Gonzalez & Waddington – Attorneys at Law

Vacation of Suspension of Sentence. Article 72, UCMJ; RCM 1109

The rule sets forth the procedural and substantive requirements for vacating a suspended sentence. It authorizes immediate confinement pending the vacation proceedings, if under a suspended sentence to confinement. See Appendix 18, MCM.

Vacation of Suspension of Sentence. Article 72, UCMJ

United States v. Connell , 42 M.J. 462 (C.A.A.F. 1995). Appellant challenged the vacation ofhis suspended bad-conduct discharge because the hearing officer, his special court-martial convening authority (as required by RCM 1109(d)), had imposed nonjudicial punishment on him for the same offense that caused the vacation of his suspended bad-conduct discharge. The CAAF held that this did not make the special court-martial convening authority too personally interested to be a neutral and detached hearing officer as required by RCM 1109.

United States v. Miley , 59 M.J. 300 (C.A.A.F. 2004). Error for the hearing officer (i.e.,SPCMCA) in a vacation of suspended punishment situation to refrain from making findings of fact on whether a basis for vacation existed. The hearing officer’s decision, pursuant to RCM 1109, must include an evaluation of the contested facts and a determination of whether the facts warrant vacation. A decision based solely on equitable grounds is improper. Error for the GCMCA to vacate the suspended punishment when the hearing officer failed to comply with RCM 1109. Held: vacation action set aside and returned to the GCMCA for yet another (a third vacation hearing) or reinstatement of the terms of the original pretrial agreement. Note: 3-2 decision with J. Baker and C.J. Crawford dissenting.

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