would perceive, and a certain person
did perceive, an intimidating, hostile, or offensive
working environment; and
(4) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) of a nature to
bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation.
(1) Whether “other conduct” is “of a sexual nature”
is dependent upon the circumstances of the act or acts
alleged and may include conduct that, without context,
would not appear to be sexual in nature.
(2) Nature of victim. “A certain person” extends to
any person, regardless of gender or seniority, and
regardless of whether subject to the UCMJ, who by
some duty or military-related reason may work or
associate with the accused.
(3) Timing and location of act. The act constituting
sexual harassment can occur at any location, regardless
of whether the victim or accused is on or off duty at the
time of the alleged act or acts. Physical proximity is not
required, and the acts may be committed through
online or other electronic means.
(4) Mens Rea. The accused must have actual
knowledge that he or she is making a sexual advance
or a demand or request for sexual favors, or engaging
in other conduct of a sexual nature. Actual knowledge
is not required for the other elements of the offense.
(5) A certain person’s belief or perception. For
purposes of the portions of the elements dealing with a
certain person’s belief or perception, that belief or
perception may be satisfied by such a belief or
perception being formed at any time; the belief or
perception need not be formed contemporaneously
with the actions that gave rise to that belief or
perception.
d. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 2 years.
e. Sample specification.
In that __________ (personal jurisdiction data), did,
(at/on board-location) (subject-matter jurisdiction data,
if required), on or about _____ 20__, knowingly (make
sexual advances)
(demand or request sexual favors) (engage in conduct
of a sexual nature), to wit (by saying to (him) (her),
“__________,” or words to that effect) (by
___________); that such conduct was unwelcome; and
under the circumstances (would cause a reasonable
person to believe, and _________ did believe, that
submission to such conduct would be made, either
explicitly or implicitly, a term or condition of a
person’s job, pay, career, benefits or entitlements)
(would cause a reasonable person to believe, and
_________ did believe, that submission to, or rejection
of, such conduct would be used as a basis for career or
employment decisions affecting _________) (was so
severe, repetitive, or pervasive that a reasonable person
would perceive, and _________ did perceive, an
intimidating, hostile, or offensive working
environment); and that such conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and of a nature to bring discredit upon
the armed forces).
108. Article 134—(Straggling)
a. Text of statute. See paragraph 91.
b. Elements.
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(1) That the accused, while accompanying the
accused’s organization on a march, maneuvers, or
similar exercise, straggled;
(2) That the straggling was wrongful; and
(3) That, under the circumstances, the conduct of the
accused was either: (i) to the prejudice of good order
and discipline in the armed forces; (ii) was of a nature
to bring discredit upon the armed forces; or (iii) to the
prejudice of good order and discipline in the armed
forces and of a nature to bring discredit upon the armed
forces.
c. Explanation. “Straggle” means to wander away, to
stray, to become separated from, or to lag or linger
behind.
d. Maximum punishment.
Confinement for 3 months
and forfeiture of two-thirds pay per month for 3
months.
e. Sample specification.
In that __________ (personal jurisdiction data)
(subject-matter jurisdiction data, if required), did, at
__________, on or about _____ 20 __, while
accompanying (his) (her) organization on (a march)
(maneuvers) (__________), wrongfully straggle, and
that such conduct was (to the prejudice of good order
and discipline in the armed forces) (of a nature to bring
discredit upon the armed forces) (to the prejudice of
good order and discipline in the armed forces and of a
nature to bring discredit upon the armed forces).
PART V
NONJUDICIAL PUNISHMENT PROCEDURE
V-1
1. General
a. Authority. Nonjudicial punishment in the United
States Armed Forces is authorized by Article 15.
b. Nature. Nonjudicial punishment is a disciplinary
measure more serious than the administrative
corrective measures discussed in paragraph 1g, but less
serious than trial by court-martial.
c. Purpose. Nonjudicial punishment provides
commanders with an essential and prompt means of
maintaining good order and discipline and also
promotes positive behavior changes in
Servicemembers without the stigma of a court-martial
conviction.
d. Policy.
(1) Commander’s responsibility. Commanders are
responsible for good order and discipline in their
commands. Generally, discipline can be maintained
through effective leadership including, when
necessary, administrative corrective measures.
Nonjudicial punishment is ordinarily appropriate when
administrative corrective measures are inadequate due
to the nature of the minor offense or the record of the
Servicemember, unless it is clear that only trial by
court-martial will meet the needs of justice and
discipline. Nonjudicial punishment shall be considered
on an individual basis. Commanders considering
nonjudicial punishment should consider the nature of
the offense, the record of the Servicemember, the needs
for good order and discipline, and the effect of
nonjudicial punishment on the Servicemember and the
Servicemember’s record.
(2) Commander’s discretion. A commander who is
considering a case for disposition under Article 15 will
exercise personal discretion in evaluating each case,
both as to whether nonjudicial punishment is
appropriate, and, if so, as to the nature and amount of
punishment appropriate. No superior may direct that a
subordinate authority impose nonjudicial punishment
in a particular case, issue regulations, orders, or
“guides” which suggest to subordinate authorities that
certain categories of minor offenses be disposed of by
nonjudicial punishment instead of by court-martial or
administrative corrective measures, or that
predetermined kinds or amounts of punishments be
imposed for certain classifications of offenses that the
subordinate considers appropriate for disposition by
nonjudicial punishment.
(3) Commander’s suspension authority.
Commanders should consider suspending all or part of
any punishment selected under Article 15, particularly
in the case of first offenders or when significant
extenuating or mitigating matters are present.
Suspension provides an incentive to the offender and
gives an opportunity to the commander to evaluate the
offender during the period of suspension.
e. Minor offenses. Nonjudicial punishment may be
imposed for acts or omissions that are minor offenses
under the punitive article (see Part IV). Whether an
offense is minor depends on several factors: the nature
of the offense and the circumstances surrounding its
commission; the offender’s age, rank, duty assignment,
record and experience; and the maximum sentence
imposable for the offense if tried by general court-
martial. Ordinarily, a minor offense is an offense for
which the maximum sentence imposable would not
include a dishonorable discharge or confinement for
longer than 1 year if tried by general court-martial.
The decision whether an offense is “minor” is a matter
of discretion for the commander imposing nonjudicial
punishment, but nonjudicial punishment for an offense
other than a minor offense (even though thought by the
commander to be minor) is not a bar to trial by court-
martial for the same offense. See R.C.M.
907(b)(2)(D)(iii). However, the accused may show at
trial that nonjudicial punishment was imposed, and if
the accused does so, this fact must be considered in
determining an appropriate sentence. See Article 15(f);
R.C.M. 1001(d)(1)(B).
f. Limitations on nonjudicial punishment.
(1) Double punishment prohibited. When
nonjudicial punishment has been imposed for an
offense, punishment may not again be imposed for the
same offense under Article 15. But see paragraph 1e
concerning trial by court-martial.
(2) Increase in punishment prohibited. Once
nonjudicial punishment has been imposed, it may not
be increased, upon appeal or otherwise.
(3) Multiple punishment prohibited. When a
commander determines that nonjudicial punishment is
appropriate for a particular Servicemember, all known
offenses determined to be appropriate for disposition
by nonjudicial punishment and ready to be considered
at that time, including all such offenses arising from a
single incident or course of conduct, shall ordinarily be
V-2
considered together, and not made the basis for
multiple punishments.
(4) Statute of limitations. Except as provided in
Article 43(c) and (d), nonjudicial punishment may not
be imposed for offenses which were committed more
than 2 years before the date of imposition, unless
knowingly and voluntarily waived by the member. See
Article 43(b)(3).”
(5) Civilian courts. Nonjudicial punishment may not
be imposed for an offense tried by a court which
derives its authority from the United States.
Nonjudicial punishment may not be imposed for an
offense tried by a State or foreign court unless
authorized by regulations of the Secretary concerned.
g. Relationship of nonjudicial punishment to
administrative corrective measures. Article 15 and
Part V of this Manual do not apply to, include, or limit
use of administrative corrective measures that promote
efficiency and good order and discipline such as
counseling, admonitions, reprimands, exhortations,
disapprovals, criticisms, censures, reproofs, rebukes,
extra military instruction, and administrative
withholding of privileges. See also R.C.M. 306.
Administrative corrective measures are not
punishment and they may be used for acts or omissions
which are not offenses under the code and for acts or
omissions which are offenses under the code.
h. Burden of proof. The burden of proof to be utilized
by commanders throughout the nonjudicial
punishment process shall be a preponderance of the
evidence. This means the commanding officer must
determine it is “more likely than not” the member
committed the offense defined by the UCMJ. Each
element of each offense, as defined in the Manual for
Courts-Martial, must be supported by a preponderance
of the evidence (i.e., “more likely than not”). This
standard is more rigorous than a “probable cause”
standard of proof used by law enforcement to obtain a
warrant but a lower standard of proof than the “beyond
a reasonable doubt” standard used at a court-martial.
i. Effect of errors. Failure to comply with any of the
procedural provisions of Part V of this Manual shall
not invalidate a punishment imposed under Article 15,
unless the error materially prejudiced a substantial
right of the Servicemember on whom the punishment
was imposed.
j. Service regulations and procedures. Unless
otherwise provided, the Service regulations and
procedures of the Servicemember shall apply.
2. Who may impose nonjudicial punishment
The following persons may serve as a nonjudicial
punishment authority for the purposes of administering
nonjudicial punishment proceedings under this Part:
a. Commander. As provided by regulations of the
Secretary concerned, a commander may impose
nonjudicial punishment upon any military personnel of
that command. “Commander” means a commissioned
or warrant officer who, by virtue of rank and
assignment, exercises primary command authority
over a military organization or prescribed territorial
area, which under pertinent official directives is
recognized as a “command.” “Commander” includes a
commander of a joint command. Subject to
subparagraph 1d(2) and any regulations of the
Secretary concerned, the authority of a commander to
impose nonjudicial punishment as to certain types of
offenses, certain categories of persons, or in specific
cases, or to impose certain types of punishment, may
be limited or withheld by a superior commander or by
the Secretary concerned.
b. Officer in charge. If authorized by regulations of the
Secretary concerned, an officer in charge may impose
nonjudicial punishment upon enlisted persons assigned
to that unit.
c. Principal assistant. If authorized by regulations of
the Secretary concerned, a commander exercising
general court-martial jurisdiction or an officer of
general or flag rank in command may delegate that
commander’s powers under Article 15 to a principal
assistant. The Secretary concerned may define
“principal assistant.”
3. Right to demand trial
Except in the case of a person attached to or embarked
in a vessel, punishment may not be imposed under
Article 15 upon any member of the armed forces who
has, before the imposition of nonjudicial punishment,
demanded trial by court-martial in lieu of nonjudicial
punishment. This right may also be granted to a person
attached to or embarked in a vessel if so authorized by
regulations of the Secretary concerned. A person is
“attached to” or “embarked in” a vessel if, at the time
nonjudicial punishment is imposed, that person is
assigned or attached to the vessel, is on board for
passage, or is assigned or attached to an embarked
staff, unit, detachment, squadron, team, air group, or
other regularly organized body.
V-3
4. Procedure
a. Notice. If, after a preliminary inquiry (see R.C.M.
303), the nonjudicial punishment authority determines
that disposition by nonjudicial punishment
proceedings is appropriate (see R.C.M. 306; paragraph
1 of this Part), the nonjudicial punishment authority
shall cause the Servicemember to be notified. The
notice shall include:
(1) a statement that the nonjudicial punishment
authority is considering the imposition of nonjudicial
punishment;
(2) a statement describing the alleged offenses—
including the article of the code—which the member is
alleged to have committed;
(3) a brief summary of the information upon which
the allegations are based or a statement that the
member may, upon request, examine available
statements and evidence;
(4) a statement of the rights that will be accorded to
the Servicemember under subparagraphs 4c(1) and (2)
of this Part;
(5) unless the right to demand trial is not applicable
(see paragraph 3 of this Part), a statement that the
member may demand trial by court-martial in lieu of
nonjudicial punishment, a statement of the maximum
punishment which the nonjudicial punishment
authority may impose by nonjudicial punishment; a
statement that, if trial by court-martial is demanded,
charges could be referred for trial by summary, special,
or general court-martial; that the member may not be
tried by summary court-martial over the member’s
objection; and that at a special or general court-martial
the member has the right to be represented by counsel.
b. Decision by Servicemember.
(1) Demand for trial by court-martial. If the
Servicemember demands trial by court-martial (when
this right is applicable), the nonjudicial proceedings
shall be terminated. It is within the discretion of the
commander whether to forward or refer charges for
trial by court-martial (see R.C.M. 306; 307; 401–407)
in such a case, but in no event may nonjudicial
punishment be imposed for the offenses affected unless
the demand is voluntarily withdrawn.
(2) No demand for trial by court-martial. If the
Servicemember does not demand trial by court-martial
within a reasonable time after notice under paragraph
4a of this Part, or if the right to demand trial by court-
martial is not applicable, the nonjudicial punishment
authority may proceed under paragraph 4c of this Part.
c. Nonjudicial punishment proceeding accepted.
(1) Personal appearance requested; procedure.
Before nonjudicial punishment may be imposed, the
Servicemember shall be entitled to appear personally
before the nonjudicial punishment authority who
offered nonjudicial punishment, except when
appearance is prevented by the unavailability of the
nonjudicial punishment authority or by extraordinary
circumstances, in which case the Servicemember shall
be entitled to appear before a person designated by the
nonjudicial punishment authority who shall prepare a
written summary of any proceedings before that person
and forward it and any written matter submitted by the
Servicemember to the nonjudicial punishment
authority. If the Servicemember requests personal
appearance, the Servicemember shall be entitled to:
(A) Be informed in accordance with Article 31(b);
(B) Be accompanied by a spokesperson provided
or arranged for by the member unless the punishment
to be imposed will not exceed extra duty for 14 days,
restriction for 14 days, and an oral reprimand. Such a
spokesperson need not be qualified under R.C.M.
502(d); such spokesperson is not entitled to travel or
similar expenses, and the proceedings need not be
delayed to permit the presence of a spokesperson; the
spokesperson may speak for the Servicemember, but
may not question witnesses except as the nonjudicial
punishment authority may allow as a matter of
discretion;
(C) Be informed orally or in writing of the
information against the Servicemember and relating to
the offenses alleged;
(D) Be allowed to examine documents or physical
objects against the Servicemember that the nonjudicial
punishment authority has examined in connection with
the case and on which the nonjudicial punishment
authority intends to rely in deciding whether and how
much nonjudicial punishment to impose;
(E) Present matters in defense, extenuation, and
mitigation orally, or in writing, or both;
(F) Have present witnesses, including those
adverse to the Servicemember, upon request, if their
statements will be relevant and they are reasonably
available. For purposes of this subparagraph, a witness
is not reasonably available if the witness requires
reimbursement by the United States for any cost
incurred in appearing, cannot appear without unduly
delaying the proceedings, or, if a military witness,
cannot be excused from other important duties;
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(G) Have the proceeding open to the public unless
the nonjudicial punishment authority determines that
the proceeding should be closed for good cause, such
as military exigencies or security interests, or unless
the punishment to be imposed will not exceed extra
duty for 14 days, restriction for 14 days, and an oral
reprimand; however, nothing in this subparagraph
requires special arrangements to be made to facilitate
access to the proceeding.
(2) Personal appearance waived; procedure.
Subject to the approval of the nonjudicial punishment
authority, the Servicemember may request not to
appear personally under subparagraph 4c(1) of this
Part. If such request is granted, the Servicemember
may submit written matters for consideration by the
nonjudicial punishment authority before such
authority’s decision under subparagraph 4c(4) of this
Part. The Servicemember shall be informed of the
right to remain silent and that matters submitted may
be used against the member in a trial by court-martial.
(3) Evidence. The Military Rules of Evidence (Part
III), other than with respect to privileges, do not apply
at nonjudicial punishment proceedings. Any relevant
matter may be considered, after compliance with
subparagraphs 4c(1)(C) and (D) of this Part.
(4) Decision. After considering all relevant matters
presented by a preponderance of the evidence standard,
if the nonjudicial punishment authority—
(A) does not conclude that the Servicemember
committed the offenses alleged, the nonjudicial
punishment authority shall so inform the member and
terminate the proceedings;
(B) concludes that the Servicemember committed
one or more of the offenses alleged, the nonjudicial
punishment authority shall:
(i) so inform the Servicemember;
(ii) inform the Servicemember of the
punishment imposed; and
(iii) inform the Servicemember of the right to
appeal (see paragraph 7 of this Part).
d. Nonjudicial punishment based on record of court of
inquiry or other investigative body. Nonjudicial
punishment may be based on the record of a court of
inquiry or other investigative body, in which
proceeding the member was accorded the rights of a
party. No additional proceeding under subparagraph
4c(1) of this Part is required. The Servicemember shall
be informed in writing that nonjudicial punishment is
being considered based on the record of the
proceedings in question, and given the opportunity, if
applicable, to refuse nonjudicial punishment. If the
Servicemember does not demand trial by court-martial
or has no option, the Servicemember may submit, in
writing, any matter in defense, extenuation, or
mitigation, to the officer considering imposing
nonjudicial punishment, for consideration by that
officer to determine whether the member committed
the offenses in question, and, if so, to determine an
appropriate punishment.
5. Punishments
a. General limitations. The Secretary concerned may
limit the power granted by Article 15 with respect to
the kind and amount of the punishment authorized.
Subject to paragraphs 1 and 4 of this Part and to
regulations of the Secretary concerned, the kinds and
amounts of punishment authorized by Article 15(b)
may be imposed upon Servicemembers as provided in
this paragraph.
b. Authorized maximum punishments. In addition to or
in lieu of admonition or reprimand, the following
disciplinary punishments, subject to the limitation of
paragraph 5d of this Part, may be imposed upon
Servicemembers:
(1) Upon commissioned officers and warrant
officers—
(A) By any commanding officer—restriction to
specified limits, with or without suspension from duty
for not more than 30 consecutive days;
(B) If imposed by an officer exercising general
court-martial jurisdiction, an officer of general or flag
rank in command, or a principal assistant as defined in
paragraph 2c of this Part—
(i) arrest in quarters for not more than 30
consecutive days;
(ii) forfeiture of not more than one-half of one
month’s pay per month for 2 months;
(iii) restriction to specified limits, with or
without suspension from duty, for not more than 60
consecutive days;
(2) Upon other military personnel of the command—
(A) By any nonjudicial punishment authority—
(i) if imposed upon a person attached to or
embarked in a vessel, confinement for not more than 3
consecutive days;
(ii) correctional custody for not more than 7
consecutive days;
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(iii) forfeiture of not more than 7 days’ pay;
(iv) reduction to the next inferior grade, if the
grade from which demoted is within the promotion
authority of the officer imposing the reduction or any
officer subordinate to the one who imposes the
reduction;
(v) extra duties, including fatigue or other
duties, for not more than 14 consecutive days;
(vi) restriction to specified limits with or
without suspension from duty, for not more than 14
consecutive days;
(B) If imposed by a commanding officer of the
grade of major or lieutenant commander or above or a
principal assistant as defined in paragraph 2c of this
Part—
(i) if imposed upon a person attached to or
embarked in a vessel, confinement for not more than 3
consecutive days;
(ii) correctional custody for not more than 30
consecutive days;
(iii) forfeiture of not more than one-half of 1
month’s pay per month for 2 months;
(iv) reduction to the lowest or any intermediate
pay grade, if the grade from which demoted is within
the promotion authority of the officer imposing the
reduction or any officer subordinate to the one who
imposes the reduction, but enlisted members in pay
grades above E-4 may not be reduced more than one
pay grade, except that during time of war or national
emergency this category of persons may be reduced
two grades if the Secretary concerned determines that
circumstances require the removal of this limitation;
(v) extra duties, including fatigue or other
duties, for not more than 45 consecutive days;
(vi) restrictions to specified limits, with or
without suspension from duty, for not more than 60
consecutive days.
c. Nature of punishment.
(1) Admonition and reprimand. Admonition and
reprimand are two forms of censure intended to express
adverse reflection upon or criticism of a person’s
conduct. A reprimand is a more severe form of censure
than an admonition. When imposed as nonjudicial
punishment, the admonition or reprimand is considered
to be punitive, unlike the nonpunitive admonition and
reprimand provided for in paragraph 1g of this Part. In
the case of commissioned officers and warrant officers,
admonitions and reprimands given as nonjudicial
punishment must be administered in writing. In other
cases, unless otherwise prescribed by the Secretary
concerned, they may be administered either orally or in
writing.
(2) Restriction. Restriction is the least severe form of
deprivation of liberty. Restriction involves moral
rather than physical restraint. The severity of this type
of restraint depends on its duration and the
geographical limits specified when the punishment is
imposed. A person undergoing restriction may be
required to report to a designated place at specified
times if reasonably necessary to ensure that the
punishment is being properly executed. Unless
otherwise specified by the nonjudicial punishment
authority, a person in restriction may be required to
perform any military duty.
(3) Arrest in quarters. As in the case of restriction,
the restraint involved in arrest in quarters is enforced
by a moral obligation rather than by physical means.
This punishment may be imposed only on officers. An
officer undergoing this punishment may be required to
perform those duties prescribed by the Secretary
concerned. However, an officer so punished is required
to remain within that officer’s quarters during the
period of punishment unless the limits of arrest are
otherwise extended by appropriate authority. The
quarters of an officer may consist of a military
residence, whether a tent, stateroom, or other quarters
assigned, or a private residence when government
quarters have not been provided.
(4) Correctional custody. Correctional custody is the
physical restraint of a person during duty or nonduty
hours, or both, imposed as a punishment under Article
15, and may include extra duties, fatigue duties, or hard
labor as an incident of correctional custody. A person
may be required to serve correctional custody in a
confinement facility, but, if practicable, not in
immediate association with persons awaiting trial or
held in confinement pursuant to trial by court-martial.
A person undergoing correctional custody may be
required to perform those regular military duties, extra
duties, fatigue duties, and hard labor which may be
assigned by the authority charged with the
administration of the punishment. The conditions
under which correctional custody is served shall be
prescribed by the Secretary concerned. In addition, the
Secretary concerned may limit the categories of
enlisted members upon whom correctional custody
may be imposed. The authority competent to order the
release of a person from correctional custody shall be
as designated by the Secretary concerned.
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(5) Confinement. Confinement may be imposed
upon a person attached to or embarked on a vessel.
Confinement involves confinement for not more than
three consecutive days in places where the person so
confined may communicate only with authorized
personnel. The categories of enlisted personnel upon
whom this type of punishment may be imposed may be
limited by the Secretary concerned.
(6) Extra duties. Extra duties involve the
performance of duties in addition to those normally
assigned to the person undergoing the punishment.
Extra duties may include fatigue duties. Military duties
of any kind may be assigned as extra duty. However,
no extra duty may be imposed which constitutes a
known safety or health hazard to the member or which
constitutes cruel or unusual punishment or which is not
sanctioned by customs of the Service concerned. Extra
duties assigned as punishment of noncommissioned
officers, petty officers, or any other enlisted persons of
equivalent grades or positions designated by the
Secretary concerned, should not be of a kind which
demeans their grades or positions.
(7) Reduction in grade. Reduction in grade is one of
the most severe forms of nonjudicial punishment and it
should be used with discretion. As used in Article 15,
the phrase “if the grade from which demoted is within
the promotion authority of the officer imposing the
reduction or any officer subordinate to the one who
imposes the reduction,” does not refer to the authority
to promote the person concerned but to the general
authority to promote to the grade held by the person to
be punished.
(8) Forfeiture of pay. “Forfeiture” means a
permanent loss of entitlement to the pay forfeited.
“Pay,” as used with respect to forfeiture of pay under
Article 15, refers to the basic pay of the person or, in
the case of reserve component personnel on inactive-
duty, compensation for periods of inactive-duty
training, plus any sea or hardship duty pay. “Basic pay”
includes no element of pay other than the basic pay
fixed by statute for the grade and length of service of
the person concerned and does not include special pay
for a special qualification, incentive pay for the
performance of hazardous duties, proficiency pay,
subsistence and quarters allowances, and similar types
of compensation. If the punishment includes both
reduction, whether or not suspended, and forfeiture of
pay, the forfeiture must be based on the grade to which
reduced. The amount to be forfeited will be expressed
in whole dollar amounts only and not in a number of
day’s pay or fractions of monthly pay. If the forfeiture
is to be applied for more than 1 month, the amount to
be forfeited per month and the number of months
should be stated. Forfeiture of pay may not extend to
any pay accrued before the date of its imposition.
d. Limitations on combination of punishments.
(1) Arrest in quarters may not be imposed in
combination with restriction;
(2) Confinement may not be imposed in combination
with correctional custody, extra duties, or restriction;
(3) Correctional custody may not be imposed in
combination with restriction or extra duties;
(4) Restriction and extra duties may be combined to
run concurrently, but the combination may not exceed
the maximum imposable for extra duties;
(5) Subject to the limits in subparagraphs 5d(1)
through (4) all authorized punishments may be
imposed in a single case in the maximum amounts.
e. Punishments imposed on reserve component
personnel while on inactive-duty training. When a
punishment under Article 15 amounting to a
deprivation of liberty (for example, restriction,
correctional custody, extra duties, or arrest in quarters)
is imposed on a member of a reserve component during
a period of inactive-duty training, the punishment may
be served during one or both of the following:
(1) A normal period of inactive-duty training; or
(2) A subsequent period of active duty (not including
a period of active duty under Article 2(d)(1), unless
such active duty was approved by the Secretary
concerned).
Unserved punishments may be carried over to
subsequent periods of inactive-duty training or active
duty. A sentence to forfeiture of pay may be collected
from active duty and inactive-duty training pay during
subsequent periods of duty.
f. Punishments imposed on reserve component
personnel when ordered to active duty for disciplinary
purposes. When a punishment under Article 15 is
imposed on a member of a reserve component during a
period of active duty to which the reservist was ordered
pursuant to R.C.M. 204 and which constitutes a
deprivation of liberty (for example, restriction,
correctional custody, extra duties, or arrest in quarters),
the punishment may be served during any or all of the
following:
(1) That period of active duty to which the reservist
was ordered pursuant to Article 2(d), but only where
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the order to active duty was approved by the Secretary
concerned;
(2) A subsequent normal period of inactive-duty
training; or
(3) A subsequent period of active duty (not including
a period of active duty pursuant to R.C.M. 204 which
was not approved by the Secretary concerned).
Unserved punishments may be carried over to
subsequent periods of inactive-duty training or active
duty. A sentence to forfeiture of pay may be collected
from active duty and inactive-duty training pay during
subsequent periods of duty.
g. Effective date and execution of punishments.
Reduction and forfeiture of pay, if unsuspended, take
effect on the date the commander imposes the
punishments. Other punishments, if unsuspended, will
take effect and be carried into execution as prescribed
by the Secretary concerned.
6. Suspension, mitigation, remission, and setting
aside
a. Suspension. The nonjudicial punishment authority
who imposed nonjudicial punishment, the commander
who imposes nonjudicial punishment, or a successor in
command over the person punished, may, at any time,
suspend any part or amount of the unexecuted
punishment imposed and may suspend a reduction in
grade or a forfeiture, whether or not executed, subject
to the following rules:
(1) An executed punishment of reduction or
forfeiture of pay may be suspended only within a
period of 4 months after the date of execution.
(2) Suspension of a punishment may not be for a
period longer than 6 months from the date of the
suspension, and the expiration of the current enlistment
or term of service of the Servicemember involved
automatically terminates the period of suspension.
(3) Unless the suspension is sooner vacated,
suspended portions of the punishment are remitted,
without further action, upon the termination of the
period of suspension.
(4) Unless otherwise stated, an action suspending a
punishment includes a condition that the
Servicemember not violate any punitive article of the
code. The nonjudicial punishment authority may
specify in writing additional conditions of the
suspension.
(5) A suspension may be vacated by any nonjudicial
punishment authority or commander competent to
impose upon the Servicemember concerned
punishment of the kind and amount involved in the
vacation of suspension. Vacation of suspension may be
based only on a violation of the conditions of
suspension which occurs within the period of
suspension. Before a suspension may be vacated, the
Servicemember ordinarily shall be notified and given
an opportunity to respond. Although a hearing is not
required to vacate a suspension, if the punishment is of
the kind set forth in Article 15(e)(1)-(7), the
Servicemember should, unless impracticable, be given
an opportunity to appear before the officer authorized
to vacate suspension of the punishment to present any
matters in defense, extenuation, or mitigation of the
violation on which the vacation action is to be based.
Vacation of a suspended nonjudicial punishment is not
itself nonjudicial punishment, and additional action to
impose nonjudicial punishment for a violation of a
punitive article of the code upon which the vacation
action is based is not precluded thereby.
b. Mitigation. Mitigation is a reduction in either the
quantity or quality of a punishment, its general nature
remaining the same. Mitigation is appropriate when the
offender’s later good conduct merits a reduction in the
punishment, or when it is determined that the
punishment imposed was disproportionate. The
nonjudicial punishment authority who imposes
nonjudicial punishment, the commander who imposes
nonjudicial punishment, or a successor in command
may, at any time, mitigate any part or amount of the
unexecuted portion of the punishment imposed. The
nonjudicial punishment authority who imposes
nonjudicial punishment, the commander who imposes
nonjudicial punishment, or a successor in command
may also mitigate reduction in grade, whether executed
or unexecuted, to forfeiture of pay, but the amount of
the forfeiture may not be greater than the amount that
could have been imposed by the officer who initially
imposed the nonjudicial punishment. Reduction in
grade may be mitigated to forfeiture of pay only within
4 months after the date of execution.
When mitigating—
(1) arrest in quarters to restriction;
(2) confinement to correctional custody;
(3) correctional custody or confinement to extra
duties or restriction, or both; or
(4) extra duties to restriction, the mitigated
punishment may not be for a greater period than the
V-8
punishment mitigated. As restriction is the least severe
form of deprivation of liberty, it may not be mitigated
to a lesser period of another form of deprivation of
liberty, as that would mean an increase in the quality
of the punishment.
c. Remission. Remission is an action whereby any
portion of the unexecuted punishment is cancelled.
Remission is appropriate under the same
circumstances as mitigation. The nonjudicial
punishment authority who imposes punishment, the
commander who imposes nonjudicial punishment, or a
successor in command may, at any time, remit any part
or amount of the unexecuted portion of the punishment
imposed. The expiration of the current enlistment or
term of service of the Servicemember automatically
remits any unexecuted punishment imposed under
Article 15.
d. Setting aside. Setting aside is an action whereby the
punishment, or any part or amount thereof, whether
executed or unexecuted, is set aside and any property,
privileges, or rights affected by the portion of the
punishment set aside are restored. The nonjudicial
punishment authority who imposed punishment, the
commander who imposes nonjudicial punishment, or a
successor in command may set aside punishment. The
power to set aside punishments and restore rights,
privileges, and property affected by the executed
portion of a punishment should ordinarily be exercised
only when the authority considering the case believes
that, under all circumstances of the case, the
punishment has resulted in clear injustice. Also, the
power to set aside an executed punishment should
ordinarily be exercised only within a reasonable time
after the punishment has been executed. In this
connection, 4 months is a reasonable time in the
absence of unusual circumstances.
7. Appeals
a. In general. Any Servicemember punished under
Article 15 who considers the punishment to be unjust
or disproportionate to the offense may appeal through
the proper channels to the next superior authority.
b. Who may act on appeal. A “superior authority,” as
prescribed by the Secretary concerned, may act on an
appeal. When punishment has been imposed under
delegation of a commander’s authority to administer
nonjudicial punishment (see paragraph 2c of this Part),
the appeal may not be directed to the commander who
delegated the authority.
c. Format of appeal. Appeals shall be in writing and
may include the appellant’s reasons for regarding the
punishment as unjust or disproportionate.
d. Time limit. An appeal shall be submitted within 5
days of imposition of punishment, or the right to appeal
shall be waived in the absence of good cause shown. A
Servicemember who has appealed may be required to
undergo any punishment imposed while the appeal is
pending, except that if action is not taken on the appeal
within 5 days after the appeal was submitted, and if the
Servicemember so requests, any unexecuted
punishment involving restraint or extra duty shall be
stayed until action on the appeal is taken.
e. Legal review. Before acting on an appeal from any
punishment of the kind set forth in Article 15(e)(1)-(7),
the authority who is to act on the appeal shall refer the
case to a judge advocate or to a lawyer of the
Department of Homeland Security for consideration
and advice, and may so refer the case upon appeal from
any punishment imposed under Article 15. When the
case is referred, the judge advocate or lawyer is not
limited to an examination of any written matter
comprising the record of proceedings and may make
any inquiries and examine any additional matter
deemed necessary.
f. Action by superior authority.
(1) In general. In acting on an appeal, the superior
authority may exercise the same power with respect to
the punishment imposed as may be exercised under
Article 15(d) and paragraph 6 of this Part by the officer
who imposed the punishment. The superior authority
may take such action even if no appeal has been filed.
(2) Matters considered. When reviewing the action
of an officer who imposed nonjudicial punishment, the
superior authority may consider the record of the
proceedings, any matters submitted by the
Servicemember, any matters considered during the
legal review, if any, and any other appropriate matters.
(3) Additional proceedings. If the superior authority
sets aside a nonjudicial punishment due to a procedural
error, that authority may authorize additional
proceedings under Article 15, to be conducted by the
officer who imposed the nonjudicial punishment, the
commander, or a successor in command, for the same
offenses involved in the original proceedings. Any
punishment imposed as a result of these additional
proceedings may be no more severe than that originally
imposed.
(4) Notification. Upon completion of action by the
superior authority, the Servicemember upon whom
V-9
punishment was imposed shall be promptly notified of
the result.
(5) Delegation to principal assistant. If authorized
by regulation of the Secretary concerned a superior
authority who is a commander exercising general
court-martial jurisdiction, or is an officer of general or
flag rank in command, may delegate the power under
Article 15(e) and this paragraph to a principal assistant.
8. Records of nonjudicial punishment
The content, format, use, and disposition of records of
nonjudicial punishment may be prescribed by
regulations of the Secretary concerned.
APPENDIX 1
CONSTITUTION OF THE UNITED STATES—1787
A1-1
We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution of the United States of America.
ARTICLE I
Section 1
. All legislative Powers herein granted shall be vested in
a Congress of the United States, which shall consist of a Senate
and a House of Representatives.
Section 2. The House of Representatives shall be composed of
Members chosen every second year by the people of the several
states, and the Electors in each State shall have the Qualifications
requisite for Electors of the most numerous Branch of the State
Legislature.
No person shall be a Representative who shall not have attained
to the Age of twenty-five Years, and been seven Years a Citizen of
the United States, and who shall not, when elected, be an Inhabitant
of that State in which he shall be chosen.
1
Representative and direct Taxes shall be apportioned among the
several States which may be included within this Union, according
to their respective Numbers, which shall be determined by adding to
the whole Number of free Persons, including those bound to Service
for a Term of Years, and excluding Indians not taxed, three fifths of
all other Persons. The actual Enumeration shall be made within three
Years after the first Meeting of the Congress of the United States,
and within every subsequent Term of ten Years in such Manner as
they shall by Law direct. The Number of Representative shall not
exceed one for every thirty Thousand, but each state shall have at
Least one Representative; and until such enumeration shall be made,
the state of New Hampshire shall be entitled to choose three,
Massachusetts eight, Rhode Island and Providence Plantations one,
Connecticut five, New York six, New Jersey four, Pennsylvania
eight, Delaware one, Maryland six, Virginia ten, North Carolina five,
South Carolina five, and Georgia three.
When vacancies happen in the Representation from any state, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.
The House of Representatives shall choose the Speaker and other
officers; and shall have the sole power of Impeachment.
Section 3.
2
The Senate of the United States shall be composed of
two Senators from each State chosen by the Legislature thereof, for
six Years and each Senator shall have one Vote.
Immediately after they shall be assembled in Consequence of the
first Election, they shall be divided as equally as may be into three
Classes. The Seats of the Senators of the first Class shall be vacated
at the Expiration of the second Year, of the second Class at the
Expiration of the fourth Year, and of the third Class at the Expiration
of the sixth Year, so that one third may be chosen every second Year;
and if Vacancies happen by Resignation, or otherwise during the
Recess of the Legislature of any State, the Executive thereof may
1
This clause has been affected by the 14th and 16th amendments.
2
This section has been affected by the 17th amendment.
3
This clause has been affected by the 20th amendment.
make temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.
No person shall be a Senator who shall not have attained to the
Age of thirty Years, and been nine Years a Citizen of the United
States, who shall not, when elected, be an Inhabitant of that State for
which he shall be chosen.
The Vice-President of the United States shall be President of the
Senate, but shall have no Vote unless they be equally divided.
The Senate shall choose their other Officers, and also a President
pro tempore, in the Absence of the Vice-President, or when he shall
exercise the Office of President of the United States.
The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the
Concurrence of two-thirds of the Members present.
Judgement in Cases of Impeachment shall not extend further than
to removal from Office and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States; but the Party
convicted shall nevertheless be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.
Section 4. The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by
the Legislature thereof: but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of choosing
Senators.
3
The Congress shall assemble at least once in every Year, and
such Meeting shall be on the first Monday in December, unless they
shall by Law appoint a different Day.
Section 5. Each House shall be the Judge of the Elections, Returns
and Qualifications of its own Members, and a Majority of each shall
constitute a Quorum to do Business; but a smaller Number may
adjourn from day to day, and may be authorized to compel the
Attendance of absent Members, in such Manner, and under such
Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behaviour, and with the Concurrence of
two-thirds, expel a Member.
Each House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays of the Members
either House on any question shall, at the Desire of one fifth of those
Present be entered on the Journal.
Neither House, during the Session of Congress shall, without the
Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.
Section 6. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid
APPENDIX 1
A1-2
out of the Treasury of the United States. They shall in all Cases,
except Treason, Felony and Breach of the Peace, be privileged from
Arrest during their Attendance at the Session of their respective
Houses, and in going to and returning from the same; and for any
Speech or Debate in either House, they shall not be questioned in any
other Place.
No Senator or Representative shall, during the Time for which he
is elected, be appointed to any Civil Office under the Authority of
the United States, which shall have been created, or the Emoluments
whereof shall have been increased during such time; and no Person
holding any Office under the United States, shall be a Member of
either House during his Continuance in Office.
Section 7. All Bills for raising Revenue shall originate in the
House of Representatives; but the Senate may propose or concur
with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States; if he approve he shall sign it, but if
not he shall return it, with his Objections to that House in which it
shall have originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it. If after such Reconsideration
two-thirds of that House shall agree to pass the Bill, it shall be sent,
together with the Objections, to the other House, by which is shall
likewise be reconsidered, and if approved by two-thirds of that
House, it shall become a Law. But in all such Cases the Votes of
Both Houses shall be determined by Yeas and Nays, and the Names
of the Persons voting for and against the Bill shall be entered on the
Journal of each House respectively. If any Bill shall not be returned
by the President within ten Days (Sundays excepted) after it shall
have been presented to him, the Same shall be a Law, in like Manner
as if he had signed it, unless the Congress by their Adjournment
prevent its Return, in which Case it shall not be a Law.
Every Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representative may be necessary (except on a
question of Adjournment) shall be presented to the President of the
United States; and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be repassed by
two thirds of the Senate and House of Representatives, according to
the Rules and Limitations prescribed in the Case of a Bill.
Section 8. The Congress shall have Power To lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for
the common Defence and general Welfare of the United States; but
all Duties, Imposts and Excises shall be uniform throughout the
United States.
To borrow Money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes;
To establish an uniform rule of Naturalization, and uniform Laws
on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign coin,
and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;
To establish Post Offices and post Roads;
To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries;
To constitute Tribunals inferior to the Supreme Court;
To define and punish Piracies and Felonies committed on the high
Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make
Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to
that use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land
and naval Forces;
To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia,
and for governing such Part of them as may be employed in the
Service of the United States, reserving to the States respectively, the
Appointment of the Officers, and the Authority of training the Militia
according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of
particular States, and the Acceptance of Congress, become the Seat
of the Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of the Legislature
of the States in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful Buildings; And
To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other Powers
vested by the Constitution in the Government of the United States,
or in any Department or Officer thereof.
Section 9. The Migration or Importation of such Persons as any
of the States now existing shall think proper to admit, shall not be
prohibited by the Congress prior to the Year one thousand eight
hundred and eight, but a Tax or duty may be imposed on such
Importation, not exceeding ten dollars for each Person.
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety
require it.
No Bill of Attainder or ex post facto Law shall be passed. No
Capitation, or other direct, Tax shall be laid, unless in Proportion to
the Census or Enumeration herein before directed to be taken.
No Tax or Duty shall be laid on Articles exported from any State.
No Preference shall be given by any Regulation of Commerce or
Revenue to the Ports of one State over those of another: nor shall
Vessels bound to, or from, one State, be obliged to enter, clear, or
pay Duties in another.
No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law; and a regular Statement and
Account of the Receipts and Expenditures of all public Money shall
be published from time to time.
No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall,
without the Consent of the Congress, accept of any present,
Emolument, Office, or Title, of any kind whatever, from any King,
Prince, or foreign State.
Section 10. No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money;
CONSTITUTION OF THE UNITED STATES—1787
A1-3
emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment of Debts; pass any Bill of Attainder, ex post facto
Law, or Law impairing the Obligation of Contracts, or grant any Title
of Nobility.
No State shall, without the Consent of the Congress, lay any
Imposts or Duties on Imports or Exports, except what may be
absolutely necessary for executing its inspection Laws; and the net
Produce of all Duties and Imports, laid by any State on Imports or
Exports, shall be for the Use of the Treasury of the United States; all
such Laws shall be subject to the Revision and Control of the
Congress.
No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into
any Agreement or Compact with another State, or with a foreign
Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.
ARTICLE II
Section 1.
The executive Power shall be vested in a President of
the United States and, together with the Vice President, chosen for
the same Term, be elected as follows.
Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole Number
of Senators and Representatives to which the State may be entitled
in the Congress: but no Senator or Representative, or Person holding
an Office of Trust or Profit under the United States, shall be
appointed an Elector.
4
The Electors shall meet in their respective States, and vote by
Ballot for two Persons, of whom one at least shall not be an
Inhabitant of the same State with themselves. And they shall make a
List of all the Persons voted for, and of the Number of Votes for
each; which List they shall sign and certify, and transmit sealed to
the Seat of the Government of the United States, directed to the
President of the Senate. The President of the Senate shall, in the
Presence of the Senate and House of Representatives, open all the
Certificates, and the Votes shall then be counted. The Person having
the greatest Number of Votes shall be the President, if such Number
be a Majority of the whole Number of Electors appointed; and if
there be more than one who have such Majority, and have an equal
Number of Electors appointed; and if there be more than one who
have such Majority, and have an equal Number of Votes, then the
House of Representatives shall immediately choose by Ballot one of
them for President; and if no Person have a Majority, then from the
five highest on the List the said House shall in like Manner choose
the President. But in choosing the President, the Votes shall be taken
by States, the Representation from each State having one Vote; a
quorum for this Purpose shall consist of a Member or Members from
two thirds of the States, and a Majority of all the states shall be
necessary to a choice. In every case, after the Choice of the President,
the Person having the greatest Number of Votes of the Electors shall
be the Vice President. But if there should remain two or more who
have equal Votes, the Senate shall choose from them by Ballot the
Vice President.
The Congress may determine the Time of the choosing the
Electors, and the Day on which they shall give their Votes; which
Day shall be the same throughout the United States.
No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be
4
This clause has been affected by the 12th amendment.
eligible to the Office of President; neither shall any Person be eligible
to that Office who shall not have attained to the Age of thirty five
Years, and been fourteen Years a Resident within the United States.
In Case of the Removal of the President from Office, or his Death,
Resignation, or Inability to discharge the Powers and Duties of the
said Office, the Same shall devolve on the Vice President, and the
Congress may by Law provide for the Case of Removal, Death,
Resignation or Inability, both of the President and Vice President,
declaring what Officer shall then act as Pres dent, and such Officer
shall act accordingly, until the Disability be removed, or a President
be elected.
The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be increased nor diminished
during the Period for which he shall have been elected, and he hall
not receive within a Period any other Emolument from the United
States, or any of them.
Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation: “I do solemnly swear (or affirm) that
I will faithfully execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States. ”
Section 2. The President shall be Commander in Chief of the
Army and Navy of the United States, and of the Militia of the several
States, when called into the actual Service of the United States; he
may require the Opinion, in writing of the principal Officer in each
of the executive Departments, upon any Subject relating to the
Duties of their respective Offices, and he shall have power to grant
Reprieves and Pardons for Offenses against the United States, except
in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the
Senate, to make Treaties, provided two thirds of the Senators present
concur; and he shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law. But
the Congress may by law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may
happen during the Recess of the Senate, by granting Commissions
which shall expire at the End of their next Session.
Section 3. He shall from time to time give to the Congress
Information of the State of the Union, and recommend to their
Consideration such Measures as he shall judge necessary and
expedient; he may, on extraordinary Occasions, convene both
Houses, or either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he may adjourn
them to such Time as he shall think proper; he shall receive
Ambassadors and other public Ministers; he shall take Care that the
Laws be faithfully executed, and shall Commission all the Officers
of the United States.
Section 4. The President, Vice President and all civil Officers of
the United States, shall be removed from Office on Impeachment for,
APPENDIX 1
A1-4
and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.
ARTICLE III
Section 1. The judicial Power of the United States shall be vested in
one Supreme Court, and in such inferior courts as the Congress may
from time to time ordain and establish. The Judges, both of the
Supreme and inferior Courts, shall hold their Offices during good
Behavior, and shall, at stated Times, receive for their Services a
Compensation which shall not be diminished during their
Continuance in Office.
Section 2. The judicial Power shall extend to all Cases, in Law
and Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority; to all Cases affecting Ambassadors, other public
Ministers, and Consuls; to all Cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be a
Party; to Controversies between two or more States, between a State
and Citizens of another State, between Citizens of different States,
between Citizens of the same State claiming Lands under Grants of
different States, and between a State or the Citizens thereof, and
foreign States, Citizens, or Subjects.
In all Cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a Party, the Supreme
Court shall have original Jurisdiction. In all the other Cases before
mentioned, the Supreme Court shall have appellate Jurisdiction, both
as to Law and Fact, with such Exceptions and under such
Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed within
any State the Trial shall be at such Place or Places as the Congress
may by Law have directed.
Section 3. Treason against the United States shall consist only in
levying War against them, or in adhering to their Enemies, giving
them Aid and Comfort. No Person shall be convicted of Treason
unless on the Testimony of two Witnesses to the same overt Act, or
on Confession in open Court.
The Congress shall have Power to declare the Punishment of
Treason, but no Attainder of Treason shall work Corruption of
Blood, or Forfeiture except during the Life of the Person attained.
ARTICLE IV
Section 1.
Full Faith and Credit shall be given in each State to the
public Act, Records, and judicial Proceedings of every other State.
And the Congress may, by general Laws, prescribe the Manner in
which such Acts, Records, and Proceedings shall be proved, and the
Effect thereof.
Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other
Crime, who shall flee from Justice, and be found in another State,
shall, on Demand of the executive Authority of the State from which
he fled, be delivered up, to be removed to the State having
Jurisdiction of the Crime.
No Person held to Service or Labor in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labor, but
shall be delivered up on Claim of the Party to whom such Service or
Labor may be due.
Section 3. New States may be admitted by the Congress into this
Union; but no new State shall be formed or erected within the
Jurisdiction of any other State, nor any State be formed by the
Junction of two or more States, or Parts of States, without the
Consent of the Legislatures of the States concerned as well as of the
Congress.
The Congress shall have Power to dispose of and make all needful
Rules and Regulations respecting the Territory or other Property
belonging to the United States; and nothing in this Constitution shall
be so construed as to Prejudice any Claims of the United States, or
of any particular State.
Section 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of
them against Invasion; and on Application of the Legislature, or of
the Executive (when the Legislature cannot be convened), against
domestic Violence.
ARTICLE V
The Congress, whenever two thirds of both House shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid, to all intents and Purposes, as Part of this
Constitution, when ratified by the Legislatures of three fourths of the
several States, or by Conventions in three fourths thereof, as the one
or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year
One thousand eight hundred and eight shall in any Manner affect the
first and fourth Clauses in the Ninth Section of the first Article; and
that no State, without its Consent, shall be deprived of its equal
Suffrage in the Senate.
ARTICLE VI
All Debts contracted and Engagements entered into, before the
Adoption of this Constitution, shall be as valid against the United
States under this Constitution, as under the Confederation.
This Constitution, and the Laws of the United States which shall
be made in Pursuance thereof, and all Treaties made, or which shall
be made, under the Authority of the United States, shall be the
supreme Law of the Land; and the Judges in every State shall be
bound thereby, Anything in the Constitution or Laws of any State to
the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the
Members of the several State Legislatures, and all executive and
judicial Officers, both of the United States and of the several States,
shall be bound, by Oath or Affirmation, to support this Constitution;
but no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States.
CONSTITUTION OF THE UNITED STATES—1787
A1-5
ARTICLE VII
The Ratification of the Conventions of nine States shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.
Articles in Addition to, and Amendment of, the Constitution of the
United States of America, Proposed by Congress, and Ratified by the
Legislatures of the Several States Pursuant to the Fifth Article of the
Original Constitution
AMENDMENT I
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
AMENDMENT II
A well-regulated Militia being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.
AMENDMENT III
No Soldier shall, in time of peace, be quartered in any house, without
the consent of the Owner; nor in time of war, but in a manner to be
prescribed by law.
AMENDMENT IV
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated; and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched and the persons or things to be seized.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise
infamous, crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the
Militia, when in actual service, in time of War, or public danger; nor
shall any person be subject, for the same offence, to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall
have been previously ascertained by law; and to be informed of the
nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor; and to have the Assistance of Counsel for his
defence.
AMENDMENT VII
In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved; and no
fact, tried by a jury, shall be otherwise reexamined in any Court of
the United States than according to the rules of the common law.
AMENDMENT VIII
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted.
AMENDMENT IX
The enumeration in the Constitution of certain rights shall not be
construed to deny or disparage others retained by the people.
AMENDMENT X
The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States
respectively or to the people.
AMENDMENT XI
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State or by Citizens
or Subjects of any Foreign State.
AMENDMENT XII
The Electors shall meet in their respective States, and vote by ballot
for President and Vice-President, one of whom, at least, shall not be
an inhabitant of the same State with themselves; they shall name in
their ballots the person voted for as President, and in distinct ballots
the person voted for as Vice-President; and they shall make distinct
lists of all persons voted for as President, and of all persons voted for
as Vice-President, and of the number of votes for each, which lists
they shall sign, and certify, and transmit, sealed, to the seat of the
government of the United States, directed to the President of the
Senate; the President of the Senate shall, in the presence of the Senate
and the House of Representatives, open all the certificates, and the
votes shall then be counted; the person having the greatest number
of votes for President shall be the President, if such number be a
majority of the whole number of Electors appointed; and if no person
have such a majority, then, from the persons having the highest
numbers, not exceeding three, on the list of those voted for a
President, the House of Representatives shall choose immediately,
by ballot, the President. But in choosing the President, the votes shall
be taken by States, the representation from each State having one
vote; a quorum for this purpose shall consist of a member or
members from two-thirds of the States, and a majority of all the
States shall be necessary to a choice. And if the House of
Representatives shall not choose a President, whenever the right of
choice shall devolve upon them, before the fourth day of March next
following, the Vice-President shall act as President, as in case of
death, or other constitutional disability of the President. The person
having the greatest number of votes as Vice-President, shall be the
Vice-President, if such number be a majority of the whole number of
Electors appointed; and if no person have a majority, then, from the
two highest numbers on the list, the Senate shall choose the Vice-
President; a quorum for the purpose shall consist of two-thirds of the
APPENDIX 1
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whole number of Senators; a majority of the whole number shall be
necessary to a choice. But no person constitutionally ineligible to the
office of President shall be eligible to that of Vice-President of the
United States.
AMENDMENT XIII
Section 1.
Neither slavery nor involuntary servitude, except as a
punishment for crime, whereof the party shall have been duly
convicted, shall exist within the United States, or any place subject
to their jurisdiction.
Section 2. Congress shall have power to enforce this article by
appropriate legislation.
AMENDMENT XIV
Section 1.
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law, nor deny
any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole
number of persons in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for
President and Vice-President of the United States, Representatives
in Congress, the Executive and Judicial officers of a State, or the
members of the Legislature thereof, is denied to any of the male
inhabitants of such State, being twenty one years of age, and citizens
of the United States, or in any way abridged, except for participation
in rebellion or other crime, the basis of representation therein shall
be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty one years of
age in such State.
Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State,
who, having previously taken an oath, as a Member of Congress, or
as an officer of the United States, or as a member of any State
legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to
the enemies thereof. But Congress may, by a vote of two thirds of
each House, remove such disability.
Section 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of pensions
and bounties for services in suppressing insurrection or rebellion,
shall not be questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in aid of
insurrection or rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such debts, obligations,
5
This article was replaced by the 21st amendment.
and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.
AMENDMENT XV
Section 1.
The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
AMENDMENT XVI
The Congress shall have power to lay and collect taxes on incomes,
from whatever source derived, without apportionment among the
several States and without regard to any census or enumeration.
AMENDMENT XVII
The Senate of the United States shall be composed of two Senators
from each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous branch of
the State legislatures.
When vacancies happen in the representation of any State in the
Senate, the executive authority of such State shall issue writs of
election to fill such vacancies: Provided, That the legislature of any
State may empower the executive thereof to make temporary
appointment until the people fill the vacancies by election as the
legislature may direct.
This amendment shall not be so construed as to affect the election
or term of any Senator chosen before it becomes valid as part of the
Constitution.
AMENDMENT XVIII
5
Section 1. After one year from the ratification of this article the
manufacture, sale or transportation of intoxicating liquors within, the
importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for beverage
purposes is hereby prohibited.
Section 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of the several States, as provided in the Constitution, within seven
years of the date of the submission hereof to the States by Congress.
CONSTITUTION OF THE UNITED STATES—1787
A1-7
AMENDMENT XIX
The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate
legislation.
AMENDMENT XX
Section 1.
The terms of the President and Vice President shall end
at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in
which such terms would have ended if this article had not been
ratified; and the terms of their successors shall then begin.
Section 2. The Congress shall assemble at least once in every year,
and such meeting shall begin at noon on the 3d day of January, unless
they shall by law appoint a different day.
Section 3. If, at the time fixed for the beginning of the term of the
President, the President-elect shall have died, the Vice President-
elect shall become President. If a President shall not have been
chosen before the time fixed for the beginning of his term, or if the
President-elect shall have failed to qualify, then the Vice President-
elect shall act as President until a President shall have qualified; and
the Congress may by law provide for the case wherein neither a
President-elect nor a Vice President-elect shall have qualified,
declaring who shall then act as President, or the manner in which one
who is to act shall be selected, and such person shall act accordingly
until a President or Vice President shall have qualified.
Section 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives
may choose a President whenever the right of choice shall have
devolved upon them, and for the case of the death of any of the
persons from whom the Senate may choose a Vice President
whenever the right of choice shall have devolved upon them.
Section 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.
Section 6. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by three fourths of
the several States within seven years from the date of its submission.
AMENDMENT XXI
Section 1.
The eighteenth article of amendment to the Constitution
of the United States is hereby repealed.
Section 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited.
Section 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in
the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.
AMENDMENT XXII
Section 1.
No person shall be elected to the office of the President
more than twice, and no person who has held the office of President,
or acted as President, for more than two years of a term to which
some other person was elected President shall be elected to the office
of the President more than once. But this Article shall not apply to
any person holding the office of President when this Article was
proposed by the Congress, and shall not prevent any person who may
be holding the office of President, or acting as President, during the
term within which his Article becomes operative from holding the
office of President or acting as President during the remainder of
such term.
Section 2. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures
of three-fourths of the several States within seven years from the date
of its submission to the States by the Congress.
AMENDMENT XXIII
Section 1.
The District constituting the seat of Government of the
United States shall appoint in such manner as the Congress may
direct:
A number of electors of President and Vice President equal to the
whole number of Senators and Representative in Congress to which
the District would be entitled if it were a State, but in no event more
than the least populous State; they shall be considered, for the
purposes of the election of President and Vice President, to be
electors appointed by a State; and they shall meet in the District and
perform such duties as provided by the twelfth article of amendment.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
AMENDMENT XXIV
Section 1.
The right of citizens of the United States to vote in any
primary or other election for President or Vice President, for electors
for President or Vice President, or for Senator or Representative in
Congress, shall not be denied or abridged by the United States or any
State by reason of failure to pay any poll tax or other tax.
Section 2. The Congress shall have power to enforce this article
by appropriate legislation.
AMENDMENT XXV
Section 1.
In case of the removal of the President from office or
of his death or resignation, the Vice President shall become
President.
Section 2. Whenever there is a vacancy in the office of the Vice
President, the President shall nominate a Vice President who shall
take office upon confirmation by a majority vote of both Houses of
Congress.
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Section 3. Whenever the President transmits to the President pro
tempore of the Senate and the Speakers of the House of
Representatives his written declaration that he is unable to discharge
the powers and duties of his office, and until he transmits to them a
written declaration to the contrary, such powers and duties shall be
discharged by the Vice President as Acting President.
Section 4. Whenever the Vice President and a majority of either
the principal officers of the Executive departments or of such other
body as Congress may by law provide, transmit to the President pro
tempore of the Senate and the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice President
shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President pro
tempore of the Senate and the Speaker of the House of
Representatives his written declaration that no inability exists, he
shall resume the powers and duties of his office unless the Vice
President and a majority of either principal officers of the executive
department or of such other body as Congress may by law provide,
transmit within four days to the President pro tempore of the Senate
and the Speaker of the House of Representatives their written
declaration that the President is unable to discharge the powers and
duties of his office. Thereupon Congress shall decide the issue,
assembling within forty-eight hours for that purpose if not in session.
If the Congress, within twenty one days after Congress is required to
assemble, determines by two thirds vote of both Houses that the
President is unable to discharge the powers and duties of his office,
the Vice President shall continue to discharge the same as Acting
President; otherwise, the President shall resume the powers and
duties of his office.
AMENDMENT XXVI
Section 1.
The right of citizens of the United States, who are
eighteen years of age or older, to vote shall not be denied or abridged
by the United States or by any State on account of age.
Section 2. The Congress shall have the power to enforce this
article by appropriate legislation.
AMENDMENT XXVII
No law, varying the compensation for the services of the Senators
and Representatives, shall take effect, until an election of
Representatives shall have intervened.
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Note: Text contains those laws within chapter 47 of title 10,
United States Code, that are in effect as of December 27,
2023. It does not include any amendments made after the
enactment of the James M. Inhofe National Defense
Authorization Act for Fiscal Year 2023, Pub. L. No. 117-263,
136 Stat. 2395 (2022). While this publication does not
represent the official version of any Federal law, substantial
efforts have been made to ensure the accuracy of its contents.
The official and most up-to-date version of chapter 47 can be
found in the United States Code as published by the Office
of the Law Revision Counsel and available online at
https://uscode.house.gov.
CHAPTER 47. UNIFORM CODE OF MILITARY
JUSTICE
Subchapter
I.
General Provisions.
Sec.
801
Art.
1
II.
Apprehension and Restraint.
807
7
III.
Non-Judicial Punishment.
815
15
IV.
Court-Martial Jurisdiction.
816
16
V.
Composition of Courts-Martial.
822
22
VI.
Pre-trial Procedure.
830
30
VII.
Trial Procedure.
836
36
VIII.
Sentences.
855
55
IX.
Post-Trial Procedure and Review of
859
59
Courts-Martial.
X.
Punitive Articles.
877
77
XI.
Miscellaneous Provisions.
935
135
XII.
Court of Appeals for the Armed Forces.
941
141
SUBCHAPTER I—GENERAL PROVISIONS
Sec.
801.
Art.
1.
Definitions.
802.
2.
Persons subject to this chapter.
803.
3.
Jurisdiction to try certain personnel.
804.
4.
Dismissed officer’s right to trial by court-martial.
805.
5.
Territorial applicability of this chapter.
806.
6.
Judge advocates and legal officers.
806a.
6a.
Investigations and disposition of matters pertaining to
the fitness of military judges.
806b.
6b.
Rights of the victim of an offense under this chapter.
§801. Art. 1. Definitions
In this chapter (the Uniform Code of Military justice):
(1) The term “Judge Advocate General” means, severally, the
Judge Advocates General of the Army, Navy, and Air Force and,
except when the Coast Guard is operating as a service in the Navy,
an official designated to serve as Judge Advocate General of the
Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is
operating as a service in the Navy, shall be considered as one armed
force.
(3) The term “commanding officer” includes only commissioned
officers.
(4) The term “officer in charge” means a member of the Navy, the
Marine Corps, or the Coast Guard designated as such by appropriate
authority.
(5) The term “superior commissioned officer” means a
commissioned officer superior in rank or command.
(6) The term “cadet” means a cadet of the United States Military
Academy, the United States Air Force Academy, or the United States
Coast Guard Academy.
(7) The term “midshipman” means a midshipman of the United
States Naval Academy and any other midshipman on active duty in
the naval service.
(8) The term “military” refers to any or all of the armed forces.
(9) The term “accuser” means a person who signs and swears to
charges, any person who directs that charges nominally be signed
and sworn to by another, and any other person who has an interest
other than an official interest in the prosecution of the accused.
(10) The term “military judge” means a judge advocate designated
under section 826(c) of this title (article 26(c)) who is detailed under
section 826(a) or section 830a of this title (article 26(a) or 30a)).
(11) The term ‘military magistrate’ means a commissioned officer
certified for duty as a military magistrate in accordance with section
826a of this title (article 26a).
(12) The term “legal officer” means any commissioned officer of
the Navy, Marine Corps, or Coast Guard designated to perform legal
duties for a command.
(13) The term “judge advocate” means—
(A) an officer of the Judge Advocate General’s Corps of the
Army, the Navy, or the Air Force;
(B) an officer of the Marine Corps who is designated as a judge
advocate; or
(C) a commissioned officer of the Coast Guard designated for
special duty (law).
(14) The term “record”, when used in connection with the
proceedings of a court-martial, means—
(A) an official written transcript, written summary, or other
writing relating to the proceedings; or
(B) an official audiotape, videotape, or similar material from
which sound, or sound and visual images, depicting the proceedings
may be reproduced.
(15) The term “classified information” means (A) any information
or material that has been determined by an official of the United
States pursuant to law, an Executive order, or regulation to require
protection against unauthorized disclosure for reasons of national
security, and (B) any restricted data, as defined in section 11(y) of
the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)).
(16) The term “national security” means the national defense and
foreign relations of the United States.
(17) The term “covered offense” means—
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(A) an offense under section 917a (article 117a), section 918
(article 118), section 919 (article 119), section 119a (article 119a),
section 920 (article 120), section 920a (article 120a), section 920b
(article 120b), section 920c (article 120c), section 925 (article 125),
section 928b (article 128b), section 930 (article 130), section 932
(article 132), or the standalone offense of child pornography
punishable under section 934 (article 134) of this title;
(B) a conspiracy to commit an offense specified in
subparagraph (A) as punishable under section 881 of this title (article
81);
(C) a solicitation to commit an offense specified in
subparagraph (A) as punishable under section 882 of this title (article
82); or
(D) an attempt to commit an offense specified in subparagraph
(A), (B), or (C) as punishable under section 880 of this title (article
80).
(18) The term “special trial counsel” means a judge advocate
detailed as a special trial counsel in accordance with section 824a of
this title (article 24a) and includes a judge advocate appointed as a
lead special trial counsel pursuant to section 1044f(a)(2) of this title.
Office of Law Revision Counsel, United States Code, 18 USC 801:
Article 1. Definitions (Sep. 13, 2023, 5:17 PM),
https://uscode.house.gov/view.xhtml?req=(title:10%20section:801
%20edition:prelim) provides:
“Pub. L. 117-263, div, title V, § 541(b), Dec. 23, 2022, 136 Stat.
2580, provided that, effective Jan. 1, 2025, and applicable with
respect to offenses that occur after that date, paragraph (17)(A) of
this second is amended:
(1) by striking “or”; and
(2) by striking “of this title” and inserting “, or the standalone
offense of sexual harassment punishable under section 934 (article
134) of this title in each instance in which a formal complaint is made
and such formal complaint is substantiated in accordance with
regulations prescribed by the Secretary concerned.”
§802. Art. 2. Persons subject to this chapter
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces,
including those awaiting discharge after expiration of their terms of
enlistment; volunteers from the time of their muster or acceptance
into the armed forces; inductees from the time of their actual
induction into the armed forces; and other persons lawfully called or
ordered into, or to duty in or for training in, the armed forces, from
the dates when they are required by the terms of the call or order to
obey it.
(2) Cadets, aviation cadets, and midshipmen.
(3)(A) While on inactive-duty training and during any of the
periods specified in subparagraph (B)—
(i) members of a reserve component; and
(ii) members of the Army National Guard of the United
States or the Air National Guard of the United States, but only when
in Federal service.
(B) The periods referred to in subparagraph (A) are the
following:
(i) Travel to and from the inactive-duty training site of the
member, pursuant to orders or regulations.
(ii) Intervals between consecutive periods of inactive-duty
training on the same day, pursuant to orders or regulations.
(iii) Intervals between inactive-duty training on consecutive
days, pursuant to orders or regulations.
(4) Retired members of a regular component of the armed forces
who are entitled to pay.
(5) Retired members of a reserve component who are receiving
hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps
Reserve.
(7) Persons in custody of the armed forces serving a sentence
imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric
Administration, Public Health Service, and other organizations,
when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of declared war or a contingency operation, persons
serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United States
is or may be a party or to any accepted rule of international law,
persons serving with, employed by, or accompanying the armed
forces outside the United States and outside the Commonwealth of
Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United States
is or may be a party or to any accepted rule of international law,
persons within an area leased by or otherwise reserved or acquired
for the use of the United States which is under the control of the
Secretary concerned and which is outside the United States and
outside the Commonwealth of Puerto Rico, Guam, and the Virgin
Islands.
(13) Individuals belonging to one of the eight categories
enumerated in Article 4 of the Convention Relative to the Treatment
of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316),
who violate the law of war.
(b) The voluntary enlistment of any person who has the capacity to
understand the significance of enlisting in the armed forces shall be
valid for purposes of jurisdiction under subsection (a) and a change
of status from civilian to member of the armed forces shall be
effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving
with an armed force who—
(1) submitted voluntarily to military authority;
(2) met the mental competency and minimum age qualifications
of sections 504 and 505 of this title at the time of voluntary
submission to military authority;
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person’s active service has been
terminated in accordance with law or regulations promulgated by the
Secretary concerned.
(d)(1) A member of a reserve component who is not on active duty
and who is made the subject of proceedings under section 815 (article
15) or section 830 (article 30) with respect to an offense against this
chapter may be ordered to active duty involuntarily for the purpose
of—
(A) a preliminary hearing under section 832 of this title (article
32);
(B) trial by court-martial; or
UNIFORM CODE OF MILITARY JUSTICE
A2-3
(C) nonjudicial punishment under section 815 of this title
(article 15).
(2) A member of a reserve component may not be ordered to
active duty under paragraph (1) except with respect to an offense
committed while the member was—
(A) on active duty; or
(B) on inactive-duty training, but in the case of members of the
Army National Guard of the United States or the Air National Guard
of the United States only when in Federal service.
(3) Authority to order a member to active duty under paragraph
(1) shall be exercised under regulations prescribed by the President.
(4) A member may be ordered to active duty under paragraph (1)
only by a person empowered to convene general courts-martial in a
regular component of the armed forces.
(5) A member ordered to active duty under paragraph (1), unless
the order to active duty was approved by the Secretary concerned,
may not—
(A) be sentenced to confinement; or
(B) be required to serve a punishment consisting of any
restriction on liberty during a period other than a period of inactive-
duty training or active duty (other than active duty ordered under
paragraph (1)).
(e) The provisions of this section are subject to section 876b(d)(2) of
this title (article 76b(d)(2)).
§803. Art. 3. Jurisdiction to try certain personnel
(a) Subject to section 843 of this title (article 43), a person who is in
a status in which the person is subject to this chapter and who
committed an offense against this chapter while formerly in a status
in which the person was subject to this chapter is not relieved from
amenability to the jurisdiction of this chapter for that offense by
reason of a termination of that person’s former status.
(b) Each person discharged from the armed forces who is later
charged with having fraudulently obtained his discharge is, subject
to section 843 of this title (article 43), subject to trial by court-martial
on that charge and is after apprehension subject to this chapter while
in the custody of the armed forces for that trial. Upon conviction of
that charge he is subject to trial by court-martial for all offenses
under this chapter committed before the fraudulent discharge.
(c) No person who has deserted from the armed forces may be
relieved from amenability to the jurisdiction of this chapter by virtue
of a separation from any later period of service.
(d) A member of a reserve component who is subject to this chapter
is not, by virtue of the termination of a period of active duty or
inactive-duty training, relieved from amenability to the jurisdiction
of this chapter for an offense against this chapter committed during
such period of active duty or inactive-duty training.
§804. Art. 4. Dismissed officer’s right to trial by
court-martial
(a) If any commissioned officer, dismissed by order of the President,
makes a written application for trial by court-martial, setting forth,
under oath, that he has been wrongfully dismissed, the President, as
soon as practicable, shall convene a general court-martial to try that
officer on the charges on which he was dismissed. A court-martial
so convened has jurisdiction to try the dismissed officer on those
charges, and he shall be considered to have waived the right to plead
any statute of limitations applicable to any offense with which he is
charged. The court-martial may, as part of its sentence, adjudge the
affirmance of the dismissal, but if the court-martial acquits the
accused or if the sentence adjudged, as finally approved or affirmed,
does not include dismissal or death, the Secretary concerned shall
substitute for the dismissal ordered by the President a form of
discharge authorized for administrative issue.
(b) If the President fails to convene a general court-martial within six
months from the presentation of an application for trial under this
article, the Secretary concerned shall substitute for the dismissal
ordered by the President a form of discharge authorized for
administrative issue.
(c) If a discharge is substituted for a dismissal under this article, the
President alone may reappoint the officer to such commissioned
grade and with such rank as, in the opinion of the President, that
former officer would have attained had he not been dismissed. The
reappointment of such a former officer shall be without regard to the
existence of a vacancy and shall affect the promotion status of other
officers only insofar as the President may direct. All time between
the dismissal and the reappointment shall be considered as actual
service for all purposes, including the right to pay and allowances.
(d) If an officer is discharged from any armed force by administrative
action or is dropped from the rolls by order of the President, he has
no right to trial under this article.
§805. Art. 5. Territorial applicability of this chapter
This chapter applies in all places.
§806. Art. 6. Judge advocates and legal officers
(a) The assignment for duty of judge advocates of the Army, Navy,
Air Force, and Coast Guard shall be made upon the recommendation
of the Judge Advocate General of the armed force of which they are
members. The assignment for duty of judge advocates of the Marine
Corps shall be made by direction of the Commandant of the Marine
Corps. The Judge Advocates General, and within the Marine Corps
the Staff Judge Advocate to the Commandant of the Marine Corps,
or senior members of their staffs, shall make frequent inspections in
the field in supervision of the administration of military justice.
(b) Convening authorities shall at all times communicate directly
with their staff judge advocates or legal officers in matters relating
to the administration of military justice; and the staff judge advocate
or legal officer of any command is entitled to communicate directly
with the staff judge advocate or legal officer of a superior or
subordinate command, or with the Judge Advocate General.
(c)(1) No person who, with respect to a case, serves in a capacity
specified in paragraph (2) may later serve as a staff judge advocate
or legal officer to any reviewing or convening authority upon the
same case.
(2) The capacities referred to in paragraph (1) are, with respect to
the case involved, any of the following:
(A) Preliminary hearing officer, court member, military judge,
military magistrate, or appellate judge.
(B) Counsel who have acted in the same case or appeared in
any proceeding before a military judge, military magistrate,
preliminary hearing officer, or appellate court.
(d)(1) A judge advocate who is assigned or detailed to perform the
functions of a civil office in the Government of the United States
under section 973(b)(2)(B) of this title may perform such duties as
may be requested by the agency concerned, including representation
of the United States in civil and criminal cases.
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(2) The Secretary of Defense, and the Secretary of Homeland
Security with respect to the Coast Guard when it is not operating as
a service in the Navy, shall prescribe regulations providing that
reimbursement may be a condition of assistance by judge advocates
assigned or detailed under section 973(b)(2)(B) of this title.
§806a. Art. 6a. Investigation and disposition of
matters pertaining to the fitness of military judges
(a) The President shall prescribe procedures for the investigation and
disposition of charges, allegations, or information pertaining to the
fitness of a military appellate judge, military judge, or military
magistrate to perform the duties of the position involved. To the
extent practicable, the procedures shall be uniform for all armed
forces.
(b) The President shall transmit a copy of the procedures prescribed
pursuant to this section to the Committee on Armed Services of the
Senate and the Committee on Armed Services of the House of
Representatives.
§806b. Art. 6b. Rights of the victim of an offense
under this chapter
(a) RIGHTS OF A VICTIM OF AN OFFENSE UNDER THIS CHAPTER.—A
victim of an offense under this chapter has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any of
the following:
(A) A public hearing concerning the continuation of
confinement prior to trial of the accused.
(B) A preliminary hearing under section 832 of this title (article
32) relating to the offense.
(C) A court-martial relating to the offense.
(D) A post-trial motion, filing, or hearing that may address the
finding or sentence of a court-martial with respect to the accused,
unseal privileged or private information of the victim, or result in the
release of the accused.
(E) A public proceeding of the service clemency and parole
board relating to the offense.
(F) The release or escape of the accused, unless such notice
may endanger the safety of any person.
(3) The right not to be excluded from any public hearing or
proceeding described in paragraph (2) unless the military judge or
preliminary hearing officer, as applicable, after receiving clear and
convincing evidence, determines that testimony by the victim of an
offense under this chapter would be materially altered if the victim
heard other testimony at that hearing or proceeding.
(4) The right to be reasonably heard at any of the following:
(A) A public hearing concerning the continuation of
confinement prior to trial of the accused.
(B) A sentencing hearing relating to the offense.
(C) A public proceeding of the service clemency and parole
board relating to the offense.
(5) The reasonable right to confer with the counsel representing
the Government at any proceeding described in paragraph (2).
(6) The right to receive restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be informed in a timely manner of any plea
agreement, separation-in-lieu-of-trial agreement, or non-prosecution
agreement relating to the offense, unless providing such information
would jeopardize a law enforcement proceeding or would violate the
privacy concerns of an individual other than the accused.
(9) The right to be treated with fairness and with respect for the
dignity and privacy of the victim of an offense under this chapter.
(b) V
ICTIM OF AN OFFENSE UNDER THIS CHAPTER DEFINED.—In
this section, the term “victim of an offense under this chapter” means
an individual who has suffered direct physical, emotional, or
pecuniary harm as a result of the commission of an offense under
this chapter.
(c) A
PPOINTMENT OF INDIVIDUALS TO ASSUME RIGHTS FOR
CERTAIN VICTIMS.—In the case of a victim of an offense under this
chapter who is under 18 years of age (but who is not a member of
the armed forces), incompetent, incapacitated, or deceased, the legal
guardians of the victim or the representatives of the victim’s estate,
family members, or any other person designated as suitable by the
military judge, may assume the rights of the victim under this
section. However, in no event may the individual so designated be
the accused.
(d) R
ULE OF CONSTRUCTION.—Nothing in this section (article) shall
be construed—
(1) to authorize a cause of action for damages;
(2) to create, to enlarge, or to imply any duty or obligation to any
victim of an offense under this chapter or other person for the breach
of which the United States or any of its officers or employees could
be held liable in damages; or
(3) to impair the exercise of discretion under sections 830 and 834
of this title (articles 30 and 34).
(e) E
NFORCEMENT BY COURT OF CRIMINAL APPEALS.—
(1) If the victim of an offense under this chapter believes that a
preliminary hearing ruling under section 832 of this title (article 32)
or a court-martial ruling violates the rights of the victim afforded by
a section (article) or rule specified in paragraph (4), the victim may
petition the Court of Criminal Appeals for a writ of mandamus to
require the preliminary hearing officer or the court-martial to comply
with the section (article) or rule.
(2) If the victim of an offense under this chapter is subject to an
order to submit to a deposition, notwithstanding the availability of
the victim to testify at the court-martial trying the accused for the
offense, the victim may petition the Court of Criminal Appeals for a
writ of mandamus to quash such order.
(3)(A) A petition for a writ of mandamus described in this
subsection shall be forwarded directly to the Court of Criminal
Appeals, by such means as may be prescribed by the President,
subject to section 830a of this title (article 30a).
(B) To the extent practicable, a petition for a writ of mandamus
described in this subsection shall have priority over all proceedings
before the Court of Criminal Appeals.
(C) Review of any decision of the Court of Criminal Appeals
on a petition for a writ of mandamus described in this subsection
shall have priority in the Court of Appeals for the Armed Forces, as
determined under the rules of the Court of Appeals for the Armed
Forces.
(4) Paragraph (1) applies with respect to the protections afforded
by the following:
(A) This section (article).
(B) Section 832 (article 32) of this title.
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(C) Military Rule of Evidence 412, relating to the admission of
evidence regarding a victim's sexual background.
(D) Military Rule of Evidence 513, relating to the
psychotherapist-patient privilege.
(E) Military Rule of Evidence 514, relating to the victim
advocate-victim privilege.
(F) Military Rule of Evidence 615, relating to the exclusion of
witnesses.
(f) C
OUNSEL FOR ACCUSED INTERVIEW OF VICTIM OF ALLEGED
OFFENSE.—
(1) Upon notice by counsel for the Government to counsel for the
accused of the name of an alleged victim of an offense under this
chapter who counsel for the Government intends to call as a witness
at a proceeding under this chapter, counsel for the accused shall
make any request to interview the victim through the Special
Victim’s Counsel or other counsel for the victim, if applicable.
(2) If requested by an alleged victim who is subject to a request
for interview under paragraph (1), any interview of the victim by
counsel for the accused shall take place only in the presence of the
counsel for the Government, a counsel for the victim, or, if
applicable, a victim advocate.
SUBCHAPTER II—APPREHENSION AND
RESTRAINT
Sec.
807.
Art.
7.
Apprehension.
808.
8.
Apprehension of deserters.
809.
9.
Imposition of restraint.
810.
10.
Restraint of persons charged.
811.
11.
Reports and receiving of prisoners.
812.
12.
Prohibition of confinement of members of the
armed forces with enemy prisoners and certain others.
813.
13.
Punishment prohibited before trial.
814.
14.
Delivery of offenders to civil authorities.
§807. Art. 7. Apprehension
(a) Apprehension is the taking of a person into custody.
(b) Any person authorized under regulations governing the armed
forces to apprehend persons subject to this chapter or to trial
thereunder may do so upon reasonable belief that an offense has been
committed and that the person apprehended committed it.
(c) Commissioned officers, warrant officers, petty officers, and
noncommissioned officers have authority to quell quarrels, frays,
and disorders among persons subject to this chapter and to apprehend
persons subject to this chapter who take part therein.
§808. Art. 8. Apprehension of deserters
Any civil officer having authority to apprehend offenders under
the laws of the United States or of a State, Commonwealth,
possession, or the District of Columbia may summarily apprehend a
deserter from the armed forces and deliver him into the custody of
those forces.
§809. Art. 9. Imposition of restraint
(a) Arrest is the restraint of a person by an order, not imposed as a
punishment for an offense, directing him to remain within certain
specified limits. Confinement is the physical restraint of a person.
(b) An enlisted member may be ordered into arrest or confinement
by any commissioned officer by an order, oral or written, delivered
in person or through other persons subject to this chapter. A
commanding officer may authorize warrant officers, petty officers,
or noncommissioned officers to order enlisted members of his
command or subject to his authority into arrest or confinement.
(c) A commissioned officer, a warrant officer, or a civilian subject to
this chapter or to trial thereunder may be ordered into arrest or
confinement only by a commanding officer to whose authority he is
subject, by an order, oral or written, delivered in person or by another
commissioned officer. The authority to order such persons into arrest
or confinement may not be delegated.
(d) No person may be ordered into arrest or confinement except for
probable cause.
(e) Nothing in this article limits the authority of persons authorized
to apprehend offenders to secure the custody of an alleged offender
until proper authority may be notified.
§810. Art. 10. Restraint of persons charged
(a) IN GENERAL.—
(1) Subject to paragraph (2), any person subject to this chapter
who is charged with an offense under this chapter may be ordered
into arrest or confinement as the circumstances require.
(2) When a person subject to this chapter is charged only with an
offense that is normally tried by summary court-martial, the person
ordinarily shall not be ordered into confinement.
(b) N
OTIFICATION TO ACCUSED AND RELATED PROCEDURES.—
(1) When a person subject to this chapter is ordered into arrest or
confinement before trial, immediate steps shall be taken—
(A) to inform the person of the specific offense of which the
person is accused; and
(B) to try the person or to dismiss the charges and release the
person.
(2) To facilitate compliance with paragraph (1), the President shall
prescribe regulations setting forth procedures relating to referral for
trial, including procedures for prompt forwarding of the charges and
specifications and, if applicable, the preliminary hearing report
submitted under section 832 of this title (article 32).
§811. Art. 11. Reports and receiving of prisoners
(a) No provost marshal, commander of a guard, or master at arms
may refuse to receive or keep any prisoner committed to his charge
by a commissioned officer of the armed forces, when the committing
officer furnishes a statement, signed by him, of the offense charged
against the prisoner.
(b) Every commander of a guard or master at arms to whose charge
a prisoner is committed shall, within twenty-four hours after that
commitment or as soon as he is relieved from guard, report to the
commanding officer the name of the prisoner, the offense charged
against him, and the name of the person who ordered or authorized
the commitment.
APPENDIX 2
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§812. Art. 12. Prohibition of confinement of
members of the armed forces with enemy prisoners
and certain others
No member of the armed forces may be placed in confinement in
immediate association with—
(1) enemy prisoners; or
(2) other individuals—
(A) who are detained under the law of war and are foreign
nationals; and
(B) who are not members of the armed forces.
§813. Art. 13. Punishment prohibited before trial
No person, while being held for trial, may be subjected to
punishment or penalty other than arrest or confinement upon the
charges pending against him, nor shall the arrest or confinement
imposed upon him be any more rigorous than the circumstances
require to insure his presence, but he may be subjected to minor
punishment during that period for infractions of discipline.
§814. Art. 14. Delivery of offenders to civil
authorities
(a) Under such regulations as the Secretary concerned may prescribe,
a member of the armed forces accused of an offense against civil
authority may be delivered, upon request, to the civil authority for
trial.
(b) When delivery under this article is made to any civil authority of
a person undergoing sentence of a court-martial, the delivery, if
followed by conviction in a civil tribunal, interrupts the execution of
the sentence of the court-martial, and the offender after having
answered to the civil authorities for his offense shall, upon the
request of competent military authority, be returned to military
custody for the completion of his sentence.
SUBCHAPTER III. NON-JUDICIAL
PUNISHMENT
Sec.
815.
Art.
15.
Commanding officer’s non-judicial punishment.
§815. Art. 15. Commanding officer’s non-judicial
punishment
(a) Under such regulations as the President may prescribe, and under
such additional regulations as may be prescribed by the Secretary
concerned, limitations may be placed on the powers granted by this
article with respect to the kind and amount of punishment authorized,
the categories of commanding officers and warrant officers
exercising command authorized to exercise those powers, the
applicability of this article to an accused who demands trial by court-
martial, and the kinds of courts-martial to which the case may be
referred upon such a demand. However, except in the case of a
member attached to or embarked in a vessel, punishment may not be
imposed upon any member of the armed forces under this article if
the member has, before the imposition of such punishment,
demanded trial by court-martial in lieu of such punishment. Under
similar regulations, rules may be prescribed with respect to the
suspension of punishments authorized hereunder. If authorized by
regulations of the Secretary concerned, a commanding officer
exercising general court-martial jurisdiction or an officer of general
or flag rank in command may delegate his powers under this article
to a principal assistant.
(b) Subject to subsection (a), any commanding officer may, in
addition to or in lieu of admonition or reprimand, impose one or more
of the following disciplinary punishments for minor offenses without
the intervention of a court-martial—
(1) upon officers of his command—
(A) restriction to certain specified limits, with or without
suspension from duty, for not more than 30 consecutive days;
(B) if imposed by an officer exercising general court-martial
jurisdiction or an officer of general or flag rank in command—
(i) arrest in quarters for not more than 30 consecutive days;
(ii) forfeiture of not more than one-half of one month’s pay
per month for two months;
(iii) restriction to certain specified limits, with or without
suspension from duty, for not more than 60 consecutive days;
(iv) detention of not more than one-half of one month’s pay
per month for three months;
(2) upon other personnel of his command—
(A) if imposed upon a person attached to or embarked in a
vessel, confinement for not more than three consecutive days;
(B) correctional custody for not more than seven consecutive
days;
(C) forfeiture of not more than seven days’ pay;
(D) reduction to the next inferior pay grade, if the grade from
which demoted is within the promotion authority of the officer
imposing the reduction or any officer subordinate to the one who
imposes the reduction;
(E) extra duties, including fatigue or other duties, for not more
than 14 consecutive days;
(F) restriction to certain specified limits, with or without
suspension from duty, for not more than 14 consecutive days;
(G) detention of not more than 14 days’ pay;
(H) if imposed by an officer of the grade of major or lieutenant
commander, or above—
(i) the punishment authorized under clause (A);
(ii) correctional custody for not more than 30 consecutive
days;
(iii) forfeiture of not more than one-half of one month’s pay
per month for two months;
(iv) reduction to the lowest or any intermediate pay grade, if
the grade from which demoted is within the promotion authority of
the officer imposing the reduction or any officer subordinate to the
one who imposes the reduction, but an enlisted member in a pay
grade above E–4 may not be reduced more than two pay grades;
(v) extra duties, including fatigue or other duties, for not
more than 45 consecutive days;
(vi) restrictions to certain specified limits, with or without
suspension from duty, for not more than 60 consecutive days;
(vii) detention of not more than one-half of one month’s pay
per month for three months. Detention of pay shall be for a stated
period of not more than one year but if the offender’s term of service
expires earlier, the detention shall terminate upon that expiration. No
two or more of the punishments of arrest in quarters, confinement,
correctional custody, extra duties, and restriction may be combined
to run consecutively in the maximum amount imposable for each.
UNIFORM CODE OF MILITARY JUSTICE
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Whenever any of those punishments are combined to run
consecutively, there must be an apportionment. In addition,
forfeiture of pay may not be combined with detention of pay without
an apportionment. For the purposes of this subsection, “correctional
custody” is the physical restraint of a person during duty or nonduty
hours and may include extra duties, fatigue duties, or hard labor. If
practicable, correctional custody will not be served in immediate
association with persons awaiting trial or held in confinement
pursuant to trial by court-martial.
(c) An officer in charge may impose upon enlisted members assigned
to the unit of which he is in charge such of the punishments
authorized under subsection (b)(2)(A)–(G) as the Secretary
concerned may specifically prescribe by regulation.
(d) The officer who imposes the punishment authorized in subsection
(b), or his successor in command, may, at any time, suspend
probationally any part or amount of the unexecuted punishment
imposed and may suspend probationally a reduction in grade or a
forfeiture imposed under subsection (b), whether or not executed. In
addition, he may, at any time, remit or mitigate any part or amount
of the unexecuted punishment imposed and may set aside in whole
or in part the punishment, whether executed or unexecuted, and
restore all rights, privileges, and property affected. He may also
mitigate reduction in grade to forfeiture or detention of pay. When
mitigating—
(1) arrest in quarters to restriction;
(2) confinement to correctional custody;
(3) correctional custody or confinement to extra duties or
restriction, or both; or
(4) extra duties to restriction; the mitigated punishment shall not
be for a greater period than the punishment mitigated. When
mitigating forfeiture of pay to detention of pay, the amount of the
detention shall not be greater than the amount of the forfeiture. When
mitigating reduction in grade to forfeiture or detention of pay, the
amount of the forfeiture or detention shall not be greater than the
amount that could have been imposed initially under this article by
the officer who imposed the punishment mitigated.
(e) A person punished under this article who considers his
punishment unjust or disproportionate to the offense may, through
the proper channel, appeal to the next superior authority. The appeal
shall be promptly forwarded and decided, but the person punished
may in the meantime be required to undergo the punishment
adjudged. The superior authority may exercise the same powers with
respect to the punishment imposed as may be exercised under
subsection (d) by the officer who imposed the punishment. Before
acting on an appeal from a punishment of—
(1) arrest in quarters for more than seven days;
(2) correctional custody for more than seven days;
(3) forfeiture of more than seven days' pay;
(4) reduction of one or more pay grades from the fourth or a higher
pay grade;
(5) extra duties for more than 14 days;
(6) restriction for more than 14 days; or
(7) detention of more than 14 days’ pay; the authority who is to
act on the appeal shall refer the case to a judge advocate or a lawyer
of the Department of Homeland Security for consideration and
advice, and may so refer the case upon appeal from any punishment
imposed under subsection (b).
(f) The imposition and enforcement of disciplinary punishment
under this article for any act or omission is not a bar to trial by court-
martial for a serious crime or offense growing out of the same act or
omission, and not properly punishable under this article; but the fact
that a disciplinary punishment has been enforced may be shown by
the accused upon trial, and when so shown shall be considered in
determining the measure of punishment to be adjudged in the event
of a finding of guilty.
(g) The Secretary concerned may, by regulation, prescribe the form
of records to be kept of proceedings under this article and may also
prescribe that certain categories of those proceedings shall be in
writing.
SUBCHAPTER IV. COURT-MARTIAL
JURISDICTION
Sec.
816.
Art.
16.
Courts-martial classified.
817.
17.
Jurisdiction of courts-martial in general.
818.
18.
Jurisdiction of general courts-martial.
819.
19.
Jurisdiction of special courts-martial.
820.
20.
Jurisdiction of summary courts-martial.
821.
21.
Jurisdiction of courts-martial not exclusive.
§816. Art. 16. Courts-martial classified
(a) IN GENERAL.—The three kinds of courts-martial in each of the
armed forces are the following:
(1) General courts-martial, as described in subsection (b).
(2) Special courts-martial, as described in subsection (c).
(3) Summary courts-martial, as described in subsection (d).
(b) G
ENERAL COURTS-MARTIAL.—General courts-martial are of the
following three types:
(1) A general court-martial consisting of a military judge and eight
members, subject to sections 825(e)(3) and 829 of this title (articles
25(e)(3) and 29).
(2) In a capital case, a general court-martial consisting of a
military judge and the number of members determined under section
825a of this title (article 25a), subject to sections 825(e)(3) and 829
of this title (articles 25(e)(3) and 29).
(3) A general court-martial consisting of a military judge alone,
if, before the court is assembled, the accused, knowing the identity
of the military judge and after consultation with defense counsel,
requests, orally on the record or in writing, a court composed of a
military judge alone and the military judge approves the request.
(c) S
PECIAL COURTS-MARTIAL.—Special courts-martial are of the
following two types:
(1) A special court-martial, consisting of a military judge and four
members, subject to sections 825(e)(3) and 829 of this title (articles
25(e)(3) and 29.
(2) A special court-martial consisting of a military judge alone—
(A) if the case is so referred by the convening authority, subject
to section 819 of this title (article 19) and such limitations as the
President may prescribe by regulation; or
(B) if the case is referred under paragraph (1) and, before the
court is assembled, the accused, knowing the identity of the military
judge and after consultation with defense counsel, requests, orally on
the record or in writing, a court composed of a military judge alone
and the military judge approves the request.
APPENDIX 2
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(d) SUMMARY COURT-MARTIAL.—A summary court-martial
consists of one commissioned officer.
§817. Art. 17. Jurisdiction of courts-martial in
general
(a) Each armed force has court-martial jurisdiction over all persons
subject to this chapter. The exercise of jurisdiction by one armed
force over personnel of another armed force shall be in accordance
with regulations prescribed by the President.
(b) In all cases, departmental review after that by the officer with
authority to convene a general court-martial for the command which
held the trial, where that review is required under this chapter, shall
be carried out by the department that includes the armed force of
which the accused is a member.
§818. Art. 18. Jurisdiction of general courts-martial
(a) Subject to section 817 of this title (article 17), general courts-
martial have jurisdiction to try persons subject to this chapter for any
offense made punishable by this chapter and may, under such
limitations as the President may prescribe, adjudge any punishment
not forbidden by this chapter, including the penalty of death when
specifically authorized by this chapter. General courts-martial also
have jurisdiction to try any person who by the law of war is subject
to trial by a military tribunal and may adjudge any punishment
permitted by the law of war.
(b) A general court-martial of the kind specified in section 816(b)(3)
of this title (article 16(b)(3)) shall not have jurisdiction to try any
person for any offense for which the death penalty may be adjudged
unless the case has been previously referred to trial as a noncapital
case.
(c) Consistent with sections 819 and 820 of this title (articles 19 and
20), only general courts-martial have jurisdiction over the following
offenses:
(1) A violation of subsection (a) or (b) of section 920 of this title
(article 120).
(2) A violation of subsection (a) or (b) of section 920b of this title
(article 120b).
(3) An attempt to commit an offense specified in paragraph (1) or
(2) that is punishable under section 880 of this title (article 80).
§819. Art. 19. Jurisdiction of special courts-martial
(a) IN GENERAL.—Subject to section 817 of this title (article 17),
special courts-martial have jurisdiction to try persons subject to this
chapter for any noncapital offense made punishable by this chapter
and, under such regulations as the President may prescribe, for
capital offenses. Special courts-martial may, under such limitations
as the President may prescribe, adjudge any punishment not
forbidden by this chapter except death, dishonorable discharge,
dismissal, confinement for more than one year, hard labor without
confinement for more than three months, forfeiture of pay exceeding
two-thirds pay per month, or forfeiture of pay for more than one year.
(b) A
DDITIONAL LIMITATION.—Neither a bad-conduct discharge,
nor confinement for more than six months, nor forfeiture of pay for
more than six months may be adjudged if charges and specifications
are referred to a special court-martial consisting of a military judge
alone under section 816(c)(2)(A) of this title (article 16(c)(2)(A)).
(c) M
ILITARY MAGISTRATE.—If charges and specifications are
referred to a special court-martial consisting of a military judge alone
under section 816(c)(2)(A) of this title (article 16(c)(2)(A)), the
military judge, with the consent of the parties, may designate a
military magistrate to preside over the special court-martial.
§820. Art. 20. Jurisdiction of summary courts-
martial
(a) IN GENERAL.—Subject to section 817 of this title (article 17),
summary courts-martial have jurisdiction to try persons subject to
this chapter, except officers, cadets, aviation cadets, and
midshipmen, for any noncapital offense made punishable by this
chapter. No person with respect to whom summary courts-martial
have jurisdiction may be brought to trial before a summary court-
martial if he objects thereto. If objection to trial by summary court-
martial is made by an accused, trial may be ordered by special or
general court-martial as may be appropriate. Summary courts-
martial may, under such limitations as the President may prescribe,
adjudge any punishment not forbidden by this chapter except death,
dismissal, dishonorable or bad-conduct discharge, confinement for
more than one month, hard-labor without confinement for more than
45 days, restriction to specified limits for more than two months, or
forfeiture of more than two-thirds of one month’s pay.
(b) N
ON-CRIMINAL FORUM.—A summary court-martial is a non-
criminal forum. A finding of guilty at a summary court-martial does
not constitute a criminal conviction.
§821. Art. 21. Jurisdiction of courts-martial not
exclusive
The provisions of this chapter conferring jurisdiction upon courts-
martial do not deprive military commissions, provost courts, or other
military tribunals of concurrent jurisdiction with respect to offenders
or offenses that by statute or by the law of war may be tried by
military commissions, provost courts, or other military tribunals.
This section does not apply to a military commission established
under chapter 47A of this title.
SUBCHAPTER V. COMPOSITION OF COURTS-
MARTIAL
Sec.
822.
Art.
22.
Who may convene general courts-martial.
823.
23.
Who may convene special courts-martial.
824.
24.
Who may convene summary courts-martial.
824a.
24a.
Special trial counsel.
825.
25.
Who may serve on courts-martial.
825a.
25a.
Number of court-martial members in capital cases.
826.
26.
Military judge of a general or special courts-
826a.
26a.
Military magistrates
827.
27.
Detail of trial counsel and defense counsel.
828.
28.
Detail or employment of reporters and interpreters.
829.
29.
Assembly and impaneling of members; detail of
members and military judges.
§822. Art. 22. Who may convene general courts-
martial
(a) General courts-martial may be convened by—
(1) the President of the United States;
UNIFORM CODE OF MILITARY JUSTICE
A2-9
(2) the Secretary of Defense;
(3) the commanding officer of a unified or specified combatant
command;
(4) the Secretary concerned;
(5) the commanding officer of an Army Group, an Army, an Army
Corps, a division, a separate brigade, or a corresponding unit of the
Army or Marine Corps;
(6) the commander of a fleet; the commanding officer of a naval
station or larger shore activity of the Navy beyond the United States;
(7) the commanding officer of an air command, an air force, an
air division, or a separate wing of the Air Force or Marine Corps, or
the commanding officer of a corresponding unit of the Space Force;
(8) any other commanding officer designated by the Secretary
concerned; or
(9) any other commanding officer in any of the armed forces when
empowered by the President.
(b)(1) If any such commanding officer is an accuser, the court shall
be convened by superior competent authority, and may in any case
be convened by such authority if considered desirable by him.
(2) A commanding officer shall not be considered an accuser
solely due to the role of the commanding officer in convening a
general court-martial to which charges and specifications were
referred by a special trial counsel in accordance with this chapter.
§823. Art. 23. Who may convene special courts-
martial
(a) Special courts-martial may be convened by—
(1) any person who may convene a general court-martial;
(2) the commanding officer of a district, garrison, fort, camp,
station, Air Force or Space Force military installation, auxiliary air
field, or other place where members of the Army, the Air Force, or
the Space Force are on duty;
(3) the commanding officer of a brigade, regiment, detached
battalion, or corresponding unit of the Army;
(4) the commanding officer of a wing, group, or separate squadron
of the Air Force or a corresponding unit of the Space Force;
(5) the commanding officer of any naval or Coast Guard vessel,
shipyard, base, or station; the commanding officer of any Marine
brigade, regiment, detached battalion, or corresponding unit; the
commanding officer of any Marine barracks, wing, group, separate
squadron, station, base, auxiliary air field, or other place where
members of the Marine Corps are on duty;
(6) the commanding officer of any separate or detached command
or group of detached units of any of the armed forces placed under a
single commander for this purpose; or
(7) the commanding officer or officer in charge of any other
command when empowered by the Secretary concerned.
(b)(1) If any such officer is an accuser, the court shall be convened
by superior competent authority, and may in any case be convened
by such authority if considered advisable by him.
(2) A commanding officer shall not be considered an accuser solely
due to the role of the commanding officer in convening a special
court-martial to which charges and specifications were referred by a
special trial counsel in accordance with this chapter.
§824. Art. 24. Who may convene summary courts-
martial
(a) Summary courts-martial may be convened by—
(1) any person who may convene a general or special court-
martial;
(2) the commanding officer of a detached company, or other
detachment of the Army;
(3) the commanding officer of a detached squadron or other
detachment of the Air Force or a corresponding unit of the Space
Force; or
(4) the commanding officer or officer in charge of any other
command when empowered by the Secretary concerned.
(b) When only one commissioned officer is present with a command
or detachment he shall be the summary court-martial of that
command or detachment and shall hear and determine all summary
court-martial cases brought before him. Summary courts-martial
may, however, be convened in any case by superior competent
authority when considered desirable by him.
§824a. Art. 24a. Special trial counsel
(a) DETAIL OF SPECIAL TRIAL COUNSEL.—Each Secretary
concerned shall promulgate regulations for the detail of
commissioned officers to serve as special trial counsel.
(b) QUALIFICATIONS.—A special trial counsel shall be a
commissioned officer who—
(1)(A) is a member of the bar of a Federal court or a member of
the bar of the highest court of a State; and
(B) is certified to be qualified, by reason of education, training,
experience, and temperament, for duty as special trial counsel by—
(i) the Judge Advocate General of the armed force of which
the officer is a member; or
(ii) in the case of the Marine Corps, the Staff Judge
Advocate to the Commandant of the Marine Corps; and
(2) in the case of a lead special trial counsel appointed pursuant to
section 1044f(a)(2) of this title, is in a grade no lower than O-7.
(c) D
UTIES AND AUTHORITIES.—
(1) I
N GENERAL.—Special trial counsel shall carry out the duties
described in this chapter and any other duties prescribed by the
Secretary concerned, by regulation.
(2) D
ETERMINATION OF COVERED OFFENSE; RELATED
CHARGES
.—
(A) A
UTHORITY.—A special trial counsel shall have exclusive
authority to determine if a reported offense is a covered offense and
shall exercise authority over any such offense in accordance with this
chapter. Any determination to prefer or refer charges shall not act to
disqualify the special trial counsel as an accuser.
(B) K
NOWN AND RELATED OFFENSES.—If a special trial
counsel determines that a reported offense is a covered offense, the
special trial counsel may also exercise authority over any offense that
the special trial counsel determines to be related to the covered
offense and any other offense alleged to have been committed by a
person alleged to have committed the covered offense.
(3) D
ISMISSAL; REFERRAL; PLEA BARGAINS.—Subject to
paragraph (5), with respect to changes and specifications alleging
any offense over which a special trial counsel exercises authority, a
special trial counsel shall have exclusive authority to, in accordance
with this chapter—
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(A) on behalf of the Government, withdraw or dismiss the
charges and specifications or make a motion to withdraw or dismiss
the charges and specifications;
(B) refer the charges and specifications for trial by a special or
general court-martial;
(C) enter into a plea agreement; and
(D) determine if an authorized rehearing is impracticable.
(4) B
INDING DETERMINATION.—The determination of a special
trial counsel to refer charges and specifications to a court-martial for
trial shall be binding on any applicable convening authority for the
referral of such charges and specifications.
(5) D
EFERRAL TO COMMANDER OR CONVENING AUTHORITY.—If
a special trial counsel exercises authority over an offense and elects
not to prefer charges and specifications for such offense or, with
respect to charges and specifications for such offense preferred by a
person other than a special trial counsel, elects not to refer such
charges and specifications, a commander or convening authority
may exercise any of the authorities of such commander or convening
authority under this chapter with respect to such offense, except that
such commander or convening authority may not refer charges and
specifications for a covered offense for trial by special or general
court-martial.
§825. Art. 25. Who may serve on courts-martial
(a) Any commissioned officer on active duty is eligible to serve on
all courts-martial for the trial of any person who may lawfully be
brought before such courts for trial.
(b) Any warrant officer on active duty is eligible to serve on general
and special courts-martial for the trial of any person, other than a
commissioned officer, who may lawfully be brought before such
courts for trial.
(c)(1) Any enlisted member on active duty is eligible to serve on a
general or special court-martial for the trial of any other enlisted
member.
(2) Before a court-martial with a military judge and members is
assembled for trial, an enlisted member who is an accused may
personally request, orally on the record or in writing, that—
(A) the membership of the court-martial be comprised entirely
of officers; or
(B) enlisted members comprise at least one-third of the
membership of the court-martial, regardless of whether enlisted
members have been detailed to the court-martial.
(3) Except as provided in paragraph (4), after such a request, the
accused may not be tried by a general or special court-martial if the
membership of the court-martial is inconsistent with the request.
(4) If, because of physical conditions or military exigencies, a
sufficient number of eligible officers or enlisted members, as the
case may be, is not available to carry out paragraph (2), the trial may
nevertheless be held. In that event, the convening authority shall
make a detailed written statement of the reasons for nonavailability.
The statement shall be appended to the record.
(d)(1) Except as provided in paragraph (2) for capital offenses, the
accused in a court-martial with a military judge and members may,
after the findings are announced and before any matter is presented
in the sentencing phase, request, orally on the record or in writing,
sentencing by members.
(2) In a capital case, the accused shall be sentenced by the
members for all offenses for which the court-martial may sentence
the accused to death in accordance with section 853(c) of this title
(article 53(c)).
(3) In a capital case, if the accused is convicted of a non-capital
offense, the accused shall be sentenced for such non-capital offense
in accordance with section 853(b) of this title (article 53(b)),
regardless of whether the accused is convicted of an offense for
which the court-martial may sentence the accused to death.
(e)(1) When it can be avoided, no member of an armed force may be
tried by a court-martial any member of which is junior to him in rank
or grade.
(2) When convening a court-martial, the convening authority shall
detail as members thereof such members of the armed forces as, in
his opinion, are best qualified for the duty by reason of age,
education, training, experience, length of service, and judicial
temperament. No member of an armed force is eligible to serve as a
member of a general or special court-martial when he is the accuser
or a witness for the prosecution or has acted as preliminary hearing
officer or as counsel in the same case.
(3) The convening authority shall detail not less than the number
of members necessary to impanel the court-martial under section 829
of this title (article 29).
(f) Before a court-martial is assembled for the trial of a case, the
convening authority may excuse a member of the court from
participating in the case. Under such regulations as the Secretary
concerned may prescribe, the convening authority may delegate his
authority under this subsection to his staff judge advocate or legal
officer or to any other principal assistant.
Office of Law Revision Counsel, United States Code, 10 U.S.C. 825:
Art. 25. Who may serve on courts-martial (Sep. 13, 2023, 5:24 PM)
(https://uscode.house.gov (go to “Jump to” and insert “10” in “Title”
and “825” in “Section”)) provides:
“Pub. L. 117-263, div. A. title V, § 543(a), (b), Dec. 23, 2022, 136
Stat. 2582, provided that, effective on the date that is two years after
Dec. 23, 2022, and applicable with respect to courts-martial
convened on or after that date, section (e) of this section is amended
by adding at the end the following new paragraph:
(4) When convening a court-martial, the convening authority
shall detail as members thereof members of the armed forces under
such regulations as the President may prescribe for the randomized
selection of qualified personnel, to the maximum extent practicable.”
§825a. Art. 25a. Number of court-martial members
in capital cases
(a) IN GENERAL.—In a case in which the accused may be sentenced
to death, the number of members shall be 12.
(b) C
ASE NO LONGER CAPITAL.—Subject to section 829 of this title
(article 29)—
(1) if a case is referred for trial as a capital case and, before the
members are impaneled, the accused may no longer be sentenced to
death, the number of members shall be eight; and
(2) if a case is referred for trial as a capital case and, after the
members are impaneled, the accused may no longer be sentenced to
death, the number of members shall remain 12.
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§826. Art. 26. Military judge of a general or special
court-martial
(a) A military judge shall be detailed to each general and special
court-martial. The Secretary concerned shall prescribe regulations
providing for the manner in which military judges are detailed for
such courts-martial and for the persons who are authorized to detail
military judges for such courts-martial. The military judge shall
preside over each open session of the court-martial to which he has
been detailed.
(b) A military judge shall be a commissioned officer of the armed
forces who is a member of the bar of a Federal court or a member of
the bar of the highest court of a State and who is certified to be
qualified, by reason of education, training, experience, and judicial
temperament, for duty as a military judge by the Judge Advocate
General of the armed force of which such military judge is a member.
(c)(1) In accordance with regulations prescribed under subsection
(a), a military judge of a general or special court-martial shall be
designated for detail by the Judge Advocate General of the armed
force of which the military judge is a member.
(2) Neither the convening authority nor any member of the staff
of the convening authority shall prepare or review any report
concerning the effectiveness, fitness, or efficiency of the military
judge so detailed, which relates to the military judge’s performance
of duty as a military judge.
(3) A commissioned officer who is certified to be qualified for
duty as a military judge of a general court-martial—
(A) may perform such duties only when the officer is assigned
and directly responsible to the Judge Advocate General of the armed
force of which the military judge is a member; and
(B) may perform duties of a judicial or nonjudicial nature other
than those relating to the officer’s primary duty as a military judge
of a general court-martial when such duties are assigned to the officer
by or with the approval of that Judge Advocate General.
(4) In accordance with regulations prescribed by the President,
assignments of military judges under this section (article) shall be for
appropriate minimum periods, subject to such exceptions as may be
authorized in the regulations.
(d) No person is eligible to act as military judge in a case if he is the
accuser or a witness for the prosecution or has acted as preliminary
hearing officer or a counsel in the same case.
(e) The military judge of a court-martial may not consult with the
members of the court except in the presence of the accused, trial
counsel, and defense counsel, nor may he vote with the members of
the court.
(f) A military judge may be detailed under subsection (a) to a court-
martial or a proceeding under section 830a of this title (article 30a)
that is convened in a different armed force, when so permitted by the
Judge Advocate General of the armed force of which the military
judge is a member.
(g) In accordance with regulations prescribed by the President, each
Judge Advocate General shall designate a chief trial judge from
among the members of the applicable trial judiciary.
§826a. Art. 26a. Military magistrates
(a) QUALIFICATIONS.—A military magistrate shall be a
commissioned officer of the armed forces who—
(1) is a member of the bar of a Federal court or a member of the
bar of the highest court of a State; and
(2) is certified to be qualified, by reason of education, training,
experience, and judicial temperament, for duty as a military
magistrate by the Judge Advocate General of the armed force of
which the officer is a member.
(b) D
UTIES.—In accordance with regulations prescribed by the
Secretary concerned, in addition to duties when designated under
section 819 of this title or section 830a of this title (articles 19 or
30a), a military magistrate may be assigned to perform other duties
of a nonjudicial nature.
