La. Admin. Code tit. 41 § II-714

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-714 - Vacating Suspensions

A. General. Subject to the limitations of the preceding paragraph, if during the period of suspension the convening authority receives information that the probationer may have violated any term of that suspension, he may, after consulting with the appropriate judge advocate, begin proceedings to consider whether the suspension will be vacated (terminated).

Notice Requirement. The procedure is initiated by written notification to the probationer, delivered in person or by certified mail, return receipt requested, in a postage and fees paid envelope deposited in an office of the United States Postal Service, addressed to the probationer at his address as shown on the records of the unit. If the probationer fails or refuses to accept personal delivery, or if the notice by mail is returned undelivered, the convening authority may proceed summarily. Receipt of notice sent by mail as set out above is presumed seven days following date of deposit.

B. Requests for Continuance. If the accused requests additional time to consult with counsel or to gather additional information prior to responding, the convening authority should grant a reasonable amount of additional time so that the accused may have the opportunity to prepare and present a meaningful response.

C. Hearing Procedures. The convening authority must satisfy himself that he has the facts of the matter before him prior to deciding whether to vacate the suspension. If he deems it necessary, he may appoint an investigating officer and/or consult with his servicing staff judge advocate. After carefully and thoroughly considering all information before him, the convening authority must determine what disposition to make of the alleged violation of suspension. He may:

1. continue the accused on suspension;

2. vacate the suspension, remit any part or amount of the unexecuted part of the sentence, and order the remainder of the sentence into execution (if the vacation is based on failure to pay a fine); or

3. he may vacate the suspension and order the unexecuted portion of the sentence into execution. In addition, he may initiate court-martial charges or non-judicial punishment for the act constituting the alleged violation of suspension, if such act also is a violation of the Code.

D. Written Orders. If the convening authority vacates the suspension, an appropriate order is published [See Figure 7-6] and, if confinement is ordered executed, he issues an Order of Commitment [See Figure 7-3.]

E. SCM Record of Trial (Figure 7-1)

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F. Report of Result of Trial (Figure 7-2)

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G. Order of Commitment Pursuant to Court-Martial (Figure 7-3)

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DEPARTMENTS OF THE ARMY AND AIR FORCE

UNIT HEADING

UNIT ADDRESS

LANG- 4 May 2008

ORDER OF COMMITMENT PURSUANT TO COURT-MARTIAL

TO: Warden, Dabadie Correctional Facility, Camp Beauregard, Louisiana

The defendant, SGT JOE I. SNUFFY, XXX-XX-9999, HEADQUARTERS SUPPORT COMPANY, 205TH ENGINEER BATTALION, has been convicted of violating one specifications of Louisiana Code of Military Justice Article 86 (AWOL), one specification of the Louisiana Code of Military Justice Article 92, (DISOBEYING A LAWFUL ORDER), AND one specification of the Louisiana Code of Military Justice Article 112, (DRUNK WHILE ON DUTY) by a Louisiana National Guard Summary Court-Martial convened by the commander of the 205th Engineer Battalion, LTC Eye C. All.

Therefore, pursuant to Louisiana Code of Military Justice Articles 11 and 58 (La. Revised Statutes 29:111 and 158), the sentence of this Court-Martial, and the action of the convening authority in this matter:

YOU ARE DIRECTED TO COMMIT TO CONFINEMENT FORTHWITH THE ABOVE-NAMED MEMBER OF THE LOUISIANA NATIONAL GUARD AND TO KEEP SAID PERSON IN YOUR CUSTODY FOR THE FOLLOWING PERIODS OF COMMITMENT:

23 May 2008 through no later than 0800 on 30 May 2008

While committed, the said individual shall be subject to the same discipline and treatment as other persons so confined and/or committed under the laws of the State of Louisiana.

When the above-named individual has been released, you are requested to notify the following representative of the Louisiana National Guard:

SFC Readiness NCO (985) 999-9999

By authority of the Governor of the State of Louisiana, I affix my official signature, this 4th day of February, 2008.

EYE C. ALL

LTC, EN, LANG

Commanding

H. Promulgating Order (Figure 7-4)

[UNIT HEADING]

LANG-SJA DATE

SPECIAL COURT-MARTIAL ORDER NUMBER 08-01

Private (E2) John Doe, 000-00-0000, Company A, 199th Support Battalion, 256th Infantry Brigade (M), Lafayette, Louisiana, was arraigned at Fort Polk, LA, on the following offenses at a special court-martial convened by the Commanding General, 256th Inf. Bde.

Charge I. Article 86. Plea: Guilty Finding: Guilty

Specification 1: Unauthorized absence from unit from 25 June 1993 to 27 June 1993. Plea: Guilty. Finding: Guilty

Specification 2: Failure to repair on 24 June 1993. Plea: None entered. Dismissed on motion of defense for failure to state an offense.

