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

the first paragraph of paragraph 98 of MCM, 1969 (Rev.). See
also Articles 60, 61, 64, 65, 66, and 67.
1991 Amendment: The discussion was amended by adding a
reference to subsection (5) of R.C.M. 1113(d). This brings the
d i s c u s s i o n i n t o a c c o r d w i t h t h e g e n e r a l r u l e o f R . C . M .
1113(d)(2)(A) that any court-martial sentence to confinement begins
to run from the date it is adjudged.
(b) Punishments which the convening authority may order executed
in the initial action. This subsection is based on Article
71(d). See also the first paragraph of paragraph 88 d(1) of MCM,
1969 (Rev.). Note that under the amendment of Article 71 (see
Pub. L. No. 98-209, § 5(e), 97 Stat. 1393 (1983)), the convening
authority may order parts of a sentence executed in the initial
action, even if the sentence includes other parts ( e.g., a punitive
discharge) which cannot be ordered executed until the conviction
is final.
(c) Punishments which the convening authority may not order
executed in the initial action. This subsection is based on the
sources noted below. The structure has been revised to provide
clearer guidance as to who may order the various types of punishments
executed. Applicable service regulations should be consulted,
because the Secretary concerned may supplement this rule,
and may under Article 74(a) designate certain officials who may
remit unexecuted portions of sentences. See also R.C.M. 1206.
S u b s e c t i o n ( 1 ) i s b a s e d o n A r t i c l e 7 1 ( c ) . S e e a l s o A r t i c l e
64(c)(3). The last two sentences of this subsection are based on
S.Rep.No. 53, 98th Cong., 1st Sess. 25 (1983).
1991 Amendment: Language was added to the second sentence
of the paragraph following subsection (c)(1)(B) to specify that a
s t a f f j u d g e a d v o c a t e ’ s a d v i c e i s r e q u i r e d o n l y w h e n t h e s e r -
vicemember is not on appellate leave on the date of final judgment
and more than six months have elapsed since the convening
authority’s approval of the sentence. The third sentence was modified
to reflect this change. The subsection was not intended to
grant an additional clemency entitlement to a servicemember.
Significant duty performance since the initial approval is relevant
to the convening authority’s determination of the best interest of
the service. Since a member on appellate leave is performing no
military duty, an additional staff judge advocate’s advice would
serve no useful purpose.
Subsection (2) is based on Article 71(b).
Subsection (3) is based on Articles 66(b), 67(b)(1), and 71(a).
(d) Other considerations concerning execution of sentences. Subsection
(1) is based on the third paragraph of paragraph 126 a of
MCM, 1969 (Rev.). The second paragraph of paragraph 88 d(1)
of MCM, 1969 (Rev.) is deleted as unnecessary.
1986 Amendment: Subsection (d)(1)(B) was added to incorporate
the holding in Ford v. Wainwright, 477 U.S. 399, 106 S.Ct.
2595 (1986). The plurality in Ford held that the Constitution
precludes executing a person who lacks the mental capacity to
understand either that he will be executed or why he will be
executed. See also United States v. Washington, 6 U.S.C.M.A.
114, 119, 19 C.M.R. 240, 245 (1955). The Court also criticized
t h e p r o c e d u r e s s p e c i f i e d b y F l o r i d a l a w u s e d t o d e t e r m i n e
whether a person lacks such capacity because the accused was
provided no opportunity to submit matters on the issue of capacity,
but the case is unclear as to what procedures would suffice.
Because of this ambiguity, the drafters elected to provide for a
judicial hearing, with representation for the government and the
ANALYSIS
App. 21, R.C.M. 1113(d)
accused. This is more than adequate to meet the due process
requirements of Ford v. Wainwright.
