Amendments to the Manual for Courts-Martial, United States, 1984

Executive Order 12960 of May 12, 1995

Amendments to the Manual for Courts-Martial,
United States, 1984

By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including chapter 47 of title 10, United
States Code (Uniform Code of Military Justice, 10
U.S.C. 801-946), in order to prescribe amendments to
the Manual for Courts-Martial, United States, 1984,
prescribed by Executive Order No. 12473, as amended by
Executive Order No. 12484, Executive Order No. 12550,
Executive Order No. 12586, Executive Order No. 12708,
Executive Order No. 12767, Executive Order No. 12888,
and Executive Order No. 12936, it is hereby ordered as
follows:

 Section 1. Part I of the Manual for Courts-Martial,
United States, 1984, is amended as follows:

Preamble, paragraph 4, is amended to read as follows:

    “4. 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, and the
Nonjudicial Punishment Procedures (Parts I-V). The
Manual shall be applied consistent with the purpose of
military law.

The Manual shall be identified as “Manual for Courts-
Martial, United States (19xx edition).” Any amendments
to the Manual made by Executive Order shall be
identified as “19xx Amendments to the Manual for
Courts-Martial, United States.””

Sec. 2. Part II of the Manual for Courts-Martial,
United States, 1984, is amended to read as follows:

a. R.C.M. 810(d) is amended to read as follows:

    “(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 subsection (d)(2) of this rule,
offenses on which a rehearing, new trial, or other
trial has been ordered shall not be the basis for an
approved sentence in excess of or more severe than the
sentence ultimately approved by the convening or higher
authority following the previous trial or hearing,
unless the sentence prescribed for the offense is
mandatory. When a rehearing or sentencing is combined
with trial on new charges, the maximum punishment that
may be approved by the convening authority shall be the
maximum punishment under R.C.M. 1003 for the offenses
being reheard as limited above, plus the total maximum
punishment under R.C.M. 1003 for any new charges of
which the accused has been found guilty. In the case of
an “other trial” no sentence limitations apply if the
original trial was invalid because a summary or special
court-martial improperly tried an offense involving a
mandatory punishment or one otherwise considered
capital.
      (2) Pretrial agreement. If, after the earlier
court-martial, the sentence was approved in accordance
with a pretrial agreement and at the rehearing the
accused fails to comply with the pretrial agreement, by
failing to enter a plea of guilty or otherwise, the
approved sentence resulting at a rehearing of the
affected charges and specifications may include any
otherwise lawful  punishment not in
excess of or more serious than lawfully adjudged at the
earlier court-martial.”

b. R.C.M. 924(a) is amended to read as follows:

    “(a) Time for reconsideration. Members may
reconsider any finding reached by them before such
finding is announced in open session.”

c. R.C.M. 924(c) is amended to read as follows:

    “(c) Military judge sitting alone. In a trial by
military judge alone, the military judge may reconsider
any finding of guilty at any time before announcement
of sentence and may reconsider 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 authentication
of the record of trial in the case of a complete
acquittal.”

d. R.C.M. 1003(b)(9) and the accompanying discussion
are deleted.

e. R.C.M. 1003(b)(10), (11), and (12) are redesignated
as subsections (9), (10), and (11), respectively.

f. R.C.M. 1009 is amended to read as follows:

    “(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 after it has been announced, and may increase
the sentence upon reconsideration in accordance with
subsection (e) of this rule.
      (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 sentence may be reconsidered after
announcement in accordance with subsection (e) of this
rule.
    (c) Clarification of sentence. A sentence may be
clarified at any time prior to action of the convening
authority on the case.
      (1) Sentence adjudged by the military judge. When
a sentence adjudged by the military judge is ambiguous,
the military judge shall call a session for
clarification as soon as practical after the ambiguity
is discovered.
      (2) Sentence adjudged by members. When a sentence
adjudged by members 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 who adjudged the sentence
as soon as practical after the ambiguity is discovered.
    (d) Action by the convening authority. When a
sentence adjudged by the court-martial is ambiguous,
the convening authority may return the matter to the
court-martial for clarification. When a sentence
adjudged by the court-martial is apparently illegal,
the convening authority may return the matter to the
court-martial for reconsideration or may approve a
sentence no more severe than the legal, unambiguous
portions of the adjudged sentence.
    (e) Reconsideration procedure. Any member of the
court-martial may propose that a sentence reached by
the members be reconsidered.
      (1) Instructions. When a sentence has been
reached by members and reconsideration has been
initiated, the military judge shall instruct the
members on the procedure for reconsideration.
      (2) Voting. The members shall vote by secret
written ballot in closed session whether to reconsider
a sentence already reached by them.
      (3) Number of votes required.
      (A) With a view to increasing. Subject to
subsection (b) of this rule, members may reconsider a
sentence with a view of increasing it only if at least
a majority of the members vote for reconsideration.
      (B) With a view to decreasing. Members may
reconsider a sentence with a view to decreasing it only
if:
      (i) In the case of a sentence which includes
death, at least one member votes to reconsider;
      (ii) In the case of a sentence which includes
confinement for life or more than 10 years, more than
one-fourth of the members vote to reconsider; or
      (iii) In the case of any other sentence, more
than one-third of the members vote to reconsider.
      (4) Successful vote. If a vote to reconsider a
sentence succeeds, the procedures in R.C.M. 1006 shall
apply.”

g. R.C.M. 1103(b)(3)(L) is deleted.

h. R.C.M. 1103(b)(3)(M) and (N) are redesignated as
subsections (L) and (M), respectively.

i. R.C.M. 1103(c)(2) is amended to read as follows:

    “(2) Not involving a bad-conduct discharge. If the
special court-martial resulted in findings of guilty
but a bad-conduct discharge was not adjudged, the
requirements of subsections (b)(1), (b)(2)(D), and
(b)(3)(A)--(F) and (I)--(M) of this rule shall apply.”

j. R.C.M. 1104(b)(2) is amended to read as follows:

    “(2) Summary courts-martial. The summary court-
martial record of trial shall be disposed of as
provided in R.C.M. 1305(d). Subsection (b)(1)(D) of
this rule shall apply if classified information is
included in the record of trial of a summary court-
martial.”

k. R.C.M. 1106(d)(3) is amended by adding a new
subsection (B) as follows:

    “(B) A recommendation for clemency by the
sentencing authority, made in conjunction with the
announced sentence;”

l. R.C.M. 1106(d)(3)(B)--(E) are redesignated as
subsections (C)--(F), respectively.

m. R.C.M. 1107(d) is amended by adding a new
subparagraph (3) as follows:

    “(3) Postponing service of a sentence to
confinement.
      (A) In a case in which a court-martial sentences
an accused referred to in subsection (B), below, to
confinement, the convening authority may postpone
service of a sentence to confinement by a court-
martial, without the consent of the accused, until
after the accused has been permanently released to the
armed forces by a state or foreign country.
      (B) Subsection (A) applies to an accused who,
while 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.
      (C) As used in subsection (d)(3), the term
“state” means a state of the United States, the
District of Columbia, a territory, and a possession of
the United States.”

n. R.C.M. 1107(d)(3) is redesignated as R.C.M.
1107(d)(4).

o. R.C.M. 1107(e)(1)(C)(iii) is amended to read as
follows:

    “(iii) Rehearing on sentence only. A rehearing on
sentence only shall not be referred to a different kind
of court-martial from that which made the original
findings. If the convening authority determines a
rehearing on sentence is impracticable, the convening
authority may approve a sentence of no punishment
without conducting a rehearing.”

p. R.C.M. 1107(f)(2) is amended to read as
follows:

    “(2) Modification of initial action. The convening
authority may recall and modify any action taken by
that convening authority at any time before it has been
published or before the accused has been officially
notified. The convening authority also may recall and
modify any action at any time prior to forwarding the
record for review, as long as the modification does not
result in action less favorable to the accused than the
earlier action. In addition, in any special court-
martial, the convening authority may recall and correct
an illegal, erroneous, incomplete, or ambiguous action
at any time before completion of review under R.C.M.
1112, as long as the correction does not result in
action less favorable to the accused than the earlier
action. When so directed by a higher reviewing
authority or the Judge Advocate General, the convening
authority shall modify any incomplete, ambiguous, void,
or inaccurate action noted in review of the record of
trial under Article 64, 66, 67, or examination of the
record of trial under Article 69. The convening
authority shall personally sign any supplementary or
corrective action.”

