The power of the reviewing authority to order the execution of a sentence includes the power to mitigate or remit the whole or any part of the sentence (A. W. 51); but in any case the punishment imposed by the sentence as mitigated or remitted must be included in the sentence adjudged by the court and must be one that the court might have imposed in the case. For example, a sentence as mitigated may not provide for confinement in excess of one year without dishonorable or bad conduct discharge. To mitigate a punishment is to reduce it in quantity or quality, the general nature of the punishment remaining the same. A sentence can not be commuted (changed to punishment of a different nature) except by a confirming authority. A sentence adjudging dishonorable discharge may be mitigated to a bad conduct discharge, but a bad conduct discharge can not be mitigated. Forfeiture of pay may be mitigated to detention of pay for a like period or less. However, a fine may not be mitigated to a forfeiture, nor a forfeiture to a fine, as this would constitute commutation. Confinement at hard labor may be mitigated to hard labor without confinement for a like period or less. A sentence of dishonorable or bad conduct discharge, forfeiture of all pay and allowances to become due, and confinement at hard labor for a definite period may be mitigated to a lesser punishment; for example, to confinement at hard labor for a period, within applicable limits, not exceeding that adjudged and forfeiture of not more than twothirds of the soldier's pay per month for a period not exceeding the period of confinement adjudged. The action of a reviewing authority in approving a sentence and simultaneously remitting a part thereof is legally equivalent to approving only the sentence as reduced. The authority competent to order the execution of a sentence of a court-martial may, at the time of approval or confirmation of the sentence, suspend the execution in whole or in part of any such sentence as does not extend to death and may restore the person under sentence to duty during the suspension. See Article 51. The authority competent to order the execution of a sentence should suspend the whole of the sentence when it appears to him that such action will promote discipline. 819355-49-21 No order suspending execution of a dishonorable or bad conduct discharge shall be vacated unless and until any confirming action required by Article 48 and the appellate review of the sentence required by Article 50 have been completed (A. W. 51). As to penitentiary confinement see 90a. Forms of action and related matters. The reviewing authority will state at the end of the record of trial in each case his decisions and orders. This equally applies in summary court cases, including when the reviewing authority is the officer that tried the case as summary court. Forms of action are in Appendix 10. See, also, 82b. Any reprimand or admonition provided for by the sentence of a general or special courtmartial as ordered executed will be included in the action. Confirming action does not normally set forth a reprimand or admonition adjudged, but it is included in the promulgating order. The action will be signed by the reviewing authority in his own hand. Below his signature will appear his rank and the fact that he is the commanding officer or other fact authorizing him to take the action. Any supplementary or corrective action taken by the reviewing authority pursuant to a holding on appellate review under Article 50 must also be signed by the reviewing authority in his own hand. Any action taken may be recalled and modified before it has been published or the party to be affected has been officially notified thereof. In a proper case the action may include an order directing the release of an accused from arrest or confinement. When in his final action on a case the reviewing authority disapproves a finding of desertion or a sentence based wholly or in part on such a finding, he should indicate in his action the reasons therefor. Such reasons assist the disbursing officer in making certain decisions relative to forfeitures and stoppages. In any case the reasons for a disapproval may be stated. If the sentence of a general courtmartial as ordered executed provides for confinement, the place of confinement will be designated. In cases involving imprisonment for life, dismissal and confinement of officers, and the dismissal and confinement of cadets, the confirm Page 307 ing authority will designate the place of confinement. c. Disposition of record and related matters-General Court-Martial. The record of trial, with the decisions and orders of the reviewing authority thereon, ordinarily will be transmitted without letter of transmittal direct to The Judge Advocate General of the Army. With the record will be forwarded the accompany ing papers (See 85), six authenticated copies of the order, if any, promulgating the result of the trial, and two signed copies of the review of the staff judge advocate. In cases involving more than one accused an additional copy of the order of promulgation will be forwarded for each additional accused. If the order of execution is withheld under Article 50e, the reviewing authority will, before forwarding the record, take therefrom the data necessary for drafting a general court-martial order, and when such order is issued the same number of copies thereof will be forwarded as in the case of an order not so withheld. See Appendix 6c for