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After the Supreme Court has taken action, other
than denial of a petition for a writ of certiorari, in any
case, JAG will, unless the case is returned to the COMA
for further processing, send the case to the President or
SECNAV, or instruct the CA to take action according to
the decision.
VACATION OF SUSPENDED SENTENCE
An act of misconduct, to serve as the basis for
vacation of the suspension of a sentence, must occur
within the period of suspension. The order vacating the
suspension is issued before the expiration of the period
of suspension. The running of the period of suspension
is interrupted by the unauthorized absence of the
probationer or by commencement of proceedings to
vacate the suspension.
R.C.M. 1109 indicates that
vacation of a suspended sentence may be based on a
violation of the UCMJ. Furthermore, when all or part
of the sentence has been suspended as a result of a
pretrial agreement, the suspension may be vacated for
violation of any of the lawful requirements of the
probation, including the duty to obey the local civilian
law (as well as military law), to refrain from associating
with known drug users or dealers, and to consent to
searches of his or her person, quarters, and vehicle at
any time.
AUTHORITY, PROCEDURE, AND ACTION
BY THE OFFICER HAVING SPCM
JURISDICTION
Procedural rules for hearing requirements depend
on the type of suspended sentence being vacated.
. Sentence of any GCM or an SPCM including an
approved BCD.
If the suspended sentence was
adjudged by a GCM, or by an SPCM that included an
approved BCD, the following rules apply. After giving
notice to the accused, the officer having SPCM
jurisdiction over the probationer personally holds a
hearing to inquire into the alleged violation of probation.
The procedure for the hearing is similar to that
prescribed for a formal pretrial investigation (Article 32,
UCMJ), and the accused has the right to detailed and/or
civilian counsel at the hearing. The record of the hearing
and the recommendations of the SPCM authority are
sent to the OEGCMJ who may vacate the suspension.
. Sentence of an SPCM not including a BCD or
sentence of an SCM. If the suspended sentence was
adjudged by an SPCM and does not include a BCD, or
if the sentence was adjudged by an SCM, the following
rules apply. The officer having SPCM jurisdiction over
the probationer personally holds a hearing to inquire into
the alleged violation of probation. The procedure for
the hearing is similar to that prescribed for a formal
pretrial investigation.
The probationer must be
accorded the same right to counsel at the hearing that he
or she was entitled to at the court-martial that imposed
the sentence, except there is no right to request
individual military counsel. Counsel does not need to
be the same counsel who originally represented the
probationer.
If the officer having SPCM jurisdiction
over the probationer decides to vacate all or a portion of
the suspended sentence, he or she records the evidence
that he or she relied on and the reasons for vacating the
suspension in his or her action.
The officer who actually vacates the suspension
executes a written statement including a summary of the
evidence he or she is relying on and his or her reasons
for vacating the suspension.
If, based on an act of misconduct in violation of the
terms of suspension, the accuscd is confined before the
actual vacation of the suspended sentence, a preliminary
hearing must be held before a neutral and detached
officer to determine whether there is probable cause to
believe the accused has violated the terms of his or her
suspension. JAGMAN 0150 indicates that this officer
should be one who is appointed to review pretrial
confinement under R.C.M. 305.
RECORD OF PROCEEDINGS TO VACATE
SUSPENDED SENTENCE
The officer who conducts the vacation proceeding
makes a summarized record of the proceeding, using
DD Form 455, Report of Proceedings to Vacate
Suspension of General Court-Martial Sentence or of a
Special Court-Martial Sentence Including a
Bad-Conduct Discharge, and sends the record and his or
her written recommendation about vacation to the
OEGCMJ over the probationer.
ACTION BY THE OFFICER EXERCISING
GCM JURISDICTION
Based on the record produced by and the
recommendation of the officer exercising special
court-martial jurisdiction over the probationer, the
OEGCMJ over the probationer decides whether the
probationer violated a condition of suspension and, if
so, whether to vacate the suspended sentence. If the
OEGCMJ decides to vacate, he or she prepares a written
statement of evidence relied on and the reasons for
vacating.
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