2008 edition - Fort Sam Houston - U.S. Army

R.C.M. 1108(b)
Discussion
See R.C.M. 1113 (execution of sentences); R.C.M. 1201 (action
by the Judge Advocate General); R.C.M. 1206 (powers and responsibilities
of the Secretary).
The military judge and members of courts-martial may not
suspend sentences.
( c ) C o n d i t i o n s o f s u s p e n s i o n . T h e a u t h o r i t y w h o
suspends the execution of the sentence of a courtmartial
shall:
( 1 ) S p e c i f y i n w r i t i n g t h e c o n d i t i o n s o f t h e
suspension;
(2) Cause a copy of the conditions of the suspension
to be served on the probationer; and
(3) Cause a receipt to be secured from the probationer
for service of the conditions of the suspension.
Unless otherwise stated, an action suspending a
sentence includes as a condition that the probationer
not violate any punitive article of the code.
(d) Limitations on suspension. Suspension shall be
for a stated period or until the occurrence of an
anticipated future event. The period shall not be
u n r e a s o n a b l y l o n g . T h e S e c r e t a r y c o n c e r n e d m a y
further limit by regulations the period for which the
execution of a sentence may be suspended. The convening
authority shall provide in the action that unless
the suspension is sooner vacated, the expiration
o f t h e p e r i o d o f s u s p e n s i o n s h a l l r e m i t t h e s u s -
pended portion of the sentence. An appropriate authority
may, before the expiration of the period of
suspension, remit any part of the sentence, including
a part which has been suspended; reduce the period
of suspension; or, subject to R.C.M. 1109, vacate the
suspension in whole or in part.
(e) Termination of suspension by remission. Expiration
of the period provided in the action suspending
a sentence or part of a sentence shall remit the
suspended portion unless the suspension is sooner
vacated. Death or separation which terminates status
as a person subject to the code shall result in remission
of the suspended portion of the sentence.
Discussion
See R.C.M. 1109(b)(4) concerning interruption of the period of
suspension.
II-156
Rule 1109. Vacation of suspension of
sentence
(a) In general. Suspension of execution of the sentence
of a court-martial may be vacated for violation
of the conditions of the suspension as provided in
this rule.
(b) Timeliness.
( 1 ) V i o l a t i o n o f c o n d i t i o n s . V a c a t i o n s h a l l b e
based on a violation of the conditions of suspension
which occurs within the period of suspension.
(2) Vacation proceedings. Vacation proceedings
under this rule shall be completed within a reasonable
time.
(3) Order vacating the suspension. The order vacating
the suspension shall be issued before the expiration
of the period of suspension.
Discussion
The order vacating a suspended sentence must be issued before
the end of suspension even though, in certain cases, it may not be
effective as an order of execution of the suspended sentence until
the completion of appellate review or action by the President or
the Secretary concerned. See R.C.M. 1113 concerning execution
of sentences.
(4) Interruptions to the period of suspension. Unauthorized
absence of the probationer or the commencement
of proceedings under this rule to vacate
suspension interrupts the running of the period of
suspension.
( c ) C o n f i n e m e n t o f p r o b a t i o n e r p e n d i n g v a c a t i o n
proceedings.
(1) In general. A probationer under a suspended
sentence to confinement may be confined pending
action under subsection (d)(2) of this rule, in accordance
with the procedures in this subsection.
(2) Who may order confinement. Any person who
m a y o r d e r p r e t r i a l r e s t r a i n t u n d e r R . C . M . 3 0 4 ( b )
may order confinement of a probationer under a
suspended sentence to confinement.
(3) Basis for confinement. A probationer under a
suspended sentence to confinement may be ordered
into confinement upon probable cause to believe the
p r o b a t i o n e r v i o l a t e d a n y c o n d i t i o n s o f t h e
suspension.
Discussion
A determination that confinement is necessary to ensure the pres-