11 May 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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[Federal Register: May 11, 1998 (Volume 63, Number 90)]
[Notices]
[Page 25835-25839]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11my98-51]

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DEPARTMENT OF DEFENSE

Office of the Secretary


Manual for Courts-Martial

AGENCY: Joint Service Committee on Military Justice (JSC).

ACTION: Notice of proposed amendments.

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SUMMARY: The Department of Defense is considering recommending changes
to the Manual for Courts-Martial, United States, (1995 ed.) [MCM]. The
proposed changes are the 1998 draft annual review required by the MCM
and DoD Directive 5500.17, ``Role and Responsibilities of the Joint
Service Committee (JSC) on Military Justice,'' May 8, 1996. The
proposed changes concern the preamble, the rules of procedure and
evidence applicable in trials by courts-martial and the punitive
articles describing offenses. The proposed changes to one offense are
contingent upon the passage of legislation amending that offense. More
specifically, the proposed changes would: (1) Clarify the method of
identifying amendments to and editions of the MCM should more than one
executive order be signed in a given year; (2) set forth the rules for
issuing protective orders preventing the parties and witnesses from
making out of court statements when there is a substantial likelihood
of material prejudice to a fair trial; (3) clarify which
``convictions'' are admissible on sentencing; (4) incorporate numerous
references into the existing rules, discussion, and punitive articles
to confinement with or

[[Page 25836]]

without eligibility for parole (authorized punishments, other penalties
for capital cases, voting procedures, number of votes required for
reconsideration of sentence, maximum punishments, mandatory minimums,
proposals of sentences, and action on the sentence); (5) update all of
the sample specifications by removing the reference to the 20th century
from the date of the offense; (6) reject the automatic change to M.R.E.
407 based on the December 1, 1997 change to F.R.E. 407; (7) delete
M.R.E. 415 (Evidence of Similar Acts in Civil Cases concerning Sexual
Assault or Child Molestation); and (8) implement changes to paragraph
35 of the punitive articles (Article 111 Drunken or reckless operation
of a vehicle, aircraft, or vessel) contingent upon the passage of
legislation amending Article 111 of the UCMJ to provide a blood/alcohol
blood/breath concentration of 0.08 or more as a per se standard of
illegal intoxication.
    The proposed changes have not been coordinated within the
Department of Defense under DoD Directive 5500.1, ``Preparation and
Processing of Legislation, Executive Orders, Proclamations, and Reports
and Comments Thereon,'' May 21, 1964, and do not constitute the
official position of the Department of Defense, the Military
Departments, or any other government agency.
    This notice is provided in accordance with DoD Directive 5500.17,
``Role and Responsibilities of the Joint Service Committee (JSC) on
Military Justice,'' May 8, 1996. This notice is intended only to
improve the internal management of the Federal Government. It is not
intended to create any right or benefit, substantive or procedural,
enforceable at law by any party against the United States, its
agencies, its officers, or any person.

ADDRESSES: Comments on the proposed changes should be sent to LtCol
Thomas C. Jaster, U.S. Air Force, Air Force Legal Services Agency, 112
Luke Avenue, Room 343, Bolling Air Force Base, Washington, DC 20332-
8000.

DATES: Comments on the proposed changes must be received no later than
July 27, 1998, for consideration by the JSC.