The word “substantial” is used in the third sentence to indicate
that considerably more credible evidence than merely an allegation
of lack of capacity is required before further inquiry need be
made. Ford v. Wainwright, 447 U.S. 399, 426, 106 S.Ct. 2595,
2610 (1986) (Powell, J., concurring). The burden of showing the
accused’s lack of capacity is on the defense when the issue is
before the court for adjudication. This is consistent with amendments
to R.C.M. 909(c)(2) and R.C.M. 916(k)(3)(A) which shifted
to the defense the burden of showing lack of mental capacity
to stand trial and lack of mental responsibility. The rule also
establishes a presumption of capacity and allows limits on the
scope of the sanity board’s examination.
Subsection (2)(A) is based on Articles 14 and 57(b) and paragraph
97 c of MCM, 1969 (Rev.). See also paragraph 126 j of
MCM, 1969 (Rev.). Subsection (2)(B) is based on Article 58(b)
and the third paragraph of paragraph 126 j of MCM, 1969 (Rev.).
Subsection (2)(C) is based on Article 58(a) and paragraph 93 of
MCM, 1969 (Rev.). Note that if the Secretary concerned so prescribes,
the convening authority need not designate the place of
confinement. Because the place of confinement is determined by
regulations in some services, the convening authority’s designation
is a pro forma matter in such cases.The penultimate sentence
in subsection (2)(C) is based on Article 12 and on paragraph 125
of MCM, 1969 (Rev.). The last sentence in subsection (2)(C) is
based on 10 U.S.C. § 951. See the second paragraph of paragraph
18 b(3) of MCM, 1969 (Rev.).
1995 Amendment: Subsection (d)(2)(A)(iii) is new. It is based
on the recently enacted Article 57(e). National Defense Authorization
Act for Fiscal Year 1993, Pub. L. No. 102-484, 106 Stat.
2 3 1 5 , 2 5 0 5 ( 1 9 9 2 ) . S e e g e n e r a l l y I n t e r s t a t e A g r e e m e n t o n
Detainers Act, 18 U.S.C. App. III. It permits a military sentence
to be served consecutively, rather than concurrently, with a civilian
or foreign sentence.The prior subsections (d)(2)(A)(iii) - (iv)
are redesignated (d)(2)(A)(iv) - (v), respectively.
Subsection (3) is based on paragraph 126 h(3) of MCM, 1969
(Rev.), but it is modified to avoid constitutional problems. See
Bearden v. Georgia, 461 U.S. 660 (1983); Tate v. Short, 401 U.S.
395 (1971); Williams v. Illinois, 399 U.S. 235 (1970). See also
United States v. Slubowski, 5 M.J. 882 (N.C.M.R. 1978), aff’d, 7
M . J . 4 6 1 ( 1 9 7 9 ) ; U n i t e d S t a t e s v . V i n y a r d , 3 M . J . 5 5 1
(A.C.M.R.), pet. denied, 3 M.J. 207 (1977); United States v.
Donaldson, 2 M.J. 605 (N.C.M.R. 1977), aff’d , 5 M.J. 212
(1978); United States v. Martinez, 2 M.J. 1123 (C.G. C.M.R.
1 9 7 6 ) ; U n i t e d S t a t e s v . K e h r l i , 4 4 C . M . R . 5 8 2 ( A . F . C . M . R .
1971), pet. denied, 44 C.M.R. 940 (1972); ABA Standards, Sentencing
Alternatives and Procedures § 18–2.7 (1979).
Subsection (4) is new. See Article 57(c).
Subsection (5) is based on the last paragraph of paragraph 125
MCM, 1969 (Rev.).
Paragraph 88 d(3) of MCM, 1969 (Rev.) is deleted based on
the amendment of Articles 57(a) and 71(c)(2) which eliminated
the necessity for application or deferment of forfeitures. Forfeitures
always may be ordered executed in the initial action.
1995 Amendment: Subsection (5) was deleted when the punishment
of confinement on bread and water or diminished rations
[R.C.M. 1113(d)(9)], as a punishment imposable by a court-martial,
was deleted. Subsection (6) was redesignated (5).
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