the arrangement of the record and allied papers for forwarding. Special Court-Martial. Ordinarily special court-martial orders will be issued by the convening authority except in cases in which the convening authority approves a sentence to bad conduct discharge. In such cases, after approving the bad conduct discharge the convening authority will forward the record to the officer authorized to appoint a general court-martial for the command, who will thereafter process the case in accordance with the provisions of Articles 47 and 50e. Orders promulgating sentences to bad conduct discharge will be issued by the officer exercising general court-martial jurisdiction. Subject to the foregoing exception, the record and accompanying papers, together with a copy of the order publishing the result of the trial, will be forwarded by indorsement to the officer exercising immediate general courtmartial jurisdiction over the command. The record will be examined by the staff judge advocate for errors, defects and omissions. See 91. If any are discovered, corrective or modifying action may be taken by the officer exercising general court-martial jurisdiction or he may return the record with directions that proper action be taken by the reviewing authority. After necessary corrective action has been taken, the record is filed in the office of the staff judge advocate. If, however, the record involves an approved sentence to bad conduct discharge it will be forwarded, as in the case of a general court-martial record, to The Judge Advocate General of the Army. See Article 50e. See Summary Court-Martial. The original and two copies thereof will, after action by the reviewing authority, be delivered to the regimental, separate battalion, or other unit personnel officer, who will in the case of an approved sentence, enter the essential data on the service record of the accused. AR 345-125, Service Record; 345-5, Report of Changes; and 345-400, Morning Reports. One of the copies will be forwarded to The Adjutant General, Washington, D. C.; the other copy will be forwarded to the officer exercising general court-martial jurisdiction over the command, where the staff judge advocate will examine it for errors, defects or omissions and action will be taken as provided for records of special courtsmartial. 6. Orders and related matters. An order promulgating the result of a trial by general or special court-martial, while not necessary to the validity of the trial, will be issued whether such result was an acquittal or otherwise. For forms of orders and data to be shown therein see Appendix 11 and AR 310-50. Matter unfit for publication will be set forth only in the original order, in such copies as may be furnished The Adjutant General, the authorities of the post or other place where the accused is, and to the commanding officer of the place where the accused is to be confined, if confinement is involved. The order will be of the date that the reviewing or confirming authority takes final action on the case. The order will state the date upon which the sentence was adjudged by the court. When a rehearing is directed, neither the action of the court at the former proceeding nor the action of the reviewing or confirming authority thereon will be published in orders, but the court-martial order promulgating the final action in the case will in a separate paragraph publish such charges and specifications at the former hearing as may not have been referred for rehearing, together with the action of the court and reviewing authority thereon. 88. CONFIRMING AUTHORITY. For cases in which confirmation is required and for the powers of the confirming authority see Articles 48, 49 and 50. Confirming power is vested in the President, the Secretary of the Army, a Judicial Council with the concurrence of The Judge Advocate General or Assistant Judge Advocate General in charge of a branch office, a Judicial Council, and in no other officer or officers. See 96 and Articles 48 and 49 for confirming powers. Chapter XIX-Action ORDERING REHEARINGS PLACE OF 89. ORDERING REHEARING. The procedure to be followed at the rehearing of a case is in general the same as in other trials. See 84. For conditions under which the reviewing or confirming authority or The Judge Advocate General may authorize or direct a rehearing, see Article 52. A rehearing may not be ordered by an authority empowered to take that action if, upon taking his final action, he approves a part of the sentence. For limitations as to membership of courts and as to offenses triable upon rehearing, see Article 52. If the accused is convicted at the first trial of a lesser included offense only, a rehearing on the offense originally charged can not properly be ordered. If, however, a rehearing should improperly be ordered on the original offense charged and the accused should be found guilty thereof, such finding may be valid as to the lesser offense of which he was found guilty in the first trial. The order directing a rehearing should be made at the time of disapproving or vacating the sentence and will ordinarily be included in the action on such sentence. When a rehearing is directed there will be referred to the trial judge advocate not only the charges but also the record of the former proceeding and all pertinent accompanying papers, together with a copy of any opinion or holding of agencies of the office of The Judge Advocate General or the review of the staff judge advocate, to inform the trial judge advocate of the errors made at the former hearing which have necessitated the rehearing. For related provisions as to a new trial after final disposition of the case on appellate review, see 101-102. 