§827. Art. 27. Detail of trial counsel and defense
counsel
(a)(1) Trial counsel and defense counsel shall be detailed for each
general and special court-martial. Assistant trial counsel and
assistant and associate defense counsel may be detailed for each
general and special court-martial. The Secretary concerned shall
prescribe regulations providing for the manner in which counsel are
detailed for such courts-martial and for the persons who are
authorized to detail counsel for such courts-martial.
(2) No person who, with respect to a case, has served as a
preliminary hearing officer, court member, military judge, military
magistrate, or appellate judge, may later serve as trial counsel,
assistant trial counsel, or, unless expressly requested by the accused,
as defense counsel or assistant or associate defense counsel in the
same case. No person who has acted for the prosecution may act later
in the same case for the defense, nor may any person who has acted
for the defense act later in the same case for the prosecution.
(b) Trial counsel, defense counsel, or assistant defense counsel
detailed for a general court-martial—
(1) must be a judge advocate who is a graduate of an accredited
law school or is a member of the bar of a Federal court or of the
highest court of a State; or must be a member of the bar of a Federal
court or of the highest court of a State; and
(2) must be certified as competent to perform such duties by the
Judge Advocate General of the armed force of which he is a member.
(c)(1) Defense counsel and assistant defense counsel detailed for a
special court-martial shall have the qualifications set forth in
subsection (b).
(2) Trial counsel and assistant trial counsel detailed for a special
court-martial and assistant trial counsel detailed for a general court-
martial must be determined to be competent to perform such duties
by the Judge Advocate General, under such rules as the President
may prescribe.
(d) To the greatest extent practicable, in any capital case, at least one
defense counsel shall, as determined by the Judge Advocate General,
be learned in the law applicable to such cases. If necessary, this
counsel may be a civilian and, if so, may be compensated in
accordance with regulations prescribed by the Secretary of Defense.
(e) For each general and special court-martial for which charges and
specifications were referred by a special trial counsel—
(1) a special trial counsel shall be detailed as trial counsel; and
(2) a special trial counsel may detail other trial counsel as
necessary who are judge advocates.
§828. Art. 28. Detail or employment of reporters
and interpreters
Under such regulations as the Secretary concerned may prescribe,
the convening authority of a court-martial, military commission, or
APPENDIX 2
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court of inquiry shall detail or employ qualified court reporters, who
shall record the proceedings of and testimony taken before that court
or commission. Under like regulations the convening authority of a
court-martial, military commission, or court of inquiry may detail or
employ interpreters who shall interpret for the court or commission.
This section does not apply to a military commission established
under chapter 47A of this title.
§829. Art. 29. Assembly and impaneling of
members; detail of new members and military
judges
(a) ASSEMBLY.—The military judge shall announce the assembly of
a general or special court-martial with members. After such a court-
martial is assembled, no member may be absent, unless the member
is excused—
(1) as a result of a challenge;
(2) under subsection (b)(1)(B); or
(3) by order of the military judge or the convening authority for
disability or other good cause.
(b) I
MPANELING.—
(1) Under rules prescribed by the President, the military judge of
a general or special court-martial with members shall—
(A) after determination of challenges, impanel the court-
martial; and
(B) excuse the members who, having been assembled, are not
impaneled.
(2) In a general court-martial, the military judge shall impanel—
(A) 12 members in a capital case; and
(B) eight members in a noncapital case.
(3) In a special court-martial, the military judge shall impanel four
members.
(c) A
LTERNATE MEMBERS.—In addition to members under
subsection (b), the military judge shall impanel alternate members,
if the convening authority authorizes alternate members.
(d) D
ETAIL OF NEW MEMBERS.—
(1) If, after members are impaneled, the membership of the court-
martial is reduced to—
(A) fewer than 12 members with respect to a general court-
martial in a capital case;
(B) fewer than six members with respect to a general court-
martial in a noncapital case; or
(C) fewer than four members with respect to a special court-
martial; the trial may not proceed unless the convening authority
details new members and, from among the members so detailed, the
military judge impanels new members sufficient in number to
provide the membership specified in paragraph (2).
(2) The membership referred to in paragraph (1) is as follows:
(A) 12 members with respect to a general court-martial in a
capital case.
(B) At least six but not more than eight members with respect
to a general court-martial in a noncapital case.
(C) Four members with respect to a special court-martial.
(e) D
ETAIL OF NEW MILITARY JUDGE.—If the military judge is
unable to proceed with the trial because of disability or otherwise, a
new military judge shall be detailed to the court-martial.
(f) E
VIDENCE.—
(1) In the case of new members under subsection (d), the trial may
proceed with the new members present after the evidence previously
introduced is read or, in the case of audiotape, videotape, or similar
recording, is played, in the presence of the new members, the
military judge, the accused, and counsel for both sides.
(2) In the case of a new military judge under subsection (e), the
trial shall proceed as if no evidence had been introduced, unless the
evidence previously introduced is read or, in the case of audiotape,
videotape, or similar recording, is played, in the presence of the new
military judge, the accused, and counsel for both sides.
SUBCHAPTER VI—PRE-TRIAL PROCEDURE
Sec.
830.
Art.
30.
Charges and specifications.
830a.
30a.
Proceedings conducted before referral.
831.
31.
Compulsory self-incrimination prohibited.
832.
32.
Preliminary hearing required before referral to
general court-martial.
833.
33.
Disposition guidance.
834.
34.
Advice to convening authority before referral for
trial.
835.
35.
Service of charges; commencement of trial.
§830. Art. 30. Charges and specifications
(a) IN GENERAL.—Charges and specifications—
(1) may be preferred only by a person subject to this chapter; and
(2) shall be preferred by presentment in writing, signed under oath
before a commissioned officer of the armed forces who is authorized
to administer oaths.
(b) R
EQUIRED CONTENT.—The writing under subsection (a) shall
state that—
(1) the signer has personal knowledge of, or has investigated, the
matters set forth in the charges and specifications; and
(2) the matters set forth in the charges and specifications are true,
to the best of the knowledge and belief of the signer.
(c) D
UTY OF PROPER AUTHORITY.—When charges and
specifications are preferred under subsection (a), the proper authority
shall, as soon as practicable—
(1) inform the person accused of the charges and specifications;
and
(2) determine what disposition should be made of the charges and
specifications in the interest of justice and discipline.
§830a. Art. 30a. Proceedings conducted before
referral
(a) IN GENERAL.—
(1) The President shall prescribe regulations for matters relating
to proceedings conducted before referral of charges and
specifications to court-martial for trial, including the following:
(A) Pre-referral investigative subpoenas.
(B) Pre-referral warrants or orders for electronic
communications.
(C) Pre-referral matters referred by an appellate court.
UNIFORM CODE OF MILITARY JUSTICE
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(D) Pre-referral matters under subsection (c) or (e) of section
806b of this title (article 6b).
(E) Pre-referral matters relating to the following:
(i) Pre-trial confinement of an accused.
(ii) The mental capacity or mental responsibility of an
accused.
(iii) A request for an individual military counsel.
(2) In addition to the matters specified in paragraph (1), the
regulations prescribed under that paragraph shall—
(A) set forth the matters that a military judge may rule upon in
such proceedings;
(B) include procedures for the review of such rulings;
(C) include appropriate limitations to ensure that proceedings
under this section extend only to matters that would be subject to
consideration by a military judge in a general or special court-
martial; and
(D) provide such limitations on the relief that may be ordered
under this section as the President considers appropriate.
(3) If any matter in a proceeding under this section becomes a
subject at issue with respect to charges that have been referred to a
general or special court-martial, the matter shall be transferred to the
military judge detailed to the court-martial.
(b) D
ETAIL OF MILITARY JUDGE.—The Secretary concerned shall
prescribe regulations providing for the manner in which military
judges are detailed to proceedings under subsection (a)(1).
(c) D
ISCRETION TO DESIGNATE MAGISTRATE TO PRESIDE.—In
accordance with regulations prescribed by the Secretary concerned,
a military judge detailed to a proceeding under subsection (a)(1),
other than a proceeding described in subparagraph (B) of that
subsection, may designate a military magistrate to preside over the
proceeding.
§831. Art. 31. Compulsory self-incrimination
prohibited
(a) No person subject to this chapter may compel any person to
incriminate himself or to answer any question the answer to which
may tend to incriminate him.
(b) No person subject to this chapter may interrogate, or request any
statement from, an accused or a person suspected of an offense
without first informing him of the nature of the accusation and
advising him that he does not have to make any statement regarding
the offense of which he is accused or suspected and that any
statement made by him may be used as evidence against him in a
trial by court-martial.
(c) No person subject to this chapter may compel any person to make
a statement or produce evidence before any military tribunal if the
statement or evidence is not material to the issue and may tend to
degrade him.
(d) No statement obtained from any person in violation of this article,
or through the use of coercion, unlawful influence, or unlawful
inducement may be received in evidence against him in a trial by
court-martial.
§832. Art. 32. Preliminary hearing required before
referral to general court-martial
(a) IN GENERAL.—
(1)(A) Except as provided in subparagraph (B), a preliminary
hearing shall be held before referral of charges and specifications for
trial by general court-martial. The preliminary hearing shall be
conducted by an impartial hearing officer detailed in accordance
with subparagraph (C).
(B) Under regulations prescribed by the President, a
preliminary hearing need not be held if the accused submits a written
waiver to—
(i) except as provided in clause (ii), the convening authority
and the convening authority determines that a hearing is not required;
and
(ii) with respect to charges and specifications over which the
special trial counsel is exercising authority in accordance with
section 824a of this title (article 24a), the special trial counsel and
the special trial counsel determines that a hearing is not required.
(C)(i) Except as provided in clause (ii), the convening authority
shall detail a hearing officer.
(ii) If a special trial counsel is exercising authority over the
charges and specifications subject to a preliminary hearing under this
section (article), the special trial counsel shall request a hearing
officer and a hearing officer shall be provided by the convening
authority, in accordance with regulations prescribed by the President.
(2) The purpose of the preliminary hearing shall be limited to
determining the following:
(A) Whether or not the specification alleges an offense under
this chapter.
(B) Whether or not there is probable cause to believe that the
accused committed the offense charged.
(C) Whether or not the convening authority has court-martial
jurisdiction over the accused and over the offense.
(D) A recommendation as to the disposition that should be
made of the case.
(b) H
EARING OFFICER.—
(1) A preliminary hearing under this section shall be conducted
by an impartial hearing officer, who—
(A) whenever practicable, shall be a judge advocate who is
certified under section 827(b)(2) of this title (article 27(b)(2)); or
(B) when it is not practicable to appoint a judge advocate
because of exceptional circumstances, is not a judge advocate so
certified.
(2) In the case of a hearing officer under paragraph (1)(B), a judge
advocate who is certified under section 827(b)(2) of this title (article
27(b)(2)) shall be available to provide legal advice to the hearing
officer.
(3) Whenever practicable, the hearing officer shall be equal in
grade or senior in grade to military counsel who are detailed to
represent the accused or the Government at the preliminary hearing.
(c) R
EPORT TO CONVENING AUTHORITY OR SPECIAL TRIAL
COUNSEL
.—After a preliminary hearing under this section, the
hearing officer shall submit to the convening authority or, in the case
of a preliminary hearing in which the hearing officer is provided at
the request of a special trial counsel to the special trial counsel, a
written report (accompanied by a recording of the preliminary
hearing under subsection (e)) that includes the following:
(1) For each specification, a statement of the reasoning and
conclusions of the hearing officer with respect to determinations
under subsection (a)(2), including a summary of relevant witness
testimony and documentary evidence presented at the hearing and
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any observations of the hearing officer concerning the testimony of
witnesses and the availability and admissibility of evidence at trial.
(2) Recommendations for any necessary modifications to the form
of the charges or specifications.
(3) An analysis of any additional information submitted after the
hearing by the parties or by a victim of an offense, that, under such
rules as the President may prescribe, is relevant to disposition under
sections 830 and 834 of this title (articles 30 and 34).
(4) A statement of action taken on evidence adduced with respect
to uncharged offenses, as described in subsection (f).
(d) R
IGHTS OF ACCUSED AND VICTIM.—(1) The accused shall be
advised of the charges against the accused and of the accused’s right
to be represented by counsel at the preliminary hearing under this
section. The accused has the right to be represented at the
preliminary hearing as provided in section 838 of this title (article
38) and in regulations prescribed under that section.
(2) The accused may cross-examine witnesses who testify at the
preliminary hearing and present additional evidence that is relevant
to the issues for determination under subsection (a)(2).
(3) A victim may not be required to testify at the preliminary
hearing. A victim who declines to testify shall be deemed to be not
available for purposes of the preliminary hearing. A declination
under this paragraph shall not serve as the sole basis for ordering a
deposition under section 849 of this title (article 49).
(4) The presentation of evidence and examination (including
cross-examination) of witnesses at a preliminary hearing shall be
limited to the matters relevant to determinations under subsection
(a)(2).
(e) R
ECORDING OF PRELIMINARY HEARING.—A preliminary hearing
under subsection (a) shall be recorded by a suitable recording device.
The victim may request the recording and shall have access to the
recording under such rules as the President may prescribe.
(f) E
FFECT OF EVIDENCE OF UNCHARGED OFFENSE.—If evidence
adduced in a preliminary hearing under subsection (a) indicates that
the accused committed an uncharged offense, the hearing officer
may consider the subject matter of that offense without the accused
having first been charged with the offense if the accused—
(1) is present at the preliminary hearing;
(2) is informed of the nature of each uncharged offense
considered; and
(3) is afforded the opportunities for representation, cross-
examination, and presentation consistent with subsection (d).
(g) E
FFECT OF VIOLATION.—The requirements of this section are
binding on all persons administering this chapter, but failure to
follow the requirements does not constitute jurisdictional error. A
defect in a report under subsection (c) is not a basis for relief if the
report is in substantial compliance with that subsection.
(h) V
ICTIM DEFINED.—In this section, the term “victim” means a
person who—
(1) is alleged to have suffered a direct physical, emotional, or
pecuniary harm as a result of the matters set forth in a charge or
specification being considered; and
(2) is named in one of the specifications.
§833. Art. 33. Disposition guidance
The President shall direct the Secretary of Defense to issue, in
consultation with the Secretary of the department in which the Coast
Guard is operating when it is not operating as a service in the Navy,
non-binding guidance regarding factors that commanders, convening
authorities, staff judge advocates, and judge advocates should take
into account when exercising their duties with respect to disposition
of charges and specifications in the interest of justice and discipline
under sections 830 and 834 of this title (articles 30 and 34). Such
guidance shall take into account, with appropriate consideration of
military requirements, the principles contained in official guidance
of the Attorney General to attorneys for the Government with respect
to disposition of Federal criminal cases in accordance with the
principle of fair and evenhanded administration of Federal criminal
law.
§834. Art. 34. Advice to convening authority before
referral for trial
(a) GENERAL COURT-MARTIAL.—
(1) S
TAFF JUDGE ADVOCATE ADVICE REQUIRED BEFORE
REFERRAL
.—Subject to subsection (c), before referral of charges and
specifications to a general court-martial for trial, the convening
authority shall submit the matter to the staff judge advocate for
advice, which the staff judge advocate shall provide to the convening
authority in writing. The convening authority may not refer a
specification under a charge to a general court-martial unless the
staff judge advocate advises the convening authority in writing
that—
(A) the specification alleges an offense under this chapter;
(B) there is probable cause to believe that the accused
committed the offense charged; and
(C) a court-martial would have jurisdiction over the accused
and the offense.
(2) S
TAFF JUDGE ADVOCATE RECOMMENDATION AS TO
DISPOSITION
.—Together with the written advice provided under
paragraph (1), the staff judge advocate shall provide a written
recommendation to the convening authority as to the disposition that
should be made of the specification in the interest of justice and
discipline.
(3) S
TAFF JUDGE ADVOCATE ADVICE AND RECOMMENDATION TO
ACCOMPANY REFERRAL
.—When a convening authority makes a
referral for trial by general court-martial, the written advice of the
staff judge advocate under paragraph (1) and the written
recommendation of the staff judge advocate under paragraph (2)
with respect to each specification shall accompany the referral.
(b) S
PECIAL COURT-MARTIAL; CONVENING AUTHORITY
CONSULTATION WITH JUDGE ADVOCATE.—Subject to subsection
(c), before referral of charges and specifications to a special court-
martial for trial, the convening authority shall consult a judge
advocate on relevant legal issues.
(c) C
OVERED OFFENSES.— —A referral to a general or special court-
martial for trial of charges and specifications over which a special
trial counsel exercises authority may only be made—
(1) by a special trial counsel, subject to a special trial counsel’s
written determination accompanying the referral that—
(A) each specification under a charge alleges an offense under
this chapter;
(B) there is probable cause to believe that the accused
committed the offense charged; and
(C) a court-martial would have jurisdiction over the accused
and the offense; or
(2) in the case of charges and specifications that do not allege a
covered offense and as to which a special trial counsel declines to
UNIFORM CODE OF MILITARY JUSTICE
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prefer or, in the case of charges and specifications preferred by a
person other than a special trial counsel, refer charges, by the
convening authority in accordance with this section.
(d) G
ENERAL AND SPECIAL COURTS-MARTIAL; CORRECTION OF
CHARGES AND SPECIFICATIONS BEFORE REFERRAL.—Before
referral for trial by general court-martial or special court-martial,
changes may be made to charges and specifications—
(1) to correct errors in form; and
(2) when applicable, to conform to the substance of the evidence
contained in a report under section 832(c) of this title (article 32(c)).
(e) R
EFERRAL DEFINED.—In this section, the term “referral” means
the order of a convening authority or, with respect to charges and
specifications over which a special trial counsel exercises authority
in accordance with section 824a of this title (article 24a), a special
trial counsel, that charges and specifications against an accused be
tried by a specified court-martial.
§835. Art. 35. Service of charges; commencement of
trial
(a) IN GENERAL.—Trial counsel detailed for a court-martial under
section 827 of this title (article 27) shall cause to be served upon the
accused a copy of the charges and specifications referred for trial.
(b) C
OMMENCEMENT OF TRIAL.—
(1) Subject to paragraphs (2) and (3), no trial or other proceeding
of a general court-martial or a special court-martial (including any
session under section 839(a) of this title (article 39(a)) may be held
over the objection of the accused—
(A) with respect to a general court-martial, from the time of
service through the fifth day after the date of service; or
(B) with respect to a special court-martial, from the time of
service through the third day after the date of service.
(2) An objection under paragraph (1) may be raised only at the
first session of the trial or other proceeding and only if the first
session occurs before the end of the applicable period under
paragraph (1)(A) or (1)(B). If the first session occurs before the end
of the applicable period, the military judge shall, at that session,
inquire as to whether the defense objects under this subsection.
(3) This subsection shall not apply in time of war.
SUBCHAPTER VII—TRIAL PROCEDURE
Sec.
836.
Art.
36.
President may prescribe rules.
837.
37.
Command influence.
838.
38.
Duties of trial counsel and defense counsel.
839.
39.
Sessions.
840.
40.
Continuances.
841.
41.
Challenges.
842.
42.
Oaths.
843.
43.
Statute of limitations.
844.
44.
Former jeopardy.
845.
45.
Pleas of the accused.
846.
46.
Opportunity to obtain witnesses and other evidence
in trials by court-martial.
847.
47.
Refusal of person not subject to chapter to appear,
testify, or produce evidence.
848.
48.
Contempt.
849.
49.
Depositions.
850.
50.
Admissibility of sworn testimony from records of
courts of inquiry.
850a.
50a
Defense of lack of mental responsibility.
851.
51.
Voting and rulings.
852.
52.
Votes required for conviction, sentencing, and other
matters.
853.
53.
Findings and sentencing.
853.
53a
Plea agreements.
854.
54.
Record of trial.
§836. Art. 36. President may prescribe rules
(a) Pretrial, trial, and post-trial procedures, including modes of proof,
for cases arising under this chapter triable in courts-martial, military
commissions and other military tribunals, and procedures for courts
of inquiry, may be prescribed by the President by regulations which
shall, so far as he considers practicable, apply the principles of law
and the rules of evidence generally recognized in the trial of criminal
cases in the United States district courts, but which may not, except
as provided in chapter 47A of this title, be contrary to or inconsistent
with this chapter.
(b) All rules and regulations made under this article shall be uniform
insofar as practicable, except insofar as applicable to military
commissions established under chapter 47A of this title.
§837. Art. 37. Command influence
(a)(1) No court-martial convening authority, nor any other
commanding officer, may censure, reprimand, or admonish the
court or any member, military judge, or counsel thereof, with
respect to the findings or sentence adjudged by the court, or with
respect to any other exercise of its or his functions in the conduct of
the proceeding.
(2) No court-martial convening authority, nor any other
commanding officer, may deter or attempt to deter a potential
witness from participating in the investigatory process or testifying
at a court-martial. The denial of a request to travel at government
expense or refusal to make a witness available shall not by itself
constitute unlawful command influence.
(3) No person subject to this chapter may attempt to coerce or,
by any unauthorized means, attempt to influence the action of a
court-martial or any other military tribunal or any member thereof,
in reaching the findings or sentence in any case, or the action of any
convening, approving, or reviewing authority or preliminary
hearing officer with respect to such acts taken pursuant to this
chapter as prescribed by the President.
(4) Conduct that does not constitute a violation of paragraphs
(1) through (3) may include, for example—
(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing persons on the substantive and
procedural aspects of courts-martial;
(B) statements regarding criminal activity or a particular
criminal offense that do not advocate a particular disposition, or
a particular court-martial finding or sentence, or do not relate to
a particular accused; or
(C) statements and instructions given in open court by the
military judge or counsel.
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(5)(A) Notwithstanding paragraphs (1) through (3), but subject
to subparagraph (B)-
(i) a superior convening authority or officer may generally
discuss matters to consider regarding the disposition of alleged
violations of this chapter with a subordinate convening
authority or officer; and
(ii) a subordinate convening authority or officer may seek
advice from a superior convening authority or officer regarding
the disposition of an alleged offense under this chapter.
(B) No superior convening authority or officer may direct a
subordinate convening authority or officer to make a particular
disposition in a specific case or otherwise substitute the
discretion of such authority or such officer for that of the
subordinate convening authority or officer.
(b) In the preparation of an effectiveness, fitness, or efficiency
report, or any other report or document used in whole or in part for
the purpose of determining whether a member of the armed forces
is qualified to be advanced in grade, or in determining the
assignment or transfer of a member of the armed forces or in
determining whether a member of the armed forces should be
retained on active duty, no person subject to this chapter may, in
preparing any such report (1) consider or evaluate the performance
of duty of any such member as a member of a court-martial, or (2)
give a less favorable rating or evaluation of any member of the
armed forces because of the zeal with which such member, as
counsel, represented any person in a court-martial proceeding.
(c) No finding or sentence of a court-martial may be held
incorrect on the ground of a violation of this section unless the
violation materially prejudices the substantial rights of the accused.
(d)(1) A superior convening authority or commanding officer
may withhold the authority of a subordinate convening authority or
officer to dispose of offenses in individual cases, types of cases, or
generally.
(2) Except as provided in paragraph (1) or as otherwise
authorized by this chapter, a superior convening authority or
commanding officer may not limit the discretion of a subordinate
convening authority or officer to act with respect to a case for
which the subordinate convening authority or officer has authority
to dispose of the offenses.
§838. Art. 38. Duties of trial counsel and defense
counsel
(a) The trial counsel of a general or special court-martial shall
prosecute in the name of the United States, and shall, under the
direction of the court, prepare the record of the proceedings.
(b)(1) The accused has the right to be represented in his defense
before a general or special court-martial or at a preliminary hearing
under section 832 of this title (article 32) as provided in this
subsection.
(2) The accused may be represented by civilian counsel if
provided by him.
(3) The accused may be represented—
(A) by military counsel detailed under section 827 of this title
(article 27); or
(B) by military counsel of his own selection if that counsel is
reasonably available (as determined under regulations prescribed
under paragraph (7)).
(4) If the accused is represented by civilian counsel, military
counsel detailed or selected under paragraph (3) shall act as associate
counsel unless excused at the request of the accused.
(5) Except as provided under paragraph (6), if the accused is
represented by military counsel of his own selection under paragraph
(3)(B), any military counsel detailed under paragraph (3)(A) shall be
excused.
(6) The accused is not entitled to be represented by more than one
military counsel. However, the person authorized under regulations
prescribed under section 827 of this title (article 27) to detail counsel,
in his sole discretion—
(A) may detail additional military counsel as assistant defense
counsel; and
(B) if the accused is represented by military counsel of his own
selection under paragraph (3)(B), may approve a request from the
accused that military counsel detailed under paragraph (3)(A) act as
associate defense counsel.
(7) The Secretary concerned shall, by regulation, define
“reasonably available” for the purpose of paragraph (3)(B) and
establish procedures for determining whether the military counsel
selected by an accused under that paragraph is reasonably available.
Such regulations may not prescribe any limitation based on the
reasonable availability of counsel solely on the grounds that the
counsel selected by the accused is from an armed force other than
the armed force of which the accused is a member. To the maximum
extent practicable, such regulations shall establish uniform policies
among the armed forces while recognizing the differences in the
circumstances and needs of the various armed forces. The Secretary
concerned shall submit copies of regulations prescribed under this
paragraph to the Committee on Armed Services of the Senate and the
Committee on Armed Services of the House of Representatives.
(c) In any court-martial proceeding resulting in a conviction, the
defense counsel—
(1) may forward for attachment to the record of proceedings a
brief of such matters as he determines should be considered in behalf
of the accused on review (including any objection to the contents of
the record which he considers appropriate);
(2) may assist the accused in the submission of any matter under
section 860, 860a, or 860b of this title (article 60,60a, or 60b); and
(3) may take other action authorized by this chapter.
(d) An assistant trial counsel of a general court-martial may, under
the direction of the trial counsel or when he is qualified to be a trial
counsel as required by section 827 of this title (article 27), perform
any duty imposed by law, regulation, or the custom of the service
upon the trial counsel of the court. An assistant trial counsel of a
special court-martial may perform any duty of the trial counsel.
(e) An assistant defense counsel of a general or special court-martial
may perform any duty imposed by law, regulation, or the custom of
the service upon counsel for the accused.
§839. Art. 39. Sessions
(a) At any time after the service of charges which have been referred
for trial to a court-martial composed of a military judge and
members, the military judge may, subject to section 835 of this title
(article 35), call the court into session without the presence of the
members for the purpose of—
(1) hearing and determining motions raising defenses or
objections which are capable of determination without trial of the
issues raised by a plea of not guilty;
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(2) hearing and ruling upon any matter which may be ruled upon
by the military judge under this chapter, whether or not the matter is
appropriate for later consideration or decision by the members of the
court;
(3) holding the arraignment and receiving the pleas of the accused;
(4) conducting a sentencing proceeding and sentencing the
accused under section 853(b)(1) of this title (article 53(b)(1)); and
(5) performing any other procedural function which may be
performed by the military judge under this chapter or under rules
prescribed pursuant to section 836 of this title (article 36) and which
does not require the presence of the members of the court.
(b) Proceedings under subsection (a) shall be conducted in the
presence of the accused, the defense counsel, and the trial counsel
and shall be made a part of the record. These proceedings may be
conducted notwithstanding the number of members of the court and
without regard to section 829 of this title (article 29). If authorized
by regulations of the Secretary concerned, and if at least one defense
counsel is physically in the presence of the accused, the presence
required by this subsection may otherwise be established by
audiovisual technology (such as video teleconferencing technology).
(c) When the members of a court-martial deliberate or vote, only the
members may be present. All other proceedings, including any other
consultation of the members of the court with counsel or the military
judge, shall be made a part of the record and shall be in the presence
of the accused, the defense counsel, the trial counsel, and the military
judge.
(d) The findings, holdings, interpretations, and other precedents of
military commissions under chapter 47A of this title—
(1) may not be introduced or considered in any hearing, trial, or
other proceeding of a court-martial under this chapter; and
(2) may not form the basis of any holding, decision, or other
determination of a court-martial.
§840. Art. 40. Continuances
The military judge or a summary court-martial may, for
reasonable cause, grant a continuance to any party for such time, and
as often, as may appear to be just.
§841. Art. 41. Challenges
(a)(1) The military judge and members of a general or special court-
martial may be challenged by the accused or the trial counsel for
cause stated to the court. The military judge shall determine the
relevancy and validity of challenges for cause, and may not receive
a challenge to more than one person at a time. Challenges by the trial
counsel shall ordinarily be presented and decided before those by the
accused are offered.
(2) If exercise of a challenge for cause reduces the court below the
number of members required by section 816 of this title (article 16),
all parties shall (notwithstanding section 829 of this title (article 29))
either exercise or waive any challenge for cause then apparent
against the remaining members of the court before additional
members are detailed to the court. However, peremptory challenges
shall not be exercised at that time.
(b)(1) Each accused and the trial counsel are entitled initially to one
peremptory challenge of members of the court. The military judge
may not be challenged except for cause.
(2) If exercise of a peremptory challenge reduces the court below
the number of members required by section 816 of this title (article
16), the parties shall (notwithstanding section 829 of this title (article
29)) either exercise or waive any remaining peremptory challenge
(not previously waived) against the remaining members of the court
before additional members are detailed to the court.
(c) Whenever additional members are detailed to the court, and after
any challenges for cause against such additional members are
presented and decided, each accused and the trial counsel are entitled
to one peremptory challenge against members not previously subject
to peremptory challenge.
§842. Art. 42. Oaths
(a) Before performing their respective duties, military judges,
members of general and special courts-martial, trial counsel,
assistant trial counsel, defense counsel, assistant or associate defense
counsel, reporters, and interpreters shall take an oath to perform their
duties faithfully. The form of the oath, the time and place of the
taking thereof, the manner of recording the same, and whether the
oath shall be taken for all cases in which these duties are to be
performed or for a particular case, shall be as prescribed in
regulations of the Secretary concerned. These regulations may
provide that an oath to perform faithfully duties as a military judge,
trial counsel, assistant trial counsel, defense counsel, or assistant or
associate defense counsel may be taken at any time by any judge
advocate or other person certified to be qualified or competent for
the duty, and if such an oath is taken it need not again be taken at the
time the judge advocate or other person is detailed to that duty.
(b) Each witness before a court-martial shall be examined on oath.
§843. Art. 43. Statute of limitations
(a) NO LIMITATIONS FOR CERTAIN OFFENSES.—A person charged
with absence without leave or missing movement in time of war,
with murder, rape or sexual assault, or rape or sexual assault of a
child, maiming of a child, kidnapping of a child, or with any other
offense punishable by death, may be tried and punished at any time
without limitation.
(b) F
IVE-YEAR LIMITATION FOR TRIAL BY COURT-MARTIAL.—
(1) Except as otherwise provided in this section (article), a person
charged with an offense is not liable to be tried by court-martial if
the offense was committed more than five years before the receipt of
sworn charges and specifications by an officer exercising summary
court-martial jurisdiction over the command.
(2)(A) A person charged with having committed a child abuse
offense against a child is liable to be tried by court-martial if the
sworn charges and specifications are received during the life of the
child or within ten years after the date on which the offense was
committed, whichever provides a longer period, by an officer
exercising summary court-martial jurisdiction with respect to that
person.
(B) In subparagraph (A), the term “child abuse offense” means
an act that involves abuse of a person who has not attained the age
of 16 years and constitutes any of the following offenses:
(i) Any offense in violation of section 920, 920a, 920b,
920c, or 930 of this title (article 120, 120a, 120b, 120c, or 130),
unless the offense is covered by subsection (a).
(ii) Aggravated assault, assault consummated by a battery,
or assault with intent to commit specified offenses in violation of
section 928 of this title (article 128).
(C) In subparagraph (A), the term “child abuse offense”
includes an act that involves abuse of a person who has not attained
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the age of 18 years and would constitute an offense under chapter
110 or 117 of title 18 or under section 1591 of that title.
(3) A person charged with an offense is not liable to be punished
under section 815 of this title (article 15) if the offense was
committed more than two years before the imposition of punishment.
(c) T
OLLING FOR ABSENCE WITHOUT LEAVE OR FLIGHT FROM
JUSTICE.—Periods in which the accused is absent without authority
or fleeing from justice shall be excluded in computing the period of
limitation prescribed in this section (article).
(d) T
OLLING FOR ABSENCE FROM US OR MILITARY
JURISDICTION.—Periods in which the accused was absent from
territory in which the United States has the authority to apprehend
him, or in the custody of civil authorities, or in the hands of the
enemy, shall be excluded in computing the period of limitation
prescribed in this article.
(e) E
XTENSION FOR OFFENSES IN TIME OF WAR DETRIMENTAL TO
PROSECUTION OF WAR.—For an offense the trial of which in time of
war is certified to the President by the Secretary concerned to be
detrimental to the prosecution of the war or inimical to the national
security, the period of limitation prescribed in this article is extended
to six months after the termination of hostilities as proclaimed by the
President or by a joint resolution of Congress.
(f) E
XTENSION FOR OTHER OFFENSES IN TIME OF WAR.—When the
United States is at war, the running of any statute of limitations
applicable to any offense under this chapter—
(1) involving fraud or attempted fraud against the United States
or any agency thereof in any manner, whether by conspiracy or not;
(2) committed in connection with the acquisition, care, handling,
custody, control, or disposition of any real or personal property of
the United States; or
(3) committed in connection with the negotiation, procurement,
award, performance, payment, interim financing, cancellation, or
other termination or settlement, of any contract, subcontract, or
purchase order which is connected with or related to the prosecution
of the war, or with any disposition of termination inventory by any
war contractor or Government agency;
is suspended until three years after the termination of hostilities as
proclaimed by the President or by a joint resolution of Congress.
(g) D
EFECTIVE OR INSUFFICIENT CHARGES.—
(1) If charges or specifications are dismissed as defective or
insufficient for any cause and the period prescribed by the applicable
statute of limitations—
(A) has expired; or
(B) will expire within 180 days after the date of dismissal of
the charges and specifications, trial and punishment under new
charges and specifications are not barred by the statute of limitations
if the conditions specified in paragraph (2) are met.
(2) The conditions referred to in paragraph (1) are that the new
charges and specifications must—
(A) be received by an officer exercising summary court-martial
jurisdiction over the command within 180 days after the dismissal of
the charges or specifications; and
(B) allege the same acts or omissions that were alleged in the
dismissed charges or specifications (or allege acts or omissions that
were included in the dismissed charges or specifications).
(h) F
RAUDULENT ENLISTMENT OR APPOINTMENT.—A person
charged with fraudulent enlistment or fraudulent appointment under
section 904a(1) of this title (article 104a(1)) may be tried by court-
martial if the sworn charges and specifications are received by an
officer exercising summary court-martial jurisdiction with respect to
that person, as follows:
(1) In the case of an enlisted member, during the period of the
enlistment or five years, whichever provides a longer period.
(2) In the case of an officer, during the period of the appointment
or five years, whichever provides a longer period.
(i) DNA
EVIDENCE.—If DNA testing implicates an identified person
in the commission of an offense punishable by confinement for more
than one year, no statute of limitations that would otherwise preclude
prosecution of the offense shall preclude such prosecution until a
period of time following the implication of the person by DNA
testing has elapsed that is equal to the otherwise applicable limitation
period.
§844. Art. 44. Former jeopardy
(a) No person may, without his consent, be tried a second time for
the same offense.
(b) No proceeding in which an accused has been found guilty by a
court-martial upon any charge or specification is a trial in the sense
of this article until the finding of guilty has become final after review
of the case has been fully completed.
(c)(1) A court-martial with a military judge alone is a trial in the
sense of this section (article) if, without fault of the accused—
(A) after introduction of evidence; and
(B) before announcement of findings under section 853 of this
title (article 53); the case is dismissed or terminated by the convening
authority or the special trial counsel or on motion of the prosecution
for failure of available evidence or witnesses.
(2) A court-martial with a military judge and members is a trial in
the sense of this section (article) if, without fault of the accused—
(A) after the members, having taken an oath as members under
section 842 of this title (article 42) and after completion of challenges
under section 841 of this title (article 41), are impaneled; and
(B) before announcement of findings under section 853 of this
title (article 53); the case is dismissed or terminated by the convening
authority or the special trial counsel or on motion of the prosecution
for failure of available evidence or witnesses.
§845. Art. 45. Pleas of the accused
(a) IRREGULAR AND SIMILAR PLEAS.—If an accused after
arraignment makes an irregular pleading, or after a plea of guilty sets
up matter inconsistent with the plea, or if it appears that he has
entered the plea of guilty improvidently or through lack of
understanding of its meaning and effect, or if he fails or refuses to
plead, a plea of not guilty shall be entered in the record, and the court
shall proceed as though he had pleaded not guilty.
(b) P
LEAS OF GUILTY.—A plea of guilty by the accused may not be
received to any charge or specification alleging an offense for which
the death penalty is mandatory. With respect to any other charge or
specification to which a plea of guilty has been made by the accused
and accepted by the military judge, a finding of guilty of the charge
or specification may be entered immediately without vote. This
finding shall constitute the finding of the court unless the plea of
guilty is withdrawn prior to announcement of the sentence, in which
event the proceedings shall continue as though the accused had
pleaded not guilty.
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(c) HARMLESS ERROR.—A variance from the requirements of this
article is harmless error if the variance does not materially prejudice
the substantial rights of the accused.
§846. Art. 46. Opportunity to obtain witnesses and
other evidence in trial by court-martial
(a) OPPORTUNITY TO OBTAIN WITNESSES AND OTHER EVIDENCE.—
In a case referred for trial by court-martial, the trial counsel, the
defense counsel, and the court-martial shall have equal opportunity
to obtain witnesses and other evidence in accordance with such
regulations as the President may prescribe.
(b) S
UBPOENA AND OTHER PROCESS GENERALLY.—Any subpoena
or other process issued under this section (article)—
(1) shall be similar to that which courts of the United States having
criminal jurisdiction may issue;
(2) shall be executed in accordance with regulations prescribed by
the President; and
(3) shall run to any part of the United States and to the
Commonwealths and possessions of the United States.
(c) S
UBPOENA AND OTHER PROCESS FOR WITNESSES.—A subpoena
or other process may be issued to compel a witness to appear and
testify—
(1) before a court-martial, military commission, or court of
inquiry;
(2) at a deposition under section 849 of this title (article 49); or
(3) as otherwise authorized under this chapter.
(d) S
UBPOENA AND OTHER PROCESS FOR EVIDENCE.—
(1) I
N GENERAL.—A subpoena or other process may be issued to
compel the production of evidence—
(A) for a court-martial, military commission, or court of
inquiry;
(B) for a deposition under section 849 of this title (article 49);
(C) for an investigation of an offense under this chapter; or
(D) as otherwise authorized under this chapter.
(2)
INVESTIGATIVE SUBPOENA.—An investigative subpoena
under paragraph (1)(C) may be issued before referral of charges to a
court-martial only if a general court-martial convening authority has
authorized counsel for the Government to issue such a subpoena or
a military judge issues such a subpoena pursuant to section 830a of
this title (article 30a).
(3) W
ARRANT OR ORDER FOR WIRE OR ELECTRONIC
COMMUNICATIONS
.—With respect to an investigation of an offense
under this chapter, a military judge detailed in accordance with
section 826 or 830a of this title (article 26 or 30a), may issue
warrants or court orders for the contents of, and records concerning,
wire or electronic communications in the same manner as such
warrants and orders may be issued by a district court of the United
States under chapter 121 of title 18, subject to such limitations as the
President may prescribe by regulation.
(e) R
EQUEST FOR RELIEF FROM SUBPOENA OR OTHER PROCESS.—If
a person requests relief from a subpoena or other process under this
section (article) on grounds that compliance is unreasonable or
oppressive or is prohibited by law, a military judge detailed in
accordance with section 826 or 830a of this title (article 26 or 30a)
shall review the request and shall—
(1) order that the subpoena or other process be modified or
withdrawn, as appropriate; or
(2) order the person to comply with the subpoena or other process.
§ 847. Art. 47. Refusal of person not subject to
chapter to appear, testify, or produce evidence
(a) IN GENERAL.—
(1) Any person described in paragraph (2) who—
(A) willfully neglects or refuses to appear; or
(B) willfully refuses to qualify as a witness or to testify or to
produce any evidence which that person is required to produce; is
guilty of an offense against the United States.
(2) The persons referred to in paragraph (1) are the following:
(A) Any person not subject to this chapter who—
(i) is issued a subpoena or other process described in
subsection (c) of section 846 of this title (article 46); and
(ii) is provided a means for reimbursement from the
Government for fees and mileage at the rates allowed to witnesses
attending the courts of the United States or, in the case of
extraordinary hardship, is advanced such fees and mileage.
(B) Any person not subject to this chapter who is issued a
subpoena or other process described in subsection (d) of section 846
of this title (article 46).
(b) Any person who commits an offense named in subsection (a)
shall be tried on indictment or information in a United States district
court or in a court of original criminal jurisdiction in any of the
Commonwealths or possessions of the United States, and jurisdiction
is conferred upon those courts for that purpose. Upon conviction,
such a person shall be fined or imprisoned, or both, at the court’s
discretion.
(c) The United States attorney or the officer prosecuting for the
United States in any such court of original criminal jurisdiction shall,
upon the certification of the facts to him by the military court,
commission, court of inquiry, board, or convening authority, file an
information against and prosecute any person violating this article.
(d) The fees and mileage of witnesses shall be advanced or paid out
of the appropriations for the compensation of witnesses.
§848. Art. 48. Contempt
(a) AUTHORITY TO PUNISH.—
(1) With respect to any proceeding under this chapter, a judicial
officer specified in paragraph (2) may punish for contempt any
person who—
(A) uses any menacing word, sign, or gesture in the presence
of the judicial officer during the proceeding;
(B) disturbs the proceeding by any riot or disorder; or
(C) willfully disobeys a lawful writ, process, order, rule,
decree, or command issued with respect to the proceeding.
(2) A judicial officer referred to in paragraph (1) is any of the
following:
(A) Any judge of the Court of Appeals for the Armed Forces
and any judge of a Court of Criminal Appeals under section 866 of
this title (article 66).
(B) Any military judge detailed to a court-martial, a provost
court, a military commission, or any other proceeding under this
chapter.
(C) Any military magistrate designated to preside under section
819 of this title (article 19).
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(D) The president of a court of inquiry.
(b) P
UNISHMENT.—The punishment for contempt under subsection
(a) may not exceed confinement for 30 days, a fine of $1,000, or
both.
(c) R
EVIEW.—A punishment under this section—
(1) if imposed by a military judge or military magistrate, may be
reviewed by the Court of Criminal Appeals in accordance with the
uniform rules of procedure for the Courts of Criminal Appeals under
section 866(h) of this title (article 66(h));
(2) if imposed by a judge of the Court of Appeals for the Armed
Forces or a judge of a Court of Criminal Appeals, shall constitute a
judgment of the court, subject to review under the applicable
provisions of section 867 or 867a of this title (article 67 or 67a); and
(3) if imposed by a court of inquiry, shall be subject to review by
the convening authority in accordance with rules prescribed by the
President.
(d) I
NAPPLICABILITY TO MILITARY COMMISSIONS UNDER CHAPTER
47A.—This section does not apply to a military commission
established under chapter 47A of this title.
§849. Art. 49. Depositions
(a) IN GENERAL.—
(1) Subject to paragraph (2), a convening authority or a military
judge may order depositions at the request of any party.
(2) A deposition may be ordered under paragraph (1) only if the
requesting party demonstrates that, due to exceptional
circumstances, it is in the interest of justice that the testimony of a
prospective witness be preserved for use at a court-martial, military
commission, court of inquiry, or other military court or board.
(3) A party who requests a deposition under this section shall give
to every other party reasonable written notice of the time and place
for the deposition.
(4) A deposition under this section shall be taken before, and
authenticated by, an impartial officer, as follows:
(A) Whenever practicable, by an impartial judge advocate
certified under section 827(b) of this title (article 27(b)).
(B) In exceptional circumstances, by an impartial military or
civil officer authorized to administer oaths by (i) the laws of the
United States or (ii) the laws of the place where the deposition is
taken.
(b) R
EPRESENTATION BY COUNSEL.—Representation of the parties
with respect to a deposition shall be by counsel detailed in the same
manner as trial counsel and defense counsel are detailed under
section 827 of this title (article 27). In addition, the accused shall
have the right to be represented by civilian or military counsel in the
same manner as such counsel are provided for in section 838(b) of
this title (article 38(b)).
(c) A
DMISSIBILITY AND USE AS EVIDENCE.—A deposition order
under subsection (a) does not control the admissibility of the
deposition in a court-martial or other proceeding under this chapter.
Except as provided by subsection (d), a party may use all or part of
a deposition as provided by the rules of evidence.
(d) C
APITAL CASES.—Testimony by deposition may be presented in
capital cases only by the defense.
§850. Art. 50. Admissibility of sworn testimony
from records of courts of inquiry
(a) USE AS EVIDENCE BY ANY PARTY— In any case not capital and
not extending to the dismissal of a commissioned officer, the sworn
testimony, contained in the duly authenticated record of proceedings
of a court of inquiry, of a person whose oral testimony cannot be
obtained, may, if otherwise admissible under the rules of evidence,
be read in evidence by any party before a court-martial or military
commission if the accused was a party before the court of inquiry
and if the same issue was involved or if the accused consents to the
introduction of such evidence. This section does not apply to a
military commission established under chapter 47A of this title.
(b) U
SE AS EVIDENCE BY DEFENSE— Such testimony may be read in
evidence only by the defense in capital cases or cases extending to
the dismissal of a commissioned officer.
(c) U
SE IN COURTS OF INQUIRY AND MILITARY BOARDS— Such
testimony may also be read in evidence before a court of inquiry or
a military board.
(d) A
UDIOTAPE OR VIDEOTAPE.—Sworn testimony that—
(1) is recorded by audiotape, videotape, or similar method; and
(2) is contained in the duly authenticated record of proceedings of
a court of inquiry;
is admissible before a court-martial, military commission, court of
inquiry, or military board, to the same extent as sworn testimony may
be read in evidence before any such body under subsection (a), (b),
or (c).
§850a. Art. 50a. Defense of lack of mental
responsibility
(a) It is an affirmative defense in a trial by court-martial that, at the
time of the commission of the acts constituting the offense, the
accused, as a result of a severe mental disease or defect, was unable
to appreciate the nature and quality or the wrongfulness of the acts.
Mental disease or defect does not otherwise constitute a defense.
(b) The accused has the burden of proving the defense of lack of
mental responsibility by clear and convincing evidence.
(c) Whenever lack of mental responsibility of the accused with
respect to an offense is properly at issue, the military judge shall
instruct the members of the court as to the defense of lack of mental
responsibility under this section and charge them to find the
accused—
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason of lack of mental responsibility.
(d) Subsection (c) does not apply to a court-martial composed of a
military judge only. In the case of a court-martial composed of a
military judge only, whenever lack of mental responsibility of the
accused with respect to an offense is properly at issue, the military
judge shall find the accused—
(1) guilty;
(2) not guilty; or
(3) not guilty only by reason of lack of mental responsibility.
(e) Notwithstanding the provisions of section 852 of this title (article
52), the accused shall be found not guilty only by reason of lack of
mental responsibility if—
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(1) a majority of the members of the court-martial present at the
time the vote is taken determines that the defense of lack of mental
responsibility has been established; or
(2) in the case of a court-martial composed of a military judge
only, the military judge determines that the defense of lack of mental
responsibility has been established.
§851. Art. 51. Voting and rulings
(a) Voting by members of a general or special court-martial on the
findings and on the sentence shall be by secret written ballot. The
junior member of the court shall count the votes. The count shall be
checked by the president, who shall forthwith announce the result of
the ballot to the members of the court.
(b) The military judge shall rule upon all questions of law and all
interlocutory questions arising during the proceedings. Any such
ruling made by the military judge upon any question of law or any
interlocutory question other than the factual issue of mental
responsibility of the accused is final and constitutes the ruling of the
court, except that the military judge may change a ruling at any time
during trial.
(c) Before a vote is taken on the findings, the military judge shall, in
the presence of the accused and counsel, instruct the members of the
court as to the elements of the offense and charge them—
(1) that the accused must be presumed to be innocent until his guilt
is established by legal and competent evidence beyond reasonable
doubt;
(2) that in the case being considered, if there is a reasonable doubt
as to the guilt of the accused, the doubt must be resolved in favor of
the accused and he must be acquitted;
(3) that, if there is a reasonable doubt as to the degree of guilt, the
finding must be in a lower degree as to which there is no reasonable
doubt; and
(4) that the burden of proof to establish the guilt of the accused
beyond reasonable doubt is upon the United States.
(d) Subsections (a), (b), and (c) do not apply to a court-martial
composed of a military judge only. The military judge of such a
court-martial shall determine all questions of law and fact arising
during the proceedings and, if the accused is convicted, adjudge an
appropriate sentence. The military judge of such a court-martial shall
make a general finding and shall in addition on request find the facts
specially. If an opinion or memorandum of decision is filed, it will
be sufficient if the findings of fact appear therein.
§852. Art. 52. Votes required for conviction,
sentencing, and other matters
(a) IN GENERAL.—No person may be convicted of an offense in a
general or special court-martial, other than—
(1) after a plea of guilty under section 845(b) of this title (article
45(b));
(2) by a military judge in a court-martial with a military judge
alone, under section 816 of this title (article 16); or
(3) in a court-martial with members under section 816 of this title
(article 16), by the concurrence of at least three-fourths of the
members present when the vote is taken.
(b) L
EVEL OF CONCURRENCE REQUIRED.—
(1) I
N GENERAL—Except as provided in subsection (a) and in
paragraph (2), all matters to be decided by members of a general or
special court-martial shall be determined by a majority vote, but a
reconsideration of a finding of guilty or reconsideration of a
sentence, with a view toward decreasing the sentence, may be made
by any lesser vote which indicates that the reconsideration is not
opposed by the number of votes required for that finding or sentence.
(2) S
ENTENCING.—A sentence of death requires (A) a unanimous
finding of guilty of an offense in this chapter expressly made
punishable by death and (B) a unanimous determination by the
members that the sentence for that offense shall include death. All
other sentences imposed by members shall be determined by the
concurrence of at least three-fourths of the members present when
the vote is taken.
§853. Art. 53. Findings and sentencing
(a) ANNOUNCEMENT.—A court-martial shall announce its findings
and sentence to the parties as soon as determined.
(b) S
ENTENCING GENERALLY.—
(1) G
ENERAL AND SPECIAL COURTS-MARTIAL.—Except as
provided in subsection (c) for capital offenses, if the accused is
convicted of an offense in a trial by general or special court martial,
the military judge shall sentence the accused. The sentence
determined by the military judge constitutes the sentence of the
court-martial.
(A) S
ENTENCING BY MILITARY JUDGE.—Except as provided in
subparagraph (B), and in subsection (c) for capital offenses, if the
accused is convicted of an offense in a trial by general or special
court-martial, the military judge shall sentence the accused.
(B) S
ENTENCING BY MEMBERS.—If the accused is convicted of
an offense by general or special court-martial consisting of a military
judge and members and the accused elects sentencing by members
under section 825 of this title (article 25), the members shall sentence
the accused.
(C) S
ENTENCE OF THE ACCUSED.—The sentence determined
pursuant to this paragraph constitutes the sentence of the accused.
(2) S
UMMARY COURTS-MARTIAL. —If the accused is convicted of
an offense in a trial by summary court-martial, the court-martial shall
sentence the accused.
(c) S
ENTENCING FOR CAPITAL OFFENSES.—
(1) I
N GENERAL.—In a capital case, if the accused is convicted of
an offense for which the court-martial may sentence the accused to
death—
(A) the members shall determine—
(i) whether the sentence for that offense shall be death or life
in prison without eligibility for parole; or
(ii) whether the matter shall be returned to the military judge
for determination of a lesser punishment; and
(B) the military judge shall sentence the accused for that
offense in accordance with the determination of the members under
subparagraph (A).
(2) L
ESSER AUTHORIZED PUNISHMENT.—In accordance with
regulations prescribed by the President, the military judge may
include in any sentence to death or life in prison without eligibility
for parole other lesser punishments authorized under this chapter.
(3) O
THER NON-CAPITAL OFFENSES.—In a capital case, if the
accused is convicted of a non-capital offense, the accused shall be
sentenced for such non-capital offense in accordance with subsection
(b), regardless of whether the accused is convicted of an offense for
which the court-martial may sentence the accused to death.
APPENDIX 2
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§853a. Art. 53a. Plea agreements
(a) IN GENERAL.—
(1) Subject to paragraph (3), at any time before the announcement
of findings under section 853 of this title (article 53), the convening
authority and the accused may enter into a plea agreement with
respect to such matters as—
(A) the manner in which the convening authority will dispose
of one or more charges and specifications; and
(B) limitations on the sentence that may be adjudged for one or
more charges and specifications.
(2) The military judge of a general or special court-martial may
not participate in discussions between the parties concerning
prospective terms and conditions of a plea agreement.
(3) With respect to charges and specifications over which a special
trial counsel exercises authority pursuant to section 824a of this title
(article 24a), a plea agreement under this section may only be entered
into between a special trial counsel and the accused. Such agreement
shall be subject to the same limitations and conditions applicable to
other plea agreements under this section (article).
(b) A
CCEPTANCE OF PLEA AGREEMENT.—Subject to subsection (c),
the military judge of a general or special court-martial shall accept a
plea agreement submitted by the parties, except that—
(1) in the case of an offense with a sentencing parameter set forth
in regulations prescribed by the President pursuant to section
539E(e) of the National Defense Authorization Act for Fiscal Year
2022, the military judge may reject a plea agreement that proposes a
sentence that is outside the sentencing parameter if the military judge
determines that the proposed sentence is plainly unreasonable; and
(2) in the case of an offense for which the President has not
established a sentencing parameter pursuant to section 539E(e) of the
National Defense Authorization Act for Fiscal Year 2022, the
military judge may reject a plea agreement that proposes a sentence
if the military judge determines that the proposed sentence is plainly
unreasonable.
(c) L
IMITATION ON ACCEPTANCE OF PLEA AGREEMENTS.—The
military judge of a general or special court-martial shall reject a plea
agreement that—
(1) contains a provision that has not been accepted by both parties;
(2) contains a provision that is not understood by the accused;
(3) except as provided in subsection (c), contains a provision for
a sentence that is less than the mandatory minimum sentence
applicable to an offense referred to in section 856(b)(2) of this title
(article 56(b)(2));
(4) is prohibited by law; or
(5) is contrary to, or is inconsistent with, a regulation prescribed
by the President with respect to terms, conditions, or other aspects of
plea agreements.
(d) L
IMITED CONDITIONS FOR ACCEPTANCE OF PLEA AGREEMENT
FOR
SENTENCE BELOW MANDATORY MINIMUM FOR CERTAIN
OFFENSES.—With respect to an offense referred to in section
856(b)(2) of this title (article 56(b)(2))—
(1) the military judge may accept a plea agreement that provides
for a sentence of bad conduct discharge; and
(2) upon recommendation of the trial counsel, in exchange for
substantial assistance by the accused in the investigation or
prosecution of another person who has committed an offense, the
military judge may accept a plea agreement that provides for a
sentence that is less than the mandatory minimum sentence for the
offense charged.
(e) B
INDING EFFECT OF PLEA AGREEMENT.—Upon acceptance by
the military judge of a general or special court-martial, a plea
agreement shall bind the parties (including the convening authority
and the special trial counsel in the case of a plea agreement entered
into under subsection (a)(3)) and the court-martial.
§854. Art. 54. Record of trial
(a) GENERAL AND SPECIAL COURTS-MARTIAL.—Each general or
special court-martial shall keep a separate record of the proceedings
in each case brought before it. The record shall be certified by a
court-reporter, except that in the case of death, disability, or absence
of a court reporter, the record shall be certified by an official selected
as the President may prescribe by regulation.
(b) S
UMMARY COURT-MARTIAL.—Each summary court-martial
shall keep a separate record of the proceedings in each case, and the
record shall be certified in the manner required by such regulations
as the President may prescribe.
(c) C
ONTENTS OF RECORD.—
(1) Except as provided in paragraph (2), the record shall contain
such matters as the President may prescribe by regulation.
(2) In accordance with regulations prescribed by the President, a
complete record of proceedings and testimony shall be prepared in
any case of a sentence of death, dismissal, discharge, confinement
for more than six months, or forfeiture of pay for more than six
months.
(d) C
OPY TO ACCUSED.— A copy of the record of the proceedings
of each general and special court-martial shall be given to the
accused as soon as it is certified.
(e) C
OPY TO VICTIM.—In the case of a general or special court-
martial, upon request, a copy of all prepared records of the
proceedings of the court-martial shall be given to the victim of the
offense if the victim testified during the proceedings. The records of
the proceedings shall be provided without charge and as soon as the
records are certified. The victim shall be notified of the opportunity
to receive the records of the proceedings.
SUBCHAPTER VIII—SENTENCES
Sec.
855.
Art.
55.
Cruel and unusual punishments prohibited.
856.
56.
Sentencing.
857.
57.
Effective date of sentences.
858.
58.
Execution of confinement.
858a.
58a
Sentences: reduction in enlisted grade.
858b.
58b
Sentences: forfeiture of pay and allowances during
confinement.
§855. Art. 55. Cruel and unusual punishments
prohibited
Punishment by flogging, or by branding, marking, or tattooing on the
body, or any other cruel or unusual punishment, may not be adjudged
by any court-martial or inflicted upon any person subject to this
chapter. The use of irons, single or double, except for the purpose of
safe custody, is prohibited.
UNIFORM CODE OF MILITARY JUSTICE
A2-23
§856. Art. 56. Sentencing
(a) SENTENCE MAXIMUMS.—The punishment which a court-martial
may direct for an offense may not exceed such limits as the President
may prescribe for that offense.
(b) S
ENTENCE MINIMUMS FOR CERTAIN OFFENSES.—(1) Except as
provided in subsection (c) of section 853a of this title (article 53a),
punishment for any offense specified in paragraph (2) shall include
dismissal or dishonorable discharge, as applicable.
(2) The offenses referred to in paragraph (1) are as follows:
(A) Rape under subsection (a) of section 920 of this title (article
120).
(B) Sexual assault under subsection (b) of such section
(article).
(C) Rape of a child under subsection (a) of section 920b of this
title (article 120b).
(D) Sexual assault of a child under subsection (b) of such
section (article).
(E) An attempt to commit an offense specified in subparagraph
(A), (B), (C), or (D) that is punishable under section 880 of this title
(article 80).
(F) Conspiracy to commit an offense specified in subparagraph
(A), (B), (C), or (D) that is punishable under section 881 of this title
(article 81).
(c) I
MPOSITION OF SENTENCE.—
(1) I
N GENERAL.—In sentencing an accused under section 853 of
this title (article 53), a court-martial shall impose punishment that is
sufficient, but not greater than necessary, to promote justice and to
maintain good order and discipline in the armed forces, taking into
consideration—
(A) the nature and circumstances of the offense and the history
and characteristics of the accused;
(B) the impact of the offense on—
(i) the financial, social, psychological, or medical well-
being of any victim of the offense; and
(ii) the mission, discipline, or efficiency of the command of
the accused and any victim of the offense;
(C) the need for the sentence—
(i) to reflect the seriousness of the offense;
(ii) to promote respect for the law;
(iii) to provide just punishment for the offense;
(iv) to promote adequate deterrence of misconduct;
(v) to protect others from further crimes by the accused;
(vi) to rehabilitate the accused; and
(vii) to provide, in appropriate cases, the opportunity for
retraining and return to duty to meet the needs of the service;
(D) the sentences available under this chapter; and
(E) the applicable sentencing parameters or sentencing criteria
set forth in regulations prescribed by the President pursuant to
section 539E(e) of the National Defense Authorization Act for Fiscal
Year 2022.
(2) A
PPLICATION OF SENTENCING PARAMETERS IN GENERAL AND
SPECIAL COURTS
-MARTIAL.—
(A) R
EQUIREMENT TO SENTENCE WITHIN PARAMETERS.—
Except as provided in subparagraph (B), in a general or special court-
martial in which the accused is convicted of an offense for which the
President has established a sentencing parameter pursuant to section
539E(e) of the National Defense Authorization Act for Fiscal Year
2022, the military judge shall sentence the accused for that offense
within the applicable parameter.
(B)
EXCEPTION.—The military judge may impose a sentence
outside a sentencing parameter upon finding specific facts that
warrant such a sentence. If the military judge imposes a sentence
outside a sentencing parameter under this subparagraph, the military
judge shall include in the record a written statement of the factual
basis for the sentence.
(3) U
SE OF SENTENCING CRITERIA IN GENERAL AND SPECIAL
COURTS
-MARTIAL.—In a general or special court-martial in which
the accused is convicted of an offense for which the President has
established sentencing criteria pursuant to section 539E(e) of the
National Defense Authorization Act for Fiscal Year 2022, the
military judge shall consider the applicable sentencing criteria in
determining the sentence for that offense.
(4) O
FFENSE-BASED SENTENCING IN GENERAL AND SPECIAL
COURTS MARTIAL
.—In announcing the sentence under section 853
of this title (article 53) in a general or special court-martial, the
military judge shall, with respect to each offense of which the
accused is found guilty, specify the term of confinement, if any, and
the amount of the fine, if any. If the accused is sentenced to
confinement for more than one offense, the military judge shall
specify whether the terms of confinement are to run consecutively or
concurrently.
(5) I
NAPPLICABILITY TO DEATH PENALTY.—Sentencing
parameters and sentencing criteria shall not apply to a determination
of whether an offense should be punished by death.
(6) S
ENTENCE OF CONFINEMENT FOR LIFE WITHOUT
ELIGIBILITY FOR PAROLE
.—
(A) I
N GENERAL.—If an offense is subject to a sentence of
confinement for life, a court-martial may impose a sentence of
confinement for life without eligibility for parole.
(B) T
ERM OF CONFINEMENT.—An accused who is sentenced
to confinement for life without eligibility for parole shall be confined
for the remainder of the accused’s life unless—
(i) the sentence is set aside or otherwise modified as a
result of—
(I) action taken by the convening authority or the
Secretary concerned; or
(II) any other action taken during post-trial procedure
or review under any other provision of subchapter IX
of this chapter;
(ii) the sentence is set aside or otherwise modified as a
result of action taken by a court of competent jurisdiction;
or
(iii) the accused receives a pardon or another form of
Executive clemency.
(d) A
PPEAL OF SENTENCE BY THE UNITED STATES.—
(1) With the approval of the Judge Advocate General concerned,
and consistent with standards and procedures set forth in regulations
prescribed by the President, the Government may appeal a sentence
to the Court of Criminal Appeals, on the grounds that—
(A) the sentence violates the law;
(B) in the case of a sentence for an offense for which the
President has established a sentencing parameter pursuant to section
539E(e) of the National Defense Authorization Act for Fiscal Year
2022, the sentence is a result of an incorrect application of the
parameter; or
APPENDIX 2
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(C) the sentence is plainly unreasonable.
(2) An appeal under this subsection must be filed within 60 days
after the date on which the judgment of a court-martial is entered into
the record under section 860c of this title (article 60c).
§857. Art. 57. Effective date of sentences
(a) E
XECUTION OF SENTENCES.—A court-martial sentence shall be
executed and take effect as follows:
(1) F
ORFEITURE AND REDUCTION.—A forfeiture of pay or
allowances shall be applicable to pay and allowances accruing on
and after the date on which the sentence takes effect. Any forfeiture
of pay or allowances or reduction in grade that is included in a
sentence of a court-martial takes effect on the earlier of—
(A) the date that is 14 days after the date on which the sentence
is adjudged; or
(B) in the case of a summary court-martial, the date on which
the sentence is approved by the convening authority.
(2) C
ONFINEMENT.—Any period of confinement included in a
sentence of a court-martial begins to run from the date the sentence
is adjudged by the court-martial, but periods during which the
sentence to confinement is suspended or deferred shall be excluded
in computing the service of the term of confinement.
(3) A
PPROVAL OF SENTENCE OF DEATH.—If the sentence of the
court-martial extends to death, that part of the sentence providing for
death may not be executed until approved by the President. In such
a case, the President may commute, remit, or suspend the sentence,
or any part thereof, as the President sees fit. That part of the sentence
providing for death may not be suspended.
(4) A
PPROVAL OF DISMISSAL.—If in the case of a commissioned
officer, cadet, or midshipman, the sentence of a court-martial extends
to dismissal, that part of the sentence providing for dismissal may
not be executed until approved by the Secretary concerned or such
Under Secretary or Assistant Secretary as may be designated by the
Secretary concerned. In such a case, the Secretary, Under Secretary,
or Assistant Secretary, as the case may be, may commute, remit, or
suspend the sentence, or any part of the sentence, as the Secretary
sees fit. In time of war or national emergency he may commute a
sentence of dismissal to reduction to any enlisted grade. A person so
reduced may be required to serve for the duration of the war or
emergency and six months thereafter.
(5) C
OMPLETION OF APPELLATE REVIEW.—If a sentence extends
to death, dismissal, or a dishonorable or bad-conduct discharge, that
part of the sentence extending to death, dismissal, or a dishonorable
or bad-conduct discharge may be executed, in accordance with
service regulations, after completion of appellate review (and, with
respect to death or dismissal, approval under paragraph (3) or (4), as
appropriate).
(6) O
THER SENTENCES.—Except as otherwise provided in this
subsection, a general or special court-martial sentence is effective
upon entry of judgment and a summary court-martial sentence is
effective when the convening authority acts on the sentence.
(b) D
EFERRAL OF SENTENCES.—
(1) I
N GENERAL.—On application by an accused, the convening
authority or, if the accused is no longer under his or her jurisdiction,
the officer exercising general court-martial jurisdiction over the
command to which the accused is currently assigned, may, in his or
her sole discretion, defer the effective date of a sentence of
confinement, reduction, or forfeiture. The deferment shall terminate
upon entry of judgment or, in the case of a summary court-martial,
when the convening authority acts on the sentence. The deferment
may be rescinded at any time by the officer who granted it or, if the
accused is no longer under his jurisdiction, by the officer exercising
general court-martial jurisdiction over the command to which the
accused is currently assigned.
(2) D
EFERRAL OF CERTAIN PERSONS SENTENCED TO
CONFINEMENT
.—In any case in which a court-martial sentences a
person referred to in paragraph (3) to confinement, the convening
authority may defer the service of the sentence to confinement,
without the consent of that person, until after the person has been
permanently released to the armed forces by a State or foreign
country referred to in that paragraph.
(3) C
OVERED PERSONS.—Paragraph (2) applies to a person
subject to this chapter who—
(A) while in the custody of a State or foreign country is
temporarily returned by that State or foreign country to the armed
forces for trial by court-martial; and
(B) after the court-martial, is returned to that State or foreign
country under the authority of a mutual agreement or treaty, as the
case may be.
(4) S
TATE DEFINED.—In this subsection, the term “State” includes
the District of Columbia and any Commonwealth, territory, or
possession of the United States.
(5) D
EFERRAL WHILE REVIEW PENDING.—In any case in which a
court-martial sentences a person to confinement, but in which review
of the case under section 867(a)(2)
of this title (article 67(a)(2)) is
pending, the Secretary concerned may defer further service of the
sentence to confinement while that review is pending.
(c) APPELLATE REVIEW.—
(1) C
OMPLETION OF APPELLATE REVIEW.—Appellate review is
complete under this section when—
(A) a review under section 865 of this title (article 65) is
completed; or
(B) a review under section 866 of this title (article 66) is
completed by a Court of Criminal Appeals and—
(i) the time for the accused to file a petition for review by
the Court of Appeals for the Armed Forces has expired and the
accused has not filed a timely petition for such review and the case
is not otherwise under review by that Court;
(ii) such a petition is rejected by the Court of Appeals for
the Armed Forces; or
(iii) review is completed in accordance with the judgment of
the Court of Appeals for the Armed Forces and—
(I) a petition for a writ of certiorari is not filed within the
time limits prescribed by the Supreme Court;
(II) such a petition is rejected by the Supreme Court; or
(III) review is otherwise completed in accordance with
the judgment of the Supreme Court.
(2) C
OMPLETION AS FINAL JUDGMENT OF LEGALITY OF
PROCEEDINGS
.—The completion of appellate review shall constitute
a final judgment as to the legality of the proceedings.
§858. Art. 58. Execution of confinement
(a) Under such instructions as the Secretary concerned may
prescribe, a sentence of confinement adjudged by a court-martial or
other military tribunal, whether or not the sentence includes
discharge or dismissal, and whether or not the discharge or dismissal
has been executed, may be carried into execution by confinement in
any place of confinement under the control of any of the armed
UNIFORM CODE OF MILITARY JUSTICE
A2-25
forces or in any penal or correctional institution under the control of
the United States, or which the United States may be allowed to use.
Persons so confined in a penal or correctional institution not under
the control of one of the armed forces are subject to the same
discipline and treatment as persons confined or committed by the
courts of the United States or of the State, District of Columbia, or
place in which the institution is situated.
(b) The omission of the words “hard labor” from any sentence of a
court-martial adjudging confinement does not deprive the authority
executing that sentence of the power to require hard labor as a part
of the punishment.
§858a. Art. 58a. Sentences: reduction in enlisted
grade
(a) A court-martial sentence of an enlisted member in a pay grade
above E–1, as set forth in the judgment of the court-martial entered
into the record under section 860c of this title (article 60c), that
includes—
(1) a dishonorable or bad-conduct discharge;
(2) confinement; or
(3) hard labor without confinement;
reduces that member to pay grade E–1, if such reduction is
authorized by regulation prescribed by the President. The reduction
in pay grade shall take effect on the date on which the judgment is
so entered.
(b) If the sentence of a member who is reduced in pay grade under
subsection (a) is set aside or reduced, or, as finally affirmed, does not
include any punishment named in subsection (a)(1), (2), or (3), the
rights and privileges of which he was deprived because of that
reduction shall be restored to him and he is entitled to the pay and
allowances to which he would have been entitled, for the period the
reduction was in effect, had he not been so reduced.
§858b. Art. 58b. Sentences: forfeiture of pay and
allowances during confinement
(a)(1) A court-martial sentence described in paragraph (2) shall
result in the forfeiture of pay, or of pay and allowances, due that
member during any period of confinement or parole. The forfeiture
pursuant to this section shall take effect on the date determined under
section 857 of this title (article 57) and may be deferred as provided
in that section. The pay and allowances forfeited, in the case of a
general court-martial, shall be all pay and allowances due that
member during such period and, in the case of a special court-
martial, shall be two-thirds of all pay due that member during such
period.
(2) A sentence covered by this section is any sentence that
includes—
(A) confinement for more than six months or death; or
(B) confinement for six months or less and a dishonorable or
bad-conduct discharge or dismissal.
(b) In a case involving an accused who has dependents, the
convening authority or other person acting under section 860a or
860b of this title (article 60a or 60b) may waive any or all of the
forfeitures of pay and allowances required by subsection (a) for a
period not to exceed six months. Any amount of pay or allowances
that, except for a waiver under this subsection, would be forfeited
shall be paid, as the convening authority or other person taking action
directs, to the dependents of the accused.
(c) If the sentence of a member who forfeits pay and allowances
under subsection (a) is set aside or disapproved or, as finally
approved, does not provide for a punishment referred to in
subsection (a)(2), the member shall be paid the pay and allowances
which the member would have been paid, except for the forfeiture,
for the period during which the forfeiture was in effect.
SUBCHAPTER IX. POST-TRIAL PROCEDURE
AND REVIEW OF COURTS-MARTIAL
Sec.
859.
Art.
59.
Error of law; lesser included offense.
860.
60.
Post-trial processing in general and special
courts-martial.
860a.
60a
Limited authority to act on sentence in specified
post-trial circumstances.
860b.
60b
Post-trial actions in summary courts-martial and
certain general and special courts-martial.
860c.
60c
Entry of judgment.
81.
61.
Waiver of rights to appeal; withdrawal of appeal.
862.
62.
Appeal by the United States.
863.
63.
Rehearings.
864.
64.
Judge advocate review of finding of guilty in
summary court-martial.
865.
65.
Transmittal and review of records.
866.
66.
Courts of Criminal Appeals.
867.
67.
Review by the Court of Appeals for the Armed
Forces.
867a.
67a
Review by Supreme Court.
868.
68.
Branch offices.
869.
69.
Review by Judge Advocate General.
870.
70.
Appellate counsel.
871.
71.
[Repealed.]
872.
72.
Vacation of suspension.
873.
73.
Petition for a new trial.
874.
74.
Remission and suspension.
875.
75.
Restoration.
876
76.
Finality of proceedings, findings, and sentences.
876a.
76a
Leave required to be taken pending review of certain
court-martial convictions.
876b.
76b
Lack of mental capacity or mental responsibility:
commitment of accused for examination and
treatment.
§859. Art. 59. Error of law; lesser included offense
(a) A finding or sentence of a court-martial may not be held incorrect
on the ground of an error of law unless the error materially prejudices
the substantial rights of the accused.
(b) Any reviewing authority with the power to approve or affirm a
finding of guilty may approve or affirm, instead, so much of the
finding as includes a lesser included offense.
§860. Art. 60. Post-trial processing in general and
special courts-martial
(a) STATEMENT OF TRIAL RESULTS.—
(1) The military judge of a general or special court-martial shall
enter into the record of trial a document entitled “Statement of Trial
Results”, which shall set forth—
(A) each plea and finding;
APPENDIX 2
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(B) the sentence, if any; and
(C) such other information as the President may prescribe by
regulation.
(2) Copies of the Statement of Trial Results shall be provided
promptly to the convening authority, the accused, and any victim of
the offense.
(b) P
OST-TRIAL MOTIONS.—In accordance with regulations
prescribed by the President, the military judge in a general or special
court-martial shall address all post-trial motions and other post-trial
matters that—
(1) may affect a plea, a finding, the sentence, the Statement of
Trial Results, the record of trial, or any post-trial action by the
convening authority; and
(2) are subject to resolution by the military judge before entry of
judgment.
§860a. Art. 60a. Limited authority to act on
sentence in specified post-trial circumstances
(a) IN GENERAL.—
(1)
The convening authority of a general or special court-martial
described in paragraph (2)—
(A) may act on the sentence of the court-martial only as
provided in subsection (b), (c), or (d); and
(B) may not act on the findings of the court-martial.
(2) The courts-martial referred to in paragraph (1) are the
following:
(A) A general or special court-martial in which the maximum
sentence of confinement established under subsection (a) of section
856 of this title (article 56) for any offense of which the accused is
found guilty is more than two years.
(B) A general or special court-martial in which the total of the
sentences of confinement imposed, running consecutively, is more
than six months.
(C) A general or special court-martial in which the sentence
imposed includes a dismissal, dishonorable discharge, or bad-
conduct discharge.
(D) A general or special court-martial in which the accused is
found guilty of a violation of subsection (a) or (b) of section 920 of
this title (article 120), section 920b of this title (article 120b), or such
other offense as the Secretary of Defense may specify by regulation.
(3) Except as provided in subsection (d), the convening authority
may act under this section only before entry of judgment.
(4) Under regulations prescribed by the Secretary concerned, a
commissioned officer commanding for the time being, a successor
in command, or any person exercising general court-martial
jurisdiction may act under this section in place of the convening
authority.
(b) R
EDUCTION, COMMUTATION, AND SUSPENSION OF SENTENCES
GENERALLY.—
(1) Except as provided in subsection (c) or (d), the convening
authority may not reduce, commute, or suspend any of the following
sentences:
(A) A sentence of confinement, if the total period of
confinement imposed for all offenses involved, running
consecutively, is greater than six months.
(B) A sentence of dismissal, dishonorable discharge, or bad-
conduct discharge.
(C) A sentence of death.
(2) The convening authority may reduce, commute, or suspend
any sentence not specified in paragraph (1).
(c) S
USPENSION OF CERTAIN SENTENCES UPON RECOMMENDATION
OF
MILITARY JUDGE.—
(1)
Upon recommendation of the military judge, as included in the
Statement of Trial Results, together with an explanation of the facts
supporting the recommendation, the convening authority may
suspend—
(A) a sentence of confinement, in whole or in part; or
(B) a sentence of dismissal, dishonorable discharge, or bad-
conduct discharge.
(2) The convening authority may not, under paragraph (1)—
(A) suspend a mandatory minimum sentence; or
(B) suspend a sentence to an extent in excess of the suspension
recommended by the military judge.
(d) R
EDUCTION OF SENTENCE FOR SUBSTANTIAL ASSISTANCE BY
ACCUSED.—
(1)
Upon a recommendation by the trial counsel, if the accused,
after sentencing and before entry of judgment, provides substantial
assistance in the investigation or prosecution of another person, the
convening authority may reduce, commute, or suspend a sentence,
in whole or in part, including any mandatory minimum sentence.
(2) Upon a recommendation by a trial counsel, designated in
accordance with rules prescribed by the President, if the accused,
after entry of judgment, provides substantial assistance in the
investigation or prosecution of another person, a convening
authority, designated under such regulations, may reduce, commute,
or suspend a sentence, in whole or in part, including any mandatory
minimum sentence.
(3) In evaluating whether the accused has provided substantial
assistance under this subsection, the convening authority may
consider the presentence assistance of the accused.
(e) S
UBMISSIONS BY ACCUSED AND VICTIM.—
(1)
In accordance with rules prescribed by the President, in
determining whether to act under this section, the convening
authority shall consider matters submitted in writing by the accused
or any victim of an offense. Such rules shall include—
(A) procedures for notice of the opportunity to make such
submissions;
(B) the deadlines for such submissions; and
(C) procedures for providing the accused and any victim of an
offense with a copy of the recording of any open sessions of the
court-martial and copies of, or access to, any admitted, unsealed
exhibits.
(2) The convening authority shall not consider under this section
any submitted matters that relate to the character of a victim unless
such matters were presented as evidence at trial and not excluded at
trial.
(f) D
ECISION OF CONVENING AUTHORITY.—
(1)
The decision of the convening authority under this section
shall be
forwarded to the military judge, with copies provided to the
accused and to any victim of the offense.
(2) If, under this section, the convening authority reduces,
commutes, or suspends the sentence, the decision of the convening
authority shall include a written explanation of the reasons for such
action.
UNIFORM CODE OF MILITARY JUSTICE
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(3) If, under subsection (d)(2), the convening authority reduces,
commutes, or suspends the sentence, the decision of the convening
authority shall be forwarded to the chief trial judge for appropriate
modification of the entry of judgment, which shall be transmitted to
the Judge Advocate General for appropriate action.
§860b. Art. 60b. Post-trial actions in summary
courts-martial and certain general and special
courts-martial
(a) IN GENERAL.—
(1)
In a court-martial not specified in section 860a(a)(2) of this
title (article 60a(a)(2)), the convening authority may—
(A) dismiss any charge or specification by setting aside the
finding of guilty;
(B) change a finding of guilty to a charge or specification to a
finding of guilty to a lesser included offense;
(C) disapprove the findings and the sentence and dismiss the
charges and specifications;
(D) disapprove the findings and the sentence and order a
rehearing as to the findings and the sentence;
(E) disapprove, commute, or suspend the sentence, in whole or
in part; or
(F) disapprove the sentence and order a rehearing as to the
sentence.
(2)
In a summary court-martial, the convening authority shall
approve the sentence or take other action on the sentence under
paragraph (1).
(3)
Except as provided in paragraph (4), the convening authority
may act under this section only before entry of judgment.
(4) The convening authority may act under this section after entry
of judgment in a general or special court-martial in the same manner
as the convening authority may act under section 860a(d)(2) of this
title (article 60a(d)(2)). Such action shall be forwarded to the chief
trial judge, who shall ensure appropriate modification to the entry of
judgment and shall transmit the entry of judgment to the Judge
Advocate General for appropriate action.
(5) Under regulations prescribed by the Secretary concerned, a
commissioned officer commanding for the time being, a successor
in command, or any person exercising general court-martial
jurisdiction may act under this section in place of the convening
authority.
(b)
LIMITATIONS ON REHEARINGS.—The convening authority may
not order a rehearing under this section—
(1) as to the findings, if there is insufficient evidence in the record
to support the findings;
(2) to reconsider a finding of not guilty of any specification or a
ruling which amounts to a finding of not guilty; or
(3) to reconsider a finding of not guilty of any charge, unless there
has been a finding of guilty under a specification laid under that
charge, which sufficiently alleges a violation of some article of this
chapter.
(c) S
UBMISSIONS BY ACCUSED AND VICTIM.—In accordance with
rules prescribed by the President, in determining whether to act
under this section, the convening authority shall consider matters
submitted in writing by the accused or any victim of the offense.
Such rules shall include the matter required by section 860a(e) of this
title (article 60a(e)).
(d) D
ECISION OF CONVENING AUTHORITY.—
(1)
In a general or special court-martial, the decision of the
convening authority under this section shall be forwarded to the
military judge, with copies provided to the accused and to any victim
of the offense.
(2) If the convening authority acts on the findings or the sentence
under subsection (a)(1), the decision of the convening authority shall
include a written explanation of the reasons for such action.
§860c. Art 60c. Entry of judgment
(a) ENTRY OF JUDGMENT OF GENERAL OR SPECIAL COURT-
M
ARTIAL.—
(1)
In accordance with rules prescribed by the President, in a
general or special court-martial, the military judge shall enter into
the record of trial the judgment of the court. The judgment of the
court shall consist of the following:
(A) The Statement of Trial Results under section 860 of this
title (article 60).
(B) Any modifications of, or supplements to, the Statement of
Trial Results by reason of—
(i) any post-trial action by the convening authority; or
(ii) any ruling, order, or other determination of the military
judge that affects a plea, a finding, or the sentence.
(2) Under rules prescribed by the President, the judgment under
paragraph (1) shall be—
(A) provided to the accused and to any victim of the offense;
and
(B) made available to the public.
(b) S
UMMARY COURT-MARTIAL JUDGMENT.—The findings and
sentence of a summary court-martial, as modified by any post-trial
action by the convening authority under section 860b of this title
(article 60b), constitutes the judgment of the court-martial and shall
be recorded and distributed under rules prescribed by the President.
§861. Art. 61. Waiver of right to appeal; withdrawal
of appeal
(a) WAIVER OF RIGHT TO APPEAL.—After entry of judgment in a
general or special court-martial, under procedures prescribed by the
Secretary concerned, the accused may waive the right to appellate
review in each case subject to such review under section 866 of this
title (article 66). Such a waiver shall be—
(1) signed by the accused and by defense counsel; and
(2) attached to the record of trial.
(b) W
ITHDRAWAL OF APPEAL.—In a general or special court-
martial, the accused may withdraw an appeal at any time.
(c) D
EATH PENALTY CASE EXCEPTION.—Notwithstanding
subsections (a) and (b), an accused may not waive the right to appeal
or withdraw an appeal with respect to a judgment that includes a
sentence of death.
(d) W
AIVER OR WITHDRAWAL AS BAR.—Except as provided by
section 869(c)(2) of this title (article 69(c)(2)), a waiver or
withdrawal under this section bars review under section 866 of this
title (article 66).
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§862. Art. 62. Appeal by the United States
(a)(1) In a trial by general or special court-martial, or in a pretrial
proceeding under section 830a of this title (article 30a), the United
States may appeal the following:
(A) An order or ruling of the military judge which terminates
the proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that is
substantial proof of a fact material in the proceeding.
(C) An order or ruling which directs the disclosure of classified
information.
(D) An order or ruling which imposes sanctions for
nondisclosure of classified information.
(E) A refusal of the military judge to issue a protective order
sought by the United States to prevent the disclosure of classified
information.
(F) A refusal by the military judge to enforce an order
described in subparagraph (E) that has previously been issued by
appropriate authority.
(G) An order or ruling of the military judge entering a finding
of not guilty with respect to a charge or specification following the
return of a finding of guilty by the members.
(2)(A) An appeal of an order or ruling may not be taken unless the
trial counsel provides the military judge with written notice of appeal
from the order or ruling within 72 hours of the order or ruling. Such
notice shall include a certification by the trial counsel that the appeal
is not taken for the purpose of delay and (if the order or ruling
appealed is one which excludes evidence) that the evidence excluded
is substantial proof of a fact material in the proceeding.
(B) An appeal of an order or ruling may not be taken when
prohibited by section 844 of this title (article 44).
(3) An appeal under this section shall be diligently prosecuted by
appellate Government counsel.
(b) An appeal under this section shall be forwarded by a means
prescribed under regulations of the President directly to the Court of
Criminal Appeals and shall, whenever practicable, have priority over
all other proceedings before that court. In ruling on an appeal under
this section, the Court of Criminal Appeals may act only with respect
to matters of law.
(c) Any period of delay resulting from an appeal under this section
shall be excluded in deciding any issue regarding denial of a speedy
trial unless an appropriate authority determines that the appeal was
filed solely for the purpose of delay with the knowledge that it was
totally frivolous and without merit.
(d) The United States may appeal a ruling or order of a military
magistrate in the same manner as had the ruling or order been made
by a military judge, except that the issue shall first be presented to
the military judge who designated the military magistrate or to a
military judge detailed to hear the issue.
(e) The provisions of this article shall be liberally construed to effect
its purposes.
§863. Art. 63. Rehearings
(a) Each rehearing under this chapter shall take place before a court-
martial composed of members not members of the court-martial
which first heard the case. Upon a rehearing the accused may not be
tried for any offense of which he was found not guilty by the first
court-martial, and no sentence in excess of or more severe than the
original sentence may be adjudged, unless the sentence is based upon
a finding of guilty of an offense not considered upon the merits in
the original proceedings, or unless the sentence prescribed for the
offense is mandatory.
(b) If the sentence adjudged by the first court-martial was in
accordance with a plea agreement under section 853a of this title
(article 53a) and the accused at the rehearing does not comply with
the agreement, or if a plea of guilty was entered for an offense at the
first court-martial and a plea of not guilty was entered at the
rehearing, the sentence as to those charges or specifications may
include any punishment not in excess of that which could have been
adjudged at the first court-martial, subject to limitations as the
President may prescribe by regulation.
(c) If, after appeal by the Government under section 856(d) of this
title (article 56(d)), the sentence adjudged is set aside and a rehearing
on sentence is ordered by the Court of Criminal Appeals or Court of
Appeals for the Armed Forces, the court-martial may impose any
sentence that is in accordance with the order or ruling setting aside
the adjudged sentence, subject to such limitations as the President
may prescribe by regulation.
§864. Art. 64. Judge advocate review of finding of
guilty in summary court-martial
(a) IN GENERAL.—Under regulations prescribed by the Secretary
concerned, each summary court-martial in which there is a finding
of guilty shall be reviewed by a judge advocate. A judge advocate
may not review a case under this subsection if the judge advocate has
acted in the same case as an accuser, preliminary hearing officer,
member of the court, military judge, or counsel or has otherwise
acted on behalf of the prosecution or defense. The judge advocate's
review shall be in writing and shall contain the following:
(1) Conclusions as to whether—
(A) the court had jurisdiction over the accused and the offense;
(B) the charge and specification stated an offense; and
(C) the sentence was within the limits prescribed as a matter of
law.
(2) A response to each allegation of error made in writing by the
accused.
(3) If the case is sent for action under subsection (b), a
recommendation as to the appropriate action to be taken and an
opinion as to whether corrective action is required as a matter of law.
(b) R
ECORD.—The record of trial and related documents in each case
reviewed under subsection (a) shall be sent for action to the person
exercising general court-martial jurisdiction over the accused at the
time the court was convened (or to that person’s successor in
command) if—
(1) the judge advocate who reviewed the case recommends
corrective action; or
(2) such action is otherwise required by regulations of the
Secretary concerned.
(c)(1) The person to whom the record of trial and related documents
are sent under subsection (b) may—
(A) disapprove or approve the findings or sentence, in whole
or in part;
(B) remit, commute, or suspend the sentence in whole or in
part;
(C) except where the evidence was insufficient at the trial to
support the findings, order a rehearing on the findings, on the
sentence, or on both; or
UNIFORM CODE OF MILITARY JUSTICE
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(D) dismiss the charges.
(2) If a rehearing is ordered but the convening authority finds a
rehearing impracticable, he shall dismiss the charges.
(3) If the opinion of the judge advocate in the judge advocate’s
review under subsection (a) is that corrective action is required as a
matter of law and if the person required to take action under
subsection (b) does not take action that is at least as favorable to the
accused as that recommended by the judge advocate, the record of
trial and action thereon shall be sent to the Judge Advocate General
for review under section 869 of this title (article 69).
§865. Art. 65. Transmittal and review of records
(a) TRANSMITTAL OF RECORDS.—
(1) F
INDING OF GUILTY IN GENERAL OR SPECIAL COURT-
MARTIAL.—If the judgment of a general or special court-martial
entered under section 860c of this title (article 60c) includes a finding
of guilty, the record shall be transmitted to the Judge Advocate
General.
(2) O
THER CASES.—In all other cases, records of trial by court-
martial and related documents shall be transmitted and disposed of
as the Secretary concerned may prescribe by regulation.
(b) C
ASES FOR DIRECT APPEAL.—
(1) A
UTOMATIC REVIEW.—If the judgment includes a sentence of
death, dismissal of a commissioned officer, cadet, or midshipman,
dishonorable discharge or bad-conduct discharge, or confinement for
2 years or more, the Judge Advocate General shall forward the record
of trial to the Court of Criminal Appeals for review under section
866(b)(3) of this title (article 66(b)(3)).
(2) C
ASES ELIGIBLE FOR DIRECT APPEAL REVIEW.—
(A) I
N GENERAL.—If the case is eligible for direct review under
section 866(b)(1) of this title (article 66(b)(1)), the Judge Advocate
General shall—
(i) forward a copy of the record of trial to an appellate
defense counsel who shall be detailed to review the case and, upon
request of the accused, to represent the accused before the Court of
Criminal Appeals; and
(ii) upon written request of the accused, forward a copy of
the record of trial to civilian counsel provided by the accused.
(B) I
NAPPLICABILITY.—Subparagraph (A) shall not apply if
the accused—
(i) waives the right to appeal under section 861 of this title
(article 61); or
(ii) declines in writing the detailing of appellate defense
counsel under subparagraph (A)(i).
(c) N
OTICE OF RIGHT TO APPEAL.—
(1) I
N GENERAL.—The Judge Advocate General shall provide
notice to the accused of the right to file an appeal under section
866(b)(1) of this title (article 66(b)(1)) by means of depositing in the
United States mails for delivery by first class certified mail to the
accused at an address provided by the accused or, if no such address
has been provided by the accused, at the latest address listed for the
accused in the official service record of the accused.
(2) I
NAPPLICABILITY UPON WAIVER OF APPEAL.—Paragraph (1)
shall not apply if the accused waives the right to appeal under section
861 of this title (article 61).
(d) R
EVIEW BY JUDGE ADVOCATE GENERAL.—
(1) B
Y WHOM.—A review conducted under this subsection may
be conducted by an attorney within the Office of the Judge Advocate
General or another attorney designated under regulations prescribed
by the Secretary concerned.
(2) R
EVIEW OF CASES NOT ELIGIBLE FOR DIRECT APPEAL.—
(A) I
N GENERAL.—A review under subparagraph (B) shall be
completed in each general and special court-martial that is not
eligible for direct appeal under paragraph (1) or (3) of section 866(b)
of this title (article 66(b)).
(B) S
COPE OF REVIEW.—A review referred to in subparagraph
(A) shall include a written decision providing each of the following:
(i) A conclusion as to whether the court had jurisdiction over
the accused and the offense.
(ii) A conclusion as to whether the charge and specification
stated an offense.
(iii) A conclusion as to whether the sentence was within the
limits prescribed as a matter of law.
(iv) A response to each allegation of error made in writing
by the accused.
(3) R
EVIEW WHEN DIRECT APPEAL IS WAIVED, WITHDRAWN, OR
NOT FILED
.—
(A) I
N GENERAL.—A review under subparagraph (B) shall be
completed in each general and special court-martial if—
(i) the accused waives the right to appeal or withdraws
appeal under section 861 of this title (article 61); or
(ii) the accused does not file a timely appeal in a case
eligible for direct appeal under subparagraph (A), (B), or (C) of
section 866(b)(1) of this title (article 66(b)(1)).
(B) S
COPE OF REVIEW.—A review referred to in subparagraph
(A) shall include a written decision limited to providing conclusions
on the matters specified in clauses (i), (ii), and (iii) of paragraph
(2)(B).
(e) R
EMEDY.—
(1) I
N GENERAL.—If after a review of a record under subsection
(d), the attorney conducting the review believes corrective action
may be required, the record shall be forwarded to the Judge Advocate
General, who may set aside the findings or sentence, in whole or in
part.
(2) R
EHEARING.—In setting aside findings or sentence, the Judge
Advocate General may order a rehearing, except that a rehearing may
not be ordered in violation of section 844 of this title (article 44).
(3) R
EMEDY WITHOUT REHEARING.—
(A) D
ISMISSAL WHEN NO REHEARING ORDERED.—If the Judge
Advocate General sets aside findings and sentence and does not
order a rehearing, the Judge Advocate General shall dismiss the
charges.
(B) D
ISMISSAL WHEN REHEARING IMPRACTICABLE.—
(i) IN GENERAL.—Subject to clause (ii), if the Judge
Advocate General sets aside findings and orders a rehearing and the
convening authority determines that a rehearing would be
impracticable, the convening authority shall dismiss the charges.
(ii) C
ASES REFERRED BY SPECIAL TRIAL COUNSEL.—If a
case was referred to trial by a special trial counsel, a special trial
counsel shall determine if a rehearing is impracticable and shall
dismiss the charges if the special trial counsel so determines.
§866. Art. 66. Courts of Criminal Appeals
(a) COURTS OF CRIMINAL APPEALS.—
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(1) IN GENERAL.— Each Judge Advocate General shall establish
a Court of Criminal Appeals which shall be composed of one or more
panels, and each such panel shall be composed of not less than three
appellate military judges. For the purpose of reviewing court-martial
cases, the court may sit in panels or as a whole in accordance with
rules prescribed under subsection (h). Any decision of a panel may
be reconsidered by the court sitting as a whole in accordance with
such rules. Appellate military judges who are assigned to a Court of
Criminal Appeals may be commissioned officers or civilians, each
of whom must be a member of a bar of a Federal court or of the
highest court of a State and must be certified by the Judge Advocate
General as qualified, by reason of education, training, experience,
and judicial temperament, for duty as an appellate military judge.
The Judge Advocate General shall designate as chief judge one of
the appellate military judges of the Court of Criminal Appeals
established by him. The chief judge shall determine on which panels
of the court the appellate judges assigned to the court will serve and
which military judge assigned to the court will act as the senior judge
on each panel. In accordance with regulations prescribed by the
President, assignments of appellate military judges under this section
(article) shall be for appropriate minimum periods, subject to such
exceptions as may be authorized in the regulations.
(2) A
DDITIONAL QUALIFICATIONS.—In addition to any other
qualifications specified in paragraph (1), any commissioned officer
or civilian assigned as an appellate military judge to a Court of
Criminal Appeals shall have not fewer than 12 years of experience
in the practice of law before such assignment.
(b) R
EVIEW.—
(1) A
PPEALS BY ACCUSED.—A Court of Criminal Appeals shall
have jurisdiction over—
(A) a timely appeal from the judgment of a court-martial,
entered into the record under section 860c(a) of this title (article
60c(a)), that includes a finding of guilty; and
(B) a summary court-martial case in which the accused filed an
application for review with the Court under section 869(d)(1) of this
title (article 69(d)(1)) and for which the application has been granted
by the Court.
(2)
REVIEW OF CERTAIN SENTENCES. —A Court of Criminal
Appeals shall have jurisdiction over all cases that the Judge
Advocate General orders sent to the Court for review under section
856(d) of this title (article 56(d)).
(3) A
UTOMATIC REVIEW. —A Court of Criminal Appeals shall
have jurisdiction over a court-martial in which the judgment entered
into the record under section 860(c) of this title (article 60c) includes
a sentence of death, dismissal of a commissioned officer, cadet, or
midshipman, dishonorable discharge or bad-conduct discharge, or
confinement for 2 years or more.
(c) T
IMELINESS.—An appeal under subsection (b)(1) is timely if—
(1) in the case of an appeal under subparagraph (A) of such
subsection, it is filed before the later of—
(A) the end of the 90-day period beginning on the date the
accused is provided notice of appellate rights under section 865(c) of
this title (article 65(c)); or
(B) the date set by the Court of Criminal Appeals by rule or
order; and
(2) in the case of an appeal under subparagraph (B) of such
subsection, an application for review with the Court is filed not later
than the earlier of the dates established under section 869(d)(2)(B)
of this title (article 69(d)(2)(B)).
(d) D
UTIES.—
(1) C
ASES APPEALED BY ACCUSED.—
(A) I
N GENERAL.—In any case before the Court of Criminal
Appeals under subsection (b), the Court may act only with respect to
the findings and sentence as entered into the record under section
860c of this title (article 60c). The Court may affirm only such
findings of guilty as the Court finds correct in law, and in fact in
accordance with subparagraph (B).
(B) F
ACTUAL SUFFICIENCY REVIEW.—
(i) In an appeal of a finding of guilty under subsection (b),
the Court may consider whether the finding is correct in fact upon
request of the accused if the accused makes a specific showing of a
deficiency in proof.
(ii) After an accused has made such a showing, the Court
may weigh the evidence and determine controverted
questions of fact subject to—
(I) appropriate deference to the fact that the trial court
saw and heard the witnesses and other evidence; and
(II) appropriate deference to findings of fact entered into
the record by the military judge.
(iii) If, as a result of the review conducted under clause (ii),
the Court is clearly convinced that the finding of guilty was
against the weight of the evidence, the Court may dismiss,
set aside, or modify the finding, or affirm a lesser finding.
(2) E
RROR OR EXCESSIVE DELAY.—In any case before the Court
of Criminal Appeals under subsection (b), the Court may provide
appropriate relief if the accused demonstrates error or excessive
delay in the processing of the court-martial after the judgment was
entered into the record under section 860c of this title (article 60c).
(e) C
ONSIDERATION OF SENTENCE.—
(1) I
N GENERAL.—In considering a sentence on appeal, other than
as provided in section 856(d) of this title (article 56(d)), the Court of
Criminal Appeals may consider—
(A) whether the sentence violates the law;
(B) whether the sentence is inappropriately severe—
(i) if the sentence is for an offense for which the President
has not established a sentencing parameter pursuant to section
539E(e) of the National Defense Authorization Act for Fiscal Year
2022; or
(ii) in the case of an offense for which the President has
established a sentencing parameter pursuant to section 539E(e) of the
National Defense Authorization Act for Fiscal Year 2022, if the
sentence is above the upper range of such sentencing parameter;
(C) in the case of a sentence for an offense for which the
President has established a sentencing parameter pursuant to section
539E(e) of the National Defense Authorization Act for Fiscal Year
2022, whether the sentence is a result of an incorrect application of
the parameter;
(D) whether the sentence is plainly unreasonable; and
(E) in review of a sentence to death or to life in prison without
eligibility for parole determined by the members in a capital case
under section 853(c) of this title (article 53(c)), whether the sentence
is otherwise appropriate, under rules prescribed by the President.
(2) R
ECORD ON APPEAL.—In an appeal under this subsection or
section 856(d) of this title (article 56(d)), other than review under
subsection (b)(2) of this section, the record on appeal shall consist
of—
(A) any portion of the record in the case that is designated as
pertinent by any party;
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A2-31
(B) the information submitted during the sentencing
proceeding; and
(C) any information required by rule or order of the Court of
Criminal Appeals.
(f) L
IMITS OF AUTHORITY.—
(1) S
ET ASIDE OF FINDINGS —
(A) I
N GENERAL—If the Court of Criminal Appeals sets aside
the findings, the Court—
(i) may affirm any lesser included offense; and
(ii) may, except when prohibited by section 844 of this title
(article 44), order a rehearing.
(B) D
ISMISSAL WHEN NO REHEARING ORDERED.—If the Court
of Criminal Appeals sets aside the findings and does not order a
rehearing, the Court shall order that the charges be dismissed.
(C) D
ISMISSAL WHEN REHEARING IMPRACTICABLE.—
(i) I
N GENERAL.—Subject to clause (ii), if the Court of
Criminal Appeals orders a rehearing on a charge and the
convening authority finds a rehearing impracticable, the
convening authority may dismiss the charge.
(ii)
CASES REFERRED BY SPECIAL TRIAL COUNSEL.—If a
case was referred to trial by a special trial counsel, a special
trial counsel shall determine if a rehearing is impracticable
and shall dismiss the charges if the special trial counsel so
determines.
(2) S
ET ASIDE OF SENTENCE.—If the Court of Criminal Appeals
sets aside the sentence, the Court may—
(A) modify the sentence to a lesser sentence; or
(B) order a rehearing.
(3) A
DDITIONAL PROCEEDINGS.—If the Court of Criminal
Appeals determines that additional proceedings are warranted, the
Court may order a hearing as may be necessary to address a
substantial issue, subject to such limitations as the Court may direct
and under such regulations as the president may prescribe. If the
Court of Appeals for the Armed Forces determines that additional
proceedings are warranted, the Court of Criminal Appeals shall order
a hearing or other proceeding in accordance with the direction of the
court of Appeals for the Armed Forces.
(g) A
CTION IN ACCORDANCE WITH DECISIONS OF COURTS.—The
Judge Advocate General shall, unless there is to be further action by
the President, the Secretary concerned, the Court of Appeals for the
Armed Forces, or the Supreme Court, instruct the appropriate
authority to take action in accordance with the decision of the Court
of Criminal Appeals.
(h) R
ULES OF PROCEDURE.—The Judge Advocates General shall
prescribe uniform rules of procedure for Courts of Criminal Appeals
and shall meet periodically to formulate policies and procedure in
regard to review of court-martial cases in the offices of the Judge
Advocates General and by Courts of Criminal Appeals.
(i) P
ROHIBITION ON EVALUATION OF OTHER MEMBERS OF
COURTS.—No member of a Court of Criminal Appeals shall be
required, or on his own initiative be permitted, to prepare, approve,
disapprove, review, or submit, with respect to any other member of
the same or another Court of Criminal Appeals, an effectiveness,
fitness, or efficiency report, or any other report or document used in
whole or in part for the purpose of determining whether a member of
the armed forces is qualified to be advanced in grade, or in
determining the assignment or transfer of a member of the armed
forces, or in determining whether a member of the armed forces
should be retained on active duty.
(j) I
NELIGIBILITY OF MEMBERS OF COURTS TO REVIEW RECORDS OF
CASES INVOLVING CERTAIN PRIOR MEMBER SERVICE
.—No member
of a Court of Criminal Appeals shall be eligible to review the record
of any trial if such member served as investigating officer in the case
or served as a member of the court-martial before which such trial
was conducted, or served as military judge, trial or defense counsel,
or reviewing officer of such trial.
§867. Art. 67. Review by the Court of Appeals for
the Armed Forces
(a) The Court of Appeals for the Armed Forces shall review the
record in—
(1) all cases in which the sentence, as affirmed by a Court of
Criminal Appeals, extends to death;
(2) all cases reviewed by a Court of Criminal Appeals which the
Judge Advocate General, after appropriate notification to the other
Judge Advocates General and the Staff Judge Advocate to the
Commandant of the Marine Corps, orders sent to the Court of
Appeals for the Armed Forces for review; and
(3) all cases reviewed by a Court of Criminal Appeals in which,
upon petition of the accused and on good cause shown, the Court of
Appeals for the Armed Forces has granted a review.
(b) The accused may petition the Court of Appeals for the Armed
Forces for review of a decision of a Court of Criminal Appeals within
60 days from the earlier of—
(1) the date on which the accused is notified of the decision of the
Court of Criminal Appeals; or
(2) the date on which a copy of the decision of the Court of
Criminal Appeals, after being served on appellate counsel of record
for the accused (if any), is deposited in the United States mails for
delivery by first-class certified mail to the accused at an address
provided by the accused or, if no such address has been provided by
the accused, at the latest address listed for the accused in his official
service record.
The Court of Appeals for the Armed Forces shall act upon such a
petition promptly in accordance with the rules of the court.
(c)(1) In any case reviewed by it, the Court of Appeals for the Armed
Forces may act only with respect to—
(A) the findings and sentence set forth in the entry of judgment,
as affirmed or set aside as incorrect in law by the Court of Criminal
Appeals;
(B) a decision, judgment, or order by a military judge, as
affirmed or set aside as incorrect in law by the Court of Criminal
Appeals; or
(C) the findings set forth in the entry of judgment, as affirmed,
dismissed, set aside, or modified by the Court of Criminal Appeals
as incorrect in fact under section 866(d)(1)(B) of this title (article
66(d)(1)(B)).
(2) In a case which the Judge Advocate General orders sent to the
Court of Appeals for the Armed Forces, that action need be taken
only with respect to the issues raised by him.
(3) In a case reviewed upon petition of the accused, that action
need be taken only with respect to issues specified in the grant of
review.
(4) The Court of Appeals for the Armed Forces shall take action
only with respect to matters of law.
(d) If the Court of Appeals for the Armed Forces sets aside the
findings and sentence, it may, except where the setting aside is based
APPENDIX 2
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on lack of sufficient evidence in the record to support the findings,
order a rehearing. If it sets aside the findings and sentence and does
not order a rehearing, it shall order that the charges be dismissed.
(e) After it has acted on a case, the Court of Appeals for the Armed
Forces may direct the Judge Advocate General to return the record
to the Court of Criminal Appeals for further review in accordance
with the decision of the court. Otherwise, unless there is to be further
action by the President or the Secretary concerned, the Judge
Advocate General shall instruct the convening authority to take
action in accordance with that decision. If the court has ordered a
rehearing, but the convening authority finds a rehearing
impracticable, he may dismiss the charges. Notwithstanding the
preceding sentence, if a case was referred to trial by a special trial
counsel, a special trial counsel shall determine if a rehearing is
impracticable and shall dismiss the charges if the special trial counsel
so determines.
§867a. Art. 67a. Review by the Supreme Court
(a) Decisions of the United States Court of Appeals for the Armed
Forces are subject to review by the Supreme Court by writ of
certiorari as provided in section 1259 of title 28. The Supreme Court
may not review by a writ of certiorari under this section any action
of the United States Court of Appeals for the Armed Forces in
refusing to grant a petition for review.
(b) The accused may petition the Supreme Court for a writ of
certiorari without prepayment of fees and costs or security therefor
and without filing the affidavit required by section 1915(a) of title
28.
§868. Art. 68. Branch offices
The Secretary concerned may direct the Judge Advocate General
to establish a branch office with any command. The branch office
shall be under an Assistant Judge Advocate General who, with the
consent of the Judge Advocate General, may establish a Court of
Criminal Appeals with one or more panels. That Assistant Judge
Advocate General and any Court of Criminal Appeals established by
him may perform for that command under the general supervision of
the Judge Advocate General, the respective duties which the Judge
Advocate General and a Court of Criminal Appeals established by
the Judge Advocate General would otherwise be required to perform
as to all cases involving sentences not requiring approval by the
President.
§869. Art. 69. Review by Judge Advocate General
(a) IN GENERAL.—Upon application by the accused or receipt of the
record pursuant to section 864(c)(3) of this title (article 64(c)(3)) and
subject to subsections (b), (c), and (d), the Judge Advocate General
may—
(1) with respect to a summary court-martial, modify or set aside,
in whole or in part, the findings and sentence; or
(2) with respect to a general or special court-martial, order such
court-martial to be reviewed under section 866 of this title (article
66).
(b) T
IMING.—
(1) To qualify for consideration, an application under subsection
(a) must be submitted to the Judge Advocate General not later
than—
(A) for a summary court-martial, one year after the date of
completion of review under section 864 of this title (article 64); or
(B) for a general or special court-martial, one year after the end
of the 90-day period beginning on the date the accused is provided
notice of appellate rights under section 865(c) of this title (article
865(c)), unless the accused submitted a waiver or withdrawal of
appellate review under section 861 of this title (article 61) before
being provided notice of appellate rights, in which case the
application must be submitted to the Judge Advocate General not
later than one year after the entry of judgment under section 860c of
this title (article 60c).
(2) The Judge Advocate General may, for good cause shown,
extend the period for submission of an application, except that—
(A) in the case of an application for review of a summary
court martial, the Judge Advocate may not consider an
application submitted more than three years after the
completion date referred to in paragraph (1)(A); and
(B) in case of an application for review of a general or
special court-martial, the Judge Advocate may not consider an
application submitted more than three years after the end of the
applicable period under paragraph (1)(B).
(c) S
COPE.—
(1)(A) In a case reviewed under section 864 of this title (article
64), the Judge Advocate General may set aside the findings or
sentence, in whole or in part, on the grounds of newly discovered
evidence, fraud on the court, lack of jurisdiction over the accused or
the offense, error prejudicial to the substantial rights of the accused,
or the appropriateness of the sentence.
(B) In setting aside findings or sentence, the Judge Advocate
General may order a rehearing, except that a rehearing may not be
ordered in violation of section 844 of this title (article 44).
(C) If the Judge Advocate General sets aside findings and
sentence and does not order a rehearing, the Judge Advocate General
shall dismiss the charges.
(D)(i) Subject to clause (ii), if the Judge Advocate General sets
aside findings and orders a rehearing and the convening authority
determines that a rehearing would be impracticable, the convening
authority shall dismiss the charges.
(ii) If a case was referred to trial by a special trial counsel, a
special trial counsel shall determine if a rehearing is impracticable
and shall dismiss the charges if the special trial counsel so
determines.
(2) In a case reviewed under section 865(b) of this title (article
65(b)), review under this section is limited to the issue of whether
the waiver or withdrawal of an appeal was invalid under the law. If
the Judge Advocate General determines that the waiver or
withdrawal of an appeal was invalid, the Judge Advocate General
shall send the case to the Court of Criminal Appeals.
