2002 Amendments to the Manual for Courts-Martial, United States

Executive Order 13262 of April 11, 2002

2002 Amendments to the Manual for Courts-Martial,
                United States

                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), and in order to prescribe amendments
                to the Manual for Courts-Martial, United States,
                prescribed by Executive Order 12473, as amended, it is
                hereby ordered as follows:

                Section 1. Thirty days after the date of this Executive
                Order, the provisions of Federal Rule of Evidence 415,
                adopted September 13, 1994, will no longer be
                applicable to the Military Rules of Evidence. This
                evidentiary rule became applicable to courts-martial on
                January 6, 1996, pursuant to Military Rule of Evidence
                1102.

                Sec. 2. The last subparagraph of paragraph 4, of Part
                I, of the Manual for Courts-Martial, United States, is
                amended as follows:

                    “The Manual shall be identified as “Manual for
                Courts-Martial, United States (2002 edition).” Any
                amendments to the Manual made by Executive Order shall
                be identified as “2002” Amendments to the Manual for
                Courts-Martial, United States” ; “2002” being the
                year the Executive Order was signed. If two or more
                Executive Orders amending the Manual are signed during
                the same year, then the second and any subsequent
                Executive Orders will be identified by placing a small
                case letter of the alphabet after the last digit of the
                year beginning with “a” for the second Executive
                Order and continuing in alphabetic order for subsequent
                Executive Orders.”.

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

                    a. R.C.M. 201(f)(2)(B) is amended to read as
                follows:

   “(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 unless:

                       “(a) Counsel qualified under Article 27(b) is
                    detailed to represent the accused; and
                       “(b) A military judge is detailed to the trial,
                    except in a case in which a military judge could
                    not be detailed because of physical conditions or
                    military exigencies. Physical conditions or
                    military exigencies, as the terms are here used,
                    may exist under rare circumstances, such as on an
                    isolated ship on the high seas or in a unit in an
                    inaccessible area, provided compelling reasons
                    exist why the trial must be held at that time and
                    at that place. Mere inconvenience does not
                    constitute a physical condition or military
                    exigency and does not excuse a failure to detail a
                    military judge. If a military judge cannot be
                    detailed because of physical conditions or military
                    exigencies, a bad-conduct discharge, confinement
                    for more than six months, or forfeiture of pay for
                    more than

                    six months, may be adjudged provided the other
                    conditions have been met. In that event, however,
                    the convening authority shall, prior to trial, make
                    a written statement explaining why a military judge
                    could not be obtained. This statement shall be
                    appended to the record of trial and shall set forth
                    in detail the reasons why a military judge could
                    not be detailed, and why the trial had to be held
                    at that time and place.”

                    b. R.C.M. 701(b)(4) is amended to read as follows:

   “(4) Reports of examination and tests. If the defense requests
disclosure under subsection (a)(2)(B) of this rule, upon compliance with
such request by the Government, the defense, on request of 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 any results or reports of
physical or mental examinations and of scientific tests or experiments made
in connection with the particular case, or copies thereof, that are within
the possession, custody, or control of the defense that the defense intends
to introduce as evidence in the defense case-in-chief at trial or that were
prepared by a witness whom the defense intends to call at trial when the
results or reports relate to that witness' testimony.”

                    c. R.C.M. 806 is amended by adding at the end the
                following new subsection (d):

   “(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. For purposes of this subsection, “military judge” does
not include the president of a special court-martial without a military
judge.”.

                    d. R.C.M. 1001(b)(3)(A) is amended to read as
                follows:

   “(A) In general. The trial counsel may introduce evidence of military
or civilian convictions of the accused. For purposes of this rule, there is
a “conviction” in a court-martial case when a sentence 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. However, a “civilian 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 because of errors of law or because of subsequently
discovered evidence exonerating the accused.”.

                    e. R.C.M. 1003(b)(3) is amended to read as follows:

   “(3) Fine. Any court-martial may adjudge a fine in lieu of or in
addition to forfeitures. Special and summary 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 order 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;”

                    f. R.C.M. 1003(b)(7) is amended to read as follows:

   “(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;”.

                    g. R.C.M. 1004(e) is amended to read as follows:

