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Rule

Review of the Manual for Courts-Martial

Action

Interim Rule With Request For Comments.

Summary

The Department of Defense promulgates procedures implementing Executive Order 12473, dated July 13, 1984, calling upon the Secretary of Defense to cause an annual review of the Manual for Courts-Martial (MCM) and to recommend to the President any appropriate amendments. Through the annual review process, the Secretary of Defense assists the president in fulfilling his rule-making responsibilities under Article 36 of the Uniform Code of Military Justice (UCMJ; Chapter 47 of title 10, United States Code). Under the direction of the General Counsel of the Department of Defense, a Joint-Service Committee on Military Justice (JSC) is established with responsibility to conduct the annual review and propose MCM amendments. The JSC also proposes amendments to the UCMJ, as necessary.

This rule updates part 152 to title 32, Code of Federal Regulations, “Review of the Manual for Courts-Martial,” to reflect practice and procedures for conducting annual reviews, and to change the annual review cycle from concluding with an annual report due to the General Counsel by December 31, instead on May 1. The change in the annual review cycle is due to legislative requirements on affecting JSC responsibilities. This Interim rule is provided to afford a 60-day opportunity for public comment prior to issuing a final rule. This rule is intended only to improve the internal management of the Federal Government. It is not intended to create any right or benefit, substantive or procedural, enforceable at law by any party against the United States, its agencies, its officers, or any person.

Unified Agenda

Review of the Manual for Courts-Martial (DoD Directive 5500.17)

5 actions from May 3rd, 2003 to January 2005

  • May 3rd, 2003
  • June 20th, 2003
  • August 19th, 2003
  • November 2004
    • Final Action
  • January 2005
    • Final Action Effective
 

Table of Contents Back to Top

DATES: Back to Top

Effective May 3, 2003. Comments on this rule must be postmarked no later than August 19, 2003.

ADDRESSES: Back to Top

Comments on this rule should be sent to Mr. Robert E. Reed, Associate Deputy General Counsel (Military Justice and Personnel Policy), ODGC(PHP), 1600 Defense Pentagon, Room 3E999, Washington, DC 20302-1600.

FOR FURTHER INFORMATION CONTACT: Back to Top

Robert E. Reed, (703) 695-1055.

SUPPLEMENTARY INFORMATION: Back to Top

On November 18, 2002, the Department of Defense published a Notice of Availability (67 FR 69512) inviting public comments on DoD Directive 5500.17, “Role and Responsibilities of the Joint Service Committee (JSC) on Military Justice.”

Executive Order 12866, “Regulatory Planning and Review” Back to Top

It has been determined that 32 CFR part 152 is not a significant regulatory action. This rule does not: (1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs, the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligation or recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

96, “Regulatory Flexibility Act” (5 U.S.C. 601 et seq.) Back to Top

It has been determined that this part is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This part presents no economic impact and solely involves the rules and procedures governing the internal Department of Defense annual review of the Manual for Courts-Martial and the procedures affecting military justice actions.

96, “Paperwork Reduction Act of 1995” (44 U.S.C. 3501 et seq.) Back to Top

It has been determined that this part does not impose any reporting or recordkeeping requirements under the Paperwork Reduction act of 1995.

Section 202, Public Law 104-4, “Unfunded Mandates Reform Act” Back to Top

It has been determined that this part does not involve a Federal Mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that this part does not have federalism implications. This part does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 152 Back to Top

Accordingly, 32 CFR part 152 is revised to read as follows:

begin regulatory text

PART 152—REVIEW OF THE MANUAL FOR COURTS-MARTIAL Back to Top

Authority:

E.O. 12473; 10 U.S.C. 47.

§ 152.1 Purpose.

This part:

(a) Implements the requirement established by the President in Executive Order 12473 that the Manual for Courts-Martial (MCM), United States, 1984, and subsequent editions, be reviewed annually.

(b) Formalizes the Joint Service Committee (JSC) and defines the roles, responsibilities, and procedures of the JSC in reviewing and proposing changes to the MCM and proposing legislation to amend the Uniform Code of Military Justice (UCMJ) (10 U.S.C., Chapter 47).

(c) Provides for the designation of a Secretary of a Military Department to serve as the Executive Agent for the JSC.

§ 152.2 Applicability.

This part applies to the Office of the Secretary of Defense, the Military Departments (including the Coast Guard by agreement with the Department of Homeland Security when it is not operating as a Service of the Department of the Navy), the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities in the Department of Defense (hereafter collectively referred to as “the DoD Components”).

§ 152.3. Policy.

To assist the President in fulfilling his responsibilities under the UCMJ, and to satisfy the requirements of Executive Order 12473, the Department of Defense shall review the Manual for Courts-Martial annually, and, as appropriate, propose legislation amending the UCMJ to ensure that the MCM and the UCMJ fulfill their fundamental purpose as a comprehensive body of military criminal law and procedure. The role of the JSC furthers these responsibilities. Under the direction of the General Counsel of the Department of Defense, the JSC is responsible for reviewing the MCM and proposing amendments to it and, as necessary, to the UCMJ.