(d) C
OURT OF CRIMINAL APPEALS.—
(1) A Court of Criminal Appeals may review the action taken by
the Judge Advocate General under subsection (c)(1) in a case
submitted to the Court of Criminal Appeals by the accused in an
application for review.
(2) The Court of Criminal Appeals may grant an application under
paragraph (1) only if—
(A) the application demonstrates a substantial basis for
concluding that the action on review under subsection (c) constituted
prejudicial error; and
(B) the application is filed not later than the earlier of—
(i) 60 days after the date on which the accused is notified of
the decision of the Judge Advocate General; or
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A2-33
(ii) 60 days after the date on which a copy of the decision of
the Judge Advocate General is deposited in the United States mails
for delivery by first-class certified mail to the accused at an address
provided by the accused or, if no such address has been provided by
the accused, at the latest address listed for the accused in his official
service record.
(3) The submission of an application for review under this
subsection does not constitute a proceeding before the Court of
Criminal Appeals for purposes of section 870(c)(1) of this title
(article 70(c)(1)).
(e) A
CTION ONLY ON MATTERS OF LAW.—Notwithstanding section
866 of this title (article 66), in any case reviewed by a Court of
Criminal Appeals under subsection (d), the Court may take action
only with respect to matters of law.
§870. Art. 70. Appellate counsel
(a) The Judge Advocate General shall detail in his office one or more
commissioned officers as appellate Government counsel, and one or
more commissioned officers as appellate defense counsel, who are
qualified under section 827(b)(1) of this title (article 27(b)(1)).
(b) Appellate Government counsel shall represent the United States
before the Court of Criminal Appeals or the Court of Appeals for the
Armed Forces when directed to do so by the Judge Advocate
General. Appellate Government counsel may represent the United
States before the Supreme Court in cases arising under this chapter
when requested to do so by the Attorney General.
(c) Appellate defense counsel shall represent the accused before the
Court of Criminal Appeals, the Court of Appeals for the Armed
Forces, or the Supreme Court—
(1) when requested by the accused;
(2) when the United States is represented by counsel; or
(3) when the Judge Advocate General has sent the case to the
Court of Appeals for the Armed Forces.
(d) The accused has the right to be represented before the Court of
Criminal Appeals, the Court of Appeals for the Armed Forces, or the
Supreme Court by civilian counsel if provided by him.
(e) Military appellate counsel shall also perform such other functions
in connection with the review of court martial cases as the Judge
Advocate General directs.
(f) To the greatest extent practicable, in any capital case, at least one
defense counsel under subsection (c) shall, as determined by the
Judge Advocate General, be learned in the law applicable to such
cases. If necessary, this counsel may be a civilian and, if so, may be
compensated in accordance with regulations prescribed by the
Secretary of Defense.
§872. Art. 72. Vacation of suspension
(a) Before the vacation of the suspension of a special court-martial
sentence which as approved includes a bad-conduct discharge, or of
any general court-martial sentence, the officer having special court-
martial jurisdiction over the probationer shall hold a hearing on the
alleged violation of probation. The special court-martial convening
authority may detail a judge advocate, who is certified under section
827(b) of this title (article 27(b)), to conduct the hearing. The
probationer shall be represented at the hearing by counsel if the
probationer so desires.
(b) The record of the hearing and the recommendation of the officer
having special court-martial jurisdiction shall be sent for action to
the officer exercising general court-martial jurisdiction over the
probationer. If the officer exercising general court-martial
jurisdiction vacates the suspension, any unexecuted part of the
sentence, except a dismissal, shall be executed, subject to applicable
restrictions in section 857 of this title (article 57)). The vacation of
the suspension of a dismissal is not effective until approved by the
Secretary concerned.
(c) The suspension of any other sentence may be vacated by any
authority competent to convene, for the command in which the
accused is serving or assigned, a court of the kind that imposed the
sentence.
§873. Art. 73. Petition for a new trial
At any time within three years after the date of the entry of
judgment under section 860c of this title (article 60c), the accused
may petition the Judge Advocate General for a new trial on the
grounds of newly discovered evidence or fraud on the court. If the
accused’s case is pending before a Court of Criminal Appeals or
before the Court of Appeals for the Armed Forces, the Judge
Advocate General shall refer the petition to the appropriate court for
action. Otherwise the Judge Advocate General shall act upon the
petition.
§874. Art. 74. Remission and suspension
(a) The Secretary concerned and, when designated by him, any
Under Secretary, Assistant Secretary, Judge Advocate General, or
commanding officer may remit or suspend any part or amount of the
unexecuted part of any sentence, including all uncollected forfeitures
other than a sentence approved by the President. However, in the
case of a sentence of confinement for life without eligibility for
parole that is adjudged for an offense committed after October 29,
2000, after the sentence is ordered executed, the authority of the
Secretary concerned under the preceding sentence (1) may not be
delegated, and (2) may be exercised only after the service of a period
of confinement of not less than 20 years.
(b) The Secretary concerned may, for good cause, substitute an
administrative form of discharge for a discharge or dismissal
executed in accordance with the sentence of a court-martial.
§875. Art. 75. Restoration
(a) Under such regulations as the President may prescribe, all rights,
privileges, and property affected by an executed part of a court-
martial sentence which has been set aside or disapproved, except an
executed dismissal or discharge, shall be restored unless a new trial
or rehearing is ordered and such executed part is included in a
sentence imposed upon the new trial or rehearing.
(b) If a previously executed sentence of dishonorable or bad-conduct
discharge is not imposed on a new trial, the Secretary concerned shall
substitute therefor a form of discharge authorized for administrative
issuance unless the accused is to serve out the remainder of his
enlistment.
(c) If a previously executed sentence of dismissal is not imposed on
a new trial, the Secretary concerned shall substitute therefor a form
of discharge authorized for administrative issue, and the
commissioned officer dismissed by that sentence may be reappointed
by the President alone to such commissioned grade and with such
rank as in the opinion of the President that former officer would have
attained had he not been dismissed. The reappointment of such a
former officer shall be without regard to the existence of a vacancy
and shall affect the promotion status of other officers only insofar as
the President may direct. All time between the dismissal and the
APPENDIX 2
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reappointment shall be considered as actual service for all purposes,
including the right to pay and allowances.
(d) The President shall prescribe regulations, with such limitations
as the President considers appropriate, governing eligibility for pay
and allowances for the period after the date on which an executed
part of a court-martial sentence is set aside.
§876. Art. 76. Finality of proceedings, findings, and
sentences
The appellate review of records of trial provided by this chapter,
the proceedings, findings, and sentences of courts-martial as
approved, reviewed, or affirmed as required by this chapter, and all
dismissals and discharges carried into execution under sentences by
courts-martial following approval, review, or affirmation as required
by this chapter, are final and conclusive. Orders publishing the
proceedings of courts-martial and all action taken pursuant to those
proceedings are binding upon all departments, courts, agencies, and
officers of the United States, subject only to action upon a petition
for a new trial as provided in section 873 of this title (article 73) and
to action by the Secretary concerned as provided in section 874 of
this title (article 74) and the authority of the President.
§876a. Art. 76a. Leave required to be taken pending
review of certain court-martial convictions
Under regulations prescribed by the Secretary concerned, an
accused who has been sentenced by a court-martial may be required
to take leave pending completion of action under this subchapter if
the sentence includes an unsuspended dismissal or an unsuspended
dishonorable or bad-conduct discharge. The accused may be
required to begin such leave on the date of the entry of judgment
under section 860c of this title (article 60c) or at any time after such
date, and such leave may be continued until the date on which action
under this subchapter is completed or may be terminated at any
earlier time.
§876b. Art. 76b. Lack of mental capacity or mental
responsibility: commitment of accused for
examination and treatment
(a) PERSONS INCOMPETENT TO STAND TRIAL.—
(1) In the case of a person determined under this chapter to be
presently suffering from a mental disease or defect rendering the
person mentally incompetent to the extent that the person is unable
to understand the nature of the proceedings against that person or to
conduct or cooperate intelligently in the defense of the case, the
general court-martial convening authority for that person shall
commit the person to the custody of the Attorney General.
(2) The Attorney General shall take action in accordance with
section 4241(d) of title 18.
(3) If at the end of the period for hospitalization provided for in
section 4241(d) of title 18, it is determined that the committed
person’s mental condition has not so improved as to permit the trial
to proceed, action shall be taken in accordance with section 4246 of
such title.
(4)(A) When the director of a facility in which a person is
hospitalized pursuant to paragraph (2) determines that the person has
recovered to such an extent that the person is able to understand the
nature of the proceedings against the person and to conduct or
cooperate intelligently in the defense of the case, the director shall
promptly transmit a notification of that determination to the Attorney
General and to the general court-martial convening authority for the
person. The director shall send a copy of the notification to the
person’s counsel.
(B) Upon receipt of a notification, the general court-martial
convening authority shall promptly take custody of the person unless
the person covered by the notification is no longer subject to this
chapter. If the person is no longer subject to this chapter, the
Attorney General shall take any action within the authority of the
Attorney General that the Attorney General considers appropriate
regarding the person.
(C) The director of the facility may retain custody of the person
for not more than 30 days after transmitting the notifications required
by subparagraph (A).
(5) In the application of section 4246 of title 18 to a case under
this subsection, references to the court that ordered the commitment
of a person, and to the clerk of such court, shall be deemed to refer
to the general court-martial convening authority for that person.
However, if the person is no longer subject to this chapter at a time
relevant to the application of such section to the person, the United
States district court for the district where the person is hospitalized
or otherwise may be found shall be considered as the court that
ordered the commitment of the person.
(b) P
ERSONS FOUND NOT GUILTY BY REASON OF LACK OF MENTAL
RESPONSIBILITY.—
(1) If a person is found by a court-martial not guilty only by reason
of lack of mental responsibility, the person shall be committed to a
suitable facility until the person is eligible for release in accordance
with this section.
(2) The court-martial shall conduct a hearing on the mental
condition in accordance with subsection (c) of section 4243 of title
18. Subsections (b) and (d) of that section shall apply with respect to
the hearing.
(3) A report of the results of the hearing shall be made to the
general court-martial convening authority for the person.
(4) If the court-martial fails to find by the standard specified in
subsection (d) of section 4243 of title 18 that the person’s release
would not create a substantial risk of bodily injury to another person
or serious damage of property of another due to a present mental
disease or defect—
(A) the general court-martial convening authority may commit
the person to the custody of the Attorney General; and
(B) the Attorney General shall take action in accordance with
subsection (e) of section 4243 of title 18.
(5) Subsections (f), (g), and (h) of section 4243 of title 18 shall
apply in the case of a person hospitalized pursuant to paragraph
(4)(B), except that the United States district court for the district
where the person is hospitalized shall be considered as the court that
ordered the person’s commitment.
(c) G
ENERAL PROVISIONS.—
(1) Except as otherwise provided in this subsection and subsection
(d)(1), the provisions of section 4247 of title 18 apply in the
administration of this section.
(2) In the application of section 4247(d) of title 18 to hearings
conducted by a court-martial under this section or by (or by order of)
a general court-martial convening authority under this section, the
reference in that section to section 3006A of such title does not apply.
(d) A
PPLICABILITY.—
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(1) The provisions of chapter 313 of title 18 referred to in this
section apply according to the provisions of this section
notwithstanding section 4247(j) of title 18.
(2) If the status of a person as described in section 802 of this title
(article 2) terminates while the person is, pursuant to this section, in
the custody of the Attorney General, hospitalized, or on conditional
release under a prescribed regimen of medical, psychiatric, or
psychological care or treatment, the provisions of this section
establishing requirements and procedures regarding a person no
longer subject to this chapter shall continue to apply to that person
notwithstanding the change of status.
SUBCHAPTER X—PUNITIVE ARTICLES
Sec.
877.
Art.
77.
Principals.
878.
78.
Accessory after the fact.
879.
79.
Conviction of offense charged, lesser
included offenses, and attempts.
880.
80.
Attempts.
881.
81.
Conspiracy.
882.
82.
Soliciting commission of offenses.
883.
83.
Malingering.
884.
84.
Breach of medical quarantine.
885.
85.
Desertion.
886.
86.
Absence without leave.
887.
87.
Missing movement; jumping from vessel.
887a.
87a.
Resistance, flight, breach of arrest, and
escape.
887b.
87b.
Offenses against correctional custody and
restriction.
888.
88.
Contempt toward officials.
889.
89.
Disrespect toward superior commissioned
officer; assault of superior commissioned
officer.
890.
90.
Willfully disobeying superior
commissioned officer.
891.
91.
Insubordinate conduct toward warrant
officer, noncommissioned officer, or petty
officer.
892.
92.
Failure to obey order or regulation.
893.
93.
Cruelty and maltreatment.
893a.
93a.
Prohibited activities with military recruit or
trainee by person in position of special trust.
894.
94.
Mutiny or sedition.
895.
95.
Offenses by sentinel or lookout.
895a.
95a.
Disrespect toward sentinel or lookout.
896.
96.
Release of prisoner without authority;
drinking with prisoner.
897.
97.
Unlawful detention.
898.
98.
Misconduct as prisoner.
899.
99.
Misbehavior before the enemy.
900.
100.
Subordinate compelling surrender.
901.
101.
Improper use of countersign.
902.
102.
Forcing a safeguard.
903.
103.
Spies.
903a.
103a.
Espionage.
903b.
103b.
Aiding the enemy.
904.
104.
Public records offenses.
904a.
104a.
Fraudulent enlistment, appointment, or
separation.
904b.
104b.
Unlawful enlistment, appointment, or
separation.
905.
105.
Forgery.
905a.
105a.
False or unauthorized pass offenses.
906.
106.
Impersonation of officer, noncommissioned
or petty officer, or agent or official.
906a.
106a.
Wearing unauthorized insignia, decoration,
badge, ribbon, device, or lapel button.
907.
107.
False official statements; false swearing.
907a.
107a.
Parole violation.
908.
108.
Military property of United States—Loss,
damage, destruction, or wrongful
disposition.
908a.
108a.
Captured or abandoned property.
909.
109.
Property other than military property of
United States—Water, spoilage, or
destruction.
909a.
109a.
Mail matter: wrongful taking, opening, etc.
910.
110.
Improper hazarding of vessel or aircraft.
911.
111.
Leaving scene of vehicle accident.
912.
112.
Drunkenness and other incapacitation
offenses.
912a.
112a.
Wrongful use, possession, etc., of
controlled substances.
913.
113.
Drunken or reckless operation of a vehicle,
aircraft or vessel.
914.
114.
Endangerment offenses.
915.
115.
Communicating threats.
916.
116.
Riot or breach of peace.
917.
117.
Provoking speeches or gestures.
917a.
117a.
Wrongful broadcast or distribution of
intimate visual images.
918.
118.
Murder.
919.
119.
Manslaughter.
919a.
119a
Death or injury of an unborn child.
919b.
119b
Child endangerment.
920.
120.
Rape and sexual assault generally.
920a.
120a
Mails: deposit of obscene matter.
920b.
120b.
Rape and sexual assault of a child.
920c.
120c.
Other sexual misconduct.
921.
121.
Larceny and wrongful appropriation.
921a.
121a.
Fraudulent use of credit cards, debit cards,
and other access devices.
921b.
121b.
False pretenses to obtain services.
922.
122.
Robbery.
922a.
122a
Receiving stolen property.
923.
123.
Offenses concerning Government
computers.
923a.
123a.
Making, drawing, or uttering check, draft,
or order without sufficient funds.
924.
124.
Frauds against the United States.
924a.
124a.
Bribery.
924b.
124b.
Graft.
925.
125.
Kidnapping.
926.
126.
Arson; burning property with intent to
defraud.
927.
127.
Extortion.
928.
128.
Assault.
928a.
128a.
Maiming.
928b.
128b.
Domestic violence.
929.
129.
Burglary; unlawful entry.
930.
130.
Stalking.
931.
131.
Perjury.
931a.
131a
Subornation of perjury.
931b.
131b.
Obstructing justice.
931c.
131c.
Misprision of serious offense.
931d.
131d
Wrongful refusal to testify.
APPENDIX 2
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931e.
131e.
Prevention of authorized seizure of
property.
931f.
131f.
Noncompliance with procedural rules.
931g.
131g.
Wrongful interference with adverse
administrative proceeding.
932.
132.
Retaliation.
933.
133.
Conduct unbecoming an officer.
934.
134.
General article.
§877. Art. 77. Principals
Any person punishable under this chapter who—
(1) commits an offense punishable by this chapter, or aids, abets,
counsels, commands, or procures its commission; or
(2) causes an act to be done which if directly performed by him
would be punishable by this chapter;
is a principal.
§878. Art. 78. Accessory after the fact
Any person subject to this chapter who, knowing that an offense
punishable by this chapter has been committed, receives, comforts,
or assists the offender in order to hinder or prevent his
apprehension, trial, or punishment shall be punished as a court-
martial may direct.
§879. Art. 79. Conviction of offense charged, lesser
included offenses, and attempts
(a) IN GENERAL.—An accused may be found guilty of any of the
following:
(1) The offense charged.
(2) A lesser included offense.
(3) An attempt to commit the offense charged.
(4) An attempt to commit a lesser included offense, if the
attempt is an offense in its own right.
(b)
LESSER INCLUDED OFFENSE DEFINED.—In this section (article),
the term “lesser included offense” means—
(1) an offense that is necessarily included in the offense charged;
and
(2) any lesser included offense so designated by regulation
prescribed by the President.
(c) R
EGULATORY AUTHORITY.—Any designation of a lesser
included offense in a regulation referred to in subsection (b) shall
be reasonably included in the greater offense.
§880. Art. 80. Attempts
(a) An act, done with specific intent to commit an offense under
this chapter, amounting to more than mere preparation and tending,
even though failing, to effect its commission, is an attempt to
commit that offense.
(b) Any person subject to this chapter who attempts to commit any
offense punishable by this chapter shall be punished as a court-
martial may direct, unless otherwise specifically prescribed.
(c) Any person subject to this chapter may be convicted of an
attempt to commit an offense although it appears on the trial that
the offense was consummated.
§881. Art. 81. Conspiracy
(a) Any person subject to this chapter who conspires with any other
person to commit an offense under this chapter shall, if one or more
of the conspirators does an act to effect the object of the
conspiracy, be punished as a court-martial may direct.
(b) Any person subject to this chapter who conspires with any other
person to commit an offense under the law of war, and who
knowingly does an overt act to effect the object of the conspiracy,
shall be punished, if death results to one or more of the victims, by
death or such other punishment as a court-martial or military
commission may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a court-martial or
military commission may direct.
§882. Art. 82. Soliciting commission of offenses
(a) SOLICITING COMMISSION OF OFFENSES GENERALLY.—Any
person subject to this chapter who solicits or advises another to
commit an offense under this chapter (other than an offense
specified in subsection (b)) shall be punished as a court-martial
may direct.
(b) S
OLICITING DESERTION, MUTINY, SEDITION, OR MISBEHAVIOR
BEFORE THE
ENEMY.—Any person subject to this chapter who
solicits or advises another to violate section 885 of this title (article
85), section 894 of this title (article 94), or section 899 of this title
(article 99)—
(1) if the offense solicited or advised is attempted or is
committed, shall be punished with the punishment provided for the
commission of the offense; and
(2) if the offense solicited or advised is not attempted or
committed, shall be punished as a court-martial may direct.
§883. Art. 83. Malingering
Any person subject to this chapter who, with the intent to avoid
work, duty, or service—
(1) feigns illness, physical disablement, mental lapse, or mental
derangement; or
(2) intentionally inflicts self-injury;
shall be punished as a court-martial may direct.
§884. Art. 84. Breach of medical quarantine
Any person subject to this chapter—
(1) who is ordered into medical quarantine by a person
authorized to issue such order; and
(2) who, with knowledge of the quarantine and the limits of the
quarantine, goes beyond those limits before being released from the
quarantine by proper authority;
shall be punished as a court-martial may direct.
§885. Art. 85. Desertion
(a) Any member of the armed forces who—
(1) without authority goes or remains absent from his unit,
organization, or place of duty with intent to remain away therefrom
permanently;
(2) quits his unit, organization, or place of duty with intent to
avoid hazardous duty or to shirk important service; or
UNIFORM CODE OF MILITARY JUSTICE
A2-37
(3) without being regularly separated from one of the armed
forces enlists or accepts an appointment in the same or another one
of the armed forces without fully disclosing the fact that he has not
been regularly separated, or enters any foreign armed service
except when authorized by the United States;
is guilty of desertion.
(b) Any commissioned officer of the armed forces who, after tender
of his resignation and before notice of its acceptance, quits his post
or proper duties without leave and with intent to remain away
therefrom permanently is guilty of desertion.
(c) Any person found guilty of desertion or attempt to desert shall
be punished, if the offense is committed in time of war, by death or
such other punishment as a court-martial may direct, but if the
desertion or attempt to desert occurs at any other time, by such
punishment, other than death, as a court-martial may direct.
§886. Art. 86. Absence without leave
Any member of the armed forces who, without authority—
(1) fails to go to his appointed place of duty at the time
prescribed;
(2) goes from that place; or
(3) absents himself or remains absent from his unit, organization,
or place of duty at which he is required to be at the time prescribed;
shall be punished as a court-martial may direct.
§887. Art. 87. Missing movement; jumping from
vessel
(a) MISSING MOVEMENT.—Any person subject to this chapter who,
through neglect or design, misses the movement of a ship, aircraft,
or unit with which the person is required in the course of duty to
move shall be punished as a court-martial may direct.
(b) J
UMPING FROM VESSEL INTO THE WATER.—Any person subject
to this chapter who wrongfully and intentionally jumps into the
water from a vessel in use by the armed forces shall be punished as
a court-martial may direct.
§887a. Art. 87a. Resistance, flight, breach of
arrest, and escape
Any person subject to this chapter who—
(1) resists apprehension;
(2) flees from apprehension;
(3) breaks arrest; or
(4) escapes from custody or confinement;
shall be punished as a court-martial may direct.
§887b. Art. 87b. Offenses against correctional
custody and restriction
(a) ESCAPE FROM CORRECTIONAL CUSTODY.—Any person subject
to this chapter—
(1) who is placed in correctional custody by a person authorized
to do so;
(2) who, while in correctional custody, is under physical
restraint; and
(3) who escapes from the physical restraint before being released
from the physical restraint by proper authority;
shall be punished as a court-martial may direct.
(b) B
REACH OF CORRECTIONAL CUSTODY.—Any person subject to
this chapter—
(1) who is placed in correctional custody by a person authorized
to do so;
(2) who, while in correctional custody, is under restraint other
than physical restraint; and
(3) who goes beyond the limits of the restraint before being
released from the correctional custody or relieved of the restraint by
proper authority;
shall be punished as a court-martial may direct.
(c) B
REACH OF RESTRICTION.—Any person subject to this
chapter—
(1) who is ordered to be restricted to certain limits by a person
authorized to do so; and
(2) who, with knowledge of the limits of the restriction, goes
beyond those limits before being released by proper authority;
shall be punished as a court-martial may direct.
§888. Art. 88. Contempt toward officials
Any commissioned officer who uses contemptuous words
against the President, the Vice President, Congress, the Secretary of
Defense, the Secretary of a military department, the Secretary of
Homeland Security, or the Governor or legislature of any State,
Commonwealth, or possession in which he is on duty or present
shall be punished as a court-martial may direct.
§889. Art. 89. Disrespect toward superior
commissioned officer; assault of superior
commissioned officer
(a) DISRESPECT.—Any person subject to this chapter who behaves
with disrespect toward that person’s superior commissioned officer
shall be punished as a court-martial may direct.
(b) A
SSAULT.—Any person subject to this chapter who strikes that
person’s superior commissioned officer or draws or lifts up any
weapon or offers any violence against that officer while the officer
is in the execution of the officer’s office shall be punished—
(1) if the offense is committed in time of war, by death or such
other punishment as a court-martial may direct; and
(2) if the offense is committed at any other time, by such
punishment, other than death, as a court-martial may direct.
§890. Art. 90. Willfully disobeying superior
commissioned officer
Any person subject to this chapter who willfully disobeys a
lawful command of that person’s superior commissioned officer
shall be punished—
(1) if the offense is committed in time of war, by death or such
other punishment as a court-martial may direct; and
(2) if the offense is committed at any other time, by such
punishment, other than death, as a court-martial may direct.
APPENDIX 2
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§891. Art. 91. Insubordinate conduct toward warrant officer,
noncommissioned officer, or petty officer
Any warrant officer or enlisted member who—
(1) strikes or assaults a warrant officer, noncommissioned
officer, or petty officer, while that officer is in the execution of his
office;
(2) willfully disobeys the lawful order of a warrant officer,
noncommissioned officer, or petty officer; or
(3) treats with contempt or is disrespectful in language or
deportment toward a warrant officer, noncommissioned officer, or
petty officer, while that officer is in the execution of his office;
shall be punished as a court-martial may direct.
§892. Art. 92. Failure to obey order or regulation
Any person subject to this chapter who—
(1) violates or fails to obey any lawful general order or
regulation;
(2) having knowledge of any other lawful order issued by a
member of the armed forces, which it is his duty to obey, fails to
obey the order; or
(3) is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
§893. Art. 93. Cruelty and maltreatment
Any person subject to this chapter who is guilty of cruelty
toward, or oppression or maltreatment of, any person subject to his
orders shall be punished as a court-martial may direct.
§893a. Art. 93a. Prohibited activities with military
recruit or trainee by person in position of special
trust
(a) ABUSE OF TRAINING LEADERSHIP POSITION.—Any person
subject to this chapter—
(1) who is an officer, a noncommissioned officer, or a petty
officer;
(2) who is in a training leadership position with respect to a
specially protected junior member of the armed forces; and
(3) who engages in prohibited sexual activity with such specially
protected junior member of the armed forces;
shall be punished as a court-martial may direct.
(b) A
BUSE OF POSITION AS MILITARY RECRUITER.—Any person
subject to this chapter—
(1) who is a military recruiter and engages in prohibited sexual
activity with an applicant for military service; or
(2) who is a military recruiter and engages in prohibited sexual
activity with a specially protected junior member of the armed
forces who is enlisted under a delayed entry program;
shall be punished as a court-martial may direct.
(c) C
ONSENT.—Consent is not a defense for any conduct at issue in
a prosecution under this section (article).
(d) D
EFINITIONS.—In this section (article):
(1) S
PECIALLY PROTECTED JUNIOR MEMBER OF THE ARMED
FORCES
.—The term “specially protected junior member of the
armed forces” means—
(A) a member of the armed forces who is assigned to, or is
awaiting assignment to, basic training or other initial active duty for
training, including a member who is enlisted under a delayed entry
program;
(B) a member of the armed forces who is a cadet, a
midshipman, an officer candidate, or a student in any other officer
qualification program; and
(C) a member of the armed forces in any program that, by
regulation prescribed by the Secretary concerned, is identified as a
training program for initial career qualification.
(2) T
RAINING LEADERSHIP POSITION.—The term “training
leadership position” means, with respect to a specially protected
junior member of the armed forces, any of the following:
(A) Any drill instructor position or other leadership position
in a basic training program, an officer candidate school, a reserve
officers’ training corps unit, a training program for entry into the
armed forces, or any program that, by regulation prescribed by the
Secretary concerned, is identified as a training program for initial
career qualification.
(B) Faculty and staff of the United States Military Academy,
the United States Naval Academy, the United States Air Force
Academy, and the United States Coast Guard Academy.
(3) A
PPLICANT FOR MILITARY SERVICE.—The term “applicant
for military service” means a person who, under regulations
prescribed by the Secretary concerned, is an applicant for original
enlistment or appointment in the armed forces.
(4) M
ILITARY RECRUITER.—The term “military recruiter”
means, a person who, under regulations prescribed by the Secretary
concerned, has the primary duty to recruit persons for military
service.
(5) P
ROHIBITED SEXUAL ACTIVITY.—The term “prohibited
sexual activity” means, as specified in regulations prescribed by the
Secretary concerned, inappropriate physical intimacy under
circumstances described in such regulations.
§894. Art. 94. Mutiny or sedition
(a) Any person subject to this chapter who—
(1) with intent to usurp or override lawful military authority,
refuses, in concert with any other person, to obey orders or
otherwise do his duty or creates any violence or disturbance is
guilty of mutiny;
(2) with intent to cause the overthrow or destruction of lawful
civil authority, creates, in concert with any other person, revolt,
violence, or other disturbance against that authority is guilty of
sedition;
(3) fails to do his utmost to prevent and suppress a mutiny or
sedition being committed in his presence, or fails to take all
reasonable means to inform his superior commissioned officer or
commanding officer of a mutiny or sedition which he knows or has
reason to believe is taking place, is guilty of a failure to suppress or
report a mutiny or sedition.
(b) A person who is found guilty of attempted mutiny, mutiny,
sedition, or failure to suppress or report a mutiny or sedition shall
be punished by death or such other punishment as a court-martial
may direct.
§895. Art. 95. Offenses by sentinel or lookout
(a) DRUNK OR SLEEPING ON POST, OR LEAVING POST BEFORE
BEING RELIEVED.—Any sentinel or lookout who is drunk on post,
UNIFORM CODE OF MILITARY JUSTICE
A2-39
who sleeps on post, or who leaves post before being regularly
relieved, shall be punished—
(1) if the offense is committed in time of war, by death or such
other punishment as a court-martial may direct; and
(2) if the offense is committed other than in time of war, by such
punishment, other than death, as a court-martial may direct.
(b) L
OITERING OR WRONGFULLY SITTING ON POST.—Any sentinel
or lookout who loiters or wrongfully sits down on post shall be
punished as a court-martial may direct.
§895a. Art. 95a. Disrespect toward sentinel or
lookout
(a) DISRESPECTFUL LANGUAGE TOWARD SENTINEL OR
LOOKOUT.—Any person subject to this chapter who, knowing that
another person is a sentinel or lookout, uses wrongful and
disrespectful language that is directed toward and within the
hearing of the sentinel or lookout, who is in the execution of duties
as a sentinel or lookout, shall be punished as a court-martial may
direct.
(b) D
ISRESPECTFUL BEHAVIOR TOWARD SENTINEL OR
LOOKOUT.—Any person subject to this chapter who, knowing that
another person is a sentinel or lookout, behaves in a wrongful and
disrespectful manner that is directed toward and within the sight of
the sentinel or lookout, who is in the execution of duties as a
sentinel or lookout, shall be punished as a court-martial may direct.
§896. Art. 96. Release of prisoner without
authority; drinking with prisoner
(a) RELEASE OF PRISONER WITHOUT AUTHORITY.—Any person
subject to this chapter—
(1) who, without authority to do so, releases a prisoner; or
(2) who, through neglect or design, allows a prisoner to escape;
shall be punished as a court-martial may direct, whether or not the
prisoner was committed in strict compliance with the law.
(b) D
RINKING WITH PRISONER.—Any person subject to this chapter
who unlawfully drinks any alcoholic beverage with a prisoner shall
be punished as a court-martial may direct.
§897. Art. 97. Unlawful detention
Any person subject to this chapter who, except as provided by
law, apprehends, arrests, or confines any person shall be punished
as a court-martial may direct.
§898. Art. 98. Misconduct as prisoner
Any person subject to this chapter who, while in the hands of the
enemy in time of war—
(1) for the purpose of securing favorable treatment by his captors
acts without proper authority in a manner contrary to law, custom,
or regulation, to the detriment of others of whatever nationality
held by the enemy as civilian or military prisoners; or
(2) while in a position of authority over such persons maltreats
them without justifiable cause; shall be punished as a court-martial
may direct.
§899. Art. 99. Misbehavior before the enemy
Any member of the armed forces who before or in the presence
of the enemy—
(1) runs away;
(2) shamefully abandons, surrenders, or delivers up any
command, unit, place, or military property which it is his duty to
defend;
(3) through disobedience, neglect, or intentional misconduct
endangers the safety of any such command, unit, place, or military
property;
(4) casts away his arms or ammunition;
(5) is guilty of cowardly conduct;
(6) quits his place of duty to plunder or pillage;
(7) causes false alarms in any command, unit, or place under
control of the armed forces;
(8) willfully fails to do his utmost to encounter, engage, capture,
or destroy any enemy troops, combatants, vessels, aircraft, or any
other thing, which it is his duty so to encounter, engage, capture, or
destroy; or
(9) does not afford all practicable relief and assistance to any
troops, combatants, vessels, or aircraft of the armed forces
belonging to the United States or their allies when engaged in
battle; shall be punished by death or such other punishment as a
court-martial may direct.
§900. Art. 100. Subordinate compelling surrender
Any person subject to this chapter who compels or attempts to
compel the commander of any place, vessel, aircraft, or other
military property, or of any body of members of the armed forces,
to give it up to an enemy or to abandon it, or who strikes the colors
or flag to an enemy without proper authority, shall be punished by
death or such other punishment as a court-martial may direct.
§901. Art. 101. Improper use of countersign
Any person subject to this chapter who in time of war discloses
the parole or countersign to any person not entitled to receive it or
who gives to another who is entitled to receive and use the parole
or countersign a different parole or countersign from that which, to
his knowledge, he was authorized and required to give, shall be
punished by death or such other punishment as a court-martial may
direct.
§902. Art. 102. Forcing a safeguard
Any person subject to this chapter who forces a safeguard shall
suffer death or such other punishment as a court-martial may direct.
§903. Art. 103. Spies
Any person who in time of war is found lurking as a spy or
acting as a spy in or about any place, vessel, or aircraft, within the
control or jurisdiction of any of the armed forces, or in or about any
shipyard, any manufacturing or industrial plant, or any other place
or institution engaged in work in aid of the prosecution of the war
by the United States, or elsewhere, shall be tried by a general court-
martial or by a military commission and on conviction shall be
punished by death or such other punishment as a court-martial or a
APPENDIX 2
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military commission may direct. This section does not apply to a
military commission established under chapter 47A of this title.
§903a. Art. 103a. Espionage
(a)(1) Any person subject to this chapter who, with intent or reason
to believe that it is to be used to the injury of the United States or to
the advantage of a foreign nation, communicates, delivers, or
transmits, or attempts to communicate, deliver, or transmit, to any
entity described in paragraph (2), either directly or indirectly,
anything described in paragraph (3) shall be punished as a court-
martial may direct, except that if the accused is found guilty of an
offense that directly concerns (A) nuclear weaponry, military
spacecraft or satellites, early warning systems, or other means of
defense or retaliation against large scale attack, (B) war plans, (C)
communications intelligence or cryptographic information, or (D)
any other major weapons system or major element of defense
strategy, the accused shall be punished by death or such other
punishment as a court-martial may direct.
(2) An entity referred to in paragraph (1) is—
(A) a foreign government;
(B) a faction or party or military or naval force within a
foreign country, whether recognized or unrecognized by the United
States; or
(C) a representative, officer, agent, employee, subject, or
citizen of such a government, faction, party, or force.
(3) A thing referred to in paragraph (1) is a document, writing,
code book, signal book, sketch, photograph, photographic negative,
blueprint, plan, map, model, note, instrument, appliance, or
information relating to the national defense.
(b)(1) No person may be sentenced by court-martial to suffer death
for an offense under this section (article) unless—
(A) the members of the court-martial unanimously find at
least one of the aggravating factors set out in subsection (c); and
(B) the members unanimously determine that any extenuating
or mitigating circumstances are substantially outweighed by any
aggravating circumstances, including the aggravating factors set out
in subsection (c).
(2) Findings under this subsection may be based on—
(A) evidence introduced on the issue of guilt or innocence;
(B) evidence introduced during the sentencing proceeding; or
(C) all such evidence.
(3) The accused shall be given broad latitude to present matters
in extenuation and mitigation.
(c) A sentence of death may be adjudged by a court-martial for an
offense under this section (article) only if the members
unanimously find, beyond a reasonable doubt, one or more of the
following aggravating factors:
(1) The accused has been convicted of another offense involving
espionage or treason for which either a sentence of death or
imprisonment for life was authorized by statute.
(2) In the commission of the offense, the accused knowingly
created a grave risk of substantial damage to the national security.
(3) In the commission of the offense, the accused knowingly
created a grave risk of death to another person.
(4) Any other factor that may be prescribed by the President by
regulations under section 836 of this title (article 36).
§903b. Art. 103b. Aiding the enemy
Any person who—
(1) aids, or attempts to aid, the enemy with arms, ammunition,
supplies, money, or other things; or
(2) without proper authority, knowingly harbors or protects or
gives intelligence to, or communicates or corresponds with or holds
any intercourse with the enemy, either directly or indirectly; shall
suffer death or such other punishment as a court-martial or military
commission may direct. This section does not apply to a military
commission established under chapter 47A of this title.
§904. Art. 104. Public records offenses
Any person subject to this chapter who, willfully and
unlawfully—
(1) alters, conceals, removes, mutilates, obliterates, or destroys a
public record; or
(2) takes a public record with the intent to alter, conceal,
remove, mutilate, obliterate, or destroy the public record;
shall be punished as a court-martial may direct.
§904a. Art. 104a. Fraudulent enlistment,
appointment, or separation
Any person who—
(1) procures his own enlistment or appointment in the armed
forces by knowingly false representation or deliberate concealment
as to his qualifications for that enlistment or appointment and
receives pay or allowances thereunder; or
(2) procures his own separation from the armed forces by
knowingly false representation or deliberate concealment as to his
eligibility for that separation;
shall be punished as a court-martial may direct.
§904b. Art. 104b. Unlawful enlistment,
appointment, or separation
Any person subject to this chapter who effects an enlistment or
appointment in or a separation from the armed forces of any person
who is known to him to be ineligible for that enlistment,
appointment, or separation because it is prohibited by law,
regulation, or order shall be punished as a court-martial may direct.
§905. Art. 105. Forgery
Any person subject to this chapter who, with intent to defraud—
(1) falsely makes or alters any signature to, or any part of, any
writing which would, if genuine, apparently impose a legal liability
on another or change his legal right or liability to his prejudice; or
(2) utters, offers, issues, or transfers such a writing, known by
him to be so made or altered;
is guilty of forgery and shall be punished as a court-martial may
direct.
§905a. Art. 105a. False or unauthorized pass
offenses
(a) WRONGFUL MAKING, ALTERING, ETC.—Any person subject to
this chapter who, wrongfully and falsely, makes, alters,
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counterfeits, or tampers with a military or official pass, permit,
discharge certificate, or identification card shall be punished as a
court-martial may direct.
(b) W
RONGFUL SALE, ETC.—Any person subject to this chapter
who wrongfully sells, gives, lends, or disposes of a false or
unauthorized military or official pass, permit, discharge certificate,
or identification card, knowing that the pass, permit, discharge
certificate, or identification card is false or unauthorized, shall be
punished as a court-martial may direct.
(c) W
RONGFUL USE OR POSSESSION.—Any person subject to this
chapter who wrongfully uses or possesses a false or unauthorized
military or official pass, permit, discharge certificate, or
identification card, knowing that the pass, permit, discharge
certificate, or identification card is false or unauthorized, shall be
punished as a court-martial may direct.
§906. Art. 106. Impersonation of officer,
noncommissioned or petty officer, or agent or
official
(a) IN GENERAL.—Any person subject to this chapter who,
wrongfully and willfully, impersonates—
(1) an officer, a noncommissioned officer, or a petty officer;
(2) an agent of superior authority of one of the armed forces; or
(3) an official of a government; shall be punished as a court-
martial may direct.
(b) I
MPERSONATION WITH INTENT TO DEFRAUD.—Any person
subject to this chapter who, wrongfully, willfully, and with intent to
defraud, impersonates any person referred to in paragraph (1), (2),
or (3) of subsection (a) shall be punished as a court-martial may
direct.
(c) I
MPERSONATION OF GOVERNMENT OFFICIAL WITHOUT INTENT
TO
DEFRAUD.—Any person subject to this chapter who,
wrongfully, willfully, and without intent to defraud, impersonates
an official of a government by committing an act that exercises or
asserts the authority of the office that the person claims to have
shall be punished as a court-martial may direct.
§906a. Art. 106a. Wearing unauthorized insignia,
decoration, badge, ribbon, device, or lapel button
Any person subject to this chapter—
(1) who is not authorized to wear an insignia, decoration, badge,
ribbon, device, or lapel button; and
(2) who wrongfully wears such insignia, decoration, badge,
ribbon, device, or lapel button upon the person’s uniform or civilian
clothing; shall be punished as a court-martial may direct.
§907. Art. 107. False official statements; false
swearing
(a) FALSE OFFICIAL STATEMENTS.—Any person subject to this
chapter who, with intent to deceive—
(1) signs any false record, return, regulation, order, or other
official document, knowing it to be false; or
(2) makes any other false official statement knowing it to be
false; shall be punished as a court-martial may direct.
(b) F
ALSE SWEARING.—Any person subject to this chapter—
(1) who takes an oath that—
(A) is administered in a matter in which such oath is required
or authorized by law; and
(B) is administered by a person with authority to do so; and
(2) who, upon such oath, makes or subscribes to a statement; if
the statement is false and at the time of taking the oath, the person
does not believe the statement to be true, shall be punished as a
court-martial may direct.
§907a. Art. 107a. Parole violation
Any person subject to this chapter—
(1) who, having been a prisoner as the result of a court-martial
conviction or other criminal proceeding, is on parole with
conditions; and
(2) who violates the conditions of parole; shall be punished as a
court-martial may direct.
§908. Art. 108. Military property of United
States—Loss, damage, destruction, or wrongful
disposition
Any person subject to this chapter who, without proper
authority—
(1) sells or otherwise disposes of;
(2) willfully or through neglect damages, destroys, or loses; or
(3) willfully or through neglect suffers to be lost, damaged,
destroyed, sold, or wrongfully disposed of; any military property of
the United States, shall be punished as a court-martial may direct.
§908a. Art. 108a. Captured or abandoned
property
(a) All persons subject to this chapter shall secure all public
property taken from the enemy for the service of the United States,
and shall give notice and turn over to the proper authority without
delay all captured or abandoned property in their possession,
custody, or control.
(b) Any person subject to this chapter who—
(1) fails to carry out the duties prescribed in subsection (a);
(2) buys, sells, trades, or in any way deals in or disposes of
captured or abandoned property, whereby he receives or expects
any profit, benefit, or advantage to himself or another directly or
indirectly connected with himself; or
(3) engages in looting or pillaging; shall be punished as a court-
martial may direct.
§909. Art. 109. Property other than military
property of United States—Waste, spoilage, or
destruction
Any person subject to this chapter who willfully or recklessly
wastes, spoils, or otherwise willfully and wrongfully destroys or
damages any property other than military property of the United
States shall be punished as a court-martial may direct.
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§909a. Art. 109a. Mail matter: wrongful taking,
opening, etc.
(a) TAKING.—Any person subject to this chapter who, with the
intent to obstruct the correspondence of, or to pry into the business
or secrets of, any person or organization, wrongfully takes mail
matter before the mail matter is delivered to or received by the
addressee shall be punished as a court-martial may direct.
(b) O
PENING, SECRETING, DESTROYING, STEALING.—Any person
subject to this chapter who wrongfully opens, secretes, destroys, or
steals mail matter before the mail matter is delivered to or received
by the addressee shall be punished as a court-martial may direct.
§910. Art. 110. Improper hazarding of vessel or
aircraft
(a) WILLFUL AND WRONGFUL HAZARDING.—Any person subject to
this chapter who, willfully and wrongfully, hazards or suffers to be
hazarded any vessel or aircraft of the armed forces shall be
punished by death or such other punishment as a court-martial may
direct.
(b) N
EGLIGENT HAZARDING.—Any person subject to this chapter
who negligently hazards or suffers to be hazarded any vessel or
aircraft of the armed forces shall be punished as a court-martial
may direct.
§911. Art. 111. Leaving scene of vehicle accident
(a) DRIVER.—Any person subject to this chapter—
(1) who is the driver of a vehicle that is involved in an accident
that results in personal injury or property damage; and
(2) who wrongfully leaves the scene of the accident—
(A) without providing assistance to an injured person; or
(B) without providing personal identification to others
involved in the accident or to appropriate authorities;
shall be punished as a court-martial may direct.
(b) S
ENIOR PASSENGER.—Any person subject to this chapter—
(1) who is a passenger in a vehicle that is involved in an accident
that results in personal injury or property damage;
(2) who is the superior commissioned or noncommissioned
officer of the driver of the vehicle or is the commander of the
vehicle; and
(3) who wrongfully and unlawfully orders, causes, or permits the
driver to leave the scene of the accident—
(A) without providing assistance to an injured person; or
(B) without providing personal identification to others
involved in the accident or to appropriate authorities; shall be
punished as a court-martial may direct.
§912. Art. 112. Drunkenness and other
incapacitation offenses
(a) DRUNK ON DUTY.—Any person subject to this chapter who is
drunk on duty shall be punished as a court-martial may direct.
(b) I
NCAPACITATION FOR DUTY FROM DRUNKENNESS OR DRUG
USE.—Any person subject to this chapter who, as a result of
indulgence in any alcoholic beverage or any drug, is incapacitated
for the proper performance of duty shall be punished as a court-
martial may direct.
(c) D
RUNK PRISONER.—Any person subject to this chapter who is a
prisoner and, while in such status, is drunk shall be punished as a
court-martial may direct.
§912a. Art. 112a. Wrongful use, possession, etc., of
controlled substances
(a) Any person subject to this chapter who wrongfully uses,
possesses, manufactures, distributes, imports into the customs
territory of the United States, exports from the United States, or
introduces into an installation, vessel, vehicle, or aircraft used by or
under the control of the armed forces a substance described in
subsection (b) shall be punished as a court-martial may direct.
(b) The substances referred to in subsection (a) are the following:
(1) Opium, heroin, cocaine, amphetamine, lysergic acid
diethylamide, methamphetamine, phencyclidine, barbituric acid,
and marijuana and any compound or derivative of any such
substance.
(2) Any substance not specified in clause (1) that is listed on a
schedule of controlled substances prescribed by the President for
the purposes of this article.
(3) Any other substance not specified in clause (1) or contained
on a list prescribed by the President under clause (2) that is listed in
schedules I through V of section 202 of the Controlled Substances
Act (21 U.S.C. 812).
§913. Art. 113. Drunken or reckless operation of a
vehicle, aircraft, or vessel
(a) Any person subject to this chapter who—
(1) operates or physically controls any vehicle, aircraft, or vessel
in a reckless or wanton manner or while impaired by a substance
described in section 912a(b) of this title (article 112a(b)), or
(2) operates or is in actual physical control of any vehicle,
aircraft, or vessel while drunk or when the alcohol concentration in
the person’s blood or breath is equal to or exceeds the applicable
limit under subsection (b),
shall be punished as a court-martial may direct.
(b)(1) For purposes of subsection (a), the applicable limit on the
alcohol concentration in a person’s blood or breath is as follows:
(A) In the case of the operation or control of a vehicle,
aircraft, or vessel in the United States, such limit is the lesser of—
(i) the blood alcohol content limit under the law of the
State in which the conduct occurred, except as may be provided
under paragraph (2) for conduct on a military installation that is in
more than one State; or
(ii) the blood alcohol content limit specified in paragraph
(3).
(B) In the case of the operation or control of a vehicle,
aircraft, or vessel outside the United States, the applicable blood
alcohol content limit is the blood alcohol content limit specified in
paragraph (3) or such lower limit as the Secretary of Defense may
by regulation prescribe.
(2) In the case of a military installation that is in more than one
State, if those States have different blood alcohol content limits
under their respective State laws, the Secretary may select one such
blood alcohol content limit to apply uniformly on that installation.
(3) For purposes of paragraph (1), the blood alcohol content
limit with respect to alcohol concentration in a person’s blood is
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0.08 grams of alcohol per 100 milliliters of blood and with respect
to alcohol concentration in a person’s breath is 0.08 grams of
alcohol per 210 liters of breath, as shown by chemical analysis. The
Secretary may by regulation prescribe limits that are lower than the
limits specified in the preceding sentence, if such lower limits are
based on scientific developments, as reflected in Federal law of
general applicability.
(4) In this subsection:
(A) The term “blood alcohol content limit” means the amount
of alcohol concentration in a person’s blood or breath at which
operation or control of a vehicle, aircraft, or vessel is prohibited.
(B) The term “United States” includes the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
Guam, and American Samoa and the term “State” includes each of
those jurisdictions.
§914. Art. 114. Endangerment offenses
(a) RECKLESS ENDANGERMENT.—Any person subject to this
chapter who engages in conduct that—
(1) is wrongful and reckless or is wanton; and
(2) is likely to produce death or grievous bodily harm to another
person; shall be punished as a court-martial may direct.
(b) D
UELING.—Any person subject to this chapter—
(1) who fights or promotes, or is concerned in or connives at
fighting a duel; or
(2) who, having knowledge of a challenge sent or about to be
sent, fails to report the facts promptly to the proper authority; shall
be punished as a court-martial may direct.
(c) F
IREARM DISCHARGE, ENDANGERING HUMAN LIFE.—Any
person subject to this chapter who, willfully and wrongly,
discharges a firearm, under circumstances such as to endanger
human life shall be punished as a court-martial may direct.
(d) C
ARRYING CONCEALED WEAPON.—Any person subject to this
chapter who unlawfully carries a dangerous weapon concealed on
or about his person shall be punished as a court-martial may direct.
§915. Art. 115. Communicating threats
(a) COMMUNICATING THREATS GENERALLY.—Any person subject
to this chapter who wrongfully communicates a threat to injure the
person, property, or reputation of another shall be punished as a
court-martial may direct.
(b) C
OMMUNICATING THREAT TO USE EXPLOSIVE, ETC.—Any
person subject to this chapter who wrongfully communicates a
threat to injure the person or property of another by use of (1) an
explosive, (2) a weapon of mass destruction, (3) a biological or
chemical agent, substance, or weapon, or (4) a hazardous material,
shall be punished as a court-martial may direct.
(c) C
OMMUNICATING FALSE THREAT CONCERNING USE OF
EXPLOSIVE, ETC.—Any person subject to this chapter who
maliciously communicates a false threat concerning injury to the
person or property of another by use of (1) an explosive, (2) a
weapon of mass destruction, (3) a biological or chemical agent,
substance, or weapon, or (4) a hazardous material, shall be
punished as a court-martial may direct. As used in the preceding
sentence, the term “false threat” means a threat that, at the time the
threat is communicated, is known to be false by the person
communicating the threat.
§916. Art. 116. Riot or breach of peace
Any person subject to this chapter who causes or participates in
any riot or breach of the peace shall be punished as a court-martial
may direct.
§917. Art. 117. Provoking speeches or gestures
Any person subject to this chapter who uses provoking or
reproachful words or gestures towards any other person subject to
this chapter shall be punished as a court-martial may direct.
§917. Art. 117a. Wrongful broadcast or
distribution of intimate visual images
(a) PROHIBITION. Any person subject to this chapter—
(1) who knowingly and wrongfully broadcasts or distributes an
intimate visual image of another person or a visual image of
sexually explicit conduct involving a person who—
(A) is at least 18 years of age at the time the intimate visual
image or visual image of sexually explicit conduct was created;
(B) is identifiable from the intimate visual image or visual
image of sexually explicit conduct itself, or from information
displayed in connection with the intimate visual image or visual
image of sexually explicit conduct; and
(C) does not explicitly consent to the broadcast or distribution
of the intimate visual image or visual image of sexually explicit
conduct;
(2) who knows or reasonably should have known that the
intimate visual image or visual image of sexually explicit conduct
was made under circumstances in which the person depicted in the
intimate visual image or visual image of sexually explicit conduct
retained a reasonable expectation of privacy regarding any
broadcast or distribution of the intimate visual image or visual
image of sexually explicit conduct;
(3) who knows or reasonably should have known that the
broadcast or distribution of the intimate visual image or visual
image of sexually explicit conduct is likely—
(A) to cause harm, harassment, intimidation, emotional
distress, or financial loss for the person depicted in the intimate
visual image or visual image of sexually explicit conduct; or
(B) to harm substantially the depicted person with respect to
that person’s health, safety, business, calling, career, financial
condition, reputation, or personal relationships; and
(4) whose conduct, under the circumstances, had a reasonably
direct and palpable connection to a military mission or military
environment, is guilty of wrongful distribution of intimate visual
images or visual images of sexually explicit conduct and shall be
punished as a court-martial may direct.
(b) D
EFINITIONS. In this section:
(1) B
ROADCAST. The term ‘broadcast’ means to electronically
transmit a visual image with the intent that it be viewed by a person
or persons.
(2) D
ISTRIBUTE. The term ‘distribute’ means to deliver to the
actual or constructive possession of another person, including
transmission by mail or electronic means.
(3) I
NTIMATE VISUAL IMAGE. The term ‘intimate visual image’
means a visual image that depicts a private area of a person.
(4) P
RIVATE AREA. The term ‘private area’ means the naked or
underwear-clad genitalia, anus, buttocks, or female areola or nipple.
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(5) REASONABLE EXPECTATION OF PRIVACY. The term
‘reasonable expectation of privacy’ means circumstances in which
a reasonable person would believe that a private area of the person,
or sexually explicit conduct involving the person, would not be
visible to the public.
(6) S
EXUALLY EXPLICIT CONDUCT. The term ‘sexually explicit
conduct’ means actual or simulated genital-genital contact, oral-
genital contact, anal-genital contact, or oral-anal contact, whether
between persons of the same or opposite sex, bestiality,
masturbation, or sadistic or masochistic abuse.
(7) V
ISUAL IMAGE. The term ‘visual image’ means the
following:
(A) Any developed or undeveloped photograph, picture, film,
or video.
(B) Any digital or computer image, picture, film, or video
made by any means, including those transmitted by any means,
including streaming media, even if not stored in a permanent
format.
(C) Any digital or electronic data capable of conversion into a
visual image.
§918. Art. 118. Murder
Any person subject to this chapter who, without justification or
excuse, unlawfully kills a human being, when he—
(1) has a premeditated design to kill;
(2) intends to kill or inflict great bodily harm;
(3) is engaged in an act which is inherently dangerous to another
and evinces a wanton disregard of human life; or
(4) is engaged in the perpetration or attempted perpetration of
burglary, rape, rape of a child, sexual assault, sexual assault of a
child, aggravated sexual contact, sexual abuse of a child, robbery,
or aggravated arson; is guilty of murder, and shall suffer such
punishment as a court-martial may direct, except that if found
guilty under clause (1) or (4), he shall suffer death or imprisonment
for life as a court-martial may direct.
§919. Art. 119. Manslaughter
(a) Any person subject to this chapter who, with an intent to kill or
inflict great bodily harm, unlawfully kills a human being in the heat
of sudden passion caused by adequate provocation is guilty of
voluntary manslaughter and shall be punished as a court-martial
may direct.
(b) Any person subject to this chapter who, without an intent to kill
or inflict great bodily harm, unlawfully kills a human being—
(1) by culpable negligence; or
(2) while perpetrating or attempting to perpetrate an offense,
other than those named in clause (4) of section 918 of this title
(article 118), directly affecting the person; is guilty of involuntary
manslaughter and shall be punished as a court-martial may direct.
§919a. Art. 119a. Death or injury of an unborn
child
(a)(1) Any person subject to this chapter who engages in conduct
that violates any of the provisions of law listed in subsection (b)
and thereby causes the death of, or bodily injury (as defined in
section 1365 of title 18) to, a child, who is in utero at the time the
conduct takes place, is guilty of a separate offense under this
section and shall, upon conviction, be punished by such
punishment, other than death, as a court-martial may direct, which
shall be consistent with the punishments prescribed by the
President for that conduct had that injury or death occurred to the
unborn child’s mother.
(2) An offense under this section does not require proof that—
(i) the person engaging in the conduct had knowledge or
should have had knowledge that the victim of the underlying
offense was pregnant; or
(ii) the accused intended to cause the death of, or bodily
injury to, the unborn child.
(3) If the person engaging in the conduct thereby intentionally
kills or attempts to kill the unborn child, that person shall, instead
of being punished under paragraph (1), be punished as provided
under sections 880, 918, and 919(a) of this title (articles 80, 118,
and 119(a)) for intentionally killing or attempting to kill a human
being.
(4) Notwithstanding any other provision of law, the death
penalty shall not be imposed for an offense under this section.
(b) The provisions referred to in subsection (a) are sections 918,
919(a), 919(b)(2), 920(a), 922, 926, 928, and 928a of this title
(articles 118, 119(a), 119(b)(2), 120(a), 122, 126, 128, and 128a.
(c) Nothing in this section shall be construed to permit the
prosecution—
(1) of any person for conduct relating to an abortion for which
the consent of the pregnant woman, or a person authorized by law
to act on her behalf, has been obtained or for which such consent is
implied by law;
(2) of any person for any medical treatment of the pregnant
woman or her unborn child; or
(3) of any woman with respect to her unborn child.
(d) In this section, the term “unborn child” means a child in utero,
and the term “child in utero” or “child, who is in utero” means a
member of the species homo sapiens, at any stage of development,
who is carried in the womb.
§919b. Art. 119b. Child endangerment
Any person subject to this chapter—
(1) who has a duty for the care of a child under the age of 16
years; and
(2) who, through design or culpable negligence, endangers the
child’s mental or physical health, safety, or welfare; shall be
punished as a court-martial may direct.
§920. Art. 120. Rape and sexual assault generally
(a) RAPE.—Any person subject to this chapter who commits a
sexual act upon another person by—
(1) using unlawful force against that other person;
(2) using force causing or likely to cause death or grievous
bodily harm to any person;
(3) threatening or placing that other person in fear that any
person will be subjected to death, grievous bodily harm, or
kidnapping;
(4) first rendering that other person unconscious; or
(5) administering to that other person by force or threat of force,
or without the knowledge or consent of that person, a drug,
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intoxicant, or other similar substance and thereby substantially
impairing the ability of that other person to appraise or control
conduct;
is guilty of rape and shall be punished as a court-martial may direct.
(b) S
EXUAL ASSAULT.—Any person subject to this chapter who—
(1) commits a sexual act upon another person by—
(A) threatening or placing that other person in fear;
(B) making a fraudulent representation that the sexual act
serves a professional purpose; or
(C) inducing a belief by any artifice, pretense, or concealment
that the person is another person;
(2) commits a sexual act upon another person—
(A) without the consent of the other person; or
(B) when the person knows or reasonably should know that
the other person is asleep, unconscious, or otherwise unaware that
the sexual act is occurring; or
(3) commits a sexual act upon another person when the other
person is incapable of consenting to the sexual act due to—
(A) impairment by any drug, intoxicant, or other similar
substance, and that condition is known or reasonably should be
known by the person; or
(B) a mental disease or defect, or physical disability, and that
condition is known or reasonably should be known by the person;
is guilty of sexual assault and shall be punished as a court-martial
may direct.
(c) A
GGRAVATED SEXUAL CONTACT.—Any person subject to this
chapter who commits or causes sexual contact upon or by another
person, if to do so would violate subsection (a) (rape) had the
sexual contact been a sexual act, is guilty of aggravated sexual
contact and shall be punished as a court-martial may direct.
(d) A
BUSIVE SEXUAL CONTACT.—Any person subject to this
chapter who commits or causes sexual contact upon or by another
person, if to do so would violate subsection (b) (sexual assault) had
the sexual contact been a sexual act, is guilty of abusive sexual
contact and shall be punished as a court-martial may direct.
(e) P
ROOF OF THREAT.—In a prosecution under this section, in
proving that a person made a threat, it need not be proven that the
person actually intended to carry out the threat or had the ability to
carry out the threat.
(f) D
EFENSES.—An accused may raise any applicable defenses
available under this chapter or the Rules for Court-Martial.
Marriage is not a defense for any conduct in issue in any
prosecution under this section.
(g) D
EFINITIONS.—In this section:
(1) S
EXUAL ACT.—The term “sexual act” means—
(A) the penetration, however, slight, of the penis into the
vulva or anus or mouth;
(B) contact between the mouth and the penis, vulva, scrotum,
or anus; or
(C) the penetration, however slight, of the vulva or penis or
anus of another by any part of the body or any object, with an intent
to abuse, humiliate, harass, or degrade any person or to arouse or
gratify the sexual desire of any person.
(2) Sexual contact.—The term “sexual contact” means touching,
or causing another person to touch, either directly or through the
clothing, the vulva, penis, scrotum, anus, groin, breast, inner thigh,
or buttocks of any person, with an intent to abuse, humiliate,
harass, or degrade any person or to arouse or gratify the sexual
desire of any person. Touching may be accomplished by any part
of the body or an object.
(3) G
RIEVOUS BODILY HARM.—The term “grievous bodily
harm” means serious bodily injury. It includes fractured or
dislocated bones, deep cuts, torn members of the body, serious
damage to internal organs, and other severe bodily injuries. It does
not include minor injuries such as a black eye or a bloody nose.
(4) F
ORCE.—The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or violence as is
sufficient to overcome, restrain, or injure a person; or
(C) inflicting physical harm sufficient to coerce or compel
submission by the victim.
(5) U
NLAWFUL FORCE.—The term “unlawful force” means an
act of force done without legal justification or excuse.
(6) T
HREATENING OR PLACING THAT OTHER PERSON IN FEAR.—
The term “threatening or placing that other person in fear” means a
communication or action that is of sufficient consequence to cause
a reasonable fear that non-compliance will result in the victim or
another person being subjected to the wrongful action contemplated
by the communication or action.
(7) C
ONSENT.—
(A) The term “consent” means a freely given agreement to the
conduct at issue by a competent person. An expression of lack of
consent through words or conduct means there is no consent. Lack
of verbal or physical resistance does not constitute consent.
Submission resulting from the use of force, threat of force, or
placing another person in fear also does not constitute consent. A
current or previous dating or social or sexual relationship by itself
or the manner of dress of the person involved with the accused in
the conduct at issue does not constitute consent.
(B) A sleeping, unconscious, or incompetent person cannot
consent. A person cannot consent to force causing or likely to cause
death or grievous bodily harm or to being rendered unconscious. A
person cannot consent while under threat or in fear or under the
circumstances described in subparagraph (C) or (D) of subsection
(b)(1).
(C) All the surrounding circumstances are to be considered in
determining whether a person gave consent.
(8) Incapable of consenting.—The term “incapable of
consenting” means the person is—
(A) incapable of appraising the nature of the conduct at issue;
or
(B) physically incapable of declining participation in, or
communicating unwillingness to engage in, the sexual act at issue.
§920a. Art. 120a. Mails: deposit of obscene matter
Any person subject to this chapter who, wrongfully and
knowingly, deposits obscene matter for mailing and delivery shall
be punished as a court-martial may direct.
§920b. Art. 120b. Rape and sexual assault of a
child
(a) RAPE OF A CHILD.—Any person subject to this chapter who—
(1) commits a sexual act upon a child who has not attained the
age of 12 years; or
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(2) commits a sexual act upon a child who has attained the age
of 12 years by—
(A) using force against any person;
(B) threatening or placing that child in fear;
(C) rendering that child unconscious; or
(D) administering to that child a drug, intoxicant, or other
similar substance; is guilty of rape of a child and shall be punished
as a court-martial may direct.
(b) S
EXUAL ASSAULT OF A CHILD.—Any person subject to this
chapter who commits a sexual act upon a child who has attained the
age of 12 years is guilty of sexual assault of a child and shall be
punished as a court-martial may direct.
(c) S
EXUAL ABUSE OF A CHILD.—Any person subject to this
chapter who commits a lewd act upon a child is guilty of sexual
abuse of a child and shall be punished as a court-martial may direct.
(d) A
GE OF CHILD.—
(1) U
NDER 12 YEARS.—In a prosecution under this section, it
need not be proven that the accused knew the age of the other
person engaging in the sexual act or lewd act. It is not a defense
that the accused reasonably believed that the child had attained the
age of 12 years.
(2) U
NDER 16 YEARS.—In a prosecution under this section, it
need not be proven that the accused knew that the other person
engaging in the sexual act or lewd act had not attained the age of 16
years, but it is a defense in a prosecution under subsection (b)
(sexual assault of a child) or subsection (c) (sexual abuse of a
child), which the accused must prove by a preponderance of the
evidence, that the accused reasonably believed that the child had
attained the age of 16 years, if the child had in fact attained at least
the age of 12 years.
(e) P
ROOF OF THREAT.—In a prosecution under this section, in
proving that a person made a threat, it need not be proven that the
person actually intended to carry out the threat or had the ability to
carry out the threat.
(f) M
ARRIAGE.—In a prosecution under subsection (b) (sexual
assault of a child) or subsection (c) (sexual abuse of a child), it is a
defense, which the accused must prove by a preponderance of the
evidence, that the persons engaging in the sexual act or lewd act
were at that time married to each other, except where the accused
commits a sexual act upon the person when the accused knows or
reasonably should know that the other person is asleep,
unconscious, or otherwise unaware that the sexual act is occurring
or when the other person is incapable of consenting to the sexual
act due to impairment by any drug, intoxicant, or other similar
substance, and that condition was known or reasonably should have
been known by the accused.
(g) C
ONSENT.—Lack of consent is not an element and need not be
proven in any prosecution under this section. A child not legally
married to the person committing the sexual act, lewd act, or use of
force cannot consent to any sexual act, lewd act, or use of force.
(h) D
EFINITIONS.—In this section:
(1) S
EXUAL ACT AND SEXUAL CONTACT.—The terms “sexual
act” and “sexual contact” have the meanings given those terms in
section 920(g) of this title (article 120(g)), except that the term
“sexual act” also includes the intentional touching, not through the
clothing, of the genitalia of another person who has not attained the
age of 16 years with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person.
(2) F
ORCE.—The term “force” means—
(A) the use of a weapon;
(B) the use of such physical strength or violence as is
sufficient to overcome, restrain, or injure a child; or
(C) inflicting physical harm.
In the case of a parent-child or similar relationship, the use or abuse
of parental or similar authority is sufficient to constitute the use of
force.
(3) T
HREATENING OR PLACING THAT CHILD IN FEAR.—The term
“threatening or placing that child in fear” means a communication
or action that is of sufficient consequence to cause the child to fear
that non-compliance will result in the child or another person being
subjected to the action contemplated by the communication or
action.
(4) C
HILD.—The term “child” means any person who has not
attained the age of 16 years.
(5) L
EWD ACT.—The term “lewd act” means—
(A) any sexual contact with a child;
(B) intentionally exposing one’s genitalia, anus, buttocks, or
female areola or nipple to a child by any means, including via any
communication technology, with an intent to abuse, humiliate, or
degrade any person, or to arouse or gratify the sexual desire of any
person;
(C) intentionally communicating indecent language to a child
by any means, including via any communication technology, with
an intent to abuse, humiliate, or degrade any person, or to arouse or
gratify the sexual desire of any person; or
(D) any indecent conduct, intentionally done with or in the
presence of a child, including via any communication technology,
that amounts to a form of immorality relating to sexual impurity
which is grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or deprave morals with
respect to sexual relations.
§920c. Art. 120c. Other sexual misconduct
(a) INDECENT VIEWING, VISUAL RECORDING, OR
BROADCASTING.—Any person subject to this chapter who, without
legal justification or lawful authorization—
(1) knowingly and wrongfully views the private area of another
person, without that other person’s consent and under
circumstances in which that other person has a reasonable
expectation of privacy;
(2) knowingly photographs, videotapes, films, or records by any
means the private area of another person, without that other
person's consent and under circumstances in which that other
person has a reasonable expectation of privacy; or
(3) knowingly broadcasts or distributes any such recording that
the person knew or reasonably should have known was made under
the circumstances proscribed in paragraphs (1) and (2);
is guilty of an offense under this section and shall be punished as a
court-martial may direct.
(b) F
ORCIBLE PANDERING.—Any person subject to this chapter
who compels another person to engage in an act of prostitution with
any person is guilty of forcible pandering and shall be punished as a
court-martial may direct.
(c) I
NDECENT EXPOSURE.—Any person subject to this chapter who
intentionally exposes, in an indecent manner, the genitalia, anus,
buttocks, or female areola or nipple is guilty of indecent exposure
and shall by punished as a court-martial may direct.
(d) D
EFINITIONS.—In this section:
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(1) ACT OF PROSTITUTION.—The term “act of prostitution”
means a sexual act or sexual contact (as defined in section 920(g)
of this title (article 120(g))) on account of which anything of value
is given to, or received by, any person.
(2) P
RIVATE AREA.—The term “private area” means the naked or
underwear-clad genitalia, anus, buttocks, or female areola or nipple.
(3) R
EASONABLE EXPECTATION OF PRIVACY.—The term “under
circumstances in which that other person has a reasonable
expectation of privacy” means—
(A) circumstances in which a reasonable person would
believe that he or she could disrobe in privacy, without being
concerned that an image of a private area of the person was being
captured; or
(B) circumstances in which a reasonable person would
believe that a private area of the person would not be visible to the
public.
(4) B
ROADCAST.—The term “broadcast” means to electronically
transmit a visual image with the intent that it be viewed by a person
or persons.
(5) D
ISTRIBUTE.—The term “distribute” means delivering to the
actual or constructive possession of another, including transmission
by electronic means.
(6) I
NDECENT MANNER.—The term “indecent manner” means
conduct that amounts to a form of immorality relating to sexual
impurity which is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite sexual desire or deprave
morals with respect to sexual relations.
§921. Art. 121. Larceny and wrongful
appropriation
(a) Any person subject to this chapter who wrongfully takes,
obtains, or withholds, by any means, from the possession of the
owner or of any other person any money, personal property, or
article of value of any kind—
(1) with intent permanently to deprive or defraud another person
of the use and benefit of property or to appropriate it to his own use
or the use of any person other than the owner, steals that property
and is guilty of larceny; or
(2) with intent temporarily to deprive or defraud another person
of the use and benefit of property or to appropriate it to his own use
or the use of any person other than the owner, is guilty of wrongful
appropriation.
(b) Any person found guilty of larceny or wrongful appropriation
shall be punished as a court-martial may direct.
§921a. Art. 121a. Fraudulent use of credit cards,
debit cards, and other access devices
(a) IN GENERAL.—Any person subject to this chapter who,
knowingly and with intent to defraud, uses—
(1) a stolen credit card, debit card, or other access device;
(2) a revoked, cancelled, or otherwise invalid credit card, debit
card, or other access device; or
(3) a credit card, debit card, or other access device without the
authorization of a person whose authorization is required for such
use; to obtain money, property, services, or anything else of value
shall be punished as a court-martial may direct.
(b) A
CCESS DEVICE DEFINED.—In this section (article), the term
“access device” has the meaning given that term in section 1029 of
title 18.
§921b. Art. 121b. False pretenses to obtain services
Any person subject to this chapter who, with intent to defraud,
knowingly uses false pretenses to obtain services shall be punished
as a court-martial may direct.
§922. Art. 122. Robbery
Any person subject to this chapter who takes anything of value
from the person or in the presence of another, against his will, by
means of force or violence or fear of immediate or future injury to
his person or property or to the person or property of a relative or
member of his family or of anyone in his company at the time of
the robbery, is guilty of robbery and shall be punished as a court-
martial may direct.
§922a. Art. 122a. Receiving stolen property
Any person subject to this chapter who wrongfully receives,
buys, or conceals stolen property, knowing the property to be stolen
property, shall be punished as a court-martial may direct.
§923. Art. 123. Offenses concerning Government
computers
(a) IN GENERAL.—Any person subject to this chapter who—
(1) knowingly accesses a Government computer, with an
unauthorized purpose, and by doing so obtains classified
information, with reason to believe such information could be used
to the injury of the United States, or to the advantage of any foreign
nation, and intentionally communicates, delivers, transmits, or
causes to be communicated, delivered, or transmitted such
information to any person not entitled to receive it;
(2) intentionally accesses a Government computer, with an
unauthorized purpose, and thereby obtains classified or other
protected information from any such Government computer; or
(3) knowingly causes the transmission of a program,
information, code, or command, and as a result of such conduct,
intentionally causes damage without authorization, to a
Government computer; shall be punished as a court-martial may
direct.
(b) D
EFINITIONS.—In this section:
(1) The term “computer” has the meaning given that term in
section 1030 of title 18.
(2) The term “Government computer” means a computer owned
or operated by or on behalf of the United States Government.
(3) The term “damage” has the meaning given that term in
section 1030 of title 18.
§923a. Art. 123a. Making, drawing, or uttering
check, draft, or order without sufficient funds
Any person subject to this chapter who—
(1) for the procurement of any article or thing of value, with
intent to defraud; or
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(2) for the payment of any past due obligation, or for any other
purpose, with intent to deceive; makes, draws, utters, or delivers
any check, draft, or order for the payment of money upon any bank
or other depository, knowing at the time that the maker or drawer
has not or will not have sufficient funds in, or credit with, the bank
or other depository for the payment of that check, draft, or order in
full upon its presentment, shall be punished as a court-martial may
direct. The making, drawing, uttering, or delivering by a maker or
drawer of a check, draft, or order, payment of which is refused by
the drawee because of insufficient funds of the maker or drawer in
the drawee’s possession or control, is prima facie evidence of his
intent to defraud or deceive and of his knowledge of insufficient
funds in, or credit with, that bank or other depository, unless the
maker or drawer pays the holder the amount due within five days
after receiving notice, orally or in writing, that the check, draft, or
order was not paid on presentment. In this section, the word
“credit” means an arrangement or understanding, express or
implied, with the bank or other depository for the payment of that
check, draft, or order.
§924. Art. 124. Frauds against the United States
Any person subject to this chapter—
(1) who, knowing it to be false or fraudulent—
(A) makes any claim against the United States or any officer
thereof; or
(B) presents to any person in the civil or military service
thereof, for approval or payment, any claim against the United
States or any officer thereof;
(2) who, for the purpose of obtaining the approval, allowance, or
payment of any claim against the United States or any officer
thereof—
(A) makes or uses any writing or other paper knowing it to
contain any false or fraudulent statements;
(B) makes any oath to any fact or to any writing or other
paper knowing the oath to be false; or
(C) forges or counterfeits any signature upon any writing or
other paper, or uses any such signature knowing it to be forged or
counterfeited;
(3) who, having charge, possession, custody or control of any
money, or other property of the United States, furnished or intended
for the armed forces thereof, knowingly delivers to any person
having authority to receive it, any amount thereof less than that for
which he receives a certificate or receipt; or
(4) who, being authorized to make or deliver any paper
certifying the receipt of any property of the United States furnished
or intended for the armed forces thereof, makes or delivers to any
person such writing without having full knowledge of the truth of
the statements therein contained and with intent to defraud the
United States; shall, upon conviction, be punished as a court-
martial may direct.
§924a. Art. 124a. Bribery
(a) ASKING, ACCEPTING, OR RECEIVING THING OF VALUE.—Any
person subject to this chapter—
(1) who occupies an official position or who has official duties;
and
(2) who wrongfully asks, accepts, or receives a thing of value
with the intent to have the person’s decision or action influenced
with respect to an official matter in which the United States is
interested; shall be punished as a court-martial may direct.
(b) P
ROMISING, OFFERING, OR GIVING THING OF VALUE.—Any
person subject to this chapter who wrongfully promises, offers, or
gives a thing of value to another person, who occupies an official
position or who has official duties, with the intent to influence the
decision or action of the other person with respect to an official
matter in which the United States is interested, shall be punished as
a court-martial may direct.
§924b. Art. 124b. Graft
(a) ASKING, ACCEPTING, OR RECEIVING THING OF VALUE.—Any
person subject to this chapter—
(1) who occupies an official position or who has official duties;
and
(2) who wrongfully asks, accepts, or receives a thing of value as
compensation for or in recognition of services rendered or to be
rendered by the person with respect to an official matter in which
the United States is interested; shall be punished as a court-martial
may direct.
(b) P
ROMISING, OFFERING, OR GIVING THING OF VALUE.—Any
person subject to this chapter who wrongfully promises, offers, or
gives a thing of value to another person, who occupies an official
position or who has official duties, as compensation for or in
recognition of services rendered or to be rendered by the other
person with respect to an official matter in which the United States
is interested, shall be punished as a court-martial may direct.
§925. Art. 125. Kidnapping
Any person subject to this chapter who wrongfully—
(1) seizes, confines, inveigles, decoys, or carries away another
person; and
(2) holds the other person against that person’s will; shall be
punished as a court-martial may direct.
§926. Art. 126. Arson; burning property with
intent to defraud
(a) AGGRAVATED ARSON.—Any person subject to this chapter
who, willfully and maliciously, burns or sets on fire an inhabited
dwelling, or any other structure, movable or immovable, wherein,
to the knowledge of that person, there is at the time a human being,
is guilty of aggravated arson and shall be punished as a court-
martial may direct.
(b) S
IMPLE ARSON.—Any person subject to this chapter who,
willfully and maliciously, burns or sets fire to the property of
another is guilty of simple arson and shall be punished as a court-
martial may direct.
(c) B
URNING PROPERTY WITH INTENT TO DEFRAUD.—Any person
subject to this chapter who, willfully, maliciously, and with intent
to defraud, burns or sets fire to any property shall be punished as a
court-martial may direct.
§927. Art. 127. Extortion
Any person subject to this chapter who communicates threats to
another person with the intention thereby to obtain anything of
value or any acquittance, advantage, or immunity is guilty of
extortion and shall be punished as a court-martial may direct.
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§928. Art. 128. Assault
(a) ASSAULT.—Any person subject to this chapter who, unlawfully
and with force or violence—
(1) attempts to do bodily harm to another person;
(2) offers to do bodily harm to another person; or
(3) does bodily harm to another person; is guilty of assault and
shall be punished as a court-martial may direct.
(b) A
GGRAVATED ASSAULT.—Any person subject to this chapter—
(1) who, with the intent to do bodily harm, offers to do bodily
harm with a dangerous weapon;
(2) who, in committing an assault, inflicts substantial bodily
harm or grievous bodily harm on another person; or
(3) who commits an assault by strangulation or suffocation;
is guilty of aggravated assault and shall be punished as a court-
martial may direct.
(c) A
SSAULT WITH INTENT TO COMMIT SPECIFIED OFFENSES.—
(1) I
N GENERAL.—Any person subject to this chapter who
commits assault with intent to commit an offense specified in
paragraph (2) shall be punished as a court-martial may direct.
(2) O
FFENSES SPECIFIED.—The offenses referred to in paragraph
(1) are murder, voluntary manslaughter, rape, sexual assault, rape
of a child, sexual assault of a child, robbery, arson, burglary, and
kidnapping.
§928a. Art. 128a. Maiming
Any person subject to this chapter who, with intent to injure,
disfigure, or disable, inflicts upon the person of another an injury
which—
(1) seriously disfigures his person by any mutilation thereof;
(2) destroys or disables any member or organ of his body; or
(3) seriously diminishes his physical vigor by the injury of any
member or organ; is guilty of maiming and shall be punished as a
court-martial may direct.
§928b. Art. 128b. Domestic Violence
Any person who—
(1) commits a violent offense against a spouse, an intimate
partner, or an immediate family member of that person;
(2) with intent to threaten or intimidate a spouse, an intimate
partner, or an immediate family member of that person—
(A) commits an offense under this chapter against any person;
or
(B) commits an offense under this chapter against any
property, including an animal;
(3) with intent to threaten or intimidate a spouse, an intimate
partner, or an immediate family member of that person, violates a
protection order;
(4) with intent to commit a violent offense against a spouse, an
intimate partner, or an immediate family member of that person,
violates a protection order; or
(5) assaults a spouse, an intimate partner, or an immediate
family member of that person by strangling or suffocating
shall be punished as a court-martial may direct.
§929. Art. 129. Burglary; unlawful entry
(a) BURGLARY.—Any person subject to this chapter who, with
intent to commit an offense under this chapter, breaks and enters
the building or structure of another shall be punished as a court-
martial may direct.
(b) U
NLAWFUL ENTRY.—Any person subject to this chapter who
unlawfully enters—
(1) the real property of another; or
(2) the personal property of another which amounts to a structure
usually used for habitation or storage; shall be punished as a court-
martial may direct.
930. Art. 130. Stalking
(a) IN GENERAL.—Any person subject to this chapter—
(1) who wrongfully engages in a course of conduct directed at a
specific person that would cause a reasonable person to fear death
or bodily harm, including sexual assault, to himself or herself, to a
member of his or her immediate family, or to his or her intimate
partner;
(2) who has knowledge, or should have knowledge, that the
specific person will be placed in reasonable fear of death or bodily
harm, including sexual assault, to himself or herself, to a member
of his or her immediate family, or to his or her intimate partner; and
(3) whose conduct induces reasonable fear in the specific person
of death or bodily harm, including sexual assault, to himself or
herself, to a member of his or her immediate family, or to his or her
intimate partner;
is guilty of stalking and shall be punished as a court-martial may
direct.
(b) D
EFINITIONS.—In this section:
(1) The term “conduct” means conduct of any kind, including
use of surveillance, the mails, an interactive computer service, an
electronic communication service, or an electronic communication
system.
(2) The term “course of conduct” means—
(A) a repeated maintenance of visual or physical proximity to
a specific person;
(B) a repeated conveyance of verbal threat, written threats, or
threats implied by conduct, or a combination of such threats,
directed at or toward a specific person; or
(C) a pattern of conduct composed of repeated acts
evidencing a continuity of purpose.
(3) The term “repeated”, with respect to conduct, means two or
more occasions of such conduct.
(4) The term “immediate family”, in the case of a specific
person, means—
(A) that person’s spouse, parent, brother or sister, child, or
other person to whom he or she stands in loco parentis; or
(B) any other person living in his or her household and related
to him or her by blood or marriage.
(5) The term “intimate partner”, in the case of a specific person,
means—
(A) a former spouse of the specific person, a person who
shares a child in common with the specific person, or a person who
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cohabits with or has cohabited as a spouse with the specific person;
or
(B) a person who has been in a social relationship of a
romantic or intimate nature with the specific person, as determined
by the length of the relationship, the type of relationship, and the
frequency of interaction between the persons involved in the
relationship.
§931. Art. 131. Perjury
Any person subject to this chapter who in a judicial proceeding
or in a course of justice willfully and corruptly—
(1) upon a lawful oath or in any form allowed by law to be
substituted for an oath, gives any false testimony material to the
issue or matter of inquiry; or
(2) in any declaration, certificate, verification, or statement
under penalty of perjury as permitted under section 1746 of title 28,
subscribes any false statement material to the issue or matter of
inquiry; is guilty of perjury and shall be punished as a court-martial
may direct.
§931a. Art. 131a. Subornation of perjury
(a) IN GENERAL.—Any person subject to this chapter who induces
and procures another person—
(1) to take an oath; and
(2) to falsely testify, depose, or state upon such oath; shall, if the
conditions specified in subsection (b) are satisfied, be punished as a
court-martial may direct.
(b) C
ONDITIONS.—The conditions referred to in subsection (a) are
the following:
(1) The oath is administered with respect to a matter for which
such oath is required or authorized by law.
(2) The oath is administered by a person having authority to do
so.
(3) Upon the oath, the other person willfully makes or subscribes
a statement.
(4) The statement is material.
(5) The statement is false.
(6) When the statement is made or subscribed, the person subject
to this chapter and the other person do not believe that the
statement is true.
§931b. Art. 131b. Obstructing justice
Any person subject to this chapter who engages in conduct in the
case of a certain person against whom the accused had reason to
believe there were or would be criminal or disciplinary proceedings
pending, with intent to influence, impede, or otherwise obstruct the
due administration of justice shall be punished as a court-martial
may direct.
§931c. Art. 131c. Misprision of serious offense
(a) IN GENERAL.—Any person subject to this chapter—
(1) who knows that another person has committed a serious
offense; and
(2) wrongfully conceals the commission of the offense and fails
to make the commission of the offense known to civilian or
military authorities as soon as possible; shall be punished as a
court-martial may direct.
§931d. Art. 131d. Wrongful refusal to testify
Any person subject to this chapter who, in the presence of a
court-martial, a board of officers, a military commission, a court of
inquiry, preliminary hearing, or an officer taking a deposition, of or
for the United States, wrongfully refuses to qualify as a witness or
to answer a question after having been directed to do so by the
person presiding shall be punished as a court-martial may direct.
§931e. Art. 131e. Prevention of authorized seizure
of property
Any person subject to this chapter who, knowing that one or
more persons authorized to make searches and seizures are seizing,
are about to seize, or are endeavoring to seize property, destroys,
removes, or otherwise disposes of the property with intent to
prevent the seizure thereof shall be punished as a court-martial may
direct.
§931f. Art. 131f. Noncompliance with procedural
rules
Any person subject to this chapter who—
(1) is responsible for unnecessary delay in the disposition of any
case of a person accused of an offense under this chapter; or
(2) knowingly and intentionally fails to enforce or comply with
any provision of this chapter regulating the proceedings before,
during, or after trial of an accused; shall be punished as a court-
martial may direct.
§931g. Art. 131g. Wrongful interference with
adverse administrative proceeding
Any person subject to this chapter who, having reason to believe
that an adverse administrative proceeding is pending against any
person subject to this chapter, wrongfully acts with the intent—
(1) to influence, impede, or obstruct the conduct of the
proceeding; or
(2) otherwise to obstruct the due administration of justice; shall
be punished as a court-martial may direct.
§932. Art. 132. Retaliation
(a) IN GENERAL.—Any person subject to this chapter who, with the
intent to retaliate against any person for reporting or planning to
report a criminal offense, or making or planning to make a
protected communication, or with the intent to discourage any
person from reporting a criminal offense or making or planning to
make a protected communication—
(1) wrongfully takes or threatens to take an adverse personnel
action against any person; or
(2) wrongfully withholds or threatens to withhold a favorable
personnel action with respect to any person; shall be punished as a
court-martial may direct.
(b) D
EFINITIONS.—In this section:
(1) The term “protected communication” means the following:
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(A) A lawful communication to a Member of Congress or an
Inspector General.
(B) A communication to a covered individual or organization
in which a member of the armed forces complains of, or discloses
information that the member reasonably believes constitutes
evidence of, any of the following:
(i) A violation of law or regulation, including a law or
regulation prohibiting sexual harassment or unlawful
discrimination.
(ii) Gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public
health or safety.
(2) The term “Inspector General” has the meaning given that
term in section 1034(j) of this title.
(3) The term “covered individual or organization” means any
recipient of a communication specified in clauses (i) through (v) of
section 1034(b)(1)(B) of this title.
(4) The term “unlawful discrimination” means discrimination on
the basis of race, color, religion, sex, or national origin.
§933. Art. 133. Conduct unbecoming an officer
Any commissioned officer, cadet, or midshipman who is
convicted of conduct unbecoming an officer shall be punished as a
court-martial may direct.
§934. Art. 134. General article
Though not specifically mentioned in this chapter, all disorders
and neglects to the prejudice of good order and discipline in the
armed forces, all conduct of a nature to bring discredit upon the
armed forces, and crimes and offenses not capital, of which persons
subject to this chapter may be guilty, shall be taken cognizance of
by a general, special, or summary court-martial, according to the
nature and degree of the offense, and shall be punished at the
discretion of that court. As used in the preceding sentence, the term
“crimes and offenses not capital” includes any conduct engaged in
outside the United States, as defined in section 5 of title 18, that
would constitute a crime or offense not capital if the conduct had
been engaged in within the special maritime and territorial
jurisdiction of the United States, as defined in section 7 of title 18.
SUBCHAPTER XI. MISCELLANEOUS
PROVISIONS
Sec.
935.
Art.
135.
Courts of inquiry.
936.
136.
Authority to administer oaths.
937.
137.
Articles to be explained.
938.
138.
Complaints of wrongs.
939.
139.
Redress of injuries to property.
940.
140.
Delegation by the President.
940a.
140a.
Case management; data collection and accessibility.
§935. Art. 135. Courts of inquiry
(a) Courts of inquiry to investigate any matter may be convened by
any person authorized to convene a general court-martial or by any
other person designated by the Secretary concerned for that purpose,
whether or not the persons involved have requested such an inquiry.
(b) A court of inquiry consists of three or more commissioned
officers. For each court of inquiry the convening authority shall also
appoint counsel for the court.
(c)(1) Any person subject to this chapter whose conduct is subject
to inquiry shall be designated as a party.
(2) Any person who is (A) subject to this chapter, (B) employed
by the Department of Defense, or (C) with respect to the Coast
Guard, employed by the department in which the Coast Guard is
operating when it is not operating as a service in the Navy, and who
has a direct interest in the subject of inquiry has the right to be
designated as a party upon request to the court.
(3) Any person designated as a party shall be given due notice and
has the right to be present, to be represented by counsel, to cross-
examine witnesses, and to introduce evidence.
(d) Members of a court of inquiry may be challenged by a party, but
only for cause stated to the court.
(e) The members, counsel, the reporter, and interpreters of courts of
inquiry shall take an oath to faithfully perform their duties.
(f) Witnesses may be summoned to appear and testify and be
examined before courts of inquiry, as provided for courts-martial.
(g) Courts of inquiry shall make findings of fact but may not express
opinions or make recommendations unless required to do so by the
convening authority.
(h) Each court of inquiry shall keep a record of its proceedings,
which shall be authenticated by the signatures of the president and
counsel for the court and forwarded to the convening authority. If the
record cannot be authenticated by the president, it shall be signed by
a member in lieu of the president. If the record cannot be
authenticated by the counsel for the court, it shall be signed by a
member in lieu of the counsel.
§936. Art. 136. Authority to administer oaths
(a) The following persons on active duty or performing inactive-duty
training may administer oaths for the purposes of military
administration, including military justice:
(1) All judge advocates.
(2) All summary courts-martial.
(3) All adjutants, assistant adjutants, acting adjutants, and
personnel adjutants.
(4) All commanding officers of the Navy, Marine Corps, and
Coast Guard.
(5) All staff judge advocates and legal officers, and acting or
assistant staff judge advocates and legal officers.
(6) All other persons designated by regulations of the armed
forces or by statute.
(b) The following persons on active duty or performing inactive-duty
training may administer oaths necessary in the performance of their
duties:
(1) The president, military judge, trial counsel, and assistant trial
counsel for all general and special courts-martial.
(2) The president and the counsel for the court of any court of
inquiry.
(3) All officers designated to take a deposition.
(4) All persons detailed to conduct an investigation.
(5) All recruiting officers.
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(6) All other persons designated by regulations of the armed
forces or by statute.
(c) Each judge and senior judge of the United States Court of
Appeals for the Armed Forces shall have the powers relating to
oaths, affirmations, and acknowledgements provided to justices and
judges of the United States by section 459 of title 28.
§937. Art. 137. Articles to be explained
(a) ENLISTED MEMBERS.—
(1) The sections (articles) of this chapter specified in paragraph
(3) shall be carefully explained to each enlisted member at the time
of (or within fourteen days after)—
(A) the member’s initial entrance on active duty; or
(B) the member’s initial entrance into a duty status with a
reserve component.
(2) Such sections (articles) shall be explained again—
(A) after the member has completed six months of active duty
or, in the case of a member of a reserve component, after the member
has completed basic or recruit training; and
(B) at the time when the member reenlists.
(3) This subsection applies with respect to sections 802, 803, 807–
815, 825, 827, 831, 837, 838, 855, 877–934, and 937–939 of this title
(articles 2, 3, 7–15, 25, 27, 31, 37, 38, 55, 77–134, and 137–139).
(b) O
FFICERS.—
(1) The sections (articles) of this chapter specified in paragraph
(2) shall be carefully explained to each officer at the time of (or
within six months after)—
(A) the initial entrance of the officer on active duty as an
officer; or
(B) the initial commissioning of the officer in a reserve
component.
(2) This subsection applies with respect to the sections (articles)
specified in subsection (a)(3) and such other sections (articles) as the
Secretary concerned may prescribe by regulation.
(c) T
RAINING FOR CERTAIN OFFICERS.—Under regulations
prescribed by the Secretary concerned, officers with the authority to
convene courts-martial or to impose non-judicial punishment shall
receive periodic training regarding the purposes and administration
of this chapter. Under regulations prescribed by the Secretary of
Defense, officers assigned to duty in a combatant command, who
have such authority, shall receive additional specialized training
regarding the purposes and administration of this chapter with
respect to joint commands and combatant commands.
(d) A
VAILABILITY AND MAINTENANCE OF TEXT.—The text of this
chapter and the text of the regulations prescribed by the President
under this chapter shall be—
(1) made available to a member on active duty or to a member of
a reserve component, upon request by the member, for the member’s
personal examination; and
(2) maintained by the Secretary of Defense in electronic formats
that are updated periodically and made available on the Internet.
§938. Art. 138. Complaints of wrongs
Any member of the armed forces who believes himself wronged
by his commanding officer, and who, upon due application to that
commanding officer, is refused redress, may complain to any
superior commissioned officer, who shall forward the complaint to
the officer exercising general court-martial jurisdiction over the
officer against whom it is made. The officer exercising general court-
martial jurisdiction shall examine into the complaint and take proper
measures for redressing the wrong complained of; and he shall, as
soon as possible, send to the Secretary concerned a true statement of
that complaint, with the proceedings had thereon.
§939. Art. 139. Redress of injuries to property
(a) Whenever complaint is made to any commanding officer that
willful damage has been done to the property of any person or that
his property has been wrongfully taken by members of the armed
forces, he may, under such regulations as the Secretary concerned
may prescribe, convene a board to investigate the complaint. The
board shall consist of from one to three commissioned officers and,
for the purpose of that investigation, it has power to summon
witnesses and examine them upon oath, to receive depositions or
other documentary evidence, and to assess the damages sustained
against the responsible parties. The assessment of damages made by
the board is subject to the approval of the commanding officer, and
in the amount approved by him shall be charged against the pay of
the offenders. The order of the commanding officer directing charges
herein authorized is conclusive on any disbursing officer for the
payment by him to the injured parties of the damages so assessed and
approved.
(b) If the offenders cannot be ascertained, but the organization or
detachment to which they belong is known, charges totaling the
amount of damages assessed and approved may be made in such
proportion as may be considered just upon the individual members
thereof who are shown to have been present at the scene at the time
the damages complained of were inflicted, as determined by the
approved findings of the board.
§940. Art. 140. Delegation by the President
The President may delegate any authority vested in him under this
chapter, and provide for the subdelegation of any such authority.
§940a. Art. 140a. Case management; data collection
and accessibility
(a) IN GENERAL.—The Secretary of Defense, in consultation with
the Secretary of Homeland Security, shall prescribe uniform
standards and criteria for conduct of each of the following functions
at all stages of the military justice system (including with respect to
the Coast Guard), including pretrial, trial, post-trial, and appellate
processes, using, insofar as practicable, the best practices of Federal
and State courts:
(1) Collection and analysis of data concerning substantive
offenses and procedural matters in a manner that facilitates case
management and decision making within the military justice system,
and that enhances the quality of periodic reviews under section 946
of this title (article 146).
(2) Case processing and management.
(3) Timely, efficient, and accurate production and distribution of
records of trial within the military justice system.
(4) Facilitation of access to docket information, filings, and
records, taking into consideration restrictions appropriate to judicial
proceedings and military records.
(b) P
ROTECTION OF CERTAIN PERSONALLY IDENTIFIABLE
INFORMATION.—Records of trial, docket information, filings, and
other records made publicly accessible in accordance with the
UNIFORM CODE OF MILITARY JUSTICE
A2-53
uniform standards and criteria for conduct established by the
Secretary under subsection (a) shall restrict access to personally
identifiable information of minors and victims of crime (including
victims of sexual assault and domestic violence), as practicable to
the extent such information is restricted in electronic filing systems
of Federal and State courts.
(c) I
NAPPLICABILITY TO CERTAIN DOCKETS AND RECORDS.—
Nothing in this section shall be construed to provide public access
to docket information, filings, or records that are classified, subject
to a judicial protective order, or ordered sealed.
(d) P
RESERVATION OF COURT-MARTIAL RECORDS WITHOUT
DISREGARD TO OUTCOME.—The standards and criteria prescribed
by the Secretary of Defense under subsection (a) shall provide for
the preservation of general and special court-martial records,
without regard to the outcome of the proceeding concerned, for not
fewer than 15 years.
SUBCHAPTER XII. UNITED STATES COURT
OF APPEALS FOR THE ARMED FORCES
Sec.
941.
Art.
141.
Status.
942.
142.
Judges.
943.
143.
Organization and employees.
944.
144.
Procedure.
945.
145.
Annuities for judges and survivors.
946.
146.
Military Justice Review Panel.
946a.
146a.
Annual reports.
§941. Art. 141. Status
There is a court of record known as the United States Court of
Appeals for the Armed Forces. The court is established under article
I of the Constitution. The court is located for administrative purposes
only in the Department of Defense.
§942. Art. 142. Judges
(a) NUMBER.—The United States Court of Appeals for the Armed
Forces consists of five judges.
(b) A
PPOINTMENT; QUALIFICATION.—
(1) Each judge of the court shall be appointed from civilian life
by the President, by and with the advice and consent of the Senate,
for a specified term determined under paragraph (2). A judge may
serve as a senior judge as provided in subsection (e).
(2)(A) The term of a judge shall expire as follows:
(i) In the case of a judge who is appointed after January 31
and before July 31 of any year, the term shall expire on July 31 of
the year in which the fifteenth anniversary of the appointment
occurs.
(ii) In the case of a judge who is appointed after July 31 of
any year and before February 1 of the following year, the term shall
expire fifteen years after such July 31.
(B) If at the time of the appointment of a judge the date that is
otherwise applicable under subparagraph (A) for the expiration of
the term of service of the judge is the same as the date for the
expiration of the term of service of a judge already on the court,
then the term of the judge being appointed shall expire on the first
July 31 after such date on which no term of service of a judge
already on the court will expire.
(3) No person may be appointed to be a judge of the court unless
the person is a member of the bar of a Federal court or the highest
court of a State.
(4) A person may not be appointed as a judge of the court within
seven years after retirement from active duty as a commissioned
officer of a regular component of an armed force.
(c) R
EMOVAL.—Judges of the court may be removed from office by
the President, upon notice and hearing, for—
(1) neglect of duty;
(2) misconduct; or
(3) mental or physical disability. A judge may not be removed by
the President for any other cause.
(d) P
AY AND ALLOWANCES.—Each judge of the court is entitled to
the same salary and travel allowances as are, and from time to time
may be, provided for judges of the United States Courts of Appeals.
(e) S
ENIOR JUDGES.—(1)(A) A former judge of the court who is
receiving retired pay or an annuity under section 945 of this title
(article 145) or under subchapter III of chapter 83 or chapter 84 of
title 5 shall be a senior judge. The chief judge of the court may call
upon an individual who is a senior judge of the court under this
subparagraph, with the consent of the senior judge, to perform
judicial duties with the court—
(i) during a period a judge of the court is unable to perform
his duties because of illness or other disability;
(ii) during a period in which a position of judge of the court
is vacant; or
(iii) in any case in which a judge of the court recuses
himself.
(B) If, at the time the term of a judge expires, no successor to
that judge has been appointed, the chief judge of the court may call
upon that judge (with that judge’s consent) to continue to perform
judicial duties with the court until the vacancy is filled. A judge who,
upon the expiration of the judge’s term, continues to perform judicial
duties with the court without a break in service under this
subparagraph shall be a senior judge while such service continues.
(2) A senior judge shall be paid for each day on which he performs
judicial duties with the court an amount equal to the difference
between—
(A) the daily equivalent of the annual rate of pay provided
for a judge of the court; and
(B) the daily equivalent of the annuity of the judge under
section 945 of this title (article 145), the applicable provisions of title
5, or any other retirement system for employees of the Federal
Government under which the senior judge receives an annuity.
(3) A senior judge, while performing duties referred to in
paragraph (1), shall be provided with such office space and staff
assistance as the chief judge considers appropriate and shall be
entitled to the per diem, travel allowances, and other allowances
provided for judges of the court.
(4) A senior judge shall be considered to be an officer or employee
of the United States with respect to his status as a senior judge, but
only during periods the senior judge is performing duties referred to
in paragraph (1). For the purposes of section 205 of title 18, a senior
judge shall be considered to be a special government employee
during such periods. Any provision of law that prohibits or limits the
political or business activities of an employee of the United States
shall apply to a senior judge only during such periods.
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(5) The court shall prescribe rules for the use and conduct of
senior judges of the court. The chief judge of the court shall transmit
such rules, and any amendments to such rules, to the Committee on
Armed Services of the Senate and the Committee on Armed Services
of the House of Representatives not later than 15 days after the
issuance of such rules or amendments, as the case may be.
(6) For purposes of subchapter III of chapter 83 of title 5 (relating
to the Civil Service Retirement and Disability System) and chapter
84 of such title (relating to the Federal Employees’ Retirement
System) and for purposes of any other Federal Government
retirement system for employees of the Federal Government—
(A) a period during which a senior judge performs duties
referred to in paragraph (1) shall not be considered creditable
service;
(B) no amount shall be withheld from the pay of a senior judge
as a retirement contribution under section 8334, 8343, 8422, or 8432
of title 5 or under any other such retirement system for any period
during which the senior judge performs duties referred to in
paragraph (1);
(C) no contribution shall be made by the Federal Government
to any retirement system with respect to a senior judge for any period
during which the senior judge performs duties referred to in
paragraph (1); and
(D) a senior judge shall not be considered to be a reemployed
annuitant for any period during which the senior judge performs
duties referred to in paragraph (1).
(f) S
ERVICE OF ARTICLE III JUDGES.—(1) The Chief Justice of the
United States, upon the request of the chief judge of the court, may
designate a judge of a United States court of appeals or of a United
States district court to perform the duties of judge of the United
States Court of Appeals for the Armed Forces—
(A) during a period a judge of the court is unable to perform
his duties because of illness or other disability;
(B) in any case in which a judge of the court recuses himself;
or
(C) during a period when there is a vacancy on the court and in
the opinion of the chief judge of the court such a designation is
necessary for the proper dispatch of the business of the court.
(2) The chief judge of the court may not request that a designation
be made under paragraph (1) unless the chief judge has determined
that no person is available to perform judicial duties with the court
as a senior judge under subsection (e).
(3) A designation under paragraph (1) may be made only with the
consent of the designated judge and the concurrence of the chief
judge of the court of appeals or district court concerned.
(4) Per diem, travel allowances, and other allowances paid to the
designated judge in connection with the performance of duties for
the court shall be paid from funds available for the payment of per
diem and such allowances for judges of the court.
(g) E
FFECT OF VACANCY ON COURT.—A vacancy on the court does
not impair the right of the remaining judges to exercise the powers
of the court.
§943. Art. 143. Organization and employees
(a) CHIEF JUDGE.—
(1) The chief judge of the United States Court of Appeals for the
Armed Forces shall be the judge of the court in regular active service
who is senior in commission among the judges of the court who—
(A) have served for one or more years as judges of the court;
and
(B) have not previously served as chief judge.
(2) In any case in which there is no judge of the court in regular
active service who has served as a judge of the court for at least one
year, the judge of the court in regular active service who is senior in
commission and has not served previously as chief judge shall act as
the chief judge.
(3) Except as provided in paragraph (4), a judge of the court shall
serve as the chief judge under paragraph (1) for a term of five years.
If no other judge is eligible under paragraph (1) to serve as chief
judge upon the expiration of that term, the chief judge shall continue
to serve as chief judge until another judge becomes eligible under
that paragraph to serve as chief judge.
(4)(A) The term of a chief judge shall be terminated before the
end of five years if—
(i) the chief judge leaves regular active service as a judge of
the court; or
(ii) the chief judge notifies the other judges of the court in
writing that such judge desires to be relieved of his duties as chief
judge.
(B) The effective date of a termination of the term under
subparagraph (A) shall be the date on which the chief judge leaves
regular active service or the date of the notification under
subparagraph (A)(ii), as the case may be.
(5) If a chief judge is temporarily unable to perform his duties as
a chief judge, the duties shall be performed by the judge of the court
in active service who is present, able and qualified to act, and is next
in precedence.
(b) P
RECEDENCE OF JUDGES.—The chief judge of the court shall
have precedence and preside at any session that he attends. The other
judges shall have precedence and preside according to the seniority
of their original commissions. Judges whose commissions bear the
same date shall have precedence according to seniority in age.
(c) S
TATUS OF CERTAIN POSITIONS.—
(1) Attorney positions of employment under the Court of Appeals
for the Armed Forces are excepted from the competitive service. A
position of employment under the court that is provided primarily for
the service of one judge of the court, reports directly to the judge,
and is a position of a confidential character is excepted from the
competitive service. Appointments to positions referred to in the
preceding sentences shall be made by the court, without the
concurrence of any other officer or employee of the executive
branch, in the same manner as appointments are made to other
executive branch positions of a confidential or policy-determining
character for which it is not practicable to examine or to hold a
competitive examination. Such positions shall not be counted as
positions of that character for purposes of any limitation on the
number of positions of that character provided in law.
(2) In making appointments to the positions described in
paragraph (1), preference shall be given, among equally qualified
persons, to persons who are preference eligibles (as defined in
section 2108(3) of title 5).
§944. Art. 144. Procedure
The United States Court of Appeals for the Armed Forces may
prescribe its rules of procedure and may determine the number of
judges required to constitute a quorum.
UNIFORM CODE OF MILITARY JUSTICE
A2-55
§945. Art. 145. Annuities for judges and survivors
(a) RETIREMENT ANNUITIES FOR JUDGES.—
(1) A person who has completed a term of service for which he
was appointed as a judge of the United States Court of Appeals for
the Armed Forces is eligible for an annuity under this section upon
separation from civilian service in the Federal Government. A person
who continues service with the court as a senior judge under section
942(e)(1)(B) of this title (article 142(e)(1)(B)) upon the expiration of
the judge’s term shall be considered to have been separated from
civilian service in the Federal Government only upon the termination
of that continuous service.
(2) A person who is eligible for an annuity under this section shall
be paid that annuity if, at the time he becomes eligible to receive that
annuity, he elects to receive that annuity in lieu of any other annuity
for which he may be eligible at the time of such election (whether an
immediate or a deferred annuity) under subchapter III of chapter 83
or subchapter II of chapter 84 of title 5 or any other retirement system
for civilian employees of the Federal Government. Such an election
may not be revoked.
(3)(A) The Secretary of Defense shall notify the Director of the
Office of Personnel Management whenever an election under
paragraph (2) is made affecting any right or interest under subchapter
III of chapter 83 or subchapter II of chapter 84 of title 5 based on
service as a judge of the United States Court of Appeals for the
Armed Forces.
(B) Upon receiving any notification under subparagraph (A) in
the case of a person making an election under paragraph (2), the
Director shall determine the amount of the person’s lump-sum credit
under subchapter III of chapter 83 or subchapter II of chapter 84 of
title 5, as applicable, and shall request the Secretary of the Treasury
to transfer such amount from the Civil Service Retirement and
Disability Fund to the Department of Defense Military Retirement
Fund. The Secretary of the Treasury shall make any transfer so
requested.
(C) In determining the amount of a lump-sum credit under
section 8331(8) of title 5 for purposes of this paragraph—
(i) interest shall be computed using the rates under section
8334(e)(3) of such title; and
(ii) the completion of 5 years of civilian service (or longer)
shall not be a basis for excluding interest.
(b) A
MOUNT OF ANNUITY.—The annuity payable under this section
to a person who makes an election under subsection (a)(2) is 80
percent of the rate of pay for a judge in active service on the United
States Court of Appeals for the Armed Forces as of the date on which
the person is separated from civilian service.
(c) R
ELATION TO THRIFT SAVINGS PLAN.—Nothing in this section
affects any right of any person to participate in the thrift savings plan
under section 8351 of title 5 or subchapter III of chapter 84 of such
title.
(d) S
URVIVOR ANNUITIES.—The Secretary of Defense shall
prescribe by regulation a program to provide annuities for survivors
and former spouses of persons receiving annuities under this section
by reason of elections made by such persons under subsection (a)(2).
That program shall, to the maximum extent practicable, provide
benefits and establish terms and conditions that are similar to those
provided under survivor and former spouse annuity programs under
other retirement systems for civilian employees of the Federal
Government. The program may include provisions for the reduction
in the annuity paid the person as a condition for the survivor annuity.
An election by a judge (including a senior judge) or former judge to
receive an annuity under this section terminates any right or interest
which any other individual may have to a survivor annuity under any
other retirement system for civilian employees of the Federal
Government based on the service of that judge or former judge as a
civilian officer or employee of the Federal Government (except with
respect to an election under subsection (f)(1)(B)).
(e) C
OST-OF-LIVING INCREASES.—The Secretary of Defense shall
periodically increase annuities and survivor annuities paid under this
section in order to take account of changes in the cost of living. The
Secretary shall prescribe by regulation procedures for increases in
annuities under this section. Such system shall, to the maximum
extent appropriate, provide cost-of-living adjustments that are
similar to those that are provided under other retirement systems for
civilian employees of the Federal Government.
(f) E
LECTION OF JUDICIAL RETIREMENT BENEFITS.—
(1) A person who is receiving an annuity under this section by
reason of service as a judge of the court and who later is appointed
as a justice or judge of the United States to hold office during good
behavior and who retires from that office, or from regular active
service in that office, shall be paid either (A) the annuity under this
section, or (B) the annuity or salary to which he is entitled by reason
of his service as such a justice or judge of the United States, as
determined by an election by that person at the time of his retirement
from the office, or from regular active service in the office, of justice
or judge of the United States. Such an election may not be revoked.
(2) An election by a person to be paid an annuity or salary
pursuant to paragraph (1)(B) terminates (A) any election previously
made by such person to provide a survivor annuity pursuant to
subsection (d), and (B) any right of any other individual to receive a
survivor annuity pursuant to subsection (d) on the basis of the service
of that person.
(g) S
OURCE OF PAYMENT OF ANNUITIES.—Annuities and survivor
annuities paid under this section shall be paid out of the Department
of Defense Military Retirement Fund.
