2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 1003(d)(1)
preceding the commission of any offense of which
the accused stands convicted shall authorize a dishonorable
discharge and forfeiture of all pay and
allowances and, if the confinement otherwise authorized
is less than 1 year, confinement for 1 year. In
computing the 1-year period preceding the commission
of any offense, periods of unauthorized absence
shall be excluded. For purposes of this subsection,
the court-martial convictions must be final.
(2) Two or more convictions. If an accused is
found guilty of an offense or offenses for none of
which a dishonorable or bad-conduct discharge is
otherwise authorized, proof of two or more previous
convictions adjudged by a court-martial during the 3
years next preceding the commission of any offense
of which the accused stands convicted shall authorize
a bad-conduct discharge and forfeiture of all pay
and allowances and, if the confinement otherwise
authorized is less than 3 months, confinement for 3
months. In computing the 3 year period preceding
t h e c o m m i s s i o n o f a n y o f f e n s e , p e r i o d s o f u n -
authorized absence shall be excluded. For purposes
of this subsection the court-martial convictions must
be final.
(3) Two or more offenses. If an accused is found
guilty of two or more offenses for none of which a
dishonorable or bad-conduct discharge is otherwise
authorized, the fact that the authorized confinement
for these offenses totals 6 months or more shall, in
addition, authorize a bad-conduct discharge and forfeiture
of all pay and allowances.
Discussion
All of these increased punishments are subject to all other limitations
on punishments set forth elsewhere in this rule. Convictions
by summary court-martial may not be used to increase the maximum
punishment under this rule. However they may be admitted
and considered under R.C.M. 1001.
Rule 1004. Capital cases
(a) In general. Death may be adjudged only when:
(1) Death is expressly authorized under Part IV of
this Manual for an offense of which the accused has
been found guilty or is authorized under the law of
war for an offense of which the accused has been
found guilty under the law of war; and
(2) The accused was convicted of such an offense
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by the concurrence of all the members of the courtmartial
present at the time the vote was taken; and
(3) The requirements of subsections (b) and (c) of
this rule have been met.
( b ) P r o c e d u r e . I n a d d i t i o n t o t h e p r o v i s i o n s i n
R.C.M. 1001, the following procedures shall apply
in capital cases—
(1) Notice.
(A) Referral. The convening authority shall indicate
that the case is to be tried as a capital case by
including a special instruction in the referral block
of the charge sheet. Failure to include this special
instruction at the time of the referral shall not bar
the convening authority from later adding the required
special instruction, provided:
(i) that the convening authority has otherwise
complied with the notice requirement of subsection
(B); and
(ii) that if the accused demonstrates specific
prejudice from such failure to include the special
instruction, a continuance or a recess is an adequate
remedy.
( B ) A r r a i g n m e n t . B e f o r e a r r a i g n m e n t , t r i a l
c o u n s e l s h a l l g i v e t h e d e f e n s e w r i t t e n n o t i c e o f
which aggravating factors under subsection (c) of
this rule the prosecution intends to prove. Failure to
provide timely notice under this subsection of any
aggravating factors under subsection (c) of this rule
shall not bar later notice and proof of such additional
aggravating factors unless the accused demonstrates
specific prejudice from such failure and that a
continuance or a recess is not an adequate remedy.
(2) Evidence of aggravating factors. Trial counsel
may present evidence in accordance with R.C.M.
1001(b)(4) tending to establish one or more of the
aggravating factors in subsection (c) of this rule.
Discussion
See also subsection (b)(5) of this rule.
(3) Evidence in extenuation and mitigation. The
accused shall be given broad latitude to present evidence
in extenuation and mitigation.
See R.C.M. 1001(c).
Discussion