NOTE 1: Limitations on offenses under Article 134. A capital offense may not be tried under Article 134. The General Article should not be charged when the offense is prohibited by Articles 80-132. Under the preemption doctrine, the General Article also may not be used to charge a residuum of the elements of an Article 80-132 offense, such as charging larceny less the element of intent. See MCM, Part IV, Paragraph 91c(5).
NOTE 2: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT:
Based on the Federal statute allegedly violated. If the U.S. Code provides for confinement for 1 year or more, DD and TF are also authorized; if 6 months or more, BCD and TF are also authorized; if less than 6 months, 2/3 forfeitures per month for the maximum period of confinement is authorized. See RCM 1003(c)(1)(B)(ii). (Criteria)
b. SAMPLE SPECIFICATION:
NOTE 3: The MCM does not provide a sample specification for violation of offenses under Clause 3 of Article 134. Ordinarily a specification alleging an offense in violation of Article 134 substantially as below should be sufficient.
In that __________ (personal jurisdiction data), did at/on board—location (jurisdictional nature of the location, if necessary), on or about __________, (allege all elements of federal offense) in violation of (18) (21) (_) U.S. Code Section __________, an offense not capital.
c. ELEMENTS:
NOTE 4: Identifying elements and applicable definitions. The military judge should ordinarily seek the position of counsel as to the elements and applicable definitions and hold an Article 39(a) session early in the trial to clarify generally what instructions may be given. Federal pattern instructions are available online from the United States Court of Appeals Library.
NOTE 5: Terminal Element. The specification must expressly allege, and the military judge must instruct as a separate element, that the charged Federal offense is not a capital offense.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
Provide all pertinent definitions from the federal statute.