§ 152.4. Responsibilities.

(a) The General Counsel to the Department of Defense shall:

(1) Administer this part, to include coordination on and approval of legislative proposals to amend the UCMJ, approval of the annual review of the MEM, and coordination of any proposed changes to the MCM under OMB Circular A-19. [1]

(2) Designate the Secretary of a Military Department to serve as the joint Service provider for the JSC. The joint Service provider shall act on behalf of the JSC for maintaining the JSC's files and historical records, and for publication of the updated editions of the MCM to be distributed throughout the Department of Defense, as appropriate.

(3) Invite the Secretary of Homeland Security to appoint representatives to the JSC.

(4) Invite the Chief Judge of the United States Court of Appeals for the Armed Forces to provide a staff member to serve as an advisor to the JSC.

(5) Invite the Chairman of the Joint Chiefs of Staff to provide a staff member from the Chairman's Office of Legal Counsel to serve as an advisor to the JSC.

(6) Ensure that the Associate Deputy General Counsel (Military Justice and Personnel Policy), Office of the General Counsel, Department of Defense, shall serve as the General Counsel's representative to the JSC in a non-voting capacity. In addition, the United States Court of Appeals for the Armed Forces (USCAAF) and the Legal Counsel to the Chairman of the Joint Chiefs of Staff shall be invited to provide a staff member to serve as an advisor to the JSC in a non-voting capacity.

(b) The Secretaries of the Military Departments shall ensure that the Judge Advocates General of the Military Departments and the Staff Judge Advocate to the Commandant of the Marine Corps appoint representatives to the JSC.

(c) The JSC shall further the DoD policy established in section 3 of this part and perform additional studies or other duties related to the administration of military justice, as the General Counsel of the Department of Defense may direct. (See DoD Directive 5105.18, “DoD Committee Management Program”. [2] ) The membership of the JSC shall consist of one representative of each of the following, who shall comprise the JSC Voting Group:

(1) The Judge Advocate General of the Army.

(2) The Judge Advocate General of the Navy.

(3) The Judge Advocate General of the Air Force.

(4) The Staff Judge Advocate to the Commandant of the Marine Corps; and

(5) By agreement with the Department of Homeland Security, the Chief Counsel, United States Coast Guard.

(d) The JSC Working Group (WG) shall assist the JSC Voting Group in fulfilling its responsibilities under this part. The WG consists of non-voting representatives from each of the Services and may include the representatives from the USCAAF, and the Office of the Legal Counsel to the Chairman of the Joint Chiefs of Staff.

(e) The JSC chairmanship rotates biennially among the Services in the following order: The Army, the Air Force, the Marine Corps, the Navy, and the Coast Guard. Due to its size and manning constraints, a Coast Guard's request not to be considered for JSC chairmanship shall be honored. The Military Service of the JSC Chairman shall provide an Executive Secretary for the JSC.

§ 152.5. Implementation.

The foregoing policies and procedures providing guidelines for implementation of this part, as well as those contained in the appendix, are intended exclusively for the guidance of military personnel and civilian employees of the Department of Defense, and the United States Coast Guard by agreement of the Department of Homeland Security. These guidelines are intended to improve the internal management of the Federal Government and are not intended to create any right, privilege, or benefit, substantive of procedural, to any person or enforceable at law by any party against the United States, its agencies, its officers, or any person.

Appendix A to Part 152—Guidance to the Joint Service Committee (JSCA) Back to Top

(a) Review the Manual for Courts-Martial. (1) The Joint Service Committee (JSC) shall conduct an annual review of the Manual for Courts-Martial (MCM), in light of judicial and legislative developments in military and civilian practice, to ensure:

(i) The MCM implements the Uniform Code of Military Justice (UCMJ) and reflects current military practice and judicial precedent.

(ii) The rules and procedures of the MCM are uniform insofar as practicable.

(iii) The MCM applies, to the extent practicable, the principles of law and the rules of evidence generally recognized in the trial of criminal cases in United States district courts, but which are not contrary to or inconsistent with the UCMJ.

(iv) The MCM is workable throughout the worldwide jurisdiction of the UCMJ; and,

(v) The MCM is workable across the spectrum of circumstances in which courts-martial are conducted, including combat conditions.

(2) During this review, any JSC voting member may propose for the Voting Group's consideration an amendment to the MCM. Proposed amendments to the MCM shall ordinarily be referred to the JSC Working Group (WG) for study. The WG assists the JSC in staffing various proposals, conducting studies of proposals and other military justice related topics at the JSC's direction, and making reports to the JSC. Any proposed amendment to the MCM, if approved by a majority of the JSC voting members, becomes a part of the annual review.