90. PLACE OF CONFINEMENT-a. Penitentiary. A penitentiary may be designated as the place of confinement for the whole period of confinement imposed by the sentence as ordered executed, provided the period exceeds one year, and provided also that the sentence is wholly or partly based on one or more of the effenses listed below or was imposed in commutation of a death sentence: Desertion in time of war. Repeated desertion in time of peace. An offense involving an act or omission recognized as an offense of a civil nature and made punishable by penitentiary confinement for more than one year by some statute of the United States of general application within the continental United States, excepting Title 18, U. S. C., § 13, or by the law of the District of Columbia whether statutory or common. A penitentiary will not be designated as the place of confinement except as authorized above. For the limitation on the length of penitentiary confinement, see the proviso of Article 45. Instructions as to the particular penitentiary to be designated will be issued from time to time by the Department of the Army. See AR 600-375. Federal reformatories and correctional institutions are penitentiaries within the meaning of this paragraph and will not be designated as the place of confinement unless penitentiary confinement is authorized under the provisions of Article 42. It is the policy of the Department of the Army to separate as far as practicable general prisoners convicted of offenses punishable by penitentiary confinement from general prisoners convicted of purely military offenses. In furtherance of this policy reviewing authorities should designate a penitentiary as the place of confinement in every case in which such action is authorized unless it appears that the holding of the prisoner in association with misdemeanants and military offenders will not be to the detriment of such misdemeanants and military offenders and that the purposes of punishment do not demand penitentiary confinement. b. Disciplinary barracks; military post, etc. Subject to such instructions as may be issued from time to time by the De partment of the Army, the United States Disciplinary Barracks at Fort Leavenworth, Kansas, or one of its branches, or the guardhouse of a military post, station, or camp will be designated as the place of confinement in cases in which a penitentiary is not designated. Chapter XX-Action After REVIEW OF SENTENCE AND FILING OF REC- 91. REVIEW OF SENTENCES OF SPECIAL AND SUMMARY COURTS; FILING OF RECORDS. The officer immediately exercising general courtmartial jurisdiction over a command has supervisory powers over special and summary courts-martial therein. He will cause the records of trial of such courts when forwarded to him as required by 87c to be examined for errors, defects or omissions. He will direct the reviewing authority to take such corrective or modifying action as he deems necessary or desirable with respect to the sentence; or he may, as circumstances require in the interest of justice, vacate the findings of guilty or the sentence or take other necessary corrective action. If the sentence of a special court-martial includes a bad conduct discharge, action thereon by the officer exercising general courtmartial jurisdiction is required as in a general court-martial case. See Articles 13, 47d, and 50e. The office of the staff judge advocate is designated as the place for filing all records of trial by special courts-martial which do not involve sentences adjudging bad conduct discharge and records of trials by summary courts-martial forwarded as required by 87c. Special courts-martial records involving bad conduct discharges shall be filed in the office of The Judge Advocate General. Special and summary courts-martial records filed in the office of the staff judge advocate shall be retained until directions are received for their disposal under the provisions of the act of 7 July 1943 (57 Stat. 380), as amended by the act of 6 July 1945 (59 Stat. 434; 44 U. S. C. 366-371), or until storage elsewhere is authorized by appropriate regulations. See AR 15-15 and Technical Manual 12-259. 92. CORRECTION OF GENERAL AND CERTAIN SPECIAL COURTMARTIAL RECORDS. When a record of trial by general court-martial, or a record of trial by special court-martial in which a bad conduct discharge has been approved, has been forwarded by the reviewing authority to higher authority and an error of the kind mentioned in 87b (Correction of Clerical Errors and Revision Proceedings) is noted by the higher authority, the record ordinarily will be returned to the reviewing authority with directions for the correction of the record or revision of the proceedings. However, if circumstances warrant, the higher authority may take the necessary action without reference to the reviewing authority. 93. REPORT OF OFFICER CASES. Immediately upon the promulgation of any sentence of a court-martial in the case of an officer which does not require confirmation but involves suspension from rank and command, restriction, or any other material change in the status of the officer, the commander issuing the order will advise The Adjutant General, by prompt means, of the sentence imposed as approved or mitigated and the date of promulgation thereof. 