2008 edition - Fort Sam Houston - U.S. Army
2008 edition - Fort Sam Houston - U.S. Army 2008 edition - Fort Sam Houston - U.S. Army
forfeitures, if any, to be waived include, but are not limited to, the length of the accused’s confinement, the number and age(s) of the accused’s family memb e r s , w h e t h e r t h e a c c u s e d r e q u e s t e d w a i v e r , a n y debts owed by the accused, the ability of the accused’s family members to find employment, and t h e a v a i l a b i l i t y o f t r a n s i t i o n a l c o m p e n s a t i o n f o r abused dependents permitted under 10 U.S.C. 1059. (3) For the purposes of this Rule, a “dependent” means any person qualifying as a “dependent” under 37 U.S.C. 401.” q. The following new rule is added after R.C.M. 1102: “Rule 1102A. Post-trial hearing for person found not g u i l t y o n l y b y r e a s o n o f l a c k o f m e n t a l responsibility (a) In general. The military judge shall conduct a hearing not later than forty days following the finding that an accused is not guilty only by reason of a lack of mental responsibility. (b) Psychiatric or psychological examination and report. Prior to the hearing, the military judge or convening authority shall order a psychiatric or psyc h o l o g i c a l e x a m i n a t i o n o f t h e a c c u s e d , w i t h t h e resulting psychiatric or psychological report transmitted to the military judge for use in the post-trial hearing. (c) Post-trial hearing. (1) The accused shall be represented by defense counsel and shall have the opportunity to testify, present evidence, call witnesses on his or her behalf, and to confront and cross-examine witnesses who appear at the hearing. (2) The military judge is not bound by the rules of evidence except with respect to privileges. ( 3 ) A n a c c u s e d f o u n d n o t g u i l t y o n l y b y reason of a lack of mental responsibility of an offense involving bodily injury to another, or serious damage to the property of another, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his or her release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. With respect to any other offense, the accused has the burden of such proof by a preponderance of the evidence. (4) If, after the hearing, the military judge finds the accused has satisfied the standard specified A25-36 APPENDIX 25 in subsection (3) of this section, the military judge shall inform the general court-martial convening authority of this result and the accused shall be released. If, however, the military judge finds after the hearing that the accused has not satisfied the standard specified in subsection (3) of this section, then the military judge shall inform the general courtmartial convening authority of this result and that authority may commit the accused to the custody of the Attorney General.” r. R.C.M. 1105(b) is amended to read as follows: “(b) Matters that may be submitted. (1) The accused may submit to the convening authority any matters that may reasonably tend to affect the convening authority’s decision whether to disapprove any findings of guilt or to approve the sentence. The convening authority is only required to consider written submissions. (2) Submissions are not subject to the Military Rules of Evidence and may include: (A) Allegations of errors affecting the legality of the findings or sentence; ( B ) P o r t i o n s o r s u m m a r i e s o f t h e r e c o r d and copies of documentary evidence offered or introduced at trial; ( C ) M a t t e r s i n m i t i g a t i o n t h a t w e r e n o t available for consideration at the court-martial; and ( D ) C l e m e n c y r e c o m m e n d a t i o n s b y a n y member, the military judge, or any other person. The d e f e n s e m a y a s k a n y p e r s o n f o r s u c h a recommendation.” s. R.C.M. 1107(b)(4) is amended to read as follows: “(4) When proceedings resulted in a finding of not guilty or not guilty only by reason of lack of mental responsibility, or there was a ruling amounting to a finding of not guilty. The convening authority shall not take action disapproving a finding of not guilty, a finding of not guilty only by reason of lack of mental responsibility, or a ruling amounting to a finding of not guilty. When an accused is found not guilty only by reason of lack of mental responsibility, the convening authority, however, shall comm i t t h e a c c u s e d t o a s u i t a b l e f a c i l i t y p e n d i n g a hearing and disposition in accordance with R.C.M. 1102A.” t . T h e s u b h e a d i n g f o r R . C . M . 1 1 0 7 ( d ) ( 3 ) i s amended to read as follows: “ ( 3 ) D e f e r r i n g s e r v i c e o f a s e n t e n c e t o confinement.”
