2018 Amendments to the...
2018 Amendments to the Manual for Courts-Martial,
United States
Issued on: March 1,
2018
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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 (UCMJ), 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 of April 13, 1984, as amended, it is hereby ordered as follows:
Section 1.
Part II, Part III, and Part IV of the Manual for Courts-Martial, United States,
are amended as described in Annex 1, which is attached to and made a part of
this order.
Sec. 2. The
amendments in Annex 1 shall take effect on the date of this order, subject to
the following:
(a) Nothing in
Annex 1 shall be construed to make punishable any act done or omitted prior to
the date of this order that was not punishable when done or omitted.
(b) Nothing in
Annex 1 shall be construed to invalidate the prosecution of any offense
committed before the date of this order. The maximum punishment for an
offense committed before the date of this order shall not exceed the maximum
punishment in effect at the time of the commission of such offense.
(c) Nothing in
Annex 1 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 the date of this order, and any such nonjudicial
punishment proceeding, restraint, investigation, referral of charges, trial in
which arraignment occurred, or other action shall proceed in the same manner
and with the same effect as if the amendments in Annex 1 had not been
prescribed.
Sec. 3.
(a) Pursuant to section 5542 of the Military
Justice Act of 2016
(MJA), division E of the National Defense Authorization Act for Fiscal Year
2017, Public Law 114-328, 130 Stat. 2000, 2967 (2016), except as otherwise
provided by the MJA or this order, the MJA shall take effect on January 1, 2019.
(b) Nothing in
the MJA shall be construed to make punishable any act done or omitted prior to
January 1, 2019, that was not punishable when done or omitted.
(c) Nothing in
title LX of the MJA shall be construed to invalidate the prosecution of any
offense committed before January 1, 2019. The maximum punishment for an
offense committed before January 1, 2019, shall not exceed the maximum punishment
in effect at the time of the commission of such offense.
(d) Nothing in
the MJA 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 January 1, 2019. Except as otherwise
provided in this order, the MJA shall not apply in any case in which charges
are referred to trial by court-martial before January 1, 2019. Except as
otherwise provided in this order, proceedings in any such case shall be held in
the same manner and with the same effect as if the MJA had not been enacted.
Sec. 4. The
Manual for Courts-Martial, United States, as amended by section 1 of this
order, is amended as described in Annex 2, which is attached to and made a part
of this order.
Sec. 5. The
amendments in Annex 2, including Appendix 12A, shall take effect on January 1,
2019, subject to the following:
(a) Nothing in
Annex 2 shall be construed to make punishable any act done or omitted prior to
January 1, 2019, that was not punishable when done or omitted.
(b) Nothing in
section 4 of Annex 2 shall be construed to invalidate the prosecution of any
offense committed before January 1, 2019. The maximum punishment for an
offense committed before January 1, 2019, shall not exceed the maximum punishment
in effect at the time of the commission of such offense.
(c) Nothing in
Annex 2 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 January 1, 2019. Except as otherwise
provided in this order, the amendments in Annex 2 shall not apply in any case
in which charges are referred to trial by court-martial before January 1,
2019. Except as otherwise provided in this order, proceedings in any such
case shall be held in the same manner and with the same effect as if such
amendments had not been prescribed.
Sec. 6.
(a) The amendments to Articles 2, 56(d), 58a, and 63 of the UCMJ enacted
by sections 5102, 5301, 5303, and 5327 of the MJA apply only to cases in which
all specifications allege offenses committed on or after January 1, 2019.
(b) If the
accused is found guilty of a specification alleging the commission of one or
more offenses before January 1, 2019, Article 60 of the UCMJ, as in effect
on the date of the earliest offense of which the accused was found guilty,
shall apply to the convening authority, in addition to the suspending authority
in Article 60a(c) as enacted by the MJA, to the extent that Article 60:
(1) requires
action by the convening authority on the sentence;
(2) permits
action by the convening authority on findings;
(3) authorizes
the convening authority to modify the findings and sentence of a court-martial,
dismiss any charge or specification by setting aside a finding of guilty
thereto, or change a finding of guilty to a charge or specification to a
finding of guilty to an offense that is a lesser included offense of the
offense stated in the charge or specification;
(4) authorizes
the convening authority to order a proceeding in revision or a rehearing; or
(5) authorizes
the convening authority to approve, disapprove, commute, or suspend a sentence
in whole or in part.
Sec. 7. The
amendment to Article 15 of the UCMJ enacted by section 5141 of the MJA shall
apply to any nonjudicial punishment imposed on or after January 1, 2019.
Sec. 8. The
amendments to Articles 32 and 34 of the UCM enacted by sections 5203 and 5205
of the MJA apply with respect to preliminary hearings conducted and advice
given on or after January 1, 2019.
Sec. 9. The
amendments to Article 79 of the UCMJ enacted by section 5402 of the MJA and the
amendments to Appendix 12A to the Manual for Courts-Martial, United States,
made by this order apply only to offenses committed on or after January 1,
2019.
Sec. 10.
Except as provided by Rule for Courts-Martial 902A, as promulgated by Annex 2,
any change to sentencing procedures:
(a) made by
Articles 16(c)(2), 19(b), 25(d)(2) and (3), 39(a)(4), 53, 53a, or 56(c) of the
UCMJ, as enacted by sections 5161, 5163, 5182, 5222, 5236, 5237, and 5301 of
the MJA; or
(b) included
in Annex 2 in rules implementing those articles, applies only to cases in which
all specifications allege offenses committed on or after January 1, 2019.
Sec. 11. The
amendments to Article 146 of the UCMJ enacted by section 5521 of the MJA and
the new Article 146a enacted by section 5522 of the MJA shall take effect on
the day after the report for fiscal year 2017 required by Article 146(c) of the
UCMJ (as in effect before the MJA’s amendments) is submitted in accordance with
Article 146(c)(1), but in no event later than December 1, 2018.
Sec. 12. In
accordance with Article 33 of the UCMJ, as amended by section 5204 of the MJA,
the Secretary of Defense, in consultation with the Secretary of Homeland
Security, will issue nonbinding guidance regarding factors that commanders,
convening authorities, staff judge advocates, and judge advocates should take
into account when exercising their duties with respect to the disposition of
charges and specifications in the interest of justice and discipline under
Articles 30 and 34 of the UCMJ. That guidance will take into account, with
appropriate consideration of military requirements, the principles contained in
official guidance of the Attorney General to attorneys for the Federal
Government with respect to the disposition of Federal criminal cases in
accordance with the principle of fair and evenhanded administration of Federal
criminal law.
DONALD J. TRUMP
THE WHITE HOUSE,
March 1, 2018.