   “(e) Other penalties. Except for a violation of Article 106, 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 the death penalty, 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.”

                    h. R.C.M. 1006(d)(4)(B) is amended to read as
                follows:

   “(B) Confinement for life, with or without eligibility for parole, or
more than 10 years. A sentence that includes confinement for life, with or
without eligibility for parole, or more than 10 years may be adjudged only
if at least three-fourths of the members present vote for that sentence.”

                    i. R.C.M. 1009(e)(3)(B)(ii) is amended to read as
                follows:

   “(ii) In the case of a sentence which includes confinement for life,
with or without eligibility for parole, or more than 10 years, more than
one-fourth of the members vote to reconsider; or”.

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

   “(i) Any part of the sentence adjudged exceeds six months confinement,
forfeiture of pay greater than two-thirds pay per month, or any forfeiture
of pay for more than six months or other punishments that may be adjudged
by a special court-martial; or”.

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

   “(c) Special courts-martial.

                       “(1) Involving a bad-conduct discharge,
                    confinement for more than six months, or forfeiture
                    of pay for more than six months. The requirements
                    of subsections (b)(1), (b)(2)(A), (b)(2)(B),
                    (b)(2)(D), and (b)(3) of this rule shall apply in a
                    special court-martial in which a bad-conduct
                    discharge, confinement for more than six months, or
                    forfeiture of pay for more than six months, has
                    been adjudged.
                       “(2) All other special courts-martial. If the
                    special court-martial resulted in findings of
                    guilty but a bad-conduct discharge, confinement for
                    more than six months, or forfeiture of pay for more
                    than six months, 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.”.

                    l. R.C.M. 1103(f)(1) is amended to read as follows:

   “(1) Approve only so much of the sentence that could be adjudged by a
special court-martial, except that a bad-conduct discharge, confinement for
more than six months, or forfeiture of two-thirds pay per month for more
than six months, may not be approved; or”.

                    m. R.C.M. 1104(a)(2)(A) is amended to read as
                follows:

   “(A) Authentication by the military judge. In special courts-martial in
which a bad-conduct discharge, confinement for more than six months, or
forfeiture of pay for more than six months, has been adjudged and in
general courts-martial, except as provided in subsection (a)(2)(B) of this
rule, the military judge present at the end of the proceedings shall
authenticate the record of trial, or that portion over which the military
judge presided. If more than one military judge presided over the
proceedings, each military judge shall authenticate the record of the
proceedings over which that military judge presided, except as provided in
subsection (a)(2)(B) of this rule. The record of trial of special courts-
martial in which a bad-conduct discharge, confinement for more than six
months, or forfeiture of pay for more than six months, was not adjudged
shall be authenticated in accordance with regulations of the Secretary
concerned.”

                    n. R.C.M. 1104(e) is amended to read as follows:

   “(e) Forwarding. After every court-martial, including a rehearing and
new and other trials, the authenticated record shall be forwarded to the
convening authority for initial review and action, provided that in case of
a special court-martial in which a bad-conduct discharge or confinement for
one year was adjudged or a general court-martial, the convening authority
shall refer the record to the staff judge advocate or legal officer for

recommendation under R.C.M. 1106 before the convening authority takes
action.”.

                    o. R.C.M. 1106(a) is amended to read as follows:

   “(a) In general. Before the convening authority takes action under
R.C.M. 1107 on a record of trial by general court-martial or a record of
trial by special court-martial that includes a sentence to a bad-conduct
discharge or confinement for one year, that convening authority's staff
judge advocate or legal officer shall, except as provided in subsection (c)
of this rule, forward to the convening authority a recommendation under
this rule.”.

                    p. R.C.M. 1107(d)(4) is amended to read as follows:

   “(4) Limitations on sentence based on record of trial. If the record of
trial does not meet the requirements of R.C.M. 1103(b)(2)(B) or (c)(1), the
convening authority may not approve a sentence in excess of that which may
be adjudged by a special court-martial, or one that includes a bad-conduct
discharge, confinement for more than six months, forfeiture of pay
exceeding two-thirds pay per month, or any forfeiture of pay for more than
six months.”.

