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