2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
gerous to another and evinces a wanton disregard of human life; or”; f. Paragraph 43.b.(3)(c) is amended to read as follows: “(c) That this act was inherently dangerous to another and showed a wanton disregard for human life”; g. Paragraph 43.c.(4)(a) is amended to read as follows: “(a) Wanton disregard for human life. Intentiona l l y e n g a g i n g i n a n a c t i n h e r e n t l y d a n g e r o u s t o another -- although without an intent to cause the death of or great bodily harm to any particular person, or even with a wish that death will not be c a u s e d - - m a y a l s o c o n s t i t u t e m u r d e r i f t h e a c t shows wanton disregard of human life. Such disregard is characterized by heedlessness of the probable consequences of the act or omission, or indifference to the likelihood of death or great bodily harm. Examples include throwing a live grenade toward another or others in jest or flying an aircraft very low over one or more persons to cause alarm”. h. Paragraph 45.a.(a) is amended to read as follows: “(a) Any person subject to this chapter who commits an act of sexual intercourse by force and without consent, is guilty of rape and shall be punished by death or such other punishment as a court-martial may direct”. i. Paragraph 45.b.(1) is amended to read as follows: “(a) That the accused committed an act of sexual intercourse; and (b) That the act of sexual intercourse was done by force and without consent”. j. Paragraph 45.c.(1)(a) and (b) are amended as follows: “(a) Nature of offense. Rape is sexual intercourse by a person, executed by force and without consent of the victim. It may be committed on a victim of any age. Any penetration, however slight, is sufficient to complete the offense.” “(b) Force and lack of consent. Force and lack of consent are necessary to the offense. Thus, if the victim consents to the act, it is not rape. The lack of consent required, however, is more than mere lack of acquiescence. If a victim in possession of his or her mental faculties fails to make lack of consent reasonably manifest by taking such measures of resistance as are called for by the circumstances, the inference may be drawn that the victim did consent. A25-28 APPENDIX 25 Consent, however, may not be inferred if resistance would have been futile, where resistance is overcome by threats of death or great bodily harm, or where the victim is unable to resist because of the lack of mental or physical faculties. In such a case there is no consent and the force involved in penet r a t i o n w i l l s u f f i c e . A l l t h e s u r r o u n d i n g c i r c u m - stances are to be considered in determining whether a victim gave consent, or whether he or she failed or ceased to resist only because of a reasonable fear of death or grievous bodily harm. If there is actual consent, although obtained by fraud, the act is not rape, but if to the accused’s knowledge the victim is of unsound mind or unconscious to an extent rendering him or her incapable of giving consent, the act is rape. Likewise, the acquiescence of a child of such tender years that he or she is incapable of understanding the nature of the act is not consent”. k. Paragraph 89.c. is amended to read as follows: “ ( c ) E x p l a n a t i o n . “ I n d e c e n t ” l a n g u a g e i s t h a t which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to i n c i t e l u s t f u l t h o u g h t . L a n g u a g e i s i n d e c e n t i f i t tends reasonably to corrupt morals or incite libidinous thoughts. The language must violate commun i t y s t a n d a r d s . S e e p a r a g r a p h 8 7 i f t h e communication was made in the physical presence of a child”. l. Paragraph 103. The following new paragraph is added after paragraph 103: “(a) Text. See paragraph 60. (b) Elements. (1) That the accused intentionally inflicted injury upon himself or herself; (2) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. [Note: If the offense was committed in time of war or in a hostile fire pay zone, add the following element] (3) That the offense was committed (in time of war) (in a hostile fire pay zone). (c) Explanation. (1) Nature of offense. This offense differs from malingering (see paragraph 40) in that for this offense, the accused need not have harbored a design to avoid performance of any work, duty, or service
which may properly or normally be expected of one in the military service. This offense is characterized by intentional self-injury under such circumstances as prejudice good order and discipline or discredit the armed forces. It is not required that the accused be unable to perform duties, or that the accused actually be absent from his or her place of duty as a result of the injury. For example, the accused may inflict the injury while on leave or pass. The circumstances and extent of injury, however, are relevant to a determination that the accused’s conduct was prejudicial to good order and discipline, or service-discrediting. (2) How injury inflicted. The injury may be inflicted by nonviolent as well as by violent means and may be accomplished by any act or omission that produces, prolongs, or aggravates a sickness or disability. Thus, voluntary starvation that results in a debility is a self-inflicted injury. Similarly, the injury may be inflicted by another at the accused’s request. (d) Lesser included offense. Article 80—attempts (e) Maximum punishment. (1) Intentional self-inflicted injury. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 2 years. (2) Intentional self-inflicted injury in time of war or in a hostile fire pay zone. Dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. (f) Sample specification. I n t h a t ( p e r s o n a l j u r i s d i c t i o n d a t a ) , did, (at/on board--location) (in a hostile fire pay zone) on or about 19 , (a time of w a r , ) i n t e n t i o n a l l y i n j u r e h i m s e l f / h e r s e l f b y ( n a t u r e a n d c i r c u m s t a n c e s o f injury)”. Section 5. These amendments shall take effect on June 10, 1995, subject to the following: a. Nothing in these amendments shall be construed to make punishable any act done or omitted prior to June 10, 1995. b. The maximum punishment for an offense committed prior to June 10, 1995, shall not exceed the applicable maximum in effect at the time of the commission of such offense. c. Nothing in these amendments shall be construed to invalidate any nonjudicial punishment proceeding, restraint, investigation, referral of charges, trial in HISTORICAL EXECUTIVE ORDERS which arraignment occurred, or other action begun prior to June 10, 1995, and any such restraint, investigation, referral of charges, trial, or other action may proceed in the same manner and with the same e f f e c t a s i f t h e s e a m e n d m e n t s h a d n o t b e e n prescribed. THE WHITE HOUSE May 12, 1995 A25-29