q. R.C.M. 1108(b) is amended to read as follows:

    “(b) Who may suspend and remit. The convening
authority may, after approving the sentence, suspend
the execution of all or any part of the sentence of a
court-martial except for a sentence of death. The
general court-martial convening authority over the
accused at the time of the court-martial may, when
taking the action under R.C.M. 1112(f), suspend or
remit any part of the sentence. 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. The
commander of the accused who has the authority to
convene a court-martial of the kind which adjudged the
sentence may suspend or remit any part or amount of the
unexecuted part of any sentence by summary court-
martial or of any sentence by special court-martial
which does not include a bad-conduct discharge
regardless of whether the person acting has previously
approved the sentence. The “unexecuted part of any
sentence” includes that part which has been approved
and ordered executed but which has not actually been
carried out.”

r. R.C.M. 1113(d)(2)(A) is amended by adding a new
subparagraph (iii) as follows:

    “(iii) Periods during which the accused is in
custody of civilian or foreign authorities after the
convening authority, pursuant to Article 57(e), has
postponed the service of a sentence to confinement;”

s. R.C.M. 1113(d)(2)(A)(iii)--(iv) are redesignated
1113(d)(A)(iv)--(v), respectively.

t. R.C.M. 1113(d)(5) is deleted.

u. R.C.M. 1113(d)(6) is redesignated as subsection (5).

v. R.C.M. 1201(b)(3)(A) is amended to read as follows:

    “(A) In general. Notwithstanding R.C.M. 1209, the
Judge Advocate General may, sua sponte or, except when
the accused has waived or withdrawn the right to
appellate review under R.C.M. 1110, upon application of
the accused or a person with authority to act for the
accused, vacate or modify, in whole or in part, the
findings, sentence, or both of a court-martial that has
been finally reviewed, but has not been reviewed either
by a Court of Military Review or by the Judge Advocate
General under subsection (b)(1) of this rule, 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.”

w. R.C.M. 1305(d) is deleted.

x. R.C.M. 1305(e) is redesignated as subsection (d).

Sec. 3. Part III of the Manual for Courts-Martial,
United States, 1984, is amended as
follows:

a. M.R.E. 311(g)(2) is amended to read as follows:

    “(2) False statements. If the defense makes a
substantial preliminary showing that a government agent
included a false statement knowingly and intentionally
or with reckless disregard for the truth in the
information presented to the authorizing officer, and
if the allegedly false statement is necessary to the
finding of probable cause, the defense, upon request,
shall be 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 shall be granted unless the search is
otherwise lawful under these rules.”

b. M.R.E. 506(e) and (f) are amended to read as
follows:

    “(e) Pretrial session. At any time after referral
of charges and prior to arraignment, any party may move
for a session under Article 39(a) to consider matters
relating to government information that may arise in
connection with the trial. Following such motion, or
sua sponte, the military judge promptly shall hold a
pretrial session under Article 39(a) to establish the
timing of requests for discovery, the provision of
notice under subsection (h), and the initiation of the
procedure under subsection (i). In addition, the
military judge may consider any other matters that
relate to government information or that may promote a
fair and expeditious trial.
    (f) Action after motion for disclosure of
information. After referral of charges, if the defense
moves for disclosure of government information for
which a claim of privilege has been made under this
rule, the matter shall be reported to the convening
authority. The convening authority may:
      (1) institute action to obtain the information
for use by the military judge in making a determination
under subdivision (i);
      (2) dismiss the charges;
      (3) dismiss the charges or specifications or both
to which the information relates; or
      (4) take other action as may be required in the
interests of justice.

