Executive Order 12340

by President of the United States

By the authority vested in me as President by the Constitution of the United States and by Chapter 47 of Title 10 of the United States Code (the Uniform Code of Military Justice), in order to prescribe amendments to the Manual for Courts-Martial, United States, 1969 (Revised edition), prescribed by Executive Order No. 11476, as amended by Executive Order No. 11835, Executive Order No. 12018, Executive Order No. 12198, Executive Order No. 12233, Executive Order No. 12306, and Executive Order No. 12315, it is hereby ordered as follows:

Section 1. The fourth sentence of the second paragraph of paragraph 6b of the Manual for Courts-Martial, United States, 1969 (Revised edition) is amended by inserting the word "duty" before the word "list".

Sec. 2. Paragraph 18b(3) of the said Manual for Courts-Martial is amended to read as follows:

"(3) No person while being held for trial may be subjected to punishment or penalty other than restraint upon the charges pending against him, nor shall the restraint imposed upon him be any more rigorous than the circumstances require to ensure his presence, but he may be subjected to minor punishment during that period for infractions of discipline (see Article 13). Minor punishment for violation of the disciplinary rules of the place of confinement may be imposed under regulations prescribed by the Secretary concerned. See 68g concerning the effect of punishments for minor offenses upon subsequent courts-martial. Prisoners being held for trial shall not be required to undergo punitive duty hours or training, perform punitive labor, or wear special uniforms prescribed only for posttrial prisoners. Prisoners shall be afforded facilities, treatment, and training under regulations prescribed by the Secretary concerned.".

Sec. 3. Paragraph 34c of the said Manual for Courts-Martial is amended to read as follows:

"c. Counsel. (1) For the accused. Counsel certified under Article 27(b) will be detailed to represent the accused at the investigation. The accused has the right to be represented at an Article 32 investigation by civilian counsel if provided by him, and either by the military counsel detailed under Article 32(b) or military counsel of his own selection if that counsel is reasonably available. See paragraphs 46d and 48b concerning availability of persons requested as individual military counsel, the effect of such request on the duties of the detailed defense counsel, and the procedures for acting on such requests. The investigating officer will not review any denial of a request for individual military counsel.

"The investigation should be conducted promptly (see Art. 33 and paragraph 30i), while the events are fresh in the minds of witnesses. The investigation will not proceed in the absence of counsel unless the accused expressly waives counsel's presence. An investigation will not be delayed if the accused is unable to obtain civilian counsel provided by him within a reasonable time after having been given an opportunity to obtain that counsel.

"(2) For the government. The government may be represented at the investigation by counsel designated by the officer who directed the investigation.".

Sec. 4. The second paragraph of paragraph 46d of the said Manual for Courts-Martial is amended to read as follows:

"When charges are referred to a court for trial, the defense counsel will inform the accused immediately that he has been detailed to defend him at the trial, explain his general duties, and advise him of his right to select individual counsel, civilian or military, of his own choice pursuant to Article 38(b) and the effect of such a request. If the accused expresses a desire to be represented by individual military counsel, the defense counsel will immediately report the fact to the convening authority, through the trial counsel. Unless the accused otherwise desires, the defense counsel will undertake the immediate preparation of the defense without waiting for the detail or retention of any individual counsel. If the accused is represented by military counsel of his own selection, detailed defense counsel normally shall be excused. The convening authority, in his sole discretion, may approve a request from the accused that detailed defense counsel act as associate counsel. Such requests shall be considered in light of the general statutory policy that the accused is not entitled to be represented by more than one military counsel. Article 38(b)(6). Among the factors that may be considered in the exercise of discretion are the seriousness of the case, retention of civilian defense counsel, complexity of legal or factual issues, and the detail of additional trial counsel. The action of the convening authority on such a request is subject to review only for abuse of discretion. The military judge may not dismiss the charges or otherwise effectively prevent further proceedings based on this issue. However, the military judge may grant reasonable continuances pending action on the request for associate counsel. If the request for assignment of detailed defense counsel as associate counsel is denied, and if the accused so requests, the military judge shall ensure that a record of that matter is included in the record of trial, and may make findings as to any disputed facts. The trial counsel may request a continuance to inform the convening authority of these findings.".

