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.
Soon they will be the embodiment of 1984.