(h) E
LIGIBILITY TO ELECT BETWEEN RETIREMENT SYSTEMS.—
(1) This subsection applies with respect to any person who—
(A) prior to being appointed as a judge of the United States
Court of Appeals for the Armed Forces, performed civilian service
of a type making such person subject to the Civil Service Retirement
System; and
(B) would be eligible to make an election under section
301(a)(2) of the Federal Employees’ Retirement System Act of 1986,
by virtue of being appointed as such a judge, but for the fact that such
person has not had a break in service of sufficient duration to be
considered someone who is being reemployed by the Federal
Government.
(2) Any person with respect to whom this subsection applies shall
be eligible to make an election under section 301(a)(2) of the Federal
Employees’ Retirement System Act of 1986 to the same extent and
in the same manner (including subject to the condition set forth in
section 301(d) of such Act) as if such person’s appointment
constituted reemployment with the Federal Government.
§946. Art. 146. Military Justice Review Panel
(a) ESTABLISHMENT.—The Secretary of Defense shall establish a
panel to conduct independent periodic reviews and assessments of
the operation of this chapter. The panel shall be known as the
“Military Justice Review Panel” (in this section referred to as the
“Panel”).
(b) M
EMBERS.—
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(1) NUMBER OF MEMBERS—The Panel shall be composed of
thirteen members.
(2) A
PPOINTMENT OF CERTAIN MEMBERS—Each of the following
shall appoint one member of the Panel:
(A) The Secretary of Defense (in consultation with the
Secretary of the department in which the Coast Guard is operating
when it is not operating as a service in the Navy).
(B) The Attorney General.
(C) The Judge Advocates General of the Army, Navy, Air
Force, and Coast Guard, and the Staff Judge Advocate to the
Commandant of the Marine Corps.
(3) A
PPOINTMENT OF REMAINING MEMBERS BY SECRETARY OF
DEFENSE
—The Secretary of Defense shall appoint the remaining
members of the Panel, taking into consideration recommendations
made by each of the following:
(A) The chairman and ranking minority member of the
Committee on Armed Services of the Senate and the Committee on
Armed Services of the House of Representatives.
(B) The Chief Justice of the United States.
(C) The Chief Judge of the United States Court of Appeals for
the Armed Forces.
(c) Q
UALIFICATIONS OF MEMBERS.—The members of the Panel
shall be appointed from among private United States citizens with
expertise in criminal law, as well as appropriate and diverse
experience in investigation, prosecution, defense, victim
representation, or adjudication with respect to courts-martial,
Federal civilian courts, or State courts.
(d) C
HAIR.—The Secretary of Defense shall select the chair of the
Panel from among the members.
(e) T
ERM; VACANCIES.—Each member shall be appointed for a term
of eight years, and no member may serve more than one term. Any
vacancy shall be filled in the same manner as the original
appointment.
(f) R
EVIEWS AND REPORTS.—
(1) I
NITIAL REVIEW OF RECENT AMENDMENTS TO UCMJ.—
During fiscal year 2021, the Panel shall conduct an initial review and
assessment of the implementation of the amendments made to this
chapter during the preceding five years. In conducting the initial
review and assessment, the Panel may review such other aspects of
the operation of this chapter as the Panel considers appropriate.
(2) S
ENTENCING DATA COLLECTION AND REPORT.—During fiscal
year 2020, the Panel shall gather and analyze sentencing data
collected from each of the armed forces from general and special
courts-martial applying offense-based sentencing under section 856
of this title (article 56). The sentencing data shall include the number
of accused who request member sentencing and the number who
request sentencing by military judge alone, the offenses which the
accused were convicted of, and the resulting sentence for each
offense in each case. The Judge Advocates General and the Staff
Judge Advocate to the Commandant of the Marine Corps shall
provide the sentencing data in the format and for the duration
established by the chair of the Panel. The analysis under this
paragraph shall be included in the assessment required by paragraph
(1).
(3) P
ERIODIC COMPREHENSIVE REVIEWS.—During fiscal year
2024 and every eight years thereafter, the Panel shall conduct a
comprehensive review and assessment of the operation of this
chapter.
(4) P
ERIODIC INTERIM REVIEWS.—During fiscal year 2028 and
every eight years thereafter, the Panel shall conduct an interim
review and assessment of such other aspects of the operation of this
chapter as the Panel considers appropriate. In addition, at the request
of the Secretary of Defense, the Panel may, at any time, review and
assess other specific matters relating to the operation of this chapter.
(5) R
EPORTS.—With respect to each review and assessment under
this subsection, the Panel shall submit a report to the Committees on
Armed Services of the Senate and House of Representatives. Each
report—
(A) shall set forth the results of the review and assessment
concerned, including the findings and recommendations of the
Panel; and
(B) shall be submitted not later than December 31 of the
calendar year in which the review and assessment is concluded.
(g) H
EARINGS.—The Panel may hold such hearings, sit and act at
such times and places, take such testimony, and receive such
evidence as the Panel considers appropriate to carry out its duties
under this section.
(h) I
NFORMATION FROM FEDERAL AGENCIES.—Upon request of the
chair of the Panel, a department or agency of the Federal
Government shall provide information that the Panel considers
necessary to carry out its duties under this section.
(i) A
DMINISTRATIVE MATTERS.—
(1) M
EMBERS TO SERVE WITHOUT PAY.—Members of the Panel
shall serve without pay, but shall be allowed travel expenses,
including per diem in lieu of subsistence, at rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5,
while away from their homes or regular places of business in the
performance of services for the Panel.
(2) S
TAFFING AND RESOURCES.—The Secretary of Defense shall
provide staffing and resources to support the Panel.
(j) C
HAPTER 10 OF TITLE 5.—Chapter 10 of title 5 shall not apply to
the Panel.
§946a. Art. 146a. Annual reports
(a) COURT OF APPEALS FOR THE ARMED FORCES.—Not later than
December 31 of each year, the Court of Appeals for the Armed
Forces shall submit a report that, with respect to the previous fiscal
year, provides information on the number and status of completed
and pending cases before the Court, and such other matters as the
Court considers appropriate regarding the operation of this chapter.
(b) S
ERVICE REPORTS.—Not later than December 31 of each year,
the Judge Advocates General and the Staff Judge Advocate to the
Commandant of the Marine Corps shall each submit a report, with
respect to the preceding fiscal year, containing the following:
(1) Data on the number and status of pending cases.
(2) Information on the appellate review process, including—
(A) information on compliance with processing time goals;
(B) descriptions of the circumstances surrounding cases in
which general or special court-martial convictions were
(i) reversed because of command influence or denial of the
right to speedy review or
(ii) otherwise remitted because of loss of records of trial or
other administrative deficiencies;
(C) an analysis of each case in which a provision of this chapter
was held unconstitutional; and
(D) an analysis of each case in which a Court of Criminal
Appeals made a final determination that a finding of a court-martial
UNIFORM CODE OF MILITARY JUSTICE
A2-57
was clearly against the weight of the evidence, including an
explanation of the standard of appellate review applied in such case.
(3)(A) An explanation of measures implemented by the armed
force involved to ensure the ability of judge advocates—
(i) to participate competently as trial counsel and defense
counsel in cases under this chapter;
(ii) to preside as military judges in cases under this chapter;
and
(iii) to perform the duties of Special Victims’ Counsel, when
so designated under section 1044e of this title.
(B) The explanation under subparagraph (A) shall specifically
identify the measures that focus on capital cases, national security
cases, sexual assault cases, and proceedings of military
commissions.
(4) The independent views of each Judge Advocate General and
of the Staff Judge Advocate to the Commandant of the Marine Corps
as to the sufficiency of resources available within the respective
armed forces, including total workforce, funding, training, and
officer and enlisted grade structure, to capably perform military
justice functions.
(5) Such other matters regarding the operation of this chapter as
may be appropriate.
(c) S
UBMISSION.—Each report under this section shall be
submitted—
(1) to the Committee on Armed Services of the Senate and the
Committee on Armed Services of the House of Representatives; and
(2) to the Secretary of Defense, the Secretaries of the military
departments, and the Secretary of the department in which the Coast
Guard is operating when it is not operating as a service in the Navy.
APPENDIX 2.1
DISPOSITION GUIDANCE
A2.1-1
This Appendix provides non-binding guidance issued by the Secretary of Defense, in consultation with the Secretary
of Homeland Security, pursuant to Article 33 (Disposition Guidance) of the Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 833.
S
ECTION 1: IN GENERAL
1.1. Policy
1.2. Purpose
1.3. Scope
1.4. Non-Litigability
S
ECTION 2: CONSIDERATIONS IN ALL CASES
2.1. Interests of Justice and Good Order and
Discipline
2.2. Consultation with a Judge Advocate
2.3. Referral
2.4. Determining the Charges and Specifications to
Refer
2.5. Determining the Appropriate Type of Court-
Martial
2.6. Alternatives to Referral
2.7. Inappropriate Considerations
S
ECTION 3: SPECIAL CONSIDERATIONS
3.1. Prosecution in Another Jurisdiction
3.2. Plea Agreements
3.3. Plea Agreements Concerning Disposition of
Charges and Specifications
3.4. Plea Agreements Concerning Sentence
Limitations
S
ECTION 1: IN GENERAL
1.1. Policy.
a. This Appendix provides guidance regarding
factors that convening authorities, commanders, special
trial counsel, staff judge advocates, and other judge
advocates should consider when exercising their duties
with respect to the disposition of charges and
specifications under the UCMJ, and to further promote
the purposes of military law.
1
b. This Appendix supplements the Manual for
Courts-Martial. The guidance in this Appendix does not
require a particular disposition decision or other action
in any given case. Accordingly, the disposition factors
set forth in this Appendix are cast in general terms, with
1
“The purposes of military law are to promote justice, to
deter misconduct, to facilitate appropriate
accountability, to assist in maintaining good order and
discipline in the armed forces, to promote efficiency and
effectiveness in the military establishment, and thereby
a view to providing guidance rather than mandating
results. The intent is to promote regularity without
regimentation, encourage consistency without
sacrificing necessary flexibility, and provide the
flexibility to apply these factors in a manner that
facilitates the fair and effective response to local
conditions in the interest of justice and good order and
discipline.
1.2. Purpose. This guidance is intended to:
a. Set forth factors for consideration by those
assigned responsibility under the UCMJ for disposing
of alleged violations of the UCMJ on how best to
exercise their authority in a reasoned and structured
manner, consistent with the principle of fair and
evenhanded administration of the law;
b. Promote the fair and effective exercise of
prosecutorial discretion and foster confidence on the
part of the public and Service members that disposition
decisions will be made rationally and objectively on the
merits of each case;
c. Serve as a training tool for convening authorities,
commanders, special trial counsel, staff judge advocates,
and other judge advocates involved in the disposition
process;
d. Contribute to the effective utilization of the
Government’s law enforcement and prosecutorial
resources;
e. Enhance the relationship between military
commanders; special trial counsel; staff judge
advocates; other judge advocates involved in the
disposition process; and law enforcement agencies,
including military criminal investigative organizations
(MCIOs), with respect to investigations and charging
decisions; and
f. Guide the significant decision whether to
prosecute a matter at court-martial recognizing the
profound consequences for the accused and crime
victims regardless of the outcome.
to strengthen the national security of the United States.”
Manual for Courts-Martial, United States, Pt. I, ¶ 3 (2024
ed.).
APPENDIX 2.1
A2.1-2
1.3. Scope. This Appendix is designed to promote the
reasoned exercise of discretion with respect to the
following:
a. Initiating and declining action under the UCMJ;
b. Selecting appropriate charges and specifications;
c. Special trial counsel’s decisions to prefer or refer
a charge or defer an alleged offense;
d. Selecting the appropriate type of court-martial or
alternative mode of disposition, if any;
e. Preliminary hearing officers’ disposition
recommendations; and
f. Entering into a plea agreement.
1.4. Non-Litigability. This Appendix was developed
solely as a matter of internal policy in accordance with
Article 33. This Appendix is not intended to, does not,
and may not be relied upon to create a right, benefit, or
defense, substantive or procedural, enforceable at law
or in equity by any person and may not be relied upon
by any party or person in litigation with the United
States.
S
ECTION 2: CONSIDERATIONS IN ALL CASES
2.1. Interests of Justice and Good Order and
Discipline. The military justice system is a powerful
tool that promotes justice and assists in maintaining
good order and discipline while protecting the rights of
Service members. In determining whether the interests
of justice and good order and discipline are served by
trial by court-martial or other disposition in a case, the
factors listed below should be considered. The weight
and priority given to each of these factors may vary
depending on the facts and circumstances of the case.
a. Whether admissible evidence will probably be
sufficient to obtain and sustain a finding of guilty in a
trial by court-martial when viewed objectively by an
unbiased factfinder;
b. The truth-seeking function of trial by court-
martial;
c. The nature, seriousness, and circumstances of the
alleged offense and the accused’s culpability in
connection with the alleged offense;
d. Input, if any, from law enforcement agencies
involved in or having an interest in the specific case;
e. The accused’s willingness to cooperate in the
investigation or prosecution of others;
2
“Referral authorities shall consider whether the
admissible evidence will probably be sufficient to obtain
and sustain a conviction.” Rule for Courts-Martial
f. The accused’s criminal history or history of
misconduct, whether military or civilian, if any;
g. The probable sentence or other consequences to
the accused of a finding of guilty;
h. The impact and appropriateness of alternative
disposition options—including nonjudicial punishment
or administrative action—with respect to the accused’s
potential for continued service and the responsibilities
of the command with respect to justice and good order
and discipline.
i. In cases involving an individual who is a victim of
the alleged offense as defined by Article 6b(b), that
individual’s views as to disposition;
j. The extent of the harm caused to any victim of the
alleged offense;
k. The availability and willingness of the victim of
the alleged offense and other witnesses to testify;
l. The effect of the alleged offense on the morale,
health, safety, welfare, and good order and discipline of
the command;
m. The extent to which the conduct tends to bring
discredit upon the armed forces;
n. Whether the alleged offense occurred during
wartime, combat, or contingency operations; and
o. The mission-related responsibilities of the
command.
2.2. Consultation with a Judge Advocate.
Commanders and convening authorities shall at all
times communicate directly with their assigned judge
advocates in matters relating to the administration of
military justice (see R.C.M. 105).
2.3. Referral.
a. Probable cause must exist for each charge and
specification referred to a court-martial (see R.C.M.
601(d)(1)). In addition to the consideration required by
R.C.M. 601(d)(2),
2
when making a referral decision,
the referral authority should also consider the matters
described in paragraph 2.1 of this appendix.
b. A special trial counsel should not refer, and a staff
judge advocate or other judge advocate involved in the
disposition process should not recommend that a
convening authority refer, a charge to a court-martial
unless the special trial counsel, staff judge advocate, or
other judge advocate believes that the Service
member’s conduct constitutes an offense under the
UCMJ and that the admissible evidence will probably
601(d)(2), Manual for Courts-Martial, United States
(2024 ed.).
APPENDIX 2.1
A2.1-3
be sufficient to obtain and sustain a finding of guilty
when viewed objectively by an unbiased factfinder.
c. A convening authority should not refer a charge to
a court-martial unless the admissible evidence will
probably be sufficient to obtain and sustain a finding of
guilty when viewed objectively by an unbiased
factfinder. In assessing whether there is sufficient
admissible evidence, a convening authority should
consider the advice of a staff judge advocate or other
judge advocate authorized to provide pretrial advice.
2.4. Determining the Charges and Specifications to
Refer. A referral authority should avoid referring
multiple charges when they would:
a. Unnecessarily complicate the prosecution of the
most serious readily provable alleged offense or
offenses;
b. Unnecessarily exaggerate the nature and extent of
the accused’s alleged criminal conduct or add
unnecessary confusion to the issues at court-martial;
c. Unnecessarily expose the accused to a harsher
potential sentence or range of punishments than the
circumstances of the case justify; or
d. Be disposed of more appropriately through an
alternative disposition.
2.5. Determining the Appropriate Type of Court-
Martial. In determining the appropriate type of court-
martial, a convening authority should consider the
advice of a staff judge advocate or other judge advocate
authorized to provide pretrial advice. Additionally, a
referral authority should consider:
a. The interests of justice and good order and
discipline (see paragraph 2.1);
b. The authorized maximum and minimum
punishments for the charged offenses;
c. Any unique circumstances in the case requiring
immediate disposition of the charges;
d. Whether the type of court-martial would
unnecessarily expose the accused to a harsher potential
sentence or range of punishments than the
circumstances of the case justify; and
e. Whether the potential of the accused for
rehabilitation and continued service would be better
addressed in a specific type of court-martial.
2.6. Alternatives to Referral. In determining whether
to refer charges and specifications, a referral authority
should consider whether an adequate alternative to
referral exists. If an adequate alternative to referral
exists, in addition to the considerations in paragraph
2.1, a referral authority should consider:
a. The effect of the alternative disposition on the
interests of justice and good order and discipline;
b. The options available under the alternative
disposition;
c. The views of the victim of the alleged offense, if
any, concerning the alternative disposition of the case;
and
d. The likelihood of an effective outcome.
2.7. Inappropriate Considerations. The disposition
determination must not be influenced by:
a. The accused’s race; ethnicity; religion; sex;
gender (including gender identity); sexual orientation;
national origin; or lawful political association,
activities, or beliefs;
b. The personal feelings of anyone authorized to
recommend, advise, or make a decision as to
disposition of alleged offenses concerning the accused,
the accused’s associates, the victim of the alleged
offense, or any witness;
c. The time and resources already expended in the
investigation of the case;
d. The possible effect of the disposition
determination on the commander’s, convening
authority’s, or special trial counsel’s military career or
other professional or personal circumstances;
e. Political pressure to take or not to take specific
actions in the case; or
f. Improper consideration of the race; ethnicity;
religion; sex; gender (including gender identity); sexual
orientation; national origin; or lawful political
association, activities, or beliefs of the victim of an
alleged offense.
S
ECTION 3: SPECIAL CONSIDERATIONS
3.1. Prosecution in Another Jurisdiction. When the
accused is subject to effective prosecution in another
jurisdiction, a convening authority should consider the
advice of a staff judge advocate or other judge advocate
authorized to provide pretrial advice. Additionally, a
referral authority should consider the following
additional factors when determining disposition:
a. The strength of the other jurisdiction’s interest in
prosecution;
b. The other jurisdiction’s ability and willingness to
prosecute the case effectively;
c. The probable sentence or other consequences if
the accused were to be convicted in the other
jurisdiction;
APPENDIX 2.1
A2.1-4
d. The views of the victim of the alleged offense, if
any, as to the desirability of prosecution in the other
jurisdiction;
e. Applicable policies derived from agreements with
the Department of Justice and foreign governments
regarding the exercise of military jurisdiction; and
f. The likelihood that the nature of the proceedings
in the other jurisdiction will satisfy the interests of
justice and good order and discipline in the case,
including any burdens on the command with respect to
the need for witnesses to be absent from their military
duties, and the potential for swift or delayed disposition
in the other jurisdiction.
3.2. Plea Agreements. In accordance with Article 53a,
the referral authority may enter into an agreement with
an accused concerning disposition of the charges and
specifications and the sentence that may be imposed. A
convening authority should consider the advice of a
staff judge advocate or other judge advocate authorized
to provide pretrial advice. Additionally, a referral
authority should consider the following additional
factors in determining whether it would be appropriate
to enter into a plea agreement in a particular case:
a. The accused’s willingness to cooperate in the
investigation or prosecution of others;
b. The nature and seriousness of the charged offense
or offenses;
c. The accused’s remorse or contrition and
willingness to assume responsibility for the accused’s
conduct;
d. Restitution, if any;
e. The accused’s criminal history or history of
misconduct, whether military or civilian;
f. The desirability of prompt and certain disposition
of the case and of related cases;
g. The likelihood of obtaining a finding of guilty at
court-martial;
h. The probable effect on victims of alleged offenses
and witnesses;
i. The probable sentence or other consequences if the
accused is convicted;
j. The public and military interest in having the case
tried rather than disposed of by a plea agreement;
k. The time and expense associated with trial and
appeal;
l. The views of the victim of an alleged offense with
regard to prosecution, the terms of the anticipated
agreement, and alternative disposition; and
m. The potential of the accused for rehabilitation and
continued service.
3.3. Agreements Concerning Disposition of Charges
and Specifications. With respect to plea agreements
regarding the disposition of charges and specifications,
the plea agreement should require the accused to plead
guilty to charges and specifications that:
a. Appropriately reflect the nature and extent of the
criminal conduct;
b. Are supported by an adequate factual basis;
c. Would support the imposition of an appropriate
sentence under all the circumstances of the case;
d. Do not adversely affect the investigation or
prosecution of others suspected of misconduct; and
e. Appropriately serve the interests of justice and
good order and discipline.
3.4 Agreements Concerning Sentence Limitations. A
plea agreement should ensure that any sentence
limitation takes into consideration the sentencing
guidance set forth in Article 56(c).
*****************************
Analysis:
This appendix implements Article 33, UCMJ, as
amended by Section 5204 of the Military Justice Act of
2016, Division E of the National Defense Authorization
Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), and section 12 of Executive Order
13825 of March 1, 2018. The disposition factors
contained in this appendix are adapted primarily from
three sources: the Principles of Federal Prosecution
issued by the Department of Justice; the American Bar
Association, Criminal Justice Standards for the
Prosecution Function; and the National District
Attorneys Association, National Prosecution Standards.
Practitioners are encouraged to familiarize themselves
with the disposition factors contained in this appendix
as well as those related civilian prosecution function
standards. The disposition factors have been adapted
with a view toward the unique nature of the military
justice system.
APPENDIX 3
DoD Instruction 5525.07
A3-1
Department of Defense
INSTRUCTION
June 18, 2007
NUMBER 5525.07
GC, DoD/IG DoD
SUBJECT:
Implementation of the Memorandum of
Understanding (MOU) Between the Departments of
Justice (DoJ) and Defense Relating to the
Investigation and Prosecution of Certain Crimes
References:
(a) DoD Directive 5525.7, “Implementation of the
Memorandum of Understanding Between the
Department of Justice and the Department of Defense
Relating to the Investigation and Prosecution of
Crimes,” January 22, 1985 (hereby canceled)
(b) Acting Deputy Secretary of Defense
Memorandum, “DoD Directives Review - Phase II,”
July 13, 2005
(c) DoD Directive 5145.1, “General Counsel of the
Department of Defense,” May 2, 2001
(d) DoD Directive 5106.01, “Inspector General of
the Department of Defense,” April 13, 2006
(e) through (h), see Enclosure 1
1. REISSUANCE AND PURPOSE
This Instruction:
1.1. Reissues Reference (a) as a DoD Instruction in
accordance with the guidance in Reference (b) and the
authority in References (c) and (d).
1.2. Updates policy, assigns responsibilities, and
supplements the MOU between the Departments of
Justice and Defense Relating to the Investigation and
Prosecution of Certain Crimes (Reference (e)) at
Enclosure 1, pursuant to References (c) and (d).
2. APPLICABILITY AND SCOPE
2.1 This Instruction applies to the Office of the
Secretary of Defense, the Military Departments, the
Chairman of the Joint Chiefs of Staff, the Combatant
Commands, the Office of the Inspector General of
the Department of Defense (IG DoD), the Defense
Agencies, the DoD Field Activities, and all other
organizational entities within the Department of
Defense (hereafter referred to collectively as the
“DoD Components”).
2.2. The term “DoD criminal investigative
organizations,” as used herein, refers collectively to
the United States Army Criminal Investigation
Command, Naval Criminal Investigative Service,
U.S. Air Force Office of Special Investigations, and
Defense Criminal Investigative Service, Office of the
IG DoD.
3. POLICY
It is DoD policy to maintain effective working
relationships with the DoJ in the investigation and
prosecution of crimes involving DoD programs,
operations, or personnel.
4. PROCEDURES
With respect to inquiries for which the DoJ has
assumed investigative responsibility based on
Reference (e), the DoD criminal investigative
organizations should seek to participate jointly with
DoJ investigative agencies whenever the inquiries
relate to DoD programs, operations, or personnel.
This applies to cases referred to the Federal Bureau of
Investigation under paragraph C.1.a. of Reference (e)
as well as to those cases for which a DoJ investigative
agency is assigned primary investigative
responsibility by a DoJ prosecutor. The DoD
Components shall comply with the terms of
Reference (e) and DoD Supplemental Guidance in
Enclosure 2.
APPENDIX 3
A3-2
5. RESPONSIBILITIES
5.1. The IG DoD, shall:
5.1.1. Establish procedures to implement the
investigative policies set forth in this Instruction.
5.1.2. Monitor compliance by DoD criminal
investigative organizations with the terms of
Reference (c).
5.1.3. Provide specific guidance regarding
investigative matters, as appropriate.
5.2. The General Counsel of the Department of
Defense (GC, DoD), shall:
5.2.1. Establish procedures to implement the
prosecutive policies as set forth in Reference (e) and
consistent with the DoD Supplemental Guidance
provided in Enclosure 2, the Uniform Code of
Military Justice (Reference (f)) and the Manual for
Courts-Martial (Reference (g)).
5.2.2. Monitor compliance by the DoD
Components regarding the prosecutive aspects of
Reference (e).
5.2.3. Provide specific guidance on the
investigation and prosecution of those crimes
addressed in Reference (e), as appropriate.
5.2.4. Modify the DoD Supplemental Guidance in
Enclosure 2 with the concurrence of the IG DoD, after
coordinating with the affected DoD Components.
5.3. The Secretaries of the Military Departments shall
establish procedures to implement the policies set
forth in this Instruction.
1
For copies of the signed Memorandum of Understanding, contact the Office of the Deputy General Counsel (Personnel and Health Policy),
1600 Defense Pentagon, Washington, D.C. 20301-1600
6. EFFECTIVE DATE
This Instruction is effective immediately upon signing
by both of the following, whichever date is later.
Signed by Claude M. Kicklighter
Inspector General Department of Defense
Signed by Daniel J. Dell’Orto, Acting
General Counsel Department of Defense
Enclosures – 2
E1. References, continued
E2. DoD Supplemental Guidance to the MOU
Between the Departments of Justice and Defense
Relating to the Investigation and Prosecution of
Certain Crimes
E1. ENCLOSURE 1
REFERENCES, continued
(e) Memorandum of Understanding between the
Departments of Justice and Defense Relating to the
Investigation and Prosecution of Certain Crimes,
August 1981
1
(f) Chapter 47 of title 10, United States Code,
“Uniform Code of Military Justice (UCMJ)”
(g) Manual for Courts-Martial, United States, 2005
(R.C.M. 704)
(h) Title 18 of the United States Code
E2. ENCLOSURE 2
DoD SUPPLEMENTAL GUIDANCE TO THE
MOU BETWEEN THE DEPARTMENTS OF
JUSTICE AND DEFENSE RELATING TO THE
INVESTIGATION AND PROSECUTION OF
CERTAIN CRIMES
This enclosure contains the verbatim text of
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
A3-3
Reference (e). Matter that is identified as “DoD
Supplemental Guidance” has been added by the
Department of Defense. DoD Components shall
comply with the MOU and the DoD Supplemental
Guidance.
MEMORANDUM OF UNDERSTANDING
BETWEEN THE DEPARTMENTS OF JUSTICE
AND DEFENSE RELATING TO THE
INVESTIGATION AND PROSECUTION OF
CERTAIN CRIMES
A. PURPOSE, SCOPE AND AUTHORITY
This Memorandum of Understanding (MOU)
establishes policy for the Department of Justice and
the Department of Defense with regard to the
investigation and prosecution of criminal matters over
which the two Departments have jurisdiction. This
memorandum is not intended to confer any rights,
benefits, privileges or form of due process procedure
upon individuals, associations, corporations, or other
persons or entities.
This Memorandum applies to all components and
personnel of the Department of Justice and the
Department of Defense. The statutory bases for the
Department of Defense and the Department of Justice
investigation and prosecution responsibilities include,
but are not limited to:
1. Department of Justice: Titles 18, 21 and 28 of the
United States Code; and
2. Department of Defense: The Uniform Code of
Military Justice, Title 10, United States Code,
Sections 801-940; the Inspector General Act of 1978,
Title 5 United States Code, Appendix 3; and Title 5
United States Code, Section 301.
B. POLICY
The Department of Justice has primary
responsibility for enforcement of federal laws in the
United States District Courts. The Department of
Defense has responsibility for the integrity of its
programs, operations and installations and for the
discipline of the Armed Forces. Prompt
administrative actions and completion of
investigations within the two (2) year statute of
limitations under the Uniform Code of Military
Justice require the Department of Defense to assume
an important role in federal criminal investigations.
To encourage joint and coordinated investigative
efforts, in appropriate cases where the Department of
Justice assumes investigative responsibility for a
matter relating to the Department of Defense, it
should share information and conduct the inquiry
jointly with the interested Department of Defense
investigative agency.
It is neither feasible nor desirable to establish
inflexible rules regarding the responsibilities of the
Department of Defense and the Department of Justice
as to each matter over which they may have
concurrent interest. Informal arrangements and
agreements within the spirit of this MOU are
permissible with respect to specific crimes or
investigations.
C. INVESTIGATIVE AND PROSECUTIVE
JURISDICTION
1. CRIMES ARISING FROM THE DEPARTMENT
OF DEFENSE OPERATIONS
a. Corruption Involving the Department of Defense
Personnel
The Department of Defense investigative agencies
will refer to the FBI on receipt all significant
allegations of bribery and conflict of interest
involving military or civilian personnel of the
Department of Defense. In all corruption matters that
are the subject of a referral to the FBI, the Department
of Defense shall obtain the concurrence of the
Department of Justice prosecutor or the FBI before
initiating any independent investigation preliminary
to any action under the Uniform Code of Military
Justice. If the Department of Defense is not satisfied
with the initial determination, the matter will be
reviewed by the Criminal Division of the Department
of Justice.
The FBI will notify the referring agency promptly
APPENDIX 3
A3-4
regarding whether they accept the referred matters for
investigation. The FBI will attempt to make such
decision in one (1) working day of receipt in such
matters.
DoD Supplemental Guidance
A. Certain bribery and conflict of interest allegations
(also referred to as “corruption” offenses in the MOU)
are to be referred immediately to the FBI.
B. For the purposes of this section, bribery and
conflict of interest allegations are those which would,
if proven, violate sections 201, 203, 205, 208, 209, or
219 of title 18, United States Code (Reference (h)).
C. Under paragraph C.1.a., DoD criminal
investigative organizations shall refer to the FBI those
“significant” allegations of bribery and conflict of
interest that implicate directly military or DoD
civilian personnel, including allegations of bribery or
conflict of interest that arise during the course of an
ongoing investigation.
1. All bribery and conflict of interest allegations
against present, retired, or former General or Flag
officers and civilians in positions above the GS-15
and equivalent levels, the Senior Executive Service,
and the Executive Level will be considered
“significant” for purposes of referral to the FBI.
2. In cases not covered by subsection C.1., of this
supplemental guidance, the determination of whether
the matter is “significant” for purposes of referral to
the FBI should be made in light of the following
factors: sensitivity of the DoD program involved,
amount of money in the alleged bribe, number of
DoD personnel implicated, impact on the affected
DoD program, and with respect to military personnel,
whether the matter normally would be handled under
Reference (f). Bribery and conflicts of interest
allegations warranting consideration of Federal
prosecution, which were not referred to the FBI based
on the application of these guidelines and not
otherwise disposed of under Reference (f), will be
developed and brought to the attention of the
Department of Justice through the “conference”
mechanism described in paragraph C.1.b of Reference
(e).
D. Bribery and conflict of interest allegations when
military or DoD civilian personnel are not subjects of
the investigations are not covered by the referral
requirement of paragraph C.1.a. of Reference (e).
Matters in which the suspects are solely DoD
contractors and their subcontractors, such as
commercial bribery between a DoD subcontractor and
a DoD prime contractor, do not require referral upon
receipt to the FBI. The “conference” procedure
described in paragraph C.1.b. of Reference (e) shall
be used in these types of cases.
E. Bribery and conflict of interest allegations that
arise from events occurring outside the United
States, its territories, and possessions, and requiring
investigation outside the United States, its territories,
and possessions need not be referred to the FBI.
F. The 1984 MOU references a two (2) year statute
of limitations in effect for some Uniform Code of
Military Justice offenses. Section 843 of Reference
(f), governing statute of limitations has been
amended several times since signing the MOU,
applying generally a 5 year statute of limitation. It
remains important that administrative actions and
investigations be completed in a timely manner in
order to meet the statute of limitations requirements
for the respective offenses, while keeping in mind that
the applicable statute of limitation of a particular
offense is that which was in effect at the time the
offense was committed.
b. Frauds Against the Department of Defense and
Theft and Embezzlement of Government Property
The Department of Justice and the Department of
Defense have investigative responsibility for frauds
against the Department of Defense and theft and
embezzlement of Government property from the
Department of Defense. The Department of Defense
will investigate frauds against the Department of
Defense and theft of government property from the
Department of Defense. Whenever a Department of
Defense investigative agency identifies a matter
which, if developed by investigation, would warrant
federal prosecution, it will confer with the United
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
A3-5
States Attorney or the Criminal Division, the
Department of Justice, and the FBI field office. At the
time of this initial conference, criminal investigative
responsibility will be determined by the Department
of Justice in consultation with the Department of
Defense.
DoD Supplemental Guidance
A. Unlike paragraph C.1.a. of Reference (e),
paragraph C.1.b. does not have an automatic referral
requirement. Under paragraph C.1.b, DoD criminal
investigative organizations shall confer with the
appropriate Federal prosecutor and the FBI on matters
which, if developed by investigation, would warrant
Federal prosecution. This “conference” serves to
define the respective roles of DoD criminal
investigative organizations and the FBI on a case-by-
case basis. Generally, when a conference is
warranted, the DoD criminal investigative
organization shall arrange to meet with the prosecutor
and shall provide notice to the FBI that such meeting
is being held. Separate conferences with both the
prosecutor and the FBI normally are not necessary.
B. When investigations are brought to the attention of
the Federal Procurement Fraud Unit (FPFU), such
contact will satisfy the “conference” requirements of
paragraph C.1.b. of Reference (e) as both the
prosecutor and the FBI.
C. Mere receipt by DoD criminal investigative
organizations of raw allegations of fraud or theft does
not require conferences with the DoJ and the FBI.
Sufficient evidence should be developed before the
conference to allow the prosecutor to make an
informed judgment as to the merits of a case
dependent upon further investigation. However,
DoD criminal investigative organizations should
avoid delay in scheduling such conferences,
particularly in complex fraud cases, because an early
judgment by a prosecutor can be of assistance in
focusing the investigation on those matters that most
likely will result in criminal prosecution.
2. CRIMES COMMITTED ON MILITARY INSTAL-
LATIONS
a. Subject(s) can be Tried by Court-Martial or are
Unknown
Crimes (other than those covered by paragraph
C.1.) committed on a military installation will be
investigated by the Department of Defense
investigative agency concerned and, when committed
by a person subject to the Uniform Code of Military
Justice, prosecuted by the Military Department
concerned. The Department of Defense will provide
immediate notice to the Department of Justice of
significant cases in which an individual subject/victim
is other than a military member or dependent thereof.
b. One or More Subjects cannot be Tried by Court-
Martial
When a crime (other than those covered by
paragraph C.1.) has occurred on a military installation
and there is reasonable basis to believe that it has
been committed by a person or persons, some or all of
whom are not subject to the Uniform Code of Military
Justice, the Department of Defense investigative
agency will provide immediate notice of the matter to
the appropriate Department of Justice investigative
agency unless the Department of Justice has relieved
the Department of Defense of the reporting
requirement for that type of class of crime.
DoD Supplemental Guidance
A. Subsection C.2. of Reference (e) addresses
crimes committed on a military installation other than
those listed in paragraphs C.1.a. (bribery and conflict
of interest) and C.1.b. (fraud, theft, and embezzlement
against the Government).
B. Unlike paragraph C.1.a. of Reference (e), which
requires “referral” to the FBI of certain cases, and
paragraph C.1.b, which requires “conference” with
respect to certain cases, subsection C.2. requires only
that “notice” be given to DoJ of certain cases. Relief
from the reporting requirement of subsectionnC.2.
may be granted by the local U.S. attorney as to types
or classes of cases.
C. For purposes of paragraph C.2.a. (when the
APPENDIX 3
A3-6
subjects can be tried by court-martial or are
unknown), an allegation is “significant” for purposes
of required notice to the DoJ only if the offense falls
within the prosecutorial guidelines of the local U.S
attorney. Notice should be given in other cases when
the DoD Component believes that Federal prosecution
is warranted or otherwise determines that the case
may attract significant public attention.
3. CRIMES COMMITTED OUTSIDE MILITARY
INSTALLATIONS BY PERSONS WHO CAN BE
TRIED BY COURT-MARTIAL
a. Offense is Normally Tried by Court-Martial
Crimes (other than those covered by paragraph
C.1.) committed outside a military installation by
persons subject to the Uniform Code of Military
Justice which, normally, are tried by court-martial
will be investigated and prosecuted by the
Department of Defense. The Department of Defense
will provide immediate notice of significant cases to
the appropriate Department of Justice investigative
agency. The Department of Defense will provide
immediate notice in all cases where one or more
subjects is not under military jurisdiction unless the
Department of Justice has relieved the Department of
Defense of the reporting requirement for that type or
class or crime.
DoD Supplemental Guidance
For purposes of this paragraph, an allegation is
“significant” for purposes of required notice to the
DoJ only if the offense falls within prosecutorial
guidelines of the local U.S. attorney. Notice should be
given in other cases when the DoD Component
believes that Federal prosecution is warranted, or
otherwise determines that the case may attract
significant public attention.
b. Crimes Related to Scheduled Military Activities
Crimes related to scheduled Military activities
outside of a military installation, such as organized
maneuvers in which persons subject to the Uniform
Code of Military Justice are suspects, shall be treated
as if committed on a military installation for purposes
of this Memorandum. The FBI or other Department of
Justice investigative agency may assume jurisdiction
with the concurrence of the United States Attorney or
the Criminal Division, Department of Justice.
c. Offense is not Normally Tried by Court-Martial
When there are reasonable grounds to believe that
a Federal crime (other than those covered by para-
graph C.1.) normally not tried by court-martial, has
been committed outside a military installation by a
person subject to the Uniform Code of Military Jus-
tice, the Department of Defense investigative agency
will immediately refer the case to the appropriate
Department of Justice investigative agency unless the
Department of Justice has relieved the Department of
Defense of the reporting requirements for the type or
class of crime.
D. REFERRALS AND INVESTIGATIVE
ASSISTANCE
1. REFERRALS
Referrals, notices, reports, requests and the general
transfer of information under this Memorandum
normally should be between the FBI or other
Department of Justice investigative agency and the
appropriate Department of Defense investigative
agency at the field level.
If a Department of Justice investigative agency
does not accept a referred matter and the referring
Department of Defense investigative agency then, or
subsequently, believes that evidence exists supporting
prosecution before civilian courts, the Department of
Defense agency may present the case to the United
States Attorney or the Criminal Division, Department
of Justice, for review.
2. INVESTIGATIVE ASSISTANCE
In cases where a Department of Defense or
Department of Justice investigative agency has
primary responsibility and it requires limited
assistance to pursue outstanding leads, the
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
A3-7
investigative agency requiring assistance will
promptly advise the appropriate investigative agency
in the other Department and, to the extent authorized
by law and regulations, the requested assistance
should be provided without assuming responsibility
for the investigation.
E. PROSECUTION OF CASES
1. With the concurrence of the Department of
Defense, the Department of Justice will designate
such Department of Defense attorneys as it deems
desirable to be Special Assistant United States
Attorneys for use where the effective prosecution of
cases may be facilitated by the Department of
Defense attorneys.
2. The Department of Justice will institute civil
actions expeditiously in United States District Courts
whenever appropriate to recover monies lost as a
result of crimes against the Department of Defense;
the Department of Defense will provide appropriate
assistance to facilitate such actions.
3, The Department of Justice prosecutors will solicit
the views of the Department of Defense prior to
initiating action against an individual subject to the
Uniform Code of Military Justice.
4. The Department of Justice will solicit the views of
the Department of Defense with regard to its
Department of Defense-related cases and
investigations in order to effectively coordinate the
use of civil, criminal and administrative remedies.
DoD Supplemental Guidance
Prosecution of Cases and Grants of Immunity
A. The authority of court-martial convening
authorities to refer cases to trial, approve pretrial
agreements, and issue grants of immunity under
Reference (f) extends only to trials by court-martial.
In order to ensure that such actions do not preclude
appropriate action by Federal civilian authorities in
cases likely to be prosecuted in the U.S. district
courts, court-martial convening authorities shall
ensure that appropriate consultation as required by
this enclosure has taken place before trial by court-
martial, approval of a pretrial agreement, or issuance
of a grant of immunity in cases when such
consultation is required.
B. Only a general court-martial convening authority
may grant immunity under Reference (f), and may do
so only in accordance with Rule for Courts-Martial
704 of Reference (g).
1. Under Reference (f), there are two types of
immunity in the military justice system:
a. A person may be granted transactional
immunity from trial by court-martial for one or more
offenses under Reference (f).
b. A person may be granted testimonial
immunity, which is immunity from the use of
testimony, statements, and any information directly
or indirectly derived from such testimony or
statements by that person in a later court-marital.
2. Before a grant of immunity under Reference (f),
the general court-martial convening authority shall
ensure that there has been appropriate consultation
with the DoJ with respect to offenses in which
consultation is required by this enclosure.
3. A proposed grant of immunity in a case
involving espionage, subversion, aiding the enemy,
sabotage, spying, or violation of rules or statutes
concerning classified information or the foreign
relations of the United States shall be forwarded to
the GC, DoD for the purpose of consultation with the
DoJ. The GC, DoD shall obtain the views of other
appropriate elements of the Department of Defense in
furtherance of such consultation.
C. The authority of court-martial convening
authorities extends only to grants of immunity from
action under Reference (f). Only the Attorney General
or other authority designated under sections 6001-
6005 of Reference (h) may authorize action to obtain
a grant of immunity with respect to trials in the U.S.
district courts.
APPENDIX 3
A3-8
F. MISCELLANEOUS MATTERS
1. THE DEPARTMENT OF DEFENSE
ADMINISTRATIVE ACTIONS
Nothing in this Memorandum limits the
Department of Defense investigations conducted in
support of administrative actions to be taken by the
Department of Defense. However, the Department of
Defense investigative agencies will coordinate all
such investigations with the appropriate Department
of Justice prosecutive agency and obtain the
concurrence of the Department of Justice prosecutor
or the Department of Justice investigative agency
prior to conducting any administrative investigation
during the pendency of the criminal investigation or
prosecution.
2. SPECIAL UNIFORM CODE OF MILITARY
JUSTICE FACTORS
In situations where an individual subject to the
Uniform Code of Military Justice is a suspect in any
crime for which a Department of Justice investigative
agency has assumed jurisdiction, if a Department of
Defense investigative agency believes that the crime
involves special factors relating to the administration
and discipline of the Armed Forces that would justify
its investigation, the Department of Defense
investigative agency will advise the appropriate
Department of Justice investigative agency or the
Department of Justice prosecuting authorities of these
factors. Investigation of such a crime may be
undertaken by the appropriate Department of Defense
investigative agency with the concurrence of the
Department of Justice.
3. ORGANIZED CRIME
The Department of Defense investigative agencies
will provide to the FBI all information collected
during the normal course of agency operations
pertaining to the element generally known as
“organized crime” including both traditional (La Cosa
Nostra) and nontraditional organizations whether or
not the matter is considered prosecutable. The FBI
should be notified of any investigation involving any
element of organized crime and may assume
jurisdiction of the same.
4. DEPARTMENT OF JUSTICE NOTIFICATIONS
TO DEPARTMENT OF DEFENSE INVESTIGATIVE
AGENCIES
a. The Department of Justice investigative agencies
will promptly notify the appropriate Department of
Defense investigative agency of the initiation of the
Department of Defense related investigations which
are predicated on other than a Department of Defense
referral except in those rare instances where
notification might endanger agents or adversely affect
the investigation. The Department of Justice
investigative agencies will also notify the Department
of Defense of all allegations of the Department of
Defense related crime where investigation is not
initiated by the Department of Justice.
b. Upon request, the Department of Justice
investigative agencies will provide timely status
reports on all investigations relating to the
Department of Defense unless the circumstances
indicate such reporting would be inappropriate.
c. The Department of Justice investigative agencies
will promptly furnish investigative results at the
conclusion of an investigation and advise as to the
nature of judicial action, if any, taken or
contemplated.
d. If judicial or administrative action is being
considered by the Department of Defense, the
Department of Justice will, upon written request,
provide existing detailed investigative data and
documents (less any federal grand jury material,
disclosure of which would be prohibited by Rule 6(e),
Federal Rules of Criminal Procedure), as well as
agent testimony for use in judicial or administrative
proceedings, consistent with Department of Justice
and other federal regulations. The ultimate use of the
information shall be subject to the concurrence of the
federal prosecutor during the pendency of any related
investigation or prosecution.
5. TECHNICAL ASSISTANCE
a. The Department of Justice will provide to the
Department of Defense all technical services nor-
mally available to federal investigative agencies.
b. The Department of Defense will provide assist-
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF JUSTICE AND DEFENSE
A3-9
ance to the Department of Justice in matters not
relating to the Department of Defense as permitted
by law and implementing regulations.
6. JOINT INVESTIGATIONS
a. To the extent authorized by law, the Department
of Justice investigative agencies and the Department
of Defense investigative agencies may agree to enter
into joint investigative endeavors, including
undercover operations, in appropriate circumstances.
However, all such investigations will be subject to
Department of Justice guidelines.
b. The Department of Defense, in the conduct of
any investigation that might lead to prosecution in
Federal District Court, will conduct the investigation
consistent with any Department of Justice guidelines.
The Department of Justice shall provide copies of all
relevant guidelines and their revisions.
DoD Supplemental Guidance
When DoD procedures concerning apprehension,
search and seizure, interrogation, eyewitnesses, or
identification differ from those of DoJ, DoD
procedures will be used, unless the DoJ prosecutor
has directed that DoJ procedures be used instead.
DoD criminal investigators should bring to the
attention of the DoJ prosecutor, as appropriate,
situations when use of DoJ procedures might impede
or preclude prosecution under Reference (f).
7. APPREHENSION OF SUSPECTS
To the extent authorized by law, the Department of
Justice and the Department of Defense will each
promptly deliver or make available to the other
suspects, accused individuals and witnesses where
authority to investigate the crimes involved is lodged
in the other Department. This MOU neither expands
nor limits the authority of either Department to
perform apprehensions, searches, seizures, or
custodial interrogations.
G. EXCEPTION
This Memorandum shall not affect the investigative
authority now fixed by the 1979 “Agreement
Governing the Conduct of the Defense Department
Counterintelligence Activities in Conjunction with the
Federal Bureau of Investigation” and the 1983
Memorandum of Understanding between the
Department of Defense, the Department of Justice and
the FBI concerning “Use of Federal Military Force in
Domestic Terrorist Incidents.”
APPENDIX 4
MEMORANDUM OF UNDERSTANDING BETWEEN THE DEPARTMENTS OF
JUSTICE AND TRANSPORTATION (COAST GUARD) RELATING TO THE
INVESTIGATIONS AND PROSECUTION OF CRIMES OVER WHICH THE TWO
DEPARTMENTS HAVE CONCURRENT JURISDICTION
A4-1
Whereas, certain crimes committed by Coast Guard
personnel subject to the Uniform Code of Military Justice
may be prosecuted by Coast Guard tribunals under the Code
or by civilian authorities in the Federal Courts; and
Whereas, it is recognized that although the administration
and discipline of the Coast Guard requires that certain types
of crimes committed by its personnel be investigated by that
service and prosecuted before Coast Guard military
tribunals other types of crimes committed by such military
personnel should be investigated by civil authorities and
prosecuted before civil tribunals; and
Whereas, it is recognized that it is not feasible to impose
inflexible rules to determine the respective responsibility of
the civilian and Coast Guard military authorities as to each
crime over which they may have concurrent jurisdiction and
that informal arrangements and agreements may be
necessary with respect to specific crimes or investigations;
and
Whereas, agreement between the Department of Justice
and the Department of Transportation (Coast Guard) as to
the general areas in which they will investigate and
prosecute crimes to which both civil and military
jurisdiction attach will, nevertheless, tend to make the
investigation and prosecution of crimes more expeditious
and efficient and give appropriate effect to the policies of
civil government and the requirements of the United States
Coast Guard;
It is hereby agreed and understood between the
Department of Justice and the Department of Transportation
(Coast Guard) as follows:
1. Crimes committed on military installations (including
aircraft and vessels). Except as hereinafter indicated, all
crimes committed on a military installation by Coast Guard
personnel subject to the Uniform Code of Military Justice
shall be investigated and prosecuted by the Coast Guard if
the Coast Guard makes a determination that there is a
reasonable likelihood that only Coast Guard personnel
subject to the Uniform Code of Military justice are involved
in such crimes as principles or accessories, and except in
extraordinary cases, that there is no victim other than
persons who are subject to the Uniform Code of Military
Justice or who are bona fide dependents or members of a
household of military or civilian personnel residing on the
installation. Unless such a determination is made, the Coast
Guard shall promptly advise the Federal Bureau of
Investigation of any crime committed on a military
installation if such crime is within the investigative
authority of the Federal Bureau of Investigation. The
Federal Bureau of Investigation shall investigate any serious
crime of which it has been so advised for the purpose of
prosecution in the civil courts unless the Department of
Justice determines that investigation and prosecution may
be conducted more efficiently and expeditiously by the
Coast Guard. Even if the determination provided for in the
first sentence of this paragraph is made by the Coast Guard,
it shall promptly advise the Federal Bureau of Investigation
of any crime committed on a military installation in which
there is a victim who is not subject to the Uniform Code of
Military Justice or a bona fide dependent or member of the
household of military or civilian personnel residing on the
installation and that the Coast Guard is investigating the
crime because it has been determined to be extraordinary.
The Coast Guard shall promptly advise the Federal Bureau
of Investigation whenever the crime, except in minor
offenses, involves fraud against the government,
misappropriation, robbery, or theft of government property
of funds, or is of a similar nature. All such crimes shall be
investigated by the Coast Guard unless it receives prompt
advise that the Department of Justice has determined that
the crime should be investigated by the Federal Bureau of
Investigation and that the Federal Bureau of Investigation
will undertake the investigation for the purpose of
prosecution in the civil courts.
2. Crimes committed outside of military installations.
Except as herein after indicated , all crimes committed
outside of military installations, which fall within the
investigative jurisdiction of the Federal Bureau of
Investigation and in which there is involved as a suspect an
individual subject to the Uniform Code of Military Justice,
shall be investigated by the Federal Bureau of Investigation
for the purpose of prosecution in civil courts, unless the
Department of Justice determines that investigation and
prosecution may be conducted more efficiently and
expeditiously by other authorities. All such crimes which
come first to the attention of Coast Guard authorities shall
be referred promptly by them to the Federal Bureau of
Investigation, unless relieved of this requirement by the
Federal Bureau of Investigation as to particular types or
classes of crime. However, whenever Coast Guard military
personnel are engaged in scheduled military activities
outside of military installations such as organized
maneuvers or organized movement, the provisions of
paragraph 1 above shall apply, unless persons not subject to
the Uniform Code of Military Justice are involved as
principals, accessories or victims. If, however, there is
involved as a suspect or as an accused in any crime
committed outside of a military installation and falling
within the investigative authority of the Federal Bureau of
Investigation, an individual who is subject to the Uniform
Code of Military Justice and if the Coast Guard authorities
APPENDIX 4
A4-2
believe that the crime involves special factors relating to the
administration and discipline of the Coast Guard which
would justify investigation by them for the purpose of
prosecution before a Coast Guard military tribunal, they
shall promptly advise the Federal Bureau of Investigation of
the crime and indicate their views on the matter.
Investigation of such a crime may be undertaken by the
Coast Guard military authorities if the Department of
Justice agrees.
3. Transfer of investigative authority. An investigative body
of the Coast Guard which has initiated an investigation
pursuant to paragraphs 1 and 2 hereof, shall have exclusive
investigative authority and may proceed therewith to
prosecution. If, however, any Coast Guard investigative
body comes to the view that effectuation of those
paragraphs requires the transfer of investigative authority
over a crime, investigation of which has already been
initiated by that or by any other investigative body, it shall
promptly advise the other interested investigative body of
its views. By agreement between the Departments of Justice
and Transportation (Coast Guard), investigative authority
may then be transferred.
4. Administrative action. Exercise of exclusive investigative
authority by the Federal Bureau of Investigation pursuant to
this agreement shall not preclude Coast Guard military
authorities from making inquiries for the purpose of
administrative action related to the crime being
investigated. The Federal Bureau of Investigation will make
the results of its investigations available to Coast Guard
military authorities for use in connection with such action.
Whenever possible, decisions with respect to the application
in particular cases of the provisions of this Memorandum of
Understanding will be made at the local level, that is,
between the Special Agent in Charge of the local office of
the Federal Bureau of Investigation and the local Coast
Guard military commander.
5. Surrender of suspects. To the extent of the legal authority
conferred upon them, the Department of Justice and Coast
Guard military authorities will each deliver to the other
promptly suspects and accused individuals if authority to
investigate the crimes in which such accused individuals
and suspects are involved is lodged in the other by
paragraphs 1 and 2 hereof. Nothing in this memorandum
shall prevent the Coast Guard from prompt arrest and
detention of any person subject to the Uniform Code of
Military Justice whenever there is knowledge or reasonable
basis to believe that such a person has committed an offense
in violation of such code and detaining such person until he
is delivered to the Federal Bureau of Investigation if such
action is required pursuant to this memorandum.
APPROVED:
/s/ Alan S. Boyd /s/ Ramsey Clark
Alan S. Boyd Ramsey Clark
Secretary of Transportation Attorney General
Date: 24 October 1967 Date: 9 October 1967
APPENDIX 5
The Department of Defense Forms Management Program provides the following blank forms for
reference and use in military justice processing. This is a non-exhaustive list. The forms are
available at https://www.esd.whs.mil/Directives/forms/.
Form Number
Form Name
DD Form 453
Subpoena to Testify and/or Produce or Permit Inspection of Items in a
Court Martial
DD Form 453-1
Travel Order
DD Form 454
Warrant of Attachment
DD Form 455
Report of Proceedings to Vacate Suspension of a Court-Martial Sentence
DD Form 456
Interrogatories and Dispositions
DD Form 457
Preliminary Hearing Officer’s Report
DD Form 458
Charge Sheet
DD Form 490
Certified Record of Trial
DD Form 491
Summarized Record of Trial
DD Form 491-1
Summarized Record of Trial – Article 39(A) Session
DD Form 493
Extract of Military Records of Previous Convictions
DD Form 494
Court-Martial Data Sheet
DD Form 1722
Request for Trial Before Military Judge Alone
DD Form 2654
Involuntary Allotment Notice and Processing
DD Form 2329
Record of Trial by Summary Court-Martial
DD Form 2330
Waiver/Withdrawal of Appellate Rights in General and Special Courts-
Martial Subject to Review by a Court of Military Review
DD Form 2331
Waiver/Withdrawal of Appellate Rights in General Courts-Martial
Subject to Examination in the Office of the Judge Advocate General
DD Form 2698
Application for Transitional Compensation
DD Form 2701
Initial Information for Victims and Witnesses of Crime
DD Form 2702
Court-Martial Information for Victims and Witnesses of Crime
DD Form 2703
Post-Trial Information for Victims and Witnesses of Crime
DD Form 2704
Victim/Witness Certification and Election Concerning Prisoner Status
DD Form 2704-1
Victim Election of Post-Trial and Appellate Rights
DD Form 2705
Notification to Victim/Witness of Prisoner Status
DD Form 2706
Annual Report on Victim and Witness Assistance
DD Form 2707
Confinement Order
DD Form 2707-1
Department of Defense Report of Result of Trial
DD Form 2708
Receipt for Pretrial/Post-Trial Prisoner or Detained Person
DD Form 2717
Department of Defense Voluntary/Involuntary Appellate Leave Action
DD Form 2873
Military Protective Order
DD Form 3056
Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703
DD Form 3057
Application for Search and Seizure Warrant Pursuant to 18 U.S.C. § 2703
A6-1
Appendix 6 – RESERVED
THIS PAGE LEFT INTENTIONALLY BLANK.
A7-1
Appendix 7 – RESERVED
THIS PAGE LEFT INTENTIONALLY BLANK.
APPENDIX 8
GUIDE FOR SUMMARY COURTS-MARTIAL
A8-1
[General Note to SCM: It is not the purpose of this guide to answer all questions which may arise
during a trial. When this guide, chapter 13 of the Rules for Courts-Martial, and other legal materials
available fail to provide sufficient information concerning law or procedure, the summary court-
martial should seek advice on these matters from a judge advocate. See R.C.M. 1301(b). If the
accused has obtained, or wishes to obtain, defense counsel, see R.C.M. 1301(e). The SCM should
examine the format for record of trial at appendix 9. It may be useful as a checklist during the
proceedings to ensure proper preparation after trial. The SCM should become familiar with this
guide before using it. Instructions for the SCM are contained in brackets, and should not be read
aloud. Language in parentheses reflects optional or alternative language. The SCM should read the
appropriate language aloud.]
Preliminary Proceeding
Identity of SCM
SCM: I am ____________. I have been detailed to conduct a summary
court-martial (by Summary Court-Martial Convening Order
(Number ______), Headquarters, _________ , dated [see convening
order]).
Referral of charges to trial
Charges against you have been referred to me for trial by summary
court-martial by ([name and title of convening authority]) on ([date
of referral]) [see block IV on page 2 of charge sheet].
[Note 1. Hand copy of charge sheet to the accused.]
Providing the accused with charge
sheet
I suggest that you keep this copy of the charge sheet and refer to it
during the trial. The charges are signed by [see first name at top of
page 2 of charge sheet], a person subject to the Uniform Code of
Military Justice, as accuser, and are properly sworn to before a
commissioned officer of the armed forces authorized to administer
oaths.
(_________ ordered the charges to be preferred.) The charges
allege, in general, violation of Article ______, in that you
__________, (and Article ______, in that you _______). I am now
going to tell you about certain rights you have in this trial. You
should carefully consider each explanation because you will soon
have to decide whether to object to trial by summary court-martial.
Until I have completed my explanation, do not say anything except
to answer the specific questions which I ask you. Do you
understand that?
ACC: _______________.
Duties of SCM
SCM: As summary court-martial it is my duty to obtain and examine all
the evidence concerning any offense(s) to which you plead not
guilty, and to thoroughly and impartially inquire into both sides of
the matter. I will call witnesses for the prosecution and question
them, and I will help you in cross-examining those witnesses. I will
help you obtain evidence and present the defense. This means that
one of my duties is to help you present your side of the case. You
may also represent yourself, and if you do, it is my duty to help
you. You are presumed to be innocent until your guilt has been
APPENDIX 8
A8-2
proved by legal and competent evidence beyond a reasonable
doubt. If you are found guilty of an offense, it is also my duty to
consider matters which might affect the sentence, and then to
adjudge an appropriate sentence. Do you understand that?
ACC: _______________.
Right to object to SCM
SCM: You have the absolute right to object to trial by summary court-
martial. If you object the appropriate authority will decide how to
dispose of the case. The charges may be referred to a special or
general court-martial, or they may be dismissed, or the offenses
charged may be disposed of by (nonjudicial punishment [if not
previously offered and refused] or) administrative measures. [See
R.C.M. 306.] Do you understand that?
ACC: _______________.
Right to inspect allied papers and
personnel records.
SCM: You may inspect the allied papers and personnel records [Hand
those documents which are available to the accused for examination
in your presence.] (You may also inspect [identify personnel
records or other documents which are not present] which are
located at ___________. You may have time to examine these if
you wish.)
Witnesses/other evidence for the
government
SCM: The following witnesses will probably appear and testify against
you: ____________________. The following documents and
physical evidence will probably be introduced:
_______________________.
Right to cross-examine
After these witnesses have testified in response to my questions,
you may cross-examine them. If you prefer, I will do this for you
after you inform me of the matters about which you want the
witness to be questioned.
Do you understand that?
ACC: _______________.
Right to present evidence
SCM:
You also have the right to call witnesses and present other
evidence. This evidence may concern any or all of the charges. (I
have arranged to have the following witnesses for you present at the
trial.) I will arrange for the attendance of other witnesses and the
production of other evidence requested by you. I will help you in
any way possible. Do you understand that?
ACC: _______________.
Evidence to be considered
SCM: In deciding this case, I will consider only evidence introduced
during the trial. I will not consider any other information, including
any statements you have made to me, which is not introduced in
accordance with the Military Rules of Evidence during the court-
martial. Do you understand that?
GUIDE FOR SUMMARY COURTS-MARTIAL
A8-3
ACC: _______________.
Right to remain silent
SCM: You have the absolute right during this trial to choose not to testify
and to say nothing at all about the offense(s) with which you are
charged. If you do not testify, I will not hold it against you in any
way. I will not consider it as an admission that you are guilty. If
you remain silent, I am not permitted to question you about the
offense(s).
Right to testify concerning the
offense(s)
However, if you choose, you may be sworn and testify as a witness
concerning the offense(s) charged against you. If you do that, I will
consider your testimony just like the testimony of any other
witness.
[Note 2. Use the following if there is only one specification.]
If one specification
If you decide to testify concerning the offense, you can be
questioned by me about the whole subject of the offense. Do you
understand that?
ACC: _______________.
[Note 3. Use the following if there is more than one specification.]
If more than one specification
SCM: If you decide to testify, you may limit your testimony to any
particular offense charged against you and not testify concerning
any other offense(s) charged against you. If you do this, I may
question you about the whole subject of the offense about which
you testify, but I may not question you about any offense(s)
concerning which you do not testify. Do you understand that?
ACC: _______________.
Right to testify, remain silent or
make an unsworn statement in
extenuation and mitigation
SCM: In addition, if you are found guilty of an offense, you will have the
right to testify under oath concerning matters regarding an
appropriate sentence. You may, however, remain silent, and I will
not hold your silence against you in any way. You may, if you
wish, make an unsworn statement about such matters. This
statement may be oral, in writing, or both. If you testify, I may
cross-examine you. If you make an unsworn statement, however, I
am not permitted to question you about it, but I may receive
evidence to contradict anything contained in the statement. Do you
understand that?
ACC: _______________.
APPENDIX 8
A8-4
Maximum punishment
SCM:
If I find you guilty (of the offense) (of any of the offenses charged),
the maximum sentence which I am authorized to impose is:
[Note 4. For an accused of a pay grade of E–4 or below, proceed as follows.]
E-4 and below
(l) reduction to lowest enlisted pay grade; and
(2) forfeiture of two-thirds of 1 month’s pay; and
(3) confinement for l month.
[Note 5. For an accused of a pay grade above E–4, proceed as follows.]
E-5 and above
(1) reduction to the next inferior pay grade; and
(2) forfeiture of two-thirds of 1 month’s pay; and
(3) restriction to specified limits for 2 months.
SCM:
Do you understand the maximum punishment which this court-
martial is authorized to adjudge?
ACC: _______________.
Plea options
SCM: You may plead not guilty or guilty to each offense with which you
are charged. You have an absolute right to plead not guilty and to
require that your guilt be proved beyond a reasonable doubt before
you can be found guilty. You have the right to plead not guilty even
if you believe you are guilty. Do you understand that?
ACC: _______________.
SCM If you believe you are guilty of an offense, you may, but are not
required to, plead guilty to that offense. If you plead guilty to an
offense, you are admitting that you committed that offense, and this
court-martial could find you guilty of that offense without hearing
any evidence, and could sentence you to the maximum penalty I
explained to you before. Do you understand that?
ACC: _______________.
Lesser included offenses
SCM: [Examine the list of lesser included offenses under each punitive
article alleged to have been violated. See Appendix 12A. If a lesser
included offense may be at issue, give the following advice.] You
may plead not guilty to Charge _______, Specification ______, as
it now reads, but plead guilty to the lesser offense of __________,
which is included in the offense charged. Of course, you are not
required to do this. If you do, then I can find you guilty of this
lesser offense without hearing evidence on it. Furthermore, I could
still hear evidence on the greater offense for purposes of deciding
whether you are guilty of it. Do you understand that?
ACC: _______________.
SCM: Do you need more time to consider whether to object to trial by
summary court-martial or to prepare for trial?
GUIDE FOR SUMMARY COURTS-MARTIAL
A8-5
ACC: _______________.
SCM: [If time is requested or otherwise appropriate.] We will convene the
court-martial at ________. When we convene, I will ask you
whether you object to trial by summary court-martial. If you do not
object, I will then ask for your pleas to the charge(s) and
specification(s), and for you to make any motions you may have.
Trial Proceedings
Convene
SCM: This summary court-martial is now in session.
Objection/consent to trial by SCM
SCM: Do you object to trial by summary court-martial?
ACC: _______________.
Entries on record of trial [Note 6. If there is an objection, adjourn the court-martial and return the file to the convening
authority. If the accused does not object, proceed as follows. The accused may be asked to initial the
notation on the record of trial that the accused did or did not object to trial by summary court-martial.
This is not required, however.]
Readings of the charges
SCM:
Look at the charge sheet. Have you read the charge(s) and
specification(s)?
ACC: _______________.
SCM: Do you want me to read them to you?
ACC: [If accused requests, read the charge(s) and specification(s).]
Arraignment
SCM: How do you plead? Before you answer that question, if you have
any motion to dismiss (the) (any) charge or specification, or for
other relief, you should make it now.
ACC: _______________.
Motions [Note 7. If the accused makes a motion to dismiss or to grant other relief, or such a motion is raised by
the summary court-martial, do not proceed with the trial until the motions have been decided. See
R.C.M. 905–907, and R.C.M. 1304(b)(2)(C). After any motions have been disposed of and if
termination of the trial has not resulted, have the accused enter pleas and proceed as indicated below.]
Pleas
ACC: I plead: _______________.
[Note 8. If the accused refuses to plead to any offense charged, enter pleas of not guilty. If the accused
refuses to enter any plea, evidence must be presented to establish that the accused is the person named
in the specification(s) and is subject to court-martial jurisdiction. See R.C.M. 202, 1301(c)]
[Note 9. If the accused pleads not guilty to all offenses charged, proceed to the section entitled
“Procedures-Not Guilty Pleas.”]
[Note 10. If the accused pleads guilty to one or more offenses, proceed as follows.]
Procedures-guilty pleas
SCM: I will now explain the meaning and effect of your pleas, and
question you so that I can be sure you understand. Refer to the
APPENDIX 8
A8-6
charge(s) and specification(s). I will not accept your pleas of guilty
unless you understand their meaning and effect. You are legally and
morally entitled to plead not guilty even though you believe you are
guilty, and to require that your guilt be proved beyond a reasonable
doubt. A plea of guilty is the strongest form of proof known to the
law. On your pleas of guilty alone, without receiving any evidence,
I can find you guilty of the offense(s) to which you have pleaded
guilty. I will not accept your pleas unless you realize that by your
pleas you admit every element of the offense(s) to which you have
pleaded guilty, and that you are pleading guilty because you really
are guilty. If you are not convinced that you are in fact guilty, you
should not allow anything to influence you to plead guilty. Do you
understand that?
ACC: _______________.
SCM: Do you have any questions?
ACC: _______________.
SCM: By your pleas of guilty you give up three very important rights.
(You keep these rights with respect to any offense(s) to which you
have pleaded not guilty.) The rights which you give up when you
plead guilty are:
First, the right against self-incrimination. This means you give up
the right to say nothing at all about (this) (these) offense(s) to
which you have pleaded guilty. In a few minutes I will ask you
questions about (this) (these) offense(s), and you will have to
answer my questions for me to accept your pleas of guilty.
Second, the right to a trial of the facts by this court-martial. This
means you give up the right to have me decide whether you are
guilty based upon the evidence which would be presented.
Third, the right to be confronted by and to cross-examine any
witnesses against you. This means you give up the right to have any
witnesses against you appear, be sworn and testify, and to cross-
examine them under oath.
Do you understand these rights?
ACC: _______________.
SCM: Do you understand that by pleading guilty you give up these rights?
ACC: _______________.
SCM On your pleas of guilty alone you could be sentenced to
_________________.
[Note 11. Re-read the appropriate sentencing section at notes 4 or 5 above unless the summary court-
martial is a rehearing or new or other trial, in which case see R.C.M. 810(d).]
GUIDE FOR SUMMARY COURTS-MARTIAL
A8-7
SCM:
Do you have any questions about the sentence which could be
imposed as a result of your pleas of guilty?
ACC: _______________.
SCM: Has anyone made any threat or tried in any other way to force you
to plead guilty?
ACC: _______________.
Pretrial agreement
SCM:
Are you pleading guilty because of any promises or understandings
between
you and the convening authority or anyone else?
ACC: _______________.
[Note 12. If the accused answers yes, the summary court-martial must inquire into the terms of such
promises or understandings in accordance with R.C.M. 910.
[Note 13. If the accused has pleaded guilty to a lesser included offense, also ask the following
question.]
Effect of guilty pleas to lesser
included offenses
SCM: Do you understand that your plea of guilty to the lesser included
offense of admits all the elements of the offense charged except the
element(s) of , and that no proof is necessary to establish those
elements admitted by your pleas?
ACC: _______________.
SCM: The following elements state what would have to be proved beyond
a reasonable doubt before the court-martial could find you guilty if
you had pleaded not guilty. As I read each of these elements to you,
ask yourself whether each is true and whether you want to admit
that each is true, and then be prepared to discuss each of these
elements with me when I have finished. The elements of the
offense(s) which your pleas of guilty admit are
[Note 14. Read the elements of the offense(s) from the appropriate punitive article in Part IV. This
advice should be specific as to names, dates, places, amounts, and acts.]
Do you understand each of the elements of the offense(s)?
ACC: _______________.
SCM: Do you believe, and admit, that taken together these elements
correctly describe what you did?
[Note 15. The summary court-martial should now question the accused about the circumstances of the
offense(s) to which the accused has pleaded guilty. The accused will he placed under oath for this
purpose. See oath below. The purpose of these questions is to develop the circumstances in the
accused’s own words, so that the summary court-martial may determine whether each element of the
offense(s) is established.]
APPENDIX 8
A8-8
Oath to accused for guilty plea
inquiry
SCM:
Do you (swear) (affirm) that the statements you are about to make
shall be the truth, the whole truth, and nothing but the truth (so help
you God)?
ACC: _______________.
SCM: Do you have any questions about the meaning and effect of your
pleas of guilty?
ACC: _______________.
SCM: Do you believe that you understand the meaning and effect of your
pleas of guilty?
Determination of providence of
pleas of guilty
[Note 16. Pleas of guilty may not be accepted unless the summary court-martial finds that they are
made voluntarily and with understanding of their meaning and effect, and that the accused has
knowingly, intelligently, and consciously waived the rights against self-incrimination, to a trial of the
facts by a court-martial, and to be confronted by the witnesses. Pleas of guilty may be improvident
when the accused makes statements at any time during the trial which indicate that there may be a
defense to the offense(s), or which are otherwise inconsistent with an admission of guilt. If the
accused makes such statements and persists in them after questioning, then the summary court-martial
must reject the accused’s guilty pleas and enter pleas of not guilty for the accused. Turn to the section
entitle “Procedures-Not Guilty Pleas” and continue as indicated. If (the) (any of the) accused’s pleas
of guilty are found provident, the summary court-martial should announce findings as follows.]
Acceptance of guilty pleas
SCM: I find that the pleas of guilty are made voluntarily and with
understanding of their meaning and effect. I further specifically
find that you have knowingly, intelligently, and consciously waived
your rights against self-incrimination, to a trial of the facts by a
court-martial, and to be confronted by the witnesses against you.
Accordingly, I find the pleas are provident, and I accept them.
However, you may ask to take back your guilty pleas at any time
before the sentence is announced. If you have a sound reason for
your request, I will grant it. Do you understand that?
ACC: _______________.
If any not guilty pleas remain [Note 17. If no pleas of not guilty remain, go to note 26. If the accused has changed pleas of guilty to
not guilty, if the summary court-martial has entered pleas of not guilty to any charge(s) and
specification(s), or if the accused has pleaded not guilty to any of the offenses or pleaded guilty to a
lesser included offense, proceed as follows.]
Witnesses for the accused
SCM: If there are witnesses you would like to call to testify for you, give
me the name, rank, and organization or address of each, and the
reason you think they should be here, and I will arrange to have
them present if their testimony would be material. Do you want to
call witnesses?
ACC: _______________.
[Note 18. The summary court-martial should estimate the length of the case and arrange for the
attendance of witnesses. The prosecution evidence should be presented before evidence for the
defense.]
Calling witnesses
SCM: I call as a witness ___________.
GUIDE FOR SUMMARY COURTS-MARTIAL
A8-9
Witness oath
SCM: [To the witness, both standing] Raise your right hand.
Do you swear (or affirm) that the evidence you shall give in the
case now in hearing shall be the truth, the whole truth, and nothing
but the truth (, so help you God)? [Do not use the phrase, “so help
you God,” if the witness prefers to affirm.]
WIT: _________.
SCM:
Be seated. State your full name, rank, organization, and armed
force ([or if a civilian witness] full name, city and state of
residence, and occupation).
WIT: _________.
[Note 19. The summary court-martial should question each witness concerning the alleged offense(s).
After direct examination of each witness, the accused must be given an opportunity to cross-examine.
If the accused declines to cross-examine the witness, the summary court-martial should ask any
questions that it feels the accused should have asked. If cross-examination occurs, the summary court-
martial may ask questions on redirect examination and the accused may ask further questions in
recross examination.]
[Note 20. After each witness has testified, instruct the witness as follows.]
SCM: Do not discuss this case with anyone except the accused, counsel,
or myself until after the trial is over. Should anyone else attempt to
discuss this case with you, refuse to do so and report the attempt to
me immediately. Do you understand that?
WIT: _________.
Recalling witnesses [Note 21. Witnesses may be recalled if necessary. A witness who is recalled is still under oath and
should be so reminded.]
[Note 22. After all witnesses against the accused have been called and any other evidence has been
presented, the summary court-martial will announce the following.]
SCM: That completes the evidence against you. I will now consider the
evidence in your favor.
Presentation of defense case [Note 23. Witnesses for the accused should now be called to testify and other evidence should be
presented. Before the defense case is terminated the summary court-martial should ask the accused if
there are other matters the accused wants presented. If the accused has not testified, the summary
court-martial should remind the accused of the right to testify or to remain silent.]
Closing argument
SCM: I have now heard all of the evidence. You may make an argument
on this evidence before I decide whether you are guilty or not
guilty.
Deliberations on findings
[Note 24. The court-martial should normally close for deliberations. If the summary court-martial
decides to close, proceed as follows.]
SCM: The court-martial is closed so that I may review the evidence. Wait
outside the courtroom until I recall you.
APPENDIX 8
A8-10
[Note 25. The summary court-martial should review the evidence and applicable law. It must acquit
the accused unless it is convinced beyond a reasonable doubt by the evidence it has received in court
in the presence of the accused that each element of the alleged offense(s) has been proved beyond a
reasonable doubt. See R.C.M. 918. It may not consider any facts that were not admitted into evidence,
such as a confession or admission of the accused that was excluded because it was taken in violation of
Mil. R. Evid. 304. In accordance with R.C.M. 1304(b)(2)(F), the summary court-martial shall apply
the principles of R.C.M. 918 in determining the findings.]
Announcing the findings [Note 26. The summary court-martial should recall the accused, who will stand before the court-
martial when findings are announced. All findings including any findings of guilty resulting from
guilty pleas, should be announced at this time. The following forms should be used in announcing
findings.]
Not guilty of all offenses
SCM: I find you of (the) (all) Charge(s) and Specification(s): Not Guilty.
Guilty of all offenses
I find you of (the) (all) Charge(s) and Specification(s): Guilty.
Guilty of some but not all offenses
I find you of (the) Specification (________) of (the) Charge (___):
Not Guilty; of (the) Specification (______) of (the) Charge (___):
Guilty; of (the) Charge (______ ): Guilty.
Guilty of lesser included offense or
with exceptions and substitutions
I find you of (the Specification (________) of (the) Charge (___):
Guilty, except the words ______ and; (substituting therefor,
respectively, the words _______ and _______); of the excepted
words: Not Guilty; (of the substituted words: Guilty;) of the
Charge: (Guilty) (Not Guilty, but Guilty of a violation of Article
______, UCMJ, a lesser included offense).
Entry of findings [Note 27. The summary court-martial shall note all findings on the record of trial.]
Procedure if total acquittal
[Note 28. If the accused has been found not guilty of all charges and specifications, adjourn the court-
martial, excuse the accused, complete the record of trial, and return the charge sheet, personnel
records, allied papers, and record of trial to the convening authority.]
Procedure if any findings of guilty [Note 29. If the accused has been found guilty of any offense, proceed as follows.]
Presentence procedure
SCM: I will now receive information in order to decide on an appropriate
sentence. Look at the information concerning you on the front page
of the charge sheet. Is it correct?
[Note 30. If the accused alleges that any of the information is incorrect, the summary court-martial
must determine whether it is correct and correct the charge sheet, if necessary.]
[Note 31. Evidence from the accused’s personnel records, including evidence favorable to the accused,
should now be received in accordance with R.C.M. 1001(b)(2). These records should be shown to the
accused.]
SCM: Do you know any reason why I should not consider these?
ACC: _______________.
[Note 32. The summary court-martial shall resolve objections under R.C.M. 1002(b)(2) and the
Military Rules of Evidence and then proceed as follows. See also R.C.M. 1001(b)(3), (4), and (5)
concerning other evidence which may be introduced.]
Victim’s Right to be heard on
sentencing
[Note 33. A crime victim has the right to be reasonably heard at presentencing hearing. See R.C.M.
1001(c) and 1304(a)(4)(D). A “crime victim” is an individual who has suffered direct physical,
GUIDE FOR SUMMARY COURTS-MARTIAL
A8-11
emotional, or pecuniary harm as a result of the commission of an offense of which the accused was
found guilty.]
SCM: Is there a crime victim in this case that wishes to submit a sworn or
unsworn statement?
[Note 34. The crime victim may make a sworn statement, and be subject to cross-examination. The
crime victim can elect to submit an unsworn statement, and may not be subjected to cross-
examination. The content of statements may only include victim impact and matters in mitigation.]
Extenuation and mitigation
SCM:
In addition to the information already admitted which is favorable
to you, and which I will consider, you may call witnesses who are
reasonably available, you may present evidence, and you may make
a statement. This information may be to explain the circumstances
of the offense(s), including any reasons for committing the
offense(s), and to lessen the punishment for the offense(s)
regardless of the circumstances. You may show particular acts of
good conduct or bravery, and evidence of your reputation in the
service for efficiency, fidelity, obedience, temperance, courage, or
any other trait desirable in a good servicemember. You may call
available witnesses or you may use letters, affidavits, certificates of
military and civil officers, or other similar writings. If you
introduce such matters, I may receive written evidence for the
purpose of contradicting the matters you presented. If you want me
to get some military records that you would otherwise be unable to
obtain, give me a list of these documents. If you intend to introduce
letters, affidavits, or other documents, but you do not have them,
tell me so that I can help you get them. Do you understand that?
ACC: _______________.
Rights of accused to testify, remain
silent, and make an unsworn
statement
SCM: I informed you earlier of your right to testify under oath, to remain
silent, and to make an unsworn statement about these matters.
SCM: Do you understand these rights?
ACC: _______________.
SCM: Do you wish to call witnesses or introduce anything in writing?
ACC: _______________.
Questions concerning pleas of
guilty
[Note 35. If as a result of matters received on sentencing, including the accused’s testimony or an
unsworn statement, any matter is disclosed which is inconsistent with the pleas of guilty, the summary
court-martial must immediately inform the accused and resolve the matter. See Note 16.]
Argument on sentence
SCM: You may make an argument on an appropriate sentence.
ACC: _______________.
Deliberations prior to announcing
sentence
[Note 36. After receiving all matters relevant to sentencing, the summary court-martial should
normally close for deliberations. If the summary court-martial decides to close, proceed as follows.]
APPENDIX 8
A8-12
Closing the court-martial
SCM:
This court-martial is closed for determination of the sentence. Wait
outside the courtroom until I recall you.
[Note 37. See Appendix 11 concerning proper form of sentence. Once the summary court-martial has
determined the sentence, it should reconvene the court-martial and announce the sentence as follows.]
Announcement of sentence
SCM: Please rise. I sentence you to __________.
[Note 38. If the sentence includes confinement, advise the accused as follows.]
SCM: You have the right to request in writing that [name of convening
authority] defer your sentence to confinement. Deferment is not a
form of clemency and is not the same as suspension of a sentence.
It merely postpones the running of a sentence to confinement.
[Note 39. Whether or not the sentence includes confinement, advise the accused as follows.]
SCM: You have the right to submit in writing a petition or statement to
the convening authority. This statement may include any matters
you feel the convening authority should consider, a request for
clemency, or both. This statement must be submitted within 7 days,
unless you request and convening authority approves an extension
of up to 20 days. After the convening authority takes action, your
case will be reviewed by a judge advocate for legal error. You may
suggest, in writing, legal errors for the judge advocate to consider.
If, after final action has been taken in your case, you believe that
there has been a legal error, you may request review of your case
by The Judge Advocate General of _____________. Do you
understand these rights?
ACC: _______________.
Adjourning the court-martial
SCM: This court-martial is adjourned.
Entry on charge sheet
[Note 40. Record the sentence in the record of trial, inform the convening authority of the findings,
recommendations for suspension, if any, and any deferment request. If the sentence includes
confinement, arrange for the delivery of the accused to the accused’s commander, or someone
designated by the commander, for appropriate action. Ensure that the commander is informed of the
sentence. Complete the record of trial and forward to the convening authority.]
A9-1
Appendix 9 – RESERVED
THIS PAGE LEFT INTENTIONALLY BLANK.
APPENDIX 10
FORMS FOR ACTIONS (CASES REFERRED BEFORE 1 JANUARY 2019)
A10-1
The Forms in this appendix are guides for
preparation of the convening authority’s initial action
for cases referred before 1 January 2019. Guidance is
also provided for actions under MCM (2016), R.C.M.
1112(f). Appendix 11 contains Forms for later actions.
The Forms are guidance only, and are not mandatory.
They do not provide for all cases. It may be necessary
to combine parts of different Forms to prepare an
action appropriate to a specific case. Extreme care
should be exercised in using these Forms and in
preparing actions. See MCM (2016), R.C.M. 1107(f)
concerning contents of the convening authority’s
action.
In addition to the matters contained in the Forms
below, the action should show the headquarters and
place, or the ship, of the convening authority taking the
action, and the date of the action. The signature of the
convening authority is followed by the grade and unit
of the convening authority, and “commander” or
“commanding” as appropriate.
Further, convening authorities must include in the
record of trial a written explanation for (1) actions on
findings to dismiss or change any charge or
specification of qualifying offenses, and (2) actions to
disapprove, commute, or suspend the adjudged
sentence for an other than qualifying offense. Written
explanations are not required in cases involving at least
one pre-24 June 2014 offense, even for action
concerning offenses that would otherwise require
written explanation. The written explanation should
not be written on the action itself.
When the sentence includes confinement, the place
of confinement is designated in the action unless the
Secretary concerned prescribes otherwise. If the place
of confinement is designated in the action, service
regulations should be consulted first. See MCM
(2016) R.C.M. 1113(e)(2)(C).
In actions on a summary court-martial, when the
action is written on the record of trial (see Appendix 9)
the words “In the case of ______________” may be
omitted.
The convening authority should state in the action
or elsewhere in a document maintained in the record of
trial that the convening authority considered the
matters required by R.C.M. 1107 and whether the
convening authority considered any discretionary
matters under that Rule.
INITIAL ACTION ON COURT-MARTIAL
SENTENCE—FINDINGS NOT AFFECTED
Forms 1–10 are appropriate when the
adjudged sentence does not include death,
dismissal, or a dishonorable or bad-conduct
discharge. An adjudged sentence of confinement
for more than six months may not be disapproved,
commuted, or suspended absent (1) a pre-trial
agreement providing for such action, (2) a trial
counsel recommendation for clemency for
substantial assistance by the accused in the
investigation and/or prosecution of another case;
or (3) conviction in the same case for at least one
offense occurring prior to 24 June 2014.
Adjudged sentence approved and ordered executed
without modification. See MCM (2016), R.C.M.
1107(f)(4).
1. In the case of _____________ the sentence is
approved and will be executed. (_______ is
designated as the place of confinement.)
Adjudged sentence modified. See MCM (2016),
R.C.M. 1107(d)(1), (f)(4).
Adjudged sentence approved in part and ordered
executed.
2. In the case of _____________ only so much of the
sentence as provides for _____________ is approved
and will be executed. (__________is designated as
the place of confinement.)
Adjudged sentence approved; part of confinement
changed to forfeiture of pay.
3. In the case of _____________, so much of the
sentence extending to _______months of
APPENDIX 10
A10-2
confinement is changed to forfeiture of $ ____ pay
per month for months. The sentence as changed is
approved and will be executed. (_____________ is
designated as the place of confinement.)
Credit for illegal pretrial confinement. See R.C.M.
MCM (2016), 305(k); 1107(f)(4)(F).
In the case of _____________, the sentence is
approved and will be executed. The accused will be
credited with ____ days of confinement against the
sentence to confinement. (_________ is designated as
the place of confinement.)
Suspension of sentence. See MCM (2016), R.C.M.
1107(f)(4)(B); 1108.
Adjudged sentence approved and suspended.
5. In the case of _____________, the sentence is
approved. Execution of the sentence is suspended for
_______ (months) (years) at which time, unless the
suspension is sooner vacated, the sentence will be
remitted without further action.
Adjudged sentence approved; part of sentence
suspended.
6. In the case of _____________, the sentence is
approved and will be executed but the execution of that
part of the sentence extending to (confinement)
(confinement in excess of months) (forfeiture of pay)
(__) is suspended for (months) (years), at which time,
unless the suspension is sooner vacated, the suspended
part of the sentence will be remitted without further
action. (______ is designated as the place of
confinement.)
Deferment of confinement and termination of
deferment. See MCM (2016), R.C.M. 1101(c);
1107(f)(4)(E).
Adjudged sentence approved; confinement deferred
pending final review.
7. In the case of _____________, the sentence is
approved and, except for that portion extending to
confinement, will be executed. Service of the sentence
to confinement (is) (was) deferred effective (date), and
will not begin until (the conviction is final) (date)
(______), unless sooner rescinded by competent
authority.
Adjudged sentence approved; deferment of
confinement terminated.
8. In the case of _____________, the sentence is
approved and will be executed. The Service of the
sentence to confinement was deferred on (date).
(_________ is designated as the place of
confinement.)
Adjudged sentence approved; deferment of
confinement terminated previously.
9. In the case of _____________, the sentence is
approved and will be executed. The service of the
sentence to confinement was deferred on (date), and
the deferment ended on (date). (_________ is
designated as the place of confinement.)
Disapproval of sentence; rehearing on sentence only
ordered. See MCM (2016), R.C.M. 1107(e), (f).
10. In the case of _____________, it appears that the
following error was committed: (evidence of a
previous conviction of the accused was erroneously
admitted) (_____________). This error was
prejudicial as to the sentence. The sentence is
disapproved. A rehearing is ordered before a
(summary) (special) (general) court-martial to be
designated.
When the adjudged sentence includes death,
dismissal, or a dishonorable or a bad-conduct
discharge, Forms 1-10 are generally appropriate, but
several will require modification depending on the
action to be taken. One reason for this is because
Article 60 now limits the authority to modify an
adjudged dismissal, dishonorable discharge, or bad-
conduct discharge. Generally, an adjudged punitive
discharge may not be disapproved, commuted, or
suspended, absent (1) a pre-trial agreement providing
FORMS FOR ACTIONS (CASES REFERRED BEFORE 1 JANUARY 2019)
A10-3
for such action, (2) a trial counsel recommendation
for clemency for substantial assistance by the accused
in the investigation and/or prosecution of another
case, or (3) conviction in the same case for at least
one offense occurring prior to 24 June 2014. For
certain sex offenses occurring on or after 24 June
2014, Article 56(b) imposes a mandatory
dishonorable discharge or dismissal, even when at
least one offense in the same case occurs prior to 24
June 2014. When acting, pursuant to a pre-trial
agreement, on a punitive discharge required by
Article 56(b), Article 56(b) limits such action to
commutation of the dishonorable discharge to a bad
conduct discharge. This action is not authorized for
dismissals pursuant to Article 56(b).
A second reason that several of the Forms require
modification is that death, dismissal, or a
dishonorable or bad-conduct discharge may not be
ordered executed in the initial action. Therefore,
unless an adjudged punishment of death, dismissal, or
a dishonorable or bad-conduct discharge is
disapproved, changed to another punishment, or
(except in the case of death) suspended, the initial
action must specifically except such punishments
from the order of execution. This is done by adding
the words “except for the part of the sentence
extending to (death) (dismissal) (dishonorable
discharge) (bad-conduct discharge),” after the words
“is approved and” and before the words “will be
executed” in the action. (A death sentence cannot be
suspended. See MCM (2016), R.C.M. 1108(b).)
Forms 11-14 provide examples of actions when
the sentence includes death, dismissal, or a
dishonorable or bad-conduct discharge.
Adjudged sentence approved and, except for death,
dismissal, or discharge, ordered executed. See MCM
(2016), R.C.M. 1107(f)(4).
11. In the case of _____________, the sentence is
approved and, except for the part of the sentence
extending to (death) (dismissal) (dishonorable
discharge) (bad-conduct discharge), will be executed.
(_______ is designated as the place of confinement.)
Adjudged sentence modified. See MCM (2016),
R.C.M. 1107(d)(1), (f)(4). If the part of the sentence
providing for death, dismissal, or a dishonorable or a
bad-conduct discharge is disapproved, see Form 2
above.
12. In the case of _____________, only so much of
the sentence as provides for (death) (dismissal) (a
dishonorable discharge) (a bad-conduct discharge)
(and ___________ [specify each approved
punishment]) is approved and, except for the part of the
sentence extending to (death) (dismissal)
(dishonorable discharge) (bad-conduct discharge), will
be executed. (_____________ is designated as the
place of confinement.)
Adjudged sentence approved; discharge changed to
confinement.
13. In the case of _____________, so much of the
sentence extending to a (dishonorable discharge) (bad-
conduct discharge) is changed to confinement for
______ months (thereby making the period of
confinement _____ total months). The sentence as
changed is approved and will be executed.
(_____________ is designated as the place of
confinement.)
Suspension of sentence. See MCM (2016), R.C.M.
1107(f)(4)(B); 1108(d). If the portion of the sentence
extending to dismissal or a dishonorable or a bad-
conduct discharge is suspended, Form 5 or Form 6
may be used, as appropriate. If parts of the sentence
other than an approved dismissal or discharge are
suspended, the following form may be used:
Adjudged sentence approved; part of sentence, other
than dismissal or dishonorable or bad-conduct
discharge, suspended.
14. In the case of _____________, the sentence is
approved and, except for that part of the sentence
extending to (dismissal) (a dishonorable discharge) (a
bad-conduct discharge), will be executed, but the
execution of that part of the sentence adjudging (
confinement) (confinement in excess
of_____________) (forfeiture of pay)
(__________) is suspended for ________ (months)
(years) at which time, unless the suspension is sooner
vacated, the suspended part of the sentence will be
APPENDIX 10
A10-4
remitted without further action. (_____________ is
designated as the place of confinement.)
INITIAL ACTION ON COURT-MARTIAL
WHEN FINDINGS AFFECTED
Findings are addressed in the action only when any
findings of guilty are disapproved, in whole or part.
See MCM (2016), R.C.M. 1107(c), (f)(3). The action
must also indicate what action is being taken on the
sentence. Appropriate parts of the foregoing Forms
for Action on the sentence may be substituted in the
following examples as necessary. Under Article 60,
convening authorities may only act to dismiss or
change any charge or specification if such offenses
are qualifying offenses, pre-24 June 2014 offenses, or
heard in the same case as a pre-24 June 2014 offense.
In cases of legal error when action on findings are not
authorized, convening authorities may wish to
consider deferring punishment until completion of
review in accordance with R.C.M. 110 1(c)(6)(A).
Some findings of guilty disapproved; adjudged
sentence approved.
15. In the case of _____________, the finding of guilty
of Specification 2, Charge I is disapproved.
Specification 2, Charge I is dismissed. The sentence is
approved and (, except for that part of the sentence
extending to ((dismissal) (a dishonorable discharge) (a
bad-conduct discharge),) will be executed.
(_____________ is designated as the place of
confinement.)
Finding of guilty of lesser included offense approved;
adjudged sentence modified.
16. In the case of _____________, the finding of guilty
of Specification 1, Charge II is changed to a finding of
guilty of (assault with a means likely to produce
grievous bodily harm, to wit: a knife) (absence without
authority from the (unit) (ship) (_____________)
alleged from (date) to (date) in violation of Article 86)
(_____________). Only so much of the sentence as
provides for _____________ is approved and (,except
for the part of the sentence extending to ((dismissal)
(dishonorable discharge) (bad-conduct discharge)),
will be executed. (_____________ is designated as the
place of confinement.)
Some findings of guilty and sentence disapproved;
combined rehearing ordered. See 1107(e). A rehearing
may not be ordered if any sentence is approved. See
MCM (2016) R.C.M. 1107(c); (e).
17. In the case of _____________, it appears that the
following error was committed: (Exhibit 1, a
laboratory report, was not properly authenticated and
was admitted over the objection of the defense)
(_____________). This error was prejudicial as to
Specifications 1 and 2 of Charge II. The findings of
guilty as to Specifications 1 and 2 of Charge II and the
sentence are disapproved. A combined rehearing is
ordered before a court-martial to be designated.
All findings of guilty and sentence disapproved;
rehearing ordered. See MCM (2016), R.C.M. 1107(c).
18. In the case of _____________, it appears that the
following error was committed: (evidence offered by
the defense to establish duress was improperly
excluded) (_____________). This error was
prejudicial to the rights of the accused as to all findings
of guilty. The findings of guilty and the sentence are
disapproved. A rehearing is ordered before a court-
martial to be designated.
All findings of guilty and sentence disapproved based
on jurisdictional error; another trial ordered. See
MCM (2016), R.C.M. 1107(e)(3). This Form may
also be used when a specification fails to state an
offense.
19. In the case of _____________, it appears that (the
members were not detailed to the court-martial by the
convening authority) (_____________). The
proceedings, findings, and sentence are invalid.
Another trial is ordered before a court-martial to be
designated.
All findings of guilty and sentence disapproved;
charges dismissed. See MCM (2016), R.C.M.
1107(c).
20 In the case of _____________, the findings of
guilty and the sentence are disapproved. The charges
FORMS FOR ACTIONS (CASES REFERRED BEFORE 1 JANUARY 2019)
A10-5
are dismissed.
ACTION ON A REHEARING
The action on a rehearing is the same as an action
on an original court-martial in most respects. It differs
first in that, as to any sentence approved following the
rehearing, the accused must be credited with those
parts of the sentence previously executed or
otherwise served. Second, in certain cases the
convening authority must provide for the restoration
of certain rights, privileges, and property. See MCM
(2016), R.C.M. 1107(f)(5)(A). Under Article 60,
convening authorities may only act to dismiss or
change any charge or specification if such offenses
are qualifying offenses, pre-24 June 2014 offenses, or
heard in the same case as a pre-24 June 2014 offense.
Action on rehearing; granting credit for previously
executed or served punishment.
21. In the case of _____________, the sentence is
approved and (, except for the portion of the sentence
extending to ((dismissal) (dishonorable discharge)
(bad-conduct discharge)), will be executed. The
accused will be credited with any portion of the
punishment served from (date) to (date) under the
sentence adjudged at the former trial of this case.
Action on rehearing; restoration of rights.
22. In the case of _____________, the findings of
guilty and the sentence are disapproved and the charges
are dismissed. All rights, privileges, and property of
which the accused has been deprived by virtue of the
execution of the sentence adjudged at the former trial
of this case on (date) will be restored.
23. In the case of _____________, the accused was
found not guilty of all the charges and specifications
which were tried at the former hearing. All rights,
privileges, and property of which the accused has been
deprived by virtue of the execution of the sentence
adjudged at the former trial of this case on (date) will
be restored.
WITHDRAWAL OF PREVIOUS ACTION
Form 24 is appropriate for withdrawal of an earlier
action. See MCM (2016), R.C.M. 1107(f)(2)
concerning modification of an earlier action. Form 24a
is appropriate for withdrawal of previous action
pursuant to instructions from reviewing authority
pursuant to MCM (2016), R.C.M. 1107(f)(2) or (g).
24. In the case of _____________, the action taken by
(me) (my predecessor in command) on (date) is
withdrawn and the following substituted therefor:
24a. In the case of _____________, in accordance
with instructions from (The Judge Advocate General)
(the Court of Criminal Appeals) pursuant to Rule for
Courts-Martial [1107(f)(2)] [1107(g)], the action
taken by (me) (my predecessor in command) is
withdrawn. The following is substituted therefor:
_____________________.
FORMS FOR ACTIONS APPROVING AND
SUSPENDING PUNISHMENTS MENTIONED IN
ARTICLE 58a AND RETAINING ACCUSED IN
PRESENT OR INTERMEDIATE GRADE.
Under the authority of Article 58a, the Secretary
concerned may, by regulation, limit or specifically
preclude the reduction in grade which would otherwise
be effected under that Article upon the approval of
certain court-martial sentences by the convening
authority. The Secretary concerned may provide in
regulations that if the convening or higher authority
taking action on the case suspends those elements of
the sentence that are specified in Article 58a the
accused may be retained in the grade held by the
accused at the time of the sentence or in any
intermediate grade. Forms 25-27 may be used by the
convening or higher authority in effecting actions
authorized by the Secretary concerned in regulations
pursuant to the authority of Article 58a.
If the convening authority or higher authority,
when taking action on a case in which the sentence
includes a punitive discharge, confinement, or hard
labor without confinement, elects to approve the
sentence and to retain the enlisted member in the
grade held by that member at the time of sentence or
in any intermediate grade, that authority may do so if
permitted by regulations of the Secretary concerned
whether or not the sentence also includes a reduction
to the lowest enlisted grade, by using one of the
APPENDIX 10
A10-6
following Forms of Action. The first action, Form 25,
is appropriate when the sentence does not specifically
provide for reduction. The second and third actions,
Forms 26 and 27, are appropriate when the sentence
specifically provides for reduction to the grade of E-
1. The action set forth in Form 26 is intended for a
case in which the accused is to be probationally
retained in the grade held by that accused at the time
of sentence. The action set forth in Form 27 is for a
case in which the accused is to serve probationally in
an intermediate grade.
Note that the following limitations on post-trial
authority may affect the applicability of the Forms
25-27. An adjudged sentence of confinement for
more than six months may not be disapproved,
commuted, or suspended absent (1) a pre-trial
agreement providing for such action, (2) a trial
counsel recommendation for clemency for substantial
assistance by the accused in the investigation and/or
prosecution of another case; or (3) conviction in the
same case for at least one offense occurring prior to
23 June 2014. For certain sex offenses occurring on
or after 24 June 2014, Article 56(b) imposes a
mandatory dishonorable discharge or dismissal, even
when at least one offense in the same case occurs
prior to 23 June 2014. When acting, pursuant to a pre-
trial agreement, on a punitive discharge required by
Article 56(b), Article 56(b) limits such action to
commutation of the dishonorable discharge to a bad
conduct discharge. This action is not authorized for
dismissals pursuant to Article 56(b).
Automatic reduction suspended; sentence does not
specifically include reduction.
25. In the case of _____________, the sentence is
approved and will be executed, but the execution of
that part of the sentence extending to (a dishonorable
discharge) (a bad-conduct discharge) (confinement)
(hard labor without confinement) (and) is suspended
for (months) (years) at which time, unless the
suspension is sooner vacated, the suspended part of the
sentence will be remitted without further action. The
accused will (continue to) serve in the grade of ___
unless the suspension of (the dishonorable discharge)
(the bad-conduct discharge) (confinement) (hard
labor without confinement) is vacated, in which event
the accused will be reduced to the grade of E-1 at that
time.
Automatic reduction and adjudged reduction to E-l
suspended; accused retained in grade previously held.
26. In the case of _____________, the sentence is
approved and will be executed, but the execution of
that part of the sentence extending to (a dishonorable
discharge) (a bad-conduct discharge) (confinement)
(hard labor without confinement)
(_____________), and reduction to the grade of E-1,
is suspended for ___ (months) (years), at which time,
unless the suspension is sooner vacated, the
suspended part of the sentence will be remitted
without further action. The accused will continue to
serve in the grade of ___ unless the suspension of (the
dishonorable discharge) (the bad-conduct discharge)
(confinement) (hard labor without confinement), or
reduction to the grade of E-1, is vacated, in which
event the accused will be reduced to the grade of E-1
at that time
Automatic reduction and adjudged reduction to E-l
suspended; accused retained in intermediate grade.
27. In the case of _____________, the sentence is
approved and will be executed but the execution of
that part of the sentence extending to (a
dishonorable discharge) (a bad-conduct discharge)
(confinement) (hard labor without confinement), and
that part of the reduction which is in excess of
reduction to the grade of _______ is suspended for
_____ (months) (years) at which time, unless the
suspension is sooner vacated, the suspended part of
the sentence will be remitted without further action.
The accused will serve in the grade of _____ unless
the suspension of (the dishonorable discharge) (bad-
conduct discharge) (confinement) (hard labor without
confinement), or reduction to the grade of E-1, is
vacated, in which event the accused will be reduced
to the grade of E-1 at that time.
ACTION UNDER MCM (2016), R.C.M. 1112(f).
The Forms for Action for the officer taking action
under R.C.M. 1112(f) are generally similar to the
foregoing actions. The officer taking action under
R.C.M. 1112(f) may order executed all parts of the
approved sentence, including a dishonorable or bad-
conduct discharge, except those parts which have been
FORMS FOR ACTIONS (CASES REFERRED BEFORE 1 JANUARY 2019)
A10-7
suspended without later vacation unless the record
must be forwarded under R.C.M. 1112(g)(1). See
MCM (2016), R.C.M. 1113(c)(1)(A). The following
are additional Forms which may be appropriate:
Sentence approved when convening authority
suspended all or part of it.
28. In the case of _____________, the sentence as
approved and suspended by the convening authority
is approved.
Sentence approved and, when confinement was
deferred, ordered executed. See MCM (2016),
R.C.M. 1101(c)(6).
29. In the case of _____________, the sentence is
approved and the confinement will be executed. The
service of the sentence to confinement was deferred
on (date). (_____________ is designated as the place
of confinement.)
Sentence includes unsuspended dishonorable or bad-
conduct discharge; order of execution. See MCM
(2016), R.C.M. 1113(c)(1) and (2).
30. In the case of _____________, the sentence is
approved. The (dishonorable discharge) (bad-conduct
discharge) will be executed.
Findings and sentence disapproved; restoration as to
parts ordered executed by convening authority. See
MCM (2016), R.C.M. 1208.
31. In the case of _____________, the findings of
guilty and the sentence are disapproved. The charges
are dismissed. (The accused will be released from the
confinement adjudged by the sentence in this case and
all) (All) rights, privileges, and property of which the
accused has been deprived by virtue of the findings and
sentence disapproved will be restored.
Findings and sentence disapproved; rehearing
authorized. See MCM (2016), R.C.M. 1112(f).
32. In the case of _____________, it appears that the
following error was committed: (Exhibit 1, a statement
of the accused, was not shown to have been preceded
by Article 31 warnings as required and was admitted
over the objection of the defense) (_____________).
This error was prejudicial to the rights of the accused
as to the findings and the sentence. The case is returned
to the convening authority who may order a rehearing
or dismiss the charges.
Action taken is less favorable to the accused than that
recommended by the judge advocate. See MCM
(2016), R.C.M. 1112(f), (g).
33. In the case of _____________, the sentence is
approved. As this action is less favorable to the
accused than that recommended by the judge advocate,
the record and this action shall be forwarded to the
Judge Advocate General for review under Article
69(b).
Action when approved sentence includes dismissal. See
MCM (2016), R.C.M. 1113(c)(2).
34. In the case of _____________, the sentence is
approved. The record shall be forwarded to the
[Secretary concerned].
APPENDIX 11
FORMS FOR COURT-MARTIAL ORDERS
(CASES REFERRED BEFORE 1 JANUARY 2019)
A11-1
a. Forms for initial promulgating orders
[ Note. The following is a form applicable in promulgating the results of trial and the action of the convening
authority in all general and special court-martial cases. Omit the marginal side notes in drafting orders. See
R.C.M. 1114(c) (MCM 2016)]
Heading
(General) (Special) (Headquarters) (USS)
Court-Martial Order No. ___________ ___________________
[Note. The date must be the same as the date of the convening authority’s action, if any.]
(Grade) (Name) (SSN) (Armed Force)
(Unit)
Arraignment
was arraigned (at/on board ) on the following offenses at a court-martial convened by
(this command) (Commander, _______________).
Offenses
CHARGE I. ARTICLE 86. Plea: G. Finding: G.
Specification 1: Unauthorized absence from unit from 1 April 1984 to 31 May 1984.
Plea: G. Finding: G.
[Note. Specifications may be reproduced verbatim or may be summarized. Specific factors, such as value,
amount, and other circumstances which affect the maximum punishment should be indicated in a
summarized specification. Other significant matters contained in the specification may be included. If the
specification is copied verbatim, include any amendment made during trial. Similarly, information
included in a summarized specification should reflect any amendment to that information made during the
trial.]
Specification 2: Failure to repair on 18 March 1984. Plea: None entered. Finding:
Dismissed on motion of defense for failure to state an offense.
[Note. If a finding is not entered to a specification because, for example, a motion to dismiss was granted,
this should be noted where the finding would otherwise appear.]
CHARGE II. ARTICLE 91. Plea: NG. Finding: NG, but G of a violation of
ARTICLE 92.
Specification: Disobedience of superior noncommissioned officer on 30 March 1984
by refusing to inspect sentinels on perimeter of bivouac site. Plea: NG. Finding: G,
except for disobedience of superior noncommissioned officer, substituting failure to
obey a lawful order to inspect sentinels on perimeter of bivouac site.
CHARGE III. ARTICLE 112a. Plea: G. Finding: G.
Specification 1: Wrongful possession of 150 grams of marijuana on 24 March 1984.
Plea: G. Finding: G.
Specification 2: Wrongful use of marijuana while on duty as a sentinel on 24 March
1984. Plea: G. Finding G.
APPENDIX 11
A11-2
Specification 3: Wrongful possession of heroin with intent to distribute on 24 March
1984. Plea: NG. Finding: G.
CHARGE IV. ARTICLE 121. Plea: NG. Finding: G.
Specification: Larceny of property of a value of $150.00 on 27 March 1984. Plea:
NG. Finding: G, except the word “steal,” substituting “wrongfully appropriate.”
Acquittal
If the accused was acquitted of all charges and specifications, the date of the
acquittal should be shown: “The findings were announced on _______________.”
SENTENCE
Sentence adjudged on ____________ _____________: Dishonorable discharge,
forfeiture of all pay and allowances, confinement for 2 years, and reduction to the
lowest enlisted grade.
Action of convening
authority
ACTION
[Note. Summarize or enter verbatim the action of the convening authority. Whether or not the action is
recited verbatim, the heading, date, and signature block of the convening authority need not be copied
from the action if the same heading and date appear at the top of this order and if the name and rank of the
convening authority are shown in the authentication.]
Authentication [Note. See R.C.M. 1114(e) concerning authentication of the order.]
Joint or common trial [Note. In case of a joint or common trial, separate trial orders should be issued for each accused. The
description of the offenses on which each accused was arraigned may, but need not, indicate that there was
a co-accused.]
b. Forms for supplementary orders promulgating results of affirming action
[Note. Court-martial orders publishing the final results of cases in which the President or the Secretary
concerned has taken final action are promulgated by departmental orders. In other cases, the final action
may be promulgated by an appropriate convening authority, or by an officer exercising general court-
martial jurisdiction over the accused at the time of final action, or by the Secretary concerned. The
following sample forms may be used where such a promulgating order is published in the field. These
forms are guides. Extreme care should be exercised in using them. If a sentence as ordered into execution
or suspended by the convening authority is affirmed without modifications and there has been no
modification of the findings, no supplementary promulgating order is required.]
Heading
*See above.
Sentence
-Affirmed
In the (general) (special) court-martial case of (name, grade or rank, branch of
service, and SSN of accused,) the sentence to bad-conduct discharge, forfeiture of,
and confinement for, as promulgated in (General) (Special) Court-Martial Order No.
_________, (Headquarters) (Commandant ________, Naval Region) ________
dated , has been finally affirmed. Article 71(c) having been complied with, the bad-
conduct discharge will be executed.
or
-Affirmed in part
In the (general) (special) court-martial case of (name, grade or rank, branch of
FORMS FOR COURT-MARTIAL ORDERS
(CASES REFERRED BEFORE 1 JANUARY 2019)
A11-3
service, and SSN of accused,) only so much of the sentence promulgated in (General)
(Special) Court-Martial Order No. ____, (Headquarters) (Commandant, _____ Naval
Region) _____, dated _____, as provides for _____, has been finally affirmed.
Article 71(c) having been complied with, the bad-conduct discharge will be
executed.
or
In the (general) (special) court-martial case of (name, grade or rank, branch of
service, and SSN of accused,) the findings of guilty of Charge II and its specification
have been set aside and only so much of the sentence promulgated in (General)
(Special) Court-Martial Order No. _____, (Headquarters) (Commandant, _____,
Naval Region) _____, dated _____, as provides for _____, has been finally affirmed.
