Recently, a new edition of the Manual for Courts Martial has been released. The new edition incorporates all the changes made by Congress to the Manual in the National Defense Authorization Act of 2009, 2010, 2011 and 2012. Many of the changes come in response to the new caselaw addressing various parts of the Manual. For example, United States v. Campbell 71 M.J. 19 (C.A.A.F. 2012) addressing multiplicity of charges; or United States v. Fosler, 70 M.J. 225 (C.A.A.F. 2011) addressing the terminal element of Article 134. While the new Manual updates Military Rules of Evidence (MRE), President Obama is yet to sign a new Executive Order making final changes to the MRE.
Here are some of the most significant changes that affect punitive articles.
Article 120 – Rape
Article 120 offenses are now divided into 3 parts – Adult offenses (120), Child Offenses (120b) and other sexual offenses (120c). Since this article has been changed over time, now there are 3 separate versions of it covering different periods of time. Appendix 27 applies to offenses committed before 1 October 2007. Appendix 28 applies to offenses committed between 1 October 2007 through 27 June 2012. Part IV of the Manual applies to the offenses committed after 27 June 2012.
Military Rule of Evidence 514
MRE 514 creates a new victim advocate – victim privilege. This will significantly affect disclosures made by victims to victim advocates and the ability of defense attorneys to obtain them.
Rule for Court Martial 1003(c)4
This rule clarifies that contractors cannot be punished by a court-martial in that they would forfeit their pay and allowances, be reduced in pay grade, sentenced to hard labor or receive a punitive separation. On its face, this prohibition does not prevent a court-martial from sentencing contractors to confinement or a fine because contractors are subject to the jurisdiction of the Manual under Article 2(a)10.
Punitive Article 90, Assaulting or willfully disobeying superior commissioned officer
This article has been amended to require immediate compliance of an order that does not explicitly or implicitly indicate that the superior commissioned officer has authorized or directed delay. Previously, each Servicemember was required to comply with a lawful order within a reasonable amount of time. The new change shifts the requirement to 'immediate compliance' unless otherwise authorized.
There are many other changes as well and the above information highlights some of the most important changes. This information does not constitute legal advice. If you would like to schedule a consultation regarding your court-martial issues, contact us at 202-862-4348.