                    q. R.C.M. 1107(d) is amended by adding at the end
                the following new paragraph:

   “(5) Limitations on sentence of a special court-martial where a fine
has been adjudged. A convening authority may not approve in its entirety a
sentence adjudged at a special court-martial when, if approved, the
cumulative impact of the fine and forfeitures, whether adjudged or by
operation of Article 58b, would exceed the jurisdictional maximum dollar
amount of forfeitures that may be adjudged at that court-martial.”.

                    r. R.C.M. 1109(e) and (e)(1) are amended to read as
                follows:

   “(e) Vacation of a suspended special court-martial sentence wherein a
bad-conduct discharge or confinement for one year was not adjudged.

                       “(1) In general. Before vacating the suspension
                    of a special court-martial punishment that does not
                    include a bad-conduct discharge or confinement for
                    one year, the special court-martial convening
                    authority for the command in which the probationer
                    is serving or assigned shall cause a hearing to be
                    held on the alleged violation(s) of the conditions
                    of suspension.”.

                    s. R.C.M. 1109(f) and (f)(1) are amended to read as
                follows:

   “(f) Vacation of a suspended special court-martial sentence that
includes a bad-conduct discharge or confinement for one year.

                       “(1) The procedure for the vacation of a
                    suspended approved bad-conduct discharge or of any
                    suspended portion of an approved sentence to
                    confinement for one year, shall follow that set
                    forth in subsection (d) of this rule.”.

                    t. R.C.M. 1110(a) is amended to read as follows:

   “(a) In general. After any general court-martial, except one in which
the approved sentence includes death, and after any special court-martial
in which the approved sentence includes a bad-conduct discharge or
confinement for one year, the accused may waive or withdraw appellate
review.”.

                    u. R.C.M. 1111(b) is amended to read as follows:

   “(1) Cases including an approved bad-conduct discharge or confinement
for one year. If the approved sentence of a special court-martial includes
a bad-conduct discharge or confinement for one year, the record shall be
disposed of as provided in subsection (a) of this rule.

   “(2) Other cases. The record of trial by a special court-martial in
which the approved sentence does not include a bad-conduct discharge or
confinement for one year shall be forwarded directly to a judge advocate
for review under R.C.M. 1112. Four copies of the order promulgating the
result of trial shall be forwarded with the record of trial, unless
otherwise prescribed by regulations of the Secretary concerned.”.

                    v. R.C.M. 1112(a)(2) is amended to read as follows:

   “(2) Each special court-martial in which the accused has waived or
withdrawn appellate review under R.C.M. 1110 or in which the approved
sentence does not include a bad-conduct discharge or confinement for one
year; and”.

                    w. R.C.M 1305(d)(2) is amended to read as follows:

   “(2) Forwarding to the convening authority. The original and one copy
of the record of trial shall be forwarded to the convening authority after
compliance with subsection (d)(1) of this rule.”.

                Sec. 4. Part III of the Manual for Courts-Martial,
                United States, is amended in Mil. R. Evid. 615 by
                striking the period at the end of the rule and adding
                “, or (4) a person authorized by statute to be present
                at courts-martial, or (5) any victim of an offense from
                the trial of an accused for that offense because such
                victim may testify or present any information in
                relation to the sentence or that offense during the
                presentencing proceedings.”.

                Sec. 5. Part IV of the Manual for Courts-Martial,
                United States, is amended as follows:

                    a. All “Sample specification(s)” subparagraphs in
                the Punitive Articles (Part IV, M.C.M.) are amended by
                striking “-------------- 19----” and inserting “----
                ---------- 20----.”.
                    b. Paragraph 27e(1)(a) is amended to read as
                follows:

   “(a) of a value of $500.00 or less. Bad-conduct discharge, forfeiture
of all pay and allowances, and confinement for 6 months.”.

                    c. Paragraph 27e(1)(b) is amended to read as
                follows:

   “(b) of a value of more than $500.00 or any firearm or explosive.
Dishonorable discharge, forfeiture of all pay and allowances, and
confinement for 5 years.”.

                    d. Paragraph 27f(3) is amended to read as follows:

   “(3) Dealing in captured or abandoned property. In that ----------
(personal jurisdiction data), did, (at/on board - location), 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) (--
--------------).”.