Article 71(c) having been complied with, the bad-conduct discharge will be
executed.
or
Affirmed in part; prior
order of execution set
aside in part
In the (general) (special) court-martial case of (name, grade or rank, branch of
service, and SSN of accused,) the proceedings of which are promulgated in (General)
(Special) Court-Martial Order No. ____, (Headquarters) (Commandant, _____Naval
Region) _____, dated _____, the findings of guilty of Charge I and its specification,
and so much of the sentence as in excess of have been set aside and the sentence, as
thus modified, has been finally affirmed. Article 71(c) having been complied with,
all rights, privileges, and property of which the accused has been deprived by virtue
of the findings of guilty and that portion of the sentence so set aside will be restored.
Finding and sentence set
aside
In the (general)(special) court-martial case of (name, grade or rank, branch of
service, and SSN, of accused,) the findings of guilty and the sentence promulgated by
(General) (Special) Court-Martial Order No. _____, (Headquarters) (Commandant,
_____Naval Region), _____, dated _____, were set aside on _____. (The charges are
dismissed. All rights, privileges, and property of which the accused has been
deprived by virtue of the findings of guilty and the sentence so set aside will be
restored.) (A rehearing is ordered before another court-martial to be designated.)
Authentication
See R.C.M. 1114(e).
c. Forms for orders remitting or suspending unexecuted portions of sentence
Heading
See a above
Remissions; suspension
See R.C.M. 1108
The unexecuted portion of the sentence to _____, in the case of (Name, grade or
rank, branch of service and SSN of accused,) promulgated in (General) (Special)
Court-Martial Order No. _____, (this headquarters) (this ship) (Headquarters _____)
(USS _____), _____, _____, is (remitted) (suspended for _____, months, at which
time, unless the suspension is sooner vacated, the unexecuted portion of the sentence
will be remitted without further action).
Authentication
See R.C.M. 1114(e).
APPENDIX 11
A11-4
d. Forms for orders vacating suspension
[Note. Orders promulgating the vacation of the suspension of a dismissal will be published by
departmental orders of the Secretary concerned. Vacations of any other suspension of a general court-
martial sentence, or of a special court-martial sentence that as approved and affirmed includes a bad-
conduct discharge or confinement for one year, will be promulgated by the officer exercising general
court-martial jurisdiction over the probationer (Article 72(b)). The vacation of suspension of any other
sentence may be promulgated by an appropriate convening authority under Article 72(c). See R.C.M.
1109.]
Heading
See a above
Vacation of Suspension
So much of the order published in (General) (Special) (Summary) (Court-Martial
Order No. _____) (the record of summary court-martial), (this headquarters) (this
ship) (Headquarters _____) (USS _____), _____. _____, in the case of (name, grade
or rank, branch of service, and SSN), as suspends, effective _____, execution of the
approved sentence to (a bad-conduct discharge) (confinement for (months) (years))
(forfeiture of _____), (and subsequently modified by (General) (Special) Court-
Martial Order No. _____, (this headquarters) (this ship) (Headquarters _____) (USS
_____), _____. _____, is vacated. (The unexecuted portion of the sentence to will be
executed.) (_____is designated as the place of confinement.)
[Note. See R.C.M. 1113 concerning execution of the sentence.]
Authentication
See R.C.M. 1114(e).
e. Forms for orders terminating deferment
[Note: When any deferment previously granted is rescinded after the convening authority has taken action
in the case, such rescission will be promulgated in a supplementary order. See R.C.M. 1101(c)(7)(C).]
Heading
See a above
Rescission of deferment
The deferment of that portion of the sentence that provides for confinement for
(months) (years) published in (General) (Special) Court-Martial Order _____ (this
headquarters) (this ship) (Headquarters _____) (USS _____), _____, in the case of
(name, grade or rank, branch of service, and SSN of accused) (is rescinded) (was
rescinded on _____.) The portion of the sentence to confinement will be executed.
(_____ is designated as the place of confinement.)
Authentication
See R.C.M. 1114(e).
[Note. Deferment may be terminated by an appropriate authority once the conviction is final under Article
71(c) and R.C.M. 1208(a). See R.C.M. 1101(c)(7).]
Heading
See a above
In the (general) (special) court-martial case of (name, grade or rank, branch of
service, and SSN of accused,) the sentence to confinement (and _____), as
FORMS FOR COURT-MARTIAL ORDERS
(CASES REFERRED BEFORE 1 JANUARY 2019)
A11-5
promulgated in (General) (Special) Court-Martial Order No. _____, (Headquarters)
(Commandant, _____ Naval Region) _____, dated _____, has been finally
affirmed. Service of confinement was deferred on _____. Article 71(c) having been
complied with, the (bad-conduct discharge and the) sentence to confinement will be
executed. (_____ is designated as the place of confinement.)
Authentication
See R.C.M. 1114(e).
APPENDIX 12
MAXIMUM PUNISHMENT CHART
A12-1
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part
IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
Article
Offense
Discharge
Confinement
Forfeitures
77
Principals (see Part IV, Para. 1 and pertinent offenses)
78
Accessory after the fact (see Part IV, Para. 2.d.)
79
Conviction of offense charged, lesser included offenses, and attempts
(see Part IV, Para. 3 and pertinent offenses)
80
Attempts (see Part IV, Para. 4.d.)
81
Conspiracy (see Part IV, Para. 5.d.)
82
Soliciting commission of offenses
Solicitation of espionage
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Life
4
Total
Solicitation of desertion; mutiny or sedition; misbehavior before
the enemy (see Part IV, Para 6.d.2.)
Solicitation of all other offenses (see Part IV, Para 6.d.3.)
83
Malingering
Feigning illness, physical disablement, mental lapse, or mental
derangement
In time of war, or in a hostile pay zone . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Intentional self-inflicted injury
In time of war, or in a hostile fire pay zone . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
84
Breach of medical quarantine
Breach of medical quarantine involving a quarantinable
communicable disease defined by 42 CFR 70.1 . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Breach of medical quarantine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
2/3 6 mos.
85
Desertion
In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
Intent to avoid hazardous duty or to shirk important services
1
. . . . .
DD, BCD
5 yrs.
1
Total
Other cases
Terminated by apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
1
Total
Terminated otherwise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
1
Total
86
Absence without leave
Failing to go, going from appointed place of duty . . . . . . . . . . . . . .
None
1 mo.
2/3 1 mo.
Absence from unit, organization, etc.
Not more than 3 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
1 mo.
2/3 1 mo.
More than 3, not more than 30 days . . . . . . . . . . . . . . . . . . . . . . .
None
6 mos.
2/3 6 mos.
More than 30 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
More than 30 days and terminated by apprehension . . . . . . . . . .
DD, BCD
18 mos.
Total
Absence from guard or watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Absence from guard or watch with intent to abandon . . . . . . . . . . .
BCD
6 mos.
Total
Absence with intent to avoid maneuvers or field exercises . . . . . . .
BCD
6 mos.
Total
87
Missing movement; jumping from vessel
Missing movement
Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
Neglect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Jumping from vessel into the water . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
87a
Resistance, flight, breach of arrest, and escape
Resisting apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Flight from apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Breaking arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Escape from custody, pretrial confinement, or confinement pursuant
to Article 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Escape from post-trial confinement . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
87b
Offenses against correctional custody and restriction
Escape from correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Breach of correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Breach of restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
1 mo.
2/3 1 mo.
88
Contempt toward officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dismissal
1 yr.
Total
APPENDIX 12
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See
Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-2
Article
Offense
Discharge
Confinement
Forfeitures
89
Disrespect toward superior commissioned officer; assault of superior
commissioned officer
Disrespect toward superior commissioned officer
In command . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
In rank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Striking, drawing or lifting up a weapon or offering any violence to
superior commissioned officer in execution of office
In time or war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
Other
1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
1
Total
90
Willfully disobeying superior commissioned officer
In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
Other
1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
1
Total
91
Insubordinate conduct toward warrant officer, noncommissioned
officer, or petty officer
Striking or assaulting:
Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Superior noncommissioned or petty officer . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Other noncommissioned or petty officer . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Willfully disobeying:
Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
Noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Contempt or disrespect:
Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
9 mos.
Total
Superior noncommissioned or petty officer . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Other noncommissioned or petty officer . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
92
Failure to obey order or regulation
Violation of or failure to obey general order or regulation
2
. . . . . . .
DD, BCD
2 yrs.
Total
Violation of or failure to obey other lawful order
2
. . . . . . . . . . . . . .
BCD
6 mos.
Total
Dereliction in performance of duties
Through neglect or culpable inefficiency . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Through neglect or culpable inefficiency resulting in death or
grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
18 mos.
Total
Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Willful dereliction of duty resulting in death or grievous bodily
harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
93
Cruelty and maltreatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
93a
Prohibited activities with military recruit or trainee by person in
position of special trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
94
Mutiny or sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
95
Offenses by sentinel or lookout
Drunk or sleeping on post, or leaving post before being relieved
In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
While receiving special pay under 37 USC 310 . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
In all other places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Loitering or wrongfully sitting on post by a sentinel or lookout
In time of war or while receiving special pay under 37 USC 310
DD, BCD
2 yrs.
Total
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
95a
Disrespect toward sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
96
Release of prisoner without authority; drinking with prisoner
Releasing a prisoner without authority . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
Allowing a prisoner to escape through neglect . . . . . . . . . . . . . . . . .
BCD
2 yrs.
Total
Allowing a prisoner to escape through design . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Drinking with prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
1 yr.
2/3 1 yr.
97
Unlawful Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
98
Misconduct as prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Life
4
Total
99
Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
100
Subordinate compelling surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
101
Improper use of countersign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
102
Forcing a safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
MAXIMUM PUNISHMENT CHART
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part
IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-3
Article
Offense
Discharge
Confinement
Forfeitures
103
Spies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
103a
Espionage
Espionage as a capital offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
Espionage or attempted espionage . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Life
4
Total
103b
Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
104
Public records offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
104a
Fraudulent enlistment, appointment, or separation
Fraudulent enlistment or appointment . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
Fraudulent separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
104b
Unlawful enlistment, appointment, or separation . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
105
Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
105a
False or unauthorized pass offenses
Possessing or using with intent to defend or deceive, or making,
altering, counterfeiting, tampering with, or selling . . . . . . . . . . .
DD, BCD
3 yrs.
Total
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
106
Impersonation of officer, noncommissioned or petty officer, or agent
or official
With intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
106a
Wearing unauthorized insignia, decoration, badge, ribbon, device, or
lapel button
Wrongful wearing of the Medal of Honor; Distinguished Service
Cross; Navy Cross; Air Force Cross; Silver Star; Purple Heart; or a
valor device on any personal award . . . . . . . . . . . . . . . . . . . . . . . . .
BDC
1 yr.
Total
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
107
False official statements; false swearing
False official statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
False swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
107a
Parole violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
2/3 6 mos.
108
Military property; loss, damage, destruction, disposition
Selling or otherwise disposing
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Of a value of more than $1,000 or any firearm or explosive . . . .
DD, BCD
10 yrs.
Total
Damaging, destroying, losing or suffering to be lost, damaged,
destroyed, sold, or wrongfully disposed:
Through neglect, of a value or damage of
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
6 mos.
2/3 6 mos.
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Willfully, of a value or damage of
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
More than $1,000, or of any firearm or explosive . . . . . . . . . .
DD, BCD
10 yrs.
Total
108a
Captured or abandoned property
Captured, abandoned property; failure to secure, etc.
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Of a value of more than $1,000 or any firearm or explosive . . . .
DD, BCD
5 yrs.
Total
Looting or pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Life
4
Total
109
Property other than military property of United States: Waste,
spoilage, or destruction
Wasting or spoiling, non-military property – real property of a value
of:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Damaging any property other than military property of the United
States of:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Destroying any property other than military property of the United
States valued at:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
APPENDIX 12
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See
Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-4
Article
Offense
Discharge
Confinement
Forfeitures
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
109a
Mail matter: Wrongful taking, opening, etc. . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
110
Improper hazarding of vessel or aircraft
Willfully and wrongfully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, DD, BCD
Life
4
Total
Negligently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
111
Leaving scene of vehicle accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
112
Drunkenness and other incapacitation offenses
Drunk on duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
9 mos.
Total
Incapacitation for duty from drunkenness or drug use . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Drunk prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
112a
Wrongful use, possession, etc., of controlled substances
Wrongful use, possession, manufacture, or introduction of
controlled substance
Amphetamine, cocaine, heroin, lysergic acid diethylamide,
marijuana (except possession of less than 30 grams or use of
marijuana), methamphetamine, opium, phencyclidine,
secobarbital, and Schedule I, II, III controlled substances . . . . . .
DD, BCD
5 yrs.
Total
Marijuana (possession of less than 30 grams or use),
phenobarbital, and Schedule IV and V controlled substances .
DD, BCD
2 yrs.
Total
Wrongful distribution, possession, manufacture, or introduction of
controlled substance with intent to distribute, or wrongful
importation or exportation of a controlled substance
Amphetamine, cocaine, heroin, lysergic and diethylamide,
marijuana, methamphetamine, opium, phencyclidine,
secobarbital, and schedule I, II, and III controlled substances . . .
DD, BCD
15 yrs.
Total
Phenobarbital and Schedule IV and V controlled substances . . .
DD, BCD
10 yrs.
Total
113
Drunken or reckless operation of a vehicle, aircraft, or vessel
Resulting in personal injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
18 mos.
Total
No personal injury involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
114
Endangerment offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
115
Communicating threats
Threats and false threats generally . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Threats and false threats concerning use of explosives, etc. . . . . . . .
DD, BCD
10 yrs.
Total
116
Riot or breach of peace
Riot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Breach of the peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
6 mos.
2/3 6 mos.
117
Provoking speeches or gestures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
6 mos.
2/3 6 mos.
117a
Wrongful broadcast or distribution of intimate visual images. . . . . . . .
DD, BCD
2 yrs.
Total
118
Murder
Article 118(1) or (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Death, mandatory
minimum life with
parole, DD, BCD
Life
4
Total
Article 118(2) or (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Life
4
Total
119
Manslaughter
Voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
15 yrs.
Total
Involuntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Voluntary manslaughter of a child under 16 years of age . . . . . . . .
DD, BCD
20 yrs.
Total
Involuntary manslaughter of a child under 16 years of age . . . . . . .
DD, BCD
15 yrs.
Total
119a
Death or injury of an unborn child (see Part IV, para 58.d.)
119a
Injuring or killing an unborn child . . . . . . . . . . . . . . . . . . . . . . . . . .
Such punishment,
other than death, as a
court-martial may
direct, but such
punishment shall be
consistent with the
punishment had the
bodily injury or death
occurred to the
MAXIMUM PUNISHMENT CHART
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part
IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-5
Article
Offense
Discharge
Confinement
Forfeitures
unborn child’s
mother.
Attempting to kill an unborn child . . . . . . . . . . . . . . . . . . . . . . . . . .
Such punishment,
other than death, as a
court-martial may
direct, but such
punishment shall be
consistent with the
punishment had the
attempt been made to
kill the unborn
child’s mother.
Intentionally killing an unborn child . . . . . . . . . . . . . . . . . . . . . . . . .
Such punishment,
other than death, as a
court-martial may
direct, but such
punishment shall be
consistent with the
punishment had the
death occurred to the
unborn child’s
mother.
119b
Child endangerment
Endangerment by design resulting in grievous bodily harm . . . . . . .
DD, BCD
8 yrs.
Total
Endangerment by design resulting in harm . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Other cases by design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
4 yrs.
Total
Endangerment by culpable negligence resulting in grievous bodily
harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Endangerment by culpable negligence resulting in harm . . . . . . . . .
BCD
2 yrs.
Total
Other cases by culpable negligence . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
120
Rape and sexual assault generally
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
120a
Mails: deposit of obscene matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
120b
Rape and sexual assault of a child
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
120c
Other sexual misconduct
Indecent viewing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Indecent recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Broadcasting or distributing of an indecent recording . . . . . . . . . . .
DD, BCD
7 yrs.
Total
Forcible pandering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
20 yrs.
Total
Indecent exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
[Note: The Article 120, 120b, and 120c maximum punishments
apply to offenses committed after 1 January 2019. See Appendices 17,
20, 21, and 20.]
121
Larceny and wrongful appropriation
Larceny
Property of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Military property of a value of more than $1,000 or of any
military motor vehicle, aircraft, vessel, firearm, or explosive.
DD, BCD
10 yrs.
Total
APPENDIX 12
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See
Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-6
Article
Offense
Discharge
Confinement
Forfeitures
Property other than military property of a value of more than
$1,000 or any motor vehicle, aircraft, vessel, firearm, or
explosive not included in subparagraph d.(1)(b) . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Wrongful appropriation
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Of a value of more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Of any motor vehicle, aircraft, vessel, firearm, explosive, or
military property of a value of more than $1,000 . . . . . . . . . .
DD, BCD
2 yrs.
Total
121a
Fraudulent use of credit cards, debit cards, and other access devices
Fraudulent use of a credit card, debit card, or other access device to
obtain property of a value of $1,000 or less . . . . . . . . . . . . . . . . .
BCD
10 yrs.
Total
Fraudulent use during any 1-year period of a credit card, debit card,
or other access device to obtain property the aggregate value of
which is more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
15 yrs.
Total
121b
False pretenses to obtain services
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Of a value of more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
122
Robbery
When committed with a dangerous weapon . . . . . . . . . . . . . . . . . . .
DD, BCD
15 yrs.
Total
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
122a
Receiving stolen property
Receiving, buying, or concealing stolen property of a value of
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Receiving, buying, or concealing stolen property of a value of more
than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
123
Offenses concerning Government computers
Unauthorized distribution of classified information obtained from a
Government computer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Unauthorized access of a Government computer and obtaining
classified or other protected information . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Causing damage to a Government computer . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
123a
Making, drawing, or uttering check, draft, or order without sufficient
funds
For the procurement of any article or thing of value, with intent to
defraud, in the face amount of:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
For the payment of any past due obligation, or for any other purpose,
with intent to deceive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
124
Frauds against the United States
Article 124(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Article 124(3) and (4)
When amount is $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
When amount is more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
124a
Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
124b
Graft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
125
Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Life
4
Total
126
Arson; burning property with intent to defraud
Aggravated arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
25 yrs.
Total
Simple arson, where property value is:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Burning with intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
127
Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
128
Assault
Simple assault
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
When committed with a firearm/other dangerous weapon . . . . . .
DD, BCD
2 yrs.
Total
When committed with a loaded firearm . . . . . . . . . . . . . . . . . . . .
DD, BCD
4 yrs.
Total
MAXIMUM PUNISHMENT CHART
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part
IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-7
Article
Offense
Discharge
Confinement
Forfeitures
Battery
Assault consummated by a battery . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Assault upon a commissioned officer of the armed forces of the
United States or of a friendly foreign power, not in the execution
of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Assault upon a warrant officer, not in the execution of office . . .
DD, BCD
18 mos.
Total
Assault upon a noncommissioned or petty officer, not in the
execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Assault upon a sentinel or lookout in the execution of duty, or
upon any person who, in the execution of office, is performing
security police, military police, shore patrol, master at arms, or
other military or civilian law enforcement duties . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Assault consummated by a battery upon a child under 16 years,
spouse, intimate partner, or an immediate family member . . .
DD, BCD
2 yrs.
Total
Aggravated assault
Aggravated assault with a dangerous weapon
When committed with a loaded firearm . . . . . . . . . . . . . . . . . .
DD, BCD
8 yrs.
Total
When committed upon a child under the age of 16 years,
spouse, intimate partner, or an immediate family member . . .
DD, BCD
5 yrs.
Total
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Aggravated assault in which substantial bodily harm in inflicted
When the injury is inflicted with a loaded firearm . . . . . . . . .
DD, BCD
8 yrs.
Total
When the injury is inflicted upon a child under the age of 16
years, spouse, intimate partner, or an immediate family
member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
6 yrs.
Total
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Aggravated assault in which grievous bodily harm is inflicted
When the injury is inflicted with a loaded firearm . . . . . . . . .
DD, BCD
10 yrs.
Total
When the injury is inflicted upon a child under the age of 16
years, spouse, intimate partner, or an immediate family
member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
8 yrs.
Total
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Assault with intent to commit specified offenses
Assault with the intent to commit murder, rape, or rape of a child
DD, BCD
20 yrs.
Total
Assault with intent to commit voluntary manslaughter, robbery,
arson, burglary, and kidnapping . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
128a
Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
20 yrs.
Total
128b
Domestic Violence
Commission of a violent offense against a spouse, an intimate
partner, or an immediate family member. . . . . . . . . . . . . . . . . .
DD, BCD
Underlying
offense plus
3 yrs.
Total
Commission of a violation of the UCMJ against any person with the
intent to threaten or intimidate a spouse, an intimate partner, or
an immediate family member of that person . . . . . . . . . . . . . . . .
DD, BCD
Underlying
offense plus
3 yrs.
Total
Commission of a violation of the UCMJ against any property,
including an animal, with the intent to threaten or intimidate a
spouse, intimate partner, or an immediate family member of that
person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
Underlying
offense plus
3 yrs.
Total
Violation of a protective order with the intent to threaten or
intimidate a spouse, an intimate partner, or an immediately
family member of that person . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Violation of a protective order with the intent to commit a violent
offense against a spouse, an intimate partner, or an immediate
family member of that person . . . . . . . . . . . . . . . . . . . . . . . . . . .
Assaulting a spouse, an intimate partner, or an immediate family
member of that person by strangulation or suffocation
DD, BCD
5 yrs.
Total
Aggravated assault by strangulation or suffocation when
committed upon a child under the age of 16 years. . . . . . . . . .
DD, BCD
11 yrs.
Total
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
8 yrs.
Total
APPENDIX 12
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See
Part IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-8
Article
Offense
Discharge
Confinement
Forfeitures
129
Burglary; unlawful entry
Burglary (with intent to commit an offense punishable under Article
118-120, 120b-121, 122, 125-128a, or 130) . . . . . . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Burglary (with intent to commit any other offense punishable under
the UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
130
Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
131
Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
131a
Subornation of perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
131b
Obstructing justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
131c
Misprision of serious offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
131d
Wrongful refusal to testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
131e
Prevention of authorized seizure of property . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
131f
Noncompliance with procedural rules
Unnecessary delay in disposing of case . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Knowingly and intentionally failing to enforce or comply with
provisions of the UCMJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
131g
Wrongful interference with adverse administrative proceedings . . . . .
DD, BCD
5 yrs.
Total
132
Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
133
Conduct unbecoming an officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dismissal
1 yr. or as
prescribed
Total
134
Animal abuse
Abuse, neglect, or abandonment of an animal . . . . . . . . . . . . . . . . .
BCD
1 yr.
Total
Abuse, neglect, or abandonment of a public animal . . . . . . . . . . . . .
BCD
2 yrs.
Total
Sexual act with an animal or cases where the accused caused the
serious injury or death of the animal . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
Check, worthless making and uttering – by dishonorably failing to
maintain funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Child pornography
Possessing, receiving, or viewing child pornography . . . . . . . . . . . .
DD, BCD
10 yrs.
Total
Possessing child pornography with intent to distribute . . . . . . . . . .
DD, BCD
15 yrs.
Total
Distributing child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
20 yrs.
Total
Producing child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
30 yrs.
Total
Debt, dishonorably failing to pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Disloyal statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Disorderly conduct, drunkenness
Disorderly conduct
Under such circumstances as to bring discredit upon the military
Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
4 mos.
2/3 4 mos.
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
1 mo.
2/3 1 mo.
Drunkenness
Aboard ship or under such circumstances as to bring discredit
upon the military Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
1 mo.
2/3 1 mo.
Drunk and disorderly
Aboard ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
Under such circumstances as to bring discredit upon the military
Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
6 mos.
2/3 6 mos.
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Extramarital sexual conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Firearm, discharging – through negligence . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Fraternization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dismissal
2 yrs.
Total
Gambling with subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Homicide, negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
3 yrs.
Total
Indecent conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Indecent language
Communicated to any child under the age of 16 years . . . . . . . . . . .
DD, BCD
2 yrs.
Total
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BCD
6 mos.
Total
MAXIMUM PUNISHMENT CHART
This chart was compiled for convenience purposes only and is not the authority for specific punishments. See Part
IV and R.C.M. 1003 for specific limits and additional information concerning maximum punishments.
A12-9
Article
Offense
Discharge
Confinement
Forfeitures
Pandering and prostitution
Prostitution and patronizing a prostitute . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
1 yr.
Total
Pandering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Self-injury without intent to avoid service
In time of war or in a hostile fire pay zone . . . . . . . . . . . . . . . . . . . . .
DD, BCD
5 yrs.
Total
Intentional self-inflicted injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
134
Sexual Harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
DD, BCD
2 yrs.
Total
134
Straggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
None
3 mos.
2/3 3 mos.
Notes:
1.
Suspended in time of war
2.
See paragraph 18d(1) & (2) Note, Part IV
3.
When any offense under paragraph 50, Part IV, is committed: while the accused is on duty as a sentinel or lookout; on board a vessel or
aircraft used by or under the control of the armed forces; in or at a missile launch facility used by or under the control of the armed forces;
while receiving special pay under 37 U.S.C. sec. 310; in time of war; or in a confinement facility used by or under the control of the armed
forces, the maximum period of confinement authorized for such offense shall be increase by 5 years.
4.
With or without the eligibility for parole.
5.
A dishonorable discharge may be reduced to a bad-conduct discharge by the convening authority in accordance with a plea agreement.
APPENDIX 12A
A12A-1
PRESIDENTIALLY-PRESCRIBED LESSER INCLUDED OFFENSES PURSUANT TO
ARTICLE 79(b)(2), UNIFORM CODE OF MILITARY JUSTICE
This authoritative list provides actual notice of factually similar lesser included offenses designated by the
President, pursuant to Article 79(b)(2), that are “reasonably included” in the greater offense. The military justice
system has unique, but closely related, military offenses, which are not “necessarily included” lesser offenses
under the “elements test.” See United States v. Teters, 37 M.J. 370 (C.A.A.F. 1993); see also United States v.
Jones, 68 M.J. 465 (C.A.A.F. 2009). This list is exhaustive as to those lesser included offenses (called “reasonably
included offenses” in the chart below) that the President has designated pursuant to Article 79(b)(2). However,
this list is not intended to address, and does not address, those offenses that are necessarily included in a charged
offense and are therefore lesser included offenses pursuant to Article 79(b)(1).
Article
Offense
(Part IV Citation)
Reasonably Included
Offense (RIO) Article
RIO
(Part IV Citation)
85 - Desertion
Para. 9.b.(1)-(3)
85 - Desertion
Para. 9.b.(4)
87a - Resistance,
flight, breach of arrest,
and escape
Par. 12.b.(5)
86 - Absent without
leave
Para. 10.b.(3)
87b - Offenses against
correctional custody
and restriction
Para. 13.b.(1)
86 - Absent without
leave
Para. 10.b.(3)
93a - Prohibited
activities with military
recruit or trainee by
person in position of
special trust
Para. 20.b.(1); 20.b.(2)
93 - Cruelty and
maltreatment
Para. 19.b.
94 - Mutiny or sedition
Para. 21.b.(1)
94 - Mutiny or sedition
Para. 21.b.(6)
100 - Subordinate
compelling surrender
Para. 28.b.(1)
100 - Subordinate
compelling surrender
Para. 28.b.(2)
103a - Espionage
Para. 32.b.(1)
103a - Espionage
Para. 32.b.(2)
103b - Aiding the
enemy
Para. 33.b.(1)
103b - Aiding the
enemy
Para. 33.b.(2)
104b - Unlawful
enlistment,
appointment, or
separation
Para. 36.b.
107 - False official
statements; false
swearing
Para. 41.b.(1)
118 - Murder
Para. 56.b.(1);
56.b.(2); 56.b.(3);
56.b.(4)
114 - Endangerment
Offenses
Para. 52.b.(1)
119 - Manslaughter
Para. 57.b.(1)
114 - Endangerment
Offenses
Para. 52.b.(1)
APPENDIX 12A
A12A-2
119a - Death or injury
of an unborn child
Para. 58.b.(2); 58.b.(4)
119a - Death or injury
of an unborn child
Para. 58.b.(3)
120 - Rape and Sexual
Assault
Para. 60.b.(1)
128 - Assault with
intent to commit
specified offenses
(rape)
Para. 77.b.(3)
120 - Rape and Sexual
Assault
Para. 60.b.(2)
128 - Assault with
intent to commit
specified offenses
(sexual assault)
Para. 77.b.(3)
120b - Rape of a child
Para. 62.b.(1)
128 - Assault with
intent to commit
specified offenses
(rape of a child)
Para. 77.b.(3)
120b - Rape of a child
Para. 62.b.(2)
128 - Assault with
intent to commit
specified offenses
(sexual assault of a
child)
Para. 77.b.(3)
128 - Assault
Para. 77.b.(2);
77.b.(3); 77.b.(4);
77.b.(5)
128 - Assault
Para. 77.b.(1)
134 - Check, worthless
making and uttering by
dishonorably failing to
maintain funds
Para. 94.b.
134 - Debt,
dishonorably failing to
pay
Para. 96.b.
134 - Child
pornography
Para. 95.b.(1);
95.b.(2); 95.b.(3);
95.b.(4)
134 - Indecent conduct
Para. 104.b.
134 - Disloyal
statements
Para. 97.b.
88 - Contempt toward
officials
Para. 14.b.
Sentencing Parameter Table – Confinement Range Categories
Appendix 12B
Note: For all above categories, if the confinement portion of the maximum authorized
punishment for the offense is less than the Offense Category’s confinement maximum, the lesser
confinement portion of the maximum authorized punishment shall control as the recommended
maximum confinement time for that offense. At a special court-martial, for an offense that is a
category 3 offense or greater, the jurisdictional maximum period of confinement (12 months)
constitutes the parameters; however, the military judge may impose a period of confinement less
than the jurisdictional maximum period of confinement upon finding specific facts that warrant
such a sentence.
Offense Category Months
1
0–12
2
1–36
3
30–120
4
120–240
5
240–480
6
Confinement for life with eligibility for parole
A12C-1
Appendix 12C – Offense Category Chart
Article
Offense
Offense Category
77
Principals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
78
Accessory after the fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
79
Conviction of offense charged, lesser included offenses, and attempts . . .
Dependent on underlying offense
80
Attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
81
Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
82
Soliciting commission of offenses
Solicitation of espionage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 4
Solicitation of desertion, mutiny or sedition, misbehavior before the
enemy if committed or attempted . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
Solicitation of desertion in time of war if not committed or attempted . .
Criteria
Solicitation of desertion if not committed or attempted . . . . . . . . . . . . . .
Category 1
Solicitation of mutiny or sedition if not committed or attempted . . . . . . .
Category 3
Solicitation of misbehavior before enemy if not committed or
attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Solicitation of other offense regardless of whether committed or
attempted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
83 Malingering
Feigning illness, physical disablement, mental lapse, or mental
derangement
In time of war or in a hostile fire pay zone . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intentional self-inflicted injury
In time of war or in a hostile fire pay zone . . . . . . . . . . . . . . . . . . . . .
Category 1
Criteria
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
84 Breach of medical quarantine
Category 2
Breach of medical quarantine involving a quarantinable
communicable disease defined by 42 CFR 70.1 . . . . . . . . . . . . . . . . .
Category 1
Breach of medical quarantine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
85 Desertion
In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
Intent to avoid hazardous duty or to shirk important services . . . . . . .
Category 2
Other cases
Terminated by apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Terminated otherwise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
86 Absence without leave
Failing to go, going from appointed place of duty . . . . . . . . . . . . . . .
Category 1
Absence from unit, organization, etc.
Not more than 3 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
More than 3, not more than 30 days . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
More than 30 days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
More than 30 days and terminated by apprehension . . . . . . . . . . .
Category 1
Absence from guard or watch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Absence from guard or watch with intent to abandon . . . . . . . . . . . .
Category 1
Absence with intent to avoid maneuvers or field exercises . . . . . . . .
Category 1
87 Missing movement; jumping from vessel
Missing movement
Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Neglect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Category 1
Jumping from vessel into the water . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
87a
Resistance, flight, breach of arrest, and escape
Resisting apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Flight from apprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Breaking arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Escape from custody, pretrial confinement, or confinement pursuant
to Article 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Escape from post-trial confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
87b
Offenses against correctional custody and restriction
Escape from correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Breach of correctional custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Breach of restriction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
A12C-2
Article
Offense
Offense Category
88
Contempt toward officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
89
Disrespect toward superior commissioned officer; assault of superior
commissioned officer
Disrespect toward superior commissioned officer
In command . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
In rank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Striking, drawing, or lifting up a weapon or offering any violence to
superior commissioned officer in execution of office
In time or war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
90 Willfully disobeying superior commissioned officer
In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
Other
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
91 Insubordinate conduct toward warrant officer, noncommissioned
officer, or petty officer
Striking or assaulting
Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Superior noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . .
Category 2
Other noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . . .
Category 1
Willfully disobeying
Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Contempt or disrespect
Warrant officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Superior noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . .
Category 1
Other noncommissioned or petty officer . . . . . . . . . . . . . . . . . . . . . .
Category 1
92
Failure to obey order or regulation
Violation of or failure to obey general order or regulation . . . . . . . . . . .
Category 1
Violation of or failure to obey other lawful order . . . . . . . . . . . . . . . . . .
Category 1
Dereliction in performance of duties
Through neglect or culpable inefficiency . . . . . . . . . . . . . . . . . . . . . .
Category 1
Through neglect or culpable inefficiency resulting in death or
grievous bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Willful . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Willful dereliction of duty resulting in death or grievous bodily
harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
93
Cruelty and maltreatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
93a
Prohibited activities with military recruit or trainee by person in
position of special trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
94
Mutiny or sedition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
95
Offenses by sentinel or lookout
Drunk or sleeping on post, or leaving post before being relieved
In time of war . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
While receiving special pay under 37 USC 310 . . . . . . . . . . . . . . . . .
Criteria
In all other places . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Loitering or wrongfully sitting on post by a sentinel or lookout
In time of war or while receiving special pay under 37 USC 310 . . . .
Criteria
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
95a
Disrespect toward sentinel or lookout . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
96
Release of prisoner without authority; drinking with prisoner
Releasing a prisoner without authority . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Allowing a prisoner to escape through neglect . . . . . . . . . . . . . . . . . . . .
Category 1
Allowing a prisoner to escape through design . . . . . . . . . . . . . . . . . . . .
Drinking with prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Category 1
97
Unlawful Detention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
98
Misconduct as prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
99
Misbehavior before the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
100
Subordinate compelling surrender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
101
Improper use of countersign . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
102
Forcing a safeguard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
103
Spies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 5
103a
Espionage
Espionage as a capital offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 5
Espionage or attempted espionage . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 5
A12C-3
Article
Offense
Offense Category
103b
Aiding the enemy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
104
104a
Public records offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Fraudulent enlistment, appointment, or separation
Category 2
Fraudulent enlistment or appointment . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
104b
Fraudulent separation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Unlawful enlistment, appointment, or separation . . . . . . . . . . . . . . . . . . . .
Category 2
Category 2
105
Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
105a
False or unauthorized pass offenses
Possessing or using with intent to defend or deceive, or making,
altering, counterfeiting, tampering with, or selling . . . . . . . . . . . . . . .
Category 2
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
106
Impersonation of officer, noncommissioned or petty officer, or agent
or official
With intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
Category 2
Category 1
106a
Wearing unauthorized insignia, decoration, badge, ribbon, device, or
lapel button
Wrongful wearing of the Medal of Honor; Distinguished Service
Cross; Navy Cross; Air Force Cross; Silver Star; Purple Heart: or a
valor device on any personal award . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
107
False official statements; false swearing
False official statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .
False swearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .
Category 2
Category 1
107a
Parole violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
108
Military property of United States—Loss, damage, destruction,
or wrongful disposition
Selling or otherwise disposing
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Of a value of more than $1,000 or any firearm or explosive . . . . . . .
Category 2
Damaging, destroying, losing or suffering to be lost, damaged,
destroyed, sold, or wrongfully disposed
Through neglect, of a value or damage of
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Category 1
Of a value of more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Willfully, of a value or damage of
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
More than $1,000 or of any firearm or explosive . . . . . . . . . . . . .
Category 2
108a
Captured or abandoned property
Captured, abandoned property; failure to secure, etc.
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Of a value of more than $1,000 or any firearm or explosive . . . . . . .
Category 2
Looting or pillaging . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
109 Property other than military property of United States
—
Waste,
spoilage, or destruction
Wasting, spoiling, destroying, or damaging non-military property
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
Category 1
Of a value of more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . .
Category 2
109a
Mail matter: wrongful taking, opening, etc. . . . . . . . . . . . . . . . .
Category 2
110
Improper hazarding of vessel or aircraft
Willfully and wrongfully . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
Negligently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
111
Leaving scene of vehicle accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
112
Drunkenness and other incapacitation offenses
Drunk on duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Incapacitation for duty from drunkenness or drug use . . . . . . . . . . . . .
Category 1
Drunk prisoner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
A12C-4
Article
Offense
Offense Category
112a
Wrongful use, possession, etc., of controlled substances
Wrongful use, possession, manufacture, or introduction of controlled
substance
Wrongful use or possession of amphetamine, cocaine, heroin, lysergic
acid diethylamide, marijuana, methamphetamine, opium,
phencyclidine, secobarbital, and Schedule I, II, and III controlled
substances . . . . . . .
Category 1
Wrongful manufacture or introduction of amphetamine, cocaine,
heroin, lysergic acid diethylamide, marijuana, methamphetamine,
opium, phencyclidine, secobarbital, and Schedule I, II, and III
controlled substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Wrongful use, possession, manufacture, or introduction of
phenobarbital and Schedule IV and V controlled substances . . . . . . . . .
. . . . . . . . . . . . .
Category 1
Wrongful distribution, possession, manufacture, or introduction of
controlled substance with intent to distribute, or wrongful
importation or
exportation of a controlled substance
Amphetamine, cocaine, heroin, lysergic acid diethylamide, marijuana,
methamphetamine, opium, phencyclidine, secobarbital, and Schedule I,
II, and III controlled substances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Phenobarbital and schedule IV and V controlled substances . . . . . . . .
Category 2
113
Drunken or reckless operation of a vehicle, aircraft, or vessel
Resulting in personal injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
No personal injury involved . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
114
Endangerment offenses
Carrying concealed weapon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Discharging firearm, willfully, under such circumstances as to
endanger human life . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Reckless endangerment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Dueling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
115
Communicating threats
Threats and false threats generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Threats and false threats concerning use of explosives, etc. . . . . . . . . . . . .
Category 3
116
Riot or breach of peace
Riot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Breach of the peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
117
Provoking speeches or gestures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
117a
Wrongful broadcast or distribution of intimate visual images . . . . . . . . . .
Category 2
118
Murder
Article 118(1) or (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 6
Article 118(2) or (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 5
119
Manslaughter
Voluntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 4
Involuntary manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Voluntary manslaughter of a child under 16 years of age . . . . . . . . . . . .
Category 4
Involuntary manslaughter of a child under 16 years of age . . . . . . . . . . . .
Category 3
119a
Death or injury of an unborn child
Injuring or killing an unborn child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
Attempting to kill an unborn child . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
Intentionally killing an unborn child . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
119b
Child endangerment
Endangerment by design resulting in grievous bodily harm . . . . . . . . . . . . .
Category 3
Endangerment by design resulting in harm . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Other cases by design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Endangerment by culpable negligence resulting in grievous bodily
harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Endangerment by culpable negligence resulting in harm . . . . . . . . . . . . .
Category 2
Other cases by culpable negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
A12C-5
Article
Offense
Offense Category
120
Rape and sexual assault generally
Rape . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 4
Sexual assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Aggravated sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Abusive sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
120a
Mails: deposit of obscene matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
120b
Rape and sexual assault of a child
Rape of a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 5
Sexual assault of a child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 4
Sexual abuse of a child
Cases involving sexual contact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
120c
Other sexual misconduct
Indecent viewing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Indecent recording . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Category 2
Broadcasting or distributing of an indecent recording . . . . . . . . . . . . . .
Forcible pandering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Category 3
Indecent exposure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
121
Larceny and wrongful appropriation
Larceny
Property of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Military property of a value of more than $1,000 or of any
military motor vehicle, aircraft, vessel, firearm, or explosive . . . . . . . . .
Category 2
Property other than military property of a value of more than
$1,000 or any motor vehicle, aircraft, vessel, firearm, or
explosive. . . . . . . . . . . . . . . . . . . .
Category 2
Wrongful appropriation
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Of a value of more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Of any motor vehicle, aircraft, vessel, firearm, explosive, or
military property of a value of more than $1,000 . . . . . . . . . . . . . . . . . .
Category 1
121a
Fraudulent use of credit cards, debit cards, and other access devices
Fraudulent use of a credit card, debit card, or other access device to
obtain property of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . .
Category 1
Fraudulent use during any 1-year period of a credit card, debit card,
or other access device to obtain property the aggregate value
of which is more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
121b
False pretenses to obtain services
Of a value of $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Of a value of more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
122
Robbery
When committed with a dangerous weapon . . . . . . . . . . . . . . . . . . . . . .
Category 3
All other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
122a
Receiving stolen property
Receiving, buying, or concealing stolen property of a value of
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Receiving, buying, or concealing stolen property of a value of more than
$1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
123
Offenses concerning Government computers
Unauthorized distribution of classified information obtained from a
Government computer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Unauthorized access of a Government computer and obtaining
classified or other protected information . . . . . . . . . . . . . . . . . . . . . .
Category 2
Causing damage to a Government computer . . . . . . . . . . . . . . . . . . . . .
Category 3
123a
Making, drawing, or uttering check, draft, or order without sufficient
funds
For the procurement of any article or thing of value, with intent to
defraud, in the face amount of:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
For the payment of any past due obligation, or for any other purpose, with
intent to deceive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
A12C-6
Article
Offense
Offense Category
124
Frauds against the United States
Article 124(1) and (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Article 124(3) and (4)
When amount is $1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
When amount is more than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
124a
Bribery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
124b
Graft . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
125
Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
126
Arson; burning property with intent to defraud
Aggravated arson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Simple arson, where property value is:
$1,000 or less . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
More than $1,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Burning with intent to defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
127
Extortion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
128
Assault
Simple assault
Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
When committed with an unloaded firearm . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Battery
Assault consummated by a battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Assault upon a commissioned officer of the armed forces of the United
States or of a friendly foreign power, not in the execution of
office . . .
Category 2
Assault upon a warrant officer, not in the execution of office . . . . . . . . .
Category 2
Assault upon a noncommissioned or petty officer, not in the
execution of office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Assault upon a sentinel or lookout in the execution of duty, or
upon any person who, in the execution of office, is performing
security police, military police, shore patrol, master at arms, or
other military or civilian law enforcement duties . . . . . . . . . . . .
Category 2
Assault consummated by a battery upon a child under 16 years . . .
Category 2
Assault with intent to commit murder or rape
Category 3
Assault with intent to commit voluntary manslaughter, robbery,
arson, burglary, or kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Aggravated assault
Aggravated assault with a dangerous weapon
When committed with a loaded firearm . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
When committed upon a child under the age of 16 years . . . .
Category 3
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Aggravated assault in which substantial bodily harm in inflicted
When the injury is inflicted with a loaded firearm . . . . . . . . . . . . . . .
Category 3
When the injury is inflicted upon a child under the age of 16
years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Aggravated assault in which grievous bodily harm is inflicted
When the injury is inflicted with a loaded firearm . . . . . . . . . . . .
Category 3
When the injury is inflicted upon a child under the age of 16
years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Aggravated assault by strangulation or suffocation
When committed upon a child under the age of 16 years . .
Category 3
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
128a
Maiming . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
128b
Domestic Violence
Commission of violent offense against spouse, intimate partner, or
immediate family member of that person . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
Commission of UCMJ violation against any person with intent to
threaten or intimidate spouse, intimate partner, or immediate
family member of that person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Dependent on underlying offense
A12C-7
Article
Offense
Offense Category
Commission of UCMJ violation against any property, including
animal, with intent to threaten or intimidate spouse, intimate
partner, or immediate family member of that person . . . . . . . . . . . . . . .
Dependent on underlying offense
Violation of protection order with intent to threaten or intimidate
spouse, intimate partner, or immediate family member of that
person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Violation of protection order with intent to commit a violent offense
against spouse, intimate partner, or immediate family member of
that person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Assaulting spouse, intimate partner, or immediate family member of
that person by strangulation or suffocation
Aggravated assault by strangulation or suffocation when committed
upon a child under 16 years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
129
Burglary; unlawful entry
Burglary (with intent to commit an offense punishable under Article
118–120, 120b–121, 122, 125–128a, or 130) . . . . . . . . . . . . . . . .
Category 3
Burglary (with intent to commit any other offense punishable under
the UCMJ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Unlawful entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
130
Stalking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131
Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131a
Subornation of perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131b
Obstructing justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131c
Misprision of serious offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131d
Wrongful refusal to testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131e
Prevention of authorized seizure of property . . . . . . . . . . . . . . . . . . . . . .
Category 1
131f
Noncompliance with procedural rules
Unnecessary delay in disposing of case . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Knowingly and intentionally failing to enforce or comply with
provisions of the UCMJ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
131g
Wrongful interference with adverse administrative proceeding . . . . . . . . .
Category 2
132
Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
133
Conduct unbecoming an officer. . . . . . . . . . . . . . . . . . . .
Criteria
134
General article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Criteria
Animal abuse
Abuse, neglect, or abandonment of an animal . . . . . . . . . . . . . . . . . . . .
Category 1
Abuse, neglect, or abandonment of a public animal . . . . . . . . . . . . . . . .
Category 1
Sexual act with an animal or cases where the accused caused the
serious injury or death of the animal . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Bigamy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Check, worthless making and uttering – by dishonorably failing to
maintain funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Child pornography
Possessing, receiving, or viewing child pornography . . . . . . . . . . . . . . .
Category 2
Possessing child pornography with intent to distribute . . . . . . . . . . . . .
Category 3
Distributing child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 3
Producing child pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 4
Debt, dishonorably failing to pay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Disloyal statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Disorderly conduct, drunkenness
Disorderly conduct
Under such circumstances as to bring discredit upon the military
Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Drunkenness
Aboard ship or under such circumstances as to bring discredit
upon the military Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
A12C-8
Article
Offense
Offense Category
134
Drunk and disorderly
Aboard ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Under such circumstances as to bring discredit upon the military
Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Extramarital sexual conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Firearm, discharging – through negligence . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Fraternization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Gambling with subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Homicide, negligent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Indecent conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Indecent language
Communicated to any child under the age of 16 years . . . . . . . . . . . . .
Category 2
Other cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Pandering and prostitution
Prostitution and patronizing a prostitute . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Pandering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Self-injury without intent to avoid service
In time of war or in a hostile fire pay zone . . . . . . . . . . . . . . . . . . . . . .
Criteria
Intentional self-inflicted injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 1
Sexual harassment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Category 2
Straggling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.
Category 1
A12D-1
Appendix 12D - List of Sentencing Criteria Offenses
UCMJ Article
Title
82
Solicitation to desert (in time of war)
83
Malingering (in time of war or in hostile fire pay zone)
85
Desertion (in time of war)
89
Striking, drawing, or lifting up a weapon or offering any violence to
superior commissioned officer in execution of office (in time of war)
90
Willfully disobeying a lawful order of superior commissioned officer (in
time of war)
94
Mutiny or sedition
95
Offenses by sentinel or lookout (in time of war or while receiving special
pay under 37 U.S.C. 310)
98
Misconduct as prisoner
99
Misbehavior before the enemy
100
Subordinate compelling surrender
101
Improper use of countersign
102
Forcing a safeguard
103b
Aiding the enemy
108a
Captured or abandoned property (looting or pillaging)
110
Improper hazarding of vessel or aircraft (willfully and wrongfully)
133
Conduct unbecoming an officer
134
General article
134
Self-injury without intent to avoid service (in time of war or in a hostile
fire pay zone)
A12D-2
SENTENCING CRITERIA
The military judge shall consider the sentencing criteria established for the following
offenses:
Article 82. Solicitation to desert (in time of war).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in a way or under circumstances that unlawfully and
substantially endangered the life of one or more persons; and
Whether the offense was committed in territory in which the United States or an ally of the
United States was then an occupying power or in which the United States Armed Forces were then
engaged in a contingency operation or active hostilities.
Article 83. Malingering (in time of war or in hostile fire pay zone).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in a way or under circumstances that unlawfully
A12D-3
and substantially endangered the life of one or more persons;
Whether the offense was committed to avoid the movement of a vessel or hazardous
duty or shirk important service; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities.
Article 85. Desertion
(in time of war).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense was committed while the accused was under charges,
investigation, or adverse action;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense was committed to avoid the movement of a vessel or hazardous
duty or shirk important service;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons; and
Whether the offense was committed in a way or under circumstances such that the
location from which the accused absented himself or remained absent was a territory in
which the United States or an ally of the United States was then an occupying power or in
A12D-4
which the United States Armed Forces were then engaged in a contingency operation or
active hostilities.
Article 89. Striking, drawing, or lifting up a weapon or offering any violence to
superior commissioned officer in execution of office
(in time of war).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense was committed to avoid the movement of a vessel or hazardous
duty or shirk important service;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense was committed before or in the presence of other members of
the accused’s or the superior commissioned officer’s unit;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
The status of the superior commissioned officer and command relationship to the
accused;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
The amount of force or violence used or threatened by the accused and other
participants in the offense;
The nature or extent of any injuries suffered by the victim;
Whether the offense was committed in a way that created, or under circumstances
A12D-5
creating, a substantial risk of bodily harm or death to any person;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon; and
Whether the offense was committed in territory in which the United States or an
ally of the United States was then an occupying power or in which the United States
Armed Forces were then engaged in a contingency operation or active hostilities.
Article 90. Willfully disobeying a lawful order of superior commissioned officer
(in
time of
war).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense was committed to avoid the movement of a vessel or hazardous
duty or shirk important service;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense was committed before or in the presence of other members of
the accused's or the superior commissioned officer's unit;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
The status of the superior commissioned officer and command
relationship to the accused;
Whether the accused abused a position of trust or authority, or used
A12D-6
specialized skill or training, in a manner that significantly facilitated the offense;
Whether the offense was committed in a way that created, or under circumstances
creating, a substantial risk of bodily harm or death to any person;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities.
Article 94. Mutiny or sedition.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
The accused's relationship to the military or civil authority against which the accused
committed the mutiny or sedition;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense was committed to avoid the movement of a vessel or hazardous
duty or shirk important service;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major;
Whether the accused was an organizer, leader, manager, or supervisor in the
A12D-7
offense and the number of other participants in the offense;
Whether the accused was a minimal or minor participant in the offense;
Whether the accused abused a position of trust or authority, or used specialized
skill or training, in a manner that significantly facilitated the offense;
The amount of force or violence used or threatened by the accused and other
participants in the offense;
The nature or extent of any injuries suffered by any victims of the offense;
The nature or extent of any public or private property damage related to the
offense;
Whether the offense was committed in a way or under circumstances that
unlawfully and substantially endangered the life of one or more persons;
Whether the offense involved the conscious or reckless disregard of a risk of
death or serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon;
Whether the offense involved the conscious or reckless disregard of a risk of
serious damage to public or private property; and
Whether the offense was committed in territory in which the United States or an
ally of the United States was then an occupying power or in which the United States
Armed Forces were then engaged in a contingency operation or active hostilities.
Article 95. Offenses by sentinel or lookout
(in time of war or while the accused was
receiving special pay under
37
U.S.C 310).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense disrupted or, in any way, impacted the operations of any
A12D-8
organization;
Whether the offense was committed to avoid the movement of a vessel or hazardous
duty or shirk important service;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities.
Article 98. Misconduct as prisoner.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major;
Whether the accused was an organizer, leader, manager, or supervisor in the offense
and the number of other participants in the offense;
Whether the accused was a minimal or minor participant in the offense;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
The nature of any maltreatment inflicted on other prisoners;
A12D-9
The amount of force or violence used or threatened by the accused and other
participants in the offense;
The nature or extent of any injuries suffered by any victims of the offense;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon;
The nature of any benefits or improvements enjoyed by the accused as a result of his
or her conduct; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities.
Article 99. Misbehavior before the enemy.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense disrupted or, in any way, impacted the operations of any
organization.
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major;
A12D-10
Whether the accused was an organizer, leader, manager, or supervisor in the offense
and the number of other participants in the offense;
Whether the accused was a minimal or minor participant in the offense;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon;
Whether the offense was committed in a way that created, or under circumstances
creating, a substantial risk of bodily harm or death to any person; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities.
Article 100. Subordinate compelling surrender.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
The nature of the conflict or hostilities in which the accused's unit was engaged;
Whether the offense was committed in the immediate presence of the enemy;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense impacted the operations of any organization in addition to the
unit of the accused;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons;
A12D-11
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
Whether the offense was committed for the purpose of receiving money or a thing of
value;
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major;
Whether the accused was an organizer, leader, manager, or supervisor in the offense
and the number of other participants in the offense; and
Whether the accused was a minimal or minor participant in the offense.
Article 101. Improper use of countersign.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons;
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities;
A12D-12
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense; and
Whether the offense was committed for the purpose of receiving money or a thing of
value.
Article 102. Forcing a safeguard.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
That nature of the person or persons, place, or property intended to be protected by
the safeguard;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons;
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
Whether the offense was committed for the purpose of receiving money or a thing of
value;
Whether any person or persons, place, or property intended to be protected by the
safeguard was injured or damaged;
A12D-13
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major;
Whether the accused actually knew of the safeguard;
Whether the accused was an organizer, leader, manager, or supervisor in the offense
and the number of other participants in the offense; and
Whether the accused was a minimal or minor participant in the offense.
Article 103b. Aiding the enemy
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the accused intended to cause damage to national security;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
A12D-14
Forces were then engaged in a contingency operation or active hostilities.
Article 108a. Captured or abandoned property
(looting or pillaging)
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities;
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major;
Whether the accused was an organizer, leader, manager, or supervisor in the offense
and the number of other participants in the offense;
Whether the accused was a minimal or minor participant in the offense;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the offense involved possession of a dangerous weapon;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons;
Whether the offense involved the conscious or reckless disregard of a risk of serious
A12D-15
damage to public or private property;
The amount of force or violence used or threatened by the accused and other
participants in the offense;
The value and nature of the captured or abandoned property; and
The amount of restitution, if any, paid by the accused.
Article 110. Improper hazarding of vessel or aircraft
(willfully and wrongfully).
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
The position, responsibility, and authority of the accused at the time of the offense;
Whether the offense caused damage to the vessel or aircraft and the amount and type
of damage;
Whether the accused committed the offense with the intent to prevent the vessel's or
aircraft's deployment, movement, or departure;
Whether the offense occurred in a time of active hostilities;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person;
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense;
Whether the accused was an organizer, leader, manager, or supervisor in the offense
A12D-16
and the number of other participants in the offense; and
Whether the accused was the actual perpetrator of the offense or was a principal
whose participation in the offense was major.
Article 133. Conduct unbecoming an officer.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
The sentencing parameter for the most analogous enumerated offense;
The grade of the accused;
Whether the offense occurred in a time of active hostilities;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense involved a severe lack of integrity and judgment;
Whether the offense involved the conscious or reckless disregard of a risk of death or
serious bodily harm to any person; and
Whether the accused abused a position of trust or authority, or used specialized skill
or training, in a manner that significantly facilitated the offense.
Article 134. General article.
(A) For offenses under Article 134's "disorders and neglects to the prejudice of good
order and discipline" or "conduct of a nature to bring discredit upon the armed
forces" clause that are not listed in Part IV of the Manual for Courts-Martial:
(1) For offenses for which the maximum punishment is calculated pursuant to
A12D-17
Rule for Courts-Martial 1003(c)(l)(B)(i), the sentencing parameter for the offense that
provided the maximum punishment.
(2) For offenses for which the maximum punishment is calculated by reference to a
provision of the United States Code pursuant to Rule for Courts-Martial 1003(c)(l)(B)(ii), the
Federal Sentencing Guideline range for the offense that provided the maximum punishment.
(3) For offenses for which the maximum punishment is calculated by reference to a
custom of the applicable service pursuant to Rule for Courts-Martial 1003(c)(l)(B)(ii), the
sentencing parameter for the most analogous enumerated offense.
(B) For offenses under Article 134's "crimes and offenses not capital" clause, the Federal
Sentencing Guideline range for the underlying offense.
Article 134. Self-injury without intent to avoid service in a time of war or in a hostile
fire pay zone.
The age and experience of the accused;
Any mental impairment or deficiency of the accused;
Whether the offense was committed before or in the presence of the enemy;
Whether the offense disrupted or, in any way, impacted the operations of any
organization;
Whether the offense caused damage to the national security of the United States,
regardless of whether the accused intended such damage;
Whether the offense was committed in a way or under circumstances that unlawfully
and substantially endangered the life of one or more persons; and
Whether the offense was committed in territory in which the United States or an ally
of the United States was then an occupying power or in which the United States Armed
Forces were then engaged in a contingency operation or active hostilities."
A13-1
Appendix 13 – RESERVED
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Appendix 14 – RESERVED
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APPENDIX 15
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND
THE RULES FOR COURTS-MARTIAL
A15-1
Introduction
The Manual for Courts-Martial, United States (2024 edition)
implements the military justice reforms enacted by the National
Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-92, 133
Stat. 1198 (2019); William M. (Mac) Thornberry National Defense
Authorization Act for Fiscal Year 2021, Pub. L. 116-283, 134 Stat.
3388 (2020); National Defense Authorization Act for Fiscal Year
2022, Pub. L. No. 117-81, 135 Stat. 1541 (2021) and the James M.
Inhofe National Defense Authorization Act for Fiscal Year 2023,
Pub. L. No. 263, 136 Stat 2395 (2022). It also incorporates two
Executive Orders, namely Executive Order No. 14062 (Jan. 26,
2022) and Executive Order No. 14103 (July 28, 2023).
History of the Manual for Courts-Martial. The President
traditionally has exercised the power to make rules for the
government of the military establishment, including rules governing
courts-martial. See W. Winthrop, Military Law and Precedents 27–
28 (2d ed. 1920 reprint). Such rules have been promulgated under
the President’s authority as commander-in-chief, see U.S. Const.,
Art. II, sec. 2, cl.1., and, at least since 1813, such power also has been
provided for in statutes. See W. Winthrop, supra, at 26–27. Article
36 of the Uniform Code of Military Justice provides such authority.
See also Articles 18 and 56. See generally Hearings on H.R. 3804
Before the Military Personnel Subcomm. of the House Comm. on
Armed Services, 96th Cong., 1st Sess. 5–6, 14, 17–18, 20–21, 52,
106 (1979). In 1979, Article 36 was amended to clarify the broad
scope of the President’s rulemaking authority for courts-martial. Act
of November 9, 1979, Pub. L. No. 96–107, Section 801(b), 93 Stat.
810,811. See generally Hearings on H.R. 3804, supra.
In the nineteenth century the President promulgated, from time to
time, regulations for the Army. Those regulations were published in
various forms, including “Manuals.” W. Winthrop, supra, at 28.
Such publications were not limited to court-martial procedures and
related matters; however, they were more in the nature of
compendiums of military law and regulations. The early manuals for
courts-martial were informal guides and were not promulgated by
the President. See MCM, 1895 at 1, 2; MCM, 1905 at 3; MCM, 1910
at 3; MCM, 1917 at III. See also MCM, 1921 at XIX.
The forerunner of the modern Manual for Courts-Martial was
promulgated by the Secretary of War in 1895. See MCM, 1895 at 2.
See also Hearings on H.R. 3805, supra, at 5. (Earlier Manuals were
prepared by individual authors. See e.g., A. Murray, A Manual for
Courts-Martial (3d ed. 1893); H. Coppée, Field Manual for Courts-
Martial (1863)). Subsequent Manuals through MCM, 1969 (Rev.)
have had the same basic format, organization, and subject matter as
MCM, 1895, although the contents have been modified and
considerably expanded. See, e.g., MCM, 1921 at XIX–XX. The
format was been a paragraph format, numbered consecutively and
divided into chapters. The subject matter included pretrial, trial, and
post-trial procedure. In MCM, 1917, rules of evidence and
explanatory materials on the punitive articles were included. See
MCM, 1917 at XIV. The 1921 Manual for Courts-Martial was the
first to be promulgated by the President. See MCM, 1921 at XXVI.
Background of this Manual. During the drafting of the Military
Rules of Evidence (see Analysis, Part III, introduction, infra), the
drafters identified several portions of MCM, 1969 (Rev.) in which
they considered revisions appropriate. Consideration was given to
amending MCM, 1969 (Rev.) in specific areas. However, the project
to draft the Military Rules of Evidence had demonstrated the value
of a more comprehensive examination of existing law. In addition,
changing the format of the Manual for Courts-Martial was
considered desirable. In this regard it should be noted that, as
indicated above, the basic format and organization of the Manual for
Courts-Martial had remained the same for over 80 years, although
court-martial practice and procedure had changed substantially.
Upon completion of the Military Rules of Evidence in early 1980,
the General Counsel, Department of Defense, with the concurrence
of the Judge Advocates General, directed that the Manual for Courts-
Martial be revised. There were four basic goals for the revision. First,
the new Manual was to conform to federal practice to the extent
possible, except where the Uniform Code of Military Justice requires
otherwise or where specific military requirements render such
conformity impracticable. See Article 36. Second, current court-
martial practice and applicable judicial precedent was to be
thoroughly examined and the Manual was to be brought up to date,
by modifying such practice and precedent or conforming to it as
appropriate. Third, the format of the Manual was to be modified to
make it more useful to lawyers (both military and civilian) and
nonlawyers. Specifically, a rule as opposed to paragraph format was
to be used and prescriptive rules would be separated from
nonbinding discussion. Fourth, the procedures in the new Manual
had to be workable across the spectrum of circumstances in which
courts-martial are conducted, including combat conditions.
These goals were intended to ensure that the Manual for Courts-
Martial continues to fulfill its fundamental purpose as a
comprehensive body of law governing the trial of courts-martial and
as a guide for lawyers and nonlawyers in the operation and
application of such law. It was recognized that no single source could
resolve all issues or answer all questions in the criminal process.
However, it was determined that the Manual for Courts-Martial
should be sufficiently comprehensive, accessible, and
understandable so it could be reliably used to dispose of matters in
the military justice system properly, without the necessity to consult
other sources, as much as reasonably possible.
The Joint Service Committee on Military Justice was tasked with
the project. In the summer of 1980, the Navy and Army prepared an
initial outline of the new Manual. Drafting was done by the Working
Group of the Joint Service Committee on Military Justice.
The Working Group drafted the Manual in fourteen increments.
Each increment was circulated by each service to various field
offices for comment. Following such comment, each increment was
reviewed in the respective offices of the Judge Advocates General,
the Director, Judge Advocate Division, Headquarters, USMC, and
the Chief Counsel, USCG, and in the Court of Military Appeals.
Following such review, the Joint Service Committee met and took
action on each increment. After all increments had been reviewed
and approved, the Code Committee approved the draft.
Following approval by the Code Committee, the draft was made
available for comment by the public. 48 Fed. Reg. 23688 (May 26,
1983). In September and October 1983, the comments were
reviewed. The Working Group prepared numerous modifications in
the draft based on comments from the public and from within the
Department of Defense, and on judicial decisions and other
developments since completion of the draft. In October 1983, the
Joint Service Committee approved the draft for forwarding to the
General Counsel, Department of Defense, for submission to the
APPENDIX 15
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President after coordination by the Office of Management and
Budget.
On November 18, 1983, Congress passed the Military Justice Act
of 1983. This act was signed into law by the President on December
6, 1983, Pub. L. No. 98–209, 97 Stat. 1393 (1983). The Working
Group had previously drafted proposed modifications to the May
1983 draft which would be necessary to implement the act. These
proposed modifications were approved by the Joint Service
Committee in November 1983 and were made available to the public
for comment in December 1983. 48 Fed. Reg. 54263 (December 1,
1983). These comments were reviewed and modifications made in
the draft by the Working Group, and the Joint Service Committee
approved these changes in January 1984. The draft of the complete
Manual and the proposed executive order were forwarded to the
General Counsel, Department of Defense in January 1984. These
were reviewed and forwarded to the Office of Management and
Budget in January 1984. They were reviewed in the Departments of
Justice and Transportation. The Executive Order was finally
prepared for submission to the President, and the President signed it
on 13 April 1984.
A note on citation form. The drafters generally have followed The
Bluebook, A Uniform System of Citation (21st ed. 2020), subject to
the following.
This edition of the Manual for Courts-Martial is referred to
generally as “this Manual.” The Rules for Courts-Martial are cited,
e.g., as R.C.M. 101. The Military Rules of Evidence are cited, e.g.,
as Mil. R. Evid. 101. Other provisions of this Manual are cited to the
applicable part and paragraph, e.g., MCM, Part V, paragraph 1a(1)
(2024).
Previous editions of the Manual for Courts-Martial will be
referred to as “MCM, (XXXX edition).”
The Uniform Code of Military Justice, 10 U.S.C. Sections 801–
946a, is cited as follows: Each individual section is denominated in
the statute as an “Article” and is cited to the corresponding Article.
E.g., 10 U.S.C. Section 801 is cited as “Article 1”; 10 U.S.C. Section
802 is cited as “Article 2”; 10 U.S.C. Section 940 is cited as “Article
140.” The entire legislation, Articles 1 through 146a, is referred to as
“the Code” or “the UCMJ” without citation to the United States
Code.
When a change from MCM, 2016 is based on the Military Justice
Act of 2016 or subsequent legislation, this will be noted in the
analysis, with citation to the appropriate section of the act.
Composition of the Manual for Courts-Martial
Executive Order
The Manual for Courts-Martial consists of the Preamble; Rules
for Courts-Martial; Military Rules of Evidence; the Punitive
Articles; Nonjudicial Punishment Procedure; Appendix 12A,
Presidentially-Prescribed Lesser Included Offenses pursuant to
Article 79(b)(2), Uniform Code of Military Justice; Appendix 12B,
Sentencing Parameter Table—Confinement Range Categories;
Appendix 12C—Offense Category Chart; and Appendix 12D—List
of Sentencing Criteria Offenses. Each rule states binding
requirements except when the text of the rule expressly provides
otherwise. Normally, failure to comply with a rule constitutes error.
See Article 59 concerning the effect of errors.
a. Supplementary Materials
As a supplement to the Manual, the Department of Defense, in
conjunction with the Department of Homeland Security, has
published a Discussion (accompanying the Preamble, the Rules for
Courts-Martial, the Military Rules of Evidence, and the Punitive
Articles), this Analysis, and various Appendices.
(1) The Discussion
The Discussion is intended by the drafters to serve as a treatise.
To the extent that the Discussion uses terms such as “must” or “will,”
it is solely for the purpose of alerting the user to important legal
consequences that may result from binding requirements in the
Executive Order, judicial decisions, or other sources of binding law.
The Discussion itself, however, does not have the force of law, even
though it may describe legal requirements derived from other
sources. It is in the nature of treatise, and may be used as secondary
authority. The inclusion of both the President’s rules and the
drafters’ informal discussion in the basic text of the Manual provides
flexibility not available in pre-1984 editions of the Manual, and
should eliminate questions as to whether an item is a requirement or
only guidance. See e.g., United States v. Baker, 14 M.J. 361, 373
(C.M.A. 1973). In this Manual, if matter is included in a rule or
paragraph, it is intended that the matter be binding, unless it is clearly
expressed as precatory. A rule is binding even if the source of the
requirement is a judicial decision or a statute not directly applicable
to courts-martial. If the President had adopted a rule based on a
judicial decision or a statute, subsequent repeal of the statute or
reversal of the judicial decision does not repeal the rule. On the other
hand, if the President did not choose to “codify” a principle or
requirement derived from a judicial decision or other source of law
but the drafters considered it sufficiently significant that the
Manual’s users should be aware of it, such matter is addressed in the
Discussion. The Discussion is revised from time to time as warranted
by changes in applicable law.
(2) The Analysis
The Analysis sets forth the nonbinding views of the drafters as to
the basis for each rule or paragraph, as well as the intent of the
drafters, particularly with respect to the purpose of substantial
changes in present law. The Analysis is intended to be a guide in
interpretation. Users are reminded, however, that primary reliance
should be placed on the plain words of the rules. In addition, it is
important to remember that the Analysis solely represents the views
of staff personnel who worked on the project, and does not
necessarily reflect the views of the President in approving it, or of
the officials who formally recommended approval to the President.
The Analysis frequently refers to judicial decisions and statutes
from the civilian sector that are not applicable directly to courts-
martial. Subsequent modification of such sources of law may provide
useful guidance in interpreting rules, and the drafters do not intend
that citation of a source in this Analysis should preclude reference to
subsequent developments for purposes of interpretation. At the same
time, the user is reminded that the amendment of the Manual is the
province of the President. Developments in the civilian sector that
affect the underlying rationale for a rule do not affect the validity of
the rule except to the extent otherwise required as a matter of
statutory or constitutional law. The same is true with respect to rules
derived from the decisions of military tribunals. Once incorporated
into the Executive Order, such matters have an independent source
of authority and are not dependent upon continued support from the
judiciary. Conversely, to the extent that judicial precedent is set forth
only in the Discussion or is otherwise omitted from the Rules or the
Discussion, the continuing validity of the precedent will depend on
the force of its rationale, the doctrine of stare decisis, and similar
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND THE RULES FOR
COURTS-MARTIAL
A15-3
jurisprudential considerations. Nothing in this Introduction should
be interpreted to suggest that the placement of matter in the
Discussion (or the Analysis), rather than the rule, is to be taken as
disapproval of the precedent or as an invitation for a court to take a
different approach; rather, the difficult drafting problem of choosing
between a codification and common law approach to the law
frequently resulted in noncodification of decisions which had the
unanimous support of the drafters. To the extent that future changes
are made in the Rules or Discussion, corresponding materials will be
included in the Analysis.
(3) The Appendices
Except for Appendix 2.1 and Appendices 12A-D, the Appendices
are approved by the General Counsel of the Department of Defense
and provide supplementary, non-binding materials to assist Manual
users. While Appendix 2 offers a reproduction of the Uniform Code
of Military Justice for user convenience, it is advisable to consult
with the official and most up-to-date version of the law published by
the Office of Law Revision Counsel at https://uscode.house.gov.
When referencing excerpts of law or legal authority contained within
the appendices, it is advisable to cross-reference the cited law or
authority. For details on the issuing authority and scope of Appendix
2.1 and Appendices 12A-D, please refer to the respective sections.
PART I. PREAMBLE
Introduction.
The preamble is based on paragraphs 1 and 2 of MCM, 1969 (Rev.).
1. Sources of military jurisdiction
This subsection is based on paragraph 1 of MCM, 1969 (Rev.). The
provisions of the Constitution which are sources of jurisdiction of
military courts or tribunals include: Art I, sec. 8, cl. 1, 9–16, 18;
Art. II, sec. 2; Art. IV, sec. 4; and the Fifth Amendment. As to
sources in international law, see e.g., Ex Parte Quirin, 317 U.S. 1
(1942); Geneva Convention Relative to the Treatment of Prisoners
of War, Aug. 12, 1949, arts. 82–84, 6 U.S.T. 3316, 3382, T.I.A.S.
No. 3365, 75 U.N.T.S. 287.
2. Exercise of military jurisdiction
Subsection (a) is based on the first paragraph of paragraph 2 of
MCM, 1969 (Rev.).
For additional materials on martial law, see W. Winthrop,
Military Law and Precedent 817–30 (2d ed. 1920 reprint); Ex parte
Milligan, 71 U.S. (4 Wall.) 2 (1866). See also paragraph 3, sec. 1
of MCM, 1910 (concerning the exercise of martial law over
military affiliated persons).
For additional materials on military government, see W.
Winthrop, supra at 798–817; Madsen v. Kinsella, 343 U.S.
341(1952); Mechanics’ and Traders’ Bank v. Union Bank, 89 U.S.
(22 Wall.) 276 (1875).
For additional materials on the exercise of military jurisdiction
under the law of war, see W. Winthrop, supra at 831–46; Trials of
War Criminals Before the Nuremberg Tribunals (U.S. Gov’t
Printing Off., 1950–51); Trials of the Major War Criminals Before
the International Military Tribunal (International Military
Tribunal, Nuremberg 1947); In re Yamashita, 327 U.S. 1 (1946);
Ex parte Quirin, supra; Ex parte Milligan, supra; Articles 18 and
21. Subsection (b) is based on the second paragraph of paragraph 2
of MCM, 1969 (Rev.). See also Article 21; DA PAM 27–174, supra
at paragraph 1–5 a; W. Winthrop, supra at 802–05, 835–36. As to
provost courts, see also Hearings on H.R. 2498 Before a Subcomm.
of the House Comm. on Armed Services, 81st Cong., 1st Sess. 975,
1061 (1949). As to trial of prisoners of war, see Article 2(a)(9) and
Article 102, 1949 Geneva Convention Relative to the Treatment of
Prisoners of War, supra.
3. Purpose of military law
See generally Chappell v. Wallace, 462 U.S. 296 (1983); Parker
v. Levy, 417 U.S. 733 (1974); S. Rep. No. 53, 98th Cong., 1st Sess.
2–3 (1983). For a discussion of the nature and purpose of military
law, see R. Everett, Military Justice in the Armed Forces of the
United States (1956); J. Bishop, Justice Under Fire (1974);
Hodson, Military Justice: Abolish or Change?, 22 Kan. L. Rev. 31
(1975), reprinted in Mil. L. Rev. Bicent. Issue 579 (1976); Hansen,
Judicial Functions for the Commander, 41 Mil.L.Rev. 1 (1968);
Hearings on H.R. 2498 Before a Subcomm. of the House Comm. on
Armed Services, 81st Cong., 1st Sess. 606, 778–86 (1949); H.
Moyer, Justice and the Military 5–23 (1972).
2023 Amendment: Paragraph 3 was revised to note that the
purposes of military law include deterring misconduct and
facilitating appropriate accountability.
4. The Evolving Military Justice System
2023 Amendment: A new paragraph 4 was added to discuss the
evolution of the military justice system, including the reforms
enacted by the National Defense Authorization Act for Fiscal Year
2022, Pub. L. No. 117-81, 135 Stat. 1546 (2021) [hereinafter
FY2022 NDAA].
5. Structure and application of the Manual for Courts-Martial
Self-explanatory. See also the Introduction of the Analysis.
2023 Amendment: Paragraph 4 was renumbered as paragraph 5.
Citations to the Department of Defense issuance governing the
Joint Service Committee on Military Justice were updated.
PART II. RULES FOR COURTS-MARTIAL
CHAPTER I. GENERAL PROVISIONS
Rule 101 Scope, title
This rule is taken from Rule 101 of the MCM (2016 edition)
without amendment.
Rule 102 Purpose and construction
This rule is taken from Rule 102 of the MCM (2016 edition)
without amendment.
Rule 103 Definitions and rule of construction
This rule is taken from Rule 103 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 103(1), (2), and (3) are renumbered
APPENDIX 15
A15-4
as R.C.M. 103(2), (3), and (4); R.C.M. 103(16) through (18) are
renumbered as R.C.M. 103(17) through (19); R.C.M. 103(19)
through (21) are renumbered R.C.M. 103(21) through (23). The
definition of “UCMJ” is moved from R.C.M. 103(4) to R.C.M.
103(20).
R.C.M. 103(1) is amended and clarifies the reference to
“appellate military judge” means a judge of a Court of Criminal
Appeals.
R.C.M. 103(8)(D)
is amended and implements
Article 16
, as
amended by Section 5161 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017), which
authorizes a convening authority to refer
charges to a special court-martial consisting of a military judge
alone under such limitations as the President may prescribe by
regulation.
R.C.M. 103(11) is amended and updates a description of the
federal law definition of “explosive.”
R.C.M. 103(15)
is amended and implements Article 1, as
amended by Section 5101 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Sections 1081(a)(21) and 1081(c)(1)(A) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017), which
amends the
definition of “military judge.”
R.C.M. 103(16) is amended and implements Articles 19, 26a,
and 30a, as amended by Sections 5163, 5185, and 5202
of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), which authorizes the use of military magistrates;
Article 30a was amended by Section 531(b) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
R.C.M. 103(17) is amended and clarifies the definition of
“party” to include acting on behalf of a party in pre-referral and
post-referral proceedings under these rules.
R.C.M. 103(22) is amended and aligns the definitions of
“writings” and “recordings” with Mil. R. Evid. 1001.
The Discussion accompanying R.C.M. 103(23) is amended
and reflects current statutory provisions.
2023 Amendments: R.C.M. 103(10), (12), and (23) are amended
to provide definitions regarding special trial counsel authorities.
See Subtitle D, FY2022 NDAA. Other definitions are renumbered
as appropriate without further amendment.
R.C.M. 103(12) defines the phrase “exercise authority over,”
which is statutory language in Article 24a. The definition clarifies
how a special trial counsel can exercise authority over an offense
to the exclusion of a commander. The definition ensures that a
special trial counsel and a convening authority each know when
they are responsible for disposing of an offense.
R.C.M. 103(23) defines the term “referral authority.” This term
is used throughout the R.C.M.s to discuss roles and responsibilities
of the special trial counsel or the convening authority, as
applicable.”
Rule 104 Command influence
This rule is taken from R.CM. 104 of the MCM (2016 edition),
with the following amendments:
2018 Amendment: The Discussion accompanying R.C.M.
104(b)(2)(B) is amended to reflect the reorganization of the
punitive articles in the Military Justice Act of 2016. See Articles
79-134, as amended by Sections 5401-5452 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131
Stat. 1283 (2017).
2023 Amendments: The title of the rule is amended to reflect the
change to Article 37. See National Defense Authorization Act for
Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1359 (2019). The
text of the rule is amended to implement changes to Article 37 as
well as to clarify the role and responsibilities of special trial
counsel.
R.C.M. 104(a)(2)(B)(ix) is added to include “taking action on
the findings or sentence,” and all subsequent paragraphs are
redesignated.
Rule 105 Direct communication: convening authorities and
staff judge advocates; among staff judge advocates
This rule is taken from Rule 105 of the MCM (2016 edition) with
the following amendments:
2023 Amendments: R.C.M. 105(c) is new and clarifies the ability
to communicate with special trial counsel.
R.C.M. 105(d) is new and clarifies that all communications must
be free from unlawful or unauthorized influence or coercion per
Article 37, UCMJ.
Rule 106 Delivery of military offenders to civilian authorities
This rule is taken from Rule 106 of the MCM (2016 edition) with
the following amendment: the Discussion accompanying R.C.M.
106 is amended to correct a cross-reference.
Rule 107 Dismissed officer’s right to request trial by court-
martial
This rule is taken from Rule 107 of the MCM (2016 edition)
without substantive amendment.
Rule 108 Rule of court
This rule is taken from Rule 108 of the MCM (2016 edition)
without amendment.
Rule 109 Professional supervision of military judges and
counsel
This rule is taken from Rule 109 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: The title of R.C.M. 109 and its accompanying
Discussions are amended and reflect Articles 6a and 26a, as added
by Sections 5104 and 5185 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which adds
military magistrates to those judicial personnel included in
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND THE RULES FOR
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procedures relating to the investigation and disposition of matters
pertaining to the fitness of military judges, and authorizes the Judge
Advocate General to certify the qualifications of military
magistrates, respectively.
CHAPTER II. JURISDICTION
Rule 201 Jurisdiction in general
This rule is taken from Rule 201 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion accompanying R.C.M.
201(b)(5) is amended and deletes a reference to R.C.M. 810(d).
R.C.M. 201(c), which addressed contempt, is deleted. See
R.C.M. 809 for procedures and standards for contempt proceedings
and the exercise of contempt authority by judicial officers under
Article 98.
R.C.M. 201(f)(1)(A)(i), R.C.M. 201(f)(1)(D), and the
Discussion accompanying R.C.M. 201(g) are amended to reflect
the reorganization of the punitive articles in the Military Justice Act
of 2016. See Articles 79-134, as amended by Sections 5401-5452
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), as further amended by Section 1081(c)
of the National Defense Authorization Act for Fiscal Year 2018,
Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 201(f)(1)(D) and (f)(2)(D) are amended and eliminate
redundancies and reflect the dates of applicability set forth in
Section 1705(c) of the National Defense Authorization Act for
Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672, 960 (2013).
The Discussion accompanying R.C.M. 201(f)(2)(D) is amended
to update a citation.
R.C.M. 201(f)(2)(B)(ii) is amended and implements Articles 16
and 19, as amended by
Sections 5161 and 5163 of the Military
Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(C) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017), which eliminate special
courts-martial without a military judge and authorize a convening
authority to refer charges to a special court-martial consisting of a
military judge alone under such limitations as the President may
prescribe by regulation.
R.C.M. 201(f)(2)(E) and the accompanying Discussion are new
and reflect Article 16, as amended by
Section 5161 of the Military
Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(C) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017), which authorizes a
convening authority to refer charges to a special court-martial
consisting of a military judge alone under such limitations as the
President may prescribe by regulation.
2023 Amendments: R.C.M. 201(e) is amended to clarify the
procedure for reciprocal jurisdiction among the services.
The Discussion accompanying R.C.M. 201(b)(3) is amended to
reflect that a referral to a general court-martial or special court-
martial, when done at the direction of a special trial counsel for
covered offenses, does not make the convening authority an accuser
for purposes of R.C.M. 307. See FY2022 NDAA.
The Discussion accompanying R.C.M. 201(d)(3) is amended to
reflect the document title of the memorandum of understanding
(MOU) between the Department of Justice (DOJ) and Department
of Defense at Appendix 3 and to note a similar MOU between the
DOJ and the Department of Transportation for the U.S. Coast
Guard at Appendix 4.
R.C.M. 201(f)(2)(C) is amended to account for referral of capital
offenses by special trial counsel to special court-martial.
Rule 202 Persons subject to jurisdiction of courts-martial
This rule is taken from Rule 202 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: Paragraph (1) of the Discussion
accompanying R.C.M. 202(a) and the Discussion accompanying
R.C.M. 202(c) are amended to reflect the reorganization of the
punitive articles in the Military Justice Act of 2016. See Articles
79-134, as amended by Sections 5401-5452 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
Paragraph (5) of the Discussion accompanying R.C.M. 202(a) is
amended and reflects Article 2(a)(3), as amended by
Section 5102
of the Military Justice Act of 2016, Division E of
the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), which revises UCMJ jurisdiction over
reservists to cover periods incident to inactive-duty training.
Rule 203 Jurisdiction over the offense
This rule is taken from Rule 203 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: The Discussion accompanying R.C.M. 203 is
amended and adds a reference to R.C.M. 201(f) with respect to the
punishment limitations applicable to specific types of courts-
martial.
Rule 204 Jurisdiction over certain reserve component
personnel
This rule is taken from Rule 204 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: R.C.M. 204(d) is amended and implements
Article 2(a)(3), as amended by
Section 5102 of the Military
Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), which revises UCMJ jurisdiction over reservists
to cover periods incident to inactive-duty training.
CHAPTER III. INITIATION OF CHARGES;
APPREHENSION; PRETRIAL RESTRAINT; RELATED
MATTERS
Rule 301 Report of offense
This rule is taken from Rule 301 of the MCM (2016 edition) with
the following amendment:
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A15-6
2023 Amendment: Subparagraph (c) is added to ensure special
trial counsel are made aware of all allegations of covered offenses.
A special trial counsel must exercise authority over a covered
offense and has exclusive authority to determine whether a reported
offense is a covered offense.
Rule 302 Apprehension
This rule is taken from Rule 302 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion accompanying R.C.M.
302(a)(1) is amended and updates cross-references.
R.C.M. 302(e)(2)(A) is amended and updates cross-references
to the Military Rules of Evidence.
R.C.M. 302(e)(2)(B) is amended and reflects exigent
circumstances under which an apprehension may be made in a
private dwelling.
2023 Amendments: The Discussion accompanying R.C.M.
302(b)(3) is amended to replace “passion” with “possession.”
The Discussion accompanying R.C.M. 302(c) is amended to
remove the proposition that “reasonable grounds” is equivalent to
“probable cause.”
Rule 303 Preliminary inquiry into reported offenses
This rule is taken from Rule 303 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: The Discussion accompanying R.C.M. 303 is
amended and reflects Section 1742 of the National Defense
Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127
Stat. 980 (2013), which mandated that commanders refer reports of
sex-related offenses involving members of the armed forces in their
chain of command to the appropriate military criminal investigative
organization.
Rule 303A Determination by special trial counsel to exercise
authority
2023 Amendment: This rule is new and describes the initial
determinations special trial counsel shall make prior to exercising
authority over an offense.
Rule 304 Pretrial restraint
This rule is taken from Rule 304 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion accompanying R.C.M.
304(a)(4) is amended and reflects the reorganization of the punitive
articles in the Military Justice Act of 2016. See Articles 79-134, as
amended by Sections 5401-5452 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
2023 Amendment: R.C.M. 304(f) is added and ensures timely
notice is given to special trial counsel when an accused suspected
of a covered offense is placed under pretrial restraint. All other
paragraphs are redesignated, without further amendment, to
accommodate the addition of the new R.C.M. 304(f).
Rule 305 Pretrial confinement
This rule is taken from Rule 305 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 305 is amended throughout the rule
and replaces the term “prisoner” with the term “confinee.”
The Discussion accompanying R.C.M. 305(a) is amended and
reflects Article 12, as amended by Section 5122 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), with respect to confinement of members of the
armed forces in immediate association with enemy prisoners and
other specified individuals.
R.C.M. 305(k) is amended and updates cross-references
applicable to administrative credit against the sentenced adjudged
for confinement served as a result of noncompliance with R.C.M.
305(f), (h), (i), or (j).
R.C.M. 305(m)(1) and (2) are amended and update cross-
references.
The Discussion accompanying R.C.M. 305(m) is amended and
clarifies that operational exceptions permitted to the requirements
of certain provisions of R.C.M. 305 do not constitute exceptions to
the requirements of Article 31(b).
The Discussion accompanying R.C.M. 305(n) is amended and
clarifies the meaning of the term “victim of an alleged offense” as
it pertains to this rule.
2023 Amendments: R.C.M. 305(f) is added to ensure timely
notice is given to special trial counsel when an accused suspected
of a covered offense is placed in pretrial confinement. All other
paragraphs are redesignated, without further amendment, to
accommodate the addition of the new R.C.M. 305(f).
R.C.M. 305(j), now R.C.M. 305(k), is amended to provide
procedures for pre-referral review of a pretrial confinement
determination.
Rule 306 Initial disposition for offenses over which special trial
counsel does not exercise authority
This rule is taken from Rule 306 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion accompanying R.C.M. 306(a)
is amended and reflects that the Initial Disposition Authority for
certain sex-related offenses is a commander in the grade of O-6 or
above possessing at least special court-martial convening authority.
The Discussion accompanying R.C.M. 306(b) is amended and
refers to the non-binding disposition guidance required by Article
33, as amended by Section 5204 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). See
Appendix 2.1.
The Discussion accompanying R.C.M. 306(c)(2) is relocated
and accompanies R.C.M. 306(c)(1).
R.C.M. 306(e)(1) is amended and reflects the reorganization of
the punitive articles in the Military Justice Act of 2016. See Articles
79-134, as amended by Sections 5401-5452 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
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R.C.M. 306(e)(3) is amended and clarifies that, under such
regulations as the Secretary may prescribe, if no charges are
preferred for an alleged sex-related offense, if the commander
learns of any decision by civilian authorities to prosecute or not
prosecute the offense in civilian court, the commander shall ensure
the victim is notified.
2023 Amendment: R.C.M. 306 is amended to articulate
command authority to make an initial disposition determination on
reported offenses when a special trial counsel is not exercising
authority or has deferred.
Rule 306A Initial disposition for offenses over which special
trial counsel exercises authority
2023 Amendment: This rule is new and describes the manner in
which a special trial counsel disposes of offenses over which the
special trial counsel has exercised authority. Under R.C.M. 307(a),
any person subject to the UCMJ may prefer charges. If someone
other than a special trial counsel prefers a charge for a covered
offense, a special trial counsel must exercise authority over that
offense upon learning of the preferral of the charge. Special trial
counsel have exclusive authority to dispose of preferred charges for
covered offenses, and any other offenses over which a special trial
counsel has exercised authority, regardless of who preferred the
charges.
Rule 307 Preferral of charges
This rule is taken from Rule 307 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 307(b) is amended and implements
Article 30, as amended by Section 5201 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
The Discussion accompanying R.C.M. 307(c)(3) is amended
and reflects the reorganization of the punitive articles in the
Military Justice Act of 2016 and the addition of Appendix 12A with
respect to lesser included offenses. See Articles 79-134, as
amended by Sections 5401-5452 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
R.C.M. 307(c)(4) is amended and deletes the last sentence.
The Discussion accompanying R.C.M. 307(c)(4) is amended to
address the differences between multiplicity and unreasonable
multiplication of charges, and to alert practitioners that use of the
phrase “multiplicity in sentencing,” is confusing and should be
avoided. See United States v. Campbell, 71 M.J. 19 (C.A.A.F.
2012).
2023 Amendment: R.C.M. 307(b)(3) is added to clarify that
preferral of charges by remote means is authorized.
Rule 308 Notification to accused of charges and required
disclosures
This rule is taken from Rule 308 of the MCM (2016 edition) with
the following amendments:
2023 Amendment: R.C.M. 308(c) and (d) incorporate language
regarding disclosures that was previously located in R.C.M.
404A(a)(1), (b), (c), and (d) in the MCM (2019 edition).
Additionally, R.C.M. 308(c) specifically identifies the items
accompanying the charges that are required for initial disclosure,
and R.C.M. 308(d)(2) clarifies work product not subject to
disclosure.
Rule 309 Pre-referral judicial proceedings
2018 Amendment: R.C.M. 309 is new and implements Article
30a, as added by Section 5202 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as amended
by Section 531(b) of the National Defense Authorization Act for
Fiscal Year 2018, Pub. L. No. 155-91, 131 Stat. 1283 (2017), which
establishes the matters that may be addressed by a military judge or
military magistrate in a pre-referral proceeding.
2023 Amendment: R.C.M. 309(a) is amended to limit the
authority of the military judge in the pre-referral context.
R.C.M. 309(b)(4)-(10) are added to include matters that may be
adjudicated at a pre-referral hearing under Article 30a. Of note,
R.C.M. 309(b)(3)(10) is added to allow a party to ask a military
judge to consider whether to order a pre-referral deposition.
R.C.M. 309(e) is amended to ensure the record from any pre-
referral hearing in a case involving a special trial counsel is
forwarded to the special trial counsel.
CHAPTER IV. FORWARDING AND DISPOSITION OF
CHARGES
Rule 401 Forwarding and disposition of charges in general
This rule is taken from Rule 401 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
The Discussions accompanying R.C.M.
401(b) and (c) are amended and refer to the non-binding disposition
guidance required by Article 33, as amended by Section 5204 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). See Appendix 2.1.
2023 Amendment: R.C.M. 401 and the Discussions are amended
to articulate command authority over the forwarding and
disposition of charges when a special trial counsel has not exercised
authority or has deferred.
Rule 401A. Disposition of charges over which a special trial
counsel exercises authority and has not deferred
2023 Amendment: R.C.M. 401A and the Discussions are new
and describe the process special trial counsel must employ to
dispose of preferred charges.
Rule 402 Action by commander not authorized to convene
courts-martial
This rule is taken from Rule 402 of the MCM (2016 edition) with
the following amendments:
2023 Amendment: R.C.M. 402 is amended to clarify the role of
special trial counsel.
APPENDIX 15
A15-8
Rule 403 Action by commander exercising summary court-
martial jurisdiction
This rule is taken from Rule 403 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussions accompanying R.C.M. 403
are amended and update cross-references. R.C.M. 403(b)(4) is
amended and implements Article 18, as amended by Section
1705(b) of the National Defense Authorization Act for Fiscal Year
2014, Pub. L. No. 113-66, 127 Stat. 672 (2013), as further amended
by Section 5162 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), which limits jurisdiction
for certain sex-related offenses to general courts-martial.
2023 Amendment: R.C.M. 403 is amended to clarify the role of
special trial counsel.
Rule 404 Action by Commander exercising special court-
martial jurisdiction
This rule is taken from Rule 404 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 404(4) and the accompanying
Discussion are amended and reflect Article 18, as amended by
Section 1705(b) of the National Defense Authorization Act for
Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013), as
further amended by Section 5162 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which limits jurisdiction for certain sex-related offenses to general
courts-martial.
2023 Amendment: R.C.M. 404 is amended to clarify the role of
special trial counsel.
Rule 404A Initial Disclosures [Removed]
This rule is taken from Rule 404A of the MCM (2016 edition)
with the following amendments:
2018 Amendments: The rule is renamed “Initial disclosures.”
R.C.M. 404A(a) is amended and establishes the Government’s
disclosure requirements at preferral of charges and at the direction
of a preliminary hearing.
The Discussion accompanying R.C.M. 404A(c) is amended and
updates a cross-reference.
The Discussion accompanying R.C.M. 404A(d) is amended and
updates a reference.
2023 Amendment: R.C.M. 404A is removed. The substance of
the rule is incorporated into R.C.M. 308 and R.C.M. 405.
Rule 405 Preliminary hearing
This rule is taken from Rule 405 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 405 and the accompanying
Discussions are amended and reflect Articles 6b, 30a, 32, 33, 46,
and 47, as amended or added by Sections 5105, 5202, 5203, 5204,
and 5229 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Article 6b is further amended
by Sections 531(a), 1081(a)(22), and 1081(c)(1)(B) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 155-
91, 131 Stat. 1283 (2017). Article 30a is amended by Section
531(b) of the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 155-91, 131 Stat. 1283 (2017).
The Discussions following R.C.M. 405(i)(2)(D), R.C.M.
405(j)(8), and R.C.M. 405(k)(3) are new and reflect that the terms
of a sealing order may authorize listed persons or entities to
examine or receive disclosure of sealed materials outside of the
procedures set forth in R.C.M. 1113(b).
2023 Amendments by Annex 1 of Executive Order No. 14103
(July 28, 2023):
R.C.M. 405(f), now R.C.M. 405(g), is amended to clarify the
rights of the accused at a preliminary hearing.
R.C.M. 405(h)(3)(B)(iii), now R.C.M. 405(i)(3)(B)(iii), is
amended to clarify the use of an investigative subpoena for
evidence not under the control of the Government during a
preliminary hearing.
R.C.M. 405(i)(2)(A), now R.C.M. 405(j)(2)(A), is amended to
change “any alleged victim’s sexual predisposition” to “the alleged
victim’s sexual predisposition.” Additionally, subparagraph (i) is
amended to replace “Mil. R. Evid. 412(b)(1)(A) or (B)” with “Mil.
R. Evid. 412(b)(1) or (2),” and subparagraph (ii) is amended to
remove “relevant” from the determination.
R.C.M. 405(j)(3), now R.C.M. 405(k)(3), is amended to clarify
that preliminary hearings should remain open to the public
whenever possible, whether conducted in person or via remote
means. R.C.M. 405(j)(4), now R.C.M. 405(k)(4), is amended to
clarify the requirements for an accused to appear via remote means
at a preliminary hearing.
2023 Amendments by Annex 2 of Executive Order No. 14103
(July 28, 2023):
R.C.M. 405(c) is amended to clarify special trial counsel’s role
in determining whether a preliminary hearing is required.
R.C.M. 405(d) is added to incorporate disclosures previously
contained in R.C.M. 404A. Other paragraphs are renumbered to
accommodate this addition.
R.C.M. 405(d), now R.C.M. 405(e), is amended to add that for
preliminary hearings, special trial counsel shall detail counsel for
the Government consistent with regulations prescribed by the
Secretary concerned.
R.C.M. 405(e), now R.C.M. 405(f), is amended to require the
preliminary hearing officer to provide notice to the convening
authority and submit a copy of the preliminary hearing report to a
special trial counsel if an uncharged covered offense is adduced
during the preliminary hearing.
R.C.M. 405(k)(4) is amended to clarify that remote presence of
the accused for a preliminary hearing is authorized.
Rule 406 Pretrial advice and special trial counsel
determinations
This rule is taken from Rule 406 of the MCM (2016 edition) with
the following amendments:
2018 Amendments: R.C.M. 406(a) and (b) and the
accompanying Discussions are amended and reflect Article 34, as
amended by Section 5205 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
requires a convening authority to consult a judge advocate on
relevant legal issues before referring charge(s) and specification(s)
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND THE RULES FOR
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A15-9
to a special court-martial and also prohibits a convening authority
from referring charge(s) and specification(s) to a general court-
martial unless a staff judge advocate provides written advice stating
that the specification alleges an offense under the UCMJ, there is
probable cause to believe that the accused committed the offense
charged, and a court-martial would have jurisdiction over the
accused and the offense. Prior to referring charge(s) and
specification(s) to a general court-martial, the staff judge advocate
is also required to provide a recommendation as to the disposition
that should be made of the charges and specifications by the
convening authority in the interest of justice and discipline. See
also R.C.M. 601(d).
The Discussion accompanying R.C.M. 406(a) is amended and
refers to the non-binding disposition guidance required by Article
33, as amended by Section 5204 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). See
Appendix 2.1.
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 406(c) is added to address distribution of
written advice from the staff judge advocate if charges are referred
to a general court-martial.
2023 Amendments by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 406(a)(2) is amended to incorporate
R.C.M. 406A.
R.C.M. 406(c) is amended to account for the written
determination made by special trial counsel if charges are referred
to a general or special court-martial.
Rule 406A Pretrial advice before referral to special court-
martial [REMOVED]
2018 Amendments: R.C.M. 406A is new and implements Article
34(b), as amended by Section 5202 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which requires a convening authority to consult a judge advocate
on relevant legal issues before referring charge(s) and
specification(s) to a special court-martial.
The Discussion accompanying R.C.M. 406A(a) is amended and
refers to guidance concerning disposition of charges and
specifications required by Article 33, as amended by Section 5204
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016). See Appendix 2.1.
2023 Amendment: R.C.M. 406A is removed. The substance of
the rule is incorporated into R.C.M. 406.
Rule 407 Action by commander exercising general court-
martial jurisdiction
This rule is taken from Rule 407 of the MCM (2016 edition) with
the following amendments:
2018 Amendments: R.C.M. 407(a)(4) and the accompanying
Discussion are amended and reflect Article 18, as amended by
Section 1705(b) of the National Defense Authorization Act for
Fiscal Year 2014, Pub. L. No. 113-66, 127 Stat. 672 (2013), as
further amended by Section 5162 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which limits jurisdiction over certain sex-related offenses to
general courts-martial.
The Discussion accompanying R.C.M. 407(a)(6) is amended
and refers to Sections 1744(b)-(d) of the National Defense
Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, 127
Stat. 980 (2013), as amended by the Section 541 of the Carl Levin
and Howard P. “Buck” McKeon National Defense Authorization
Act for Fiscal Year 2015, Pub. L. 113-291, 128 Stat. 3371 (2014),
which require higher level review with respect to certain decisions
involving allegations of sex-related offenses.
2023 Amendment: R.C.M. 407 is amended to clarify the role of
special trial counsel.
CHAPTER V. COURT-MARTIAL COMPOSITION AND
PERSONNEL; CONVENING COURTS-MARTIAL
Rule 501 Composition and personnel of courts-marital
This rule is taken from Rule 501 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 501
(a) and the accompanying
Discussion are amended and reflect Articles 16, 25a, and 29, as
amended by Sections 5161, 5183, and 5187 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c)(1)(C) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017), which require a set number of
members for capital and non-capital general courts-martial and
special courts-martial, eliminate special courts-martial without a
military judge, establish a special court-martial consisting of a
military judge alone with certain limitations on offenses and
punishments, and authorize the convening authority to detail
alternate members to general and special courts-martial.
The Discussion accompanying R.C.M. 501(c) in the MCM
(2016 edition), which addressed court reporters, is deleted.
Rule 502 Qualifications and duties of personnel of court-
martial
This rule is taken from Rule 502 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 502
(a)(1) is amended and
implements Article 25, as amended by Section 5182 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), which permits a convening authority to detail
enlisted members to general and special courts-martial without
requiring a request for such members from an enlisted accused.
R.C.M. 502(a)(2) and the accompanying Discussion are
amended and reflect Articles 29 and 53, as amended by Sections
5187 and 5236 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(G) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017),
which authorizes the convening authority to detail alternate
members to general and special courts-martial and addresses
sentencing for capital offenses.
APPENDIX 15
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R.C.M. 502(c) and the accompanying Discussion are amended
and reflect Articles 26 and 26a, as amended and added,
respectively, by Sections 5184 and 5185 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which establish qualifications and minimum tour lengths for trial
judges and authorizes the Secretary concerned to establish a
military magistrate program.
R.C.M. 502(d)(1) and (2) and the accompanying Discussion are
amended and reflect Article 27, as amended by Section 5186 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), with respect to the qualifications of trial counsel,
assistant trial counsel, defense counsel, assistant and associate
defense counsel, individual military counsel, civilian defense
counsel, and counsel learned in the law applicable to capital cases.
R.C.M. 502(d)(3) and the accompanying Discussion are
amended and address disqualification of appellate military judges
and counsel for witnesses and victims.
The Discussion accompanying R.C.M. 502(d)(4) is amended
and updates cross-references, reflects trial counsel’s duties with
regard to victims’ rights, and reflects the elimination of special
courts-martial without a military judge. See Articles 6b and 16, as
amended by Sections 5105 and 5161 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
Article 6b is further amended by Sections 531(a), 1081(a)(22), and
1081(c)(1)(B) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017). Article
16 is further amended by Section 1081(c)(1)(C) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
The Discussion accompanying R.C.M. 502(d)(5) is amended
and clarifies defense counsel’s duties in light of substantial changes
to post trial and appellate practice in the Military Justice Act of
2016.
2023 Amendments: R.C.M. 502(a)(2)(A) is amended to account
for changes in the sentencing procedures in Articles 53 and 56,
UCMJ, providing for judge-alone sentencing in all special and non-
capital general court-martial cases, enacted by Section 539E of
FY2022 NDAA.
R.C.M. 502(d)(1)(C) is new and describes the qualifications of
special trial counsel and requires a special trial counsel be detailed
to all cases referred by special trial counsel.
R.C.M. 502(d)(3)(A) is amended to clarify that a special trial is
not disqualified as an accuser by making a determination to prefer
or refer a charge.
The Discussion accompanying R.C.M. 502(d)(4) is amended to
clarify that the convening authority is responsible for addressing
irregularities in the convening orders and allied papers in all cases.
For cases over which a special trial counsel has exercised authority
and has not deferred, the special trial counsel is responsible for
addressing any irregularity in a charge. For cases in which the
convening authority has referred the charges, the convening
authority is responsible for addressing any irregularity in a charge.
Rule 503 Detailing members, military judge, and counsel, and
designating military magistrates
This rule is taken from Rule 503 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 503
(a)(1) and (2) and the
accompanying Discussions are amended and reflect Articles 25,
25a, and 29, as amended by Sections 5182, 5183, and 5187 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding detailing of members, excusal of
members, and impanelment of alternate members.
R.C.M. 503(a)(4) is new and implements Article 16, as amended
by Section 5161 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(C) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017),
which permits a convening authority to refer charge(s) and
specification(s) to a special court-martial consisting of a military
judge alone under such limitations as the President may prescribe
by regulation.
R.C.M. 503(b)(4) is new and implements Articles 19 and 30a, as
amended by Sections 5163 and 5202 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), and
Article 30a is further amended by Section 531(b) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 155-
91, 131 Stat. 1283 (2017), which authorizes military judges to
detail military magistrates, if authorized under regulations of the
Secretary concerned, to preside over certain pre-referral
proceedings and special courts-martial consisting of a military
judge alone in specified circumstances.
R.C.M. 503(c)(1) is amended and implements Article 27, as
amended by Section 5186 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), with
respect to counsel learned in the law applicable to capital cases.
2023 Amendments: R.C.M. 503(a)(1) is amended to reference
Article 25, UCMJ, and to require the convening authority to
provide a list of detailed members to the military judge to
randomize in accordance with R.C.M. 911.
The Discussion accompanying R.C.M. 503(a)(1) is amended to
require the convening authority to detail a sufficient number of
qualified persons. In order to determine a sufficient number of
qualified persons to detail to a court-martial, the convening
authority, as advised by the staff judge advocate, should consider
the following non-exclusive list of factors to ensure an adequate
number of members remains after challenges: operational
necessity; forum of the court-martial; availability of Article 25,
UCMJ, qualified servicemembers to the convening authority;
anticipated awareness of, and knowledge regarding, the parties or
facts of the case; and the capability to detail additional members to
the convening order.
The Discussion accompanying R.C.M. 503(a)(2) is amended to
remove the reference to member sentencing.
Rule 504 Convening courts-martial
This rule is taken from Rule 504 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 504(d) is amended and aligns with the
2018 amendments to R.C.M. 503(a).
2023 Amendment: R.C.M. 504(c)(1) is amended to clarify that a
commanding officer shall not be considered an accuser solely due
to the role of the commanding officer in convening a special or
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general court-martial to which charges and specifications were
referred by a special trial counsel.
Rule 505 Changes of members, military judge, and counsel
This rule is taken from Rule 505 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 505(a) is
amended and aligns with
the 2018 Amendments to R.C.M. 503(b)(4) regarding military
magistrates.
R.C.M. 505(b) is amended and aligns with the 2018
Amendments to R.C.M. 1202 regarding the certification of the
record of trial.
R.C.M. 505(c)(2) is amended and aligns with the 2018
Amendments to R.C.M. 501 and 912A regarding fixed panel sizes
in general and special courts-martial and the procedure for excusing
excess members at impanelment. The Discussion accompanying
R.C.M.505(c)(2) is new.
R.C.M. 505(e) is amended and describes the circumstances in
which the military magistrate can be changed before and after
assembly of the court-martial. The Discussion accompanying
R.C.M. 505(e) is new.
R.C.M. 505(f) is amended and describes the circumstances in
which good cause would exist to change the military magistrate.
2023 Amendment: R.C.M. 505(c) is amended to specify that the
convening authority must follow the procedures in R.C.M 503(a)
when detailing additional members to a court-martial.
Rule 506 Accused’s rights to counsel
This rule is taken from Rule 506 of the MCM (2016 edition) with
the following amendment:
2018 Amendment:
R.C.M. 506(a) and the accompanying
Discussion are amended and align with the 2018 Amendments to
R.C.M. 502(d)(2)(C) regarding the detailing of defense counsel in
capital cases.
CHAPTER VI. REFERRAL, SERVICE, AMENDMENT,
AND WITHDRAWAL OF CHARGES
Rule 601 Referral
This rule is taken from Rule 601 of the MCM (2016 edition), as
amended by Exec. Order No. 13825, 83 Fed. Reg. 9889 (March 1,
2018), with the following amendments:
2018 Amendment: R.C.M. 601(a) is amended and clarifies that
referral is the order of a convening authority that charges and
specifications against an accused will be tried by a specified court-
martial.
R.C.M. 601(d) is amended and implements Article 34(b), as
amended by Section 5205 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
requires a convening authority to consult a judge advocate on
relevant legal issues before referring charge(s) and specification(s)
to a special court-martial and also prohibits a convening authority
from referring charge(s) and specification(s) to a general court-
martial unless a staff judge advocate provides written advice stating
that the specification alleges an offense under the UCMJ, there is
probable cause to believe that the accused committed the offense
charged, and a court-martial would have jurisdiction over the
accused and the offense. Prior to referring charge(s) and
specification(s) to a general court-martial, the staff judge advocate
is also required to provide a recommendation to the convening
authority as to the disposition that should be made of the charges
and specifications by the convening authority in the interest of
justice and discipline. See also R.C.M. 406.
The Discussion accompanying R.C.M. 601(d)(1) is amended
and references Appendix 2.1 (Non-binding disposition guidance),
and reflects Article 33, as amended by Section 5204 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
The Discussion accompanying R.C.M. 601(d)(2) is new and
reflects the opportunity of the accused to waive the preliminary
hearing and the rules regarding waiver or forfeiture for failure to
object to a defect under R.C.M. 601.
The Discussion accompanying R.C.M. 601(d)(3) is new and
references limitations on referral of charges and specifications to
special courts-martial.
R.C.M. 601(e)(1) is amended and implements Article 16, as
amended by Section 5161 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131
Stat. 1283 (2017), concerning referring charges and specifications
in a capital case or in a special court-martial consisting of a military
judge alone under Article 16(c)(2)(A).
2023 Amendment: R.C.M. 601(a) is amended to allow for
referral by special trial counsel.
The Discussion accompanying R.C.M. 601(a) deletes the
reference to elements of referral of charges because it is not
applicable to cases referred by a special trial counsel.
R.C.M. 601(b) is amended to allow for referral by special trial
counsel.
R.C.M. 601(c) is amended to clarify that a special trial counsel
is not disqualified from referring a charge as a result of having
preferred the charge or having directed that the charge be preferred.
R.C.M. 601(d)(1) is amended to describe the process for referral
of charges by special trial counsel.
R.C.M. 601(d)(2) is new and requires referral authorities to
consider whether admissible evidence will probably be sufficient
to obtain and sustain a conviction. This provision is consistent with
the Principles of Federal Prosecution, Section 9-27.220 (updated
January 2023) and Appendix 2.1 of the MCM. This provision does
not alter the probable cause standard for referral. It does not expand
the disclosure and discovery requirements of R.C.M. 308 and 701.