u. R.C.M. 1107(d)(3)(A) is amended to read as follows: “(A) In a case in which a court-martial sent e n c e s a n a c c u s e d r e f e r r e d t o i n s u b s e c t i o n ( B ) , below, to confinement, the convening authority may defer service of a sentence to confinement by a court-martial, without the consent of the accused, until after the accused has been permanently released to the armed forces by a state or foreign country.” v. R.C.M. 1109 is amended to read as follows: “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) Violation of conditions. Vacation shall be based on a violation of the conditions of suspension that occurs within the period of suspension. ( 2 ) V a c a t i o n p r o c e e d i n g s . V a c a t i o n p r o c e e d - ings 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. (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) Confinement of probationer pending vacation proceedings. ( 1 ) I n g e n e r a l . A p r o b a t i o n e r u n d e r a s u s - pended 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 w h o 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 ) m a y o r d e r c o n f i n e m e n t o f a p r o b a t i o n e r 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 probationer violated any conditions of the suspension. (4) Review of confinement. Unless proceedings under subsection (d)(1), (e), (f), or (g) of this rule HISTORICAL EXECUTIVE ORDERS are completed within 7 days of imposition of confinement of the probationer (not including any delays requested by probationer), a preliminary hearing shall be conducted by a neutral and detached officer appointed in accordance with regulations of the Secretary concerned. (A) Rights of accused. Before the preliminary hearing, the accused shall be notified in writing of: (i) The time, place, and purpose of the h e a r i n g , i n c l u d i n g t h e a l l e g e d v i o l a t i o n ( s ) o f t h e conditions of suspension; (ii) The right to be present at the hearing; (iii) The right to be represented at the hearing by civilian counsel provided by the probationer or, upon request, by military counsel detailed for this purpose; and (iv) The opportunity to be heard, to present witnesses who are reasonably available and other evidence, and the right to confront and cross-examine adverse witnesses unless the hearing officer determines that this would subject these witnesses to risk or harm. For purposes of this subsection, a witness is not reasonably available if the witness requires reimbursement by the United States for cost incurred in appearing, cannot appear without unduly delaying the proceedings or, if a military witness, cannot be excused from other important duties. (B) Rules of evidence. Except for Mil. R. Evid. Section V (Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of Evidence shall not apply to matters considered at the preliminary hearing under this rule. (C) Decision. The hearing officer shall determine whether there is probable cause to believe that the probationer violated the conditions of the probationer’s suspension. If the hearing officer determines that probable cause is lacking, the hearing officer shall issue a written order directing that the probationer be released from confinement. If the hearing officer determines that there is probable cause to believe that the probationer violated the conditions of suspension, the hearing officer shall set forth that decision in a written memorandum, detailing therein the evidence relied upon and reasons for making the decision. The hearing officer shall forward the original memorandum or release order to the probatione r ’ s c o m m a n d e r a n d f o r w a r d a c o p y t o t h e A25-37
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u. R.C.M. 1107(d)(3)(A) is amended to read as follows:<br />
“(A) In a case in which a court-martial sent<br />
e n c e s a n a c c u s e d r e f e r r e d t o i n s u b s e c t i o n ( B ) ,<br />
below, to confinement, the convening authority may<br />
defer service of a sentence to confinement by a<br />
court-martial, without the consent of the accused,<br />
until after the accused has been permanently released<br />
to the armed forces by a state or foreign<br />
country.”<br />
v. R.C.M. 1109 is amended to read as follows:<br />
“Rule 1109. Vacation of suspension of sentence<br />
(a) In general. Suspension of execution of the<br />