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gerous to another and evinces a wanton disregard of<br />
human life; or”;<br />
f. Paragraph 43.b.(3)(c) is amended to read as follows:<br />
“(c) That this act was inherently dangerous to another<br />
and showed a wanton disregard for human<br />
life”;<br />
g. Paragraph 43.c.(4)(a) is amended to read as follows:<br />
“(a) Wanton disregard for human life. Intentiona<br />
l l y e n g a g i n g i n a n a c t i n h e r e n t l y d a n g e r o u s t o<br />
another -- although without an intent to cause the<br />
death of or great bodily harm to any particular person,<br />
or even with a wish that death will not be<br />
c a u s e d - - m a y a l s o c o n s t i t u t e m u r d e r i f t h e a c t<br />
shows wanton disregard of human life. Such disregard<br />
is characterized by heedlessness of the probable<br />
consequences of the act or omission, or indifference<br />
to the likelihood of death or great bodily harm. Examples<br />
include throwing a live grenade toward another<br />
or others in jest or flying an aircraft very low<br />
over one or more persons to cause alarm”.<br />
h. Paragraph 45.a.(a) is amended to read as follows:<br />
“(a) Any person subject to this chapter who commits<br />
an act of sexual intercourse by force and without<br />
consent, is guilty of rape and shall be punished<br />
by death or such other punishment as a court-martial<br />
may direct”.<br />
i. Paragraph 45.b.(1) is amended to read as follows:<br />
“(a) That the accused committed an act of sexual<br />
intercourse; and<br />
(b) That the act of sexual intercourse was done<br />
by force and without consent”.<br />
j. Paragraph 45.c.(1)(a) and (b) are amended as follows:<br />
“(a) Nature of offense. Rape is sexual intercourse<br />
by a person, executed by force and without consent<br />
of the victim. It may be committed on a victim of<br />
any age. Any penetration, however slight, is sufficient<br />
to complete the offense.”<br />
“(b) Force and lack of consent. Force and lack of<br />
consent are necessary to the offense. Thus, if the<br />
victim consents to the act, it is not rape. The lack of<br />
consent required, however, is more than mere lack<br />
of acquiescence. If a victim in possession of his or<br />
her mental faculties fails to make lack of consent<br />
reasonably manifest by taking such measures of resistance<br />
as are called for by the circumstances, the<br />
inference may be drawn that the victim did consent.<br />
A25-28<br />
APPENDIX 25<br />
Consent, however, may not be inferred if resistance<br />
would have been futile, where resistance is overcome<br />
by threats of death or great bodily harm, or<br />
where the victim is unable to resist because of the<br />
lack of mental or physical faculties. In such a case<br />
there is no consent and the force involved in penet<br />
r a t i o n w i l l s u f f i c e . A l l t h e s u r r o u n d i n g c i r c u m -<br />
stances are to be considered in determining whether<br />
a victim gave consent, or whether he or she failed or<br />
ceased to resist only because of a reasonable fear of<br />
death or grievous bodily harm. If there is actual<br />
consent, although obtained by fraud, the act is not<br />
rape, but if to the accused’s knowledge the victim is<br />
of unsound mind or unconscious to an extent rendering<br />
him or her incapable of giving consent, the act is<br />
rape. Likewise, the acquiescence of a child of such<br />
tender years that he or she is incapable of understanding<br />
the nature of the act is not consent”.<br />
k. Paragraph 89.c. is amended to read as follows:<br />
“ ( c ) E x p l a n a t i o n . “ I n d e c e n t ” l a n g u a g e i s t h a t<br />
which is grossly offensive to modesty, decency, or<br />
propriety, or shocks the moral sense, because of its<br />
vulgar, filthy, or disgusting nature, or its tendency to<br />
i n c i t e l u s t f u l t h o u g h t . L a n g u a g e i s i n d e c e n t i f i t<br />
tends reasonably to corrupt morals or incite libidinous<br />
thoughts. The language must violate commun<br />
i t y s t a n d a r d s . S e e p a r a g r a p h 8 7 i f t h e<br />
communication was made in the physical presence<br />
of a child”.<br />
l. Paragraph 103. The following new paragraph is<br />
added after paragraph 103:<br />
“(a) Text. See paragraph 60.<br />
(b) Elements.<br />
(1) That the accused intentionally inflicted injury<br />
upon himself or herself;<br />
(2) That, under the circumstances, the conduct<br />
of the accused was to the prejudice of good order<br />
and discipline in the armed forces or was of a nature<br />
to bring discredit upon the armed forces.<br />
[Note: If the offense was committed in time of<br />
war or in a hostile fire pay zone, add the following<br />
element]<br />
(3) That the offense was committed (in time<br />
of war) (in a hostile fire pay zone).<br />
(c) Explanation.<br />
(1) Nature of offense. This offense differs from<br />
malingering (see paragraph 40) in that for this offense,<br />
the accused need not have harbored a design<br />
to avoid performance of any work, duty, or service