R.C.M. 601(e) is amended to allow for referral by special trial
counsel.
The Discussion accompanying R.C.M 601(e) clarifies that a
special trial counsel is not authorized to refer a charge to a special
court-martial consisting of a military judge alone under Article
16(c)(2)(A).
The Discussion accompanying R.C.M. 601(e)(2) is amended to
remove the language encouraging the convening authority to refer
all known charges to a single court-martial, as this guidance may
APPENDIX 15
A15-12
interfere with special trial counsel’s exclusive authority.
R.C.M. 601(g)(2) is added, and the Discussion to R.C.M. 601(g)
is amended, to allow for a convening authority to transfer charges
to a parallel convening authority within the limitations prescribed
by the Secretary concerned to avoid interfering with special trial
counsel’s exclusive authority.
Rule 602 Service of charges
This rule is taken from Rule 602 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: R.C.M. 602
is amended and implements
Article 35, as amended by Section 5206 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016)
regarding the time periods applicable to service of charges and
commencement of trial, and sets forth the consequences for defense
failure to object to proceeding during the applicable period
Rule 603 Changes to charges and specifications
This rule is taken from Rule 603 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
R.C.M. 603 and the accompanying
Discussions are revised and clarify the definition of major and
minor changes that may be made to charges and specifications that
have been referred to trial by court-martial, and the timing
requirements for making such changes to the charges and
specifications.
2023 Amendment: R.C.M. 603(a) is amended to clarify the role
of special trial counsel.
Rule 604 Withdrawal of charges
This rule is taken from Rule 604 of the MCM (2016 edition) with
the following amendment:
2023 Amendment: R.C.M. 604(a) and its Discussion are
amended to clarify the role of special trial counsel.
CHAPTER VII. PRETRIAL MATTERS
Rule 701 Discovery
This rule is taken from Rule 701 of the MCM (2016 edition) as
amended by Exec. Order No. 13825, 83 Fed. Reg. 9889 (March 1,
2018), with the following amendments.
2018 Amendment:
The amendments to R.C.M. 701 clarify
discovery practice in the military justice system. The amendments
enhance efficiency and ensure the prompt disposition of offenses,
while at the same time ensuring fairness to the accused and the
equal opportunity of both the prosecution and defense to obtain
witnesses and evidence guaranteed by Article 46.
R.C.M. 701(a) is amended and aligns with the 2018
Amendments to the disclosure provisions of R.C.M. 404A.
The Discussion accompanying R.C.M. 701(a) is new and
addresses the purposes of discovery in the military justice system.
R.C.M. 701(a)(2)(A)(i) and (a)(2)(B)(i) are amended and
specify the scope of trial counsel discovery obligations. The
provisions broaden the scope of discovery, requiring disclosure of
items that are “relevant” rather than “material” to defense
preparation of a case, and adding a requirement to disclose items
the government anticipates using in rebuttal.
R.C.M. 701(a)(3) and (5), and R.C.M 701(b)(1)(A) and (C)(i)
are amended and require the trial counsel and defense counsel to
provide contact information, rather than addresses, of witnesses.
R.C.M. 701(a)(6)(D) is added and clarifies that trial counsel
must disclose to defense counsel information adverse to the
credibility of prosecution witnesses or evidence. See Strickler v.
Greene, 527 U.S. 263, 280 (1999) (duty to disclose evidence
favorable to the defense applies even in the absence of a request by
the defense and encompasses impeachment evidence as well as
exculpatory evidence).
The Discussion accompanying R.C.M. 701(a)(6) is amended
and reflects that trial counsel may disclose information earlier than
required by R.C.M. 701 or in addition to that required by the rule;
that trial counsel have a continuing duty to disclose information
favorable to the defense and should exercise due diligence and good
faith in learning about such evidence; and should not avoid pursuit
of information that may be harmful to the prosecution’s case; and
to update cross-references.
R.C.M. 701(b)(2) and the accompanying Discussion are
amended and require that the defense provide notice of certain
defenses in writing.
R.C.M. 701(b)(3) is amended and permits the trial counsel to
copy or photograph the items listed for disclosure by the defense.
The Discussion accompanying R.C.M. 701(b)(5) is amended
and updates cross-references.
The Discussion accompanying R.C.M. 701(d) is new and
reflects that trial counsel should advise authorities involved in the
case of their duty to identify, preserve, and disclose to trial counsel
the information required to be disclosed under R.C.M. 701.
R.C.M. 701(e)(1) is amended and conforms to Article 6b, as
amended by Section 5105 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Sections 531(a), 1081(a)(22), and 1081(c)(1)(B) of the
National Defense Authorization Act for Fiscal Year 2018, Pub. L.
No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 701(g)(2) is amended and clarifies the applicability of
Part III of the Manual for Courts-Martial to the examination of
materials by the military judge in camera. R.C.M. 701(g)(2) is
further amended and clarifies the responsibilities of the military
judge with respect to sealing materials and attaching materials
examined to the record of trial.
The Discussion accompanying R.C.M. 701(g)(2) is new and
addresses considerations relevant to the military judge’s authority
to regulate discovery in order to achieve the purposes of the Rule
and reflects that the terms of a sealing order may authorize listed
persons or entities to examine or receive disclosure of sealed
materials outside the procedures set forth in R.C.M. 1113(b).
2023 Amendment: R.C.M. 701(a)(1) is amended to clarify which
papers accompanying the charges must be provided to the defense
as soon as practicable after service of charges.
Rule 702 Depositions
2018 Amendment:
This rule is taken from Rule 702 of the MCM
(2016 edition) with
substantial amendments, clarifies the
circumstances in which depositions may be ordered and their
uses at trial, and reflects Article 49, as amended by Section 5231
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A15-13
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), and the consequence for failure to
object prior to or during a deposition, or to written interrogatories.
2023 Amendment: R.C.M. 702(b) is amended to clarify who can
order a deposition.
Rule 703 Production of witnesses and evidence
2018 Amendment:
This rule is taken from Rule 703 of the MCM
(2016 edition) with
substantial amendments and clarifies the
procedures for requesting the production of witnesses and
evidence at trial. The amendments are as follows:
R.C.M. 703(d) is amended and clarifies the distinction between
expert witnesses and expert consultants. See, e.g., United States v.
Warner, 62 M.J. 114 (C.A.A.F. 2005): United States v. Turner, 28
M.J. 487 (C.M.A. 1989); United States v. Langston, 32 M.J. 894
(A.F.C.M.R. 1991).
R.C.M. 703(g)(3)(C) and (D) and the Discussion accompanying
R.C.M. 703(g)(3)(C) are new and reflect Article 46, as amended by
Section 5228 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), which authorizes the issuance
of a pre-referral investigative subpoena under specified
circumstances.
R.C.M. 703(g)(3)(C)(i) and (ii) and the accompanying
Discussions are new. R.C.M. 703(g)(3)(C)(i) describes
requirements for investigative subpoenas; R.C.M. 703(g)(3)(C)(ii)
establishes a category of investigative subpoenas with respect to
personal or confidential information of a victim consistent with the
Fed. R. Crim. P. 17. This category of investigative subpoenas has
special notice requirements, with appropriate exceptions for
exceptional circumstances. The Discussion accompanying R.C.M.
703(g)(3)(C)(ii) also clarifies the meaning of the term “victim” for
purposes of this provision.
R.C.M. 703(g)(3)(G) and (H) and the Discussion accompanying
R.C.M. 703(g)(3)(H)(i) are amended and reflect Articles 30a and
46, as added and amended, respectively, by Sections 5202 and 5228
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), which authorizes a military judge to
review requests for relief from subpoenas prior to referral. Article
30a was amended by Section 531(b) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131
Stat. 1283 (2017).
R.C.M. 703(g)(4) is new and reflects that a request for subpoena
may be accompanied by a request that the custodian of the evidence
take all necessary step to preserve records and other evidence until
such time as the items may be produced or inspected. Cf. United
States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015).
2023 Amendments by Annex 1 of Executive Order No. 14103
(July 28, 2023):
R.C.M 703(d) is amended to require the Services to promulgate
regulations for government and defense funding of expert witnesses
and consultants.
R.C.M. 703(g)(3)(G), now R.C.M. 703(g)(3)(I), is amended to
allow a named victim in a specification to request relief.
2023 Amendments by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 703(d)(2) is amended to change “shall” to
“may” which recognizes the defense may continue to request
funding of expert witnesses and consultants by the Government.
RCM 703(d)(2) is amended to add the “appointment” of an
expert in addition to the “employment” or “funding” of an expert
to account for the appointment of employees of the government.
R.C.M. 703(d)(2)(A) is amended to expand the types of defense
requests that may be raised before the military judge (previously
the defense could only raise a “denied defense request” before the
military judge).
R.C.M. 703(d)(3) is added to require notice by both parties for
expert witnesses.
R.C.M. 703(g)(3)(D) is added to allow the defense to request a
subpoena, after referral, for witnesses ex parte from the military
judge and require the military judge to issue such a subpoena if the
witness’s testimony is determined to be relevant and necessary.
R.C.M. 703(g)(3)(E) is amended to account for the addition of
R.C.M. 703(g)(3)(D).
R.C.M. 703(g)(3)(F) is added to account for the addition of
R.C.M. 703(g)(3)(D) by requiring notice to all parties for any
subpoena issued for a witness post-referral, unless the military
judge issues a protective order.
All other paragraphs are shifted to accommodate the additions
in R.C.M. 703(g)(3) without further amendment.
Rule 703A Warrant or order for wire or electronic
communication
2018 Amendment: R.C.M. 703A is new and implements
Article 46, as amended by Section 5228 of
the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which
provides authority for a military judge to issue a warrant
or order for the disclosure of the contents of electronic
communications by a provider of an electronic communication
service or a remote computing service. See also 18 U.S.C. §§
2703 and 2711, as amended by Section 5228
of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
Rule 704 Immunity
This rule is taken from Rule 704 of the MCM (2016 edition) as
amended by Exec. Order No. 13825, 83 Fed. Reg. 9889 (March 1,
2018), with the following amendments:
2018 Amendment: The Discussion accompanying R.C.M.
704(d) is amended and updates cross-references and reflects the
reorganization of the punitive articles in the Military Justice Act of
2016. See Articles 79-134, as amended by Sections 5401-5452 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c) of the
National Defense Authorization Act for Fiscal Year 2018, Pub. L.
No. 115-91, 131 Stat. 1283 (2017).
2023 Amendments: R.C.M. 704(c) and its Discussion are
amended to allow a special trial counsel designated by the Secretary
concerned (or that individual’s designee) to grant immunity for
offenses over which a special trial counsel has exercised authority
and not deferred.
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A15-14
R.C.M. 704(d)(1) is amended to allow the special trial counsel
designated by the Secretary concerned (or that individual’s
designee) to grant immunity.
R.C.M. 704(d)(2) is amended to move language from the
Discussion into the rule and clarify that the convening authority,
not the special trial counsel designated by the Secretary concerned,
shall order a person subject to the UCMJ who receives a grant of
immunity to answer questions pursuant to that grant of immunity.
R.C.M. 704(e) is amended to allow the special trial counsel
designated by the Secretary concerned to grant immunity.”
Rule 705 Plea agreements
This rule is taken from Rule 705 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
R.C.M. 705 and the accompanying
Discussions are substantially amended and reflect Article 53a, as
added by Section 5237 of the Military Justice Act of 2016, Division
E of the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), as amended by
Sections 531(d) and 1081(c)(1)(H) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017), and Articles 33, 56 and 60, as amended by
Sections 5204, 5301 and 5321 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Article 56
was further amended by Section 531(e) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
The Discussion following R.C.M. 705(d)(1)(C) is new and
reflects the role of the military judge and the members in adjudging
a sentence as part of a plea agreement.
R.C.M. 705(e) of the MCM (2016 edition) is renumbered as
R.C.M. 705(f) and is amended and allows a military judge to notify
a court-martial of the existence of a plea agreement upon either the
request of an accused or to prevent a manifest injustice.
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 705(d)(1) is amended to allow the
Secretary concerned to prescribe limitations pursuant to R.C.M.
705(a), and R.C.M. 705(d)(1)(D) is added to clarify that a plea
agreement may include a specified sentence or portion of a sentence
that shall be imposed by the court-martial.
2023 Amendment by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 705(a) and its Discussion are amended to
account for plea agreements in cases over which a special trial
counsel has exercised authority and not deferred. Under Article
53a, UCMJ, such plea agreements may only be entered into
between a special trial counsel and the accused. Such plea
agreements shall be subject to the same limitations and conditions
applicable to other plea agreements under Article 53a, UCMJ.
However, upon acceptance by the military judge of a general or
special court-martial, a plea agreement shall bind the parties
(including the convening authority and special trial counsel in the
case of a plea agreement entered into under Article 53a(a)(3)) and
the court-martial. R.C.M 705(a) requires plea agreements to be
subject to limitations as prescribed by the Secretary concerned in
order to provide clarity regarding the binding authority of a plea
agreement.
R.C.M. 705(b) and its Discussion are amended to account for
plea agreements in cases over which a special trial counsel has
exercised authority and not deferred. R.C.M. 705(b)(3) is added to
allow a promise by either the convening authority or a special trial
counsel to take other action within their authority to be included in
the plea agreement.
R.C.M. 705(c) is amended to account for plea agreements in
cases over which a special trial counsel has exercised authority and
not deferred.
R.C.M. 705(e) and its Discussion are amended to account for
plea agreements in cases over which a special trial counsel has
exercised authority and not deferred.
Rule 706 Inquiry into the mental capacity or mental
responsibility of the accused
This rule is taken from Rule 706 of the MCM (2016 edition) with
the following amendments:
2023 Amendments by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 706(b)(1) is amended to add authority for
a military judge or magistrate to order an inquiry into the mental
capacity or mental responsibility of an accused before referral, in
accordance with R.C.M. 309.
R.C.M. 706(c)(3)(A) is amended to clarify that the only counsel
entitled to the board’s ultimate conclusions are government and
defense counsel.
2023 Amendment by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 706(b) is amended to allow any applicable
convening authority to order an inquiry into the mental capacity or
mental responsibility of an accused. An “applicable convening
authority” means a convening authority with authority over the
accused.
Rule 707 Speedy trial
This rule is taken from Rule 707 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M.
707(b)(3)(A) is amended and
clarifies the effect of dismissal of charges or mistrial on the 120-
day time period in which to bring a case to trial. The rule addresses
both the circumstance where the accused, on the date of dismissal
or mistrial, is under pretrial restraint and the circumstance where
the accused, on the date of dismissal or retrial, is not under pretrial
restraint. See United States v. Anderson, 50 M.J. 447 (C.A.A.F.
1997).
R.C.M. 707(e) is amended and clarifies the consequences of a
plea of guilty on speedy trial issues as to the offense to which a plea
of guilty is entered.
R.C.M. 707(f) is new and mandates that the trial of an accused
held in pretrial restraint under R.C.M. 304(a)(3)-(4) be given
priority, consistent with the Speedy Trial Act, see 18 U.S.C. § 3164
and Article 10, as amended by Section 5121 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2023 Amendments by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 707(c)(1) is amended to remove the
language authorizing the Secretary concerned to prescribe
regulations allowing for a military judge to resolve requests for
pretrial delay.
R.C.M. 707(e) is amended to clarify that the accused is waiving,
not forfeiting, speedy trial issues by pleading guilty.
2023 Amendment by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 707(b)(3)(D) is amended to clarify when
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND THE RULES FOR
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the 120-day time period for a rehearing begins for charges and
specifications referred by special trial counsel.
R.C.M. 707(c)(1) and its Discussion are amended to require
notification to the defense regarding pretrial delay requests. The
rule is further amended by removing language from the Discussion
and adding it to the rule to authorize the convening authority to
delegate approval of pretrial delay requests to the preliminary
hearing officer.
The Discussion accompanying R.C.M. 707(e) is removed.
CHAPTER VIII. TRIAL PROCEDURE GENERALLY
Rule 801 Military judge’s responsibility; other matters
This rule is taken from Rule 801 of the MCM (2016 edition) with
the following amendments:
2018 Amendments: The Discussion accompanying R.C.M.
801(a) is amended and reflects the elimination of special courts-
martial without a military judge. See Article 16, as amended by
Section 5161
of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(C) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
The Discussion accompanying R.C.M. 801(a)(3) is amended
and updates a cross-reference.
R.C.M. 801(a)(6) and the Discussion accompanying R.C.M.
801(a)(6)(E) are amended and reflect Article 6b, as amended by
Section 5105 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by
Sections 531(a), 1081(a)(22), and 1081(c)(1)(B) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017). The Discussion accompanying
R.C.M 801(a)(6)(E) also clarifies the meaning of the term “victim
of an offense under the UCMJ” as it pertains to this rule.
R.C.M. 801(e) and (f) are amended and reflect the elimination
of special courts-martial without a military judge. See Article 16,
as amended by Section 5161
of the
Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
The Discussion accompanying R.C.M. 801(e)(4) is amended
and updates cross-references, and reflects the elimination of special
courts-martial without a military judge. See Article 16, as amended
by Section 5161
of the
Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(C) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
The Discussion accompanying R.C.M. 801(e)(5) is amended
and reflects the elimination of special courts-martial without a
military judge. See Article 16, as amended by Section 5161
of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(C) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 802 Conferences
This rule is taken from Rule 802 of the MCM (2016 edition) with
the following amendments.
2018 Amendment: R.C.M. 802
(a) is amended and reflects
Article 30a, as added by Section 5202 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
amended by Section 531(b) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. L. No. 155-91, 131 Stat. 1283
(2017), which provides the authority for military judges to preside
over specified proceedings prior to referral.
Subsection (f) is amended and reflects the elimination of special
courts-martial without a military judge. See Article 16, as amended
by Section
5161 of the
Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(C) of the National Defense Authorization Act
of 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 803 Court-martial sessions with members under Article
39(a)
This rule is taken from Rule 803 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
R.C.M. 803 is amended and reflects the
requirement for an entry of judgment in special and general courts-
martial. See Article 60c, as added by Section 5324 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). The last line of R.C.M. 803 is deleted and reflects
the elimination of special courts-martial without a military judge.
See Articles 16, 25, and 53, as amended by Sections 5161, 5182,
and 5236, respectively, of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Sections 1081(c)(1)(C) and 1081(c)(1)(G) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
The Discussion accompanying R.C.M. 803 is amended and
reflects changes to court-martial forums, the establishment of
military judge alone sentencing as the default rule, and the
elimination of special courts-martial without a military judge. See
Articles 16, 25, and 53, as amended by Sections 5161, 5182, and
5236, respectively, of the Military Justice Act of 2016, Division E
of the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Sections 1081(c)(1)(C) and 1081(c)(1)(G) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
Rule 804 Presence of the accused at trial proceedings
This rule is taken from Rule 804 of the MCM (2016 edition) with
the following amendments:
2018 Amendments: The Discussion accompanying R.C.M.
804(a) is new and reflects the accused’s entitlement to travel
allowances for official travel to attend military justice proceedings.
APPENDIX 15
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R.C.M. 804(b) is amended and reflects the requirements of
Article 39(b) with respect to remote proceedings and the physical
presence of defense counsel with the accused, and prohibits the use
of remote sessions for presentencing proceedings.
2023 Amendments by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 804(b) is amended to allow the use of
remote sessions for presentencing proceedings under certain
specified circumstances.
2023 Amendment by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 804 is rewritten to consolidate the rules
pertaining to presence at court-martial proceedings generally.
R.C.M. 804(a) contains the provisions regarding the presence of
the accused at court-martial proceedings previously addressed in
R.C.M. 804. R.C.M. 804(a)(3) addresses the use of audiovisual
technology to accomplish the presence of the accused in specific
circumstances and allows the military judge to order presence by
remote means for Article 39(a) sessions. R.C.M. 804(a)(3)(B)
limits the accused’s presence by remote means to guilty pleas and
presentencing procedures unless: exceptional circumstances exist,
the defense counsel is co-located with the accused, and the accused
consents.
The Discussion accompanying R.C.M. 804(a) is deleted to
remove an incorrect reference to the Joint Travel Regulations.
The Discussion accompanying R.C.M. 804(a)(2) (formerly
R.C.M. 804(c)) is amended to remove the language not requiring
the accused to consent to presence by remote means, consistent
with amendments to R.C.M. 804.
The Discussion in R.C.M. 804(c)(1) (formerly R.C.M. 805(b))
is amended to remove the reference to member sentencing.
R.C.M. 804(d) (formerly R.C.M. 805(c)) is amended to account
for special trial counsel presence in cases where a special trial
counsel is detailed. A special trial counsel may determine his or her
presence is not required, so long as another trial counsel, who is
qualified according to R.C.M. 502(d), is present. The rule is also
amended by explicitly providing the option in Article 39(a)
sessions for counsel to satisfy the presence requirement through the
use of audiovisual technology pursuant to R.C.M. 804(a)(3).
R.C.M. 804(e) is new and permits the remote presence of the
victim and victims’ counsel in limited circumstances.
Rule 805 [Reserved]
This rule is taken from Rule 805 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 805
(a) is amended and reflects the
elimination of special courts-martial without a military judge. See
Article 16, as amended by Section 5121 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
R.C.M. 805(b) and the accompanying Discussion are amended
and reflect Articles 16 and 25, as amended by Sections 5161 and
5182 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(C) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017), which
requires the use of fixed panel sizes, permits the accused the ability
to request specified officer or enlisted composition, and permits the
accused to elect sentencing by members,
except where the court-
martial is composed of a military judge alone.
R.C.M. 805(c) is amended and reflects the requirements of
Article 39(b), with respect to remote proceedings and the physical
presence of defense counsel with the accused, and prohibits the use
of remote means to conduct presentencing proceedings.
The Discussion accompanying R.C.M. 805(c) is amended and
updates cross-references.
R.C.M. 805(d) is amended and reflects Article 29(f), as amended
by Section 5187 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), which provides the option
of playing an audio recording of the trial to newly detailed panel
members and judges.
2023 Amendment: R.C.M. 805 is incorporated into an updated
R.C.M. 804. R.C.M. 805 is now “Reserved” for future use.
Rule 806 Public trial
This rule is taken from Rule 806 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 806(b)(1) is amended and deletes a
provision addressing exclusion of spectators, which is now
addressed in R.C.M. 806(b)(2).
R.C.M. 806(b)(2) is amended and addresses exclusion of
spectators.
R.C.M. 806(b)(3) is amended and addresses the right of the
victim not to be excluded. The Discussion accompanying R.C.M.
806(b)(3) is amended and addresses additional matters pertaining
to victims, and clarifies the meaning of the term “victim of an
alleged offense” as it pertains to this rule.
R.C.M. 806(b)(4) and (6) are deleted and the subject matter of
those provisions is now addressed in a new R.C.M. 806(b)(3) and
the accompanying Discussion.
R.C.M. 806(b)(5) is redesignated as R.C.M. 806(b)(4), and the
accompanying Discussion is amended and updates cross-
references.
R.C.M. 806(d) is amended and reflects the elimination of special
courts-martial without a military judge. See Article 16, as amended
by Section 5121 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(C) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 807 Oaths
This rule is taken from Rule 807 of the MCM (2016 edition)
without substantive amendment.
Rules 808 Record of trial
This rule is taken from Rule 808 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 808 is amended and updates a
cross-reference.
The Discussion accompanying R.C.M. 808 is deleted in its
entirety and the subject matter is covered by the 2018
Amendments to R.C.M. 1112.
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Rule 809 Contempt proceedings
This rule is taken from Rule 809 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 809
(a) and (b) and the Discussion
accompanying R.C.M. 809(a) are amended and reflect Article
48(a), as amended by Section 5230 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which uses the term “judicial officer.” The use of the term reflects
that judges are not detailed to courts of inquiry, and that judges
serving on the Court of Appeals for the Armed Forces and the
Courts of Criminal Appeals are not “detailed” to those courts in the
sense that military judges are “detailed” to courts-martial.
The Discussion following R.C.M. 809(a) is further amended and
reflects that, since 2011, the contempt power includes “indirect”
contempts in addition to “direct” contempts. See Article 48, as
amended by Section 542 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011, Pub. L. No. 111-383, 124
Stat. 4218 (2011), as further amended by Section 5230 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(F) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 809(d) is amended and reflects Article 48, as amended
by Section 5230 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(F) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017),
which provides for appellate review of contempt punishments when
imposed by military judges and military magistrates.
R.C.M. 809(e) is amended and addresses when execution of a
sentence of contempt begins to run or becomes effective and the
permissible maximum punishments that may be imposed for
contempt See Article 48, as amended by Section 542 of the Ike
Skelton National Defense Authorization Act for Fiscal Year 2011,
Pub. L. No. 111-383, 124 Stat. 4218 (2011), as further amended by
Section 5230 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(F) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 809(f) is amended and reflects that judicial officers may
exercise contempt authority and requires that a person held in
contempt be informed of the procedures for review of a finding of
contempt. See Article 48, as amended by Section 5230 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(F) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 810 Procedures for rehearing’s, new trials, other trials,
and remands
This rule is taken from Rule 810 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 810(a)-(d) and the accompanying
Discussions are amended and reflect
Article 63, as added by
Section 5327 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as amended by Section 531(i)
of the National Defense Authorization Act for Fiscal Year 2018,
Pub. Law. No. 115-91, 131 Stat. 1283 (2017), which addressed the
limitations on sentences at rehearing’s.
R.C.M. 810(f) is new and reflects Article 66(f)(3), as amended
by Section 5330 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Sections 531(j) and 1081(c)(1)(K) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017), and reflects, but does not expand, current
practice regarding DuBay hearings. See United States v. DuBay, 37
C.M.R. 411 (C.M.A. 1967).
2023 Amendment: R.C.M. 810 is amended to account for
rehearings in cases over which a special trial counsel has exercised
authority. Specifically, R.C.M. 810(f) adds a requirement to notify
special trial counsel because, in cases which were referred by a
special trial counsel, special trial counsel exercise exclusive
authority to determine whether an ordered rehearing is
impracticable.
811 Stipulations
This rule is taken from Rule 811 of the MCM (2016 edition)
without substantive amendment.
Rule 812 Joint and common trials
This rule is taken from Rule 812 of the MCM (2016 edition) with
the following amendment:
2018 Amendment:
The Discussion accompanying R.C.M. 812
is amended and addresses the differences between a joint and a
common trial. See Major Robert S. Stubbs II, USMC, Joint and
Common Trials, 1956 JAG Journal 16 (September-October).
Rule 813 Announcing personnel of the courts-martial and the
accused
This rule is taken from Rule 813 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: R.C.M. 813
(a)(3) is amended and reflects
the elimination of special courts-martial without a military judge.
See Article 16, as amended by Section 5161 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c)(1)(C) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
2023 Amendment: R.C.M. 813 is amended to omit from
announcement during the opening session of the court-martial, the
name, rank, or position of the convening authority, with the
exception of the Secretary concerned, the Secretary of Defense, or
the President.
APPENDIX 15
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CHAPTER IX. TRIAL PROCEDURE THROUGH
FINDINGS
Rule 901 Opening session
This rule is taken from Rule 901 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
The Discussion following R.C.M. 901(a) is
amended and provides a cross-reference reflecting applicable
waiting periods between service of charges and commencement of
trial by special and general courts-martial. See Article 35, as
amended by Section 5206 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 901(d)(2) and the Discussion accompanying R.C.M.
901(d)(3) are amended and reflect Article 27, as amended by
Section 5186 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016) which requires, to the greatest
extent practicable, that at least one defense counsel in a capital case
be learned in the law applicable to capital cases.
R.C.M. 901(e) is amended and provides for the conduct of
designated procedures without the members present, and to reflect
the elimination of special courts-martial without a military judge.
See Article 16, as amended by Section 5161 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c)(1)(C) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
Rule 902 Disqualification of military judge
This rule is taken from Rule 902 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
R.C.M. 902(c)(1) is amended and reflects
Article 30a, as added by Section 5202 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
amended by Section 531(b) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. L. No. 155-91, 131 Stat. 1283
(2017), which provides limited pre-referral authority to the military
judge.
R.C.M. 902(c)(3) is deleted and reflects the elimination of
special courts-martial without a military judge. See Article 16, as
amended by Section 5161
of the
Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
2023 Amendment: R.C.M. 902(b)(3) is amended to clarify that a
military judge is disqualified if the military judge has previously
referred any charges as the special trial counsel in that case.
Rule 902A Application of sentencing rules [Removed]
2018 Amendment: R.C.M. 902A is new and implements Section
5542 of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
establishes effective dates for the amendments made by the
Military Justice Act of 2016 and authorizes the President to
prescribe regulations regarding applicable sentencing rules. R.C.M.
902A applies in cases where charges were referred to trial by court-
martial after the effective date designated by the President for
offenses allegedly committed both before and on or after the
effective date. (Note, see text of Section 531(o), NDAA 2018).
2023 Amendment: R.C.M. 902A is removed. The substance of
the rule is incorporated into the new R.C.M. 925.
Rule 903 Accused’s elections on composition of court-martial
This rule is taken from Rule 903 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 903
and its accompanying
Discussion are amended and reflect Article 25, as amended by
Section 5182 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), which permits an accused to
elect trial by military judge alone or by members, and, if the
accused is enlisted, trial by a panel with at least one-third enlisted
members or by an all-officer panel, and the elimination of special
courts-martial without a military judge. See Article 16, as amended
by Section 5161 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(C) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 904 Arraignment
This rule is taken from Rule 904 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: The Discussion accompanying R.C.M. 904 is
amended and reflects the elimination of special courts-martial
without a military judge. See Article 16, as amended by Section
5161 of the Military Justice Act of 2016, Division E of
the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(C) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 905 Motions generally
This rule is taken from Rule 905 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
The Discussion accompanying R.C.M.
905(b)(3) and (4) and R.C.M. 905(d) is amended and cross-
references are updated.
R.C.M. 905(e) is amended and clarifies the applicability
throughout the Manual of the concepts of waiver and forfeiture.
R.C.M. 905(f) and the Discussion accompanying R.C.M. 905(d)
are amended to reflect the requirement for an entry of judgment in
special and general courts-martial and the elimination of
authentication of the record of trial. See Article 60c, as added by
Section 5324 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 905(h) is amended and authorizes the military judge to
exercise his or her discretion to determine whether an Article 39(a)
session is necessary for the resolution of a motion.
2023 Amendment: R.C.M. 905(e)(2) is amended to require a
motion for failure of a charge to allege an offense to be raised
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A15-19
before adjournment.
The Discussion to R.C.M. 905(g) is amended to account for
special trial counsel.
Rule 906 Motions for appropriate relief
This rule is taken from Rule 906 of the MCM (2016 edition) with
the following amendments.
2018 Amendment: R.C.M. 906(b)(4) is amended and clarifies
the provisions governing amendment of charges after referral.
The Discussion accompanying R.C.M. 905(b)(5) is amended
and updates a cross-reference and
reflects the addition of
Appendix 12A with respect to lesser included offenses. See Article
79, as amended by Section 5402 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
The Discussion accompanying R.C.M. 906(b)(7) is amended
and updates a cross-reference.
R.C.M. 906(b)(10) is amended and addresses the standards
applicable to severance of charges in capital and non-capital
cases.
R.C.M. 906(b)(12) and the accompanying Discussion are
amended and clarify the remedies available to address findings
of unreasonable multiplication of charges in light of the
requirement for segmented sentencing by military judges. See
Article 56, as amended by Section 5301
of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 531(e) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
2023 Amendment: R.C.M. 906(b)(3) is amended to account for
written determinations made by special trial counsel.
The Discussion accompanying R.C.M. 906(b)(10) is amended to
delete the statement that all known charges should ordinarily be
tried at a single court-martial.
R.C.M. 906(b)(12) is amended to delete references to member
sentencing and move language from the Discussion to the rule
stating that the ruling ordinarily should be deferred until after
findings are entered.
Rule 907 Motions to dismiss
This rule is taken from Rule 907 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M.
907
(b)(2)(C) and the accompanying Discussion are amended and
reflect Article 44, as amended by
Section 5226 of the Military
Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding the point when jeopardy attaches in a
court-martial.
R.C.M. 907(b)(2)(D)(iii) is deleted and R.C.M. 907(b)(2)(D)(iv)
is redesignated as R.C.M. 907(b)(2)(D)(iii).
Rule 908 Appeal by the United States
This rule is taken from Rule 908 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 908
(a) is amended and implements
Article 62, as amended by
Section 5326 of the Military Justice
Act of 2016, Division E of
the National Defense Authorization
Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000
(2016), as further amended by Section 531(h) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017), which authorizes a Government
appeal when a military judge sets aside a panel’s guilty verdict. The
Discussion accompanying R.C.M. 908(a) is new.
R.C.M. 908(b)(5) is amended and implements Article 54, as
amended by
Section 5238 of the
Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
requires the certification of the record of trial.
The Discussion accompanying R.C.M. 908(b)(7) is new and
reflects changes to the jurisdiction of the Courts of Criminal
Appeals. See Article 66(b), as amended by Section 5330 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Sections 531(j) and
1081(c)(1)(K) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017), which
provides that the Courts of Criminal Appeals maintain jurisdiction
to review a case under Article 66(b) regardless of the sentence
imposed when the government has filed an appeal under Article 62
or Article 56.
The Discussion accompanying R.C.M. 908(c) is new and
reflects that the Government may appeal a sentence under certain
circumstances and utilizing certain procedures. See Article 56, as
amended by Section 5301 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Section 531(e) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283
(2017).
R.C.M. 908(d) of the MCM (2016 edition) is deleted and reflects
the elimination of special courts-martial without a military judge.
See Article 16, as amended by Section
5163 of the
Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c)(1)(C) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
2023 Amendment: R.C.M. 908(b)(6) is amended to move the
requirement that The Judge Advocate General decides whether to
file the appeal with the Court of Criminal Appeals to R.C.M.
908(b)(7).
R.C.M. 908(b)(7) is amended to clarify who is responsible for
determining whether to file an appeal on behalf of the United
States.
The Discussion accompanying R.C.M. 908(c) is amended to
recognize that a special trial counsel may ask the Judge Advocate
General to certify a case to the Court of Appeals for the Armed
Forces.
Rule 909 Capacity of the accused to stand trial by court-martial
This rule is taken from Rule 909 of MCM (2016 edition) with
the following amendments:
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A15-20
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 909(c)(2), now R.C.M. 909(c)(3), is added
to permit the government or the accused to request that the military
judge conduct a hearing to determine the mental capacity of the
accused any time prior to referral.
2023 Amendment by Annex 2 of Executive Order No. 14103
(July 28, 2023):
R.C.M. 909(c)(2) is added to clarify that the convening
authority, not the special trial counsel, takes action on the results of
an inquiry under R.C.M. 706.
R.C.M. 909(g) is amended to account for cases in which a
special trial counsel has exercised authority and not deferred.
Rule 910 Pleas
This rule is taken from Rule 910 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 910
(a)(1) is amended and
implements Article 45, as amended by Section 5227 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), which permits a military judge to accept a guilty
plea in a capital case except where death is the mandatory
punishment. Although the 2016 Amendments eliminated the
sentence of death as a mandatory punishment for any offense, the
prohibition against accepting a guilty plea in a capital case where
death is the mandatory punishment is retained.
The Discussion accompanying R.C.M. 910(a)(1) is amended
and reflects the addition of Appendix 12A with respect to lesser
included offenses and reflects that no offenses carry a mandatory
penalty of death. See Article 79, as amended by Section 5402 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
R.C.M. 910(c)(1) and the accompanying Discussion are
amended and reflect changes to plea agreements and the sentencing
proceeding in courts-martial. See Article 53a, as added by Section
5237 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), as amended by Sections 531(d) and
1081(c)(1)(H) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017); and
Article 56, as amended by Section 5301 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 531(e) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
R.C.M. 910(c)(6) and the accompanying Discussion are new and
reflect forum options for sentencing under the Military Justice Act
of 2016. See Articles 53 and 56, as amended by Sections 5236 and
5301 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016). Article 56 was further amended by
Section 531(e) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 910(f) and the accompanying Discussions are amended
and reflect changes to plea agreement practice in the military as a
result of the Military Justice Act of 2016. See Article 53a, as added
by Section 5237 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as amended by Sections
531(d) and 1081(c)(1)(H) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283
(2017).
R.C.M. 910(g) is amended and implements Articles 45 and 19,
as amended by Sections 5227 and 5163 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which removed the requirement for the Services to maintain
separate rules authorizing entry of a finding of guilty without a vote
when a guilty plea has been accepted and eliminated special courts-
martial without a military judge.
R.C.M. 910(h) is amended by deleting paragraph (3) and reflects
the manner in which the military judge addresses the plea
agreement under R.C.M. 910(f).
R.C.M. 910(i) is deleted. The requirement for a certified record
of guilty plea proceedings is governed by R.C.M. 1112, 1114 and
1305.
R.C.M. 910(j) is redesignated as 910(i) and reflects the
application of plain-error review to errors concerning guilty pleas
raised for the first time on appeal. See Article 45, as amended by
Section 5227 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
2023 Amendments: R.C.M. 910(f)(8) is added to establish the
criteria a military judge shall use to reject a plea agreement.
R.C.M. 910(a) and its Discussion are amended to remove
references to guilty pleas in cases in which death is the mandatory
punishment. There no longer are any offenses for which a death
sentence is mandatory.
The Discussions accompanying R.C.M. 910(f)(5) and (g) are
amended to delete references to member sentencing.
R.C.M. 910(j) is amended to add that an accused waives any
objections for non-jurisdictional defects in a plea of guilty.
The Discussion accompanying R.C.M. 910(j) is amended to
change “forfeiture” to “waiver” and remove the “harmless error”
standard.
Rule 911 Randomization and assembly of the court-martial
panel
This rule is taken from Rule 911 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion accompanying R.C.M. 911 is
amended and authorizes the convening authority to refer charges to
a special court-martial consisting of a military judge alone under
such limitations as the President may prescribe by regulation, and
updates a cross-reference. See Articles 16 and 19, as amended by
Sections 5161 and 5163 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2023 Amendments: R.C.M. 911 is amended to require
randomization of court-martial members prior to assembly.
Additionally, the amended rule describes the role of the military
judge in the randomization process, to include determining how
many members must be present at the initial session, how to
temporarily excuse members, and how to cause members to be
sworn before announcing the assembly of the court-martial.
R.C.M. 911(g) is amended to account for the randomization
process in R.C.M. 911 and clarifies that each party is entitled to a
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peremptory challenge when additional members not previously
subject to peremptory challenge are present and sworn.
The Discussion accompanying R.C.M. 911 is amended to delete
reference to the order in which members are sworn at a court-
martial.
Rule 912 Challenge of selection of members; examination and
challenges of members
This rule is taken from Rule 912 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 912(a)(1) is amended and reflects
the authority of the convening authority to detail alternate
members. See Article 29, as amended by Section 5187
the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
The Discussion accompanying R.C.M. 912(a)(1) is amended
and updates a cross-reference.
R.C.M. 912(b)(3) is amended and clarifies that failure to make
a timely motion challenging the selection of the members shall
forfeit, but not waive, the improper selection, except in specified
circumstances where the failure to make a timely motion neither
forfeits nor waives the improper selection.
R.C.M. 912(f)(4) is amended and
implements Article 25, as
amended by Section 5182 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
eliminates the prohibition against detailing enlisted members
from the same unit.
The Discussion accompanying R.C.M. 912(f)(4) is amended
and updates a cross-reference.
R.C.M. 912(f)(5) is new and addresses the assignment of
random numbers to members following challenges for cause for
the purpose of impaneling members and alternate members as set
forth in R.C.M. 912A.
The Discussion accompanying R.C.M. 912(g)(2) is amended
and reflects the requirement for a specified number of members
in special and general courts-martial. See Article 16, as amended
by Section 5161
of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(C) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 912
(h) of the MCM (2016 edition) is deleted and
R.C.M. 912(i) is redesignated as R.C.M. 912(h). This reflects the
elimination of special courts-martial without a military judge. See
Article 16, as amended by Section 5161
of the
Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
2023 Amendments: R.C.M. 912 is amended to account for the
randomized selection of detailed members to serve on a court-
martial panel as required by R.C.M. 911. R.C.M. 912(f)(5) is
deleted because R.C.M. 911 requires assignment of random
numbers to detailed members prior to examination and challenges.
R.C.M. 912(g) is amended to describe the updated process for
challenging a member peremptorily. See Article 41(c) and United
States v. Carter, 25 M.J. 471 (C.M.A. 1988).
Rule 912A Impaneling members and alternate members
2018 Amendment: R.C.M. 912A
is new and implements
Articles 16, 25, and 29, as amended by Sections 5161, 5182, and
5187 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), regarding the process for impaneling
members after challenges for cause and peremptory challenges, and
the process for impaneling alternate members if authorized by the
convening authority. Article 16 was further amended by Section
1081(c)(1)(C) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
2023 Amendment: R.C.M. 912A(a) is amended to account for
the randomization process in R.C.M. 911. Additionally, R.C.M.
912A(a)(4) is amended to prevent notifying alternate members that
they are alternate members until the start of deliberations.
R.C.M. 912A(c) and (d) are amended to describe how the
military judge orders additional detailed members to be present at
the court-martial when the number of members is insufficient.
R.C.M. 912A(d)(3)(C) is added to allow the convening authority
to instruct the military judge to prioritize impaneling a specific
number of alternate enlisted members before impaneling alternate
officer members.
Rule 912B Excusal and replacement of members after
impanelment
2018 Amendment: R.C.M. 912B
is new and implements Article
29, as amended by Section 5187 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
prescribes the process by which impaneled members may be
excused and replaced by alternate members or additionally detailed
members.
Rule 913 Presentation of the case on the merits
This rule is taken from Rule 913 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion to R.C.M. 913(c)(2) is
amended and updates a cross-reference
.
The Discussion to R.C.M. 913(c)(3) is amended and deletes the
first sentence, which reflected that views and inspections should be
permitted only in extraordinary circumstances.
Rule 914 Production of statements of witnesses
This rule is taken from Rule 914 of MCM (2016 edition) with
the following amendments:
2023 Amendments: R.C.M. 914(e) is amended to address
situations in which there is a failure to produce a statement in good
faith.
R.C.M. 914(e) is amended to change “trial counsel” to
“Government.”
APPENDIX 15
A15-22
Rule 914A Use of remote live testimony of a child
This rule is taken from Rule 914A of the MCM (2016 edition)
without amendment.
Rule 914B Use of remote testimony
This rule is taken from Rule 914B of MCM (2016 edition)
without amendment.
Rule 915 Mistrial
This rule is taken from Rule 915 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: The Discussion accompanying R.C.M.
915(b) is deleted and reflects the elimination of special courts-
martial without a military judge.
See Article 16, as amended by
Section 5161
of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(C) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 916 Defense
This rule is taken from Rule 916 of MCM (2016 edition) with
the following amendments:
2018 Amendment:
The Discussion accompanying R.C.M.
916(e)(2)(B) is amended to align with Article 128, as amended by
Section 5441
of the
Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by
1081(c)(1)(P) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 916(e)(3) and (5) and the Discussion accompanying
R.C.M. 916(j) and R.C.M. 916(l)(2) are
amended and reflect the
reorganization of the punitive articles in the Military Justice Act of
2016. See Articles 79-134, as amended by Sections 5401-5452 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
The Discussion accompanying R.C.M. 916(k)(1) is amended
and updates a cross-reference.
R.C.M. 916(k)(3)(B) and the accompanying discussion are
amended and reflect
the elimination of special courts-martial
without a military judge. See Article 16, as amended by Section
5161 of the
Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(C) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
2022 Amendment: R.C.M. 916(e)(3) and (e)(5) are amended
to include Article 128b, UCMJ.
2023 Amendment: R.C.M. 916(e)(2) is amended to change
“assault with a dangerous weapon or means likely to produce
death or grievous bodily harm” to “aggravated assault.”
Rule 917 Motion for finding of not guilty
This rule is taken from Rule 917 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 917
(a) is amended and allows a
military judge to rule on a motion under R.C.M. 917 after a panel
returns findings, similar to the practice in U.S. District Court. See
Fed. R. Crim. P. 29; United States v. Wilson, 420 U.S. 332 (1975).
The Discussion accompanying R.C.M. 917(a) is new and refers
to R.C.M. 908(a) concerning the ability of the Government to file
an interlocutory appeal when the military judge sets aside a panel’s
finding of guilty. See Article 62, as amended by Section 5326 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 531(h) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
The Discussion accompanying R.C.M. 917(c) is amended and
reflects the elimination of special courts-martial without a military
judge. See Article 16, as amended by Section 5161
of the
Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(C) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 917(f) is amended and permits the military judge to
reconsider a denial of a motion for a finding of not guilty at any
time before entry of judgment. See Article 60c, as added by Section
5324 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016).
Rule 918 Finding
This rule is taken from Rule 918 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: The Discussion accompanying R.C.M.
918(a)(1) is amended and clarifies
when the fact finder may
consider a lesser included offense if the evidence fails to prove the
offense charged. See Article 79, as amended by Section 5402 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
The Discussion accompanying R.C.M. 918(a)(2) is amended
and reflects the reorganization of the punitive articles in the
Military Justice Act of 2016. See Articles 79-134, as amended by
Sections 5401-5452 of the Military Justice Act of 2016, Division E
of the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c) of the National Defense Authorization Act for
Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 918(b) is amended and requires the entry of special
findings prior to the entry of judgment. See Article 60c, as added
by Section 5324 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
2023 Amendment: R.C.M. 918(a)(1)(B) is amended to remove
“named” before “lesser included offenses.”
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Rule 919 Argument by counsel on findings
This rule is taken from Rule 919 of the MCM (2016 edition) with
the following amendment:
2018 Amendment: R.C.M. 919
(c) is amended and addresses the
consequences of a failure to object to error in argument.
Rule 920 Instructions on findings
This rule is taken from Rule 920 of the MCM (2016 edition) with
the following amendments:
2018 Amendment:
The Discussion accompanying R.C.M.
920(e) is amended and reflects the two statutory grounds by which
to designate an offense as lesser included: those offenses that are
“necessarily included” in the greater offense, and those offenses
designated in regulations prescribed by the President that are
“reasonably included” in the greater offense. See Article 79, as
amended by Section 5402 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 920(f) is amended and addresses the consequences of a
failure to object to an instruction or the omission of an instruction.
2023 Amendment: R.C.M. 920(g) is added to prohibit
instructions on a lesser included offense when both parties agree to
its waiver.
Rule 921 Deliberations and voting on findings
This rule is taken from Rule 921 of the MCM (2016 edition) with
the following amendment:
2018 Amendment:
R.C.M. 921(c) and the accompanying
Discussion are amended and reflect Article 52, as amended by
Section 5235 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), concerning voting on findings
in a non-capital case.
Rule 922 Announcement of findings
This rule is taken from Rule 922 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 922(a) is amended and conforms to
Article 53, as amended
by Section 5236 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c)(1)(G) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
R.C.M. 922
(b) and the accompanying Discussion are amended
and conform to changes regarding the acceptance of guilty pleas by
the military judge and the announcement of findings by the
members.
2023 Amendment: The Discussion accompanying R.C.M. 922(a)
is removed.
Rule 923 Impeachment of findings
This rule is taken from Rule 923 of MCM (2016 edition) without
substantive amendment.
Rule 924 Reconsideration of findings
This rule is taken from Rule 924 of the MCM (2016 edition) with
the following amendments:
2018 Amendment: R.C.M. 924
(b) is amended and implements
Article 52, as amended by Section 5235 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which reflects the changes in voting requirements. The subsection
is also amended and reflects the elimination of any provisions
imposing a mandatory death penalty.
R.C.M. 924(c) is amended and reflects the requirement for an
entry of judgment and the elimination of authentication of the
record of trial. See Article 60c, as added by Section 5324 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
2023 Amendment: R.C.M. 924(c)(2) is amended to replace “in
the case of a complete acquittal” with “where there are no findings
of guilty.”
Rule 925 Application of sentencing rules
2023 Amendment: This rule is new and identifies which
sentencing rules apply at a court-martial in order to carry out the
amendments of Articles 53 and 56, UCMJ, as enacted by Section
539E of FY2022 NDAA. R.C.M. 925 determines the applicable
sentencing rules based on the date of an offense for which the
accused has been found guilty. If the accused is convicted of any
offense committed on or before December 27, 2023, the court-
martial shall follow the sentencing rules in effect at the time of the
offense. R.C.M. 902A(d), regarding the accused’s irrevocable
election made prior to arraignment, is no longer applicable. If the
accused is convicted only of non-capital offenses occurring after
December 27, 2023, then the court-martial shall follow R.C.M.
925(c)(2), and the military judge shall sentence the accused.
CHAPTER X. SENTENCING
Rule 1001 Presentencing procedure
This rule is taken from Rule 1001 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1001 is
amended and implements
Articles 25, 53 and 56, as amended by Sections 5182, 5236, and
5301 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016). Article 56 was further amended by
Section 531(e) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017). R.C.M.
1001(b)(1), (b)(2), and (h) set forth the consequences for failure to
object to matters presented by the prosecution or argument on
sentence.
The Discussion following R.C.M. 1001(b)(3)(C) is amended and
reflects the new requirement for the entry of judgment in R.C.M.
1111.
R.C.M. 1001(c) is new and incorporates R.C.M. 1001A of the
MCM (2016 edition).
2023 Amendments: R.C.M. 1001(a)(1) is amended to remove the
reference to the accused’s sentencing election to reflect the
APPENDIX 15
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amendments of Articles 53 and 56, as enacted by Section 539E of
FY2022 NDAA.
R.C.M. 1001(b)(2) and R.C.M. 1001(b)(3)(B) are amended to
relocate a provision designating the point at which a summary
court-martial conviction is admissible evidence of character of
prior service of the accused during a sentencing proceeding.
R.C.M. 1001(b)(4) is amended to include additional aggravating
factors, such as pregnancy and gender identity.
R.C.M. 1001(c)(1) is amended to permit a crime victim to make
a request for a specific sentence in a non-capital case in sentencing
proceedings conducted by a military judge in accordance with
Section 539E of FY2022 NDAA.
R.C.M. 1001(c)(2)(B) is amended to strike the word “directly”
in subparagraph (c)(2)(B) to allow victims to discuss the impacts of
crimes upon others, such as family members.
R.C.M. 1001(c)(2)(D)(i) is amended and a Discussion section is
added to reflect that, in capital courts-martial, the “right to be
reasonably heard” may not include a recommendation of a specific
sentence. See Booth v. Maryland, 482 U.S. 496 (1987); Bosse v.
Oklahoma, 580 U.S. 1 (2016) (per curium).
R.C.M. 1001(c)(2)(D)(ii) is amended to add the right of a crime
victim to be heard on any objection to an unsworn statement.
R.C.M. 1001(c)(3) is amended to permit a crime victim to
recommend a specific sentence. However, note that R.C.M.
1001(c)(2)(D)(i) is amended to prohibit a crime victim’s statement
in a capital case from including a recommendation of a specific
sentence.
R.C.M. 1001(c)(5) is amended to allow a crime victim’s
unsworn statement to be made by the crime victim, counsel
representing the crime victim, or both. It is also amended to remove
the procedure for reviewing a victim’s proffer of an unsworn
statement in sentencing proceedings conducted by military judges
in accordance with Section 539E of FY2022 NDAA. The purpose
of the amendment is to streamline the process, allowing victims to
express crime impacts and allowing defense counsel to object or
rebut as necessary.
R.C.M. 1001(f)(1) is amended to clarify that during
presentencing proceedings, a dispute as to the production of a
witness at Government expense is a matter within the discretion of
the military judge.
R.C.M. 1001(h) is amended to specify that the trial counsel’s
argument may not speak for the convening authority or any other
higher authority. That revision prohibits a trial counsel’s sentencing
argument from purporting to speak on behalf of a special trial
counsel’s leadership.
Rule 1002 Sentencing determination
This rule is taken from Rule 1002 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: This rule and its accompanying Discussions
amend R.C.M. 1002 of the MCM (2016 edition) in its entirety and
implement Articles 25, 53, 53a, and 56, as amended by Sections
5182, 5236, 5237, and 5301 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), which
provides an accused the option to elect sentencing by members in
lieu of sentencing by military judge in a general or special court-
martial with a military judge and members; reflects that sentences
adjudged by a military judge shall provide for segmented sentences
of confinement and fines; and sets forth statutory guidance for
determining an appropriate sentence. Article 53a was further
amended by Sections 531(d) and 1081(c)(1)(H) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. L. No. 115-
91, 131 Stat. 1283 (2017).
Article 56 was further amended by Section 531(e) of the
National Defense Authorization Act for Fiscal Year 2018, Pub. L.
No. 115-91, 131 Stat. 1283 (2017).
2023 Amendments: R.C.M. 1002(a)(1) and its accompanying
Discussion are amended to clarify that plea agreements for
sentences less than the mandatory minimum are prohibited, unless
otherwise authorized. “Unless otherwise authorized” provides for
the possibility that future amendments to the UCMJ may
specifically authorize plea agreements for sentences less than the
mandatory minimum for violations of Article 118(1) and (4),
UCMJ.
R.C.M. 1002(a)(2) is added to incorporate sentencing
parameters and criteria. R.C.M. 1002(a)(2), now R.C.M.
1002(a)(3), is amended to clarify when a military judge may reject
a plea agreement, in accordance with the Section 539E of FY2022
NDAA.
R.C.M. 1002(b)-(d) are amended and combined into subsection
(b), deleting all references to sentencing forum selection and
sentencing by members in noncapital cases.
R.C.M. 1002(e) is incorporated into an updated R.C.M. 1004.
The remaining sections are renumbered accordingly.
Rule 1003 Punishments
This rule is taken from Rule 1003 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1003(b)(2) is amended by adding
the last sentence, which is consistent with United States v.
Warner, 25 M.J. 64 (C.M.A. 1987).
R.C.M. 1003(c)(1)(C) is amended and removes discussion of the
available remedies for Multiplicity and Unreasonable
Multiplication of Charges. Such remedies are addressed in R.C.M.
906(b)(12).
The discussion immediately following R.C.M. 1003(c)(1)(C) is
replaced with language directing practitioners to R.C.M.
906(b)(12).
2023 Amendments: R.C.M. 1003(b) is amended to clarify when
forfeitures greater than two-thirds’ pay may be imposed.
R.C.M. 1003(b)(5) is amended to clarify that the maximum
duration of restriction that may be adjudged is two months. In
calculating the maximum authorized sentence for an accused
sentenced to both confinement and restriction in the same case,
each month of confinement is equal to two months of restriction.
For example, an accused may be sentenced to two months of
restriction and also no more than five months of confinement for
violating Article 91 for contempt or disrespect towards a superior
noncommissioned or petty officer, which has a maximum
confinement of six months.
R.C.M. 1003(c)(1) is amended to reflect the military sentencing
parameter provisions of Section 539E(c) of FY2022 NDAA.
R.C.M. 1003(c)(2)(A)(ii) is deleted and the remaining
subsections are renumbered. Under the amended rule, a
commissioned or warrant officer or a cadet or midshipman can be
sentenced to confinement by a special or general court-martial.
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Rule 1004 Capital cases
This rule is taken from Rule 1004 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1004(a)(2) is amended and
implements Articles 45 and 52, as amended by Sections 5227
and 5235 of the Military Justice Act of 2016, Division E of
the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 1004(b)(4) is amended and clarifies that the members
must find unanimously that at least one of the aggravating factors
under subsection (c) existed beyond a reasonable doubt before
death may be adjudged.
R.C.M. 1004(b)(6) is amended and requires that the military
judge instruct the members of the charges and specifications for
which they shall determine a sentence, because the accused has the
option to choose sentencing by members, rather than the military
judge, for those charges and specifications for which death may not
be adjudged, in accordance with R.C.M. 1002(b)(2).
A Discussion is added after R.C.M. 1004(b)(6) and addresses an
accused’s right to elect sentencing by members in lieu of sentencing
by military judge. See Articles 25 and 53 as amended by Sections
5182 and 5236 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 1004(b)(7) is amended and reflects the requirement that
members must unanimously concur in a finding of the existence of
at least one aggravating factor and unanimously find that the
extenuating and mitigating circumstances are substantially
outweighed by any aggravating circumstances before a sentence of
death may be considered.
R.C.M. 1004(c)(3) is amended and deletes the reference to
Article 120.
R.C.M. 1004(c)(4) is amended and deletes the reference to
Article 120 and reflects the reorganization of the punitive articles.
See Articles 79-134, as amended by Sections 5401-5452 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 1004(c)(6) is amended and deletes the reference to
Article 120.
R.C.M. 1004(c)(7)(B) is amended and adds the phrase “a
separate murder, or” and deletes the reference to forcible sodomy
and reflects the reorganization of the punitive articles. See Articles
79-134, as amended by Sections 5401-5452 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
as further amended by Section 1081(c) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
R.C.M. 1004(c)(8) is amended and deletes the reference to
forcible sodomy and reflects the reorganization of the punitive
articles. See Articles 79-134, as amended by Sections 5401-5452 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 1004(c)(9) is deleted.
R.C.M. 1004(c)(11) is amended and reflects the reorganization
of the punitive articles. See Articles 79-134, as amended by
Sections 5401-5452 of the Military Justice Act of 2016, Division E
of the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c) of the National Defense Authorization Act for
Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 1004(d) is deleted and subsection “(e)” is redesignated
as subsection “(d)” and reflects the reorganization of the punitive
articles and the removal of the mandatory death penalty for spying.
See Section 5414 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016)(eliminating mandatory
death penalty for spying). See Articles 79-134, as amended by
Sections 5401-5452 of the Military Justice Act of 2016, Division E
of the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c) of the National Defense Authorization Act for
Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
2023 Amendment: R.C.M. 1004 is amended to consolidate the
rules pertaining to sentencing in capital cases (R.C.M. 1004-1006,
1008, and 1009). Additionally, it accounts for the authority of
special trial counsel in the referral process and amends the
procedure for member voting in capital cases.
R.C.M. 1004(f)(4) is amended to replace the phrase “shall
constitute waiver of the objection” with “forfeits the objection,”
aligning it with established definitions of waiver and forfeiture.
Rule 1005 Reconsideration of sentence in noncapital cases
This rule is taken from Rule 1005 of the MCM (2016 edition)
with the following amendments:
2018 Amendment:
The Discussion after R.C.M. 1005(e)(1) is
amended and includes instructions to the members regarding the
available range of permissible punishments when a plea agreement
contains sentencing limitations.
The discussion after R.C.M. 1005(e)(5) is amended and
reflects the terms of Article 56(c), as amended by Section 5301
of the Military Justice Act of 2016, Division E of
the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), as further amended by Section 531(e)
of the National Defense Authorization Act for Fiscal Year 2018,
Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 1005(e)(6) is new and implements Article 56(c), as
amended by Section 5301
of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further
amended by Section 531(e) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283
(2017).
R.C.M. 1005(e)(7) is new and allows a military judge to
provide additional instructions as may be required.
R.C.M. 1005(f) is amended and changes “waiver” to
“forfeiture” when a party fails to object to an instruction or to
omission of an instruction before the members close to deliberate
on the sentence.
2023 Amendment: R.C.M. 1005 is a re-written version of
R.C.M. 1009. It explains the process for reconsideration in
APPENDIX 15
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noncapital cases and accounts for the authorities of special trial
counsel in the reconsideration process.
Rule 1006 Deliberations and voting on sentence
This rule is taken from Rule 1006 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1006(a) is amended and
implements Articles 25 and 53
as amended by
Sections 5182 and
5236 of the Military Justice Act of 2016, Division E of
the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 1006(d)(4)(B) of the MCM (2016 edition) is deleted and
R.C.M. 1006(d)(4)(C) is redesignated as (d)(4)(B). This provision
and its accompanying Discussion are amended and implement
Article 52 as amended by
Section 5235 of the Military Justice Act
of 2016, Division E of
the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 1006(d)(6) is new and implements Art 53a, as added by
Section 5237 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), amended by Sections
531(d) and 1081(c)(1)(H) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283
(2017).
R.C.M. 1006(e) is amended and implements Articles 52, 53,
and 56 as amended by Sections 5235, 5236, and 5301 of the
Military Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). Article 56 was further amended by Section
531(e) of the National Defense Authorization Act for Fiscal Year
2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
Rule 1007 Announcement of sentence
This rule is taken from Rule 1007 of the MCM (2016 edition)
with the following amendments:
2018 Amendment:
R.C.M. 1007(a) and its accompanying
Discussion are amended
and implement Article 53 as amended by
Section 5236 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(G) of the National Defense Authorization Act
for Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
R.C.M. 1007(b) and its accompanying Discussion are
amended and conform with changes made to R.C.M. 1002. This
rule reflects the accused’s right to elect member sentencing in lieu
of military judge sentencing for non-capital offenses and the
requirement for the military judge to announce the sentence
promptly after it has been determined.
Rule 1008 Impeachment of sentence
This rule is taken from Rule 1008 of the MCM (2016 edition)
without substantive amendment.
Rule 1009 [Reserved]
This rule is taken from Rule 1009 of the MCM (2016 edition)
with the following amendments:
2018 Amendments: R.C.M. 1009 and its accompanying
Discussion are amended and implement Articles 52 and 53, as
amended by Sections 5235 and 5236 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
regarding reconsideration of the sentence, including in a capital
sentencing proceeding.
R.C.M. 1009(b)(3) is new and reflects the addition of Article
53a, as added by Section 5237 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as amended
by Section 531(d) and 1081(c)(1)(H) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91, 131
Stat. 1283 (2017).
2023 Amendment: R.C.M. 1009 is incorporated into an updated
R.C.M. 1004. R.C.M. 1009 is now “Reserved” for future use.
Portions of the rule that pertained to capital cases were moved to
R.C.M. 1004. Provisions no longer applicable in light of changes to
sentencing procedures enacted by Section 539E of FY2022 NDAA
were deleted.
Rule 1010 Notice concerning post-trial and appellate rights
This rule is taken from Rule 1010 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1010 i
s amended and implements
Articles 60a, 60b, 61, 64-67, and 69, as amended by
Sections 5322,
5323, 5325, 5328, 5329, 5330, 5331, and 5333 of the Military
Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding appellate procedure.
The Discussion following R.C.M. 1010(d) is amended and
corrects a cross-reference.
Rule 1011 Adjournment
This rule is taken from Rule 1011 of the MCM (2016 edition)
without substantive amendment. The Discussion accompanying
R.C.M. 1011 is amended and corrects a cross-reference.
CHAPTER XI. POST-TRIAL PROCEDURE
Rule 1101 Statement of trial results
2018 Amendment: R.C.M. 1101 (“Report of result of trial; post-
trial restraint; deferment of confinement, forfeitures and reduction
in grade; waiver of Article 58b forfeitures”) of the MCM (2016
edition) is deleted.
R.C.M. 1101 (“Statement of trial results”) and its accompanying
Discussion are new. R.C.M. 1101 implements Article 60, as
amended by
Section 5321 of the Military Justice Act of 2016,
Division E of
the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), regarding
the requirement that the military judge of a general or special court-
martial enter into the record of trial a document entitled “Statement
of Trial Results.
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 1101(e) is new and describes how the
Statement of Trial Results may be modified.
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Rule 1102 Execution and effective date of sentences
2018 Amendment: R.C.M. 1102 (“Post-trial Sessions”) of the
MCM (2016 edition) is deleted.
R.C.M. 1102 (“
Execution and effective date of sentences”)
and
its accompanying Discussion are
new. R.C.M. 1102 implements
Articles 57 and 60-60c, as amended by
Sections 5302, 5321, 5322,
5323 and 5324 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), regarding the execution and
effective date of sentences.
2023 Amendment: R.C.M. 1102(b)(1) is amended and R.C.M.
1102(b)(6) is added to clarify language for enlisted reductions in
grade.
Rule 1102A [REMOVED]
2018 Amendment: R.C.M. 1102A (“
Post-trial hearing for
person
found not guilty only by reason of lack of
mental
responsibility”) of the MCM (2016 edition)
is deleted and its
provisions are incorporated into R.C.M. 1105 without substantial
amendment.
Rule 1103 Deferment of confinement, forfeitures, and
reduction in grade; waiver of Article 58b forfeitures
2018 Amendment: R.C.M. 1103 (“Preparation of record of
trial”) of the MCM (2016 edition)
as amended by Exec. Order No.
13825, 83 Fed. Reg. 9889 (March 1, 2018),
is deleted.
R.C.M. 1103 (“Deferment of confinement, forfeitures, and
reduction in grade; waiver of Article 58b forfeitures”) and its
accompanying Discussion are
new. R.C.M. 1103 implements
Article 57(b), as amended by Section 5302 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 1103 also incorporates portions of R.C.M. 1101 and
1107 of the MCM (2016 edition), regarding deferment of
confinement, forfeitures, and reduction in grade, as well as waiver
of Article 58b forfeitures.
2023 Amendment: R.C.M. 1103(a)(1) is amended to add a notice
requirement to special trial counsel in cases over which special trial
counsel has exercised authority when there is a request by an
accused for deferment of confinement, forfeitures, and reduction in
grade and when the convening authority makes a decision on the
request.
Rule 1103A [REMOVED]
2018 Amendment: R.C.M. 1103A (“
Sealed exhibits and
proceedings”) of the MCM (2016 edition) as amended by Exec.
Order No. 13825, 83 Fed. Reg. 9889 (March 1, 2018),
and its
accompanying Discussion are deleted and its provisions are
incorporated into R.C.M. 1113.
Rule 1104 Post-trial motions and proceedings
2018 Amendment: R.C.M. 1104 (“Records of trial:
Authentication; service; loss; correction; forwarding”) of the
MCM (2016 edition) and its accompanying Discussion are
deleted.
R.C.M. 1104 (“Post-trial motions and proceedings”) and its
accompanying Discussion are
new. R.C.M. 1004 implements the
provisions of Articles 60-60c, as amended by
Sections 5321, 5322,
5323, and 5324 of the Military Justice Act of 2016, Division E
of
the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), and authorizes the
filing of post-trial motions before entry of judgment.
R.C.M. 1104 also incorporates portions of R.C.M. 1102 of the
MCM (2016 edition).
2023 Amendment: R.C.M. 1104(e) is amended to require notice
to victims of certain post-trial motions and hearings.
Rule 1105 Post-trial hearing for person found not guilty only
by reason of lack of mental responsibility
2018 Amendment: RCM 1105 (“Matters submitted by the
accused”) of the MCM (2016 edition) and its accompanying
Discussion are deleted.
R.C.M. 1105 (“Post-trial hearing for person found not guilty
only by reason of lack of mental responsibility”) is new and
incorporates
R.C.M. 1102A of the MCM (2016 edition) regarding
a post-trial hearing for a person found not guilty only by reason of
lack of mental responsibility without substantive amendments.
Rule 1105A [REMOVED]
2018 Amendment: R.C.M. 1105A (“
Matters submitted by a
crime
victim”)
of the MCM (2016 edition) and its accompanying
Discussion are deleted and its provisions are substantially
incorporated into R.C.M. 1106A.
Rule 1106 Matters submitted by accused
2018 Amendment: R.C.M. 1106 (“Recommendation of the
staff judge advocate or legal officer”) of the MCM (2016 edition)
and its accompanying Discussion are deleted.
R.C.M. 1106 (“Matters submitted by the accused”) and its
accompanying Discussion are
new and incorporate portions of
R.C.M. 1105 of the MCM (2016 edition) addressing the post-trial
submission of matters to the convening authority by the accused.
Rule 1106A Matters submitted by crime victim
2018 Amendment: R.C.M. 1106A and its accompanying
Discussion are
new and incorporate portions of R.C.M. 1105A of
the MCM (2016 edition) addressing the post-trial submission of
matters by the crime victim to the convening authority.
Rule 1107 Suspension of execution of sentence; remission
2018 Amendment: R.C.M. 1107 (“Action by convening
authority”) of the MCM (2016 edition) and its accompanying
Discussion are deleted.
R.C.M. 1107 (“Suspension of execution of sentence;
remission”) is new and
implements Articles 60-60c, as amended
by Sections 5321, 5322, 5323, and 5324 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
regarding suspension of a sentence and the remission of a sentence
in limited circumstances.
The rule
i
ncorporates portions of R.C.M. 1108 of the MCM
(2016 edition).
APPENDIX 15
A15-28
2023 Amendment: R.C.M. 1107(b)(2) is amended to clarify that
only the convening authority may suspend the unexecuted portions
of the sentence.
Rule 1108 Vacation of suspension of sentence
2018 Amendment: R.C.M. 1108 (“Suspension of execution of
sentence; remission”) of the MCM (2016 edition) and its
accompanying Discussion are deleted.
R.C.M. 1108 (“Vacation of suspension of sentence”) and its
accompanying Discussion are
new. R.C.M. 1108 implements
Articles 60-60c and 72 as amended by Sections 5321, 5322, 5323,
5324, and 5335 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), regarding procedures for
the vacation of a suspension of a sentence.
R.C.M. 1108 incorporates portions of R.C.M. 1109 of the MCM
(2016 edition).
Rule 1109 Reduction of sentence, general and special courts-
martial
2018 Amendment: R.C.M. 1109 (“Vacation of suspension of
sentence”) of the MCM (2016 edition),
as amended by Exec.
Order No. 13825, 83 Fed. Reg. 9889 (March 1, 2018), and it’s
accompanying Discussion,
are deleted.
R.C.M. 1109 (“Reduction of Sentence, general and special
courts-martial”) and its accompanying Discussion are
new.
R.C.M. 1109 implements Articles 60-60c, as amended by Sections
5321, 5322, 5323, and 5324 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), regarding
the reduction of a sentence in specified general or special court-
martials.
R.C.M. 1109 incorporates portions of R.C.M. 1107 of the MCM
(2016 edition).
2023 Amendment: R.C.M. 1109(e) is amended to clarify that
only the convening authority may act on reducing the sentence of
the accused for substantial assistance. R.C.M. 1109(g)(2) is
amended to expand the written requirement to explain when any
part of a sentence is reduced, commuted, or suspended.
Rule 1110 Action by convening authority in certain general and
special court-martial
2018 Amendment: R.C.M. 1110 (“Waiver or withdrawal of
appellate review”) of the MCM (2016 edition) and its
accompanying Discussion are deleted.
R.C.M. 1110 (“Action by convening authority in certain
general and special courts-martial”) and its accompanying
Discussion are
new. R.C.M. 1110 implements Articles 60-60c, as
amended by Sections 5321, 5322, 5323, and 5324 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding the action that the convening authority
may take in certain general and special courts-martial.
R.C.M. 1110
incorporates portions of R.C.M. 1107 of the MCM
(2016 edition).
Rule 1111 Entry of judgment
2018 Amendment: R.C.M. 1111 (“Disposition of the record of
trial after action”) of the MCM (2016 edition)
and its
accompanying Discussion are
deleted.
R.C.M. 1111 (“Entry of judgment”)
and its accompanying
Discussion are
new. R.C.M. 1111 implements Articles 60c and
63, as added by Sections 5324 and 5327 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
Article 63 was amended by Section 531(i) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. L. No. 115-91,
131Stat. 1283 (2017).
The entry of judgment replaces the action by the convening
authority as the means by which the trial proceedings terminate and
the appellate process begins. The judgment replaces the
promulgating order as the document that reflects the outcome of the
court-martial.
2023 Amendment: R.C.M. 1109(e) is amended to clarify the
process for a military judge to modify a judgment.
Rule 1112 Certification of record of trial; general and special
courts-martial
2018 Amendment: R.C.M. 1112 (“Review by a judge advocate”)
of the MCM (2016 edition) and its accompanying Discussion are
deleted.
R.C.M. 1112 (“Certification of record of trial; general and
special courts-martial”) and its accompanying Discussion are new.
R.C.M. 1112 implements Articles 54 and 60-60c, as amended by
Sections 5238, 5321, 5322, 5323, and 5324 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
providing for the certification and contents of records of trial in
general and special courts-martial.
R.C.M. 1112 incorporates portions of R.C.M. 1103 of the MCM
(2016 edition).
The Discussion following R.C.M. 1112(e)(3)(B)(iii) reflects that
the terms of a sealing order may authorize listed persons or entities
to examine or receive disclosure of sealed materials outside of the
procedures set forth in R.C.M. 1113(b).
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 1112(b)(5) is amended to require the
election for application of sentencing rules in effect on or after
January 1, 2019, to be included in the record of trial.
2023 Amendment by Annex 3 of Executive Order No. 14103
(July 28, 2023): The former provisions of R.C.M. 1112(b)(5) are
deleted because the accused’s sentencing election will no longer be
applicable under the sentencing reform measures enacted by
Section 539E(c) of FY2022 NDAA. Subsequent subparagraphs are
redesignated.
Rule 1113 Sealed exhibits, proceedings, and other materials
2018 Amendment: R.C.M. 1113 (“Execution of sentences”) of
the MCM (2016 edition)
and its accompanying Discussion are
deleted.
R.C.M. 1113 (“Sealed exhibits and proceedings”) and its
accompanying Discussion are
new and incorporate R.C.M. 1103A
of the MCM (2016 edition) as amended by Exec. Order No. 13825,
83 Fed. Reg. 9889 (March 1, 2018). R.C.M. 1113(b) conforms to
changes in R.C.M. 1112(c) regarding certification of records of
trial.
The Discussion following R.C.M. 1113(b) is new and reflects
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND THE RULES FOR
COURTS-MARTIAL
A15-29
that the terms of a sealing order may authorize listed persons or
entities to examine or receive disclosure of sealed materials outside
of the procedures set forth in R.C.M. 1113(b).
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 1113(b)(3)(C) is amended to add the Judge
Advocates General to those empowered to authorize the disclosure
of sealed materials. The authority of the Judge Advocates General
applies in cases eligible for review under R.C.M. 1203 or 1204
2023 Amendment by Annex 2 of Executive Order No. 14103
(July 28, 2023): R.C.M. 1113(b)(1) is amended to authorize special
trial counsel to examine and disclose sealed materials for the
purposes of making a determination on referral.
Rule 1114 Transcription of proceedings
2018 Amendment: R.C.M. 1114 (“Promulgating orders”) of
MCM (2016 edition) and its accompanying Discussion are
deleted.
R.C.M. 1114 (“Transcription of proceedings”) and its
accompanying Discussion are
new. R.C.M. 1114 implements
Article 54(c), as amended by Section 5238 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
regarding the contents of a record of trial.
Rule 1115 Waiver or withdrawal of appellate review
R.C.M. 1115 (“Waiver or withdrawal of appellate review”)
and
its accompanying Discussion are
new and are taken from Rule
1110 of the MCM (2016 edition) with the following amendments:
2018 Amendment:
R.C.M. 1115
and its accompanying
Discussion are
new. R.C.M. 1115 implements Article 61, as
amended by Section 5325 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), regarding
waiver or withdrawal of appellate review.
2023 Amendment: R.C.M. 1115(a) is amended to reflect the
expansion of appeal-as-of-right to the Courts of Criminal Appeals
enacted by Section 544 of the James M. Inhofe NDAA for FY 2023,
Pub. L. No. 117-263, 136 Stat. 2395, 2582 (2022) [hereinafter
FY2023 NDAA].
Rule 1116 Transmittal of records of trial for general and special
courts-martial
2018 Amendment: R.C.M. 1116
(“
Transmittal of records of
trial for general and special courts-martial”) and its
accompanying Discussion are
new. R.C.M. 1116
implements
Articles 65 and 66, as amended by Sections 5329 and 5330 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding the transmittal of records of trial in
general and special courts-martial to the Judge Advocate General
and the Courts of Criminal Appeals. Article 66 was further
amended by Sections 531(j) and 1081(c)(1)(K) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
2023 Amendment: R.C.M. 1116(c) is amended to reflect the
expansion of appeal-as-of-right to the Courts of Criminal Appeals
enacted by Section 544 of FY2023 NDAA.
Rule 1117 Appeal of sentence by the United States
2018 Amendment. R.C.M. 1117 (“Appeal of sentence by the
United States”)
and its accompanying Discussion are
new.
R.C.M. 1117 implements Article 56(d), as added by Section 5301
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016), as amended by Section 531(e) of the
National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
2023 Amendments: R.C.M. 1117(a) is amended to permit the
Government to appeal a sentence to the Court of Criminal Appeals
on the grounds that the sentence is a result of an incorrect
application of a sentencing parameter or criterion, as authorized by
Article 56(d), UCMJ.
R.C.M. 1117(c)(3) is amended to require that the statement of
reasons in support of an appeal under R.C.M. 1117(a)(2) identify
the parameters or criteria at issue and the facts supporting how the
parameters or criteria were applied incorrectly. The subsequent
paragraphs are redesignated.
R.C.M. 1117(e), which provided a standard for what is “plainly
unreasonable,” is removed, thereby enabling the application of
those words according to their plain language as provided in Article
66(e). Likewise, R.C.M. 1117(c)(3) is redesignated as R.C.M.
1117(c)(4) and the following words are deleted: “because no
reasonable sentencing authority would adjudge such a sentence in
view of the record before the sentencing authority at the time the
sentence was announced under R.C.M. 1007.
CHAPTER XII. APPEALS AND REVIEW
Rule 1201 Review by the Judge Advocate General
This rule is taken from Rule 1201 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1201 and its accompanying
Discussion are
amended. R.C.M. 1201 implements Articles 65, 66,
and 69, as amended by
Sections 5329, 5330, and 5333 of the
Military Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding the post-trial review of certain records
of trial by the Judge Advocate General. Article 66 was further
amended by Sections 531(j) of and 1081(c)(1)(K) of the National
Defense Authorization Act for Fiscal Year 2018, Pub. Law. No.
115-91, 131 Stat. 1283 (2017).
2023 Amendments: R.C.M. 1201(f)(4) is amended to account for
special trial counsel.
R.C.M. 1201(h) is amended to reflect the limitations of Article
69 appeals in general and special court-martial cases as enacted by
Section 544(c) of FY2023 NDAA.
Rule 1202 Appellate counsel
This rule is taken from Rule 1202 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1202
(b)(2)(A) is amended and
implements Article 65, as amended by
Section 5329 of the
Military Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
APPENDIX 15
A15-30
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(J) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017), addressing the
requirement to detail appellate defense counsel to review cases
eligible for direct appeal.
R.C.M. 1202(c)
and its accompanying Discussion are
new.
R.C.M. 1202(c) implements Article 70, as amended by
Section
5334 of the Military Justice Act of 2016, Division E of
the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016)
,
addressing the requirements
regarding counsel learned in the law applicable to capital cases.
2023 Amendments: Rule 1202(a)(2)(A) is amended to account
for expanded appellate rights pursuant to Section 544 of FY2023
NDAA.
Rule 1202(c) is amended to account for the application of
regulations of the Department of Homeland Security that would
govern the compensation of appellate defense counsel for cases
arising in the Coast Guard. Also, the word “death” is substituted for
“the death penalty”; this change is stylistic in nature and not
substantive.
Rule 1203 Review by a Court of Criminal Appeals
This rule is taken from Rule 1203 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1203
and its accompanying
Discussion are amended and implements Articles 65, 66, and 69, as
amended by
Sections 5329, 5330, and 5333 of the Military
Justice Act of 2016, Division E of
the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), regarding review by a Court of Criminal Appeals
and minimum tour lengths for appellate military judges. Article 66
was further amended by Sections 531(j) of and 1081(c)(1)(K) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
2023 Amendment: R.C.M. 1203(e)(2) is added to address when
a finding is set aside. The convening authority or special trial
counsel, as applicable, shall determine if a rehearing is
impracticable and, if so, determine whether to dismiss a charge. All
subsequent sections are redesignated.
R.C.M. 1203(e)(2), now R.C.M. 1203(e)(3), is amended to
authorize special trial counsel to determine if a rehearing is
impracticable when a sentence is set aside. If special trial counsel
determines a rehearing is impracticable as to sentencing, special
trial counsel may dismiss the applicable charges. Alternatively, if
special trial counsel makes a determination to not dismiss the
applicable charges, the convening authority shall order a sentence
of no punishment be imposed.
Rule 1204 Review by the Court of Appeals for the Armed
Forces
This rule is taken from Rule 1204 of the MCM (2016 edition)
with the following amendments:
2018 Amendment:
R.C.M. 1204(a)(2) is amended and
implements Article 67, as amended by Section 5331 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), which requires that the Judge Advocate General
provide appropriate notification to all other Judge Advocates
General and the Staff Judge Advocate to the Commandant of the
Marine Corps before certifying a case to the Court of Appeals for
the Armed Forces.
2023 Amendment: R.C.M. 1204 is amended to account for
special trial counsel determining if a rehearing is impracticable.
Rule 1205 Review by the Supreme Court
This rule is taken from Rule 1205 of the MCM (2016 edition)
with the following amendments.
2018 Amendment: R.C.M. 1205(a) is amended
and changes the
reference to “Article 67(h)” and replaces it with “Article 67a.”
Technical corrections are made to references to Article 67(a)(1),
(2), and (3).
Rule 1206 Powers and responsibilities of the Secretary
This rule is taken from Rule 1206 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: The Discussion to R.C.M. 1206(a) is
amended
and changes the reference to “Article 71(b)” and replaces
it with “Article 57(a)(4).”
Rule 1207 Sentences requiring approval by the President
This rule is taken from Rule 1207 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: The Discussion to R.C.M. 1207 is amended
and changes the reference to “Article 71(a)” and replaces it with
“Article 57(a)(3).”
Rule 1208 Restoration
This rule is taken from Rule 1208 of the MCM (2016 edition)
with the following amendments:
2018 Amendment:
R.C.M. 1208(b) is amended and implements
Article 75, as amended by Section 5337 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
R.C.M. 1208 now requires that in certain cases where an executed
part of a court-martial sentence is set aside pending a rehearing,
new trial, or other trial, that those punishments shall not be enforced
from the effective date of the order setting aside that punishment.
R.C.M. 1208(a), 1208(b) and the Discussion to R.C.M.
1208(b) are amended
and insert a reference to entry of a new
judgment in the case.
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 1208(c) is added to clarify the effective
date of the new sentence after a previous sentence has been set aside
or disapproved.
Rule 1209 Finality of courts-martial
This rule is taken from Rule 1209 of the MCM (2016 edition)
with the following amendments:
2018 Amendment:
R.C.M. 1209 and its Discussion are amended
and implement Articles 64, 65, and 69, as amended by
Sections
5328, 5329, and 5333 of the Military Justice Act of 2016,
Division E of
the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), regarding
the finality of courts-martial.
ANALYSIS OF THE COMPOSITION OF THE MANUAL, THE PREAMBLE, AND THE RULES FOR
COURTS-MARTIAL
A15-31
Rule 1210 New trial
This rule is taken from Rule 1210 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1210 is amended and implements
Article 73, as amended by
Section 5336 of the Military Justice
Act of 2016, Division E of
the National Defense Authorization
Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000
(2016), which increases the time in which an accused must file a
petition for a new trial from two years to three years after entry of
judgment. R.C.M. 1210 is amended and includes references to the
entry of judgment in accordance with the addition of Article 60c,
as reflected in Section 5324 of the
Military Justice Act of 2016,
Division E of
the National Defense Authorization Act for Fiscal
Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
The Discussion accompanying R.C.M. 1210(f)(3) is amended
and corrects a cross-reference.
2023 Amendment: R.C.M. 1210(h) is amended to change
“convening authority” to “appropriate authority” to account for
special trial counsel.
CHAPTER XIII. SUMMARY COURTS-MARTIAL
Rule 1301 Summary courts-martial
This rule is taken from Rule 1301 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1301
(b) is amended and implements
Article 20, as amended by Section 5164 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which clarifies that a summary court-martial is not a criminal forum
and a finding of guilt does not constitute a criminal conviction. This
change does not deprive an accused at a summary court-martial of
the protections previously applicable at a summary court-martial,
to include the right to confront witnesses.
R.C.M. 1301(c) and the Discussion to R.C.M. 1301(c) are
amended and align with the prohibition against trying certain
offenses at a summary court-martial and the elimination of the
discrete offense of forcible sodomy in accordance with Sections
5162 and 5439 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
Rule 1302 Convening a summary court-martial
This rule is taken from Rule 1302 of the MCM (2016 edition)
without substantive amendment.
Rule 1303 Right to object to trial by summary court-martial
This rule is taken from Rule 1303 of the MCM (2016 edition)
without substantive amendment.
Rule 1304 Trial procedure
This rule is taken from Rule 1304 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1304(a)(4) and the accompanying
Discussion are new and address the rights of a victim at summary
courts-martial in accordance with Article 6b as amended by
Section 5105
of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by
Sections 531(a), 1081(a)(22) and 1081(c)(1)(B) of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 115-
91, 131 Stat. 1283 (2017). The Discussion accompanying R.C.M.
1304(a)(4)(E) clarifies the meaning of the term “victim” as it
pertains to this provision.
R.C.M. 1304(b)(2)(F)(ii) is amended
and directs the summary court-martial to use the procedures in
R.C.M. 1001 and 1002 and the principles in the remainder of
Chapter X in determining a sentence, with some exceptions.
2023 Amendment by Annex 1 of Executive Order No. 14103
(July 28, 2023): R.C.M. 1304(b)(2)(F) is amended to correct a
scrivener’s error.
Rule 1305 Record of trial
This rule is taken from Rule 1305 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: R.C.M. 1305
(c) and (d) and the Discussion
accompanying R.C.M. 1305(c), (d), and (e) are amended and reflect
Article 54, as amended by
Section 5238 of the
Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016),
which requires a certified record of trial in a summary court-
martial.
R.C.M. 1305(d) is amended to include a cross-reference to
procedures for classified information in the record of trial, and
conforms with changes to Article 54 to provide procedures for the
correction of a record of trial in a summary court-martial.
Rule 1306 Post-trial procedure, summary court-martial
2018 Amendment:
This rule is taken from Rule 1306 of the
MCM (2016 edition) with the following amendments:
R.C.M. 1306 and its accompanying Discussion are
amended
and consolidate the post-trial process for summary courts-martial
into one rule and removes most of the prior cross references to the
post-trial process prescribed for general and special courts-martial.
The rule is further amended to reflect the changes to post-trial and
appellate procedures in summary courts-martial required by the
changes to Articles 60b, 64, and 69 as amended by Sections 5323,
5328, and 5333 of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
2023 Amendment: R.C.M. 1306 is amended to clarify the
convening authority may approve the sentence as adjudged.
Rule 1307 Review of summary courts-martial by a judge
advocate
2018 Amendment: R.C.M. 1307 and its accompanying
Discussion are new. R.C.M. 1307 implements
Articles 64 and
69, as amended by
Sections 5328 and 5333 of the Military Justice
Act of 2016, Division E of
the National Defense Authorization
Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000
(2016), which provides for review of the record of trial of a
summary court-martial by a judge advocate and permits an accused
to apply for appellate review for correction of legal error.
APPENDIX 16
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
A16-1
SECTION I
General Provisions
Rule 101 Scope
This rule is taken from Rule 101 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: Mil. R. Evid. 101(c)(1) is amended and
reflects the elimination of special courts-martial without a military
judge and to include within the definition of military judge a military
magistrate who has been designated
to preside at a special court-
martial or pre-referral proceedings under Article 30a. See Articles
16 and 30a, as amended and added, respectively, by Sections 5161
and 5202 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended and
amended, respectively, by Sections 1081(c)(1) and 531(b),
respectively, of the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 155-91, 131 Stat. 1283 (2017).
Mil. R. Evid. 101(c)(2) is amended and aligns military rules
regarding electronically stored information with Federal civilian
practice and the broader definitions of “writing” contained in R.C.M.
103 and Mil. R. Evid. 1001. The new language is based on Fed. R.
Evid. 101(b)(6).
Rule 102 Purpose
This rule is taken from Rule 102 of the MCM (2016 edition)
without amendment.
Rule 103 Rulings on evidence
This rule is taken from Rule 103 of the MCM (2016 edition)
without amendment.
Rule 104 Preliminary questions
This rule is taken from Rule 104 of the MCM (2016 edition)
with the following amendment:
2018 Amendment: Mil. R. Evid. 104(c) is amended and reflects
the elimination of special courts-martial without a military judge.
See Article 16, as amended by Section 5161
of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
Rule 105 Limiting evidence that is not admissible
against other parties or for other purposes
This rule is taken from Rule 105 of the MCM (2016 edition)
without amendment.
Rule 106 Remainder of or related writings or
recorded statements
This rule is taken from Rule 106 of the MCM (2016 edition)
without amendment.
SECTION II
Judicial Notice
Rule 201 Judicial notice of adjudicative facts
This rule is taken from Rule 201 of the MCM (2016 edition)
without amendment.
Rule 202 Judicial notice of law
This rule is taken from Rule 202 of the MCM (2016 edition)
without amendment.
SECTION III
Exclusionary Rules And Related Matters
Concerning Self-Incrimination, Search And
Seizure, And Eyewitness Identification
Rule 301 Privilege concerning compulsory self-
incrimination
This rule is taken from Rule 301 of the MCM (2016 edition)
without amendment.
Rule 302 Privilege concerning mental examination
of an accused
This rule is taken from Rule 302 of the MCM (2016 edition)
without amendment.
Rule 303 Degrading questions
This rule is taken from Rule 303 of the MCM (2016 edition)
without amendment.
Rule 304 Confessions and admissions
This rule is taken from Rule 304 of the MCM (2016 edition)
with the following amendment:
2018 Amendment: Mil. R. Evid. 304(f)(7) is amended and
reflects the elimination of special courts-martial without a military
judge. See Article 16, as amended by Section 5161
of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
APPENDIX 16
A16-2
Stat. 2000 (2016), as amended by Section 1081(c)(1)(C) of the
National Defense Authorization Act for Fiscal Year 2018, Pub. Law.
No. 115-91, 131 Stat. 1283 (2017).
Rule 305 Warnings about rights
This rule is taken from Rule 305 of the MCM (2016 edition)
without amendment.
Rule 306 Statements by one of several accused
This rule is taken from Rule 306 of the MCM (2016 edition)
without amendment.
Rule 311 Evidence obtained from unlawful searches
and seizures
This rule is taken from Rule 311 of the MCM (2016 edition), as
amended by Exec. Order No. 13825, 83 Fed. Reg. 9889 (March 1,
2018), with the following amendments.
2023 Amendments:
Mil. R. Evid. 311(c)(3) is amended to expand the good faith
exception. See United States v. Perkins, 78 M.J. 381 (C.A.A.F.
2019).
Mil. R. Evid. 311(d)(4)(B) is amended to include references to
omitting a material fact knowingly and intentionally or with reckless
disregard for the truth. See United States v. Garcia, 80 M.J. 379
(C.A.A.F. 2020).
Rule 312 Body views and intrusions
This rule is taken from Rule 312 of the MCM (2016 edition)
without amendment. The Discussion following Mil. R. Evid. 312(f)
has been updated.
Rule 313 Inspections and inventories in the Armed
Forces
This rule is taken from Rule 313 of the MCM (2016 edition)
without amendment.
Rule 314 Searches and requiring probable cause
This rule is taken from Rule 314 of the MCM (2016 edition)
without amendment.
Rule 315 Probable cause searches
This rule is taken from Rule 315 of the MCM (2016 edition) with
the deletion of the Discussion following Mil. R. Evid. 315(a) and the
following additional amendments:
2023 Amendments:
Mil. R. Evid. 315(b)(2) is amended to add a reference to search
warrants under R.C.M. 703A.
Mil. R. Evid. 315(b)(3) is amended to clarify that only a military
judge may issue a warrant for wire or electronic communications.
Mil. R. Evid. 315(d)(3) is amended to add a “Other competent search
authority” to the list of those who may authorize a search.
Rule 316 Seizures
This rule is taken from Rule 316 of the MCM (2016 edition)
without amendment.
Rule 317 Interception of wire and oral
communications
This rule is taken from Rule 317 of the MCM (2016 edition)
without amendment.
Rule 321 Eyewitness identification
This rule is taken from Rule 321 of the MCM (2016 edition)
without amendment.
SECTION IV
Relevancy And Its Limits
Rule 401 Test for relevant evidence
This rule is taken from Rule 401 of the MCM (2016 edition)
without amendment.
Rule 402 General admissibility of relevant evidence
This rule is taken from Rule 402 of the MCM (2016 edition)
without amendment.
Rule 403 Excluding relevant evidence for prejudice,
confusion, waste of time, or other reasons
This rule is taken from Rule 403 of the MCM (2016 edition)
without amendment.
Rule 404 Character evidence, crimes or other acts
This rule is taken from Rule 404 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: Mil. R. Evid. 404(a)(2)(A) is amended and
reflects the reorganization of the punitive articles in the Military
Justice Act of 2016. See Articles 79-134, as amended by Sections
5401-5452 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as amended by Section 1081(c)
of the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017).
2023 Amendment:
Mil. R. Evid. 404(b)(3) is amended to align with the Federal Rules
of Evidence.
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
A16-3
Rule 405 Methods of proving character
This rule is taken from Rule 405 of the MCM (2016 edition)
without amendment.
Rule 406 Habit; routine practice
This rule is taken from Rule 406 of the MCM (2016 edition)
without amendment.
Rule 407 Subsequent remedial measures
This rule is taken from Rule 407 of the MCM (2016 edition)
without amendment.
Rules 408 Compromise offers and negotiations
This rule is taken from Rule 408 of the MCM (2016 edition)
without amendment.
Rule 409 Offers to pay medical and similar expenses
This rule is taken from Rule 409 of the MCM (2016 edition)
without amendment.
Rule 410 Pleas, plea discussions, and related
statements
This rule is taken from Rule 410 of the MCM (2016 edition)
without amendment.
Rule 411 Liability insurance
This rule is taken from Rule 411 of the MCM (2016 edition)
without amendment.
Rule 412 Sex offense cases: The victim’s sexual
behavior or predisposition
This rule is taken from Rule 412 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: Mil. R. Evid. 412(b) is amended and more
closely aligns with Federal Rule of Evidence 412. The amendment
also addresses the Court of Appeals for the Armed Forces’ opinion
in United States v. Gaddis, 70 M.J. 248 (C.A.A.F. 2011) with
regard to evidence the admission of which is required by the
United States Constitution.
In United States v. Banker, 60 M.J. 215, 223 (C.A.A.F. 2004),
the Court of Appeals for the Armed Forces indicated that when
assessing whether evidence satisfies Military Rule of Evidence
412’s requirement that its probative value outweighs the danger of
unfair prejudice, one factor to be considered is the “prejudice to
the victim’s legitimate privacy interests.” In 2007, the President
codified that standard in Military Rule of Evidence 412, adding to
the rule that evidence is admissible under the rule if “the probative
value of such evidence outweighs the danger of unfair prejudice
to the alleged victim’s privacy.” Exec. Order No. 13,447, Annex,
§ 2(a) (Sept. 28, 2007). The Court of Appeals for the Armed
Forces subsequently cautioned that the revised Military Rule of
Evidence 412 “has the potential to lead military judges to exclude
constitutionally required evidence merely because its probative
value does not outweigh the danger of prejudice to the alleged
victim’s privacy, which would violate the Constitution.” Gaddis,
70 M.J. at 254. A rule that invites constitutional error, with its
attendant risk of appellate reversal and even unjust convictions, is
not in the interest of the accused, the government, or the alleged
victim. Additionally, the current rule is in tension with Article
36(a) of the Uniform Code of Military Justice, 10 U.S.C. § 836(a),
which generally requires that the evidentiary rules prescribed by
the President be, “as far as he considers practicable” consistent
with “the rules of evidence generally recognized in the trial of
criminal cases in the United States district courts.” The portion of
Military Rule of Evidence 412 added in 2007 is inconsistent with
the portion of Federal Rule of Evidence 412 that applies in
criminal cases; however, Banker prescribed an additional test of
admissibility that made it impracticable to follow Federal Rule of
Evidence 412 in full. Gaddis’ repudiation of Banker, see 70 M.J.
at 256, however, eliminated that concern with regard to the test for
admissibility of constitutionally required evidence. Thus, it is no
longer impracticable for courts-martial to follow the same
admissibility test for constitutionally required evidence as in
Federal Rule of Evidence 412. Accordingly, to comply with
Article 36(a), Military Rule of Evidence 412, as it pertains to
constitutionally required evidence, is revised to comport with the
portion of Federal Rule of Evidence 412 that applies in criminal
cases The balancing test for the admission of evidence that is not
required by the Constitution remains unchanged.
Mil. R. Evid. 412(c)(2) is amended and updates a cross-
reference to R.C.M. 1103A, which is deleted and redesignated as
R.C.M. 1113.
Rule 413 Similar crimes in sexual offense cases
This rule is taken from Rule 413 of the MCM (2016 edition)
without amendment.
Rule 414 Similar crimes in child-molestation cases
This rule is taken from Rule 414 of the MCM (2016 edition)
without amendment.
SECTION V
Privileges
Rule 501 Privilege in general
This rule is taken from Rule 501 of the MCM (2016 edition)
without amendment.
Rule 502 Lawyer-client privilege
This rule is taken from Rule 502 of the MCM (2016 edition)
without amendment.
Rule 503 Communications to clergy
This rule is taken from Rule 503 of the MCM (2016 edition) with
the following amendment:
2023 Amendment:
APPENDIX 16
A16-4
Mil. R. Evid. 503 is amended to use gender-neutral language.
Rule 504 Marital privilege
This rule is taken from Rule 504 of the MCM (2016 edition)
without amendment.
Rule 505 Classified information
This rule is taken from Rule 505 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: Mil. R. Evid. 505,
as amended by Exec. Order
No. 13825, 83 Fed. Reg. 9889 (March 1, 2018),
further amends Mil.
R. Evid. 505(j)(3), 505(k)(1)(B), and 505(l) updates cross-
references to R.C.M. 701(g)(2) and R.C.M. 1103A (which is
deleted and redesignated as R.C.M. 1113), and updates cross-
references to R.C.M. 1103(h) and 1104(b)(1)(D), which are
deleted and redesignated as R.C.M. 1112(e)(3).
2023 Amendment:
Mil. R. Evid. 505(f)(4) is amended to account for special trial
counsel.
Rule 506 Government information
This rule is taken from Rule 506 of the MCM (2016 edition)
with the following amendments:
2018 Amendment:
Mil. R. Evid. 506, as amended by Exec. Order
No. 13825, 83 Fed. Reg. 9889 (March 1, 2018), further amends Mil.
R. Evid. 506(b) and broadens the scope of the rule to cover classified
information. The government may now claim a privilege with
respect to classified information under either Mil. R. Evid. 505 or
Mil. R. Evid. 506, or both.
The Discussion accompanying Mil. R. Evid. 506(b) is new.
Mil. R. Evid. 506(j)(3), 506(l)(2), and 506(m) are amended and
update cross-references to R.C.M. 1103A, which is deleted and
redesignated as R.C.M. 1113.
2023 Amendment:
Mil. R. Evid. 506(f)(4) is amended to account for special trial
counsel.
Rule 507 Identity of informants
This rule is taken from Rule 507 of the MCM (2016 edition) with
the following amendment:
2023 Amendment:
Mil. R. Evid. 507(e)(3) is amended to account for special trial
counsel.”
Rule 508 Political vote
This rule is taken from Rule 508 of the MCM (2016 edition)
without amendment.
Rule 509 Deliberations of courts and juries
This rule is taken from Rule 509 of the MCM (2016 edition)
without amendment.
Rule 510 Waiver of privilege by voluntary
disclosure
This rule is taken from Rule 510 of the MCM (2016 edition)
without amendment.
Rule 511 Privileged matter disclosed under
compulsion or without opportunity to claim
privilege
This rule is taken from Rule 511 of the MCM (2016 edition)
without amendment.
Rule 512 Comment upon or inference from claim of
privilege; instruction
This rule is taken from Rule 512 of the MCM (2016 edition)
with the following amendment
:
2018 Amendment: Mil. R. Evid. 512(b) is amended and
reflects
the elimination of special courts-martial without a military judge.
See Article 16, as amended by Section 5161
of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
Rule 513 Psychotherapist—patient privilege
This rule is taken from Rule 513 of the MCM (2016 edition)
with the following amendments
:
2018 Amendment: Mil. R. Evid. 513,
as amended by Exec. Order
No. 13825, 83 Fed. Reg. 9889 (March 1, 2018),
amends Mil. R.
Evid. 513(c) and provides
that a patient may authorize trial counsel
or any counsel representing the patient to claim the privilege on his
or her behalf.
Mil. R. Evid. 513(e)(3)(A) is amended and clarifies the required
findings of a military judge prior to conducting an in-camera review
of protected records or communications to determine whether the
records or communications must be produced or admitted into
evidence.
Mil. R. Evid. 513(e)(6) is amended and updates cross-references
to R.C.M. 701(g)(2) and
R.C.M. 1103A (which is deleted and
redesignated as R.C.M. 1113).
Rule 514 Victim advocate—victim privilege
This rule is taken from Rule 514 of the MCM (2016 edition)
with the following amendments
:
2018 Amendment:
Mil. R. Evid. 514
,
as amended by Exec. Order
No. 13825, 83 Fed. Reg. 9889 (March 1, 2018), amends Mil. R. Evid.
514(b)(2) and clarifies the definition of a “victim advocate” in this
rule as a person, other than a prosecutor, trial counsel, any victim’s
counsel, law enforcement officer, or military criminal investigator in
the case.
Mil. R. Evid. 514(e)(3)(A) is amended and clarifies the required
findings of a military judge prior to conducting an in-camera review
of protected records or communications to determine whether the
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
A16-5
records or communications must be produced or admitted into
evidence.
Mil. R. Evid. 514(e)(6) is amended and updates cross-references
to R.C.M. 701(g)(2) and R.C.M. 1103A (which is deleted and
redesignated as R.C.M. 1113).
SECTION VI
Witnesses
Rule 601 Competency to testify in general
This rule is taken from Rule 601 of the MCM (2016 edition)
without amendment.
Rule 602 Need for personal knowledge
This rule is taken from Rule 602 of the MCM (2016 edition)
without amendment.
Rule 603 Oath or affirmation to testify truthfully
This rule is taken from Rule 603 of the MCM (2016 edition)
without amendment.
Rule 604 Interpreter
This rule is taken from Rule 604 of the MCM (2016 edition)
without amendment.
Rule 605 Military Judge’s competency as a witness
This rule is taken from Rule 605 of the MCM (2016 edition)
without amendment.
Rule 606 Member’s competency as a witness
This rule is taken from Rule 606 of the MCM (2016 edition)
with the following amendment:
2018 Amendment: Mil. R. Evid. 606(a) is amended and reflects
the elimination of special courts-martial without a military judge.
See Article 16, as amended by Section 5161
of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c)(1)(C) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017).
Rule 607 Who may impeach a witness
This rule is taken from Rule 607 of the MCM (2016 edition)
without amendment.
Rule 608 A witness’ character for truthfulness or
untruthfulness
This rule is taken from Rule 608 of the MCM (2016 edition)
without amendment.
Rule 609 Impeachment by evidence of a criminal
conviction or finding of guilty by summary court-
marital
This rule is taken from Rule 609 of the MCM (2016 edition)
with the following amendment:
2018 Amendment:
Mil. R. Evid. 609 is amended throughout and
reflects changes to Article 20, UCMJ, implementing the Supreme
Court’s ruling in Middendorf v. Henry, 425 U.S. 25 (1976) (summary
court-martial is not a “criminal prosecution” within the meaning of
the Sixth Amendment).
See Article 20, as amended by Section
5164
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016).
Rule 610 Religious beliefs or opinions
This rule is taken from Rule 610 of the MCM (2016 edition)
without amendment.
Rule 611 Mode and order of examining witnesses
and presenting evidence
This rule is taken from Rule 611 of the MCM (2016 edition) with
the following amendment:
2023 Amendment:
Mil. R. Evid. 611(d)(2) is amended to clarify the definition of
domestic violence.
Rule 612 Writing used to refresh a witness’ memory
This rule is taken from Rule 612 of the MCM (2016 edition)
without amendment.
Rule 613 Witness’ prior statement
This rule is taken from Rule 613 of the MCM (2016 edition)
without amendment.
Rule 614 Court-martials calling or examining a
witness
This rule is taken from Rule 614 of the MCM (2016 edition)
without amendment.
Rule 615 Excluding witnesses
This rule is taken from Rule 615 of the MCM (2016 edition)
without amendment.
SECTION VII
Opinions And Expert Testimony
Rule 701 Opinion testimony by lay witnesses
This rule is taken from Rule 701 of the MCM (2016 edition)
without amendment.
APPENDIX 16
A16-6
Rule 702 Testimony by expert witnesses
This rule is taken from Rule 702 of the MCM (2016 edition)
without amendment.
Rule 703 Bases of an expert’s opinion testimony
This rule is taken from Rule 703 of the MCM (2016 edition)
without amendment.
Rule 704 Opinion on an ultimate issue
This rule is taken from Rule 704 of the MCM (2016 edition)
without amendment.
Rule 705 Disclosing the facts or data underlying an
expert’s opinion
This rule is taken from Rule 705 of the MCM (2016 edition)
without amendment.
Rule 706 Court-appointed expert witnesses
This rule is taken from Rule 706 of the MCM (2016 edition)
without amendment.
Rule 707 Polygraph examinations
This rule is taken from Rule 707 of the MCM (2016 edition)
without amendment.
SECTION VIII
Hearsay
Rule 801 Definitions that apply to this section;
exclusions from hearsay
This rule is taken from Rule 801 of the MCM (2016 edition)
without amendment.
Rule 802 The rule against hearsay
This rule is taken from Rule 802 of the MCM (2016 edition)
without amendment.
Rule 803 Exceptions to the rule against hearsay –
regardless of whether the declarant is available as a
witness
This rule is taken from Rule 803 of the MCM (2016 edition) with
the following amendments:
2023 Amendments:
Mil. R. Evid. 803(16) is amended to change the definition of an
ancient document to one that was prepared before January 1, 1998.
Mil. R. Evid. 803(22) is amended to correct a scrivener’s error.
Rule 804 Exceptions to the rule against hearsay –
when the declarant is unavailable as a witness
This rule is taken from Rule 804 of the MCM (2016 edition)
with the following amendment:
2018 Amendment: Mil. R. Evid. 804(a)(6) is amended and
reflects
amendments to Article 49 and deletes the cross-reference to
Article 49(d)(2). See Article 49, as amended by Section 532, Carl
Levin and Howard P. “Buck” McKeon National Defense
Authorization Act for Fiscal Year 2015, Pub. L. No. 113-291, 128
Stat. 3292 (2014).
Rule 805 Hearsay within hearsay
This rule is taken from Rule 805 of the MCM (2016 edition)
without amendment.
Rule 806 Attacking and supporting the declarant’s
credibility
This rule is taken from Rule 806 of the MCM (2016 edition)
without amendment.
Rule 807 Residual exception
This rule is taken from Rule 807 of the MCM (2016 edition) with
the following amendment:
2023 Amendment:
Mil. R. Evid. 807 is amended to align with the Federal Rules of
Evidence.
SECTION IX
Authentication And Identification
Rule 901 Authenticating or identifying evidence
This rule is taken from Rule 901 of the MCM (2016 edition)
without amendment.
Rule 902 Evidence that is self-authenticating
This rule is taken from Rule 902 of the MCM (2016 edition) with
the following amendments:
2023 Amendments:
Mil. R. Evid. 902(12) is added and reserved.
Mil. R. Evid. 902(13) is added and allows “Certified Records
Generated by an Electronic Process or System” to be self-
authenticating.
Mil. R. Evid. 902(14) is added and allows “Certified Data Copied
from an Electronic Device Storage Medium, or File” to be self-
authenticating.
.
Rule 903 Subscribing witness’ testimony
This rule is taken from Rule 903 of the MCM (2016 edition)
without amendment.
ANALYSIS OF THE MILITARY RULES OF EVIDENCE
A16-7
SECTION X
Contents Of Writings, Recordings, And
Photographs
Rule 1001 Definitions that apply to this section
This rule is taken from Rule 1001 of the MCM (2016 edition)
without amendment.
Rule 1002 Requirement of the original
This rule is taken from Rule 1002 of the MCM (2016 edition)
without amendment.
Rue 1003 Admissibility of duplicates
This rule is taken from Rule 1003 of the MCM (2016 edition)
without amendment.
Rule 1004 Admissibility of other evidence of content
This rule is taken from Rule 1004 of the MCM (2016 edition)
without amendment.
Ruel 1005 Copies of public records to prove content
This rule is taken from Rule 1005 of the MCM (2016 edition)
without amendment.
Rule 1006 Summaries to prove content
This rule is taken from Rule 1006 of the MCM (2016 edition)
without amendment.
Rule 1007 Testimony or statement of a party to
prove content
This rule is taken from Rule 1007 of the MCM (2016 edition)
without amendment.
Rule 1008 Functions of the military judge and the
members
This rule is taken from Rule 1008 of the MCM (2016 edition)
without amendment.
SECTION XI
Miscellaneous Rules
Rules 1101 Applicability of these rules
This rule is taken from Rule 1101 of the MCM (2016 edition)
with the following amendments:
2018 Amendment: Mil. R. Evid. 1101(a) is amended and
reflects that the Military Rules of Evidence also apply to pre-
referral proceedings under Article 30a. See Article 30a, as added
by Section 5202
of the Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016), as amended by Section
531(b) of the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 155-91, 131 Stat. 1283 (2017).
Rule 1102 Amendments
This rule is taken from Rule 1102 of the MCM (2016 edition)
without amendment.
Rule 1103 Title
This rule is taken from Rule 1103 of the MCM (2016 edition)
without amendment.
