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

President, remission or suspension authority is otherwise left entirely
to departmental regulations.
The last sentence was added to clarify the authority of the
officials named in section (b) to grant clemency or mitigating
action on those parts of the sentence that have been approved and
ordered executed but that have not actually been carried out. In
the case of forfeiture the “carrying out ” involves the actual
collection after pay accrues on a daily basis. Thus, even when a
sentence to total forfeiture has been approved and ordered executed,
the named officials can still grant clemency or mitigating
action. Although a prisoner may be administratively placed in a
nonpay status when total forfeiture has been ordered executed, the
total forfeiture is collected as it would otherwise accrue during
the period that the prisoner is in a nonpay status. If clemency
were granted, the prisoner could be returned administratively to a
pay status, pay would accrue, and any resulting partial forfeiture
would be collected as it accrues. Likewise, that portion of confinement
which has not been served is “unexecuted”.
2004 Amendment: Subsection (b) was amended to conform to
the limitations on Secretarial authority to grant clemency for
military prisoners serving a sentence of confinement for life without
eligibility for parole contained in section 553 of the Floyd D.
Spence National Defense Authorization Act for Fiscal Year 2001,
Pub.L.No. 106-398, 114 Stat. 1654, Oct 30, 2000.
Rule 1109 Vacation of suspension of sentence
(a) In general. This subsection is based on Article 72 and paragraph
97 b of MCM, 1969 (Rev.).
(b) Timeliness. This subsection is based on the fourth paragraph
of paragraph 97 b of MCM, 1969 (Rev.); United States v. Pells ,
5 M.J. 380 (C.M.A. 1978); United States v. Rozycki, 3 M.J. 127,
129 (C.M.A. 1977).
(c) Confinement of probationer pending vacation proceedings.
This subsection is new and based onGagnon v. Scarpelli, 411
U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471 (1972);
United States v. Bingham, 3 M.J. 119 (C.M.A. 1977). It is consistent
with Fed.R.Crim. P. 32.1(a)(1). Note that if the actual hearing
on vacation under subsection (d)(1) or (e)(3) and (4) is completed
within the specified time period, a separate probable cause hearing
need not be held.
(d) Violation of suspended general court-martial sentence or of a
suspended court-martial sentence including a bad-conduct discharge.
This subsection is based on Article 72(a) and (b); the first
two paragraphs of paragraph 97 b of MCM, 1969 (Rev.); United
States v. Bingham, supra; United States v. Rozycki, supra. See
also Fed.R.Crim. P. 32.1(a)(2).
(e) Vacation of suspended special court-martial sentence not including
a bad-conduct discharge or of a suspended summary
court-martial sentence. This subsection is based on Article 72(c);
United States v. Bingham, supra; United States v. Rozycki, supra.
Fed.R.Crim. P. 32.1(b) is not adopted. That rule requires a
hearing before conditions of probation may be modified. Modification
is seldom used in the military. Because a probationer may
be transferred or change duty assignments as a normal incident of
military life, a commander should have the flexibility to make
appropriate changes in conditions of probation without having to
conduct a hearing. This is not intended to permit conditions of
probation to be made substantially more severe without due proc-
ANALYSIS
App. 21, R.C.M. 1110(b)
e s s . A t a m i n i m u m , t h e p r o b a t i o n e r m u s t b e n o t i f i e d o f t h e
changes.
1986 Amendment: Several amendments were made to R.C.M.
1109 to specify that the notice to the probationer concerning the
vacation proceedings must be in writing, and to specify that the
recommendations concerning vacation of the suspension provided
by the hearing officer must also be in writing. Black v. Romano,
471 U.S. 606, 105 S.Ct. 2254 (1985). Several references to “conditions
of probation” were changed to “conditions of suspension”
for consistency of terminology.
1998 Amendment: The Rule is amended to clarify that “the
suspension of a special court-martial sentence which as approved
includes a bad-conduct discharge,” permits the officer exercising
special court-martial jurisdiction to vacate any suspended punishments
other than an approved suspended bad-conduct discharge.
2002 Amendment: Subsection (e) was amended to implement
the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained
in section 577 of the National Defense Authorization Act
for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)
i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l
courts-martial.
(f) Vacation of a suspended special court-martial sentence that
includes a bad-conduct discharge or confinement for one year.
Subsection (f) was amended to implement the amendment to 10
U.S.C. Sec. 819 (Article 19, UCMJ) contained in section 577 of
the National Defense Authorization Act for Fiscal Year 2000, P.
L. No. 106-65, 113 Stat. 512 (1999) increasing the jurisdictional
maximum punishment at special courts-martial. This amendment
reflects the decision to treat an approved sentence of confinement
for one year, regardless of whether any period of confinement is
suspended, as a serious offense, in the same manner as a suspended
approved bad-conduct discharge at special courts-martial
under Article 72, UCMJ, and R.C.M. 1109.
Rule 1110 Waiver or withdrawal of appellate
review
Introduction. This rule is new and is based on Article 61, as
amended, see Military Justice Act of 1983, Pub.L. No. 98–209, §
5(b)(1), 97 Stat. 1393 (1983). The rule provides procedures to
ensure that a waiver or withdrawal of appellate review is a voluntary
and informed choice. See also Appendices 19 and 20 for
forms. See S. Rep. No. 53, 98th Cong., 1st Sess. 22-23 (1983).
(a) In general. This subsection is based on Article 61. The discussion
is also based on Articles 64 and 69(b).
2002 Amendment: Subsection (a) was amended to implement
the amendment to 10 U.S.C. Sec. 819 (Article 19, UCMJ) contained
in section 577 of the National Defense Authorization Act
for Fiscal Year 2000, P. L. No. 106-65, 113 Stat. 512 (1999)
i n c r e a s i n g t h e j u r i s d i c t i o n a l m a x i m u m p u n i s h m e n t a t s p e c i a l
courts-martial.
(b) Right to counsel. This subsection is based on Article 61(a).
Although Article 61(b) does not expressly require the signature of
defense counsel as does Article 61(a), the same requirements
should apply. Preferably counsel who represented the accused at
trial will advise the accused concerning waiver, the appellate
c o u n s e l ( i f o n e h a s b e e n a p p o i n t e d ) w i l l d o s o c o n c e r n i n g
withdrawal. This subsection reflects this preference. It also recognizes,
however, that this may not always be practicable; for exam-
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