EXECUTIVE
ORDER
EO 13262
Effective Date: April 11, 2002

Responsible Office: Office of Policy Coordination and International Relations
Subject: 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

[[Page 18775]]

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.

               
                CHANGES TO THE DISCUSSION ACCOMPANYING THE MANUAL FOR 
                COURTS-MARTIAL, UNITED STATES

                a. The Discussion following the Preamble is amended by 
                adding the following at the end of the Discussion:

                    ``The amendment to paragraph 4 of the Preamble is 
                intended to address the possibility of more frequent 
                amendments to the Manual and the arrival of the 21




	
		

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