sentence of a court-martial may be vacated for violation<br />
of the conditions of the suspension as provided<br />
in this rule.<br />
(b) Timeliness.<br />
(1) Violation of conditions. Vacation shall be<br />
based on a violation of the conditions of suspension<br />
that occurs within the period of suspension.<br />
( 2 ) V a c a t i o n p r o c e e d i n g s . V a c a t i o n p r o c e e d -<br />
ings under this rule shall be completed within a<br />
reasonable time.<br />
(3) Order vacating the suspension. The order<br />
vacating the suspension shall be issued before the<br />
expiration of the period of suspension.<br />
(4) Interruptions to the period of suspension.<br />
Unauthorized absence of the probationer or the commencement<br />
of proceedings under this rule to vacate<br />
suspension interrupts the running of the period of<br />
suspension.<br />
(c) Confinement of probationer pending vacation<br />
proceedings.<br />
( 1 ) I n g e n e r a l . A p r o b a t i o n e r u n d e r a s u s -<br />
pended sentence to confinement may be confined<br />
pending action under subsection (d)(2) of this rule,<br />
in accordance with the procedures in this subsection.<br />
(2) Who may order confinement. Any person<br />
w h o 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 .<br />
3 0 4 ( b ) m a y o r d e r c o n f i n e m e n t o f a p r o b a t i o n e r<br />
under a suspended sentence to confinement.<br />
(3) Basis for confinement. A probationer under<br />
a suspended sentence to confinement may be ordered<br />
into confinement upon probable cause to believe<br />
the probationer violated any conditions of the<br />
suspension.<br />
(4) Review of confinement. Unless proceedings<br />
under subsection (d)(1), (e), (f), or (g) of this rule<br />
HISTORICAL EXECUTIVE ORDERS<br />
are completed within 7 days of imposition of confinement<br />
of the probationer (not including any delays<br />
requested by probationer), a preliminary hearing<br />
shall be conducted by a neutral and detached officer<br />
appointed in accordance with regulations of the Secretary<br />
concerned.<br />
(A) Rights of accused. Before the preliminary<br />
hearing, the accused shall be notified in writing<br />
of:<br />
(i) The time, place, and purpose of the<br />
h e a r i n g , i n c l u d i n g t h e a l l e g e d v i o l a t i o n ( s ) o f t h e<br />
conditions of suspension;<br />
(ii) The right to be present at the hearing;<br />
(iii) The right to be represented at the<br />
hearing by civilian counsel provided by the probationer<br />
or, upon request, by military counsel detailed<br />
for this purpose; and<br />
(iv) The opportunity to be heard, to present<br />
witnesses who are reasonably available and other<br />
evidence, and the right to confront and cross-examine<br />
adverse witnesses unless the hearing officer determines<br />
that this would subject these witnesses to<br />
risk or harm. For purposes of this subsection, a witness<br />
is not reasonably available if the witness requires<br />
reimbursement by the United States for cost<br />
incurred in appearing, cannot appear without unduly<br />
delaying the proceedings or, if a military witness,<br />
cannot be excused from other important duties.<br />
(B) Rules of evidence. Except for Mil. R.<br />
Evid. Section V (Privileges) and Mil. R. Evid. 302<br />
and 305, the Military Rules of Evidence shall not<br />
apply to matters considered at the preliminary hearing<br />
under this rule.<br />
(C) Decision. The hearing officer shall determine<br />
whether there is probable cause to believe that<br />
the probationer violated the conditions of the probationer’s<br />
suspension. If the hearing officer determines<br />
that probable cause is lacking, the hearing officer<br />
shall issue a written order directing that the probationer<br />
be released from confinement. If the hearing<br />
officer determines that there is probable cause to<br />
believe that the probationer violated the conditions<br />
of suspension, the hearing officer shall set forth that<br />
decision in a written memorandum, detailing therein<br />
the evidence relied upon and reasons for making the<br />
decision. The hearing officer shall forward the original<br />
memorandum or release order to the probatione<br />
r ’ s c o m m a n d e r a n d f o r w a r d a c o p y t o t h e<br />
A25-37