FOR FURTHER INFORMATION CONTACT: LtCol Thomas C. Jaster, U.S. Air
Force, Air Force Legal Services Agency, 112 Luke Avenue, Room 343,
Bolling Air Force Base, Washington, DC 20332-8000, (202) 767-1539; FAX
(202) 404-8755.
    The full text of the affected sections follows:
    The last subparagraph of paragraph 4 of the Preamble is amended to
read as follows:
    ``The Manual shall be identified as ``Manual for Courts-Martial,
United States (XXXX edition).'' Any amendments to the Manual made by
Executive Order shall be identified as ``XXXX Amendments to the Manual
for Courts-Martial, United States''; ``XXXX'' 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 Discussion following the Preamble is amended by adding the
following at the end of the Discussion:
    ``The 1999 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.''
    R.C.M. 806 is amended by adding the following new subparagraph (d)
as follows:
    ``(d) Protective orders. The military judge may, upon request of
any party or sua sponte, issue an appropriate protective order, in
writing, to prevent parties and witnesses from making extrajudicial
statements that present a substantial likelihood of material prejudice
to a fair trial by impartial members. For purposes of this subsection,
``military judge'' does not include the president of a special court-
martial without a military judge.''
    The following Discussion is added after R.C.M. 806(d):
    ``A protective order may proscribe extrajudicial statements by
counsel, parties, and witnesses that might divulge prejudicial matter
not of public record in the case. Other appropriate matters may also be
addressed by such a protective order. Before issuing a protective
order, the military judge must consider whether other available
remedies would effectively mitigate the adverse effects that any
publicity might create, and consider such an order's likely
effectiveness in ensuring an impartial court-martial panel. A military
judge should not issue a protective order without first providing
notice to the parties and an opportunity to be heard. The military
judge must state on the record the reasons for issuing the protective
order. If the reasons for issuing the order change, the military judge
may reconsider the continued necessity for a protective order.''
    The Analysis accompanying R.C.M. 806(d) is created as follows:
    ``1999 Amendment: Section (d) was added to codify the military
judge's power to issue orders limiting trial participants'
extrajudicial statements in appropriate cases. See United States v.
Garwood, 16 M.J. 863, 868 (N.M.C.M.R. 1983) (finding military judge was
justified in issuing restrictive order prohibiting extrajudicial
statements by trial participants), aff'd on other grounds, 20 M.J. 148
(C.M.A. 1985); United States v. Clark, 31 M.J. 721, 724 (A.F.C.M.R.
1990) (suggesting, but not deciding, that the military judge properly
limited trial participants' extrajudicial statements).
    The public has a legitimate interest in the conduct of military
justice proceedings. Informing the public about the operations of the
criminal justice system is one of the ``core purposes'' of the First
Amendment. In the appropriate case where the military judge is
considering issuing a protective order, absent exigent circumstances,
the military judge must conduct a hearing prior to issuing such an
order. Prior to such a hearing the parties will have been provided
notice. At the hearing, all parties will be provided an opportunity to
be heard. The opportunity to be heard may be extended to
representatives of the media in the appropriate case.
    Section (d) is based on the first Recommendation Relating to the
Conduct of Judicial Proceedings in Criminal Cases, included in the
Revised Report of the Judicial Conference Committee on the Operation of
the Jury System on the ``Free Press-Fair Trial'' Issue, 87 F.R.D. 519,
529 (1980), which was approved by the Judicial Conference of the United
States on September 25, 1980. The requirement that the protective order
be issued in writing is based on Rule for Courts-Martial 405(g)(6).
Section (d) adopts a ``substantial likelihood of material prejudice''
standard in place of the Judicial Conference recommendation's ``likely
to interfere'' standard. The Judicial Conference's recommendation was
issued before the Supreme Court's decision in Gentile v. State Bar of
Nev., 501 U.S. 1030 (1991). Gentile, which dealt with a Rule of
Professional Conduct governing extrajudicial statements, indicates that
a lawyer may be disciplined for making statements that present a
substantial likelihood of material prejudice to an accused's right

[[Page 25837]]