Sec. 5. The first paragraph of paragraph 48a of the said Manual for Courts-Martial is amended to read as follows:

"See Article 38(b). The accused has the right to be represented in his defense before a general or special court-martial by civilian counsel if provided by him, and either by the military counsel detailed under Article 27 or military counsel of his own selection if reasonably available. The accused is not entitled to be represented by more than one military counsel. The convening authority, in his sole discretion, may detail associate defense counsel. See paragraphs 46d and 47. If the accused is represented by civilian counsel, military counsel provided under Article 38(b) shall act as associate counsel unless excused at the request of the accused. Civilian counsel will not be provided at the expense of the United States.".

Sec. 6. Paragraph 48b of the said Manual for Courts-Martial is amended to read as follows:

"48b. Individual Military Counsel

"(1) General. See Article 38(b). The accused may request individual military counsel of his own selection and be represented by such counsel if reasonably available. Subject to the limitations in subparagraph (2), the Secretary concerned will define "reasonably available." Subject to the general guidance in subparagraph (3), the Secretary concerned will establish the procedure for determining whether a requested person is "reasonably available" to act as individual military counsel.

"(2) Persons not "reasonably available." While so assigned, the following persons are unavailable to serve as individual military counsel because of the nature of their duties or positions: a flag or general officer; a trial or appellate military judge; a trial counsel; an appellate defense or government counsel; a principal legal advisor to a command, organization, or agency and his principal assistant; an instructor or student at a service school or academy; a student at a college or university; or a member of the staff of the Judge Advocate General of the Army, Navy, or Air Force, the Chief Counsel of the Coast Guard, or the Director, Judge Advocate Division, Headquarters, Marine Corps. These are in addition to any persons the Secretary concerned may determine to be unavailable to act as individual military counsel because of the nature or responsibilities of their assignments, geographic considerations, exigent circumstances, or military necessity. Further, persons from an armed force different from that of the accused are unavailable to serve as individual military counsel unless they are located within 100 miles of where the general or special court-martial or Article 32 investigation is to be held and they are not otherwise unavailable. Under circumstances prescribed by the Secretary concerned, exceptions may be made to the foregoing prohibitions when merited by the existence of an attorney-client relationship between the accused and the requested counsel regarding matters relating to a charge in question. However, if the attorney-client relationship arose solely because the counsel represented the accused on review under Article 70, this exception does not apply.

"(3) Procedure. The request for an individual military counsel should be made by the accused or his detailed defense counsel to the convening authority, through the trial counsel. If the person is among those listed as unavailable under subparagraph (2) or under regulations of the Secretary concerned, the convening authority shall notify the accused that the request is denied, unless the request asserts that there is an existing attorney-client relationship regarding a charge in question or that the person requested will not, at the time of trial, be among those so listed as unavailable. If the accused's request makes such a claim, or if the person requested is not among those' listed as unavailable under subparagraph (2) or under regulations of the Secretary concerned, the convening authority shall forward the request to the commanding officer or head of the organization, activity, or agency to which the person requested is assigned. That authority will make an administrative determination as to the availability of the requested person in accordance with the procedure established by the Secretary concerned. This determination is a matter within the sole discretion of that authority. An adverse determination may be appealed by the accused through that authority to the next higher commanding officer or level of supervision, but appeals may not be made which require action at the departmental or higher level.

"(4) Judicial review of a denial of request. If a request for a person to act as individual military counsel is denied, which denial is upheld upon administrative appeal (if available under paragraph 48b(3)) in command channels, and if the accused so requests, the military judge shall ensure that a record of that matter is included in the record of trial, and may make findings as to any disputed facts. The trial counsel may request a continuance to inform the convening authority of those findings. The military judge may not dismiss the charges or otherwise effectively prevent further proceedings based on this issue. However, the military judge may grant reasonable continuances until the requested military counsel can be made available if the unavailability results from temporary conditions or if the decision of nonavailability is in the process of review in command channels.".

Sec. 7. Paragraph 61f(3) of the said Manual for Courts-Martial is amended by deleting the last sentence thereof.