APPENDIX 17
ANALYSIS OF PUNITIVE ARTICLES
A17-1
1. Article 77 (10 U.S.C. 877)—Principals
This paragraph is taken, without change, from paragraph 1
(Article 77—Principals) of the MCM (2016 edition).
2. Article 78 (10 U.S.C. 878)—Accessory after the
fact
This paragraph is taken from paragraph 2 (Article 78—Accessory
after the fact) of the MCM (2016 edition), with the following
amendments:
2018 Amendment: c. Explanation. (2) Failure to report offense.
This subparagraph is amended and reflects that the offense of
misprision of a serious offense has been relocated from Article 134
to Article 131c as part of the Military Justice Act of 2016’s
realignment of the punitive articles. The substance of the offense
remains the same.
See Article 131c, as added by Section 5446
of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
3. Article 79 (10 U.S.C 879)—Conviction of offense
charged, lesser included offenses, and attempts
This paragraph is taken from paragraph 3 (Article 79—
Conviction of lesser included offenses) of the MCM (2016 edition)
with the following amendments:
2018 Amendment: a. Text of statute. Article 79 is amended and
provides two statutory grounds for identifying “lesser included
offenses.” Under the first, the lesser offense must be “necessarily
included” in the greater offense. See, e.g., the elements test
articulated in United States v. Jones, 68 M.J. 465, 470 (C.A.A.F.
2010); United States v. Alston, 69 M.J. 214, 216 (C.A.A.F. 2010).
Under the second, the offense must be expressly designated by the
President as a lesser included offense. The President’s authority
extends only to an offense “reasonably included” in the greater
offense. The President has done so in Appendix 12A.
See Article 79
as amended by Section 5402
of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
b. Explanation.
Subparagraph b.2. sets forth an explanation of “necessarily
included offenses.” Subparagraph b.3. explains the President’s
express authority under Article 79 to designate certain closely related
offenses to be “reasonably included” lesser offenses of greater ones,
including offenses that do not strictly meet the “necessarily
included” elements test. Whether “necessarily included” or
“reasonably included,” a lesser included offense must be raised by
the evidence at trial. That is, while all presidentially designated lesser
included offenses (see Appendix 12A) qualify as lesser included
offenses, a party is not entitled to an instruction on a lesser included
offense if the evidence at trial does not reasonably raise it. See United
States v. Bean, 62 M.J. 264, 265 (C.A.A.F. 2005).
2023 Amendment: Subparagraph b. Explanation (4) Sua sponte
duty is amended to align with R.C.M. 920(g) allowing the parties to
waive instructions on a lesser included offense.
4. Article 80 (10 U.S.C. 880)—Attempts
This paragraph is taken from paragraph 4 (Article 80—Attempts),
of the MCM (2016 edition) with the following amendments:
2018 Amendment: c. Explanation. (6) Attempts not under Article
80. This subparagraph is amended and reflects that the offenses of
Article 104—Aiding the enemy and Article 106a—Espionage are
renumbered Articles 103b and 103a respectively, under Section 5401
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum punishment.
This subparagraph is amended and reflects that the offense of
forcible sodomy under Article 125 is now addressed under Article
120.
See Section 5430
of the Military Justice Act of 2016, Division
E of the National Defense Authorization Act for Fiscal Year 2017,
Pub. L. No. 114-328, 130 Stat. 2000 (2016), as further amended by
Section 1081(c)(1)(O) of the National Defense Authorization Act for
Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).
5. Article 81 (10 U.S.C. 881)—Conspiracy
This paragraph is taken from paragraph 5 (Article 81—
Conspiracy) of the MCM (2016 edition) with the following
amendment:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
6. Article 82 (10 U.S.C. 882)—Soliciting commission
of offenses
This paragraph is taken from paragraphs 6 (Article 82—
Solicitation) and 105 (Article 134—Soliciting another to commit an
offense) of the MCM (2016 edition) with the following amendments:
2018 Amendment: a. Text of Statute. Article 82 is revised and
incorporates the solicitation of any offense under the UCMJ in one
consolidated statute. Specifically, the former Article 134—Soliciting
another to commit an offense, MCM (2016 edition), is relocated to
Article 82 pursuant to Section 5403 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016), as
further amended by Section 1081(c)(1)(M) of the National Defense
Authorization Act for Fiscal Year 2018, Pub. Law. No. 115-91, 131
Stat. 1283 (2017). Soliciting another to commit a criminal offense is
a well-recognized concept in criminal law that does not rely upon the
“terminal element” of Article 134 as the basis for its criminality.
APPENDIX 17
A17-2
Accordingly, the newly consolidated Article 82 does not require
proof of the Article 134 “terminal element.”
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum Punishment. The maximum authorized confinement
for solicitation to commit desertion, mutiny or sedition, or
misbehavior before the enemy where the offense is not committed or
attempted is changed to confinement for 15 years or the maximum
confinement for the underlying offense, whichever is lesser. The
maximum authorized punishment for solicitation to commit
unspecified offenses is changed to a dishonorable discharge,
forfeiture of all pay and allowances, and confinement for 10 years,
or the maximum punishment for the underlying offense, whichever
is lesser.
2023 Amendment. Paragraph 6.d. is amended to clarify the
maximum punishment for solicitation offenses.
7. Article 83 (10 U.S.C. 883)—Malingering
This paragraph is taken from paragraph 40 (Article 115—
Malingering) of the MCM (2016 edition) with the following
amendments:
This offense is relocated to its current position, without
substantive change, pursuant to Section 5404 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
8. Article 84 (10 U.S.C. 884)—Breach of medical
quarantine
The Article 134 offense of Quarantine: medical, breaking is
relocated from paragraph 100 of the MCM (2016 edition) to Article
84 pursuant to Section 5405 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof of the
Article 134 “terminal element” is no longer required.
2018 Amendment: c. Explanation. Formal medical quarantines are
addressed in DoDI 6200.03, Public Health Emergency Management
within the Department of Defense, March 5, 2010 (Change 2,
effective October 2, 2013). This instruction provides an example of
a commander’s power to institute medical quarantines as an
incidence of command, but the commander’s power generally to
institute a medical quarantine is not limited to the situations
discussed in DoDI 6200.03. Quarantines may include, but are not
limited to, orders to remain within a restricted area and to submit to
diagnostic or medical treatment. See id. at Enclosure 3, ¶2(c)–(e),
(h), 4a(7)(a)–(i).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum Punishment. A new maximum punishment category
is added and aligns this offense with federal law (see 42 U.S.C. §
271) by enhancing maximum punishments for breaking of medical
quarantines declared in reference to a “quarantinable communicable
disease.” Under 42 U.S.C. § 271, a “quarantinable communicable
disease” extends to those diseases defined by the President by
Executive Order. The President has done so in Executive Order
13295 (April 4, 2003, as amended July 3, 2014), now promulgated
in 42 C.F.R. §70.1.
9. Article 85 (10 U.S.C. 885)—Desertion
This paragraph is taken, without substantive change, from
paragraph 9 (Article 85—Desertion) of the MCM (2016 edition).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
10. Article 86 (10 U.S.C. 886)—Absence without
leave
This paragraph is taken, without substantive change, from
paragraph 10 (Article 86—Absence without leave) of the MCM
(2016 edition).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
11. Article 87 (10 U.S.C. 887)—Missing movement;
jumping from vessel
This paragraph is taken from paragraphs 11 (Article 87—Missing
movement) and 91 (Article 134—Jumping from vessel into the
water) of the MCM (2016 edition) with the following amendments:
2018 Amendment: a. Text of Statute. The Article 134 offense of
jumping from a vessel into the water is relocated to Article 87
pursuant to Section 5406 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). The substance of
both offenses remains the same with the exception of the removal of
the terminal element from the former Article 134 offense.
Subparagraph b. Elements. The two elements “that the accused
missed the movement” and “through design or neglect” from
paragraph 11.b.(3) and (4) of the MCM (2016 edition) are combined
into a single sentence “that the accused missed the movement
through design or neglect.”
A new Discussion is added following paragraph 11.c.(2)
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
ANALYSIS OF PUNITIVE ARTICLES
A17-3
12. Article 87a (10 U.S.C. 887a)—Resistance, flight,
breach of arrest, and escape
This paragraph is taken from paragraph 19 (Article 95—
Resistance, flight, breach, of arrest, and escape) of the MCM (2016
edition). This offense is relocated to its current position, without
substantive change, pursuant to Section 5401 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
13. Article 87b (10 U.S.C. 887b)—Offenses against
correctional custody and restriction
This paragraph is taken from paragraph 70 (Article 134—
Correctional custody—offenses against) and paragraph 102 (Article
134—Restriction, breaking) of the MCM (2016 edition). These
offenses are consolidated and relocated to Article 87b pursuant to
Section 5407 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Proof of the Article 134
“terminal element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
14. Article 88 (10 U.S.C. 888)—Contempt toward
officials
This paragraph is taken, without substantive change, from
paragraph 12 (Article 88—Contempt toward officials) of the MCM
(2016 edition).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
15. Article 89 (10 U.S.C. 889)—Disrespect toward
superior commissioned officer; assault of superior
commissioned officer
This paragraph is taken from paragraphs 13 (Article 89—
Disrespect toward superior commissioned officer) and 14 (Article
90—Assaulting or willfully disobeying superior commissioned
officer) of the MCM (2016 edition) with the following amendments:
2018 Amendment: a. Text of Statute. Article 89 is amended and
incorporates the offense of willfully assaulting a superior
commissioned officer, which is relocated from Article 90 MCM
(2016 edition) pursuant to Section 5408 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
c. Explanation.
(1) Superior commissioned officer. The definition of superior
commissioned officer is changed from MCM (2016 edition), Part IV,
subparagraph 13.c.(1). The definition of “superior commissioned
officer,” as revised, removes the separate Service distinction.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum punishment. The maximum punishment is adjusted
and differentiates situations where the disrespect is directed at a
superior commissioned officer in command from situations where a
commissioned officer is superior in rank.
16. Article 90 (10 U.S.C. 890)—Willfully disobeying
superior commissioned officer
This paragraph is taken from paragraph 14 (Article 90—
Assaulting or willfully disobeying superior commissioned officer) of
the MCM (2016 edition) with the following amendments:
2018 Amendment: a. Text of Statute. Article 90 is amended by
relocating the offense of “striking or assaulting superior
commissioned officer” to Article 89 pursuant to Sections 5408 and
5409 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016).
c. Explanation (1) Superior commissioned officer. The definition
of superior commissioned officer is changed from MCM (2016
edition), Part IV, subparagraph 13.c.(1). The definition of “superior
commissioned officer,” as revised, removes the separate Service
distinction. Subparagraph 16.c.(2)(a)(iii), as revised, explains the
basis for the authority of the issuing officer.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
17. Article 91 (10 U.S.C. 891)—Insubordinate
conduct toward warrant officer, noncommissioned
officer, or petty officer
This paragraph is taken from paragraph 15 (Article 91—
Insubordinate conduct toward warrant officer, noncommissioned
officer, or petty officer) of the MCM (2016 edition) without
substantive change.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
18. Article 92 (10 U.S.C. 892)—Failure to obey
order or regulation
This paragraph is taken from paragraph 16, (Article 92—Failure
to obey order or regulation) of the MCM (2016 edition) without
substantive change.
APPENDIX 17
A17-4
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
19. Article 93 (10 U.S.C. 893)—Cruelty and
maltreatment
This paragraph is taken from paragraph 17 (Article 93—Cruelty
and maltreatment) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The maximum authorized confinement
for a violation of Article 93 is increased from two years to three years
2023 Amendment: Subparagraph c. Explanation (2) Nature of the
Act is amended to clarify the definition of sexual harassment for
purposes of Article 93.
20. Article 93a (10 U.S.C. 893a)—Prohibited
activities with military recruit or trainee by person
in position of special trust
2018 Amendment: This article is a new enumerated provision and
implements Article 93a, as added by Section 5410 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), and criminalizes acts of “prohibited sexual
activity” specified in regulations by the Secretary concerned,
between those in positions of special trust and junior military
members in initial active duty training, officer qualification
programs, other training programs for initial career qualification, in
a delayed entry program, or applicants for military service.
2023 Amendment: Subparagraph b. Elements is amended to
change the knowledge requirement to “knew” from “knew, or
reasonably should have known” for both offenses under Article 93a.
For subparagraph b(2), elements (c) and (d) are combined into one
paragraph. Subparagraph c. Explanation is amended to add an
explanation of “Prohibited activity” and update the definition of
“Knowledge.” Subparagraph e. Sample specifications is amended to
reflect the amendments in Subparagraph b.
21. Article 94 (10 U.S.C. 894)—Mutiny or sedition
This paragraph is taken from paragraph 18 (Article 94—Mutiny
and sedition) of the MCM (2016 edition) without substantive change.
2018 Amendment: Subparagraph c.(4)(b) is amended and clarifies
the definition of “superior commissioned officer.”
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
22. Article 95 (10 U.S.C. 895)—Offenses by sentinel
or lookout
This paragraph is taken from paragraph 38 (Article 113—
Misbehavior of sentinel or lookout) and the portions of paragraph
104 (Article 134—Sentinel or lookout: offenses against or by)
relating to the offense of “Loitering or wrongfully sitting on post by
a sentinel or lookout” of the MCM (2016 edition) with the following
amendments: This offense is relocated from subparagraph 104.b.(2)
of Article 134 of the MCM (2016 edition) pursuant to Section 5411
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016). Proof of the “terminal element” of
Article 134 is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
23. Article 95a (10 U.S.C. 895a)—Disrespect toward
sentinel or lookout
This paragraph is taken from the portions of paragraph 104
(Article 134—Sentinel or lookout: offenses against or by) of the
MCM (2016 edition) relating to the offense of “Disrespect to a
sentinel or lookout.” This offense is relocated to its current position
pursuant to Section 5412 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with the following
amendments: Proof of the Article 134 “terminal element” is no
longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
24. Article 96 (10 U.S.C. 896)—Release of prisoner
without authority; drinking with prisoner
This paragraph is taken from paragraphs 20 (Article 96—
Releasing prisoner without authority) and 74 (Article 134—Drinking
liquor with prisoner) of the MCM (2016 edition) with the following
amendments: These offenses were relocated and consolidated
pursuant to Section 5413 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). The term
“suffers” was stricken and replaced with “allows” and reflects
modern usage of terminology; and in the case of the “drinking with
prisoner” offense, the scope of the offense was extended to apply to
any person who unlawfully drinks an alcoholic beverage with a
prisoner. Proof of the “terminal element” of Article 134 is no longer
required.
2018 Amendment: c. Explanation (5) Drinking with prisoner. This
explanation clarifies that drinking with a prisoner is unlawful unless
competent authority has granted the accused specific permission to
consume alcohol with a prisoner.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have
ANALYSIS OF PUNITIVE ARTICLES
A17-5
been redesignated as subparagraphs d. and e. respectively. For
lesser included offenses, see Appendix 12A.
d. Maximum punishment. The maximum authorized confinement
for allowing a prisoner to escape through neglect is increased from
one to two years; the maximum authorized confinement for allowing
a prisoner to escape through design is increased from two to five
years. The maximum authorized confinement and period of
forfeitures of two-thirds pay per month for drinking with a prisoner
is increased from three months to one year.
25. Article 97 (10 U.S.C. 897)—Unlawful detention
This paragraph is taken, without substantive change, from
paragraph 21 (Article 97—Unlawful detention) of the MCM (2016
edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
26. Article 98 (10 U.S.C. 898)—Misconduct as
prisoner
This paragraph is taken from paragraph 29 (Article 105—
Misconduct as a prisoner) of the MCM (2016 edition) with the
following amendments: This offense is relocated to its current
position, pursuant to Section 5401 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
27. Article 99 (10 U.S.C. 899)—Misbehavior before
the enemy
This paragraph is taken, without substantive change, from
paragraph 23 (Article 99—Misbehavior before the enemy) of the
MCM (2016 edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
28. Article 100 (10 U.S.C. 900)—Subordinate
compelling surrender
This paragraph is taken from paragraph 24 (Article 100—
Subordinate compelling surrender) of the MCM (2016 edition) with
the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
29. Article 101 (10 U.S.C. 901)—Improper use of
countersign
This paragraph is taken from paragraph 25 (Article 101—
Improper use of a countersign) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
30. Article 102 (10 U.S.C. 902)—Forcing a
safeguard
This paragraph is taken from paragraph 26 (Article 102—Forcing
a safeguard) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
31. Article 103 (10 U.S.C. 903)—Spies
This paragraph is taken from paragraph 30 (Article 106—Spies)
of the MCM (2016 edition) with the following amendments: This
offense is relocated to its current position pursuant to Section 5401
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016) and is amended to remove the
mandatory death penalty.
2018 Amendment: Subparagraph d. Lesser included offenses
from the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. As amended, death is the maximum
authorized punishment for the offense, rather than a mandatory
punishment.
32. Article 103a (10 U.S.C. 903a)—Espionage
This paragraph is taken from paragraph 30a (Article 106a—
Espionage) of the MCM (2016 edition) with the following
amendments: This offense is relocated to its current position
pursuant to Section 5401 Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
33. Article 103b (10 U.S.C. 903b)—Aiding the
enemy
This paragraph is taken from paragraph 28 (Article 104—Aiding
the enemy) of the MCM (2016 edition) with the following
APPENDIX 17
A17-6
amendments: This offense is relocated to its current position
pursuant to Section 5401 Military Justice Act of 2016, Division E of
the National Defense Authorization Act for Fiscal Year 2017, Pub.
L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
34. Article 104 (10 U.S.C. 904)—Public records
offenses
This paragraph is taken from paragraph 99 (Article 134—Public
record: altering, concealing, removing, mutilating, obliterating, or
destroying) of the MCM (2016 edition) and is relocated to Article
104 pursuant to Section 5415 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with the following
amendments: Proof of the Article 134 “terminal element” is no
longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
35. Article 104a (10 U.S.C. 904a)—Fraudulent
enlistment, appointment, or separation
This paragraph is taken from paragraph 7 (Article 83—Fraudulent
enlistment, appointment, or separation) of the MCM (2016 edition)
with the following amendments: This offense is relocated to and is
relocated to Article 104a pursuant to Section 5452 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
36. Article 104b (10 U.S.C. 904b)—Unlawful
enlistment, appointment, or separation
This paragraph is taken from paragraph 8 (Article 84—Effecting
unlawful enlistment, appointment, or separation) of the MCM (2016
edition) with the following amendments: This offense is relocated to
Article 104b pursuant to Section 5452of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
37. Article 105 (10 U.S.C. 905)—Forgery
This paragraph is taken from paragraph 48 (Article 123—
Forgery) of the MCM (2016 edition) with the following
amendments: This offense is relocated to Article 105 pursuant to
Section 5401 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
38. Article 105a (10 U.S.C. 905a)—False or
unauthorized pass offenses
This paragraph is taken from paragraph 77 (Article 134—False
pretenses, obtaining services under) of the MCM (2016 edition)
pursuant to Section 5416 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with the following
amendments: Proof of the Article 134 “terminal element” is no
longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
39. Article 106 (10 U.S.C. 906)—Impersonation of
officer, noncommissioned or petty officer, or agent
or official
This paragraph is taken from paragraph 86 (Article 134—
Impersonating a commissioned, warrant, noncommissioned, or petty
officer, or an agent or official) of the MCM (2016 edition) with the
following amendments: This offense is relocated to Article 106
pursuant to Section 5417 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof of the
Article 134 “terminal element” is no longer required.
2018 Amendment: a. Text of statute. The phrase “commissioned,
warrant officer” is replaced with “officer.” This change aligns this
offense with the definition of “officer” under 10 U.S.C. § 101(b)(1)
which defines “officer” to mean a commissioned or warrant officer.
c. Explanation (2) Officer. This provision is added to the MCM
and explains that the definition of “officer” for purposes of this
statute is derived from the existing definition of that term in 10
U.S.C. § 101(b)(1).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
ANALYSIS OF PUNITIVE ARTICLES
A17-7
40. Article 106a (10 U.S.C. 906a)—Wearing
unauthorized insignia, decoration, badge, ribbon,
device, or lapel button
This paragraph is taken from paragraph 113 (Article 134—
Wearing unauthorized insignia, decoration, badge, ribbon, device, or
lapel button) of the MCM (2016 edition) with the following
amendments: This offense is relocated to Article 106a pursuant to
Section 5418 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Proof of the Article 134
“terminal element” is no longer required.
2018 Amendment: c. Explanation (1) In general. The MCM (2016
edition) did not provide an explanation for this provision. An
explanation is added and clarifies the gravamen of this offense, the
scope of unauthorized wear, and knowledge.
d. Maximum punishment. The maximum authorized confinement
is increased from six months to a year for violations of the article
involving specified medals and awards.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
41. Article 107 (10 U.S.C. 907)—False official
statements; false swearing
This paragraph is taken from paragraphs 31 (Article 107—False
official statement) and 79 (Article 134—False swearing) of the
MCM (2016 edition) with the following amendments: The offense
of false swearing is relocated from Article 134, MCM (2016 edition),
to Article 107 pursuant to Section 5419 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof
of the Article 134 “terminal element” of Article 134 is no longer
required.
2018 Amendment: c. Explanation. (1)(b) Official statements. This
explanation is revised and clarifies whether a statement relates to the
official duties of the speaker or hearer. See United States v. Spicer,
71 M.J. 470 (C.A.A.F. 2013). See also United States v. Passut, 73
M.J. 27 (C.A.A.F. 2014), and United States v. Capel, 71 M.J. 485
(C.A.A.F. 2013).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
42. Article 107a (10 U.S.C. 907a)—Parole violation
This paragraph is taken from paragraph 97a (Article 134—Parole,
violation of) of the MCM (2016 edition) with the following
amendments: The offense is relocated from Article 134, MCM (2016
edition), to Article 107a pursuant to Section 5420 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). Proof of the Article 134 “terminal element” of
Article 134 is no longer required.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
43. Article 108 (10 U.S.C. 908)—Military property
of United States—Loss, damage, destruction, or
wrongful disposition
This paragraph is taken from paragraph 32 (Article 108—Military
property of United States—Loss, damage, destruction, or wrongful
disposition) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: c. Explanation. Subparagraph c.(4) Firearms
and Explosives clarifies that the term “explosive” specifically
includes ammunition.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum punishment. The threshold amount for purposes of
the maximum punishment in relation to the qualifying value of
property concerned is amended to $1,000 and aligns with the
division between felony and misdemeanor penalties for property
offenses in federal civilian law for equivalent misconduct. See 18
U.S.C. § 1361.
44. Article 108a (10 U.S.C. 908a)—Captured or
abandoned property
This paragraph is taken from paragraph 27 (Article 103—
Captured or abandoned property) of the MCM (2016 edition) and is
relocated to Article 108a pursuant to Section 5401 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016) with the following amendments:
2018 Amendment: c. Explanation. Subparagraph c.(6) Firearms
and explosives is added and aligns it with an identical provision in
paragraph 43.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum Punishment. The threshold amount for purposes of
the maximum punishment in relation to the qualifying value of the
property concerned is amended to $1,000 and aligns with the
division between felony and misdemeanor penalties for property
offenses in civilian jurisdictions. Maximum punishments focus on
the amount of damage inflicted and the value of the property
destroyed.
45. Article 109 (10 U.S.C. 909)—Property other
than military property of United States—Waste,
spoilage, or destruction
This paragraph is taken from paragraph 33 (Article 109—
Property other than military property of the United States—waste,
spoilage, or destruction) of the MCM (2016 edition) with the
following amendments:
APPENDIX 17
A17-8
2018 Amendments: b. Elements. The maximum punishment
categories are reorganized into three separate categories reflecting
the type of property involved and the type of action being taken
against the property.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum Punishment. The threshold amount for purposes of
the maximum punishment in relation to the qualifying value of the
property concerned is amended to $1,000 and aligns with the
division between felony and misdemeanor penalties for property
offenses in civilian jurisdictions. Maximum punishments focus on
the amount of damage inflicted and the value of the property
destroyed. The maximum punishments are also further divided
based on the nature of the property and the extent of the damage.
46. Article 109a (10 U.S.C. 909a)—Mail matter:
wrongful taking, opening, etc.
This paragraph is taken from paragraph 93 (Article 134—Mail:
taking, opening, secreting, destroying, or stealing) of the MCM
(2016 edition) with the following amendments: The offense is
relocated from Article 134, MCM (2016 edition), to Article 109a
pursuant to Section 5421 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof of the
Article 134 “terminal element” of Article 134 is no longer required.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
47. Article 110 (10 U.S.C. 910)—Improper
hazarding of vessel or aircraft
This paragraph is taken from paragraph 34 (Article 110—
Improper hazarding of a vessel) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: a. Text of statute. This offense is amended and
includes improper hazarding of an aircraft, and accordingly is retitled
“Improper hazarding of vessel or aircraft.”
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
48. Article 111 (10 U.S.C. 911)—Leaving scene of
vehicle accident
This paragraph is taken from paragraph 82 (Article 134—Fleeing
scene of accident) of the MCM (2016 edition) with the following
amendments: The offense is relocated from Article 134, MCM (2016
edition), to Article 111 pursuant to Section 5423 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). Proof of the Article 134 “terminal element” of
Article 134 is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
49. Article 112 (10 U.S.C. 912)—Drunkenness and
other incapacitation offenses
This paragraph is taken from paragraphs 36 (Article 112—Drunk
on duty), 75 (Article 134—Drunk Prisoner) and 76 (Article 134—
Drunkenness—incapacitation for performance of duties through
prior wrongful indulgence in intoxicating liquor or any drug) of the
MCM (2016 edition) with the following amendments: The offense is
now Article 112 pursuant to Section 5424 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof
of the Article 134 “terminal element” of Article 134 is no longer
required.
2018 Amendment: a. Text of statute. The new text reflects the
migration of paragraphs 75 and 76 from Article 134 offenses in the
MCM (2016 edition) to Article 112; proof of the terminal element of
Article 134 is no longer required. This migration places the similar
offenses of drunk on duty, drunk prisoner, and incapacitation for
duty under the same UCMJ article.
(2) Incapacitation for duty from drunkenness or drug use. Under
paragraph 76 of the MCM (2016 edition) wrongful indulgence in
alcohol or drugs was required. The word wrongful has been removed
from the incapacitation for duty from drunkenness or drug use
offense; the act of being incapacitated for duty is itself wrongful in
the military context. However, this offense retains the affirmative
defense formerly utilized in the paragraph 76 of the MCM (2016
edition) namely: that at the time of the offense the accused neither
knew, nor reasonably should have known, that he or she was
assigned to, or susceptible to recall for, military duties. See
subparagraph 49.c.(2)(b). Likewise, the defenses of accident (see
R.C.M. 916(f)) and mistake of fact (see R.C.M. 916 (j)) continue to
apply to instances where the accused accidentally or mistakenly
consumed drugs or alcohol, not knowing them to be such at the time
of ingestion.
c. Explanation. (1) Drunk on Duty. (a) Drunk. This definition is
taken from subparagraph 35.c.(6), MCM (2016 edition).
(2) Incapacitation for duty from drunkenness or drug use. (a)
Incapacitated. The cross-reference to the explanation of drunk is
changed to reflect the relocation of that definition from subparagraph
35.c.(6), MCM (2016 edition) to subparagraph 49.c.(1)(a).
(3) Drunk prisoner. (a) Prisoner. The cross-reference to the
explanation of prisoner is changed and reflects the Military Justice
Act of 2016’s relocation of the former Article 134—Drinking liquor
with prisoner offense paragraph 74 of the MCM (2016 edition) to
Article 96.
(b) Drunk. See subparagraph 51.c.(6). The definition of drunk
is changed and reflects the lower blood alcohol content limits set
forth in Article 113 pursuant to Section 5425, Military Justice Act of
2016, Division E of the Nationall Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) and
the relocation of that definition from subparagraph 35.c.(6), MCM
(2016 edition), to subparagraph 49.c.(1)(a).
ANALYSIS OF PUNITIVE ARTICLES
A17-9
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
50. Article 112a (10 U.S.C. 912a)—Wrongful use,
possession, etc., of controlled substances
This paragraph is taken from paragraph 37 (Article 112a—
Wrongful use, possession, etc., of controlled substances) of the
MCM (2016 edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
51. Article 113 (10 U.S.C. 913)—Drunken or
reckless operation of a vehicle, aircraft, or vessel
This paragraph is taken from paragraph 35 (Article 111—
Drunken or reckless operation of a vehicle, aircraft, or vessel) of the
MCM (2016 edition). This offense is relocated to its current position
pursuant to Section 5452 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with the following
amendments:
2018 Amendment: a. Text of statute. The substance of the offense
remains the same, except for a lower blood alcohol content limit with
respect to alcohol concentration in a person’s blood pursuant to
Section 5425 of the NDAA for FY17. The Secretary may by
regulation prescribe limits that are lower if such lower limits are
based on scientific developments, as reflected in federal civilian law
of general applicability.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
2023 Amendment: Paragraph 51.d. was amended to correct a
scrivener’s error.
52. Article 114 (10 U.S.C. 914)—Endangerment
Offenses
This paragraph is taken from paragraphs 39 (Article 114—
Dueling), 81 (Article 134—Firearm, discharging—willfully, under
such circumstances as to endanger human life), 100a (Article 134—
Reckless endangerment), and 112 (Article 134—Weapon:
concealed, carrying) of the MCM (2016 edition) with the following
amendments: These offenses are relocated and consolidated into the
newly titled Article 114—Endangerment offenses pursuant to
Section 5426 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Proof of the Article 134
“terminal element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. By prescribing one maximum punishment
for all of these offenses, the 2018 Amendments authorize the
imposition of a dishonorable discharge for reckless endangerment
and for carrying a concealed weapon. Previously, a bad-conduct
discharge but not a dishonorable discharge was a portion of the
maximum authorized punishment for those offenses.
53. Article 115 (10 U.S.C. 915)—Communicating
threats
This paragraph is taken from paragraphs 109 (Article 134—
Threat or hoax designed or intended to cause panic or public fear)
and 110 (Article 134—Threat, communicating) of the MCM (2016
edition) with the following amendments: These offenses are
consolidated and relocated to their current position pursuant to
Section 5427 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Proof of the Article 134
“terminal element” is no longer required. The explanations for threat
and wrongful are amended and are consistent with Elonis v. United
States, 135 S.Ct. 2001 (2015), and United States v. Rapert, 75 M.J.
164 (C.A.A.F. 2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
54. Article 116 (10 U.S.C. 916)—Riot or breach of
peace
This paragraph is taken from paragraph 41 (Article 116—Riot or
breach of peace) of the MCM (2016 edition) and is relocated to
Article 116 pursuant to Section 5452 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with
the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
55. Article 117 (10 U.S.C. 917)—Provoking
speeches or gestures
This paragraph is taken from paragraph 42 (Article 117—
Provoking speeches or gestures) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
2023 Amendment: Amended to remove a note that is no longer
applicable due to the promulgation of paragraph 55a by Executive
Order 14062.
APPENDIX 17
A17-10
55a. Article 117a (10 U.S.C. 917a)—Wrongful
broadcast or distribution of intimate visual images
2022 Amendment: This is a new enumerated offense pursuant to
Section 533 of the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017), which
criminalizes the wrongful broadcast or distribution of intimate visual
images.
56. Article 118 (10 U.S.C. 918)—Murder
This paragraph is taken from paragraph 43 (Article 118—Murder)
of the MCM (2016 edition) with the following amendments:
2018 Amendment: c. Explanation (5)(b) Separate offenses. This
subparagraph is amended and conforms to the amendments to
Articles 120 and 125 from Sections 5430 and 5439 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). The specific listing of offenses that may be
charged separately also is amended to reflect the list of felony-
murder offenses contained at Article 118(4).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
57. Article 119 (10 U.S.C. 919)—Manslaughter
This paragraph is taken from paragraph 44 (Article 119—
Manslaughter) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: b. Elements (2)(d) clarifies the relationship
between involuntary manslaughter and murder perpetrated during
the commission of certain offenses and conforms to the amendments
to Articles 118 and 120 from Sections 5428 and 5430 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). Forcible sexual misconduct previously addressed
under Article 125 (MCM 2016) is now addressed in Articles 120 and
134 (Animal abuse).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
58. Article 119a (10 U.S.C. 919a)—Death or injury
of an unborn child
This paragraph is taken from paragraph 44a (Article 119a—Death
or injury of an unborn child) of the MCM 2016, as amended by
Section 1031(c)(1)(N) of the National Defense Authorization Act for
Fiscal Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017), with
the following amendments:
2018 Amendment: a. Text of statute. The phrase “authorized by
state or federal law to perform abortions” was removed from this
subparagraph’s recital of the text of Article 119a because that phrase
does not appear in the statute. See Pub. L. No. 1018-212, § 3; 118
Stat. 568 (April 1, 2004).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
59. Article 119b (10 U.S.C. 919b)—Child
endangerment
This paragraph is taken from paragraph 68a (Article 134—Child
endangerment) of the MCM (2016 edition) and is relocated to Article
116 pursuant to Section 5429 of of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof of the
Article 134 “terminal element” is no longer required.
2018 Amendment: c. Explanation. (2) The phrase “even though
such harm would not necessarily be the natural and probable
consequences of such acts. In this regard,” was removed from this
subparagraph.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment.
and f. Sample specification. from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
60. Article 120 (10 U.S.C. 920)—Rape and sexual
assault generally
This paragraph is taken from paragraph 45 (Article 120—Rape
and sexual assault generally) of MCM (2016 edition) with the
following amendments that implement Article 120, as amended by
Section 5430 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(O) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. Law. No. 115-91, 131 Stat. 1283 (2017).2018
Amendment: a. Text of statute. The definition of sexual act is
amended.
b. Elements. The elements are consolidated to eliminate redundancy
in repeating the specific intent necessary to accomplish a sexual act
and sexual contact because the definitions of sexual act and sexual
contact already contain within them the mens rea element of specific
intent.
c. Explanation. (4) Consent as an element was removed from the
explanation. Section 5430 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) amended Article
120 to include lack of consent as an element in Article 120(b)(2),
Sexual Assault.
(5) Scope of threatening or placing that other person in fear
emphasizes that threatening or placing that other person in fear
explicitly includes, but is not limited to, abuse of military rank,
position, or power, in order to engage in a sexual act or contact with
a victim. See United States v. Simpson, 58 M.J. 368, 377 (C.A.A.F.
2003) (listing seven factors “demonstrating the relationship between
the offenses at issue and Appellant’s superior rank and position” in
a case involving “constructive force” under the pre-2007 version of
Article 120).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment.
and f. Sample specification. from the MCM (2016 edition) have been
ANALYSIS OF PUNITIVE ARTICLES
A17-11
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
e. Sample specifications. The sample specifications are consolidated
to include the various acts constituting: (a) rape; (b) sexual assault;
(c) aggravated sexual contact; and (d) abusive sexual contact, by
consolidating the descriptions of a sexual act or sexual contact within
each overarching specification.
2023 Amendment: Subparagraph e. Sample specifications is
amended to add “[(directly) (through the clothing)]” for all offenses
under “Aggravated sexual contact” and “Abusive sexual contact.”
61. Article 120a (10 U.S.C. 920a)—Mails: deposit of
obscene matter
This paragraph is taken from paragraph 94 (Article 134—Mails:
depositing or causing to be deposited obscene matters in) of the
MCM (2016 edition) and is relocated to Article 120a pursuant to
Section 5431of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016) with the following amendments.
Proof of the Article 134 “terminal element” is no longer required.
See Miller v. United States, 413 U.S. 15 (1973), for a discussion of
the definition of obscenity.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
62. Article 120b (10 U.S.C. 920b)—Rape and sexual
assault of a child
This paragraph is taken from paragraph 47 (Article 120b—Rape
and sexual assault of a child) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: a. Text of statute. The definition of sexual act
conforms to Article 120(g) as amended by Section 5430 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). Consistent with federal civilian law, sexual acts
with children under Article 120b include the intentional touching of
the genitalia of a child under the age of 16 (committed by a person
over the age of 16), when accomplished with either the intent to
abuse, humiliate, harass, or degrade the victim, or to arouse or gratify
the sexual desire of any person.
b. Elements. The elements are consolidated and eliminate
redundancy in repeating the specific intent necessary to accomplish
a sexual act and sexual contact. The definitions of sexual act and
sexual contact already contain the mens rea element of specific
intent.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
e. Sample specifications. The sample specifications are
consolidated and include the various acts constituting rape of a child
and sexual assault of a child, by consolidating the descriptions of a
sexual act or sexual contact within each overarching specification.
63. Article 120c (10 U.S.C. 920c)—Other sexual
misconduct
This paragraph is taken from paragraph 45c (Article 120c—Other
sexual misconduct) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The maximum punishment for forcible
pandering is increased and aligns with federal civilian law. See 18
U.S.C. § 2422.
2023 Amendment: Subparagraph b. Elements is amended to add
“without legal justification or lawful authorization” for the offenses
of “Indecent viewing,” “Indecent recording,” “Broadcast of an
indecent recording,” and “Distribution of an indecent recording.”
Subparagraph e. Sample specifications is amended to reflect the
amendments in Subparagraph b.
64. Article 121 (10 U.S.C. 921)—Larceny and
wrongful appropriation
This paragraph is amended and reflects the addition of Article
121a to the UCMJ by Section 5432 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Other
than the deletion of portions of the explanation dealing with matters
now covered by Article 121a, this section is taken from paragraph 46
of the MCM (2016 edition).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The maximum punishments for
Wrongful appropriation of property of a value more than $1000 is
increased and aligns with corresponding federal civilian practice
under 18 U.S.C. § 661 (Theft within special maritime and territorial
jurisdiction) and § 641 (Theft of public money, property, or records).
The threshold amount for purposes of the maximum punishment in
relation to the qualifying value of the property concerned is amended
to $1,000 and aligns with the division between felony and
misdemeanor penalties for property offenses in federal civilian law.
The difference in the maximum authorized confinement for larceny
of military versus non-military property in the lower-value category
is eliminated.
2023 Amendment: Paragraph 64.d.(1)(c) is amended to correct a
scrivener’s error.
65. Article 121a (10 U.S.C. 921a)—Fraudulent use
of credit cards, debit cards, and other access devices
This offense is new and addresses misconduct previously charged
as an obtaining-type larceny offense under paragraph 46 (Article
121–Larceny) the MCM (2016 edition), and is similar to 18 U.S.C.
§ 1029. This offense is created pursuant to pursuant to Section 5432
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016). The offense focuses on the intent of the
APPENDIX 17
A17-12
accused and technology used. This punitive article applies to
situations where an accused has no authorization to use the access
device from a person whose authorization is required, as well as
situations where an accused exceeds the authorization of a person
whose authorization is required for such use. See United States v.
Simpson, 77 M.J. 279 (C.A.A.F. 2018) and cases cited therein.
66. Article 121b (10 U.S.C. 921b)—False pretenses
to obtain services
This paragraph is taken from paragraph 78 (Article 134—False
pretenses: obtaining services under) of the MCM (2016 edition)
pursuant to Section 5433 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with the following
amendments. Proof of the Article 134 “terminal element” is no
longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The maximum punishment for the
lower-value category is increased, and aligns with federal civilian
practice under 18 U.S.C. § 661 (Theft within special maritime and
territorial jurisdiction). The threshold amount for purposes of the
maximum punishment in relation to the qualifying value of the
property concerned is amended to $1,000 and aligns with the
division between felony and misdemeanor penalties for property
offenses in federal civilian law.
67. Article 122 (10 U.S.C. 922)—Robbery
This paragraph is taken from paragraph 47 (Article 122—
Robbery) of the MCM (2016 edition) with the following
amendments: This offense is relocated to its current position Section
5434 of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016).
2018 Amendment: a. Statutory Text. Consistent with equivalent
misconduct under federal civilian law (see 18 U.S.C. § 2111), the
element of “with the intent to deprive permanently” is removed from
the offense of Article 122—Robbery. The gravamen of the offense
is the forcible taking of a victim’s property in the presence of a
victim.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum Punishment. The maximum punishment categories
of robbery are aligned with federal civilian law to authorize a
maximum punishment of 15 years confinement for any robbery
committed with a “dangerous weapon,” not limited to firearms.
68. Article 122a (10 U.S.C. 922a)—Receiving stolen
property
This paragraph is taken from paragraph 106 (Article 134—Stolen
property: knowingly receiving, buying, or concealing) of the MCM
(2016 edition) with the following amendments. This offense is
relocated from Article 134 to Article 122a pursuant to Section 5435
of the Military Justice Act of 2016, Division E of the National
Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-
328, 130 Stat. 2000 (2016). Proof of the Article 134 “terminal
element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The maximum punishments are
increased, and align with corresponding federal civilian practice
under 18 U.S.C. § 662 (Receiving stolen property within special
maritime and territorial jurisdiction). The threshold amount for
purposes of the maximum punishment in relation to the qualifying
value of the property concerned is amended to $1,000 and aligns with
the division between felony and misdemeanor penalties for property
offenses in federal civilian law.
69. Article 123 (10 U.S.C. 923)—Offenses
concerning Government computers
This offense is new pursuant to Section 5436 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). The offense is similar to 18 U.S.C. § 1030, but
does not supersede or preempt the assimilation of 18 U.S.C. § 1030
or other Title 18 offenses under Article 134, clause 3. Also, this
offense does not supersede or preempt Department of Defense and
Service regulations applicable to offenses concerning Government
computers, applied via Article 92. This offense is directed at certain
types of criminal conduct concerning Government computers. For
other types of criminal conduct concerning computers, including
private computers, persons subject to this chapter may also be
subject to 18 U.S.C. § 1030, and other criminal statutes, via clause 3
of Article 134, as well as orders and regulations via Article 92. See
Report of the Military Justice Review Group Part I: UCMJ
Recommendations (December 22, 2015). For explanation of
Controlled Unclassified Information, see DoDM 5200.01-V4
(February 24, 2012).
2023 Amendment: Subparagraph c. Explanation (1) Access is
amended to include “computer system or computer network.
70. Article 123a (10 U.S.C. 923a)—Making,
drawing, or uttering check, draft, or order without
sufficient funds
This paragraph is taken from paragraph 49 (Article 123a—
Making, drawing, or uttering check, draft, or order without sufficient
funds) of the MCM (2016 edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The threshold amount for purposes of
the maximum punishment in relation to the qualifying value of the
property concerned is amended to $1,000 and aligns with the
division between felony and misdemeanor penalties for property
offenses in federal civilian law.
ANALYSIS OF PUNITIVE ARTICLES
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71. Article 124 (10 U.S.C. 924)—Frauds against the
United States
This paragraph is taken from paragraph 58 (Article 132—Frauds
against the United States) of the MCM (2016 edition) with the
following amendments. This offense is relocated to Article 124
pursuant to Section 5401 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The threshold amount for purposes of
the maximum punishment in relation to the qualifying value of the
property concerned is amended to $1,000 and aligns with the
division between felony and misdemeanor penalties for property
offenses in federal civilian law.
72. Article 124a (10 U.S.C. 924a)—Bribery
This paragraph is taken from portions of paragraph 66 (Article
134—Bribery and graft) of the MCM (2016 edition), related to the
offense of bribery pursuant to Section 5437 of the Military Justice
Act of 2016, Division E of the National Defense Authorization Act
for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016)
with the following amendments. Proof of the Article 134 “terminal
element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
73. Article 124b (10 U.S.C. 924b)—Graft
This paragraph is taken from portions of paragraph 66 (Article
134—Bribery and graft) of the MCM (2016 edition), related to the
offense of graft; pursuant to Section 5437 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with
the following amendments. Proof of the Article 134 “terminal
element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
74. Article 125 (10 U.S.C. 925)—Kidnapping
This paragraph is taken from paragraph 92 (Article 134—
Kidnapping) of the MCM (2016 edition) pursuant to Section 5439 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016) with the following amendments. Proof of the
Article 134 “terminal element” is no longer required.
2018 Amendment: Subparagraph c.(5) has deleted the sentence
from the MCM (2016 edition) that discussed kidnapping in the
context of a parent or legal guardian.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
75. Article 126 (10 U.S.C. 926)—Arson; burning
property with intent to defraud
This paragraph is taken from paragraphs 52 (Article 126—Arson)
and 67 (Article 134—Burning with intent to defraud) of the MCM
(2016 edition) pursuant to Section 5440 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with
the following amendments. Proof of the Article 134 “terminal
element” is not required.
2018 Amendment: Article 126 is amended and incorporates
burning with intent to defraud in conjunction with the Military
Justice Act of 2016’s reorganization of the punitive articles. The
offense of burning with intent to defraud remains substantively the
same, except proof of the Article 134 terminal element is no longer
required.
b.(1). The elements of aggravated arson were amended and proof
that the property belonged to a certain person and was of a certain
value is not required. See United States v. Desha, 23 M.J. 66
(C.A.A.F. 1986) (affirming an aggravated arson conviction holding
that Congress eliminated the common-law requirement that the
property burned be “of another”).
b.(2). The element of simple arson that required that the dwelling
or structure be of a certain value was removed. An enhanced
punishment is available for property of a value of more than $1,000.
c.(2)(a). The definition of “inhabited dwelling” aligns with United
States v. Duke, 16 C.M.A. 460 (C.M.A. 1966).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum punishment. The maximum authorized confinement
for both aggravated arson and simple arson are increased.
76. Article 127 (10 U.S.C. 927)—Extortion
This paragraph is taken from paragraph 53 (Article 127—
Extortion) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
77. Article 128 (10 U.S.C. 928)—Assault
This paragraph is taken from paragraphs 54 (Article 128—
Assault) and 64 (Article 134—Assault—with intent to commit
murder, voluntary manslaughter, rape, robbery, sodomy, arson,
burglary, or housebreaking) of the MCM (2016 edition) pursuant to
Section 5441 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
APPENDIX 17
A17-14
No. 114-328, 130 Stat. 2000 (2016), as further amended by Section
1081(c)(1)(P) of the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 115-91, 131 Stat. 1283 (2017). with the
following amendments:
2018 Amendment: a. Text of statute. (b) Aggravated Assault. Two
amendments to this statute align it more closely with federal civilian
practice under 18 U.S.C. § 113. First, the phrase “or other means or
force likely to result in death or grievous bodily harm” has been
removed from the statutory definition of “aggravated assault,” and
replaced with the phrase “dangerous weapon.” This eliminates the
likelihood of harm analysis previously necessary under the MCM
(2016 edition) for this offense, and allows the offense to focus solely
on the intent of the accused. In turn, the phrase “dangerous weapon”
focuses on the capability of any object to inflict death or grievous
bodily harm. See c. Explanation (5)(a)(iii). Second, the intent
necessary to complete an aggravated assault is modified to no longer
require the specific intent to commit substantial or grievous bodily
harm. This change aligns the specific intent requirement to federal
civilian law under 18 U.S.C. § 113. Pursuant to Section 533 of the
John S. McCain National Defense Authorization Act for Fiscal Year
2019, Pub. L. No. 115-232, 132 Stat. 1636 (2018), subparagraph a.
Text of the statute is amended to add element (b)(3).
(c) Assault with intent to commit specified offenses. The offense
of assault with intent to commit specified offenses is taken from
paragraph 64 (Article 134—Assault—with intent to commit murder,
voluntary manslaughter, rape, robbery, forcible sodomy, arson,
burglary, or housebreaking) of the MCM (2016 edition) in
conjunction with the Military Justice Act of 2016’s reorganization of
the punitive articles. See Appendix 23, subparagraph 64.c.
Explanation of the MCM (2016 edition). The scope of the offense
remains substantively the same with two exceptions: (1) the offense
now lists rape of a child, sexual assault, sexual assault of a child, and
kidnapping, as specified offenses; and (2) proof of the terminal
element of Article 134 is no longer required.
c. Explanation.(1) Substantial bodily harm. The definition of
substantial bodily harm aligns with 18 U.S.C. § 113(b)(1). It
provides a middle tier of harm between bodily harm and grievous
bodily harm. The definition of grievous bodily harm aligns with the
definition of serious bodily injury under 18 U.S.C. § 113(b)(2),
which is the highest tier of bodily injury.
(5)(a)(iii) Dangerous weapon. The definition of dangerous
weapon focuses attention on the nature of the weapon involved and
the accused’s intent to commit any bodily harm. To qualify as a
dangerous weapon, it is sufficient that “an instrument [is] capable of
inflicting death or serious bodily injury.” United States v. Sturgis, 48
F.3d 784, 787 (4th Cir. 1995). See also United States v. Bey, 667 F.2d
7, 11 (5th Cir. 1982) (citation and internal quotation omitted)
(“[w]hat constitutes a dangerous weapon depends not on the nature
of the object itself but on its capacity, given the manner of its use, to
endanger life or inflict great bodily harm.”)
(5)(b)(i). Assault resulting in substantial or grievous bodily harm
requires only a finding of general intent. See United States v. Davis,
237 F.3d 942, 944 (8
th
Cir. 2001).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
d. Maximum punishment. Two new maximum punishment
categories were added: (1) infliction of substantial bodily harm and
(2) assaulting a spouse, intimate partner, or an immediate family
member.
2022 Amendment: Subparagraph b. Elements is amended to
remove references to “a spouse, intimate partner, or an immediate
family member of the accused” for all applicable elements; those
scenarios are now covered by Article 128b. Subsequent parallel
amendments are made to subparagraphs c-e. Subparagraph b.
Elements is amended to add the offense of “Aggravated Assault by
strangulation or suffocation.” Subsequent parallel amendments are
added to subparagraphs c-e.
2023 Amendment: The descriptor for subparagraph d. Maximum
punishment (1)(b) is amended to read, “When committed with an
unloaded firearm or other dangerous weapon.” Subparagraph
d.(1)(b) is further amended to change the maximum confinement
from three years to two years. Subparagraph d.(1)(c) is added. The
maximum punishment under subparagraph d.(5)(b) is amended to
align with the offense under subparagraph c.(6)(d).”
78. Article 128a (10 U.S.C. 928a)—Maiming
This paragraph is taken from paragraph 50 (Article 124—
Maiming) of the MCM (2016 edition) with the following
amendments. This offense is relocated to its current position
pursuant to Section 5401 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
78a. Article 128b (10 U.S.C. 928b)—Domestic
Violence
2022 Amendment: This is a new punitive article enacted by
Section 532 of the John S. McCain National Defense Authorization
Act for Fiscal Year 2019, Pub. L. No. 115-232, 132 Stat. 1636
(2018), which criminalizes domestic violence.
79. Article 129 (10 U.S.C. 929)—Burglary; unlawful
entry
This paragraph is taken from paragraphs 55 (Article 129—
Burglary), 56 (Article 130—Housebreaking), and 111 (Article
134—Unlawful entry) of the MCM (2016 edition) and is
consolidated pursuant to Section 5442 of the Military Justice Act of
2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016) with
the following amendments:
2018 Amendment: a. Text of statute. The common law elements
of nighttime and dwelling house are eliminated as elements of the
offense of burglary.
b. Elements. The list of offenses that qualify for enhanced
maximum punishment is amended to reflect the Military Justice Act
of 2016’s reorganization of the punitive articles.
c. Explanation. The definition of “Building, structure” is taken,
without change, from paragraph 56 of the MCM (2016 edition).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
ANALYSIS OF PUNITIVE ARTICLES
A17-15
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
f. Sample specifications. The sample specifications are modeled
after those contained under paragraphs 55, 56, and 111 of the MCM
(2016 edition).
80. Article 130 (10 U.S.C. 930)—Stalking
This offense is taken from paragraph 45a (Article 120a—
Stalking) of the MCM (2016 edition) and is modified pursuant to
Section 5443 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016) with the following amendments:
2018 Amendment: a. Text of statute. This statute is amended and
extends the conduct covered to include cyberstalking and threats to
intimate partners. This aligns the offense with similar misconduct
under 18 U.S.C. § 2261A.
c. Explanation. The definition of bodily harm is based on
subparagraph 77.c.(1)(a).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
81. Article 131 (10 U.S.C. 931)—Perjury
This paragraph is taken from paragraph 57 (Article 131—Perjury)
of the MCM (2016 edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
82. Article 131a (10 U.S.C. 931a)—Subornation of
perjury
This paragraph is taken from paragraph 98 (Article 134—Perjury:
subornation of) of the MCM (2016 edition) with the following
amendments. The offense is relocated to Article 131a pursuant to
Section 5444 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Proof of the Article 134
“terminal element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
83. Article 131b (10 U.S.C. 931b)—Obstructing
justice
This paragraph is taken from paragraph 96 (Article 134—
Obstructing justice) of the MCM (2016 edition) with the following
amendments. The offense is relocated to Article 131b pursuant to
Section 5445 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016). Proof of the Article 134
“terminal element” is no longer required.
2018 Amendment: Subparagraph c. Explanation has been updated
and reflects Article 20, as amended by Section 5164 of the Military
Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), which clarifies that a summary court-martial is not
a criminal forum. The Explanation also reflects the reorganization of
Article 98, Noncompliance with procedural rules, from paragraph 22
of MCM (2016 edition) to paragraph 87 (Article 131f), pursuant to
Section 5201 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
84. Article 131c (10 U.S.C. 931c)—Misprision of
serious offense
This paragraph is taken from paragraph 95 (Article 134—
Misprision of a serious offense) of the MCM (2016 edition) with the
following amendments. The offense is relocated to Article 131c
pursuant to Section 5446 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof of the
Article 134 “terminal element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
85. Article 131d (10 U.S.C. 931d)—Wrongful
refusal to testify
This paragraph is taken from paragraph 108 (Article 134—
Testify: wrongful refusal) of the MCM (2016 edition) with the
following amendments. The offense is relocated to Article 131d
pursuant to Section 5447 of the Military Justice Act of 2016,
Division E of the National Defense Authorization Act for Fiscal Year
2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016). Proof of the
Article 134 “terminal element” is no longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
86. Article 131e (10 U.S.C. 931e)—Prevention of
authorized seizure of property
This paragraph is taken from paragraph 103 (Article 134—
Seizure: destruction, removal, or disposal of property to prevent) of
the MCM (2016 edition) with the following amendments. The
offense is relocated to Article 131e pursuant to Section 5448 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
APPENDIX 17
A17-16
Stat. 2000 (2016). Proof of the Article 134 “terminal element” is no
longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
d. Maximum punishment. The authorized punishment for the
offense is modified and aligns with federal civilian law for similar
misconduct. See 18 U.S.C. § 2232.
87. Article 131f (10 U.S.C. 931f)—Noncompliance
with procedural rules
This paragraph is taken from paragraph 22 (Article 98—
Noncompliance with procedural rules) of the MCM (2016 edition)
with the following amendments. This offense is relocated to its
current position, pursuant to Section 5401 of the Military Justice Act
of 2016, Division E of the National Defense Authorization Act for
Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
88. Article 131g (10 U.S.C. 931g)—Wrongful
interference with adverse administrative
This paragraph is taken from paragraph 96a (Article 134—
Wrongful interference with an adverse administrative proceeding) of
the MCM (2016 edition) with the following amendments. The
offense is relocated to Article 131g pursuant to Section 5449 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016). Proof of the Article 134 “terminal element” is no
longer required.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
89. Article 132 (10 U.S.C. 932) —Retaliation
This is a new enumerated offense pursuant to Section 5450 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016), as further amended by Section 1081(c)(1)(Q) of
the National Defense Authorization Act for Fiscal Year 2018, Pub.
Law. No. 115-91, 131 Stat. 1283 (2017), which supplements and
does not preempt Service regulations that address other types or
categories of prohibited retaliatory actions. See also 10 U.S.C. §
1034, 18 U.S.C. § 1513. Service regulations may specify additional
types of retaliatory conduct punishable at court-martial under Article
92 or Article 134.
2023 Amendment: Subparagraph c. Explanation (2)(b) is added to
expand the definition of “Personnel action” to include actions affect
civilian employees.
90. Article 133 (10 U.S.C. 933)—Conduct
unbecoming an officer
This paragraph is taken from paragraph 59 (Article 133—Conduct
unbecoming an officer and a gentleman) of the MCM (2016 edition)
with the following amendments:
2018 Amendment: c. Explanation (1) Gentleman. This
subparagraph is amended to emphasize that the term “gentleman”
connotes failings in an officer’s personal character, regardless of
gender.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
2023 Amendment: Pursuant to Section 532 of the National
Defense Authorization Act for Fiscal Year 2022, Pub. L. No 117-81,
135 Stat. 1546 (2021), the name of this article and the text of the
statute are amended to remove “and a gentleman.” Subparagraph b.
Elements (2) is amended to remove “and a gentleman.”
Subparagraph c. Explanations is re-written in their entirety to clarify
the meaning of “officership” and to update the explanation of the
nature of the offense.
91. Article 134 (10 U.S.C. 934)—General article
This paragraph is taken from paragraph 60 (Article 134—General
Article) of the MCM (2016 edition), and reflects two significant
changes to designated Article 134 offenses within the MCM (2016
edition), namely, (1) the “relocation” of 36 of the 53 Article 134
offenses listed in MCM (2016 edition) to the enumerated punitive
articles (Articles 80-132); and (2) the statutory amendment to Article
134 to provide extraterritorial jurisdiction for noncapital federal
crimes committed outside of the United States which otherwise
require commission of the offense “within the special maritime and
territorial jurisdiction of the United States.”
2018 Amendment: a. Statutory text. Article 134 is amended and
specifically provides that under clause 3, extraterritorial jurisdiction
exists over non-capital federal crimes committed outside the United
States which include as an element that the crime occur “within the
special maritime or territorial jurisdiction of the United States.”
Clause 3 aligns the prosecutorial scope of noncapital federal offenses
under Article 134 with the prosecutorial scope of 18 U.S.C. § 3261
(applicable to civilian misconduct). This extraterritorial jurisdiction
does not extend to 18 U.S.C. § 13—Federal Assimilative Crimes
Act—which requires the commission of the offense concerned upon
an enclave of federal exclusive or concurrent jurisdiction.
b. Elements. The terminal element for each Article 134 offense is
revised as follows: "That, under the circumstances, the conduct of
the accused was either: (i) to the prejudice of good order and
discipline in the armed forces; (ii) was of a nature to bring discredit
upon the armed forces; or (iii) to the prejudice of good order and
discipline in the armed forces and of a nature to bring discredit upon
the armed forces." See RCM 307(c)(3) regarding the form for
alleging this terminal element.
c. Explanation. Subparagraph c.(4) is amended and clarifies the
categories of federal crimes and offenses which may be prosecuted
under clause (3), Article 134.
(6) Drafting specifications for Article 134 offenses. The third
paragraph in the Discussion following subparagraph c.(6)(a) is
consistent with United States v. Miles, 71 M.J. 671 (N.M. Ct. Crim.
ANALYSIS OF PUNITIVE ARTICLES
A17-17
App. 2012) and R. Peter Masterton, “A View From the Bench:
Prohibition on Disjunctive Charging Using ‘Or’”, A View From the
Bench: Prohibition on Disjunctive Charging Using ‘Or,’ A
RMY
LAW., May 2012.
92. Article 134—(Animal abuse)
This paragraph is taken from paragraph 61 (Article 134—Animal
Abuse) of the MCM (2016 edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
93. Article 134—(Bigamy)
This paragraph is taken from paragraph 65 (Article 134—
Bigamy) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
94. Article 134—(Check, worthless making and
uttering—by dishonorably failing to maintain
funds)
This paragraph is taken from paragraph 68 (Article 134—Check,
worthless, making and uttering—by dishonorably failing to maintain
funds) of the MCM (2016 edition) with the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
95. Article 134—(Child pornography)
This paragraph is taken from paragraph 68b (Article 134—Child
pornography) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: c. Explanation (1) In general. The scope of
child pornography under Article 134 is broader than the scope of
child pornography criminalized under 18 U.S.C. § 2252A. Cf.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Article 134
includes visual depictions of what appear to be minors engaged in
sexually explicit conduct within the definition of child pornography.
See United States v. Blouin, 74 M.J. 247 (C.A.A.F. 2015); United
States v. Forney, 67 M.J. 271, 275 (C.A.A.F. 2009); United States v.
Brisbane, 63 M.J. 106, 116 (C.A.A.F. 2006); United States v.
Roderick, 62 M.J. 425, 429 (C.A.A.F. 2006); United States v. Reeves,
62 M.J. 88, 96 (C.A.A.F. 2005); United States v. Mason, 60 M.J. 15,
19 (C.A.A.F. 2004); United States v. O’Connor, 58 M.J. 450
(C.A.A.F. 2003).
(2) Federal “Child pornography” and “Obscenity” offenses and
(3) State “child pornography” and “obscenity” offenses are new and
emphasize that Article 134—(Child pornography) is not intended to
preempt applicable federal and state child pornography and
obscenity statutes. (2) and (3) also discuss the circumstances under
which these federal and state child pornography and obscenity
statutes may be charged under Article 134, clauses 2 and 3.
(10) Sexually explicit conduct. The amendments do not change the
usefulness of the “Dost factors” in determining whether a particular
image qualifies as a “lascivious exhibition”, for purposes of this
offense. United States v. Dost, 636 F.Supp. 828, 832 (S.D. Ca. 1986),
aff’d sub nom United States v. Wiegand, 812 F.2d 1239 (9
th
Cir.
1987). The Dost factors are also commonly employed by federal
civilian and military courts in interpreting “lascivious exhibition” for
purposes of 18 U.S.C. § 2252A. See United States v. Roderick, 62
M.J. 425, 430 (C.A.A.F. 2006).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
96. Article 134—(Debt, dishonorably failing to pay)
This paragraph is taken from paragraph 71 (Article 134—Debt:
dishonorable failing to pay) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
97. Article 134—(Disloyal statements)
This paragraph is taken from paragraph 72 (Article 134—Disloyal
statements) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
98. Article 134—(Disorderly conduct, drunkenness)
This paragraph is taken from paragraph 73 (Article 134—
Disorderly conduct, drunkenness) of the MCM (2016 edition) with
the following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
99. Article 134—(Extramarital sexual conduct)
This paragraph is drawn from paragraph 62 (Article 134—
Adultery) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: This offense does not preempt any additional
lawful regulations prescribed by a proper authority to proscribe
additional forms of improper extramarital conduct by military
personnel. Violations of such regulations, directives, or orders may
be punishable under Article 92. See paragraph 18.
APPENDIX 17
A17-18
b. Elements. The definition of extramarital conduct is consistent
with the definition of sexually explicit conduct under 18 U.S.C. §
2256(2)(A)(i) and is gender neutral.
c. Explanation. (1) Nature of the offense was deleted and replaced
with Conduct prejudicial to good order and discipline or of a nature
to bring discredit upon the armed forces. Subparagraph c.(1)(h) from
the MCM (2016 edition) regarding legal separations is now an
affirmative defense. Subparagraph c.(1)(h) now lists pending legal
dissolution as a factor in assessing whether the conduct at issue meets
a terminal element.
(4) Legal separation. This is a new affirmative defense. In order
for the affirmative defense to apply, both parties to the conduct must
either be legally separated or unmarried. That is, it is not an
affirmative defense if the accused is legally separated but the co-
actor is still married. By the same token, it is an affirmative defense
if the accused is legally separated and the co-actor is unmarried.
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
100. Article 134—(Firearm, discharging—through
negligence)
This paragraph is taken from paragraph 80 (Article 134—Firearm,
discharging through negligence) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
101. Article 134—(Fraternization)
This paragraph is taken from paragraph 83 (Article 134—
Fraternization) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
102. Article 134—(Gambling with subordinate)
This paragraph is taken from paragraph 84 (Article 134—
Gambling with subordinate) of the MCM (2016 edition) with the
following amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
103. Article 134—(Homicide, negligent)
This paragraph is taken from paragraph 85 (Article 134—
Homicide, negligent) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
104. Article 134—(Indecent conduct)
This paragraph is taken from paragraph 90 (Article 134—
Indecent conduct) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
105. Article 134—(Indecent language)
This paragraph is taken from paragraph 89 (Article 134—
Indecent language) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment and f. Sample specification from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
106. Article 134—(Pandering and prostitution)
This paragraph is based on paragraph 97 (Article 134—Pandering
and prostitution) of the MCM (2016 edition) with the following
amendments:
2018 Amendment: (c)(1) Sexual act. The definition of “sexual act”
conforms to Article 120(g) as amended by Section 5430 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
Subparagraph d. Lesser included offenses from the MCM (2016
edition) has been deleted. Subparagraphs e. Maximum punishment
and f. Sample specification from the MCM (2016 edition) have been
redesignated as subparagraphs d. and e. respectively. For lesser
included offenses, see Appendix 12A.
107. Article 134—(Self-injury without intent to
avoid service)
This paragraph is taken from paragraph 103a (Article 134—Self-
injury without intent to avoid service) of the MCM (2016 edition).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment. and f. Sample specification. from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
ANALYSIS OF PUNITIVE ARTICLES
A17-19
107a. Article 134—(Sexual Harassment)
2023 Amendment: This is a new enumerated offense establishing
sexual harassment as a stand-alone offense under Article 134,
UCMJ. See National Defense Authorization Act for Fiscal Year
2022, Pub. L. No. 117-81, § 539D, 135 Stat. 1546 (2021).
108. Article 134—(Straggling)
This paragraph is taken from paragraph 107 (Article 134—
Straggling) of the MCM (2016 edition).
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment. and f. Sample specification. from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
109. Article 134—(Visual depiction, nonconsensual
distribution or broadcast)
This paragraph is taken from paragraph 114 (Article 134—
(Visual depiction, nonconsensual distribution or broadcast) of the
MCM (2016 edition), as amended by Exec. Order No. 13825, 83 Fed.
Reg. 9889 (March 1, 2018) without substantive amendment.
2018 Amendment: Subparagraph d. Lesser included offenses from
the MCM (2016 edition) has been deleted. Subparagraphs e.
Maximum punishment. and f. Sample specification. from the MCM
(2016 edition) have been redesignated as subparagraphs d. and e.
respectively. For lesser included offenses, see Appendix 12A.
APPENDIX 18
ANALYSIS OF NONJUDICIAL PUNISHMENT PROCEDURE
A18-1
1. General
c. Purpose. This paragraph is based on the legislative history of
Article 15, both as initially enacted and as modified in 1962. See
generally H.R.Rep. No. 491, 81st Cong., 1st Sess. 14–15 (1949);
S.Rep. No. 1911, 87th Cong., 2d Sess. (1962).
d. Policy. Subparagraph (1) is based on paragraph 129a of MCM,
1969 (Rev.). Subparagraph (2) is based on the last sentence of
paragraph 129a of MCM, 1969 (Rev.) and on service regulations.
See, e.g., AR 27–10, para. 3–4 b (1 Sep. 1982); JAGMAN sec.
0101. Cf. Article 37. Subparagraph (3) is based on the second
paragraph 129b of MCM, 1969 (Rev.).
e. Minor offenses. This paragraph is derived from paragraph 128b
of MCM, 1969 (Rev.), service regulations concerning “minor
offenses” (see, e.g., AR 27–10, para. 3–3d (1 Sep. 1982); AFR 111–
9, para. 3a(3) (31 Aug. 1979)); United States v. Fretwell, 11
U.S.C.M.A. 377, 29 C.M.R. 193 (1960). The intent of the para-
graph is to provide the commander with enough latitude to
appropriately resolve a disciplinary problem. Thus, in some
instances, the commander may decide that nonjudicial punishment
may be appropriate for an offense that could result in a dishonorable
discharge or confinement for more than 1 year if tried by general
court-martial, e.g., failure to obey an order or regulation. On the
other hand, the commander could refer a case to a court-martial that
would ordinarily be considered at nonjudicial punishment, e.g., a
short unauthorized absence, for a servicemember with a long history
of short unauthorized absences, which nonjudicial punishment has
not been successful in correcting.
2018 Amendment: Paragraph 1.e. is amended and addresses the
definition of minor offense.
f. Limitations on nonjudicial punishment.
(1) Double punishment prohibited. This subparagraph is taken
from the first paragraph of paragraph 128d of MCM, 1969 (Rev.).
Note that what is prohibited is the service of punishment twice.
Where nonjudicial punishment is set aside, this does not necessarily
prevent reimposition of punishment and service of punishment not
previously served.
(2) Increase in punishment prohibited. This paragraph is taken
from the second paragraph of paragraph 128d of MCM, 1969 (Rev.).
(3) Multiple punishment prohibited. This paragraph is based on
the guidance for court-martial offenses, found in paragraph 30g and
33h of MCM, 1969 (Rev.).
(4) Statute of limitations.
2018 Amendment: Paragraph 1.f.(4) is amended and clarifies that
a member may waive the statute of limitations applicable to
nonjudicial punishment. This is consistent with court-martial
practice. See United States v. Moore, 32 M.J. 170 (CMA 1991).
2023 Amendment: Paragraph 1.f.(4) is amended to update the
citation to Article 43, UCMJ.
(5) Civilian courts. This paragraph is derived from service
regulations (see, e.g., AR 27–10, chap. 4 (1 Sep. 1982)) and is
intended to preclude the possibility of a servicemember being
punished by separate jurisdictions for the same offense, except in
unusual cases.
g. Relationship of nonjudicial punishment to administrative
corrective measures. This paragraph is derived from paragraph 128c
of MCM, 1969 (Rev.) and service regulations.
h. Burden of proof.
2023 Amendment: This paragraph is amended to establish
“preponderance of the evidence” as the burden of proof for
imposition and appellate adjudication of nonjudicial punishment.
i. Effect of errors. This paragraph is taken from paragraph 130 of
MCM, 1969 (Rev.).
j. Applicable standards.
2023 Amendment: This paragraph was deleted from subparagraph
(h) and is now added to a new subparagraph (j). This subsection
clarifies that nonjudicial punishment proceedings conducted in a
combatant or joint command are to be conducted in accordance
with the implementing regulations and procedures of the service of
which the accused is a member. l. 2018 Amendments: Paragraph 1.e.
is amended and addresses the definition of minor offense. Paragraph
1.f.(4) is amended and clarifies that a member may waive the statute
of limitations applicable to nonjudicial punishment. This is
consistent with court-martial practice. See United States v. Moore,
32 M.J. 170 (CMA 1991).
2. Who may impose nonjudicial punishment
This paragraph is taken from paragraph 128a of MCM, 1969
(Rev.) and service regulations. See, e.g., AR 27–10, para. 3–7 (1 Sep.
1982); JAGMAN sec. 0101; AFR 111–9, para. 3 (31 Aug. 1979).
Additional guidance in this area is left to Secretarial regulation, in
accordance with the provisions of Article 15(a).
2005 Amendment: Subsection (2) was amended to clarify the
authority of the commander of a joint command to impose non-
judicial punishment upon service members of the joint command.
3. Right to demand trial
This paragraph is taken from Article 15(a) and paragraph 132 of
MCM, 1969 (Rev.).
2018 Amendment: Paragraph 3 is amended and addresses
nonjudicial punishment of a person attached to or embarked in a
vessel.
4. Procedure
This paragraph is based on paragraph 133 of MCM, 1969 (Rev.)
and service regulations. It provides a uniform basic procedure for
nonjudicial punishment for all the services. Consistent with the
purposes of nonjudicial punishment (see S.Rep. No. 1911, 87th
Cong. 2d Sess. 4 (1962)) it provides due process protections and is
intended to meet the concerns expressed in the Memorandum of
Secretary of Defense Laird, 11 January 1973. See also United States
v. Mack, 9 M.J. 300, 320–21 (C.M.A. 1980). The Report of the Task
Force on the Administration of Military Justice in the Armed Forces,
1972, and GAO Report to the Secretary of Defense, Better
Administration of Military Article 15 Punishments for Minor
Offenses is Needed, September 2, 1980, were also considered.
Note that there is no right to consult with counsel before deciding
whether to demand trial by court-martial. Unless other- wise
prescribed by the Secretary concerned, the decision whether to
permit a member to consult with counsel is left to the commander.
In United States v. Mack, supra, records of punishments where such
APPENDIX 18
A18-2
opportunity was not afforded (except when the member was attached
to or embarked in a vessel) were held inadmissible in
courts-martial.
1986 Amendment: Subparagraph (c)(2) was amended to state
clearly that a servicemember has no absolute right to refuse to appear
personally before the person administering the nonjudicial
punishment proceeding. In addition, Part V was amended throughout
to use the term “nonjudicial punishment authority” in circumstances
where the proceeding could be administered by a commander, officer
in charge, or a principal assistant to a general court-martial
convening authority or general or flag officer.
5. Punishments
This paragraph is taken from paragraph 131 of MCM, 1969
(Rev.). Subparagraph b(2)(b)4 is also based on S.Rep. 1911, 87th
Cong., 1st Sess. 7 (1962). Subparagraph c(4) is also based on id. at
6–7 and Hearings Before a Subcomm. of the House Comm. on Armed
Services, 87th Cong., 1st Sess. 33 (1962). Detention of pay was
deleted as a punishment because under current centralized pay
systems, detention of pay is cumbersome, ineffective, and seldom
used. The concept of apportionment, authorized in Article 15(b) and
set forth in paragraph 131d of MCM, 1969 (Rev.), was eliminated as
unnecessary and confusing. Accordingly, the Table of Equivalent
Punishments is no longer necessary. Subparagraph d, in concert with
the elimination of the apportionment concept, will ease the
commanders burden of determining an appropriate punishment and
make the implementation of that punishment more efficient and
understandable.
1987 Amendment: Subparagraph e was redesignated as sub-
paragraph g and new subparagraphs e and f were added to implement
the amendments to Articles 2 and 3, UCMJ, contained in the
“Military Justice Amendments of 1986,” tit. VIII, § 804, National
Defense Authorization Act for fiscal year 1987, Pub. L. No. 99–661,
100 Stat. 3905 (1986).
1990 Amendment: Subsection (c)(8) was amended to incorporate
the statutory expansion of jurisdiction over reserve component
personnel provided in the Military Justice Amendments of 1990, tit.
XIII, § 1303, National Defense Authorization Act of Fiscal Year
1990, Pub. L. 101–189, 103 Stat. 1352 (1989).
2007 Amendment: Paragraph 5.c.(8) was amended because
Hardship Duty Pay (HDP) superseded Foreign Duty Pay (FDP) on 3
February 1999. HDP is payable to members entitled to basic pay.
The Secretary of Defense has established that HDP will be paid to
members (a) for performing specific missions, or (b) when assigned
to designated areas.
2018 Amendment: Subparagraphs 5.b.(2)(A)(i) and 5.b.(2)(B)(i)
are amended and reflect the elimination of confinement on bread and
water or diminished rations as an authorized nonjudicial punishment
in Section 5141 of the Military Justice Act of 2016, Division E of the
National Defense Authorization Act for Fiscal Year 2017, Pub. L.
No. 114-328, 130 Stat. 2000 (2016).
2018 Amendment: Subparagraph 5.c.(1) is amended and reflects
the elimination of confinement on bread and water or diminished
rations as an authorized nonjudicial punishment in Section 5141 of
the Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
2018 Amendment: Subparagraph 5.d.(1) is amended and reflects
the elimination of confinement on bread and water or diminished
rations as an authorized nonjudicial punishment in Section 5141 of
the Military Justice Act of 2016, Division E of the
National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
2018 Amendment: Paragraphs 5.b.(2)(A)(i), 5.b.(2)(B)(i), 5.c.(5),
and 5.d.(2) are amended and address the authorized punishments.
6. Suspension, mitigation, remission, and setting
aside
This paragraph is taken from Article 15, paragraph 134 of MCM
1969 (Rev.), and service regulations. See e.g., AR 27–10, paras. 3–
23 through 3–28 (1 Sep. 1982); JAGMAN sec. 0101; AFR 111–9,
para 7 (31 Aug 1979). Subparagraph a dealing with suspension was
expanded to: require a violation of the code during the period of
suspension as a basis for vacation action, and to explain that vacation
action is not in itself nonjudicial punishment and does not preclude
the imposition of nonjudicial punishment for the offenses upon
which the vacation action was based. Subparagraph a(4) provides a
procedure for vacation of suspended nonjudicial punishment. This
procedure parallels the procedure found sufficient to make
admissible in courts-martial records of vacation of suspended
nonjudicial punishment. United States v. Covington, 10 M.J. 64
(C.M.A. 1980).
1990 Amendment: A new subsection a(4) was added to permit
punishment imposed under Article 15 to be suspended based on
conditions in addition to violations of the UCMJ. This affords the
same flexibility given to authorities who suspend punishment
adjudged at court-martial under R.C.M. 1108(c). Experience has
demonstrated the necessity and utility of such flexibility in the
nonjudicial punishment context.
2018 Amendment: Subparagraph 6.d is amended and reflects the
elimination of confinement on bread and water or diminished rations
as an authorized nonjudicial punishment in Section 5141 of the
Military Justice Act of 2016, Division E of the National Defense
Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130
Stat. 2000 (2016).
2018 Amendment: Paragraphs 6.b.(2) and b.(3) are amended and
address mitigation and remission of authorized punishments.
7. Appeals
This paragraph is taken from paragraph 135 of MCM, 1969 (Rev.)
and service regulations dealing with appeals. See AR 27–10, paras.
3–29 through 3–35 (1 Sep. 1982); JAGMAN 0101; AFR 111–9,
para. 8 (31 Aug. 1981). Subparagraph (d) requires an appeal to be
filed within 5 days or the right to appeal will be waived, absent
unusual circumstances. This is a reduction from the 15 days provided
for in paragraph 135 and is intended to expedite the appeal process.
Subparagraph f(2) is intended to promote sound practice, that is, the
superior authority should consider many factors when reviewing an
appeal, and not be limited to matters submitted by the appellant or
the officer imposing the punishment. Subparagraph f(3) provides for
“additional proceedings” should a punishment be set aside due to a
procedural error. This is consistent with court-martial practice and
intended to ensure that procedural errors do not prevent appropriate
disposition of a disciplinary matter.
8. Records of nonjudicial punishment
This paragraph is taken from Article 15(g) and paragraph 133c of
MCM, 1969 (Rev).
APPENDIX 19
HISTORICAL EXECUTIVE ORDERS
A19-1
Each Executive Order is available online at the Joint Service Committee’s website at the following address:
http://jsc.defense.gov.
EXECUTIVE ORDER 12473
49 Fed Reg. 17152 (Apr. 23, 1984)
President Ronald W. Reagan (Apr. 13, 1984)
EXECUTIVE ORDER 12484
49 Fed. Reg. 28825 (July 17, 1984)
President Ronald W. Reagan (July 13, 1984)
EXECUTIVE ORDER 12550
51 Fed. Reg. 6497 (Feb. 25, 1986)
President Ronald W. Reagan (Feb. 19, 1986)
EXECUTIVE ORDER 12586
52 Fed. Reg. 7103 (Mar. 9, 1987)
President Ronald W. Reagan (Mar. 3, 1987)
EXECUTIVE ORDER 12708
55 Fed. Reg. 11353 (Mar. 27, 1990)
President George H.W. Bush (Mar. 23, 1990)
EXECUTIVE ORDER 12767
56 Fed. Reg. 30284 (July 1, 1991)
President George H.W. Bush (June 27, 1991)
EXECUTIVE ORDER 12888
58 Fed. Reg. 69153 (Dec. 29, 1993)
President William J. Clinton (Dec. 23, 1993)
EXECUTIVE ORDER 12936
59 Fed. Reg. 59075 (Nov. 15 1994)
President William J. Clinton (Nov. 10, 1994)
EXECUTIVE ORDER 12960
60 Fed. Reg. 26647 (May 17, 1995)
President William J. Clinton (May 12, 1995)
EXECUTIVE ORDER 13086
63 Fed. Reg. 30065 (June 2, 1998)
President William J. Clinton (May 27, 1998)
EXECUTIVE ORDER 13140
64 Fed. Reg. 55115 (Oct. 12, 1999)
President William J. Clinton (Oct. 6, 1999)
EXECUTIVE ORDER 13262
67 Fed. Reg. 18773 (Apr. 17, 2002)
President George W. Bush (Apr. 11, 2002)
EXECUTIVE ORDER 13365
69 Fed. Reg. 71333 (Dec. 8, 2004)
President George W. Bush (Dec. 3, 2004)
EXECUTIVE ORDER 13387
70 Fed. Reg. 60697 (Oct. 18, 2005)
President George W. Bush (Oct. 14, 2005)
EXECUTIVE ORDER 13430
72 Fed. Reg. 20213 (Apr. 23, 2007)
President George W. Bush (Apr. 18, 2007)
EXECUTIVE ORDER 13447
72 Fed. Reg. 56179 (Oct. 2, 2007)
President George W. Bush (Sep. 28, 2007)
EXECUTIVE ORDER 13468
73 Fed. Reg. 43827 (July 28, 2008)
President George W. Bush (July 24, 2008)
EXECUTIVE ORDER 13552
75 Fed. Reg. 54263 (Sep. 3, 2010)
President Barack H. Obama (Aug 31, 2010)
APPENDIX 19
A19-2
EXECUTIVE ORDER 13593
76 Fed. Reg. 78451 (Dec. 16, 2011)
President Barack H. Obama (Dec. 13, 2011)
EXECUTIVE ORDER 13643
78 Fed. Reg. 29559 (May 21, 2013)
President Barack H. Obama (May 15, 2013)
EXECUTIVE ORDER 13669
79 Fed. Reg. 34999 (June 18, 2014)
President Barack H. Obama (June 13, 2014)
EXECUTIVE ORDER 13696
80 Fed. Reg. 35781 (June 22, 2015)
President Barack H. Obama (June 17, 2015)
EXECUTIVE ORDER 13730
81 Fed. Reg. 33331 (May 26, 2016)
President Barack H. Obama (May 20, 2016)
EXECUTIVE ORDER 13740
81 Fed. Reg. 65175 (Sep. 22, 2016)
President Barack H. Obama (Sep. 16, 2016)
EXECUTIVE ORDER 13825
83 Fed. Reg. 9889 (Mar. 8, 2018)
President Donald J. Trump (Mar. 1, 2018)
EXECUTIVE ORDER 14062
87 Fed. Reg. 4763 (Jan. 31, 2022)
President Joseph R. Biden (Jan. 26, 2022)
EXECUTIVE ORDER 14103
88 Fed. Reg. 50535 (Aug. 2, 2023)
President Joseph R. Biden (Jul. 28, 2023)
APPENDIX 20
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED
PRIOR TO 1 OCTOBER 2007
A20-1
The punitive articles contained in this appendix were
replaced or superseded by changes to Article 120,
Uniform Code of Military Justice, contained in the
National Defense Authorization Act for Fiscal Year
2006. Article 120 was amended again by the National
Defense Authorization Act for Fiscal Year 2012. Each
version of Article 120 is located in a different part of
this Manual. For offenses committed prior to 1 October
2007, the relevant sexual offense provisions and
analysis are contained in this appendix and listed
below. For offenses committed during the period 1
October 2007 through 27 June 2012, the relevant
sexual offense provisions and analysis are contained in
Appendix 28. For offenses committed on or after 28
June 2012, the relevant sexual offense provisions are
contained in Part IV of this Manual (Articles 120,
120b, and 120c).
45. Article 120—Rape and carnal knowledge
a. Text.
(a) Any person subject to this chapter who commits
an act of sexual intercourse by force and without
consent, is guilty of rape and shall be punished by
death or such other punishment as a court-martial may
direct.
(b) Any person subject to this chapter who, under
circumstances not amounting to rape, commits an act
of sexual intercourse with a person—
(1) who is not his or her spouse; and
(2) who has not attained the age of sixteen years,
is guilty of carnal knowledge and shall be punished as
a court-martial may direct.
(c) Penetration, however slight, is sufficient to
complete either of these offenses.
(d)(1) In a prosecution under subsection (b), it is an
affirmative defense that—
(A) the person with whom the accused committed
the act of sexual intercourse had at the time of the
alleged offense attained the age of twelve years; and
(B) the accused reasonably believed that the
person had at the time of the alleged offense attained
the age of 16 years.
(2) The accused has the burden of proving a
defense under subparagraph (d)(1) by a preponderance
of the evidence.
b. Elements.
(1) Rape.
(a) That the accused committed an act of sexual
intercourse; and
(b) That the act of sexual intercourse was done by
force and without consent.
(2) Carnal knowledge.
(a) That the accused committed an act of sexual
intercourse with a certain person;
(b) That the person was not the accused’s spouse;
and
(c)(1) That at the time of the sexual intercourse
the person was under the age of 12; or
(2) That at the time of the sexual intercourse the
person had attained the age of 12 but was under the age
of 16.
c. Explanation.
(1) Rape.
(a) Nature of offense. Rape is sexual intercourse
by a person, executed by force and without consent of
the victim. It may be committed on a victim of any age.
Any penetration, however slight, is sufficient to
complete the offense.
(b) Force and lack of consent. Force and lack of
consent are necessary to the offense. Thus, if the victim
consents to the act, it is not rape. The lack of consent
required, however, is more than mere lack of
acquiescence. If a victim in possession of his or her
mental faculties fails to make lack of consent
reasonably manifest by taking such measures of
resistance as are called for by the circumstances, the
inference may be drawn that the victim did consent.
Consent, however, may not be inferred if resistance
would have been futile, where resistance is overcome
by threats of death or great bodily harm, or where the
victim is unable to resist because of the lack of mental
or physical faculties. In such a case there is no consent
and the force involved in penetration will suffice. All
the surrounding circumstances are to be considered in
determining whether a victim gave consent, or whether
APPENDIX 20
A20-2
he or she failed or ceased to resist only because of a
reasonable fear of death or grievous bodily harm. If
there is actual consent, although obtained by fraud, the
act is not rape, but if to the accused’s knowledge the
victim is of unsound mind or unconscious to an extent
rendering him or her incapable of giving consent, the
act is rape. Likewise, the acquiescence of a child of
such tender years that he or she is incapable of under-
standing the nature of the act is not consent.
(c) Character of victim. See Mil. R. Evid. 412
concerning rules of evidence relating to an alleged rape
victim’s character.
(2) Carnal knowledge. “Carnal knowledge” is
sexual intercourse under circumstances not amounting
to rape, with a person who is not the accused’s spouse
and who has not attained the age of 16 years. Any
penetration, however slight, is sufficient to complete
the offense. It is a defense, however, which the
accused must prove by a preponderance of the
evidence, that at the time of the act of sexual
intercourse, the person with whom the accused
committed the act of sexual intercourse was at least 12
years of age, and that the accused reasonably believed
that this same person was at least 16 years of age.
d. Lesser included offenses.
(1) Rape.
(a) Article 128—assault; assault consummated by
a battery
(b) Article 134—assault with intent to commit
rape
(c) Article 134—indecent assault
(d) Article 80—attempts
(e) Article 120(b)—carnal knowledge
(2) Carnal knowledge.
(a) Article 134—indecent acts or liberties with a
person under 16
(b) Article 80—attempts
e. Maximum punishment.
(1) Rape. Death or such other punishment as a court-
martial may direct.
(2) Carnal knowledge with a child who, at the time
of the offense, has attained the age of 12 years.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 20 years.
(3) Carnal knowledge with a child under the age of
12 years at the time of the offense. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for life without eligibility for parole.
f. Sample specifications.
(1) Rape. In that (personal jurisdiction data), did,
(at/on board — location) (subject - matter jurisdiction
data, if required), on or about __________, rape,
__________ (a person under the age of 12) (a person
who had attained the age of 12 but was under the age
of 16).
(2) Carnal knowledge. In that (personal jurisdiction
data), did, (at/on board — location) (subject - matter
jurisdiction data, if required), on or about __________,
commit the offense of carnal knowledge with
__________, (a person under the age of 12) (a person
who attained the age of 12 but was under the age of
16).
63. Article 134—(Assault—indecent)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused assaulted a certain person not
the spouse of the accused in a certain manner;
(2) That the acts were done with the intent to gratify
the lust or sexual desires of the accused; and
(3) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
c. Explanation. See paragraph 54c for a discussion of
assault. Specific intent is an element of this offense.
For a definition of ’indecent’, see paragraph 90c.
d. Lesser included offenses.
(1) Article 128—assault consummated by a battery;
assault
(2) Article 134—indecent acts
(3) Article 80—attempts
e.
Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
f. Sample specification. In that (personal jurisdiction
data), did (at/on board—location), (subject-matter
jurisdiction data, if required), on or about __________,
commit an indecent assault upon a person not his/her
wife/husband by __________, with intent to gratify
his/her (lust) (sexual desires).
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED
PRIOR TO 1 OCTOBER 2007
A20-3
87. Article 134—(Indecent acts or liberties with
a child)
a. Text. See paragraph 60.
b. Elements.
(1) Physical contact.
(a) That the accused committed a certain act upon
or with the body of a certain person;
(b) That the person was under 16 years of age and
not the spouse of the accused;
(c) That the act of the accused was indecent;
(d) That the accused committed the act with intent
to arouse, appeal to, or gratify the lust, pas- sions, or
sexual desires of the accused, the victim, or both; and
(e) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
(2) No physical contact.
(a) That the accused committed a certain act;
(b) That the act amounted to the taking of indecent
liberties with a certain person;
(c) That the accused committed the act in the
presence of this person;
(d) That this person was under 16 years of age and
not the spouse of the accused;
(e) That the accused committed the act with the
intent to arouse, appeal to, or gratify the lust, passions,
or sexual desires of the accused, the victim, or both;
and
(f) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
c. Explanation.
(1) Consent. Lack of consent by the child to the act
or conduct is not essential to this offense; consent is
not a defense.
(2) Indecent liberties. When a person is charged with
taking indecent liberties, the liberties must be taken in
the physical presence of the child, but physical contact
is not required. Thus, one who with the requisite intent
exposes one’s private parts to a child under 16 years of
age may be found guilty of this offense. An indecent
liberty may consist of communication of indecent
language as long as the communication is made in the
physical presence of the child.
(3)Indecent. See paragraph 89c and 90c.
d. Lesser included offense.
(1) Article 134—indecent acts with another
(2) Article 128—assault; assault consummated by a
battery
(3) Article 80—attempts
e. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 7 years.
f. Sample specification. In that (personal jurisdiction
data), did, (at/on board — location) (subject - matter
jurisdiction data, if required), on or about __________,
(take (indecent) liberties with) (commit an indecent act
(upon) (with) the body of) __________, a (female)
(male) under 16 years of age, not the (wife) (husband)
of the said __________, by (fondling (her) (him) and
placing his/her hands upon (her) (his) leg and private
parts) ( ), with intent to (arouse) (appeal to) (gratify)
the (lust) (passion) (sexual desires) of the said ( ).
88. Article 134—(Indecent exposure)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused exposed a certain part of the
accused’s body to public view in an indecent
manner;
(2) That the exposure was willful and wrongful;
and
(3) That, under the circumstances, the accused’s
conduct was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
c. Explanation. “Willful” means an intentional
exposure to public view. Negligent indecent exposure
is not punishable as a violation of the code. See
paragraph 90c concerning “indecent.”
d. Lesser included offense. Article 80—attempts
e. Maximum punishment. Bad - conduct discharge,
forfeiture of all pay and allowances, and confinement
for 6 months.
f. Sample specification. In that (personal jurisdiction
data), did (at/on board—location) (subject-matter
APPENDIX 20
A20-4
jurisdiction data, if required), on or about
__________ while (at a barracks window) ( )
willfully and wrongfully expose in an indecent
manner to public view his or her __________.
90. Article 134—(Indecent acts with another)
a. Text. See paragraph 60.
b. Elements.
(1) That the accused committed a certain wrongful
act with a certain person;
(2) That the act was indecent; and
(3) That, under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
c. Explanation. “Indecent” signifies that form of
immorality relating to sexual impurity which is not
only grossly vulgar, obscene, and repugnant to
common propriety, but tends to excite lust and deprave
the morals with respect to sexual relations.
d. Lesser included offense. Article 80—attempts
e. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 5 years.
f. Sample specification. In that (personal jurisdiction
data), did (at/on board—location) (subject-matter
jurisdiction data, if required), on or about
__________, wrongfully commit an indecent act
with by __________.
Appendix 20 Analysis Follows:
The analysis was inserted into this appendix to
accompany the version of Article 120, and other
punitive sexual offense articles, applicable to offenses
committed before 1 October 2007. For offenses
committed during the period 1 October 2007 through
27 June 20 12, analysis related to Article 120 is
contained in Appendix 21. For offenses committed
between 28 June 2012, and 31 December 2018 analysis
related to Article 120, 120b, and 120c is contained in
Appendix 22.]
45. Article 120—Rape and carnal knowledge
b. Elements. 2004 Amendment: Paragraph 45(b)(2)
was amended to add two distinct elements of age based
upon the 1994 amendment to paragraph 45(e). See also
concurrent change to R.C.M. 307(c)(3) and
accompanying analysis.
c. Explanation. This paragraph is based on para- graph
199 of MCM, 1969 (Rev). The third paragraph of
paragraph 199 (a) was deleted as unnecessary.
The third paragraph of paragraph 199(b) was deleted
based on the preemption doctrine. See United States v.
Wright, 5 M.J. 106 (C.M.A. 1978); United States v.
Norris, 2 U.S.C.M.A. 236, 8 C.M.R. 36 (1953). Cf.
Williams v. United States, 327 U.S. 711 (1946) (scope
of preemption doctrine). The Military Rules of
Evidence deleted the requirement for corroboration of
the victim’s testimony in rape and similar cases under
former paragraph 153 a of MCM, 1969. See Analysis,
Mil. R. Evid. 412.
d. Lesser included offenses. Carnal knowledge was
deleted as a lesser included offense of rape in view of
the separate elements in each offense. Both should be
separately pleaded in a proper case. See generally
United States v. Smith, 7 M.J. 842 (A.C.M.R. 1979).
1993 Amendment. The amendment to para 45d(1)
represents an administrative change to conform the
Manual with case authority. Carnal knowledge is a
lesser included offense of rape where the pleading
alleges that the victim has not attained the age of 16
years. See United States v. Baker, 28 M.J. 900
(A.C.M.R. 1989); United States v. Stratton, 12 M.J.
998 (A.F.C.M.R. 1982), pet. denied, 15 M.J. 107
(C.M.A. 1983); United States v. Smith, 7 M.J. 842
(A.C.M.R. 1979).
e. Maximum punishment.
1994 Amendment. Subparagraph e was amended by
creating two distinct categories of carnal knowledge
for sentencing purposes -- one involving children who
had attained the age of 12 years at the time of the
offense, now designated as subparagraph e(2), and the
other for those who were younger than 12 years. The
latter is now designated as subparagraph e(3). The
punishment for the older children was increased from
15 to 20 years confinement. The maximum
confinement for carnal knowledge of a child under 12
years was increased to life. The purpose for these
changes is to bring the punishments more in line with
those for sodomy of a child under paragraph 51e of this
part and with the Sexual Abuse Act of 1986, 18 U.S.C.
§§ 2241–2245. The alignment of the maximum
punishments for carnal knowledge with those of
sodomy is aimed at paralleling the concept of gender–
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED
PRIOR TO 1 OCTOBER 2007
A20-5
neutrality incorporated into the Sexual Abuse Act.
1995 Amendment. The offense of rape was made
gender neutral and the spousal exception was removed
under Article 120(a). National Defense Authorization
Act for Fiscal Year 1993, Pub. L. No. 10 2–484, 106
Stat. 2315, 2506 (1992).
Rape may “be punished by death” only if
constitutionally permissible. In Coker v. Georgia, 433
U.S. 584 (1977), the Court held that the death penalty
is “grossly disproportionate and excessive punishment
for the rape of an adult woman,” and is “therefore
forbidden by the Eighth Amendment as cruel and
unusual punishment.” Id. at 592 (plurality opinion).
Coker, however, leaves open the question of whether it
is permissible to impose the death penalty for the rape
of a minor by an adult. See Coker, 433 U.S. at 595. See
Leatherwood v. State, 548 So.2d 389 (Miss. 1989)
(death sentence for rape of minor by an adult is not
cruel and unusual punishment prohibited by the Eighth
Amendment). But see Buford v. State, 403 So.2d 943
(Fla. 1981) (sentence of death is grossly
disproportionate for sexual assault of a minor by an
adult and consequently is forbidden by Eighth
Amendment as cruel and unusual punishment).
1998 Amendment: In enacting section 1113 of the
National Defense Authorization Act for Fiscal Year
1996, Pub. L. No. 104-106, 110 Stat. 186, 462 (1996),
Congress amended Article 120, UCMJ, to make the
offense gender neutral and create a mistake of fact as
to age defense to a prosecution for carnal knowledge.
The accused must prove by a preponderance of the
evidence that the person with whom he or she had
sexual intercourse was at least 12 years of age, and
that the accused reasonably believed that this person
was at least 16 years of age.
f. Sample Specification. 2004 Amendment: Paragraph
45(f)(2) was amended to aid practitioners in charging
the two distinct categories of carnal knowledge created
in 1994. For the same reason paragraph 45(f)(1) was
amended to allow for contingencies of proof because
carnal knowledge is a lesser-included offense of rape
if properly pleaded. See also concurrent change to
R.C.M.307(c)(3) and accompanying analysis.
63. Article 134—(Assault—indecent)
c. Explanation. This paragraph is based on paragraph
213f(2) of MCM, 1969 (Rev.). See United States v.
Caillouette, 12 U.S.C.M.A. 149, 30 C.M.R. 149 (1961)
regarding specific intent. See also United States v.
Headspeth, 2 U.S.C.M.A. 635, 10 C.M.R. 133 (1953).
Gender-neutral language has been used in this
paragraph, as well as throughout this Manual. This will
eliminate any question about the intended scope of
certain offenses, such as indecent assault such as may
have been raised by the use of the masculine pronoun
in MCM, 1969 (Rev.). It is, however, consistent with
the construction given to the former Manual. See, e.g.,
United States v. Respess, 7 M.J. 566 (A.C.M.R. 1979).
See generally 1 U.S.C. § 1 (“unless the context
indicates otherwise … words importing the masculine
gender include the feminine as well ….”).
d. Lesser included offenses. See United States v.
Thacker, 16 U.S.C.M.A. 408, 37 C.M.R. 28 (1966);
United States v. Jackson, 31 C.M.R. 738 (A.F.B.R.
1962).
2007 Amendment: This paragraph has been replaced
in its entirety by paragraph 45. See Article 120 (e)
Aggravated Sexual Contact, (h) Abusive Sexual
Contact, and (m) Wrongful Sexual Contact.
87. Article 134—(Indecent acts or liberties with
a child)
c. Explanation. This paragraph is based on paragraph
213f(3) of MCM, 1969 (Rev.). See also United States
v. Knowles, 15 U.S.C.M.A. 404, 35 C.M.R. 376
(1965); United States v. Brown, 3 U.S.C.M.A. 454, 13
C.M.R. 454, 13 C.M.R. 10 (1953); United States v.
Riffe, 25 C.M.R. 650 (A.B.R. 1957), pet. denied, 9
U.S.C.M.A. 813, 25 C.M.R. 486 (1958). “Lewd” and
“lascivious” were deleted because they are
synonymous with indecent. See id. See also paragraph
90c.
2007 Amendment. This paragraph has been replaced
in its entirety by paragraph 45. See Article 120 (g)
Aggravated Sexual Contact with a Child, (i) Abusive
Sexual Contact with a Child, and (j) Indecent Liberty
with Child.
APPENDIX 20
A20-6
88. Article 134—(Indecent exposure)
c. Explanation. This paragraph and is based on United
States v. Manos, 8 U.S.C.M.A. 734, 25 C.M.R. 238
(1958). See also United States v. Caune, 22
U.S.C.M.A. 200, 46 C.M.R. 200 (1973); United States
v. Conrad, 15 U.S.C.M.A. 439, 35 C.M.R. 411 (1965).
e. Maximum punishment. The maximum punishment
has been increased to include a bad-conduct discharge.
Indecent exposure in some circumstances (e.g., in front
of children, but without the intent to incite lust or
gratify sexual desires necessary for indecent acts or
liberties) is sufficiently serious to authorize a punitive
discharge.
2007 Amendment: This paragraph has been replaced
in its entirety by paragraph 45. See Article 120(n)
Indecent Exposure.
90. Article 134—(Indecent acts with another)
c. Explanation. This and is based on United States v.
Holland, 12 U.S.C.M.A. 444, 31 C.M.R. 30 (1961);
United States v. Gaskin, 12 U.S.C.M.A. 419, 31
C.M.R. 5 (1962); United States v. Sanchez, 11
U.S.C.M.A. 216, 29 C.M.R. 32 (1960); United States
v. Johnson, 4 M.J. 770 (A.C.M.R. 1978). “Lewd” and
“lascivious” have been deleted as they are synonymous
with “indecent.” See id.
APPENDIX 21
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED
DURING THE PERIOD 1 OCTOBER 2007 THROUGH 27 JUNE 2012
A21-1
The punitive articles contained in this appendix were
replaced or superseded by Articles 120, 120b, and
120c, Uniform Code of Military Justice, as amended or
established by the National Defense Authorization Act
for Fiscal Year 2012. Article 120 was previously
amended by the National Defense Authorization Act
for Fiscal Year 2006. Each version of Article 120 is
located in a different part of this Manual. For offenses
committed prior to 1 October 2007, the relevant sexual
offense provisions are contained in Appendix 20. For
offenses committed during the period 1 October 2007
through 27 June 2012, the relevant sexual offense
provisions are contained in this appendix and listed
below. For offenses committed between 28 June 2012
and 31 December 2018, the relevant sexual offense
provisions are contained in Appendix 22.
45. Article 120—Rape, sexual assault, and
other sexual misconduct
a. Text of statute.
(a) Rape. Any person subject to this chapter who
causes another person of any age to engage in a
sexual act by—
(1) using force against that other person;
(2) causing grievous bodily harm to any person;
(3) threatening or placing that other person in
fear that any person will be subjected to death,
grievous bodily harm, or kidnapping;
(4) rendering another person unconscious; or
(5) administering to another person by force or
threat of force, or without the knowledge or
permission of that person, a drug, intoxicant, or
other similar substance and thereby substantially
impairs the ability of that other person to appraise
or control conduct; is guilty of rape and shall be
punished as a court-martial may direct.
(b) Rape of a child. Any person subject to this
chapter who—
(1) engages in a sexual act with a child who has
not attained the age of 12 years; or
(2) engages in a sexual act under the
circumstances described in subsection (a) with a
child who has attained the age of 12 years; is guilty
of rape of a child and shall be punished as a court-
martial may direct.
(c) Aggravated sexual assault. Any person subject
to this chapter who—
(1) causes another person of any age to engage
in a sexual act by—
(A) threatening or placing that other person
in fear (other than by threatening or placing that
other person in fear that any person will be
subjected to death, grievous bodily harm, or
kidnapping); or
(B) causing bodily harm; or
(2) engages in a sexual act with another person
of any age if that other person is substantially
incapacitated or substantially incapable of—
(A) appraising the nature of the sexual act;
(B) declining participation in the sexual act;
or
(C) communicating unwillingness to engage
in the sexual act; is guilty of aggravated sexual
assault and shall be punished as a court-martial
may direct.
(d) Aggravated sexual assault of a child. Any
person subject to this chapter who engages in a
sexual act with a child who has attained the age of
12 years is guilty of aggravated sexual assault of a
child and shall be punished as a court-martial may
direct.
(e) Aggravated sexual contact. Any person
subject to this chapter who engages in or causes
sexual contact with or by another person, if to do
so would violate subsection (a) (rape) had the
sexual contact been a sexual act, is guilty of
aggravated sexual contact and shall be punished
as a court-martial may direct.
(f) Aggravated sexual abuse of a child. Any person
subject to this chapter who engages in a lewd act
with a child is guilty of aggravated sexual abuse of
a child and shall be punished as a court-martial
may direct
(g) Aggravated sexual contact with a child. Any
person subject to this chapter who engages in or
causes sexual contact with or by another person, if
to do so would violate subsection (b) (rape of a
APPENDIX 21
A21-2
child) had the sexual contact been a sexual act, is
guilty of aggravated sexual contact with a child
and shall be punished as a cour-martial may
direct.
(h) Abusive sexual contact. Any person subject to
this chapter who engages in or causes sexual
contact with or by another person, if to do so
would violate subsection (c) (aggravated sexual
assault) had the sexual contact been a sexual act,
is guilty of abusive sexual contact and shall be
punished as a court-martial may direct.
(i) Abusive sexual contact with a child. Any person
subject to this chapter who engages in or causes
sexual contact with or by another person, if to do
so would violate subsection (d) (aggravated sexual
assault of a child) had the sexual contact been a
sexual act, is guilty of abusive sexual contact with
a child and shall be punished as a court-martial
may direct.
(j) Indecent liberty with a child. Any person
subject to this chapter who engages in indecent
liberty in the physical presence of a child—
(1) with the intent to arouse, appeal to, or
gratify the sexual desire of any person; or
(2) with the intent to abuse, humiliate, or
degrade any person; is guilty of indecent liberty
with a child and shall be punished as a court-
martial may direct.
(k) Indecent act. Any person subject to this
chapter who engages in indecent conduct is guilty of
an indecent act and shall be punished as a court-
martial may direct.
(l) Forcible pandering. Any person subject to this
chapter who compels another person to engage in
an act of prostitution with another person to be
directed to said person is guilty of forcible
pandering and shall be punished as a court-martial
may direct.
(m) Wrongful sexual contact. Any person subject to
this chapter who, without legal justification or
lawful authorization, engages in sexual contact with
another person without that other person’s
permission is guilty of wrongful sexual contact and
shall be punished as a court-martial may direct.
(n) Indecent exposure. Any person subject to this
chapter who intentionally exposes, in an indecent
manner, in any place where the conduct involved
may reasonably be expected to be viewed by
people other than members of the actor’s family
or household, the genitalia, anus, buttocks, or
female areola or nipple is guilty of indecent
exposure and shall be punished as a court-martial
may direct.
(o) Age of child.
(1) Twelve years. In a prosecution under
subsection (b) (rape of a child), subsection (g)
(aggravated sexual contact with a child), or
subsection (j) (indecent liberty with a child), it
need not be proven that the accused knew that the
other per-on engaging in the sexual act, contact, or
liberty had not attained the age of 12 years. It is
not an affirmative defense that the accused
reasonably believed that the child had attained the
age of 12 years.
(2) Sixteen years. In a prosecution under
subsection (d) (aggravated sexual assault of a
child), subsection (f) (aggravated sexual abuse of a
child), subsection (i) (abusive sexual contact with
a child), or subsection (j) (indecent liberty with a
child), it need not be proven that the accused knew
that the other person engaging in the sexual act,
contact, or liberty had not attained the age of 16
years. Unlike in paragraph (1), however, it is an
affirmative defense that the accused reasonably
believed that the child had attained the age of 16
years.
(p) Proof of threat. In a prosecution under this
section, in proving that the accused made a
threat, it need not be proven that the accused
actually intended to carry out the threat.
(q) Marriage.
(1) In general. In a prosecution under
paragraph (2) of subsection (c) (aggravated sexual
assault), or under subsection (d) (aggravated
sexual assault of a child), subsection (f)
(aggravated sexual abuse of a child), subsection (i)
(abusive sexual contact with a child), subsection (j)
(indecent liberty with a child), subsection (m)
(wrongful sexual contact), or subsection (n)
(indecent exposure), it is an affirmative defense
that the accused and the other person when they
engaged in the sexual act, sexual contact, or sexual
conduct were married to each other.
(2) Definition For purposes of this
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subsection, a marriage is a relationship,
recognized by the laws of a competent State or
foreign jurisdiction, between the accused and the
other person as spouses. A marriage exists until it
is dissolved in accordance with the laws of a
competent State or foreign jurisdiction.
(3) Exception. Paragraph (1) shall not apply
if the accused’s intent at the time of the sexual
conduct is to abuse, humiliate, or degrade any
person.
(r) Consent and mistake of fact as to consent.
Lack of permission is an element of the offense in
subsection (m) (wrongful sexual contact). Consent
and mistake of fact as to consent are not an issue,
or an affirmative defense, in a prosecution under
any other subsection, except they are an
affirmative defense for the sexual conduct in issue
in a prosecution under subsection (a) (rape),
subsection (c) (aggravated sexual assault),
subsection (e) (aggravated sexual contact), and
subsection (h) (abusive sexual contact).
(s) Other affirmative defenses not precluded.
The enumeration in this section of some
affirmative defenses shall not be construed as
excluding the existence of others.
(t) Definitions. In this section:
(1) Sexual act. The term “sexual act”
means—
(A) contact between the penis and the
vulva, and for purposes of this subparagraph
contact involving the penis occurs upon
penetration, however slight; or
(B) the penetration, however slight, of the
genital opening of another by a hand or finger or
by any object, with an intent to abuse, humiliate,
harass, or degrade any person or to arouse or
gratify the sexual desire of any person.
(2) Sexual contact. The term “sexual
contact” means the intentional touching, either
directly or through the clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of
another person, or intentionally causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person, with an intent to
abuse, humiliate, or degrade any person or to
arouse or gratify the sexual desire of any person.
(3) Grievous bodily harm. The term
“grievous bodily harm” means serious bodily
injury. It includes fractured or dislocated bones,
deep cuts, torn members of the body, serious
damage to internal organs, and other severe
bodily injuries. It does not include minor injuries
such as a black eye or a bloody nose. It is the same
level of injury as in section 928 (article 128) of this
chapter, and a lesser degree of injury than in
section 2246(4) of title 18.
(4) Dangerous weapon or object. The term
“dangerous weapon or object” means—
(A) any firearm, loaded or not, and
whether operable or not;
(B) any other weapon, device, instrument,
material, or substance, whether animate or
inanimate, that in the manner it is used, or is
intended to be used, is known to be capable of
producing death or grievous bodily harm; or
(C) any object fashioned or utilized in
such a manner as to lead the victim under the
circumstances to reasonably believe it to be
capable of producing death or grievous bodily
harm.
