The DoD has formally published the proposed changes to the MCM necessary to implement the Military Justice Act of 2016 (previously discussed here).

The Federal Register notice is available here.

The Regulations.gov folder is available here.

The Regulations.gov folder includes a single, 636-page PDF titled Annex 1 & 2. Annex 1 is proposed revisions to the current MCM to take effect immediately upon promulgation by the President. Annex 2 is proposed revisions to take effect with the changes made my the MJA (anticipated to occur on January 1, 2019).

The Joint Service Committee is accepting public comments (including electronically at the Regulations.gov link above) and will hold a public meeting in August:

Comments on the proposed changes must be received no later than September 11, 2017. A public meeting for comments will be held on August 3, 2017, from 10 a.m. until noon, in the United States Court of Appeals for the Armed Forces building, 450 E Street, NW., Washington, DC 20442-0001. Commentators will be heard in order of arrival and check-in, and will be limited to five minutes.

I plan to both comment and attend the public meeting.

The Federal Register notice includes a request for comment on a specific proposed change to R.C.M. 1103A:

The Department of Defense also requests comments on a proposal by a Federal Advisory Committee, the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel (JPP). The JPP’s June 2017 report suggested that Rule for Courts-Martial 1103A as proposed by Annex 1 and Rule for Courts-Martial 1113 as proposed by Annex 2 be further revised to include the following: “Prior to a decision to permit examination of material described in this subparagraph, notice and an opportunity to be heard shall be given to any person whose records are about to be examined and to appellate counsel.” The report making that recommendation is available at http://jpp.whs.mil/​Public/​docs/​08-Panel_​Reports/​07_​JPP_​VictimsAppRights_​Report_​Final_​20170602.pdf. The Department invites public comment on the JPP’s proposal.

R.C.M. 1103A allows appellate authorities – including counsel for the Government divisions and the appellant – to examine sealed matters attached to a record of trial. These sealed matters could – under increasingly rare circumstances – include private information pertaining to an alleged victim (such as mental health records) that were reviewed in camera but not otherwise disclosed at trial.

Last year the Air Force Appellate Government Division asked CAAF to prevent appellate defense counsel from reviewing such material, but CAAF rebuffed the request (discussed here and here). The JSC then proposed changing the R.C.M. to prevent such review (noted here). I submitted a public comment (discussed here) opposing the change. The change persists in this new round of proposals, and the JSC does not offer any rationale for it.

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