1 of 375 DOCUMENTS - University of Houston Law Center

PART I - PREAMBLE
1. Sources of military jurisdiction 2005 MCM PREAMBLE 1
The sources of military jurisdiction include the Constitution and
international law. International law includes the law of war. PART I - PREAMBLE
2. Exercise of military jurisdiction 2005 MCM PREAMBLE 2 (a) Kinds. Military jurisdiction is exercised by: (1) A government in the exercise of that branch of the municipal law
which regulates its military establishment. (Military law). (2) A government temporarily governing the civil population within its
territory or a portion of its territory through its military forces as
necessity may require. (Martial law). (3) A belligerent occupying enemy territory. (Military government). (4) A government with respect to offenses against the law of war. (b) Agencies. The agencies through which military jurisdiction is exercised
include: (1) Courts-martial for the trial of offenses against military law and, in
the case of general courts-martial, of persons who by the law of war are
subject to trial by military tribunals. See Parts II, III, and IV of this
Manual for rules governing courts-martial. (2) Military commissions and provost courts for the trial of cases within
their respective jurisdictions. Subject to any applicable rule of
international law or to any regulations prescribed by the President or by
other competent authority, military commissions and provost courts shall be
guided by the appropriate principles of law and rules of procedures and
evidence prescribed for courts-martial. (3) Courts of inquiry for the investigation of any matter referred to
such court by competent authority. See Article 135. The Secretary concerned
may prescribe regulations governing courts of inquiry. (4) Nonjudicial punishment proceedings of a commander under Article 15.
See Part V of this Manual. PART I - PREAMBLE
3. Nature and purpose of military law 2005 MCM PREAMBLE 3
Military law consists of the statutes governing the military
establishment and regulations issued thereunder, the constitutional powers
of the President and regulations issued thereunder, and the inherent
authority of military commanders. Military law includes jurisdiction
exercised by courts-martial and the jurisdiction exercised by commanders
with respect to nonjudicial punishment. The purpose of military law is to
promote justice, to assist in maintaining good order and discipline in the
armed forces, to promote efficiency and effectiveness in the military
establishment, and thereby to strengthen the national security of the
United States. PART I - PREAMBLE
4. Structure and application of the Manual for Courts-Martial 2005 MCM PREAMBLE 4
The Manual for Courts-Martial shall consist of this Preamble, the Rules
for Courts-Martial, the Military Rules of Evidence, the Punitive Articles,
and Nonjudicial Punishment Procedures (Part I-V). This Manual shall be
applied consistent with the purpose of military law. The Manual shall be identified as "Manual for Courts-Martial, United
States (2005 edition)." Any amendments to the Manual made by Executive
Order shall be identified as "2004" Amendments to the Manual for Courts-
Martial, United States, "2004" being the year the Executive Order was
signed. If two or more Executive Orders amending the Manual are signed
during the same year, then the second and any subsequent Executive Orders
will be identified by placing a small case letter of the alphabet after the
last digit of the year beginning with "a" for the second Executive Order
and continuing in alphabetic order for subsequent Executive Orders. The Department of Defense Joint Service Committee (JSC) on Military
Justice reviews the Manual for Courts-Martial and proposes amendments to
the Department of Defense for consideration by the President on an annual
basis. In conducting its annual review, the JSC is guided by DoD Directive
5500.17, "The Roles and Responsibilities of the Joint Service Committee
(JSC) on Military Justice." DoD Directive 5500.17 includes provisions
allowing public participation in the annual review process. Discussion The Department of Defense, in conjunction with the Department of
Transportation, has published supplementary materials to accompany the
Manual for Courts-Martial. These materials consist of a Discussion
(accompanying the Preamble, the Rules for Courts-Martial, and the Punitive
Articles), an Analysis, and various appendices. These supplementary
materials do not constitute the official views of the Department of
Defense, the Department of Transportation, the Department of Justice, the
military departments, the United States Court of Appeals for the Armed
Forces, or any other authority of the Government of the United States, and
they do not constitute rules. Cf., for example, 5 U.S.C. § 551 (1982). The
supplementary materials do not create rights or responsibilities that are