Sec. 8. Paragraph 100c(1)(a) of the said Manual for Courts-Martial is amended to read as follows:

"(a) If the sentence, as affirmed by the Court of Military Review, extends to dismissal, dishonorable or bad-conduct discharge, or confinement for one year or more, the Judge Advocate General, in his discretion, may take the action prescribed in 100b(2) above. Otherwise, he will transmit a copy of the initial court-martial order (90b(1)) and any supplementary orders (90b(2)) and two copies of the decision of the Court of Military Review, with such instructions as to future action as may be appropriate (Art. 66(e)) and with instructions to cause a copy of the decision to be served upon the accused, to the officer immediately exercising general court-martial jurisdiction over the accused. If the officer who exercises immediate general court-martial jurisdiction over the accused is not the officer who convened the court, or his successor in command, the Judge Advocate General shall also transmit a copy of the decision of the Court of Military Review to the convening authority who convened the court for his information.

"The accused may be notified personally of the decision of the Court of Military Review, or a copy of the decision of the Court of Military Review may be sent, after service on appellate counsel of record of the accused (if any), by first class certified mail to' the accused at an address provided by the accused or, f no such address has been provided by the accused, at the latest address listed for the accused in his official service record. The copy of the decision of the Court of Military Review which is provided the accused will bear an endorsement notifying the accused of the right to petition the Court of Military Appeals for review with respect to any matter of law within 60 days from the time the accused was in fact notified or the mailed copy of the decision was postmarked, whichever is earlier. This endorsement will also inform the accused that any petition for review may be forwarded through the officer immediately exercising general court-martial Jurisdiction over the accused and through the appropriate Judge Advocate General or filed directly with the Court of Military Appeals. The receipt of the accused for the copy of the decision of the Court of Military Review, a certificate of service upon him, or the postal receipt for certified mail will be transmitted in duplicate by expeditious means to the appropriate Judge Advocate General. If the accused is personally served the receipt or certificate of service will show the date of service. The Judge Advocate General will forward one copy of the receipt, certificate, or postal receipt to the Clerk of the Court of Military Appeals when required by the Court.

"The accused has 60 days from the earlier of the date on which the accused is notified of the decision of the Court of Military Review or the date on which a copy of that decision, after being served on appellate counsel of record (if any), is deposited in the United States mails for delivery by first class certified mail to the accused at an address provided by the accused or, if no such address has been provided by the accused, at the latest address listed for the accused in his official service record to petition the Court of Military Appeals for review. The placing of a petition for review in proper military channels divests the Court of Military Review of jurisdiction over the case, and jurisdiction is thereby conferred on the Court of Military Appeals. If the accused does not so petition, the convening authority, or the officer immediately exercising general court-martial jurisdiction over the accused, or the Secretary concerned (Art. 60) may order any sentence which, as affirmed by the Court of Military Review, extends to dishonorable or bad-conduct discharge or confinement for one year or more into execution or take other authorized appropriate action (Art. 74(a)) as the circumstances may warrant.".

Sec. 9. The last sentence of the third paragraph of paragraph 102b of the said Manual for Courts-Martial is amended by striking the "j" in "48j(3)" and inserting "k" in place thereof.

Sec. 10. Paragraph 110A of the said Manual for Courts-Martial is amended by inserting the following paragraph after the caption and before the existing first paragraph:

"An accused who elects to file for review by The Judge Advocate General under Article 69 must do so before October 1, 1983, or before the last day within the two-year period' beginning on the date the sentence is approved by the convening authority or, in a special court-martial case which requires action under Article 65(b) by the officer exercising general court-martial jurisdiction, whichever is later, unless the accused establishes good cause for failure to file within that time."

Sec. 11. The second paragraph of paragraph 125 of the said Manual for Courts-Martial is amended to read as follows:

"No member of the armed forces may be placed in confinement in immediate association with enemy prisoners or other foreign nationals not members of the armed forces (Article 12). No person while being held for trial may be subjected to punishment or penalty other than restraint upon the charges pending against him. See 18b(3).".

Sec. 12. These amendments shall take effect on January 20, 1982. These amendments apply to all courts-martial processes taken on or after that date, except that the amendment of paragraph 34c shall apply only to investigations begun on or after January 20, 1982; the amendments of paragraphs 46d, 48, and 61f shall-apply only to courts-martial in which all charges are referred to trial on or after January 20, 1982; and the amendment of paragraph 100 shall apply only to cases in which the opinion of the Court of Military Review is dated on or after January 20, 1982.

Sec. 13. The Secretary of Defense, on behalf of the President, shall transmit a copy of this Order to the Congress of the United States in accord with Section 836 of Title 10 of the United States Code.

RONALD REAGAN
The White House,
January 20, 1982.

[Filed with the Office of the Federal Register, 4:05 p.m., January 20, 1982]