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Page Title: Mitigation
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property  lost  by  virtue  of  executed  portions  of  punish- ment are not restored, nor is the punishment voided as in the case when it is set aside. The expiration of the current enlistment or term of service of the service member automatically remits any unexecuted punish- ment imposed under Article 15. Mitigation This action also relates to the unexecuted portions of the punishment. Mitigation of punishment is a reduc- tion in the quantity or quality of the punishment im- posed. In no event may the punishment imposed be increased to be more severe. QUALITY.—  Without increasing quantity, the fol- lowing reductions by mitigation may be taken: Arrest in quarters to restriction Confinement on bread and water or diminished rations  to  correctional  custody Correctional custody or confinement on bread and water or diminished rations to extra duties or restriction or both (to run concurrently) Extra duties to restriction QUANITY.—  The  length  of  deprivation  of  lib- erty or the amount of forfeiture or other money punish- ment also can be reduced and mitigated without any change in the quality (type) of punishment. REDUCTION IN GRADE.— Reduction in grade, though executed, may be mitigated to forfeiture of pay. The amount of forfeiture can be no greater than that which could have been imposed by the mitigating com- mander had he or she initially imposed punishment. This  type  of  mitigation  may  be  done  only  within  4 months  after  the  date  of  execution. As an example, in mitigating NJP, neither the quan- tity nor the quality of the punishment may be increased. Therefore, it would be impermissible to mitigate 3 days’ confinement  on  bread  and  water  to  4  days’  restriction because  this  would  increase  the  quantity  of  the  punish- ment. It would also be impermissible to mitigate 60 days’ restriction to 1 day of confinement on bread and water because this would increase the quality of the punishment. Suspension This is an action to withhold the execution of the imposed  punishment  for  a  stated  period  pending  good behavior on the part of the accused. Only later miscon- duct during the probationary period will cause the sus- pension to be vacated (revoked) and this misconduct must be an offense under the UCMJ. This action may be taken with respect to unexecuted portions of the punishment or, in the case of a reduction in rank or a forfeiture,  such  action  may  be  taken  even  though  the punishment  has  been  executed,  subject  to  the  following rules: . An executed punishment of reduction or forfei- ture may be suspended only within 4 months after the date of its execution. . At the end of the probationary period, the sus- pended portions of the punishment are remitted auto- matically  unless  sooner  vacated. . There is no known authority for the imposition of  conditions  of  probation  that  could  not  ordinarily  be made the subject of a lawful order. . Vacation of the suspended punishment may be effected by any CO or OIC over the person punished who has the authority to impose the kind and amount of punishment  to  be  vacated. a.  Vacation  of  the  suspended  punishment  may only  be  based  upon  an  offense  under  the  UCMJ committed during the probationary period. b.  Before  a  suspension  may  be  vacated,  the service  member  should  be  told  that  vacation  is  being considered   and   informed   of   the   reasons   for   the contemplated action and his or her right to respond. A formal hearing is not required unless the punishment suspended is of the kind stated in Article 15(e)(1)-(7), UCMJ,  in  which  case  the  accused  should,  unless impractical,  be  given  an  opportunity  to  appear  before the  officer  contemplating  vacation  to  submit  any matters in defense, extenuation, or mitigation of the offense on which the vacation action is to be based. c. Vacation of a suspension is not punishment for  the  misconduct  that  triggers  the  vacation. Accordingly, misconduct may be punished and also serve as the reason for vacating a previously suspended punishment  imposed  at  mast.  Vacation  proceedings  are often handled at NJP. First, the suspended punishment is vacated; then the CO can impose NJP for the new offense. If NJP is imposed for the new offense, the accused must be afforded all of his or her hearing rights. d.  The  order  vacating  a  suspension  must  be issued  within  10  working  days  of  the  start  of  the vacation proceedings and the decision to vacate the suspended punishment is not appealable as an NJP appeal. 5-28

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