to a fair trial. While the use of protective orders is distinguishable
from limitations imposed by a bar's ethics rule, the Gentile decision
expressly recognized that the ``speech of lawyers representing clients
in pending cases may be regulated under a less demanding standard than
that established for regulation of the press in Nebraska Press Ass'n v.
Stuart, 427 U.S. 539 (1976), and the cases which preceded it.'' 501
U.S. at 1074. The Court concluded that ``the `substantial likelihood of
material prejudice' standard constitutes a constitutionally permissible
balance between the First Amendment rights of attorneys in pending
cases and the State's interest in fair trials.'' Id. at 1075. Gentile
also supports the constitutionality of restricting communications of
non-lawyer participants in a court case. Id. at 1072-73 (citing Seattle
Times Co. v. Rhinehart, 467 U.S. 20 (1984)). Accordingly, a protective
order issued under the ``substantial likelihood of material prejudice''
standard is constitutionally permissible.
    The first sentence of the discussion is based on the committee
comment to the Recommendations Relating to the Conduct of Judicial
Proceedings in Criminal Cases. 87 F.R.D. at 530. For a definition of
``party,'' see R.C.M. 103(16). The second sentence of the discussion is
based on the first of the Judicial Conference's recommendations
concerning special orders. Id. at 529. The third sentence of the
discussion is based on the second of the Judicial Conference's
recommendations, id. at 532, and on United States v. Salameh, 992 F.2d
445, 447 (2d Cir. 1993) (per curiam), and In re Application of Dow
Jones & Co., 842 F.2d 603, 611, 612 n.1 (2d Cir.), cert. denied, 488
U.S. 946 (1988). The fourth sentence is based on Salameh, 992 F.2d at
447. The fifth sentence is based on In re Halkin, 598 F.2d 176, 196-97
(D.C. Cir. 1979), and Rule for Courts-Martial 905(d).''
    R.C.M. 1001(b)(3)(A) is amended to read as follows:
    ``(A) In general. The trial counsel may introduce evidence of
military or civilian convictions of the accused. For purposes of this
rule, there is a ``conviction'' in a court-martial case when a sentence
has been adjudged. In a civilian case, a ``conviction'' includes any
disposition following an initial judicial determination or assumption
of guilt, such as when guilt has been established by guilty plea,
trial, or plea of nolo contendere, regardless of the subsequent
disposition, sentencing procedure, or final judgment. However, a
``civilian conviction'' does not include a diversion from the judicial
process without a finding or admission of guilt; expunged convictions;
juvenile adjudications; minor traffic violations; foreign convictions;
tribal court convictions; or convictions reversed, vacated, invalidated
or pardoned because of errors of law or because of subsequently
discovered evidence exonerating the accused.''
    The Discussion following R.C.M. 1001(b)(3)(A) is amended by adding
the following at the end of the Discussion:
    ``Whether a civilian conviction is admissible is left to the
discretion of the military judge. As stated in the rule, a civilian
``conviction'' includes any disposition following an initial judicial
determination or assumption of guilt regardless of the sentencing
procedure and the final judgment following probation or other sentence.
Therefore, convictions may be admissible regardless of whether a court
ultimately suspended judgment upon discharge of the accused following
probation, permitted withdrawal of the guilty plea, or applied some
other form of alternative sentencing. Additionally the term
``conviction'' need not be taken to mean a final judgment of conviction
and sentence.''
    The Analysis accompanying R.C.M. 1001(b)(3)(A) is amended by
inserting the following at the end thereof:
    ``1999 Amendment: As previously written, R.C.M. 1001(b)(3)(A)
offered little guidance about what it meant by ``civilian
convictions.'' See, e.g., United States v. White, 47 M.J. 139 (CAAF
1997); United States v. Barnes, 33 M.J. 468 (CMA 1992); United States
v. Slovacek, 24 M.J. 140 (CMA), cert. denied, 484 U.S. 855, 108 S.Ct.
161, 98 L.Ed.2d 115 (1987). The present rule addresses this void and
intends to give the sentencing authority as much information as the
military judge determines is relevant in order to craft an appropriate
sentence for the accused.
    Unlike most civilian courts, this rule does not allow admission of
more extensive criminal history information, such as arrests. Use of
such additional information is not appropriate in the military setting
where court-martial members, not a military judge, often decide the
sentence. Such information risks unnecessarily confusing the members.
    The present rule clarifies the term ``conviction'' in light of the
complex and varying ways civilian jurisdictions treat the subject. The
military judge may admit relevant evidence of civilian convictions
without necessarily being bound by the action, procedure, or
nomenclature of civilian jurisdictions. Examples of judicial
determinations admissible as convictions under this rule include
accepted pleas of nolo contendere, pleas accepted under North Carolina
v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), or
deferred sentences. If relevant, evidence of forfeiture of bail that
results in a judicial determination of guilt is also admissible, as
recognized in United States v. Eady, 35 M.J. 15 (CMA 1992). While no
time limit is placed upon the admissibility of prior convictions, the
military judge should conduct a balancing test to determine whether
convictions older that ten years should be admitted or excluded on the
basis of relevance and fundamental fairness.
    The two central factors in this rule are (1) judicial determination
of guilt and (2) assumption of guilt. So long as either factor is
present, the ``conviction'' is admissible, if relevant. Consequently,
this rule departs from the holding in United States v. Hughes, 25 M.J.
119 (CMA 1988), where the accused pleaded guilty in a Texas court, but
the judge did not enter a finding of guilty under state law allowing
``deferred adjudications.'' Under the present rule, the ``conviction''
would be admissible because the accused pleaded guilty in a judicial
proceeding, notwithstanding the fact that the state judge did not enter
a finding of guilty.
    In contrast, ``deferred prosecutions,'' where there is neither an
admission of guilt in a judicial proceeding nor a finding of guilty,
would be excluded. The rule also excludes expunged convictions,
juvenile adjudications, minor traffic violations, foreign convictions,
and tribal court convictions as matters inappropriate for or
unnecessarily confusing to courts-martial members. What constitutes a
``minor traffic violation'' within the meaning of this rule is to be
decided with reference only to principles of federal law, and not to
the laws of individual states.
    Additionally, because of the lack of clarity in the previous rule,
courts sometimes turned to M.R.E. 609 for guidance. See, e.g., United
States v. Slovacek, 24 M.J. 140 (CMA), cert. denied, 484 U.S. 855, 108
S.Ct. 161, 98 L.Ed.2d 115 (1987). We note that because the policies
behind M.R.E. 609 and the present rule differ greatly, a conviction
that may not be appropriate for impeachment purposes under M.R.E. 609,
may nevertheless be admissible under the present rule.
    The Federal Sentencing Guidelines were consulted when drafting the
present rule. Although informed by those guidelines, the present rule
departs from them in many respects because of the wide differences
between