94. MISCELLANEOUS MATTERS. As to mitigation, remission, suspension, and vacating suspension, see 87 and Article 51. Orders remitting the whole or any part of a sentence issued subsequent to the order promulgating the result of the trial will be published in appropriate general or special court-martial orders. Subsequent action affecting a previously approved summary court-martial sentence is published in special orders. Any sentence (except a sentence to death) or any part thereof may be suspended under Article 51 for a period beyond any term of confinement but within the current enlistment or period of service. If the order of suspension is not vacated prior to the actual discharge of a military person not in confinement under the sentence, the confinement and other unexecuted portions of the sentence are remitted by execution of the discharge. Although suspension of a sentence may generally be vacated at any time during a soldier's term of service, no order suspending the execution of a dishonorable or bad conduct discharge shall be vacated until confirming or appellate action thereon shall have been completed as required by Articles 48 and 50. See Article 51b (1). Any action taken toward the suspension of the sentence of a general or special court-martial while the sentence is being served and any action taken toward vacating such a suspension will be promulgated in a general or special court-martial order. Regulations relating to the details of execution and remission of sentences of forfeiture and confinement are contained in AR 35-2460 (Court-martial forfeitures-enlisted men) and AR 600375 (Prisoners-general provisions). The authority who designated the place of confinement, or higher authority, may change the place of confinement of any prisoner under his jurisdiction; but when the Disciplinary Barracks or other military prison or post has been designated as the place of confinement of a prisoner, the place of confinement can not thereafter be changed to a penitentiary under the same sentence. The distribution to be made of general and special court-martial orders is announced from time to time in Army Regulations. Chapter XXI-Appellate ReviewConfirmation PRELIMINARY ACTION-APPELLATE REVIEW, BOARD OF REVIEW, JUDICIAL COUNCILLEGAL INSUFFICIENCY-WEIGHING EVIDENCE-BRIEFS, ARGUMENTS AND RECOMMENDATIONS - MISCELLANEOUS FINALITY OF ACTION 95. PRELIMINARY ACTION. A sentence of a court-martial may not be executed until approved by the reviewing authority (A. W. 47d). A sentence of death, a sentence involving a general officer, dismissal of an officer, reduction of an officer (A. W. 44), suspension or dismissal of a cadet, or imprisonment for life may not be executed until also confirmed. Sentences of the first two descriptions are confirmed by the President, and the others in the Office of The Judge Advocate General or by the Secretary of the Army. See Article 48. That portion of a sentence to dishonorable or bad conduct discharge or confinement in a penitentiary may not be executed until after appellate review in the Office of The Judge Advocate General See Article 50e. All records of trial by general courts-martial and records of trial by special courtsmartial involving bad conduct discharge are forwarded, after approval by the reviewing authorities to The Judge Advocate General. In cases to be forwarded to The Judge Advocate General not requiring confirmation or appellate review prior to execution, the general courtmartial order is promulgated prior to forwarding. 96. APPELLATE REVIEW-BOARD OF REVIEW-JUDICIAL COUNCIL-a. Confirmation by the President. A record of trial involving a sentence of death or of a general officer is examined by a Board of Review in the Office of The Judge Advocate General. The record and opinion of the Board is then forwarded to the Judicial Council in the Office of The Judge Advocate General for further examination and thence to The Judge Advocate General and the Secretary of the Army, in turn, whose recommendations are submitted to the President for his confirming action. b. Confirmation by Judicial Council. A record of trial involving dismissal or reduction of an officer, suspension or dismissal of a cadet or imprisonment for life, is examined by a Board of Review. The record and opinion of the Board is then forwarded to the Judicial Council for confirming action in conjunction with The Judge Advocate General. See Article 50 d (2), (3) and (4). See Article 48b as to confirmation by the Secretary of the Army in cases of disagreement between The Judge Advocate General and Judicial Council. c. Holding by Board of Review. A record of trial involving dishonorable or bad conduct discharge, whether or not suspended, or involving confinement in a penitentiary is examined by a Board of Review and may, if so directed by The Judge Advocate General or requested by the Board of Review, be forwarded to the Judicial Council for confirming action as indicated in 96b. A holding of legal sufficiency by the Board of Review is final and conclusive unless The Judge Advocate General directs or the Board of Review requests action by the Judicial Council. The final holding is transmitted to the reviewing authority, who takes action with respect to execution of the sentence and promulgates the general court-martial order in any case in which such action has not previously been taken. d. Examination in Office of The Judge Advocate General. A record of trial not disposed of under 96a, b, or c is examined |