For those interested, here are some Army training materials on the new amendments to the Manual for Courts-Martial. This is an executive summary of the major changes to military law starting in January 2019. Over the next three months, we'll be updating our page, our book, and our blog to reflect these major changes.
The manual modernizes several criminal offenses involving computer crimes, retaliation, credit card fraud, and updates definitions. For instance, there is a lower blood alcohol level in drunk driving cases and new definitions in stalking and assault cases.
One of the most notable changes is the creation of a new special court-martial forum composed of a military judge alone and new procedures for selecting members in other special and general courts-martial. We will be updating our panel selection page soon to reflect those changes.
There are changes to plea bargaining and sentencing. The manual creates a binding pretrial agreement and a procedure for the government to appeal sentences that they consider unreasonable.
The manual broadens the powers of military judge's to issue subpoenas prior to referral of charges.
Here are some major rule changes that would be of interest to potential clients:
R.C.M. 704, Immunity was amended to permit general court-martial convening authorities to delegate the authority to grant immunity to special court-martial convening authorities and no further.
R.C.M. 1109, Vacation of Suspension of Sentence was amended to remove probable cause as the standard for vacating the suspension of a sentence.
Mil. R. Evid. 311, Evidence obtained from unlawful searches and seizures was amended to provide that evidence obtained unlawfully may still be admissible if the official seeking the evidence acted in reasonable reliance on binding precedent that was valid at the time of the search. This change incorporates the Supreme Court’s holding in Davis v. United States, 564 U.S. 229 (2011).
Pt. II, Rules for Courts-Martial was amended to establish a new form of court-martial consisting of a military judge alone with no right of the accused to elect trial by members.
R.C.M. 501, Composition and personnel of courts-martial was amended to reflect MJA 2016’s adoption of fixed panel sizes for special, non-capital general, and capital general courts-martial.
R.C.M. 705, Plea agreements were amended to reflect MJA 2016’s revision of the military justice system’s pretrial agreement process.
R.C.M. 707, Speedy trial was amended to clarify the effect of the dismissal of charges or mistrial on the 120-day deadline for bringing a case to trial and to provide that the trial or other disposition of charges against any accused held in arrest or confinement shall be given priority.
R.C.M. 810, Procedures for rehearings, new trials, other trials, and remands was amended to reflect MJA 2016’s amendments to the limitations on sentences at rehearings and to codify current practice regarding limited evidentiary hearings ordered by appellate courts.
R.C.M. 917, Motion for a finding of not guilty was amended to allow a military judge to rule on a motion for finding of not guilty after a panel returns findings, similar to existing practice in U.S. district courts, and to allow a military judge to reconsider a denial of a motion for a finding of not guilty at any time before entry of judgment.
R.C.M. 921, Deliberations and voting on findings was amended to reflect MJA 2016’s provision that findings be by a vote of at least three-fourths of the members.
Pt. IV, ¶ 19 Art. 93—Cruelty and maltreatment were amended to increase the maximum authorized confinement for maltreatment from two to three years.
Pt. IV, ¶ 20, Art. 93a—Prohibited activities with military recruit or trainee by a person in position of special trust was added to reflect the new offense of “Prohibited activities with military recruit or trainee by a person in position of special trust” and to prescribe the maximum punishment for the offense.
Pt. IV, ¶ 40, Art. 106a—wearing unauthorized insignia, decoration, badge, ribbon, device, or lapel button was amended to adjust the maximum punishment for wearing certain medals or awards without authority.
Pt. IV, ¶ 43, Art. 108—Military property of United States—Loss, damage, destruction, or wrongful disposition was amended to reflect that, for purposes of the offense of loss, damage, destruction, or wrongful disposition of military property, ammunition is included within the phrase “firearms and explosives” and to adjust the value at which the maximum authorized punishment is enhanced.
Pt. IV, ¶ 45, Art. 109—Property other than military property of United States—waste, spoilage, or destruction was amended to adjust the maximum authorized punishment and the value at which the maximum authorized punishment is enhanced.
Pt. IV, ¶ 49, Art. 112—Drunkenness and other incapacitation offenses were amended to clarify that for the offense of incapacitation for duty, the indulgence in alcohol or drugs leading to the incapacitation need not be wrongful for the offense to be established; rather, the wrongfulness is in the incapacitation.