Charge II. Article 91. Plea: Not Guilty. Finding: Not Guilty.

Specification: Disrespect to superior noncommissioned officer on 24 June 1993 by saying to him, "Stick it in your ear." Plea: Not Guilty. Finding: Guilty.

Charge III. Article 112a. Plea: Guilty. Finding: Guilty

Specification 1: Wrongful possession of 150 grams of marijuana on 24 June 1993. Plea: Guilty. Finding: Guilty

Specification 2: Wrongful use of marijuana while on duty as a sentinel on 23 June 1993. Plea: Guilty. Finding: Guilty.

SENTENCE

Sentence was adjudged on 8 July 1993. A fine of $100.00, forfeiture of all pay and allowances, Dishonorable discharge, reduction to the lowest enlisted grade, and confinement of 6 months.

ACTION

The sentence is approved and will be executed.

[SIGNATURE BLOCK]

I. Conditions of Suspension of Sentence (Figure 7-5)

UNIT HEADING]

LANG-XXX DATE

FROM: (Individual Concerned,

Name, Grade, Organization)_____________________________________

TO: (Convening Authority,

Court-Martial No.______________________________________________

I hereby accept suspension of any sentence imposed against me in the subject court-martial. I have had advice and assistance of my Defense Counsel in preparing this Request. I hereby agree to abide by the following terms and conditions of suspension:

I will at all times keep my military unit advised of my home and work address(es) and telephone number(s).

I will accept and receipt for all mail sent to me by the military.

I will pay any fine imposed against me by this court-martial which has been approved, within a period of ten (10) days from approval thereof, unless such period of time is extended by the convening authority.

I will commit no violation of the Louisiana Code of Military Justice during the period of suspension.

I specifically agree to satisfactorily attend and participate in all military duty to which I am ordered and I agree and understand that it is my responsibility to inform myself of and comply with all duty dates, times, places, proper uniform, and standards of appearance and conduct.

I understand that my failure to fulfill any of the above conditions can result in vacation of my suspension and imposition of the sentence imposed.

Signature blocks for Accused and Defense Counsel (with dates)

Home/Work address/phone for Accused

"Received and Filed" Signature for Military Judge

and convening authority representative (with dates)

J. Notification Regarding Vacation of Suspension (Figure 7-6)

[UNIT HEADING]

TO: _________________, Accused

FROM: _______________, Convening Authority

SUBJECT: Court-Martial [or Article 15] Number _________

On ________, I [or my predecessor in office] suspended execution on that portion of the sentence of the subject court-martial [Article 15] that called for you to___________________________________________________________________________

______________________________________________________________________________________________________

In doing so, certain conditions of suspension were imposed on you. I have received information that you may have violated the following terms of your suspension:

_____ To keep your unit commander advised of your home and work address(es) and home and work phone number(s) at all times.

_____ To accept and receipt for all mail sent to you by the military.

_____ To pay the fine imposed against you.

_____ To commit no violation of the LCMJ.

Specifically, I have been told that you

________________________________________________________________________

_________________________________________________________________________

You are required to reply in writing to me concerning this matter. Your written response must be received at this headquarters no later than _____ hours on ________________.

You may, in lieu of a response to the allegations, request a reasonable amount of additional time to consult with defense counsel prior to responding to the allegations. Your response to the allegations will then be required at the expiration of that additional time, if additional time is granted.

In the event this or any other response required of you is not received by the time set, I will act on this matter without further notice to you.

[SIGNATURE BLOCK]

CF: Servicing SJA

Trial Counsel

Defense Counsel

K. SJA's Review for Legal Sufficiency (Figure 7-7)

[UNIT HEADING]

LANG-EN-SJA 1 July 2008

MEMORANDUM FOR: Commander, 225th Engineer Brigade

SUBJECT: Legal Sufficiency Review of Special Court-martial, SPC JOHN DOE, XXX-XX-XXXX

STATEMENT OF FACTS: SPC John Doe was accused of unlawfully wearing the Purple Heart Ribbon.

STATEMENT OF LAW: SPC John Doe was charged under Article 134, Louisiana Code of Military Justice. The elements are that the accused wore certain insignia on his uniform, the accused was not authorized to wear the insignia on his uniform, the wearing was wrongful, and the conduct of the accused was prejudice of the good order and discipline of the armed forces or brought discredit to the armed forces.

STATEMENT RELATING LAW TO FACTS: SPC John Doe admitted, under oath, that he wore the insignia without authorization in violation of the Louisiana Code of Military Justice Article 134.

RECOMMENDATION: The convening authority approve the findings and sentence as adjudged.

POC is the undersigned at (225) 555-1212.

JOHN B. DUNLAP, III

COL, JA, LANG

State Judge Advocate

La. Admin. Code tit. 41, § II-714

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2409 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).