(3) The JSC shall prepare a draft of the annual review of the MCM and forward it to the General Counsel of the Department of Defense, on or about December 31st. The General Counsel of the Department of Defense may submit the draft of the annual review to the Code Committee established by Article 146 of the UCMJ, with an invitation to submit comments.

(4) The draft of the annual review shall set forth any specific recommendations for changes to the MCM, including, if not adequately addressed in the accompanying discussion or analysis, a concise statement of the basis and purpose of any proposed change. If no changes are recommended, the draft review shall so state. If the JSC recommends changes to the MCM, the draft review shall so state. If the JSC recommends changes to the MCM, the public notice procedures of paragraph (d)(3) of this appendix are applicable.

(b) Changes to the Manual for Courts-Martial. (1) By January 1st of each year, the JSC voting members shall ensure that a solicitation for proposed changes to the MCM is sent to appropriate agencies within their respective Services that includes, but is not limited to, the judiciary, the trial counsel and defense counsel organizations, and the judge advocate general schools.

(2) The Federal Register announcement of each year's annual review of proposed changes to the MCM shall also invite members of the public to submit any new proposals for JSC consideration during subsequent JSC annual reviews.

(3) When the JSC receives proposed changes to the MCM either by solicitation or Federal Register notice, the JSC shall determine whether the proposal should be considered under paragraph (a)(2) of this appendix by determining if one or more of the JSC voting member(s) intends to sponsor the proposed change. The JSC shall determine when such sponsored proposals should be considered under the annual review process, taking into account any other proposals under consideration and any other reviews or studies directed by the General Counsel of the Department of Defense.

(4) Changes to the MCM shall be proposed as part of the annual review conducted under paragraph (a) of this appendix. When earlier implementation is required, the JSC may send proposed changes to the General Counsel of the Department of Defense, for coordination under DoD Directive 5500.1. [3]

(c) Proposals to Amend the Uniform Code of Military Justice. The JSC may determine that the efficient administration of military justice within the Armed Services requires amendments to the UCMJ, or that a desired amendment to the MCM makes necessary an amendment to the UCMJ. In such cases, the JSC shall forward to the General Counsel of the Department of Defense, a legislative proposal to change the UCMJ. The General Counsel of the Department of Defense may direct that the JSC forward any such legislative proposal to the Code Committee for its consideration under Article 146, UCMJ.

(d) Public Notice and Meeting. (1) Proposals to amend the UCMJ are not governed by the procedures set out in this paragraph. (See DoD Directive 5105. 18. This paragraph applies only to the JSC recommendations to amend the MCM.)

(2) It is DoD policy to encourage public participation in the JSC's review of the MCM. Notice that the Department of Defense, through the JSC, intends to propose changes to the MCM normally shall be published in the Federal Register before submission of such changes to the President. This notice is not required when the Secretary of Defense in his sole and unreviewable discretion proposes that the President issue the change without such notice on the basis that public notice procedures, as set forth in this part, are unnecessary or contrary to the sound administration of military justice, or a MCM change corresponding to legislation is expeditiously required to keep the MCM current and consistent with changes in applicable law.

(3) The Office of General Counsel of the Department of Defense shall facilitate publishing the Federal Register notice required under this paragraph.

(4) The notice under this paragraph shall consist of the publication of the full text of the proposed changes, including discussion and analysis, unless the General Counsel of the Department of Defense determines that such publication in full would unduly burden the Federal Register, the time and place where a copy of the proposed change may be examined, and the procedure for obtaining access to or a copy of the proposed change.

(5) A period of not fewer than 60 days after publication of notice normally shall be allowed for public comment, but a shorter period may be authorized when the General Counsel of the Department of Defense determines that a 60-day period is unnecessary or is contrary to the sound administration of military justice. The Federal Register notice shall normally indicate that public comments shall be submitted to the Executive Secretary of the JSC.

(6) The JSC shall provide notice in the Federal Register and hold a public meeting during the public comments period, where interested persons shall be given a reasonable opportunity to submit views on any of the proposed changes contained in the annual review. Public proposals and comments to the JSC should include a reference to the specific provision to be changed, a rational for the proposed change, and specific and detailed proposed language to replace the current language. Incomplete submissions might be insufficient to receive the consideration desired. The JSC shall seek to consider all views presented at the public meeting as well as any written comments submitted during the 60-day period when determining the final form of any proposed amendments to the MCM.

(E) Internal Rules and Record-Keeping. (1) In furthering DoD policy, studying issues, or performing other duties relating to the administration of military justice, the JSC may establish internal rules governing its operation.

(2) The JSC shall create a file system and maintain appropriate JSC records.

end regulatory text

Dated: June 6, 2003.

Patricia L. Toppings,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

[FR Doc. 03-15574 Filed 6-19-03; 8:45 am]

BILLING CODE 5001-08-M

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