Pt. IV, ¶ 51, Art. 113—Drunken or reckless operation of a vehicle, aircraft, or vessel was amended to reflect the statutory lowering of the blood alcohol level to .08 for purposes of drunken or reckless operation of a vehicle, aircraft, or vessel.
Pt. IV, ¶ 52, Art. 114—Endangerment offenses was amended to adjust the maximum authorized punishment for reckless endangerment and for carrying a concealed weapon.
Pt. IV, ¶ 59, Art. 119b—Child endangerment was amended to modify the explanation for the offense of child endangerment.
Pt. IV, ¶ 60, Art. 120—Rape and sexual assault generally was is amended to remove a discussion of consent as an element of an Article 120 offense; to clarify that the scope of the offense of threatening or placing another person in fear includes abuse of military rank, position, or power to engage in a sexual act or contact with the victim; and to consolidate the sample specifications.
Pt. IV, ¶ 63, Art. 120c—Other sexual misconduct was amended to increase the maximum authorized punishment for forcible pandering.
Pt. IV, ¶ 64, Art. 121—Larceny and wrongful appropriation was amended to adjust the value at which the maximum authorized punishment is enhanced.
Pt. IV, ¶ 65, Art. 121a—Fraudulent use of credit cards, debit cards, and other access devices was added to reflect the new punitive article enacted by MJA 2016 and to prescribe maximum punishments for offenses established by the new punitive article.
Pt. IV, ¶ 66, Art. 121b—False pretenses to obtain services was amended to adjust the maximum authorized punishments for offenses.
Pt. IV, ¶ 67, Art. 122—Robbery was amended to remove the element of “with the intent to deprive permanently” and to adjust the maximum authorized punishments.
Pt. IV, ¶ 68, Art. 122a—Receiving stolen property was amended to adjust the maximum authorized punishments.
Pt. IV, ¶ 69, Art. 123—Offenses concerning Government computers was added to reflect the new punitive article enacted by MJA 2016 and to prescribe maximum punishments for offenses established by the new punitive article.
Pt. IV, ¶ 70, Art. 123a—Making, drawing, or uttering check, draft, or order without sufficient funds was amended to adjust the value at which the maximum authorized punishment is enhanced.
Pt. IV, ¶ 71, Art. 124—Frauds against the United States was amended to adjust the value at which the maximum authorized punishment is enhanced.
Pt. IV, ¶ 75, Art. 126—Arson was amended to clarify that neither proof that the property belonged to a certain person nor proof that it was of a certain value is necessary for a conviction and to adjust the maximum authorized punishments.
Pt. IV, ¶ 77, Art. 126—Assault was amended to clarify the extent of bodily harm necessary to constitute certain types of assault, to clarify the definition of “dangerous weapon,” and to provide maximum punishments for two specific forms of assault.
Pt. IV, ¶ 79, Art. 129—Burglary was amended to reflect MJA 2016’s elimination of occurrence in the nighttime and entry of a dwelling house as elements of burglary.
Pt. IV, ¶ 80, Art. 130—Stalking was amended to reflect MJA 2016’s inclusion of cyberstalking and threats to intimate partners as aspects of the stalking offense.
Pt. IV, ¶ 86, Art. 131e—Prevention of authorized seizure of property was amended to adjust the maximum authorized punishment.
Pt. IV, ¶ 89, Art. 132—Retaliation was added to reflect the new punitive article enacted by MJA 2016 and to prescribe the maximum punishment for the offense.
Pt. IV, ¶ 91, Art. 134—General article was amended to reflect MJA 2016’s amendment of Article 134 to provide extraterritorial jurisdiction for noncapital federal crimes committed outside the United States which otherwise require that the offense be committed “within the special maritime and territorial jurisdiction of the United States.”
Pt. IV, ¶ 99, Art. 134—Extramarital sexual conduct was amended to redesignate the previous offense of adultery, to broaden the kinds of extramarital conduct that can constitute the offense, and to establish legal separation as an affirmative defense.
Pt. V, Nonjudicial Punishment Procedures was amended to reflect Congress’s elimination of confinement on bread and water or diminished rations as an authorized nonjudicial punishment for enlisted personnel attached to or embarked in a vessel.
Pt. V, Nonjudicial Punishment Procedures was also amended to clarify that a service member can waive the two-year statute of limitations that applies for nonjudicial punishment purposes.