[[Page 25838]]

the courts-martial process and practice in federal district court.''
    R.C.M. 1003(b)(8) is amended to read as follows:
    ``(8) Confinement. The place of confinement shall not be designated
by the court-martial. When confinement for life is authorized, it may
be with or without eligibility for parole. A court-martial shall not
adjudge a sentence to solitary confinement or to confinement without
hard labor;''
    The Discussion following R.C.M. 1003(b)(8) is amended by adding the
following at the end of the Discussion:
    ``See Article 56a.''
    The Analysis accompanying R.C.M. 1003(b)(8) is amended by inserting
the following at the end thereof:
    ``1999 Amendment: This change resulted from the enactment of
Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Public Law 105-85, 111 Stat. 1629, 1759
(1997).''
    R.C.M. 1004(e) is amended to read as follows:
    ``(e) Other penalties. Except for a violation of Article 106, when
death is an authorized punishment for an offense, all other punishments
authorized under R.C.M. 1003 are also authorized for that offense,
including confinement for life with or without eligibility for parole,
and may be adjudged in lieu of the death penalty, subject to
limitations specifically prescribed in the Manual. A sentence of death
includes a dishonorable discharge or dismissal as appropriate.
Confinement is a necessary incident of a sentence of death, but not
part of it.''
    The Analysis accompanying R.C.M. 1004(e) is amended by inserting
the following at the end thereof:
    ``1999 Amendment: This change resulted from the enactment of
Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Public Law 105-85, 111 Stat. 1629, 1759
(1997).''
    The Discussion following R.C.M. 1006(c) is amended to read as
follows:
    ``A proposal should state completely each kind and, when
appropriate, amount of authorized punishment proposed by that member.
For example, a proposal of confinement for life would state whether it
is with or without eligibility for parole. See R.C.M. 1003(b).''
    The Analysis accompanying R.C.M. 1006(c) is amended by inserting
the following at the end thereof:
    ``1999 Amendment: This change to the discussion resulted from the
enactment of Article 56a, UCMJ, in section 581 of the National Defense
Authorization Act for Fiscal Year 1998, Public Law 105-85, 111 Stat.
1629, 1759 (1997).''
    R.C.M. 1006(d)(4)(B) is amended to read as follows:
    ``(B) Confinement for life with or without eligibility for parole
or more than 10 years. A sentence which includes confinement for life
with or without eligibility for parole or more than 10 years may be
adjudged only if at least three-fourths of the members present vote for
that sentence.''
    The Analysis accompanying R.C.M. 1006(d)(4)(B) is amended by
inserting the following at the end thereof:
    ``1999 Amendment: This change resulted from the enactment of
Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Public Law 105-85, 111 Stat. 1629, 1759
(1997).''
    R.C.M. 1009(e)(3)(B)(ii) is amended to read as follows:
    ``(ii) In the case of a sentence which includes confinement for
life, with or without eligibility for parole, or more than 10 years,
more than one-fourth of the members vote to reconsider; or''
    The Analysis accompanying R.C.M. 1009(e)(3)(B)(ii) is amended by
inserting the following at the end thereof:
    ``1999 Amendment: This change resulted from the enactment of
Article 56a, UCMJ, in section 581 of the National Defense Authorization
Act for Fiscal Year 1998, Public Law 105-85, 111 Stat. 1629, 1759
(1997).''
    The second paragraph of the Discussion following R.C.M. 1107(d) is
amended to read as follows:
    ``When mitigating forfeitures, the duration and amounts of
forfeiture may be changed as long as the total amount forfeited is not
increased and neither the amount nor duration of the forfeitures
exceeds the jurisdiction of the court-martial. When mitigating
confinement or hard labor without confinement, the convening authority
should use the equivalencies at R.C.M. 1003(b)(6) and (7), as
appropriate. One form of punishment may be changed to a less severe
punishment of a different nature, as long as the changed punishment is
one that the court-martial could have adjudged. For example, a sentence
of death may be changed to confinement for life with or without
eligibility for parole and a sentence of confinement for life without
eligibility for parole may be changed to confinement for life with
eligibility for parole or to confinement for a term of years. Also a
bad-conduct discharge adjudged by a special court-martial may be
changed to confinement for 6 months (but not vice versa). A pretrial
agreement may also affect what punishments may be changed by the
convening authority.''
    The Analysis accompanying R.C.M. 1107(d) is amended by inserting
the following at the end thereof:
    ``1999 Amendment: This change to the discussion resulted from the
enactment of Article 56a, UCMJ, in section 581 of the National Defense
Authorization Act for Fiscal Year 1998, Public Law 105-85, 111 Stat.
1629, 1759 (1997).''
    M.R.E. 407 retains its wording as it existed on December 1, 1997.
    The Analysis accompanying M.R.E. 407 is amended as follows:
    ``1999 Amendment: The amendment to Federal Rule of Evidence 407,
effective December 1, 1997 does not apply. The Committee agrees with
the Federal Advisory Committee that the rule applies only to changes
made after the event that gave rise to the specification and that
measures taken prior to the event do not fall within the exclusionary
scope of Rule 407. However, the Committee believes the rule's current
language is more appropriate for a criminal rule of evidence.''
    M.R.E. 415 is deleted by amending the Rule to read as follows:
    ``Rule 415. Evidence of similar acts in civil cases concerning
sexual assault or child molestation (Does not apply).''
    The Analysis accompanying M.R.E. 415 is created as follows:
    ``1999 Amendment: The Rule was deleted because of its
inapplicability to courts-martial.''
    All ``Sample specification(s)'' subparagraphs in the Punitive
Articles (Part IV, MCM) are amended as follows:
    ``________ 19 ________'' is deleted and replaced by ``________
________''
    Paragraph 43a(4) is amended to read as follows:
    ``(4) is engaged in the perpetration or attempted perpetration of
burglary, sodomy, rape, robbery, or aggravated arson; is guilty of
murder, and shall suffer such punishment as a court-martial may direct,
except that if found guilty under clause (1) or (4), he shall suffer
death or imprisonment for life with or without eligibility for parole
as a court-martial may direct.''
    Paragraph 43e(1), is amended to read as follows:
    ``(1) Article 118(1) or (4)--death. Mandatory minimum--imprisonment
for life with eligibility for parole.''
    Paragraph 45e(3) is amended to read as follows:
    ``(3) Carnal knowledge with a child under the age of 12 years at
the time of the offense. Dishonorable discharge, forfeiture of all pay
and allowances, and confinement for life without eligibility for
parole.''
    Paragraph 51e(1) is amended to read as follows:

[[Page 25839]]

    ``(1) By force and without consent. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for life without
eligibility for parole.''
    Paragraph 51e(3) is amended to read as follows:
    ``(3) With a child under the age of 12 years at the time of the
offense. Dishonorable discharge, forfeiture of all pay and allowances,
and confinement for life without eligibility for parole.''
    Paragraph 92e is amended to read as follows:
    ``e. Maximum punishment. Dishonorable discharge, forfeiture of all
pay and allowances, and confinement for life without eligibility for
parole.''
    Paragraph 35a(2) is amended (contingent on the prior passage of
implementing legislation) to read as follows:
    ``(2) operates or is in actual physical control of any vehicle,
aircraft, or vessel while drunk or when the alcohol concentration in
the person's blood or breath is 0.08 grams or more of alcohol per 100
milliliters of blood or 0.08 grams or more of alcohol per 210 liters of
breath, as shown by chemical analysis, shall be punished as a court-
martial may direct.''
    Paragraph 35b(2)(c) is amended (contingent on the prior passage of
implementing legislation) to read as follows:
    ``(c) the alcohol concentration in the accused's blood or breath
was 0.08 grams of alcohol per 100 milliliters of blood or 0.08 grams of
alcohol per 210 liters of breath, or greater, as shown by chemical
analysis.

[Note: If injury resulted add the following element]''

    Paragraph 35f is amended (contingent on the prior passage of
implementing legislation) to read as follows:
    ``f. Sample specification.
    In that XXXX (personal jurisdiction data), did (at/on board--
location) (subject-matter jurisdiction data, if required), on or about
________ ______, (in the motor pool area) (near the Officer's Club) (at
the intersection of __________ and __________) (while in the Gulf of
Mexico) (while in flight over North America) physically control [a
vehicle, to wit: (a truck) (a passenger car) (__________)] [an
aircraft, to wit: (an AH-64 helicopter) (an F-18 fighter) (a KC-135
tanker) (__________)] [a vessel, to wit: (the aircraft carrier USS
__________) (the Coast Guard Cutter __________) (__________)], [while
drunk] [while impaired by __________] [while the alcohol concentration
in his/her (blood was 0.08 grams of alcohol per 100 milliliters of
blood or greater) (breath was 0.08 grams of alcohol per 210 liters of
breath or greater) as shown by chemical analysis] [in a (reckless)
(wanton) manner by (attempting to pass another vehicle on a sharp
curve) (by ordering that the aircraft be flown below the authorized
altitude)] and did thereby cause said (vehicle) (aircraft) (vessel) to
(strike and) (injure ________)].''
    The following paragraph is added (contingent on the prior passage
of implementing legislation) at the end of the existing Analysis to
Article 111, Appendix 23, MCM:
    ``1999a Amendment: Subparagraphs a, b, and f were amended to
implement the amendment to 10 U.S.C. 911 (Article 111, UCMJ) contained
in section XXX of the National Defense Authorization Act of Fiscal Year
199X, Public Law XXX, XXX Stat. XXX, XXX (199X). The amendment provides
a blood/alcohol blood/breath concentration of 0.08 or more as a per se
standard of illegal intoxication. The change will not, however,
preclude prosecution where no chemical test is taken or even where the
results of the chemical tests are below the statutory limits, where
other evidence of intoxication is available.''

    Dated: May 5, 1998.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 98-12337 Filed 5-8-98; 8:45 am]
BILLING CODE 5000-04-U