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

App. 21, R.C.M. 1101(B) APPENDIX 21
ient means for the command to exercise its prerogative whether to
confine an accused when the sentence of the court-martial authorizes
it. The commander may decide that, despite the sentence of
the court-martial, the accused should not be immediately confined
because of operational requirements or other reasons. A decision
not to confine is for the convenience of the command and does
not constitute deferment of confinement. See Article 57(d). An
accused dissatisfied with the decision of the commander may
request deferment in accordance with subsection (c) of this rule.
The first sentence of the second paragraph of paragraph 20 d(1)
of MCM, 1969 (Rev.) has been deleted. That sentence provided
for post-trial “arrest, restriction, or confinement to insure the
presence of an accused for impending execution of a punitive
discharge.” The authority for such restraint was based on Article
13 which authorized arrest or confinement for persons awaiting
the result of trial. See Reed v. Ohman, supra; United States v.
Teague, 3 U.S.C.M.A. 317, 12 C.M.R. 73 (1953). The Military
Justice Amendments of 1981 Pub. L. No. 97–81, § 3, 95 Stat.
1 0 8 7 ( 1 9 8 1 ) , d e l e t e d t h e l a n g u a g e c o n c e r n i n g s u c h d e t e n t i o n
pending the result of trial.
(C) Deferment of confinement. Subsection (1) is based on the
first sentence of paragraph 88 f of MCM, 1969 (Rev.). The
discussion is based on the second and third sentences of paragraph
88 f of MCM, 1969 (Rev.).
Subsection (2) is based on the first sentence in Article 57(d)
and the third sentence of paragraph 88f of MCM, 1969 (Rev.).
The requirement that the request be written is based on the third
paragraph of paragraph 88 f of MCM, 1969 (Rev.).
Subsection (3) is based on Article 57(d) and United States v.
Brownd, 6 M.J. 338 (C.M.A. 1978). See also ABA Standards,
Criminal Appeals, § 21–2.5 (1978); Trotman v. Haebel, 12 M.J.
2 7 ( C . M . A . 1 9 8 1 ) ; P e a r s o n v . C o x , s u p r a ; S t o k e s v . U n i t e d
States, 8 M.J. 819 (A.F.C.M.R. 1979), pet. denied, 9 M.J. 33
(1980). See also the first paragraph of paragraph 88 f of MCM,
1969 (Rev.). The penultimate sentence recognized the standard of
review exercised by the Courts of Criminal Appeals, the Court of
Appeals for the Armed Forces, and other reviewing authorities.
See United States v. Brownd, supra. Because the decision to deny
a request for deferment is subject to judicial review, the basis for
denial should be included in the record.
Subsection (4) is based on the fourth paragraph of paragraph 88
f of MCM, 1969 (Rev.).
Subsection (5) is based on the fifth paragraph of paragraph 88 f
of MCM, 1969 (Rev.) and on Pearson v. Cox, supra.
Subsection (6) modifies the last two paragraphs of paragraph
88 f of MCM, 1969 (Rev.) to conform to the amendment of
Article 71(c), see Pub. L. No. 98–209, § 5(e), 97 Stat. 1393
(1983). The amendment of Article 71(c) permits confinement to
be ordered executed in the convening authority’s initial action in
all cases. Article 57(d) is intended to permit deferment after this
point, however. See S. Rep. No. 1601, 90th Cong., 2d Sess.
13–14 (1968). Therefore subsection (6) specifically describes four
ways in which deferment may be terminated. The result is consistent
with paragraph 88 f of MCM, 1969 (Rev.) and with Collier v.
United States, 19 U.S.C.M.A. 511, 42 C.M.R. 113 (1970). Under
subsection (A) the convening authority must specify in the initial
action whether approved confinement is ordered executed, suspended,
or deferred. See R.C.M. 1107(f)(4)(B), (E). Under subs
e c t i o n ( B ) , d e f e r m e n t m a y b e t e r m i n a t e d a t a n y t i m e b y
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suspending the confinement. This is because suspension is more
favorable to the accused than deferment. Subsections (C) and (D)
provide other specific points at which deferment may be terminated.
Deferment may be granted for a specified period (e.g., to
permit the accused to take care of personal matters), or for an
indefinite period (e.g., completion of appellate review). Even if
confinement is deferred for an indefinite period, it may be rescinded
under subsection (D). When deferment is terminated after
the initial action, it will be either suspended or executed. See
subsection (7). The first sentence in the discussion is based on
Article 57(d). The second, third, and fourth sentences are based
on the last two paragraphs of paragraph 88 f of MCM, 1969
(Rev.).
Subsection (7) is based on the last sentence of Article 57(d)
and on Collier v. United States, supra. Note that the information
on which the rescission is based need not be new information, but
only information which was not earlier presented to the authority
granting deferment. Cf. Collier v. United States, supra. Note also
that the deferment may be rescinded and the accused confined
before the accused has an opportunity to submit matters to the
rescinding authority. See United States v. Daniels, 19 U.S.C.M.A.
518, 42 C.M.R. 120 (1970).
Subsection (7)(C) is added based on the amendment of Article
71(c). Confinement after the initial action is not “served.” It is
deferred, suspended, or executed. Therefore, after deferment is
rescinded, it is ordered executed (if not suspended). Subsection
( 7 ) ( C ) p e r m i t s t h e a c c u s e d a n o p p o r t u n i t y t o s u b m i t m a t t e r s
before the order of execution, which precludes deferment under
Article 57(d), is issued.
1991 Amendment: The Discussion accompanying this subsection
was amended to provide for the inclusion of the written basis
for any denial of deferment in the record of trial. Although written
reasons for denials are not mandatory, and their absence from
the record of trial will not per se invalidate a denial decision,
their use is strongly encouraged. See Longhofer v. Hilbert, 23
M.J. 755 (A.C.M.R. 1986).
1998 Amendment: In enacting section 1121 of the National
Defense Authorization Act for Fiscal Year 1996, Pub. L. No. 104-
106, 110 Stat. 186, 462, 464 (1996), Congress amended Article
57(a) to make forfeitures of pay and allowances and reductions in
grade effective either 14 days after being adjudged by a courtmartial,
or when the convening authority takes action in the case,
whichever was earlier in time. Until this change, any forfeiture or
reduction in grade adjudged by the court did not take effect until
convening authority action, which meant the accused often retained
the privileges of his or her rank and pay for up to several
months. The intent of the amendment of Article 57(a) was to
change this situation so that the desired punitive and rehabilitative
impact on the accused occurred more quickly.
Congress, however, desired that a deserving accused be permitted
to request a deferment of any adjudged forfeitures or reduct
i o n i n g r a d e , s o t h a t a c o n v e n i n g a u t h o r i t y , i n a p p r o p r i a t e
situations, might mitigate the effect of Article 57(a).
This change to R.C.M. 1101 is in addition to the change to
R.C.M. 1203. The latter implements Congress’ creation of Article
57(a), giving the Service Secretary concerned the authority to
defer a sentence to confinement pending review under Article
67(a)(2).
(d) Waiving forfeitures resulting from a sentence to confinement
to provide for dependent support. 1998 Amendment: This new