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

Pun. Art. 122 APPENDIX 23
d. Lesser included offenses. See United States v. Calhoun, 5
U.S.C.M.A. 428, 18 C.M.R. 52 (1955).
e. Maximum punishment. The aggravating factor of use of a firearm
in the commission of a robbery, and a higher maximum
punishment in such cases, have been added because of the inc
r e a s e d d a n g e r w h e n r o b b e r y i s c o m m i t t e d w i t h a f i r e a r m
whether or not loaded or operable. Cf. 18 U.S.C. §§ 2113 and
2114; United States v. Shelton, 465 F.2d 361 (4th Cir. 1972);
United States v. Thomas, 455 F.2d 320 (6th Cir. 1972); Baker v.
United States, 412 F.2d 1069 (5th Cir. 1969). See also U.S. Dep’t
of Justice, Attorney General’s Task Force on Violent Crime,
Final Report 29–33 (Aug. 17, 1981). The 15-year maximum is
the same as that for robbery under 18 U.S.C. § 2111.
48. Article 123— Forgery
c. Explanation. This paragraph is based on paragraph 202 of
MCM, 1969 (Rev.).
49. Article 123a— Making, drawing, or uttering
check, draft, or order without sufficient funds
c. Explanation. This paragraph is based on paragraph 202A of
MCM, 1969 (Rev.). The language in paragraph 202A using an
illegal transaction such as an illegal gambling game as an example
of “for any other purpose” was eliminated in subparagraph
(7), based on United States v. Wallace, 15 U.S.C.M.A. 650, 36
C.M.R. 148 (1966). The statutory inference found in Article 123a
and explained in subparagraph (17) was not meant to preempt the
usual methods of proof of knowledge and intent. See S.Rep. No.
659, 87th Cong. 1st Sess. 2 (1961). Subparagraph (18) is based
on United States v. Callaghan, 14 U.S.C.M.A. 231, 34 C.M.R. 11
( 1 9 6 3 ) . S e e a l s o U n i t e d S t a t e s v . W e b b , 4 6 C . M . R . 1 0 8 3
(A.C.M.R. 1972). As to share drafts see also United States v.
Palmer, 14 M.J. 731 (A.F.C.M.R. 1982); United States v. Grubbs,
13 M.J. 594 (A.F.C.M.R. 1982).
e. Maximum punishment. The maximum punishment for subsection
(1) has been revised. Instead of three levels ($50 or less, $50
to $100, and over $100) only two are used. This is simpler and
conforms more closely to the division between felony and misdemeanor
penalties contingent on value in property offenses in
civilian jurisdiction.
2002 Amendment: The monetary amount affecting the maximum
punishments has been revised from $100 to $500 to account
for inflation. The last change was in 1969 raising the amount to
$100. The value has also been readjusted to realign it more
closely with the division between felony and misdemeanor penalties
in civilian jurisdictions. See generally American Law Institute,
Model Penal Code and Commentaries Sec. 223.1 (1980)
(suggesting $500 as the value).
f. Sample specification. See also United States v. Palmer and
United States v. Grubbs, both supra (pleading share drafts; pleading
more than one check or draft).
50. Article 124— Maiming
c. Explanation. This paragraph is based on paragraph 203 of
MCM, 1969 (Rev.). Subparagraph c(3) is based on United States
v. Hicks, 6 U.S.C.M.A. 621, 20 C.M.R. 337 (1956). The discussion
of intent has been modified to reflect that some specific
intent to injure is necessary. United States v. Hicks, supra. The
A23-16
third sentence of the third paragraph of paragraph 203 of MCM,
1969 (Rev.), which was based on Hicks (see Analysis of Contents,
Manual for Courts-martial, United States, 1969 (Revised edition),
DA PAM 27–2 at 28–15), was misleading in this regard. Contra
United States v. Tua, 4 M.J. 761 (A.C.M.R. 1977), pet. denied, 5
M.J. 91 (1978).
e. Maximum punishment. 2007 Amendment: The maximum punishment
for the offense of maiming was increased from 7 years
confinement to 20 years confinement, consistent with the federal
offense of maiming. 18 U.S.C. § 114.
51. Article 125— Sodomy
b. Elements. 2004 Amendment: Paragraph 51(b) was amended by
adding two factors pertaining to age based upon the 1994 amendment
to paragraph 51(e) that created two distinct categories of
sodomy involving a child. See also concurrent change to R.C.M.
307(c)(3) and accompanying analysis.
c. Explanation. This paragraph is based on paragraph 204 of
MCM, 1969 (Rev.). Fellatio and cunnilingus are within the scope
of Article 125. See United States v. Harris, 8 M.J. 52 (C.M.A.
1979); United States v. Scoby, 5 M.J. 160 (C.M.A. 1978). For a
discussion of the possible constitutional limitations on the application
of Article 125 (for example, the sexual activity of a married
couple), see United States v. Scoby, supra.
d. Paragraph 51e. The Analysis accompanying subparagraph 51e
is amended by inserting the following at the end thereof:
1994 Amendment. One of the objectives of the Sexual Abuse
Act of 1986, 18 U.S.C. §§ 2241–2245 was to define sexual abuse
in gender-neutral terms. Since the scope of Article 125, U.C.M.J.,
accommodates those forms of sexual abuse other than the rape
provided for in Article 120, U.C.M.J., the maximum punishments
permitted under Article 125 were amended to bring them more in
line with Article 120 and the Act, thus providing sanctions that
are generally equivalent regardless of the victim’s gender. Subparagraph
e(1) was amended by increasing the maximum period
of confinement from 20 years to life. Subparagraph e(2) was
amended by creating two distinct categories of sodomy involving
a child, one involving children who have attained the age of 12
but are not yet 16, and the other involving children under the age
of 12. The latter is now designated as subparagraph e(3). The
punishment for the former category remains the same as it was
for the original category of children under the age of 16. This
amendment, however, increases the maximum punishment to life
when the victim is under the age of 12 years.
Lesser included offenses.
2007 Amendment. The former Paragraph 87 (1) (b), Article 134
Indecent Acts or Liberties with a Child, has been replaced in its
entirety by paragraph 45. The former Paragraph 63 (2) (c), Article
134 Assault - Indecent, has been replaced in its entirety by paragraph
45. The former Paragraph 90 (3) (a), Article 134 Indecent
Acts with Another, has been replaced in its entirety by paragraph
45. Lesser included offenses under Article 120 should be considered
depending on the factual circumstances in each case.
e. Maximum punishment. The maximum punishment for forcible
sodomy was raised in recognition of the severity of the offense
which is similar to rape in its violation of personal privacy and
dignity.
f. Sample specifications. 2004 Amendment: Paragraph 51(f) was
amended to aid practitioners in charging the two distinct catego-