PART 152—REVIEW OF THE MANUAL FOR COURTS-MARTIAL Authority: E.O. 12473; 10 U.S.C. 47. Source: 68 FR 36916, June 20, 2003, unless otherwise noted. § 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 1 http://www.whitehouse.gov/omb/circulars/index.html. (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 2 http://www.dtic.mil/whs/directives. (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) (a) Review the Manual for Courts-Martial. (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. (2) The Federal Register (3) When the JSC receives proposed changes to the MCM either by solicitation or Federal Register (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 3 http://www.dtic.mil/whs/directives. (c) Proposals to Amend the Uniform Code of Military Justice. (d) Public Notice and Meeting. (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 (3) The Office of General Counsel of the Department of Defense shall facilitate publishing the Federal Register (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, (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 (6) The JSC shall provide notice in the Federal Register (E) Internal Rules and Record-Keeping. (2) The JSC shall create a file system and maintain appropriate JSC records.