(5) Force. The term “force” means action to
compel submission of another or to overcome or
prevent another’s resistance by—
(A) the use or display of a dangerous
weapon or object;
(B) the suggestion of possession of a
dangerous weapon or object that is used in a
manner to cause another to believe it is a
dangerous weapon or object; or
(C) physical violence, strength, power, or
restraint applied to another person, sufficient that
the other person could not avoid or escape the
sexual conduct.
(6) Threatening or placing that other person in
fear. The term “threatening or placing that other
person in fear” under paragraph (3) of subsection
(a) (rape), or under subsection (e) (aggravated
sexual contact), means a communication or action
that is of sufficient consequence to cause a
reasonable fear that non-compliance will result in
APPENDIX 21
A21-4
the victim or another person being subjected to
death, grievous bodily harm, or kidnapping.
(7) Threatening or placing that other person in
fear.
(A) In general. The term “threatening or
placing that other person in fear” under
paragraph (1)(A) of subsection (c) (aggravated
sexual assault), or under subsection (h) (abusive
sexual contact), means a communication or action
that is of sufficient consequence to cause a
reasonable fear that non-compliance will result in
the victim or another being subjected to a lesser
degree of harm than death, grievous bodily harm,
or kidnapping.
(B) Inclusions. Such lesser degree of harm
includes—
(i) physical injury to another person or
to another person’s property; or
(ii) a threat—
(I) to accuse any person of a crime;
(II) to expose a secret or publicize an
asserted fact, whether true or false, tending to
subject some person to hatred, contempt, or
ridicule; or
(III) through the use or abuse of
military position, rank, or authority, to affect or
threaten to affect, either positively or negatively,
the military career of some person.
(8) Bodily harm. The term “bodily harm”
means any offensive touching of another, however
slight.
(9) Child. The term “child” means any
person who has not attained the age of 16 years.
(10) Lewd act. The term “lewd act” means—
(A) the intentional touching, not through
the clothing, of the genitalia of another person,
with an intent to abuse, humiliate, or degrade any
person, or to arouse or gratify the sexual desire of
any person; or
(B) intentionally causing another person
to touch, not through the clothing, the genitalia of
any person with an intent to abuse, humiliate or
degrade any person, or to arouse or gratify the
sexual desire of any person.
(11) Indecent liberty. The term “indecent
liberty” means indecent conduct, but physical
contact is not required. It includes one who with
the requisite intent exposes one’s genitalia, anus,
buttocks, or female areola or nipple to a child. An
indecent liberty may consist of communication of
indecent language as long as the communication is
made in the physical presence of the child. If
words designed to excite sexual desire are spoken
to a child, or a child is exposed to or involved in
sexual conduct, it is an indecent liberty; the
child’s consent is not relevant.
(12) Indecent conduct. The term “indecent
conduct” means that form of immorality relating
to sexual impurity that is grossly vulgar, obscene,
and repugnant to common propriety, and tends to
excite sexual desire or deprave morals with
respect to sexual relations. Indecent conduct
includes observing, or making a videotape,
photograph, motion picture, print, negative, slide,
or other mechanically, electronically, or
chemically reproduced visual material, without
another per- son’s consent, and contrary to that
other person’s reasonable expectation of privacy,
of—
(A) that other person’s genitalia, anus, or
buttocks, or (if that other person is female) that
person’s areola or nipple; or
(B) that other person while that other
person is engaged in a sexual act, sodomy (under
section 925 (article 125) of this chapter), or sexual
contact.
(13) Act of prostitution. The term “act of
prostitution” means a sexual act, sexual contact,
or lewd act for the purpose of receiving money or
other compensation.
(14) Consent. The term “consent” means
words or overt acts indicating a freely given
agreement to the sexual conduct at issue by a
competent person. An expression of lack of
consent through words or conduct means there is
no consent. Lack of verbal or physical resistance
or submission resulting from the accused’s use of
force, threat of force, or placing another person in
fear does not constitute consent. A current or
previous dating relationship by itself or the
manner of dress of the person involved with the
accused in the sexual conduct at issue shall not
constitute consent. A person cannot consent to
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sexual activity if—
(A) under 16 years of age; or
(B) substantially incapable of—
(i) appraising the nature of the sexual
conduct at issue due to—
(I) mental impairment or
unconsciousness resulting from consumption of
alcohol, drugs, a similar substance, or otherwise;
or
(II) mental disease or defect that
renders the person unable to understand the
nature of the sexual conduct at issue;
(ii) physically declining participation in
the sexual conduct at issue; or
(iii) physically communicating
unwillingness to engage in the sexual conduct at
issue.
(15) Mistake of fact as to consent. The term
“mistake of fact as to consent” means the accused
held, as a result of ignorance or mistake, an
incorrect belief that the other person engaging in
the sexual conduct consented. The ignorance or
mistake must have existed in the mind of the
accused and must have been reasonable under all
the circumstances. To be reasonable, the
ignorance or mistake must have been based on
information, or lack of it, that would indicate to a
reasonable person that the other person
consented. Additionally, the ignorance or mistake
cannot be based on the negligent failure to
discover the true facts. Negligence is the absence
of due care. Due care is what a reasonably careful
person would do under the same or similar
circumstances. The accused’s state of intoxication,
if any, at the time of the offense is not relevant to
mistake of fact. A mistaken belief that the other
person consented must be that which a reasonably
careful, ordinary, prudent, sober adult would
have had under the circumstances at the time of
the offense.
(16) Affirmative defense. The term
“affirmative defense” means any special defense
that, although not denying that the accused
committed the objective acts constituting the
offense charged, denies, wholly, or partially,
criminal responsibility for those acts. The accused
has the burden of proving the affirmative defense
by a preponderance of evidence. After the
defense meets this burden, the prosecution shall
have the burden of proving beyond a reasonable
doubt that the affirmative defense did not exist.
b. Elements.
(1) Rape.
(a) Rape by using force.
(i) That the accused caused another person,
who is of any age, to engage in a sexual act by using
force against that other person.
(b) Rape by causing grievous bodily harm.
(i) That the accused caused another person,
who is of any age, to engage in a sexual act by causing
grievous bodily harm to any person.
(c) Rape by using threats or placing in fear.
(i)That the accused caused another person,
who is of any age, to engage in a sexual act by
threatening or placing that other person in fear that
any person will be subjected to death, grievous bodily
harm, or kidnapping.
(d) Rape by rendering another unconscious.
(i) That the accused caused another person,
who is of any age, to engage in a sexual act by
rendering that other person unconscious.
(e) Rape by administration of drug, intoxicant, or
other similar substance.
(i) That the accused caused another person,
who is of any age, to engage in a sexual act by
administering to that other person a drug, intoxicant,
or other similar substance;
(ii) That the accused administered the drug,
intoxicant or other similar substance by force or
threat of force or without the knowledge or
permission of that other person; and
(iii) That, as a result, that other person’s ability
to appraise or control conduct was substantially
impaired.
(2) Rape of a child.
(a) Rape of a child who has not attained the age
of 12 years.
(i) That the accused engaged in a sexual act
with a child; and
APPENDIX 21
A21-6
(ii) That at the time of the sexual act the child
had not attained the age of twelve years.
(b) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
using force.
(i) That the accused engaged in a sexual act
with a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by using force
against that child.
(c) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
causing grievous bodily harm.
(i) That the accused engaged in a sexual act
with a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by causing
grievous bodily harm to any person.
(d) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
using threats or placing in fear.
(i) That the accused engaged in a sexual act
with a child;
(ii)That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by threatening or
placing that child in fear that any person will be
subjected to death, grievous bodily harm, or
kidnapping.
(e) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
rendering that child unconscious.
(i) That the accused engaged in a sexual act
with a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by rendering that
child unconscious.
(f) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
administration of drug, intoxicant, or other similar
substance.
(i) That the accused engaged in a sexual act
with a child;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii)(a) That the accused did so by administering
to that child a drug, intoxicant, or other similar
substance;
(b) That the accused administered the drug,
intoxicant, or other similar substance by force or threat
of force or without the knowledge or permission of that
child; and
(c) That, as a result, that child’s ability to
appraise or control conduct was substantially
impaired.
(3) Aggravated sexual assault.
(a) Aggravated sexual assault by using threats or
placing in fear.
(i) That the accused caused another person, who
is of any age, to engage in a sexual act; and
(ii) That the accused did so by threatening or
placing that other person in fear that any person would
be subjected to bodily harm or other harm (other than
by threatening or placing that other person in fear that
any person would be subjected to death, grievous
bodily harm, or kidnapping).
(b) Aggravated sexual assault by causing bodily
harm.
(i)That the accused caused another person, who
is of any age, to engage in a sexual act; and
(ii) That the accused did so by causing bodily
harm to another person.
(c) Aggravated sexual assault upon a person
substantially incapacitated or substantially incapable
of appraising the act, declining participation, or
communicating unwillingness.
(i) That the accused engaged in a sexual act with
another person, who is of any age; and
(Note: add one of the following elements)
(ii) That the other person was substantially
incapacitated;
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(iii) That the other person was substantially
incapable of appraising the nature of the sexual act;
(iv) That the other person was substantially
incapable of declining participation in the sexual act;
or
(v) That the other person was substantially
incapable of communicating unwillingness to engage
in the sexual act.
(4) Aggravated sexual assault of a child who has
attained the age of 12 years but has not attained the
age of 16 years.
(a) That the accused engaged in a sexual act with
a child; and
(b) That at the time of the sexual act the child had
attained the age of 12 years but had not attained the age
of 16 years.
(5) Aggravated sexual contact.
(a) Aggravated sexual contact by using force.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact
with or by another person; and
(ii) That the accused did so by using force
against that other person.
(b) Aggravated sexual contact by causing
grievous bodily harm.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact
with or by another person; and
(ii) That the accused did so by causing grievous
bodily harm to any person.
(c) Aggravated sexual contact by using threats or
placing in fear.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact with
or by another person; and
(ii) That the accused did so by threatening or
placing that other person in fear that any person will be
subjected to death, grievous bodily harm, or
kidnapping.
(d) Aggravated sexual contact by rendering
another unconscious.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact with
or by another person; and
(ii) That the accused did so by rendering that
other person unconscious.
(e) Aggravated sexual contact by administration
of drug, intoxicant, or other similar substance.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact with
or by another person; and
(ii)(a) That the accused did so by administering
to that other person a drug, intoxicant, or other similar
substance;
(b) That the accused administered the drug,
intoxicant, or other similar substance by force or threat
of force or without the knowledge or permission of that
other person; and
(c) That, as a result, that other person’s ability
to appraise or control conduct was substantially
impaired.
(6) Aggravated sexual abuse of a child.
(a) That the accused engaged in a lewd act; and
(b) That the act was committed with a child who
has not attained the age of 16 years.
(7) Aggravated Sexual Contact with a Child.
(a) Aggravated sexual contact with a child who
has not attained the age of 12 years.
(i)(a) That the accused engaged in sexual
contact with a child; or
(b) That the accused caused sexual contact
with or by a child or by another person with a child;
and
(ii) That at the time of the sexual contact the
child had not attained the age of twelve years.
(b) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by using force.
(i)(a) That the accused engaged in sexual
contact with a child; or
(b) That the accused caused sexual contact
APPENDIX 21
A21-8
with or by a child or by another person with a child;
and
(ii) That at the time of the sexual contact the
child had attained the age of 12 years but had not
attained the age of 16 years; and
(iii) That the accused did so by using force
against that child.
(c) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by causing grievous bodily harm.
(i)(a) That the accused engaged in sexual
contact with a child; or
(b) That the accused caused sexual contact
with or by a child or by another person with a child;
and
(ii) That at the time of the sexual contact the
child had attained the age of 12 years but had not
attained the age of 16 years; and
(iii) That the accused did so by causing
grievous bodily harm to any person.
(d) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by using threats or placing in fear.
(i)(a) That the accused engaged in sexual
contact with a child; or
(b) That the accused caused sexual contact
with or by a child or by another person with a child;
and
(ii) That at the time of the sexual contact the
child had attained the age of 12 years but had not
attained the age of 16 years; and
(iii) That the accused did so by threatening or
placing that child or that other person in fear that any
person will be subjected to death, grievous bodily
harm, or kidnapping.
(e) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by rendering another or that child
unconscious.
(i)(a) That the accused engaged in sexual
contact with a child; or
(b) That the accused caused sexual contact with
or by a child or by another person with a child; and
(ii) That at the time of the sexual contact the
child had attained the age of 12 years but had not
attained the age of 16 years; and
(iii) That the accused did so by rendering that
child or that other person unconscious.
(f) Aggravated sexual contact with a child who has
attained the age of 12 years but has not attained the
age of 16 years by administration of drug, intoxicant,
or other similar substance.
(i)(a) That the accused engaged in sexual
contact with a child; or
(b)That the accused caused sexual contact with
or by a child or by another person with a child; and
(ii) That at the time of the sexual contact the
child had attained the age of 12 years but had not
attained the age of 16 years; and
(iii)(a) That the accused did so by ad-
ministering to that child or that other person a drug,
intoxicant, or other similar substance;
(b) That the accused administered the drug,
intoxicant, or other similar substance by force or threat
of force or without the knowledge or permission of that
child or that other person; and
(c) That, as a result, that child’s or that other
person’s ability to appraise or control conduct was
substantially impaired.
(8) Abusive sexual contact.
(a) Abusive sexual contact by using threats or
placing in fear.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact with
or by another person; and
(ii) That the accused did so by threatening or
placing that other person in fear that any person
would be subjected to bodily harm or other harm
(other than by threatening or placing that other person
in fear that any person would be subjected to death,
grievous bodily harm, or kidnapping).
(b) Abusive sexual contact by causing bodily
harm.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact
with or by another person; and
(ii) That the accused did so by causing bodily
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harm to another person.
(c) Abusive sexual contact upon a person
substantially incapacitated or substantially
incapable of appraising the act, declining
participation, or communicating unwillingness.
(i)(a) That the accused engaged in sexual
contact with another person; or
(b) That the accused caused sexual contact
with or by another person; and
(Note: add one of the following elements)
(ii) That the other person was substantially
incapacitated;
(iii) That the other person was substantially
incapable of appraising the nature of the sexual
contact;
(iv) That the other person was substantially
incapable of declining participation in the sexual
contact; or
(v) That the other person was substantially
incapable of communicating unwillingness to engage
in the sexual contact.
(9) Abusive sexual contact with a child.
(i)(a) That the accused engaged in sexual con-
tact with a child; or
(b) That the accused caused sexual contact with
or by a child or by another person with a child; and
(ii) That at the time of the sexual contact the child
had attained the age of 12 years but had not attained
the age of 16 years.
(10) Indecent liberty with a child.
(a) That the accused committed a certain act or
communication;
(b) That the act or communication was
indecent;
(c) That the accused committed the act or
communication in the physical presence of a certain
child;
(d) That the child was under 16 years of age; and
(e) That the accused committed the act or
communication with the intent to:
(i) arouse, appeal to, or gratify the sexual
desires of any person; or
(ii) abuse, humiliate, or degrade any person.
(11) Indecent act.
(a) That the accused engaged in certain con-
duct; and
(b) That the conduct was indecent conduct.
(12) Forcible pandering.
(a) That the accused compelled a certain person
to engage in an act of prostitution; and
(b) That the accused directed another person to
said person, who then engaged in an act of
prostitution.
(13) Wrongful sexual contact.
(a) That the accused had sexual contact with
another person;
(b) That the accused did so without that other
person’s permission; and
(c) That the accused had no legal justification or
lawful authorization for that sexual contact.
(14) Indecent exposure.
(a) That the accused exposed his or her
genitalia, anus, buttocks, or female areola or nipple;
(b) That the accused’s exposure was in an
indecent manner;
(c) That the exposure occurred in a place where
the conduct involved could reasonably be expected to
be viewed by people other than the accused’s family
or household; and
(d) That the exposure was intentional.
c. Explanation.
(1) Definitions. The terms are defined in Para-
graph 45a.(t), supra.
(2) Character of victim. See Mil. R. Evid. 412
concerning rules of evidence relating to the character
of the victim of an alleged sexual offense.
(3) Indecent. In conduct cases, “indecent”
generally signifies that form of immorality relating to
sexual impurity that is not only grossly vulgar,
obscene, and repugnant to common propriety, but
also tends to excite lust and deprave the morals with
respect to sexual relations. Language is indecent if it
tends reasonably to corrupt morals or incite
libidinous thoughts. The language must violate
community standards.
APPENDIX 21
A21-10
d. Lesser included offenses. The following lesser
included offenses are based on internal cross-
references provided in the statutory text of Article
120. See subsection (e) for a further listing of possible
lesser included offenses.
(1) Rape.
(a) Article 120—Aggravated sexual contact
(b) Article 134—Assault with intent to commit
rape
(c) Article 128—Aggravated assault; Assault;
Assault consummated by a battery
(d) Article 80—Attempts
(2) Rape of a child.
(a) Article 120—Aggravated sexual contact
with a child; Indecent act
(b) Article 134—Assault with intent to commit
rape
(c) Article 128—Aggravated assault; Assault;
Assault consummated by a battery; Assault
consummated by a battery upon a child under 16
(d) Article 80—Attempts
(3) Aggravated sexual assault.
(a) Article 120—Abusive sexual contact
(b) Article 128—Aggravated assault; Assault;
Assault consummated by a battery
(c) Article 80—Attempts
(4) Aggravated sexual assault of a child.
(a) Article 120—Abusive sexual contact with a
child; Indecent act
(b) Article 128—Aggravated assault; Assault;
Assault consummated by a battery; Assault
consummated by a battery upon a child under 16
(c) Article 80—Attempts
(5) Aggravated sexual contact.
(a) Article 128—Aggravated assault; Assault;
Assault consummated by a battery
(b) Article 80—Attempts
(6) Aggravated sexual abuse of a child.
(a) Article 120—Indecent act
(b) Article 128—Assault; Assault
consummated by a battery; Assault consummated by
a battery upon a child under 16
(c) Article 80—Attempts
(7) Aggravated sexual contact with a child.
(a) Article 120—Indecent act
(b) Article 128—Assault; Assault
consummated by a battery; Assault consummated by
a battery upon a child under 16
(c) Article 80—Attempts
(8) Abusive sexual contact.
(a) Article 128—Assault; Assault
consummated by a battery
(b) Article 80—Attempts
(9) Abusive sexual contact with a child.
(a) Article 120—Indecent act
(b) Article 128—Assault; Assault
consummated by a battery; Assault consummated by
a battery upon a child under 16
(c) Article 80—Attempts
(10) Indecent liberty with a child.
(a) Article 120—Indecent act
(b) Article 80—Attempts
(11) Indecent act. Article 80—Attempts
(12) Forcible pandering. Article 80—Attempts
(13) Wrongful sexual contact Article 80—
Attempts
(14) Indecent exposure. Article 80—Attempts
e. Additional lesser included offenses. Depending on
the factual circumstances in each case, to include the
type of act and level of force involved, the following
offenses may be considered lesser included in
addition to those offenses listed in subsection d. (See
subsection (d) for a listing of the offenses that are
specifically cross-referenced within the statutory text
of Article 120.) 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. See Appendix 23 for
further explanation of lesser included offenses.
(1)(a) Rape by using force. Article 120—Indecent
act; Wrongful sexual contact
(1)(b) Rape by causing grievous bodily harm. Article
120—Aggravated sexual assault by causing bodily
harm; Abusive sexual contact by causing bodily harm;
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Indecent act; Wrongful sexual contact
(1)(c) Rape by using threats or placing in fear.
Article 120—Aggravated sexual assault by using
threats or placing in fear; Abusive sexual contact by
using threats or placing in fear; Indecent act; Wrongful
sexual contact
(1)(d) Rape by rendering another unconscious.
Article 120—Aggravated sexual assault upon a person
substantially incapacitated; Abusive sexual contact
upon a person substantially incapacitated; Indecent act;
Wrongful sexual contact
(1)(e) Rape by administration of drug, intoxicant, or
other similar substance. Article 120—Aggravated
sexual assault upon a person substantially
incapacitated; Abusive sexual contact upon a person
substantially incapacitated; Indecent act; Wrongful
sexual contact
(2)(a) - (f) Rape of a child who has not attained 12
years; Rape of a child who has attained the age of 12
years but has not attained the age of 16 years. Article
120—Aggravated sexual assault of a child;
Aggravated sexual abuse of a child; Abusive sexual
contact with a child; Indecent liberty with a child;
Wrongful sexual contact
(3) Aggravated sexual assault. Article 120—
Wrongful sexual contact; indecent act
(4) Aggravated sexual assault of a child. Article
120—Aggravated sexual abuse of a child; Indecent
liberty with a child; Wrongful sexual contact
(5)(a) Aggravated sexual contact by force. Article
120—Indecent act; Wrongful sexual contact
(5)(b) Aggravated sexual contact by causing
grievous bodily harm. Article 120—Abusive sexual
contact by causing bodily harm; Indecent act;
Wrongful sexual contact
(5)(c) Aggravated sexual contact by using threats or
placing in fear. Article 120—Abusive sexual contact
by using threats or placing in fear; Indecent act;
Wrongful sexual contact
(5)(d) Aggravated sexual contact by rendering
another unconscious. Article 120—Abusive sexual
contact upon a person substantially incapacitated;
Indecent act; Wrongful sexual contact
(5)(e) Aggravated sexual contact by administration
of drug, intoxicant, or other similar substance. Article
120—Abusive sexual contact upon a person
substantially incapacitated; Indecent act; Wrongful
sexual contact
(6) Aggravated sexual abuse of a child. Article
120—Aggravated sexual contact with a child;
Aggravated sexual abuse of a child; Indecent liberty
with a child; Wrongful sexual contact
(7) Aggravated sexual contact with a child. Article
120—Abusive sexual contact with a child; Indecent
liberty with a child; Wrongful sexual contact
(8) Abusive sexual contact. Article 120—Wrong- ful
sexual contact; Indecent act
(9) Abusive sexual contact with a child. Article
120—Indecent liberty with a child; Wrongful sexual
contact
(10) Indecent liberty with a child. Article 120—
Wrongful sexual contact
f. Maximum punishment.
(1) Rape and rape of a child. Death or such other
punishment as a court martial may direct.
(2) Aggravated sexual assault. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 30 years.
(3) Aggravated sexual assault of a child who has
attained the age of 12 years but has not attained the
age of 16 years, aggravated sexual abuse of a child,
aggravated sexual contact, and aggravated sexual
contact with a child. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 20 years.
(4) Abusive sexual contact with a child and indecent
liberty with a child. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 15
years.
(5) Abusive sexual contact. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 7 years.
(6) Indecent act or forcible pandering. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
(7) Wrongful sexual contact or indecent exposure.
Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
g. Sample specifications
APPENDIX 21
A21-12
(1) Rape
(a) Rape by using force.
(i) Rape by use or display of dangerous weapon
or object. In that __________ (personal jurisdiction
data), did (at/on board-location) (subject-matter
jurisdiction data, if required), on or about
__________20 _____, cause __________ to engage in
a sexual act, to wit: __________, by (using a
dangerous weapon or object, to wit: __________
against (him)(her)) (displaying a dangerous weapon or
object, to wit: __________ to (him)(her)).
(ii) Rape by suggestion of possession of
dangerous weapon or object. In that __________
(personal jurisdiction data), did (at/on board-location)
(subject-matter jurisdiction data, if required), on or
about __________20 _____, cause __________ to
engage in a sexual act, to wit: __________, by the
suggestion of possession of a dangerous weapon or an
object that was used in a manner to cause (him) (her)
to believe it was a dangerous weapon or object.
(iii) Rape by using physical violence, strength,
power, or restraint to any person. In that __________
(personal jurisdiction data), did (at/on board-location)
(subject-matter jurisdiction data, if required), on or
about __________20 _____, cause __________ to
engage in a sexual act, to wit: __________, by using
(physical violence)(strength)(power)(restraint applied
to __________), sufficient that (he)(she) could not
avoid or escape the sexual conduct.
(b) Rape by causing grievous bodily harm. In that
__________ (personal jurisdiction data), did (at/on
board-location) (subject-matter jurisdiction data, if
required), on or about __________20 _____, cause
__________ to engage in a sexual act, to wit:
__________, by causing grievous bodily harm upon
(him)(her)(__________), to wit: a (broken leg)(deep
cut)(fractured skull)(__________).
(c) Rape by using threats or placing in fear. In that
__________ (personal jurisdiction data), did (at/on
board-location) (subject-matter jurisdiction data, if
required), on or about __________20 _____, cause
__________ to engage in a sexual act, to wit:
__________, by [threatening][placing (him)(her) in
fear] that (he)(she)(__________) will be subjected to
(death)(grievous bodily harm)(kidnapping) by
__________.
(d) Rape by rendering another unconscious. In
that __________ (personal jurisdiction data), did (at/on
board-location) (subject-matter jurisdiction data, if
required), on or about __________20 _____, cause
__________ to engage in sexual act, to wit:
__________, by rendering (him)(her) unconscious.
(e) Rape by administration of drug, intoxicant, or
other similar substance. In that __________ (personal
jurisdiction data), did (at/on board-location) (subject-
matter jurisdiction data, if required), on or about
__________20 _____, cause __________ to engage in
a sexual act, to wit: __________, by administering to
(him)(her) a drug, intoxicant, or other similar
substance, (by force)(by threat of force)(without
(his)(her) knowledge or permission), and thereby
substantially impaired (his)(her) ability to
[(appraise)(control)][(his)(her)] conduct.
(2) Rape of a child.
(a) Rape of a child who has not attained the age of
12 years. In that __________ (personal jurisdiction
data), did (at/on board-location) (subject-matter
jurisdiction data, if required), on or about
__________20 _____, engage in a sexual act, to wit:
__________ with __________, a child who had not
attained the age of 12
(b) Rape of a child who has attained the age of 12
years but has not attained the age of 16 years by using
force.
(i) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by use
or display of dangerous weapon or object. In that
__________ (personal jurisdiction data), did (at/on
board-location) (subject-matter jurisdiction data, if
required), on or about __________20 _____, engage in
a sexual act, to wit: __________, with __________, a
child who had attained the age of 12 years, but had not
attained the age of 16 years, by (using a dangerous
weapon or object, to wit: __________ against
(him)(her))(displaying a dangerous weapon or object,
to wit: __________ to (him)(her)).
(ii) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
suggestion of possession of dangerous weapon or
object. In that __________ (personal jurisdiction data),
did (at/on board-location) (subject-matter jurisdiction
data, if required), on or about __________20 _____,
engage in a sexual act, to wit: __________, with
__________, a child who had attained the age of 12
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A21-13
years, but had not attained the age of 16 years, by
suggestion of possession of a dangerous weapon or an
object that was used in a manner to cause (him)(her) to
believe it was a dangerous weapon or object.
(iii) Rape of a child who has attained the age of
12 years but has not attained the age of 16 years by
using physical violence, strength, power, or restraint
to any person. In that __________ (personal
jurisdiction data), did (at/on board-location) (subject-
matter jurisdiction data, if required), on or about
__________20 _____, engage in a sexual act, to wit:
__________ with __________, a child who had not
attained the age of 12 years, but had not attained the
age of 16 years, by using (physical
violence)(strength)(power)(restraint applied to
__________) sufficient that (he)(she) could not avoid
or escape the sexual conduct.
(c) Rape of a child who has attained the age of 12
years but has not attained the age of 16 years by
causing grievous bodily harm. In that __________
(personal jurisdiction data), did (at/on board-location)
(subject-matter jurisdiction data, if required), on or
about __________20 _____, engage in a sexual act, to
wit: __________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years, by causing grievous bodily harm upon
(him)(her)(__________), to wit: a (broken leg)(deep
cut)(fractured skull)(__________).
(d) Rape of a child who has attained the age of 12
years but has not attained the age of 16 years by using
threats or placing in fear. In that __________
(personal jurisdiction data), did (at/on board-location)
(subject-matter jurisdiction data, if required), on or
about __________20 _____, engage in a sexual act, to
wit: __________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years, by [threatening][placing (him)(her) in
fear] that (he)(she)(__________) would be subjected
to (death)(grievous bodily harm)(kidnapping) by
__________.
(e) Rape of a child who has attained the age of 12
years but has not attained the age of 16 years by
rendering that child unconscious. In that __________
(personal jurisdiction data), did (at/on board-location)
(subject-matter jurisdiction data, if required), on or
about __________20 _____, engage in a sexual act, to
wit: __________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years, by rendering (him)(her) unconscious.
(f) Rape of a child who has attained the age of 12
years but has not attained the age of 16 years by
administration of drug, intoxicant, or other similar
substance. In that __________ (personal jurisdiction
data), did (at/on board-location) (subject-matter
jurisdiction data, if required), on or about
__________20 _____, engage in a sexual act, to wit:
__________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years, by administering to (him)(her) a drug,
intoxicant, or other similar substance (by force)(by
threat of force)(without (his)(her) knowledge or
permission), and thereby substantially impaired
(his)(her) ability to [(appraise)(control)][(his)(her)]
conduct.
(3) Aggravated sexual assault.
(a) Aggravated sexual assault by using threats or
placing in fear. In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____, cause __________ to engage in
a sexual act, to wit: __________ by
[threatening][placing(him)(her) in fear of][(physical
injury to __________)(injury to __________’s
property)(accusation of crime)(exposition of
secret)(abuse of military position)(__________)].
(b) Aggravated sexual assault by causing bodily
harm. In that __________(personal jurisdiction data),
did (at/on board-location)(subject-matter jurisdiction
data, if required), on or about __________ 20_____,
cause __________ to engage in a sexual act, to wit:
__________by causing bodily harm upon
(him)(her)(__________), to wit: __________.
(c) Aggravated sexual assault upon a person
substantially incapacitated or substantially incapable
of appraising the act, declining participation, or
communicating unwillingness. In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____, engage in a sexual
act, to wit: __________ with __________, who was
(substantially incapacitated) [substantially incapable
of (appraising the nature of the sexual act)(declining
APPENDIX 21
A21-14
participation in the sexual act)(communicating
unwillingness to engage in the sexual act)].
(4) Aggravated sexual assault of a child who has
attained the age of 12 years but has not attained the
age of 16 years. In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____, engage in a sexual act, to wit:
__________ with __________, who had attained the
age of 12 years, but had not attained the age of 16
years.
(5) Aggravated sexual contact.
(a) Aggravated sexual contact by using force.
(i) Aggravated sexual contact by use or display
of dangerous weapon or object. In that
__________(personal jurisdiction data), did (at/on
board location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____, [(engage
in sexual contact, to wit: __________ with
__________)(cause __________ to engage in sexual
contact, to wit: __________, with__________)(cause
sexual contact with or by __________, to wit:
__________)] by (using a dangerous weapon or object,
to wit: __________ against (him)(her))(displaying a
dangerous weapon or object, to wit: __________ to
(him)(her))
(ii) Aggravated sexual contact by suggestion of
possession of dangerous weapon or object. In that
__________(personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____, [(engage
in sexual contact, to wit: __________ with
__________)(cause __________ to engage in sexual
contact, to wit: __________, with __________)(cause
sexual contact with or by __________, to wit:
__________)] by the suggestion of possession of a
dangerous weapon or an object that was used in a
manner to cause (him)(her)(__________) to believe it
was a dangerous weapon or object.
(iii) Aggravated sexual contact by using
physical violence, strength, power, or restraint to any
person. In that __________ (personal jurisdiction
data), did (at/on board-location)(subject-matter
jurisdiction data, if required), on or about __________
20_____, [(engage in sexual contact, to wit:
__________with __________)(cause __________ to
engage in sexual contact, to wit: __________, with
__________)(cause sexual contact with or by
____________, to wit: __________)] by using
(physical violence) (strength) (power) (restraint
applied to __________), sufficient that
(he)(she)(__________) could not avoid or escape the
sexual conduct.
(b) Aggravated sexual contact by causing grievous
bodily harm. In that __________ (personal jurisdiction
data), did (at/on board-location)(subject-matter
jurisdiction data, if required), on or about __________
20_____, [(engage in sexual contact, to wit:
__________with __________)(cause __________ to
engage in sexual contact, to wit: __________, with
__________)(cause sexual contact with or by
__________, to wit: __________)] by causing
grievous bodily harm upon (him)(her)(__________),
to wit: a (broken leg)(deep cut)(fractured
skull)(__________).
(c) Aggravated sexual contact by using threats or
placing in fear. In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____, [(engage in sexual contact, to
wit: __________with __________)(cause
__________ to engage in sexual contact, to wit:
__________, with __________)(cause sexual contact
with or by __________, to wit: __________)] by
[threatening (him)(her)(__________)][(placing
(him)(her)(__________) in fear] that
(he)(she)(__________) will be subjected to
(death)(grievous bodily harm)(kidnapping) by
__________.
(d) Aggravated sexual contact by rendering
another unconscious. In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____, [(engage in sexual contact, to
wit: __________with __________)(cause
__________ to engage in sexual contact, to wit:
__________, with __________)(cause sexual contact
with or by __________, to wit: __________)] by
rendering (him)(her)(__________) unconscious.
(e) Aggravated sexual contact by administration
of drug, intoxicant, or other similar substance. In that
__________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____, [(engage
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD
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A21-15
in sexual contact, to wit: __________with
__________)(cause __________ to engage in sexual
contact, to wit: __________, with __________)(cause
sexual contact with or by __________, to wit:
__________)] by administering to
(him)(her)(__________) a drug, intoxicant, or other
similar substance, (by force)(by threat of
force)(without (his)(her)(__________) knowledge or
permission), and thereby substantially impaired
(his)(her)(__________) ability to
[(appraise)(control)][(his)(her)] conduct.
(6) Aggravated sexual abuse of a child. In that
__________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____, engage in
lewd act, to wit: __________ with __________, a
child who had not attained the age of 16 years.
(7) Aggravated sexual contact with a child.
(a) Aggravated sexual contact with a child who
has not attained the –age of 12 years. In that
__________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____,[(engage
in sexual contact, to wit: __________with
__________, a child who had not attained the age of
12 years)(cause __________ to engage in sexual
contact, to wit: __________, with __________, a child
who has not attained the age of 12 years)(cause sexual
contact with or by __________, to wit: __________, a
child who has not attained the age of 12 years)]
(b) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by using force.
(i) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by use or display of dangerous
weapon or object. In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____,[(engage in sexual contact, to
wit: __________with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)(cause __________ to engage in sexual
contact, to wit: __________, with __________, a child
who had attained the age of 12 years, but had not
attained the age of 16 years)(cause sexual contact with
or by __________, to wit: __________, a child who
had attained the age of 12 years, but had not attained
the age of 16 years)] by (using a dangerous weapon or
object, to wit: __________ against
(him)(her)(__________))(displaying a dangerous
weapon or object, to wit: __________ to
(him)(her)(__________)).
(ii) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by suggestion of possession of
dangerous weapon or object. In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____,[(engage in sexual
contact, to wit: __________with __________, a child
who had attained the age of 12 years, but had not
attained the age of 16 years)(cause __________ to
engage in sexual contact, to wit: __________, with
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)(cause
sexual contact with or by __________, to wit:
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)] by the
suggestion of possession of a dangerous weapon or an
object that was used in a manner to cause
(him)(her)(__________) to believe it was a dangerous
weapon or object.
(iii) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by using physical violence,
strength, power, or restraint to any person. In that
__________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____,[(engage
in sexual contact, to wit: __________with
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)(cause
__________ to engage in sexual contact, to wit:
__________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)(cause sexual contact with or by
__________, to wit: __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)] by using (physical
violence)(strength)(power)(restraint applied to
__________) sufficient that (he)(she)(__________)
could not avoid or escape the sexual conduct.
APPENDIX 21
A21-16
(c) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by causing grievous bodily harm In
that __________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____,[(engage
in sexual contact, to wit: __________with
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)(cause
__________ to engage in sexual contact, to wit:
__________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)(cause sexual contact with or by
__________, to wit: __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)] by causing grievous bodily harm
upon (him)(her)(__________), to wit: a (broken
leg)(deep cut)(fractured skull)(__________).
(d) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by using threats or placing in fear
In that __________ (personal jurisdiction data), did
(at/on board-location)(subject-matter jurisdiction data,
if required), on or about __________
20_____,[(engage in sexual contact, to wit:
__________with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)(cause __________ to engage in sexual
contact, to wit: __________, with __________, a child
who had attained the age of 12 years, but had not
attained the age of 16 years)(cause sexual contact with
or by __________, to wit: __________, a child who
had attained the age of 12 years, but had not attained
the age of 16 years)] by [threatening][placing
(him)(her)(__________) in fear] that
(he)(she)(__________) will be subjected to
(death)(grievous bodily harm)(kidnapping) by
__________.
(e) Aggravated sexual contact with a child who
has attained the age of 12 years but has not attained
the age of 16 years by rendering that child or another
unconscious In that __________ (personal jurisdiction
data), did (at/on board-location)(subject-matter
jurisdiction data, if required), on or about __________
20_____,[(engage in sexual contact, to wit:
__________with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)(cause __________ to engage in sexual
contact, to wit: __________, with __________, a child
who had attained the age of 12 years, but had not
attained the age of 16 years)(cause sexual contact with
or by __________, to wit: __________, a child who
had attained the age of 12 years, but had not attained
the age of 16 years)] by rendering
(him)(her)(__________) unconscious.
(f) Aggravated sexual contact with a child who has
attained the age of 12 years but has not attained the
age of 16 years by administration of drug, intoxicant,
or other similar substance In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____,[(engage in sexual
contact, to wit: __________with __________, a child
who had attained the age of 12 years, but had not
attained the age of 16 years)(cause __________ to
engage in sexual contact, to wit: __________, with
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)(cause
sexual contact with or by __________, to wit:
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)] by
administering to (him)(her)(__________) knowledge
or permission), and thereby substantially impaired
(his)(her)(__________) ability to
[(appraise)(control)][(his)(her)] conduct.
(8) Abusive sexual contact.
(a) Abusive sexual contact by using threats or
placing in fear. . In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____, [engage in sexual contact, to
wit: __________ with __________)(cause
__________ to engage in sexual contact, to wit:
__________, with __________)(cause sexual contact
with or by __________, to wit: __________)] by
[(threatening)(placing (him)(her)(__________) in fear
of)][physical injury to __________)(injury to
__________’s property)(accusation of
crime)(exposition of secret)(abuse of military
position)(__________)].
(b) Abusive sexual contact by causing bodily
harm. In that __________ (personal jurisdiction data),
did (at/on board-location)(subject-matter jurisdiction
data, if required), on or about __________ 20_____,
[engage in sexual contact, to wit: __________ with
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED DURING THE PERIOD
1 OCTOBER 2007 THROUGH 27 JUNE 2012
A21-17
__________)(cause __________ to engage in sexual
contact, to wit: __________, with __________)(cause
sexual contact with or by __________, to wit:
__________)] by causing bodily harm upon
(him)(her)(__________), to wit: (__________).
(c) Abusive sexual contact by engaging in a sexual
act with a person substantially incapacitated or
substantially incapable of appraising the act, declining
participation, or substantially incapable of
communicating unwillingness. In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____, [engage in sexual
contact, to wit: __________ with __________)(cause
__________ to engage in sexual contact, to wit:
__________, with __________)(cause sexual contact
with or by __________, to wit: __________)] while
(he)(she)(__________) was [substantially
incapacitated][substantially incapable of (appraising
the nature of the sexual contact)(declining
participation in the sexual contact)(communicating
unwillingness to engage in the sexual contact)].
(9) Abusive sexual contact with a child. In that
__________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____,[(engage
in sexual contact, to wit: __________with
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years)(cause
__________ to engage in sexual contact, to wit:
__________, with __________, a child who had
attained the age of 12 years, but had not attained the
age of 16 years)(cause sexual contact with or by
__________, a child who had attained the age of 12
years, but had not attained the age of 16 years, to wit:
__________)]
(10) Indecent liberties with a child. In that
__________ (personal jurisdiction data), did (at/on
board-location)(subject-matter jurisdiction data, if
required), on or about __________ 20_____, (take
indecent liberties)(engage in indecent conduct) in the
physical presence of __________, a (female)(male)
under 16 years, by (communicating the words: to wit:
__________)(exposing one’s private parts, to wit:
__________)(__________), with the intent to
[(arouse)(appeal to)(gratify) the (sexual desire) of the
__________ (or
__________)][(abuse)(humiliate)(degrade)
__________].
(11) Indecent act. In that __________ (personal
jurisdiction data), did (at/on board-location)(subject-
matter jurisdiction data, if required), on or about
__________ 20_____, wrongfully commit indecent
conduct, to wit __________.
(12) Forcible pandering. In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____, compel
__________ to engage in [(a sexual act)(sexual
contact)(lewd act), to wit: __________] for the
purpose of receiving money or other compensation
with __________ (a) person(s) to be directed to
(him)(her) by the said __________.
(13) Wrongful sexual contact. In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____, engage in sexual
contact with __________, to wit: __________, and
such sexual contact was without legal justification or
lawful authorization and without the permission of
__________.
(14) Indecent exposure. In that __________
(personal jurisdiction data), did (at/on board-
location)(subject-matter jurisdiction data, if required),
on or about __________ 20_____, intentionally
(expose in an indecent manner
(his)(her)(__________)(__________) while (at the
barracks window)(in a public place)(__________).”
Appendix 21 Analysis Follows:
[Note:The analysis was inserted into this appendix
to accompany the version of Article 120 applicable to
offenses committed during the period 1 October 2007
through 27 June 2012. For offenses committed prior
to 1 October 2007, analysis related to Article 120 and
other punitive articles applicable to sexual offenses is
contained in Appendix 20. For offenses committed
between 28 June 2012 and 31 December 2018,
analysis related to Article 120, 120b, and 120c is
contained in Appendix 22.]
APPENDIX 21
A21-18
45. Article 120—Rape, sexual assault, and
other sexual misconduct
2007 Amendment: Changes to this paragraph are
contained in Div. A. Title V. Subtitle E, Section
552(a)(1) of the National Defense Authorization Act
for Fiscal Year 2006, P.L. 109-163, 119 Stat. 3257 (6
January 2006), which supersedes the previous
paragraph 45, Rape and Carnal Knowledge, in its
entirety and replaces paragraph 45 with Rape, sexual
assault and other sexual misconduct. In accordance
with Section 552(c) of that Act, the amendment to
the Article applies only with respect to offenses
committed on or after 1 October 2007.
Nothing in these amendments invalidates any
nonjudicial punishment proceeding, restraint,
investigation, referral of charges, trial in which
arraignment occurred, or other action begun prior to
1 October 2007. Any such nonjudical punishment
proceeding, restraint, investigation, referral of
charges, trial in which arraignment occurred, or other
action may proceed in the same manner and with the
same effect as if these amendments had not been
prescribed.
This new Article 120 consolidates several sexual
misconduct offenses and is generally based on the
Sexual Abuse Act of 1986, 18 U.S.C. Sections 2241-
2245. The following is a list of offenses that have
been replaced by this new paragraph 45:
(1) Paragraph 63, 134 Assault - Indecent, has been
replaced in its entirety by three new offenses under
paragraph 45. See subsections (e) Aggravated Sexual
Contact, (h) Abusive Sexual Contact, and (m)
Wrongful Sexual Contact.
(2) Paragraph 87, 134 Indecent Acts or Liberties
with a Child, has been replaced in its entirety by three
new offenses under paragraph 45. See subsections (g)
Aggravated Sexual Contact with a Child, (i) Abusive
Sexual Contact with a Child, and (j) Indecent Liberty
with a Child.
(3) Paragraph 88, Article 134 Indecent Exposure,
has been replaced in its entirety by a new offense
under paragraph 45. See subsection (n) Indecent
Exposure.
(4) Paragraph 90, Article 134 Indecent Acts with
Another, has been replaced in its entirety by a new
offense under paragraph 45. See subsection (k)
Indecent Act.
(5) Paragraph 97, Article 134 Pandering and
Prostitution, has been amended. The act of
compelling another person to engage in an act of
prostitution with another person will no longer be an
offense under paragraph 97 and has been replaced by
a new offense under paragraph 45. See subsection (l),
Forcible Pandering.
c. Explanation. Subparagraph (3), definition of
“indecent,” is taken from paragraphs 89.c and 90.c of
the Manual (2005 ed.) and is intended to consolidate
the definitions of “indecent,” as used in the former
offenses under Article 134 of “Indecent acts or
liberties with a child,” “Indecent exposure,” and
“Indecent acts with another,” formerly at paragraphs
87, 88, and 90 of the 2005 Manual, and “Indecent
language,” at paragraph 89. The application of this
sin- gle definition of “indecent” to the offenses of
“Indecent liberty with a child,” “Indecent act,” and
“Indecent exposure” under Article 120 is consistent
with the construction given to the former Article 134
offenses in the 2005 Manual that were consolidated
into Article 120. See e.g. United States v. Negron, 60
M.J. 136 (C.A.A.F. 2004).
d. Additional Lesser Included Offenses. The test to
determine whether an offense is factually the same as
another offense, and therefore lesser-included to that
offense, is the “elements” test. United States v.
Foster, 40 M.J. 140, 142 (C.M.A. 1994). Under this
test, the court considers “whether each provision
requires proof of a fact which the other does not.”
Blockburger, 284 U.S. 299 at 304 (1932). Rather than
adopting a literal application of the elements test, the
Court stated that resolution of lesser-included claims
“can only be resolved by lining up elements
realistically and determining whether each element of
the supposed ‘lesser’ offense is rationally derivative
of one or more elements of the other offense - and
vice versa.” Foster, 40 M.J. at 146. Whether an
offense is a lesser-included offense is a matter of law
that the Court will consider de novo. United States
v. Palagar, 56 M.J. 294, 296 (C.A.A.F. 2002).
e. Maximum punishment. See 1995 Amendment
regarding maximum punishment of death.
APPENDIX 22
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED
BETWEEN 28 JUNE 2012 AND 31 DECEMBER 2018
A22-1
[Note: This statute applies to offenses committed
between 28 June 2012 and 31 December 2018.
Previous versions of Article 120 are located as
follows: for offenses committed on or before 30
September 2007, see Appendix 20; for offenses
committed during the period 1 October 2007 through
27 June 2012, see Appendix 21.]
45. Article 120—Rape and sexual assault
generally
a. Text of statute.
(a) Rape. Any person subject to this chapter who
commits a sexual act upon another person by—
(1) using unlawful force against that other
person;
(2) using force causing or likely to cause death
or grievous bodily harm to any person;
(3) threatening or placing that other person
in fear that any person will be subjected to death,
grievous bodily harm, or kidnapping;
(4) first rendering that other person
unconscious; or
(5) administering to that other person by
force or threat of force, or without the knowledge
or consent of that person, a drug, intoxicant, or
other similar substance and thereby substantially
impairing the ability of that other person to
appraise or control conduct; is guilty of rape and
shall be punished as a court- martial may direct.
(b) Sexual Assault. Any person subject to this
chapter who—
(1) commits a sexual act upon another person
by—
(A) threatening or placing that other
person in fear;
(B) causing bodily harm to that other
person;
(C) making a fraudulent representation
that the sexual act serves a professional purpose;
or
(D) inducing a belief by any artifice,
pretense, or concealment that the person is
another person;
(2) commits a sexual act upon another person
when the person knows or reasonably should know
that the other person is asleep, unconscious, or
otherwise unaware that the sexual act is occurring;
or
(3) commits a sexual act upon another person
when the other person is incapable of consenting to
the sexual act due to—
(A) impairment by any drug, intoxicant, or
other similar substance, and that condition is
known or reasonably should be known by the
person; or
(B) a mental disease or defect, or physical
disability, and that condition is known or
reasonably should be known by the person; is
guilty of sexual assault and shall be punished as a
court-martial may direct.
(c) Aggravated Sexual Contact. Any person
subject to this chapter who commits or causes
sexual contact upon or by another person, if to do
so would violate subsection (a) (rape) had the
sexual contact been a sexual act, is guilty of
aggravated sexual contact and shall be punished as
a court-martial may direct.
(d) Abusive Sexual Contact. Any person subject
to this chapter who commits or causes sexual
contact upon or by another person, if to do so
would violate subsection (b) (sexual assault) had
the sexual contact been a sexual act, is guilty of
abusive sexual contact and shall be punished as a
court-martial may direct.
(e) Proof of Threat. In a prosecution under this
section, in proving that a person made a threat, it
need not be proven that the person actually in-
tended to carry out the threat or had the ability to
carry out the threat.
(f) Defenses. An accused may raise any
applicable defenses available under this chapter or
the Rules for Court-Martial. Marriage is not a
defense for any conduct in issue in any prosecution
under this section.
(g) Definitions. In this section:
(1) Sexual act. The term ‘sexual act’
means—
(A) contact between the penis and the
vulva or anus or mouth, and for purposes of this
subparagraph contact involving the penis occurs
APPENDIX 22
A22-2
upon penetration, however slight; or
(B) the penetration, however slight, of the
vulva or anus or mouth of another by any part of
the body or by any object, with an intent to abuse,
humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(2) Sexual contact. The term ‘sexual contact’
means—
(A) touching, or causing another person to
touch, either directly or through the clothing, the
genitalia, anus, groin, breast, inner thigh, or
buttocks of any person, with an intent to abuse,
humiliate, or degrade any person; or
(B) any touching, or causing another person
to touch, either directly or through the clothing,
any body part of any person, if done with an
intent to arouse or gratify the sexual desire of any
person.
Touching may be accomplished by any part of
the body.
(3) Bodily harm. The term ‘bodily harm’
means any offensive touching of another, how-
ever slight, including any nonconsensual sexual
act or nonconsensual sexual contact.
(4) Grievous bodily harm. The term ‘grievous
bodily harm’ means serious bodily injury. It
includes fractured or dislocated bones, deep cuts,
torn members of the body, serious damage to
internal organs, and other severe bodily injuries.
It does not include minor injuries such as a black
eye or a bloody nose.
(5) Force. The term ‘force’ means—
(A) the use of a weapon;
(B) the use of such physical strength or
violence as is sufficient to overcome, restrain, or
injure a person; or
(C) inflicting physical harm sufficient to
coerce or compel submission by the victim.
(6) Unlawful Force. The term ‘unlawful
force’ means an act of force done without legal
justification or excuse.
(7) Threatening or placing that other person in
fear. The term ‘threatening or placing that other
person in fear’ means a communication or action
that is of sufficient consequence to cause a
reasonable fear that non-compliance will result in
the victim or another person being subjected to
the wrongful action contemplated by the
communication or action.
(8) Consent.
(A) The term ‘consent’ means a freely given
agreement to the conduct at issue by a competent
person. An expression of lack of consent through
words or conduct means there is no consent. Lack
of verbal or physical resistance or submission
resulting from the use of force, threat of force, or
placing another person in fear does not constitute
consent. A current or previous dating or social or
sexual relationship by itself or the manner of dress
of the person involved with the accused in the
conduct at issue shall not constitute consent.
(B) A sleeping, unconscious, or incompetent
person cannot consent. A person cannot consent to
force causing or likely to cause death or grievous
bodily harm or to being rendered un- conscious. A
person cannot consent while under threat or fear
or under the circumstances de- scribed in
subparagraph (C) or (D) of subsection (b)(1).
(C) Lack of consent may be inferred
based on the circumstances of the offense. All the
surrounding circumstances are to be considered in
determining whether a person gave consent, or
whether a person did not resist or ceased to resist
only because of another person’s actions.
b. Elements.
(1) Rape involving contact between penis and vulva
or anus or mouth.
(a) By unlawful force
(i) That the accused committed a sexual act
upon another person by causing penetration, how-
ever slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so with unlawful
force.
(b) By force causing or likely to cause death or
grievous bodily harm
(i)That the accused committed a sexual act
upon another person by causing penetration, however
slight, of the vulva or anus or mouth by the penis; and
(ii) That the accused did so by using force
causing or likely to cause death or grievous bodily
harm to any person.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
A22-3
grievous bodily harm, or kidnapping
(i) That the accused committed a sexual act
upon another person by causing penetration, how-
ever slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by threatening or
placing that other person in fear that any person
would be subjected to death, grievous bodily harm,
or kidnapping.
(d) By first rendering that other person
unconscious
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by first rendering
that other person unconscious.
(e) By administering a drug, intoxicant, or
other similar substance
(i) That the accused committed a sexual act
upon another person by causing penetration, how-
ever slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by administering
to that other person by force or threat of force, or
without the knowledge or permission of that person,
a drug, intoxicant, or other similar substance and
thereby substantially impairing the ability of that
other person to appraise or control conduct.
(2) Rape involving penetration of the vulva or
anus or mouth by any part of the body or any object.
(a) By force
(i) That the accused committed a sexual act
upon another person by causing penetration, how-
ever slight, of the vulva or anus or mouth of another
person by any part of the body or by any
object;
(ii) That the accused did so with unlawful
force; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(b) By force causing or likely to cause death or
grievous bodily harm
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth of
another person by any part of the body or by any
object;
(ii) That the accused did so by using force
causing or likely to cause death or grievous bodily
harm to any person; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping
(i) That the accused committed a sexual act
upon another person by causing penetration, how-
ever slight, of the vulva or anus or mouth of another
person by any part of the body or by any object;
(ii) That the accused did so by threatening or
placing that other person in fear that any person
would be subjected to death, grievous bodily harm, or
kidnapping; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(d) By first rendering that other person
unconscious
(i) That the accused committed a sexual act
upon another person by causing penetration, however
slight, of the vulva or anus or mouth of another
person by any part of the body or by any object;
(ii) That the accused did so by first rendering
that other person unconscious; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(e) By administering a drug, intoxicant, or other
similar substance
(i) That the accused committed a sexual act
upon another person by causing penetration, however
slight, of the vulva or anus or mouth of another
person by any part of the body or by any object;
(ii) That the accused did so by administering to
that other person by force or threat of force, or
without the knowledge or permission of that person, a
drug, intoxicant, or other similar substance and
thereby substantially impairing the ability of that
other person to appraise or control conduct; and
APPENDIX 22
A22-4
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(3) Sexual assault involving contact between penis
and vulva or anus or mouth.
(a) By threatening or placing that other person
in fear
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by threatening or
placing that other person in fear.
(b) By causing bodily harm
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by causing bodily
harm to that other person.
(c) By fraudulent representation
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by making a
fraudulent representation that the sexual act served a
professional purpose.
(d) By false pretense
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by the
penis; and
(ii) That the accused did so by inducing a
belief by any artifice, pretense, or concealment that
the accused is another person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by the
penis;
(ii) That the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring; and
(iii) That the accused knew or reasonably
should have known that the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring.
(f) When the other person is incapable of
consenting
(i) That the accused committed a sexual act
upon another person by causing penetration, however
slight, of the vulva or anus or mouth by the penis;
(ii) That the other person was incapable of
consenting to the sexual act due to:
(A) Impairment by any drug, intoxicant or
other similar substance; or
(B) A mental disease or defect, or physical
disability; and
(iii) That the accused knew or reasonably
should have known of the impairment, mental disease
or defect, or physical disability of the other person.
(4) Sexual assault involving penetration of the
vulva or anus or mouth by any part of the body or any
object.
(a) By threatening or placing that other person in
fear
(i) That the accused committed a sexual act
upon another person by causing penetration, however
slight, of the vulva or anus or mouth by any part of
the body or by any object;
(ii) That the accused did so by threatening or
placing that other person in fear; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(b) By causing bodily harm
(i) That the accused committed a sexual act
upon another person by causing penetration, how-
ever slight, of the vulva or anus or mouth by any part
of the body or by any object;
(ii) That the accused did so by causing bodily
harm to that other person; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(c) By fraudulent representation
(i) That the accused committed a sexual act
upon another person by causing penetration, however
slight, of the vulva or anus or mouth by any part of
the body or by any object;
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
A22-5
(ii) That the accused did so by making a
fraudulent representation that the sexual act served a
professional purpose when it served no professional
purpose; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(d) By false pretense
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by any
part of the body or by any object;
(ii) That the accused did so by inducing a
belief by any artifice, pretense, or concealment that
the accused is another person; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by any
part of the body or by any object;
(ii) That the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring;
(iii) That the accused knew or reasonably
should have known that the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring.
(iv) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(f) When the other person is incapable of
consenting
(i) That the accused committed a sexual act
upon another person by causing penetration,
however slight, of the vulva or anus or mouth by any
part of the body or by any object;
(ii) That the other person was incapable of
consenting to the sexual act due to:
(A) Impairment by any drug, intoxicant or
other similar substance; or
(B) A mental disease or defect, or physical
disability;
(iii) That the accused knew or reasonably
should have known of the impairment, mental
disease or defect, or physical disability of the other
person; and
(iv) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(5) Aggravated sexual contact involving the
touching of the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person.
(a) By force
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person;
(ii) That the accused did so with unlawful
force; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(b) By force causing or likely to cause death or
grievous bodily harm
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person;
(ii) That the accused did so by using force
causing or likely to cause death or grievous bodily
harm to any person; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person;
(ii) That the accused did so by threatening or
placing that other person in fear that any person
would be subjected to death, grievous bodily harm, or
kidnapping; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(d) By first rendering that other person
APPENDIX 22
A22-6
unconscious
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person;
(ii) That the accused did so by first rendering
that other person unconscious; and
(iii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(e) By administering a drug, intoxicant, or
other similar substance
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person;
(ii) That the accused did so by administering
to that other person by force or threat of force, or
without the knowledge or permission of that person,
a drug, intoxicant, or other similar substance and
thereby substantially impairing the ability of that
other person to appraise or control conduct; and
(iii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(6) Aggravated sexual contact involving the
touching of any body part of any person.
(a) By force
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so with unlawful
force; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(b) By force causing or likely to cause death or
grievous bodily harm
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by using force
causing or likely to cause death or grievous bodily
harm to any person; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by threatening or
placing that other person in fear that any person
would be subjected to death, grievous bodily harm, or
kidnapping; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(d) By first rendering that other person
unconscious
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by first rendering
that other person unconscious; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(e) By administering a drug, intoxicant, or other
similar substance
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by administering to
that other person by force or threat of force, or
without the knowledge or permission of that person, a
drug, intoxicant, or other similar substance and
thereby substantially impairing the ability of that
other person to appraise or control conduct; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(7) Abusive sexual contact involving the touching of
the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person.
(a) By threatening or placing that other person in
fear
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person;
(ii) That the accused did so by threatening or
placing that other person in fear; and
(iii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(b) By causing bodily harm
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person;
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28 JUNE 2012 AND 31 DECEMBER 2018
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(ii) That the accused did so by causing bodily
harm to that other person; and
(iii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(c) By fraudulent representation
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person;
(ii) That the accused did so by making a
fraudulent representation that the sexual act served a
professional purpose; and
(iii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(d) By false pretense
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person;
(ii) That the accused did so by inducing a
belief by any artifice, pretense, or concealment that
the accused is another person; and
(iii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person;
(ii) That the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring;
(iii) That the accused knew or reasonably
should have known that the other person was asleep,
unconscious, or otherwise unaware that the sexual act
was occurring; and
(iv) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(f) When the other person is incapable of
consenting
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, either directly or through the
clothing, the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person;
(ii) That the other person was incapable of
consenting to the sexual act due to:
(A) Impairment by any drug, intoxicant or
other similar substance; or
(B) A mental disease or defect, or physical
disability;
(iii) That the accused knew or reasonably
should have known of the impairment, mental disease
or defect, or physical disability of the other person;
and
(iv) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(8) Abusive sexual contact involving the touching of
any body part of any person.
(a) By threatening or placing that other person in
fear
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by threatening or
placing that other person in fear; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(b) By causing bodily harm
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by causing bodily
harm to that other person; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(c) By fraudulent representation
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by making a
fraudulent representation that the sexual act served a
professional purpose when it served no professional
purpose; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(d) By false pretense
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the accused did so by inducing a
APPENDIX 22
A22-8
belief by any artifice, pretense, or concealment that
the accused is another person; and
(iii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring;
(iii) That the accused knew or reasonably
should have known that the other person was asleep,
unconscious, or otherwise unaware that the sexual
act was occurring; and
(iv) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(f) When the other person is incapable of
consenting
(i) That the accused committed sexual contact
upon another person by touching, or causing another
person to touch, any body part of any person;
(ii) That the other person was incapable of
consenting to the sexual act due to:
(A) Impairment by any drug, intoxicant, or
other similar substance; or
(B) A mental disease or defect, or physical
disability;
(iii) That the accused knew or reasonably
should have known of the impairment, mental disease
or defect, or physical disability of the other person;
and
(iv) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
c. Explanation.
(1) In general. Sexual offenses have been separated
into three statutes: adults (120), children (120b),
and other offenses (120c).
(2) Definitions. The terms are defined in Paragraph
45.a.(g).
(3) Victim character and privilege. See Mil. R
Evid. 412 concerning rules of evidence relating to the
character of the victim of an alleged sexual offense.
See Mil. R. Evid. 514 concerning rules of evidence
relating to privileged communications between the
victim and victim advocate.
(4) Consent as an element. Lack of consent is not
an element of any offense under this paragraph unless
expressly stated. Consent may be relevant for other
purposes.
d. Lesser included offenses. See paragraph 3 of this
part and Appendix 12A.
e. Maximum punishments.
(1) Rape. Forfeiture of all pay and allowances, and
confinement for life without eligibility for parole.
Mandatory minimum – Dismissal or dishonorable
discharge.
(2) Sexual assault. Forfeiture of all pay and
allowances and confinement for 30 years. Mandatory
minimum – Dismissal or dishonorable discharge.
(3) Aggravated sexual contact. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
(4) Abusive sexual contact. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 7 years.
f. Sample specifications.
(1) Rape involving contact between penis and vulva
or anus or mouth.
(a) By force. In that (personal jurisdiction data),
did (at/on board location), on or about___________,
commit a sexual act upon by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis, by using unlawful force.
(b) By force causing or likely to cause death or
grievous bodily harm. In that (personal jurisdiction
data), did (at/on board location), on or about 20 ,
commit a sexual act upon ___________ by causing
penetration of ___________’s (vulva) (anus) (mouth)
with ___________’s penis, by using force likely to
cause death or grievous bodily harm to ___________,
to wit: ___________.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping. In that (personal
jurisdiction data), did (at/on board location), on or
about ____. 20__ , commit a sexual act upon
___________ by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis, by (threatening ___________)
(placing ___________ in fear) that would be
subjected to (death) (grievous bodily harm)
(kidnapping).
(d) By first rendering that other person
unconscious. In that (personal jurisdiction data), did
(at/on board location), on or about ____. 20__ ,
commit a sexual act upon by ___________ causing
penetration of ___________’s (vulva) (anus) (mouth)
with ___________’s penis, by first rendering
___________ unconscious by ___________.
(e) By administering a drug, intoxicant, or other
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28 JUNE 2012 AND 31 DECEMBER 2018
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similar substance. In that (personal jurisdiction data),
did (at/on board location), on or about ____. 20__,
commit a sexual act upon by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis, by administering to
___________ (by force) (by threat of force) (without
the knowledge or permission of ___________) a
(drug) (intoxicant) (list other similar substance), to
wit: ___________, thereby substantially impairing the
ability of ___________ to appraise or control his/her
conduct.
(2) Rape involving penetration of genital opening
by any part of the body or any object.
(a) By force. In that (personal jurisdiction data),
did (at/on board location), on or about _____, 20__,
commit a sexual act upon _________, by penetrating
the (vulva) (anus) (mouth) of _________ with (list
body part or object) by using unlawful force, with an
intent to (abuse) (humiliate) (harass) (degrade)
(arouse/gratify the sexual desire of) _________.
(b) By force causing or likely to cause death or
grievous bodily injury. In that (personal jurisdiction
data), did (at/on board location), on or about _____,
20__, commit a sexual act upon _________, by
penetrating the (vulva) (anus) (mouth) of _________
with (list body part or object) by using force likely to
cause death or grievous bodily harm to, to wit:
_________, with an intent to (abuse) (humiliate)
(harass) (degrade) (arouse/gratify the sexual desire
of).
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, commit a sexual act upon
_________, by penetrating the (vulva) (anus) (mouth)
of __________ with (list body part or object) by
(threatening ) (placing _________ in fear) that
_________ would be subjected to (death) (grievous
bodily harm) (kidnapping), with an intent to (abuse)
(humiliate) (harass) (degrade) (arouse/gratify the
sexual desire of) _________.
(d) By first rendering that other person
unconscious. In that (personal jurisdiction data), did
(at/on board location), on or about _____, 20__,
commit a sexual act upon ________, by penetrating
the (vulva) (anus) (mouth) of _________ with (list
body part or object) by first rendering_________
unconscious, with an intent to (abuse) (humiliate)
(harass) (degrade) (arouse/gratify the sexual desire
of) _________.
(e) By administering a drug, intoxicant, or other
similar substance. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
commit a sexual act upon _________, by penetrating
the (vulva) (anus) (mouth) of _________ with (list
body part or object) by administering to _________
(by force) (by threat of force) (without the knowledge
or permission of _________) a (drug) (intoxicant)
(list other similar substance), to wit: _________,
thereby substantially impairing the ability of
_________ to appraise or control his/her conduct,
with an intent to (abuse) (humiliate) (harass)
(degrade) (arouse/gratify the sexual desire of)
_________.
(3) Sexual assault involving contact between penis
and vulva or anus or mouth.
(a) By threatening or placing that other person in
fear. In that (personal jurisdiction data), did (at/on
board location), on or about _____, 20_____, commit
a sexual act upon _________, by causing penetration
of _________’s (vulva) (anus) (mouth) with
_________’s penis, by (threatening _________)
(placing _________ in fear).
(b) By causing bodily harm. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, commit a sexual act upon
_________, by causing penetration of _________’s
(vulva) (anus) (mouth) with _________’s penis by
causing bodily harm to _________, to wit:
_________.
(c) By fraudulent representation. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, commit a sexual act upon
_________, by causing penetration of _________’s
(vulva) (anus) (mouth) with _________’s penis by
making a fraudulent representation that the sexual act
served a professional purpose, to wit: _________.
(d) By false pretense. In that (personal
jurisdiction data), did (at/on board location), on or
about _____, 20__, commit a sexual act upon
_________, by causing penetration of _________’s
(vulva) (anus) (mouth) with _________’s penis by
inducing a belief by (artifice) (pretense)
(concealment) that the said accused was another
person.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring. In that
(personal jurisdiction data), did (at/on board location),
on or about _____, 20__, commit a sexual act upon
APPENDIX 22
A22-10
_________, by causing penetration of _________’s
(vulva) (anus) (mouth) with _________’s penis when
he/she knew or reasonably should have known that
_________ was (asleep) (unconscious) (unaware the
sexual act was occurring due to_________).
(f) When the other person is incapable of
consenting. In that (personal jurisdiction data), did
(at/on board location), on or about _____, 20__,
commit a sexual act upon _________, by causing
penetration of _________’s (vulva) (anus) (mouth)
with _________’s penis, when_________ was
incapable of consenting to the sexual act because
he/she [was impaired by (a drug, to wit: _________)
(an intoxicant, to wit: _________) ( )] [had a
(mental disease, to wit: _________) (mental defect, to
wit: _________) (physical disability, to wit:
_________)], a condition that was known or
reasonably should have been known by the said
accused.
(4) Sexual assault involving penetration of vulva or
anus or mouth by any part of the body or any object.
(a) By threatening or placing that other person in
fear. In that (personal jurisdiction data), did (at/on
board location), on or about _____, 20____, commit a
sexual act upon _________, by penetrating the
(vulva) (anus) (mouth) of _________ with (list body
part or object), by (threatening _________) (placing
__________ in fear), with an intent to (abuse)
(humiliate) (harass) (degrade) (arouse) (gratify the
sexual desire of) _________.
(b) By causing bodily harm. In that (personal
jurisdiction data), did (at/on board location), on or
about _____, 20__, commit a sexual act upon
_________, by penetrating the (vulva) (anus) (mouth)
of _________ with (list body part or object), by
causing bodily harm to _________, to wit: _________
with an intent to (abuse) (humiliate) (harass)
(degrade) (arouse) (gratify the sexual desire of)
_________.
(c) By fraudulent representation. In that (personal
jurisdiction data), did (at/on board location), on or
about _____, 20__, commit a sexual act upon
__________, by penetrating the (vulva) (anus)
(mouth) of _________ with (list body part or object),
by making a fraudulent representation that the sexual
act served a professional purpose, to wit: _________,
with an intent to (abuse) (humiliate) (harass)
(degrade) (arouse) (gratify the sexual desire of)
_________.
(d) By false pretense. In that (personal
jurisdiction data), did (at/on board location), on or
about _____, 20__, commit a sexual act upon
_________, by penetrating the (vulva) (anus) (mouth)
of _________ with (list body part or object), by
inducing a belief by (artifice) (pretense)
(concealment) that the said accused was another
person, with an intent to (abuse) (humiliate) (harass)
(degrade) (arouse) (gratify the sexual desire of)
_________.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring. In that
(personal jurisdiction data), did (at/on board location),
on or about _____, 20__, commit a sexual act upon
__________, by penetrating the (vulva) (anus)
(mouth) of _________ with (list body part or object),
when he/she knew or reasonably should have known
that _________ was (asleep) (unconscious) (unaware
the sexual act was occurring due to), with an intent to
(abuse) (humiliate) (harass) (degrade) (arouse)
(gratify the sexual desire of) _________.
(f) When the other person is incapable of
consenting. In that (personal jurisdiction data), did
(at/ on board location), on or about _____, 20__,
commit a sexual act upon _________, by penetrating
the (vulva) (anus) (mouth) of with (list body part or
object), when _________ was incapable of consenting
to the sexual act because he/she [was impaired by (a
drug, to wit: _________) (an intoxicant, to wit:
_________) ( )] [had a (mental disease, to wit:
_________) (mental defect, to wit: _________)
(physical disability, to wit: _________)], a condition
that was known or reasonably should have been
known by the said accused, with an intent to (abuse)
(humiliate) (harass) (degrade) (arouse) (gratify the
sexual desire of) _________.
(5) Aggravated sexual contact involving the
touching of the genitalia, anus, groin, breast, inner
thigh, or buttocks of any person.
(a) By force. In that (personal jurisdiction data),
did (at/on board location), on or about _____, 20__,
[(touch) (cause to touch)] [(directly) (through the
clothing)] the (genitalia) (anus) (groin) (breast) (inner
thigh) (buttocks) of _________, by using unlawful
force, with an intent to (abuse) (humiliate) (degrade)
(arouse) (gratify the sexual desire of) _________.
(b) By force causing or likely to cause death or
grievous bodily harm. In that (personal jurisdiction
data), did (at/on board location), on or about _____,
20__, [(touch) (cause _________ to touch)] [(directly)
(through the clothing)] the (genitalia) (anus) (groin)
(breast) (inner thigh) (buttocks) of _________, by
using force likely to cause death or grievous bodily
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
A22-11
harm to _________, to wit: _________, with an
intent to (abuse) (humiliate) (degrade) (arouse)
(gratify the sexual desire of) _________.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping. In that (personal
jurisdiction data), did (at/on board location), on or
about _____, 20__, [(touch) (cause _________ to
touch)] [(directly) (through the clothing)] the
(genitalia) (anus) (groin) (breast) (inner thigh)
(buttocks) of _________, by (threatening _________)
(placing ______ in fear) that _________ would be
subjected to (death) (grievous bodily harm)
(kidnapping), with an intent to (abuse) (humiliate)
(degrade) (arouse) (gratify the sexual desire of)
_________.
(d) By first rendering that other person
unconscious. In that (personal jurisdiction data), did
(at/on board location), on or about ____. 20__,
[(touch) (cause _________ to touch)] [(directly)
(through the clothing)] the (genitalia) (anus) (groin)
(breast) (inner thigh) (buttocks) of _________, by
rendering _________ unconscious by _________,
with an intent to (abuse) (humiliate) (degrade)
(arouse) (gratify the sexual desire of) .
(e) By administering a drug, intoxicant, or other
similar substance. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
[(touch) (cause __________ to touch)] [(directly)
(through the clothing)] the (genitalia) (anus) (groin)
(breast) (inner thigh) (buttocks) of _________, by
administering to _________ (by force) (by threat of
force) (without the knowledge or permission of ____)
a (drug) (intoxicant) (___) thereby substantially
impairing the ability of _________ to appraise or
control his/her conduct, with an intent to (abuse)
(humiliate) (degrade) (arouse) (gratify the sexual
desire of) _________.
(6) Aggravated sexual contact involving the
touching of any body part of any person.
(a) By force. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
[(touch) (cause _________ to touch)] [(directly)
(through the clothing)] (name of body part) of
_________, by using unlawful force, with an intent to
(arouse) (gratify the sexual desire of) _________.
(b) By force causing or likely to cause death or
grievous bodily harm. In that (personal jurisdiction
data), did (at/on board location), on or about____.
20__, [(touch) (cause _________ to touch)] [(directly)
(through the clothing)] (name of body part) of
_________, by using force likely to cause death or
grievous bodily harm to _________, to wit:
_________, with an intent to (arouse) (gratify the
sexual desire of) _________.
(c) By threatening or placing that other person in
fear that any person would be subjected to death,
grievous bodily harm, or kidnapping. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, [(touch) (cause to touch)] [(directly)
(through the clothing)] (name of body part) of
_________, by (threatening _________) (placing
_________ in fear) that _________ would be
subjected to (death) (grievous bodily harm)
(kidnapping), with an intent to (arouse) (gratify the
sexual desire of) _________.
(d) By first rendering that other person
unconscious. In that (personal jurisdiction data), did
(at/on board location), on or about____. 20__,
[(touch) (cause _________to touch)] [(directly)
(through the clothing)] (name of body part) of
_______, by rendering _________ unconscious by
_________, with an intent to (arouse) (gratify the
sexual desire of) _________.
(e) By administering a drug, intoxicant, or other
similar substance. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
[(touch) (cause _________ to touch)] [(directly)
(through the clothing)] (name of body part) of
_________, by administering to _________ (by force)
(by threat of force) (without the knowledge or
permission of _________) a (drug) (intoxicant)
(____) and thereby substantially impairing the ability
of _________ to appraise or control his/her conduct,
with an intent to (arouse) (gratify the sexual desire
of) _________.
(7) Abusive sexual contact involving the touching of
the genitalia, anus, groin, breast, inner thigh, or
buttocks of any person.
(a) By threatening or placing that other person in
fear. In that (personal jurisdiction data), did (at/on
board location), on or about____. 20__, [(touch)
(cause another person to touch)] [(directly) (through
the clothing)] the (genitalia) (anus) (groin) (breast)
(inner thigh) (buttocks) of _________ by (threatening
_________ ) (placing _________ in fear), with an
intent to (abuse) (humiliate) (degrade) (arouse)
(gratify the sexual desire of) _________.
(b) By causing bodily harm. In that (personal
jurisdiction data), did (at/on board location), on or
APPENDIX 22
A22-12
about____. 20__, [(touch) (cause another person to
touch)] [(directly) (through the clothing)] the
(genitalia) (anus) (groin) (breast) (inner thigh)
(buttocks) of _________ by causing bodily harm to
_________, to wit: _________, with an intent to
(abuse) (humiliate) (degrade) (arouse) (gratify the
sexual desire of) _________.
(c) By fraudulent representation. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, [(touch) (cause another person to
touch)] [(directly) (through the clothing)] the
(genitalia) (anus) (groin) (breast) (inner thigh)
(buttocks) of _________ by making a fraudulent
representation that the sexual contact served a
professional purpose, to wit: _________, with an
intent to (abuse) (humiliate) (degrade) (arouse)
(gratify the sexual desire of) _________.
(d) By false pretense. In that (personal
jurisdiction data), did (at/on board location), on or
about ____. 20__, [(touch) (cause another person to
touch)] [(directly) (through the clothing)] the
(genitalia) (anus) (groin) (breast) (inner thigh)
(buttocks) of _________ by inducing a belief by
(artifice) (pretense) (concealment) that the said
accused was another person, with an intent to (abuse)
(humiliate) (degrade) (arouse) (gratify the sexual
desire of) _________.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring. In that
(personal jurisdiction data), did (at/on board location),
on or about____. 20__, [(touch) (cause another person
to touch)] [(directly) (through the clothing)] the
(genitalia) (anus) (groin) (breast) (inner thigh)
(buttocks) of _________ when he/she knew or
reasonably should have known that _________ was
(asleep) (unconscious) (unaware the sexual contact
was occur- ring due to _________), with an intent to
(abuse) (humiliate) (degrade) (arouse) (gratify the
sexual desire of) _________.
(f) When that person is incapable of consenting.
In that (personal jurisdiction data), did (at/on board
location), on or about____. 20__, [(touch) (cause
another person to touch)] [(directly) (through the
clothing)] the (genitalia) (anus) (groin) (breast) (inner
thigh) (buttocks) of _________ when _________ was
incapable of consenting to the sexual contact because
he/she [was impaired by (a drug, to wit: _________)
(an intoxicant, to wit: _________) ( )] [had a
(mental disease, to wit: _________) (mental defect, to
wit: _________) (physical disability, to wit:
_________)] and this condition was known or
reasonably should have been known by _________,
with an intent to (abuse) (humiliate) (degrade)
(arouse) (gratify the sexual desire of) _________.
(8) Abusive sexual contact involving the touching of
any body part of any person.
(a) By threatening or placing that other person in
fear. In that (personal jurisdiction data), did (at/on
board location), on or about____. 20__, [(touch)
(cause another person to touch)] [(directly) (through
the clothing)] the (name of body part) of _________
by (threatening _________) (placing in _________
fear), with an intent to (arouse) (gratify the sexual
desire of) _________.
(b) By causing bodily harm. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, [(touch) (cause another person to
touch)] [(directly) (through the clothing)] the (name
of body part) of _________by causing bodily harm to
_________, to wit: _________, with an intent to
(arouse) (gratify the sexual desire of) _________.
(c) By fraudulent representation. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, [(touch) (cause another person to
touch)] [(directly) (through the clothing)] the (name
of body part) of _________by making a fraudulent
representation that the sexual contact served a
professional purpose, to wit: _________, with an
intent to (arouse) (gratify the sexual desire of)
_________.
(d) By false pretense. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, [(touch) (cause another person to
touch)] [(directly) (through the clothing)] the (name
of body part) of _________ by inducing a belief by
(artifice) (pretense) (concealment) that the said
accused was another person, with an intent to (arouse)
(gratify the sexual desire of) _________.
(e) Of a person who is asleep, unconscious, or
otherwise unaware the act is occurring. In that
(personal jurisdiction data), did (at/on board location),
on or about____. 20__, [(touch) (cause another person
to touch)] [(directly) (through the clothing)] the
(name of body part) of _________when he/she knew
or reasonably should have known that _________ was
(asleep) (unconscious) (unaware the sexual contact
was occurring due to _________), with an intent to
(arouse) (gratify the sexual desire of) _________.
(f) When that person is incapable of consenting.
In that (personal jurisdiction data), did (at/on board
location), on or about____. 20__, [(touch) (cause
another person to touch)] [(directly) (through the
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
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clothing)] the (name of body part) of _________
when _________ was incapable of consenting to the
sexual contact because he/she [was impaired by (a
drug, to wit: _________) (an intoxicant, to wit:
_________) ( )] [had a (mental disease, to wit:
_________ ) (mental defect, to wit: _________)
(physical disability, to wit: _________)], a condition
that was known or reasonably should have been
known by _________, with an intent to (arouse)
(gratify the sexual desire of) _________.
45a. Article 120a—Stalking
a. Text of statute.
(a) Any person subject to this section:
(1) who wrongfully engages in a course of
conduct directed at a specific person that would
cause a reasonable person to fear death or bodily
harm, including sexual assault, to himself or
herself or a member of his or her immediate
family;
(2) who has knowledge, or should have
knowledge, that the specific person will be placed
in reasonable fear of death or bodily harm,
including sexual assault, to himself or herself or a
member of his or her immediate family; and
(3) whose acts induce reasonable fear in the
specific person of death or bodily harm, including
sexual assault, to himself or herself or to a member
of his or her immediate family;
is guilty of stalking and shall be punished as a
court-martial may direct.
(b) In this section:
(1) The term “course of conduct” means:
(A) a repeated maintenance of visual or
physical proximity to a specific person; or
(B) a repeated conveyance of verbal threat,
written threats, or threats implied by con- duct, or
a combination of such threats, directed at or
towards a specific person.
(2)The term “repeated,” with respect to
conduct, means two or more occasions of such
conduct.
(3)The term “immediate family,” in the case of
a specific person, means a spouse, parent, child, or
sibling of the person, or any other family member,
relative, or intimate partner of the person who
regularly resides in the household of the person or
who within the six months preceding the
commencement of the course of conduct regularly
resided in the household of the person.
b. Elements.
(1) That the accused wrongfully engaged in a
course of conduct directed at a specific person that
would cause a reasonable person to fear death or
bodily harm to himself or herself or a member of his
or her immediate family;
(2) That the accused had knowledge, or should have
had knowledge, that the specific person would be
placed in reasonable fear of death or bodily harm to
himself or herself or a member of his or her
immediate family; and
(3) That the accused’s acts induced reasonable fear
in the specific person of death or bodily harm to
himself or herself or to a member of his or her
immediate family.
c. Explanation. See Paragraph 54c(1)(a) for an
explanation of “bodily harm”.
d. Lesser included offenses. See paragraph 3 of this
part and Appendix 12A.
e. Maximum punishment. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 3 years.
f. Sample Specification.
In that _________ (personal jurisdiction data), who
(knew)(should have known) that _________ would be
placed in reasonable fear of (death)(bodily harm) to
(himself) (herself) (_________, a member of his or
her immediate family) did (at/on board—location),
(subject-matter jurisdiction data, if required), (on or
about____. 20__)(from about to about 20 ),
wrongfully engage in a course of conduct directed at
_________, to wit: _________ thereby inducing in
_________, a reasonable fear of (death)(bodily harm)
to (himself)(herself) ( , a member of his or her
immediate family).
45b. Article 120b—Rape and sexual assault of a
child
[Note: This statute applies to offenses committed
between 28 June 2012 and 31 December 2018. Article
120b is a new statute designed to address only child
sexual offenses. Previous versions of child sexual
offenses are located as follows: for offenses
committed on or before 30 September 2007, see
Appendix 20; for offenses committed during the
period 1 October 2007 through 27 June 2012, see
Appendix 21.]
a. Text of Statute
(a) Rape of a Child. Any person subject to this
APPENDIX 22
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chapter who—
(1) commits a sexual act upon a child who has
not attained the age of 12 years; or
(2) commits a sexual act upon a child who has
attained the age of 12 years by—
(A) using force against any person;
(B) threatening or placing that child in fear;
(C) rendering that child unconscious; or
(D) administering to that child a drug, in
toxicant, or other similar substance; is guilty of
rape of a child and shall be punished as a court-
martial may direct.
(b) Sexual Assault of a Child. Any person subject
to this chapter who commits a sexual act upon a
child who has attained the age of 12 years is guilty
of sexual assault of a child and shall be punished
as a court-martial may direct.
(c) Sexual Abuse of a Child. Any person subject
to this chapter who commits a lewd act upon a
child is guilty of sexual abuse of a child and shall
be punished as a court-martial may direct.
(d) Age of Child.
(1) Under 12 years. In a prosecution under this
section, it need not be proven that the accused
knew the age of the other person engaging in the
sexual act or lewd act. It is not a defense that the
accused reasonably believed that the child had
attained the age of 12 years.
(2) Under 16 years. In a prosecution under this
section, it need not be proven that the accused
knew that the other person engaging in the sexual
act or lewd act had not attained the age of 16
years, but it is a defense in a prosecution under
subsection (b) (sexual assault of a child) or
subsection (c) (sexual abuse of a child), which the
accused must prove by a preponderance of the
evidence, that the accused reasonably believed that
the child had attained the age of 16 years, if the
child had in fact attained at least the age of 12
years.
(e) Proof of Threat. In a prosecution under this
section, in proving that a person made a threat, it
need not be proven that the person actually in-
tended to carry out the threat or had the ability to
carry out the threat.
(f) Marriage. In a prosecution under subsection
(b (sexual assault of a child) or subsection (c)
(sexual abuse of a child), it is a defense, which the
accused must prove by a preponderance of the
evidence, that the persons engaging in the sexual
act or lewd act were at that time married to each
other, except where the accused commits a sexual
act upon the person when the accused knows or
reasonably should know that the other person is
asleep, unconscious, or otherwise unaware that the
sexual act is occurring or when the other person is
incapable of consenting to the sexual act due to
impairment by any drug, intoxicant, or other
similar substance, and that condition was known
or reasonably should have been known by the
accused.
(g) Consent. Lack of consent is not an element
and need not be proven in any prosecution under
this section. A child not legally married to the
person committing the sexual act, lewd act, or use
of force cannot consent to any sexual act, lewd act,
or use of force.
(h) Definitions. In this section:
(1) Sexual act and sexual contact. The terms
‘sexual act’ and ‘sexual contact’ have the
meanings given those terms in section 920(g) of
this title (article 120(g)).
(2) Force. The term ‘force’ means—
(A) the use of a weapon;
(B) the use of such physical strength or
violence as is sufficient to overcome, restrain, or
injure a child; or
(C) inflicting physical harm. In the case of a
parent-child or similar relation- ship, the use or
abuse of parental or similar authority is sufficient
to constitute the use of force.
(3) Threatening or placing that child in fear.
The term ‘threatening or placing that child in fear’
means a communication or action that is of
sufficient consequence to cause the child to fear
that non-compliance will result in the child or
another person being subjected to the action
contemplated by the communication or action.
(4) Child. The term ‘child’ means any person
who has not attained the age of 16 years.
(5) Lewd act. The term ‘lewd act’ means—
(A) any sexual contact with a child;
(B) intentionally exposing one’s genitalia,
anus, buttocks, or female areola or nipple to a
child by any means, including via any
communication technology, with an intent to
abuse, humiliate, or degrade any person, or to
arouse or gratify the sexual desire of any person;
(C) intentionally communicating indecent
language to a child by any means, including via
any communication technology, with an intent to
abuse, humiliate, or degrade any person, or to
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
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arouse or gratify the sexual desire of any person;
or
(D) any indecent conduct, intentionally done
with or in the presence of a child, including via any
communication technology, that amounts to a
form of immorality relating to sexual impurity
which is grossly vulgar, obscene, and repugnant to
common propriety, and tends to excite sexual
desire or deprave morals with respect to sexual
relations.
b. Elements.
(1) Rape of a child involving contact between penis
and vulva or anus or mouth.
(a) Rape of a child who has not attained the age
of 12.
(i) That the accused committed a sexual act
upon a child causing penetration, however slight, by
the penis of the vulva or anus or mouth; and
(ii) That at the time of the sexual act the child
had not attained the age of 12 years.
(b) Rape by force of a child who has attained the
age of 12.
(i) That the accused committed a sexual act
upon a child causing penetration, however slight, by
the penis of the vulva or anus or mouth; and
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years, and
(iii) That the accused did so by using force
against that child or any other person.
(c) Rape by threatening or placing in fear a child
who has attained the age of 12.
(i) That the accused committed a sexual act
upon a child causing penetration, however slight, by
the penis of the vulva or anus or mouth;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by threatening the
child or another person or placing that child in fear.
(d) Rape by rendering unconscious a child who
has attained the age of 12.
(i) That the accused committed a sexual act
upon a child causing penetration, however slight, by
the penis of the vulva or anus or mouth;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by rendering that
child unconscious.
(e) Rape by administering a drug, intoxicant, or
other similar substance to a child who has attained
the age of 12.
(i) That the accused committed a sexual act
upon a child causing penetration, however slight, by
the penis of the vulva or anus or mouth;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so by administering
to that child a drug, intoxicant, or other similar
substance.
(2) Rape of a child involving penetration of vulva
or anus or mouth by any part of the body or any
object.
(a) Rape of a child who has not attained the age
of 12.
(i) That the accused committed a sexual act
upon a child by causing penetration, however slight,
of the vulva or anus or mouth of the child by any part
of the body or by any object;
(ii) That at the time of the sexual act the child
had not attained the age of 12 years; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(b) Rape by force of a child who has attained the
age of 12.
(i) That the accused committed a sexual act
upon a child by causing penetration, however slight,
of the vulva, anus, or mouth of the child by any part
of the body or by any object;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years;
(iii) That the accused did so by using force
against that child or any other person; and
(iv) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(c) Rape by threatening or placing in fear a child
who has attained the age of 12.
(i) That the accused committed a sexual act
upon a child by causing penetration, however slight,
of the vulva or anus or mouth of the child by any part
of the body or by any object;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years;
(iii) That the accused did so by threatening the
APPENDIX 22
A22-16
child or another person or placing that child in fear;
and
(iv) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(d) Rape by rendering unconscious a child who
has attained the age of 12.
(i) That the accused committed a sexual act
upon a child by causing penetration, however slight,
of the vulva or anus or mouth of the child by any part
of the body or by any object;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years;
(iii) That the accused did so by rendering that
child unconscious; and
(iv) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(e) Rape by administering a drug, intoxicant, or
other similar substance to a child who has attained
the age of 12.
(i) That the accused committed a sexual act
upon a child by causing penetration, however slight,
of the vulva or anus or mouth of the child by any part
of the body or by any object;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years;
(iii) That the accused did so by administering
to that child a drug, intoxicant, or other similar
substance; and
(iv) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(3) Sexual assault of a child.
(a) Sexual assault of a child who has attained the
age of 12 involving contact between penis and vulva
or anus or mouth.
(i) That the accused committed a sexual act
upon a child causing contact between penis and vulva
or anus or mouth; and
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years.
(b) Sexual assault of a child who has attained the
age of 12 involving penetration of vulva or anus or
mouth by any part of the body or any object.
(i) That the accused committed a sexual act
upon a child by causing penetration, however slight,
of the vulva or anus or mouth of the child by any part
of the body or by any object;
(ii) That at the time of the sexual act the child
had attained the age of 12 years but had not attained
the age of 16 years; and
(iii) That the accused did so with an intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(4) Sexual abuse of a child.
(a) Sexual abuse of a child by sexual contact
involving the touching of the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person.
(i) That the accused committed sexual contact
upon a child by touching, or causing another person to
touch, either directly or through the clothing, the
genitalia, anus, groin, breast, inner thigh, or buttocks
of any person; and
(ii) That the accused did so with intent to
abuse, humiliate, harass, or degrade any person or to
arouse or gratify the sexual desire of any person.
(b) Sexual abuse of a child by sexual contact
involving the touching of any body part.
(i) That the accused committed sexual contact
upon a child by touching, or causing another person to
touch, either directly or through the clothing, any
body part of any person; and
(ii) That the accused did so with intent to
arouse or gratify the sexual desire of any person.
(c) Sexual abuse of a child by indecent exposure.
(i) That the accused intentionally exposed his
or her genitalia, anus, buttocks, or female areola or
nipple to a child by any means; and
(ii) That the accused did so with an intent to
abuse, humiliate or degrade any person, or to arouse
or gratify the sexual desire of any person.
(d) Sexual abuse of a child by indecent
communication.
(i) That the accused intentionally
communicated indecent language to a child by any
means; and
(ii) That the accused did so with an intent to
abuse, humiliate or degrade any person, or to arouse
or gratify the sexual desire of any person.
(e) Sexual abuse of a child by indecent conduct.
(i) That the accused engaged in indecent
conduct, intentionally done with or in the presence of
a child; and
(ii) That the indecent conduct amounted to a
form of immorality relating to sexual impurity which
is grossly vulgar, obscene, and repugnant to com-
mon propriety, and tends to excite sexual desire or
deprave morals with respect to sexual relations.
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
A22-17
c. Explanation.
(1) In general. Sexual offenses have been separated
into three statutes: adults (120), children (120b), and
other offenses (120c).
(2) Definitions. Terms not defined in this paragraph
are defined in paragraph 45b.a.(h), supra.
d. Lesser included offenses. See paragraph 3 of this
part and Appendix 12A.
e. Maximum punishment.
(1) Rape of a child. Forfeiture of all pay and
allowances, and confinement for life without
eligibility for parole. Mandatory minimum –
Dismissal or dishonorable discharge.
(2) Sexual assault of a child. Forfeiture of all pay
and allowances, and confinement for 30 years.
Mandatory minimum – Dismissal or dishonorable
discharge.
(3) Sexual abuse of a child.
(a) Cases involving sexual contact. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 20 years.
(b) Other cases. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 15 years.
f. Sample specifications.
(1) Rape of a child involving contact between penis
and vulva or anus or mouth.
(a) Rape of a child who has not attained the age
of 12. In that (personal jurisdiction data), did (at/on
board location), on or about____. 20__, commit a
sexual act upon ___________, a child who had not
attained the age of 12 years, by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis.
(b) Rape by force of a child who has attained the
age of 12 years. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
commit a sexual act upon ___________, a child who
had attained the age of 12 years but had not attained
the age of 16 years, by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis, by using force against
___________, to wit: ___________.
(c) Rape by threatening or placing in fear a child
who has attained the age of 12 years. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, commit a sexual act upon
___________, a child who had attained the age of 12
years but had not attained the age of 16 years, by
causing penetration of _________’s (vulva) (anus)
(mouth) with ___________’s penis by (threatening
___________) (placing ___________in fear).
(d) Rape by rendering unconscious of a child
who has attained the age of 12 years. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, commit a sexual act upon
___________, a child who had attained the age of 12
years but had not attained the age of 16 years, by
causing penetration of ___________’s (vulva) (anus)
(mouth) with ___________’s penis by rendering
___________ unconscious by ___________.
(e) Rape by administering a drug, intoxicant, or
other similar substance to a child who has attained
the age of 12 years. In that (personal jurisdiction
data), did (at/on board location), on or about____.
20__, commit a sexual act upon ___________, a child
who had attained the age of 12 years but had not
attained the age of 16 years, by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis by administering to a (drug)
(intoxicant) ( ), to wit: ___________.
(2) Rape of a child involving penetration of the
vulva or anus or mouth by any part of the body or any
object.
(a) Rape of a child who has not attained the age
of 12. In that (personal jurisdiction data), did (at/on
board location), on or about____. 20__, commit a
sexual act upon ___________, a child who had not
attained the age of 12 years, by penetrating the
(vulva) (anus) (mouth) of ___________ with (list
body part or object), with an intent to (abuse)
(humiliate) (harass) (degrade) (arouse) (gratify the
sexual desire of) ___________.
(b) Rape by force of a child who has attained the
age of 12 years. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
commit a sexual act upon ___________, a child who
had attained the age of 12 years but had not attained
the age of 16 years, by penetrating the (vulva) (anus)
(mouth) of ___________ with (list body part or
object), by using force against ___________, with an
intent to (abuse) (humiliate) (harass) (degrade)
(arouse) (gratify the sexual desire of) ___________.
(c) Rape by threatening or placing in fear a child
who has attained the age of 12 years. In that (personal
jurisdiction data), did (at/on board location), on or
about ____. 20__, commit a sexual act upon
___________, a child who had attained the age of 12
years but had not attained the age of 16 years, by
penetrating the (vulva) (anus) (mouth) of
APPENDIX 22
A22-18
___________ with (list body part or object), by
(threatening ___________) (placing ___________ in
fear), with an intent to (abuse) (humiliate) (harass)
(degrade) (arouse) (gratify the sexual desire of)
___________.
(d) Rape by rendering unconscious of a child
who has attained the age of 12 years. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, commit a sexual act upon
___________, a child who had attained the age of 12
years but had not attained the age of 16 years, by
penetrating the (vulva) (anus) (mouth) of
___________ with (list body part or object), by
rendering ___________ unconscious, with an intent
to (abuse) (humiliate) (harass) (degrade) (arouse)
(gratify the sexual desire of) ___________.
(e) Rape by administering a drug, intoxicant, or
other similar substance to a child who has attained
the age of 12 years. In that (personal jurisdiction
data), did (at/on board location), on or about____.
20__, commit a sexual act upon ___________, a child
who had attained the age of 12 years but had not
attained the age of 16 years, by penetrating the
(vulva) (anus) (mouth) of ___________ with (list
body part or object), by administering to
___________ a (drug) (intoxicant) ( ), to wit:
___________, with an intent to (abuse) (humiliate)
(harass) (degrade) (arouse) (gratify the sexual desire
of) ___________.
(3) Sexual assault of a child.
(a) Sexual assault of a child who has attained the
age of 12 years involving contact between penis and
vulva or anus or mouth. In that (personal juris- diction
data), did (at/on board location), on or about____.
20__, commit a sexual act upon ___________, a child
who had attained the age of 12 years but had not
attained the age of 16 years, by causing penetration of
___________’s (vulva) (anus) (mouth) with
___________’s penis.
(b) Sexual assault of a child who has attained
the age of 12 years involving penetration of vulva or
anus or mouth by any part of the body or any object.
In that (personal jurisdiction data), did (at/on board
location), on or about____. 20__, commit a sexual act
upon ___________, a child who had attained the age
of 12 years but had not attained the age of 16 years,
by penetrating the (vulva) (anus) (mouth) of
___________with (list body part or object), with an
intent to (abuse) (humiliate) (harass) (degrade)
(arouse) (gratify the sexual desire of) ___________.
(4) Sexual abuse of a child.
(a) Sexual abuse of a child involving sexual
contact involving the touching of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person.
In that (personal jurisdiction data), did (at/on board
location), on or about____. 20__, commit a lewd act
upon ___________, a child who had not attained the
age of 16 years, by intentionally [(touching) (causing
___________to touch)] [(directly) (through the
clothing)] the (genitalia) (anus) (groin) (breast) (inner
thigh) (buttocks) of ___________, with an intent to
(abuse) (humiliate) (degrade) ___________.
(b) Sexual abuse of a child involving sexual
contact involving the touching of any body part of any
person. In that (personal jurisdiction data), did (at/on
board location), on or about____. 20__, commit a
lewd act upon ___________, a child who had not
attained the age of 16 years, by intentionally exposing
[his (genitalia) (anus) (buttocks)] [her (genitalia)
(anus) (buttocks) (areola) (nipple)] to ___________,
with an intent to (abuse) (humiliate) (harass)
(degrade) (arouse) (gratify the sexual desire of)
___________.
(c) Sexual abuse of a child involving indecent
exposure. In that (personal jurisdiction data), did
(at/on board location), on or about____. 20__, commit
a lewd act upon ___________, a child who had not
attained the age of 16 years, by intentionally [(
touching)( causing _________ to touch)] [(directly)
(through the clothing)] (name of body part) of
___________, with an intent to (arouse) (gratify the
sexual desire of) ___________.
(d) Sexual abuse of a child involving indecent
communication. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
commit a lewd act upon ___________, a child who
had not attained the age of 16 years, by intentionally
communicating to ___________ indecent language to
wit: ___________, with an intent to (abuse)
(humiliate) (harass) (degrade) (arouse) (gratify the
sexual desire of) ___________.
(e) Sexual abuse of a child involving indecent
conduct. In that (personal jurisdiction data), did (at/
on board location), on or about____. 20__, commit a
lewd act upon ___________, a child who had not
attained the age of 16 years, by engaging in indecent
conduct, to wit: ___________, intentionally done
(with) (in the presence of) ___________, which
conduct amounted to a form of immorality relating to
sexual impurity which is grossly vulgar, obscene, and
repugnant to common propriety, and tends to excite
sexual desire or deprave morals with respect to sexual
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
A22-19
relations.
45c. Article 120c—Other sexual misconduct
[Note: This statute applies to offenses committed
between 28 June 2012 and 31 December 2018. Article
120c is a new statute designed to address
miscellaneous sexual misconduct. Previous versions
of these offenses are located as follows: for offenses
committed on or before 30 September 2007, see
Appendix 20; for offenses committed during the
period 1 October 2007 through 27 June 2012, see
Appendix 21.]
a. Text of Statute
(a) Indecent Viewing, Visual Recording, or
Broadcasting. Any person subject to this chapter
who, without legal justification or lawful
authorization—
(1) knowingly and wrongfully views the
private area of another person, without that other
person’s consent and under circumstances in
which that other person has a reasonable
expectation of privacy;
(2) knowingly photographs, videotapes,
films, or records by any means the private area of
another person, without that other person’s
consent and under circumstances in which that
other person has a reasonable expectation of
privacy; or
(3) knowingly broadcasts or distributes any
such recording that the person knew or reasonably
should have known was made under the
circumstances proscribed in paragraphs (1) and
(2); is guilty of an offense under this section and
shall be punished as a court-martial may direct.
(b) Forcible Pandering. Any person subject to
this chapter who compels another person to
engage in an act of prostitution with any person is
guilty of forcible pandering and shall be punished
as a court-martial may direct.
(c) Indecent Exposure. Any person subject to this
chapter who intentionally exposes, in an indecent
manner, the genitalia, anus, buttocks, or female
areola or nipple is guilty of indecent exposure and
shall by punished as a court-martial may direct.
(d) Definitions. In this section:
(1) Act of prostitution. The term ‘act of
prostitution’ means a sexual act or sexual contact
(as defined in section 920(g) of this title (article
120(g))) on account of which anything of value is
given to, or received by, any person.
(2) Private area. The term ‘private area’
means the naked or underwear-clad genitalia,
anus, buttocks, or female areola or nipple.
(3) Reasonable expectation of privacy. The term
‘under circumstances in which that other person
has a reasonable expectation of privacy’ means—
(A) circumstances in which a reasonable
person would believe that he or she could disrobe
in privacy, without being concerned that an image
of a private area of the person was being captured;
or
(B) circumstances in which a reasonable
person would believe that a private area of the
person would not be visible to the public.
(4) Broadcast. The term ‘broadcast’ means to
electronically transmit a visual image with the
intent that it be viewed by a person or persons.
(5) Distribute. The term ‘distribute’ means
delivering to the actual or constructive possession
of another, including transmission by electronic
means.
(6) Indecent manner. The term ‘indecent
manner’ means conduct that amounts to a form of
immorality relating to sexual impurity which is
grossly vulgar, obscene, and repugnant to common
propriety, and tends to excite sexual desire or
deprave morals with respect to sexual relations.
b. Elements.
(1) Indecent viewing.
(a) That the accused knowingly and wrongfully
viewed the private area of another person;
(b) That said viewing was without the other
person’s consent; and
(c) That said viewing took place under
circumstances in which the other person had a
reasonable expectation of privacy.
(2) Indecent recording.
(a) That the accused knowingly recorded
(photographed, videotaped, filmed, or recorded by
any means) the private area of another person;
(b) That said recording was without the other
person’s consent; and
(c) That said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy.
(3) Broadcasting of an indecent recording.
(a) That the accused knowingly broadcast a
certain recording of another person’s private area;
(b) That said recording was made or broadcast
APPENDIX 22
A22-20
without the other person’s consent;
(c) That the accused knew or reasonably should
have known that the recording was made or broadcast
without the other person’s consent;
(d) That said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy; and
(e) That the accused knew or reasonably should
have known that said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy.
(4) Distribution of an indecent visual recording.
(a) That the accused knowingly distributed a
certain recording of another person’s private area;
(b) That said recording was made or distributed
without the other person’s consent;
(c) That the accused knew or reasonably should
have known that said recording was made or
distributed without the other person’s consent;
(d) That said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy; and
(e) That the accused knew or reasonably should
have known that said recording was made under
circumstances in which the other person had a
reasonable expectation of privacy.
(5) Forcible pandering. That the accused compelled
another person to engage in an act of prostitution with
any person.
(6) Indecent exposure.
(a) That the accused exposed his or her genitalia,
anus, buttocks, or female areola or nipple;
(b) That the exposure was in an indecent manner;
and
(c) That the exposure was intentional.
c. Explanation.
(1) In general. Sexual offenses have been separated
into three statutes: adults (120), children (120b), and
other offenses (120c).
(2) Definitions.
(a) Recording. A “recording” is a still or moving
visual image captured or recorded by any means.
(b) Other terms are defined in paragraph
45c.a.(d), supra.
d. Lesser included offenses. See paragraph 3 of this
part and Appendix 12A.
e. Maximum punishment.
(1) Indecent viewing. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
(2) Indecent visual recording. Dishonorable
discharge, forfeiture of all pay and allowances, and
confinement for 5 years.
(3) Broadcasting or distribution of an indecent
visual recording. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 7
years.
(4) Forcible pandering. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 12 years.
(5) Indecent exposure. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement
for 1 year.
f. Sample specifications.
(1) Indecent viewing, visual recording, or
broadcasting.
(a) Indecent viewing. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, knowingly and wrongfully view the
private area of ___________, without (his) (her)
consent and under circumstances in which (he) (she)
had a reasonable expectation of privacy.
(b) Indecent visual recording. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, knowingly (photograph) (videotape)
(film) (make a recording of) the private area of
___________, without (his) (her) consent and under
circumstances in which (he) (she) had a reasonable
expectation of privacy.
(c) Broadcasting or distributing an indecent
visual recording. In that (personal jurisdiction data),
did (at/on board location), on or about____. 20__,
knowingly (broadcast) (distribute) a recording of the
private area of ___________, when the said accused
knew or reasonably should have known that the said
recording was (made) (and/or) (distributed/ broadcast)
without the consent of ___________ and under
circumstances in which (he) (she) had a reasonable
expectation of privacy.
(2) Forcible pandering. In that (personal
jurisdiction data), did (at/on board location), on or
about____. 20__, wrongfully compel ___________ to
engage in (a sexual act) (sexual contact) with
___________, to wit: ___________, for the purpose
of receiving (money) (other compensation)
(___________).
(3) Indecent exposure. In that (personal jurisdiction
data), did (at/on board location), on or about____.
20__, intentionally expose [his (genitalia) (anus)
(buttocks)] [her (genitalia) (anus) (buttocks) (areola)
(nipple)] in an indecent manner, to wit: ___________.
PUNITIVE ARTICLES APPLICABLE TO SEXUAL OFFENSES COMMITTED BETWEEN
28 JUNE 2012 AND 31 DECEMBER 2018
A22-21
97. Article 134—(Pandering and prostitution)
a. Text of statute. See paragraph 60.
b. Elements.
(1) Prostitution.
(a) That the accused engaged in a sexual act
with another person not the accused’s spouse;
(b) That the accused did so for the purpose of
receiving money or other compensation;
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct
of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature
to bring discredit upon the armed forces.
(2) Patronizing a prostitute.
(a) That the accused engaged in a sexual act
with another person not the accused’s spouse;
(b) That the accused compelled, induced,
enticed, or procured such person to engage in a
sexual act in exchange for money or other
compensation; and
(c) That this act was wrongful; and
(d) That, under the circumstances, the conduct
of the accused was to the prejudice of good order
and discipline in the armed forces or was of a nature
to bring discredit upon the armed forces.
(3) Pandering by inducing, enticing, or procuring
act of prostitution.
(a) That the accused induced, enticed, or
procured a certain person to engage in a sexual act
for hire and reward with a person to be directed to
said person by the accused;
(b) That this inducing, enticing, or procuring
was wrongful;
(c) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
(4) Pandering by arranging or receiving
consideration for arranging for a sexual act.
(a) That the accused arranged for, or received
valuable consideration for arranging for, a certain
person to engage in a sexual act with another person;
(b) That the arranging (and receipt of
consideration) was wrongful; and
(c) That, under the circumstances, the conduct of
the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.
c. Explanation.
(1) Prostitution may be committed by males or
females.
(2) Sexual act. See paragraph 45.a.(g)(1).
d. Lesser included offenses. See paragraph 3 of this
part and Appendix 12A.
e. Maximum punishment.
(1) Prostitution and patronizing a prostitute. Dis-
honorable discharge, forfeiture of all pay and
allowances, and confinement for 1 year.
(2) Pandering. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for 5 years.
f. Sample specifications.
(1) Prostitution.
In that _________ (personal jurisdiction data),
did, (at/on board-location) (subject-matter jurisdiction
data, if required), on or about____. 20__, wrongfully
engage in (a sexual act) (sexual acts) with , a person
not his/her spouse, for the purpose of receiving
(money) ( ), and that said conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and was of a nature to bring discredit
upon the armed forces).
(2) Patronizing a prostitute.
In that _________ (personal jurisdiction data),
did, (at/on board location) (subject-matter jurisdiction
data, if required), on or about____. 20__, wrongfully
(compel) (induce) (entice) (procure) _________, a
person not his/her spouse, to engage in (a sexual act)
(sexual acts) with the accused in exchange for (money)
(_________), and that said conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline in
the armed forces and was of a nature to bring discredit
upon the armed forces).
(3) Inducing, enticing, or procuring act of
prostitution.
In that _________ (personal jurisdiction data),
did (at/on board-location) (subject-matter jurisdiction
data, if required), on or about____. 20__, wrongfully
(induce)(entice)(procure) _________ to engage in (a
sexual act) (sexual acts for hire and reward) with
persons to be directed to him/her by the said
_________, and that said conduct was (to the
prejudice of good order and discipline in the armed
forces) (of a nature to bring discredit upon the armed
forces) (to the prejudice of good order and discipline
APPENDIX 22
A22-22
in the armed forces and was of a nature to bring
discredit upon the armed forces).
(4) Arranging, or receiving consideration for
arranging for sexual intercourse or sodomy.
In that _________ (personal jurisdiction data),
did, (at/on board-location) (subject-matter
jurisdiction data, if required), on or about____. 20__,
wrongfully (arrange for) (receive valuable
consideration, to wit: _________ on account of
arranging for) _________ to engage in (an act) (acts)
of (sexual intercourse) (sodomy) with _________,
and that said conduct was (to the prejudice of good
order and discipline in the armed forces) (of a nature
to bring discredit upon the armed forces) (to the
prejudice of good order and discipline in the armed
forces and was of a nature to bring discredit upon the
armed forces).
MANUAL FOR COURTS-MARTIAL
UNITED STATES
(2024 EDITION)
UNCLASSIFIED