                    e. Strike paragraph 31c(6).
                    f. Paragraph 43e(1), is amended to read as follows:

   “(1) Article 118(1) or (4)--death. Mandatory minimum--imprisonment for
life with eligibility for parole.”.

                    g. Paragraph 45e(3) is amended to read as follows:

   “(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.”.

                    h. Paragraph 46c(1)(h) is amended by adding at the
                end the following new clause:

   “(vi) Credit, Debit, and Electronic Transactions. Wrongfully engaging
in a credit, debit, or electronic transaction to obtain goods or money is
an obtaining- type larceny by false pretense. Such use to obtain goods is
usually a larceny of those goods from the merchant offering them. Such use
to obtain money or a negotiable instrument (e.g., withdrawing cash from an
automated teller or a cash advance from a bank) is usually a larceny of
money from the entity presenting the money or a negotiable instrument. For
the purpose of this section, the term 'credit, debit, or electronic
transaction' includes the use of an instrument or device, whether known as
a credit card, debit card, automated teller machine (ATM) card or by any
other name, including access devices such as code, account

number, electronic serial number or personal identification number, issued
for the use in obtaining money, goods, or anything else of value.”.

                    i. Paragraph 51e(1) is amended to read as follows:

   “(1) By force and without consent. Dishonorable discharge, forfeiture
of all pay and allowances, and confinement for life without eligibility for
parole.”.

                    j. Paragraph 51e(3) is amended to read as follows:

   “(3) 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.”

                    k. Paragraph 62c is amended to read as follows:

   “c. Explanation.

   “(1) Nature of offense. Adultery is clearly unacceptable conduct, and
it reflects adversely on the service record of the military member.

   “(2) 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 adulterous conduct must either be directly prejudicial to good
order and discipline or service discrediting. Adulterous conduct that is
directly prejudicial 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. Adultery may also 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 adulterous 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 adulterous 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 adulterous acts are prejudicial to good order and
discipline or are of a nature to bring discredit upon the armed forces:

                       “(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 co-actor, or their
                    relationship to the armed forces;
                       “(d) The impact, if any, of the adulterous
                    relationship 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 adulterous act 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 or co-actor was
                    legally separated; and
                       “(i) Whether the adulterous misconduct involves
                    an ongoing or recent relationship or is remote in
                    time.

   “(3) Marriage. A marriage exists until it is dissolved in accordance
with the laws of a competent state or foreign jurisdiction.

   “(4) 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 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.”.

                    l. Paragraph 92e is amended to read as follows:

   “e. Maximum punishment. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for life without eligibility for parole.”.

                    m. Paragraphs 32e, 33e, 46c(1)(g)(iii), 46e, 49e,
                52e, 58e, 78e and 106e are amended by striking
                “$100.00” each place it appears and inserting
                “$500.00”.

                Sec. 6. These amendments shall take effect on May 15,
                2002.

                    a. The amendments made to Rules for Courts-Martial
                806(d) and 1001(b)(3)(A) shall only apply in cases in
                which arraignment has been completed on or after May
                15, 2002.
                    b. The amendments made to Rules for Courts- Martial
                1003(b)(7), 1004(e), 1006(d)(4)(B), and
                1009(e)(3)(B)(ii) shall only apply to offenses
                committed after November 18, 1997. In cases not
                involving these amendments, the maximum punishment for
                an offense committed prior to May 15, 2002, shall not
                exceed the applicable maximum in effect at the time of
                the commission of such offense. Provided further, that
                for offenses committed prior to May 15, 2002, for which
                a sentence is adjudged on or after May 15, 2002, if the
                maximum punishment authorized in this Manual is less
                than that previously authorized, the lesser maximum
                authorized punishment shall apply.
                    c. The amendment made to Military Rules of Evidence
                615 shall apply only in cases in which arraignment has
                been completed on or after May 15, 2002.
                    d. Nothing in these amendments shall be construed
                to make punishable any act done or omitted prior to May
                15, 2002, that was not punishable when done or omitted.
                    e. 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 May 15, 2002, 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.)B

                THE WHITE HOUSE,

                    April 11, 2002.