binding on any person, party, or other entity (including any authority of
the Government of the United States whether or not included in the
definition of "agency" in 5 U.S.C. § 551(1)). Failure to comply with matter
set forth in the supplementary materials does not, of itself, constitute
error, although these materials may refer to requirements in the rules set
forth in the Executive Order or established by other legal authorities (for
example, binding judicial precedents applicable to courts-martial) which
are based on sources of authority independent of the supplementary
materials. The 1995 amendment to paragraph 4 of the Preamble is intended to
eliminate the practice of identifying the Manual for Courts-Martial, United
States, by a particular year. As long as the Manual was published in its
entirety sporadically (e.g., 1917, 1921, 1928, 1949, 1951, 1969 and 1984),
with amendments to it published piecemeal, it was logical to identify the
Manual by the calendar year of publication, with periodic amendments
identified as "Changes" to the Manual. The more frequent publication of a
new edition of the Manual, however, means that it is more appropriately
identified by the calendar year of edition. Amendments made in a particular
calendar year will be identified by publishing the relevant Executive order
containing those amendments in its entirety in a Manual appendix. The amendment to paragraph 4 of the Preamble is intended to address the
possibility of more frequent amendments to the Manual and the arrival of
the 21st century. In the event that multiple editions of the Manual are
published in the same year, the numbering and lettering of the edition
should match that of the most recent Executive Order included in the
publication. PART II - RULES FOR COURTS-MARTIAL
CHAPTER I. GENERAL PROVISIONS
Rule 101. Scope, title 2005 MCM Rule 2-101 (a) In general. These rules govern the procedures and punishments in all
courts-martial and, whenever expressly provided, preliminary,
supplementary, and appellate procedures and activities. (b) Title. These rules may be known and cited as the Rules for Courts-
Martial (R.C.M.). PART II - RULES FOR COURTS-MARTIAL
CHAPTER I. GENERAL PROVISIONS
Rule 102. Purpose and construction 2005 MCM Rule 2-102 (a) Purpose. These rules are intended to provide for the just determination
of every proceeding relating to trial by court-martial. (b) Construction. These rules shall be construed to secure simplicity in
procedure, fairness in administration, and the elimination of unjustifiable
expense and delay. PART II - RULES FOR COURTS-MARTIAL
CHAPTER I. GENERAL PROVISIONS
Rule 103. Definitions and rules of construction 2005 MCM Rule 2-103
The following definitions and rules of construction apply throughout this
Manual, unless otherwise expressly provided. (1) "Article" refers to articles of the Uniform Code of Military Justice
unless the context indicates otherwise. (2) "Capital case" means a general court-martial to which a capital offense
has been referred without an instruction that the case be treated as
noncapital, and, in the case of a rehearing or new or other trial, for
which offense death remains an authorized punishment under R.C.M. 810(d). (3) "Capital offense" means an offense for which death is an authorized
punishment under the code and Part IV of this Manual or under the law of
war. (4) "Code" refers to the Uniform Code of Military Justice, unless the
context indicates otherwise. Discussion The Uniform Code of Military Justice is set forth at Appendix 2. (5) "Commander" means a commissioned officer in command or an officer in
charge except in Part V or unless the context indicates otherwise. (6) "Convening authority" includes a commissioned officer in command for
the time being and successors in command. Discussion See R.C.M. 504 concerning who may convene courts-martial. (7) "Copy" means an accurate reproduction, however made. Whenever necessary
and feasible, a copy may be made by handwriting. (8) "Court-martial" includes, depending on the context: (A) The military judge and members of a general or special court-martial; (B) The military judge when a session of a general or special court-
martial is conducted without members under Article 39(a); (C) The military judge when a request for trial by military judge alone
has been approved under R.C.M. 903; (D) The members of a special court-martial when a military judge has not
been detailed; or (E) The summary court-martial officer. (9) "Days." When a period of time is expressed in a number of days, the
period shall be in calendar days, unless otherwise specified. Unless
otherwise specified, the date on which the period begins shall not count,
but the date on which the period ends shall count as one day. (10) "Detail" means to order a person to perform a specific temporary duty,
unless the context indicates otherwise. (11) "Explosive" means gun