If, after a reasonable period of time, the information
is not provided to the military judge, the military
judge shall dismiss the charges or specifications or
both to which the information relates.”

c. M.R.E. 506(h) is amended to read as follows:

    “(h) Prohibition against disclosure. The accused
may not disclose any information known or believed to
be subject to a claim of privilege under this rule
unless the military judge authorizes such disclosure.”

d. M.R.E. 506(i) is amended to read as follows:

    “(i) In camera proceedings.
      (1) Definition. For purposes of this subsection,
an “in camera proceeding” is a session under Article
39(a) from which the public is excluded.
      (2) Motion for in camera proceeding. Within the
time specified by the military judge for the filing of
a motion under this rule, the Government may move for
an in camera proceeding concerning the use at any
proceeding of any government information that may be
subject to a claim of privilege. Thereafter, either
prior to or during trial, the military judge for good
cause shown or otherwise upon a claim of privilege may
grant the Government leave to move for an in camera
proceeding concerning the use of additional government
information.
      (3) Demonstration of public interest nature of
the information. In order to obtain an in camera
proceeding under this rule, the Government shall
demonstrate, through the submission of affidavits and
information for examination only by the military judge,
that disclosure of the information reasonably could be
expected to cause identifiable damage to the public
interest.
      (4) In camera proceeding.
      (A) Finding of identifiable damage. Upon finding
that the disclosure of some or all of the information
submitted by the Government under subsection (i)(3)
reasonably could be expected to cause identifiable
damage to the public interest, the military judge shall
conduct an in camera proceeding.
      (B) Disclosure of the information to the defense.
Subject to subsection (F), below, the Government shall
disclose government information for which a claim of
privilege has been made to the accused, for the limited
purpose of litigating, in camera, the admissibility of
the information at trial. The military judge shall
enter an appropriate protective order to the accused
and all other appropriate trial participants concerning
the disclosure of the information according to
subsection (g), above. The accused shall not disclose
any information provided under this subsection unless,
and until, such information has been admitted into
evidence by the military judge. In the in camera
proceeding, both parties shall have the opportunity to
brief and argue the admissibility of the government
information at trial.
      (C) Standard. Government information is subject
to disclosure at the court-martial proceeding under
this subsection 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.
      (D) Ruling. No information may be disclosed at
the court-martial proceeding or otherwise unless the
military judge makes a written determination that the
information is subject to disclosure under the standard
set forth in subsection (C), above. The military judge
will specify in writing any information that he or she
determines is subject to disclosure. The record of the
in camera proceeding shall be sealed and attached to
the record of trial as an appellate exhibit. The
accused may seek reconsideration of the determination
prior to or during trial.
      (E) Alternatives to full disclosure. If the
military judge makes a determination under this
subsection that the information is subject to
disclosure, or if the Government elects not to contest
the relevance, necessity, and admissibility of the
government information, the Government may proffer a
statement admitting for purposes of the court-martial
any relevant facts such information would tend to prove
or may submit a portion or summary to be used in lieu
of the information. The military judge shall order that
such statement, portion, summary, or some other form of
information which the military judge finds to be
consistent with the interests of justice, be used by
the accused in place of the government information,
unless the military judge finds that use of the
government information itself is necessary to afford
the accused a fair trial.
      (F) Sanctions. Government information may not be
disclosed over the Government's objection. If the
Government continues to object to disclosure of the
information following rulings by the military judge,
the military judge shall issue any order that the
interests of justice require. Such an order may
include:
      (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;
      (iv) dismissing the charges, with or without
prejudice; or
      (v) dismissing the charges or specifications or
both to which the information relates.”

e. A new M.R.E. 506(j) is added as follows:

    “(j) 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 also may 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.”

f. M.R.E. 506(j) and (k) are redesignated as (k) and
(l), respectively.

Sec. 4. Part IV of the Manual for Courts-Martial,
United States, 1984, is amended to read as follows:

a. Paragraph 4.c. is amended by adding a new
subparagraph (4) as follows:

    “(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, such as, 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.”

b. Paragraph 4.c.(4), (5), and (6) are redesignated as
subparagraphs (5), (6) and (7), respectively.

c. Paragraph 30a.c(1), is amended to read as follows:

    “(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 [delete
“or otherwise”] without lawful authority with respect
to information that is not lawfully accessible to the
public.”

d. Paragraph 35 is amended to read as follows:

    “35. Article 111--Drunken or reckless operation of
a vehicle, aircraft, or vessel
      a. Text.
      “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 0.10 grams of alcohol per 100 milliliters of
blood or 0.10 grams of alcohol per 210 liters of
breath, as shown by chemical analysis, shall be
punished as a court-martial may direct.”
      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 was 0.10 grams of alcohol per 100
milliliters of blood or 0.10 grams of alcohol per 210
liters of breath, or greater, as shown by chemical
analysis.
      [Note: If injury resulted add the following
element]
      (3) That the accused thereby caused the vehicle,
aircraft, or vessel to injure a person.
      c. Explanation.
      (1) Vehicle. See 1 U.S.C. Sec. 4.
      (2) Vessel. See 1 U.S.C. Sec. 3.
      (3) Aircraft. Any contrivance used or designed
for transportation in the air.
      (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), Uniform Code of Military Justice.
      (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 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 subsections
(1) and (2) of the Article, (e.g., both drunken and
reckless operation or physical control), this article
proscribes the conduct described in both subsections 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. Lesser included offense.
      (1) Reckless or wanton or impaired operation or
physical control of a vessel. Article 110--improper
hazarding of a vessel.
      (2) Drunken operation of a vehicle, vessel, or
aircraft while drunk or with a blood or breath alcohol
concentration in violation of the described per se
standard.
      (a) Article 110--improper hazarding of a vessel
      (b) Article 112--drunk on duty
      (c) Article 134--drunk on station
      e. 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.
      f. Sample specification.
    In that -------------------- (personal jurisdiction
data), did (at/onboard--location) (subject-matter
jurisdiction data, if required), on or about ----------
-------- 19--------, (in the motor pool area) (near the
Officer's 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 (blood was
0.10 grams of alcohol per 100 milliliters of blood or
greater)(breath was 0.10 grams of alcohol per 210
liters of breath or greater) as shown by chemical
analysis] [in a (reckless)(wanton) manner by
(attempting to pass another vehicle on a sharp
curve)(by ordering that the aircraft be flown below the
authorized altitude)] [and did thereby cause said
(vehicle) (aircraft)(vessel) to (strike and) (injure --
--------------------------)].”

e. Paragraph 43.a.(3) is amended to read as follows:

    “(3) is engaged in an act that is inherently
dangerous to another and evinces a wanton disregard of
human life; or”

f. Paragraph 43.b.(3)(c) is amended to read as follows:

    “(c) That this act was inherently dangerous to
another and showed a wanton disregard for human life;”

g. Paragraph 43.c.(4)(a) is amended to read as follows:

    “(a) Wanton disregard for 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 or
others in jest or flying an aircraft very low over one
or more persons to cause alarm.”

h. Paragraph 45.a.(a) is amended to read as follows:

    “(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.”

i. Paragraph 45.b.(1) is amended to read as follows:

    “(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.”

j. Paragraph 45.c.(1)(a) and (b) are amended as
follows:

    “(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 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 understanding the nature of
the act is not consent.”

k. Paragraph 89.c. is amended to read as follows:

    “(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 87 if the communication was
made in the physical presence of a child.”

l. The following new paragraph is added after paragraph
103:

    “103a. Article 134 (Self-injury without intent to
avoid service)
      a. Text. See paragraph 60.
      b. Elements.
      (1) That the accused intentionally inflicted
injury upon himself or herself;
      (2) 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.
      [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 40) 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
a debility is a self-inflicted injury. Similarly, the
injury may be inflicted by another at the accused's
request.
    d. Lesser included offense. Article 80--attempts
    e. 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.
    f. Sample specification.
    In that ------------------ (personal jurisdiction
data), did, (at/on board--location) (in a hostile fire
pay zone) on or about ------------------ 19----, (a
time of war,) intentionally injure himself/herself by
-------------- (nature and circumstances of injury).”

Sec. 5. These amendments shall take effect on June 10,
1995, subject to the following:

a. Nothing in these amendments shall be construed to
make punishable any act done or omitted prior to June
10, 1995.

b. The maximum punishment for an offense committed
prior to June 10, 1995, shall not exceed the applicable
maximum in effect at the time of the commission of such
offense.

c. Nothing in these amendments shall be construed to
invalidate any nonjudicial punishment proceeding,
restraint, investigation, referral of charges, trial in
which arraignment occurred, or other action begun prior
to June 10, 1995, and any such nonjudicial punishment,
restraint, investigation, referral of charges, trial,
or other action may proceed in the same manner and with
the same effect as if these amendments had not been
prescribed.

    (Presidential Sig.)

THE WHITE HOUSE,

    May 12, 1995.