Argument on Sentence and Sentence

After introduction of matters relating to sentencing, counsel for the prosecution and defense may argue for an appropriate sentence. Again, if it is a members' trial, the military judge will instruct the members on sentencing. As with findings, two-thirds of the members must be in concurrence for a particular sentence. In a members' trial, the president of the court will announce sentence, otherwise the military judge announces it. Immediately after sentencing the military judge informs the accused of posttrial and appellate rights.

Adjournment

The military judge adjourns the court-martial at the end of the trial of an accused or proceeds to trial of other cases referred to that court-martial.

Clemency

After trial, any or all court members and/or the military judge may recommend that the CA exercise clemency to reduce the sentence, notwithstanding their vote on the sentence at trial.

SPECIAL COURT-MARTIAL PUNISHMENTS

Articles 19, 55, and 56, UCMJ, and R.C.M. 1003 are the primary References concerning the punishment authority of the SPCM. Appendix 12 and part IV, MCM, 1984, also address punishment power. Part IV of the MCM contains the maximum permissible punishment for a particular offense. The other References further limit punitive authority, depending on the level of court-martial and type of punishment being considered.

Prohibited Punishments

Article 55, UCMJ, flatly prohibits flogging, branding, marking, tattooing, the use of irons (except for safekeeping of prisoners), and any other cruel and unusual punishment. Other punishments not recognized by service customs include shaving the head, tying up by hands, carrying a loaded knapsack, placing in stocks, loss of good conduct time (a strictly administrative measure), and administrative discharge.

Jurisdictional Maximum Punishments

In no case can an SPCM lawfully adjudge a sentence in excess of a BCD, confinement for 6 months, forfeiture of two-thirds pay per month for 6 months, and reduction to paygrade E-1. Within those outer limits are a number of variations of lesser forms of punishment that may be adjudged.

Authorized Punishments

Appendix 12 and part IV, MCM, 1984, list the specific maximum punishments for each offense as determined by statutory provisions or by the President of the United States pursuant to authority delegated by Article 56, UCMJ. An accused, as a general rule, may be separately punished for each offense of which he or she is convicted, unlike NJP where only one punishment is imposed for all offenses. Thus, an accused convicted of unauthorized absence (Article 86), assault (Article 128), and larceny (Article 121) is subject to a maximum sentence determined by totaling the maximum punishment for each offense. A chart that lists punishments authorized at each type of court-martial is illustrated in figure 7-3. We will address each individual type of punishment.

PUNITIVE SEPARATION FROM THE SER-VICE.- An SPCM is empowered to sentence an enlisted accused to separation from the service with a BCD. This is true provided the discharge is authorized for one or more of the offenses for which the accused stands convicted or by virture of an escalator clause (dicussed later). An SPCM is not authorized to sentence any officer or warrant officer to separation from the service. A BCD is a separation from the service under conditions not honorable and is designed as a punishment for bad conduct rather than as a punishment for serious military or civilian offenses. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears necessary.

The practical effect of this type of separation is less severe than a dishonorable discharge (DD), where the accused automatically becomes ineligible for almost all veterans' benefits. The effect of a BCD on veterans' benefits depends upon whether it was adjudged by a GCM or an SPCM, whether the benefits are administered by the service concerned or by the Department of Veterans Affairs, and upon the particular facts of a given case.

CONFINEMENT.- Confinement involves the physical restraint of an adjudged service member in a brig or prison. Under military law, confinement automatically includes hard labor, but the law prefers that the sentence be stated as confinement-omitting the words at hard labor. Omission of the words hard labor does not relieve the accused of the burden of performing hard labor. An SPCM can adjudge 6 months' confinement upon an enlisted service member, but may not impose any confinement upon an officer or warrant officer. Part IV, MCM, limits this punishment to an even lesser period for certain offenses. As an example, failure to go to appointed place of duty (Article 86) has a maximum confinement punishment of only 1 month.

HARD LABOR WITHOUT CONFINE-MENT.- This form of punishment is performed in addition to routine duties and may not lawfully be used instead of regular duties. The number of hours per day and the character of the hard labor will be designated by the immediate CO of the accused. The maximum amount of hard labor that can be adjudged at an SPCM is 3 months. This punishment is imposable only on enlisted persons and not upon officers or warrant officers. After each day's hard labor assignment has been performed, the accused should then be permitted normal liberty or leave. Hard labor means rigorous work but not so rigorous as to be injurious to the health of the accused. Hard labor cannot be required to be performed on Sundays, but may be performed on holidays. Hard labor can be combined with any other punishment.

RESTRICTION.- Restriction is a moral restraint upon the accused to remain within certain specified limits for a specified time. Restriction may be imposed on all persons subject to the UCMJ, but not in excess of 2 months. Restriction is a less severe form of deprivation of liberty than confinement or hard labor without confinement and may be combined with any other punishment. The performance of military duties can be required while an accused is on restriction.

CONFINEMENT ON BREAD AND WATER/DIMINISHED RATIONS.- As its name suggests, this punishment involves confinement coupled with a diet of bread and water or diminished rations. A diet of bread and water allows the accused as much bread and water as he or she can eat or drink. Diminished rations is food from the regular daily

Figure 7-3.-Punishment chart.

rations constituting a nutritionally balanced diet, but enlisted persons in paygrades E-1 to E-3 who ^limited to 2,100 calories per day. No hard labor may are attached to or embarked in a vessel and then only be required to be perforrned by an accused undergoing for a maximum of 3 days. Further, both the prisoner this type of punishment. Confinement on bread and and the confinement facility must be inspected by a water/diminished rations may be imposed only upon medical officer who must certify in writing that the punishment will not be injurious to the accused's health and that the facility is medically adequate for human habitation.

FORFEITURE OF PAY.- This kind of punishment involves the deprivation of a specified amount of the accused's pay for a specific number of months. The maximum amount that is subject to forfeiture at an SPCM is two-thirds of 1 month's pay per month for 6 months. The forfeiture must be stated in terms of pay per month for a certain number of months. The basis for computing the forfeiture is the base pay of the accused plus any sea and foreign duty pay. Other pay and allowances are not used as part of the basis. If the sentence is to include reduction in grade, the forfeiture must be based upon the grade to which the accused is to be reduced. A forfeiture may be imposed by an SPCM upon all military personnel. The forfeiture applies to pay becoming due after the forfeitures have been imposed and not to monies already paid to the accused. Unless suspended, forfeitures take effect on the date ordered executed by the CA when initial action is taken.

FINE.- A fine is a lump-sum judgment against the accused requiring him or her to pay specified money to the United States. A fine is not taken from the accused's accruing pay, as with forfeitures, but rather becomes due in one payment when the sentence is ordered executed. To enforce collection, a fine may also include a provision that, in the event the fine is not paid, the accused will, in addition to the confinement adjudged, be confined for a specified time. The total period of confinement so adjudged may not exceed the jurisdictional limit of the specified courtmartial should the accused fail to pay the fine. While an SPCM can impose a fine upon all personnel, the punishment should not be adjudged unless the accused has been unjustly enriched by his or her crimes. A fine cannot exceed the total amount of money that the court could have required to be forfeited. The court may, however, award both a fine and forfeitures, so long as the total monetary punishment does not exceed the amount that could have been required to be forfeited.