CAAFlog » MCM » Kennebeck Guest Posts

In the final portion of my three-part series, I will address the JSC role in amending the UCMJ, or other relevant statutes.  The process is similar to preparing an Executive Order (EO) except that there is no public notice requirement.  I presume this is because the JSC product is merely a proposal, vetted by the Services and DoD, and forwarded to the House and Senate Armed Services Committees (HASC and SASC), where the proposal will receive its full public notice.  I will talk about the UCMJ process, and at the end about the new 2012 MCM that will be shipped TOMORROW to most locations.

In January each year, the JSC solicits proposals to update the MCM, as discussed above.  Some of those proposals require amendment of the UCMJ.  It is safe to say that proposals to amend the UCMJ are submitted by various people throughout any given year, and each proposal is vetted by the JSC, as explained in part two of this article.  Once the JSC has researched and voted to approve a statutory amendment, the JSC provides the proposal to DoD General Counsel.

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For the second portion of my article about the JSC, I will address the role of the Executive Order in updating the Preamble, the Rules for Courts-Martial (RCM), the Military Rules of Evidence (MRE), the Punitive Articles, and Nonjudicial Punishment (NJP) Procedure – Parts I through V of the MCM, respectively. As I mentioned last week, Congress gave the President authority to make pre- and post-trial rules, including modes of proof (Article 36), and to establish maximum punishments (Article 56). The President exercises this power by issuing an Executive Order (EO).

Rule, EO, MCM… what has authority vs. what is guidance – it is confusing. Conversationally, and simplistically, I would say that the MCM has three levels of authority: (1) the law trumps all [the Constitution and the UCMJ]; (2) Parts I-V of the MCM have Presidential rule-making authority [not including Discussion paragraphs]; and (3) the rest is merely guidance, policy, and reference material. To amend Parts I-V of the MCM requires an EO, and this is why there are no elements, maximum punishments, or sample specifications in Part IV of the MCM for the 2012 version of Article 120.

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In the first of a three-part series, I will write about the composition, role and function of the JSC in amending the MCM and proposing legislation.  I am the Executive Secretary of the JSC, but I am writing in my personal capacity in an effort to shed some light on the JSC process.  Although the JSC members and its meetings are in no way secretive or solitary, few of us are familiar with the mission and day-to-day activities of the JSC.

If you are wondering whether this blog is worth the read, let me ask you:  (1) How is the MCM amended?  (2) Which parts of the MCM can be attributed with the President’s rule-making authority under Article 36, UCMJ?  (3) Who drafts and edits the Analysis in appendices 21-23 of the MCM?  (4) Is the MCM, by itself, binding authority that can be cited in court or an appellate brief?

MY ANSWERS:  (1) by you, the JSC, the President, and Congress; (2) Parts I, II, III, IV, and V; (3) the JSC of course; and (4) no.   If none of that surprises you or makes you want to know more, then I would say this blog is not worth the read.  It is rather like the quote above, which I love and is on point…

“MJ blogs are to blogs as military music is to music.”

If I could “Sweet Home Alabama” this topic, I would.

The JSC was first created in 1972 by the TJAGs and the DoT General Counsel (Coast Guard) and was chartered to propose and evaluate amendments to the UCMJ and the MCM.  When the MCM was reorganized in 1984 by Executive Order (EO) 12473 and 12484, the President thereafter required the Secretary of Defense to review the MCM annually and provide recommendations.  DoD Directive 5500.17, Role and Responsibilities of the JSC, captures this requirement and fleshes out its purpose.  The JSC is composed of a voting member and a working group member from each Service (5 + 5).  There are three non-voting advisors:  one from CAAF (usually a staff attorney); one from the DoD Office of the General Counsel; and one from the Chairman’s Office of Legal Counsel.

In a nutshell, the JSC collects (from the field and from its own research) proposals to amend the MCM, and if approved by a majority of the voting group, proposals are added to the JSC’s “Annual Review.”  This annual review will eventually (sometimes months later) become an EO.  Proposals to amend the UCMJ are handled in much the same way; however, it really does “take an act of Congress” to make the changes.  UCMJ proposals are sent to through DoD OGC to the House and Senate Armed Services Committee, and are sometimes vetted through the Code Committee [which is not the JSC] under Article 146, UCMJ.

I will talk more about the MCM next week, in relation to EOs, but the MCM contains rules, statutes, and reference material.  Parts I through V of the MCM are rules prescribed by the President pursuant to his Article 36 rule-making authority.  The actual rules are contained in EOs and are amended by subsequent EOs; therefore, I would argue that the true citation to the rule itself should reference the controlling EO – not the MCM.  We all cite to the MCM regularly, but a typo or misprint in the MCM does not affect the actual rule as contained in the relevant EO.  The Discussion, analysis, and most of the appendices are non-binding, treatise-like guidance from the JSC.  Read the introduction to Appendix 21 for more detail.  The MCM is intended to be an all-in-one reference for the deployed attorney far from civilization, and its design is reflective of that goal.  In the digital age; however, the usefulness of its references may be waning.

The MCM should be viewed as a snapshot in time – hopefully accurate for more than a minute or two, but almost certainly out of date within a year of its publication.  Prior to the 1994 edition of the MCM, annual updates were printed and to be inserted by the user into the 1984 edition of the MCM (3-ring binder).  After 1994, the MCM was to be published annually – an unattainable goal.  In practice it was published every 2-4 years; however, the longer the time between publications, the more outdated the MCM will become.  The 2008 MCM had become so outdated that the JSC decided not to wait until the next EO was signed by POTUS; that is why the new-new Article 120 does not yet have any elements (or other POTUS-approved discussion) in Part IV of the 2012 MCM.  See page IV-70, MCM (2012 Edition).

Final MCM comments:  it has heavier paper (60lb versus 50lb); it has almost 100 fewer pages, but it is just as thick; most copies will be spiral bound; check out the Jones-, Fosler-, and Campbell-related Discussion paragraphs added throughout the MCM [start with RCM 307 on page II-28 – look for bracketed NOTES].  I will talk more about the interplay between updating the MCM and EOs next week, to include how EOs are drafted, staffed, published and approved by POTUS.  The week after that, I will talk about UCMJ amendments.  I hope you enjoyed today’s JSC blog, and I look forward to answering your questions.  CK