Command influence

(a) General prohibitions. (1) Convening authorities and commanders. (A) No c o u r t - m a r t i a l convening authority, n o r an y o th er co m m a n d in g o f f ic er , may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings. (B) No court-martial convening authority, nor any other commanding officer, may deter or attempt to deter a potential witness from participating in the investigatory process or testifying at a court-martial. The denial of a request to travel at government expense or refusal to make a witness available shall not by itself constitute unlawful command influence. (2) All persons subject to the UCMJ. No person subject to the UCMJ may attempt to coerce or, by any unauthorized means, attemp t to influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case or the action of any p r e l i m i n a r y h e a r i n g o f f i c e r o r convening, approving, or reviewing such p r e l i m i n a r y h e a r i n g o f f i c e r ’ s o r authority’s acts concerning the following: any decision to place a Servicemember into pretrial confinement; disposition decisions; rulings on pre-referral matters; findings at a preliminary hearing; convening a court-martial; decisions concerning plea agreements; selecting members; decisions concerning witness requests; taking action on any clemency or deferment request; or any appellate or post-trial review of a case. authority with respect to (3) Scope. (A) Instructions. Paragraphs (a)(1) and (2) of this rule do not prohibit general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing personnel of a command in the substantive and procedural aspects of courts-martial. (B) Court-martial statements. Paragraphs (a)(1) and (2) of this rule do not prohibit statements and instructions given in open session by the military judge or counsel. (C) Professional supervision. Paragraphs (a)(1) and (2) of this rule do not prohibit action by the Judge Advocate General concerned under R.C.M. 109. (D) Offense. Paragraphs (a)(1) and (2) of this rule do not prohibit appropriate action against a person for an offense committed while detailed as a military judge, counsel, or member of a court- martial, or while serving as individual counsel. (E) General statements regarding criminal activity or offenses. Paragraphs (a)(1) and (2) of this rule do not prohibit statements regarding criminal activity or a particular criminal offense that do not advocate a particular disposition, do not advocate a particular court-martial finding or sentence, and do not relate to a particular accused. (b) Communication subordinates. between superiors and (1) A superior convening authority or officer may generally discuss matters to consider regarding the disposition of alleged violations of the UCMJ with a subordinate convening authority or officer, and a subordinate convening authority or officer may seek advice from a superior convening authority or officer regarding the disposition of an alleged offense under the UCMJ. (2) No superior convening authority or officer may direct a subordinate convening authority or officer to make a particular disposition in a specific case or otherwise substitute the discretion of such authority or such officer for that of the subordinate convening authority or officer. (c) Prohibitions concerning evaluations. (1) Evaluation of member or defense counsel. In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the armed forces, or in determining whether a member of the armed forces should be retained on active duty, no person subject to the UCMJ may: (A) Consider or evaluate the performance of duty of any such person as a member of a court-martial; or (B) Give a less favorable rating or evaluation of any defense counsel or special victims’ counsel the zeal with which such counsel because of represented any client. As used in this rule, “special victims’ counsel” are judge advocates and civilian counsel, who, in accordance with 10 U.S.C. § 1044e, are designated as Special Victims’ Counsel. (2) Evaluation of military judge. (A) General courts-martial. Unless the general court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of the convening authority’s staff may prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge detailed to a general court-martial t h a t relates to the performance of duty as a military judge. (B) Special courts-martial. The convening authority may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to a special court-martial that relates to the performance of duty as a military judge. When the military judge is normally rated or the military judge’s report is reviewed by the convening authority, the manner in which such military judge will be rated or evaluated upon the performance of duty as a military judge may be as prescribed in regulations of the Secretary concerned, which shall ensure the absence of any command influence in the rating or evaluation of the military judge’s judicial performance. (d) Command discretion. (1) A superior convening authority or commanding officer may withhold the authority of a subordinate convening authority or officer to dispose of offenses in individual cases, types of cases, or generally. (2) Except as provided in paragraph (d)(1) of this rule or as otherwise authorized under the UCMJ, a superior convening authority or commanding officer may not limit the discretion of a subordinate convening authority or officer to act with respect to a case for which the subordinate convening authority or officer has the authority to dispose of the offenses.