R.C.M. 1109 — Reduction of sentence, general and special courts-martial

Chapter XI · Post-Trial Procedure

R.C.M. 1109. Reduction of sentence, general and special courts-martial

2024 Manual for Courts-Martial, United States

See all changes

(a) In general. This rule applies to the post-trial actions of the convening authority in any general or special court-martial in which—

(1) The court-martial found the accused guilty of—

(A) An offense for which the maximum authorized sentence to confinement is more than two years, without considering the jurisdictional maximum of the court;

(B) A violation of Article 120(a) or (b);

(D) A violation of such other offense as the Secretary of Defense has specified by regulation; or

(2) The sentence of the court-martial includes—

(A) A bad-conduct discharge, dishonorable discharge, or dismissal;

(B) A term of confinement, or terms of confinement running consecutively, more than six months; or

Discussion

The applicability of R.C.M. 1109(a)(2)(B) is determined by assessing the total amount of confinement that is to be served. In a case where the military judge determined the sentence of the accused, the total amount of confinement is based upon the military judge’s determination as to whether any terms of confinement are to run concurrently or consecutively. For instance, if the military judge determines that all terms of confinement are to be served concurrently and the total amount of confinement is six months or less, R.C.M. 1109(a)(2)(B) does not apply. If, however, the military judge determines that two or more terms of confinement are to be served consecutively and the total amount of confinement is more than six months, R.C.M. 1109(a)(2)(B) applies.

(b) Limitation of authority on findings. For any court-martial described under subsection (a), the convening authority may not set aside, disapprove, or take any other action on the findings of the court-martial.

(c) Limited authority to act on sentence. For any court-martial described under subsection (a), the convening authority may—

(1) Modify a bad-conduct discharge, dishonorable discharge, or dismissal only as provided in subsections (e) and (f);

(2) Modify a term of confinement of more than six months, or terms of confinement that running consecutively are more than six months, only as provided in subsections (e) and (f);

Discussion

See the Discussion following R.C.M. 1109(a)(2)(B).

(3) Reduce or commute a punishment of death only as provided in subsection (e);

(4) Reduce, commute, or suspend, in whole or in part, any punishment adjudged for an offense tried under the law of war other than the punishments specified in paragraphs (1), (2), and (3);

(5) Reduce, commute, or suspend, in whole or in part, the following punishments:

(A) The confinement portion of a sentence if the confinement portion of the sentence is six months or less, to include terms of confinement that running consecutively total six months or less;

Discussion

See the Discussion following R.C.M. 1109(a)(2)(B).

(B) A reprimand;

(D) A fine;

(E) Reduction in pay grade;

(F) Restriction to specified limits; and

(G) Hard labor without confinement.

(d) General Considerations.

(1) Who may take action. If it is impracticable for the convening authority to act under this rule, the convening authority shall, in accordance with such regulations as the Secretary concerned may prescribe, forward the case to an officer exercising general court-martial jurisdiction who may take action under this rule.

(2) Legal advice. In determining whether to take action, or to decline taking action under this rule, the convening authority shall consult with the staff judge advocate or legal advisor.

(3) Consideration of matters.

(A) Matters submitted by accused and crime victim. Before taking or declining to take any action on the sentence under this rule, the convening authority shall consider matters timely submitted under R.C.M. 1106 and 1106A, if any, by the accused and any crime victim.

(B) Additional matters. Before taking action the convening authority may consider—

(i) The Statement of Trial Results;

Discussion

See R.C.M. 1104(b) addressing post-trial motions and proceedings to resolve allegations of error in a Statement of Trial Results.

(ii) The evidence introduced at the court-martial, any appellate exhibits, and the recording or transcription of the proceedings, subject to the provisions of R.C.M. 1113 and subparagraph (C);

(iii) The personnel records of the accused; and

(iv) Such other matters as the convening authority deems appropriate.

(i) Accused. The convening authority may not consider matters adverse to the accused that were not admitted at the court-martial, with knowledge of which the accused is not chargeable, unless the accused is first notified and given an opportunity to rebut.

(ii) Crime victim. The convening authority shall not consider any matters that relate to the character of a crime victim unless such matters were presented as evidence at trial and not excluded at trial.

Discussion

For purposes of this provision, the term “crime victim” has the same meaning as “victim of an offense under this chapter” in Article 6b.

(4) Timing. Except as provided in subsection (e), any action taken by the convening authority under this rule shall be taken prior to entry of judgment. If the convening authority decides to take no action, that decision shall be transmitted promptly to the military judge as provided under subsection (g).

Practice Note

In the 2024 edition of the MCM, this subsection is labeled '(3) Timing.' Consistent with the paragraph order, it should instead be labeled '(4) Timing' in R.C.M. 1109(d), as shown here.

(e) Reduction of sentence for substantial assistance by accused.

(1) In general. A convening authority may reduce, commute, or suspend the sentence of an accused, in whole or in part, if the accused has provided substantial assistance in the criminal investigation or prosecution of another person.

(2) Trial counsel. A convening authority may reduce the sentence of an accused under this subsection only upon the recommendation of trial counsel who prosecuted the accused. If the person who served as trial counsel is no longer serving in that position, or is not reasonably available, the attorney who is primarily responsible for the investigation or prosecution in which the accused has provided substantial assistance, and who represents the United States, is trial counsel for the purposes of this subsection. The recommendation of trial counsel is the decision of trial counsel alone. No person may direct trial counsel to make or not make such a recommendation.

(3) Who may act.

(A) Before entry of judgment, the convening authority who convened the original court-martial or the convening authority’s successor in command may act on the recommendation of trial counsel under paragraph (2).

(B) After entry of judgment, the convening authority who convened the original court-martial or the convening authority’s successor in command or a convening authority otherwise designated by the Secretary concerned may act on the recommendation of trial counsel under paragraph (2).

(4) Scope of authority. A convening authority authorized to act under paragraph (3) may accept the recommendation of trial counsel under paragraph (2) of this subsection, and may reduce, commute, or suspend a sentence in whole or in part, including any mandatory minimum sentence.

(5) Limitations.

(A) A sentence of death may not be suspended under this subsection.

(B) In the case of a recommendation by trial counsel under paragraph (2) of this subsection made more than one year after entry of judgment, the convening authority who convened the original court-martial or the convening authority’s successor in command or a convening authority otherwise designated by the Secretary concerned may reduce a sentence only if the substantial assistance of the accused involved—

(i) Information not known to the accused until one year or more after sentencing;

(ii) Information the usefulness of which could not reasonably have been anticipated by the accused until more than one year after sentencing and which was promptly provided to the Government after its usefulness was reasonably apparent to the accused; or

(iii) Information provided by the accused to the Government within one year of sentencing, but which did not become useful to the Government until more than one year after sentencing.

(6) Evaluating substantial assistance. In evaluating whether the accused has provided substantial assistance, the trial counsel and convening authority may consider the presentence assistance of the accused.

(7) Action after entry of judgment. If the convening authority who convened the original court-martial or the convening authority’s successor in command or a convening authority otherwise designated by the Secretary concerned acts on the sentence of an accused after entry of judgment, the action shall be forwarded to the chief trial judge. The chief trial judge, or a military judge detailed by the chief trial judge, shall modify the judgment of the court-martial to reflect the action. The action and the modified judgment shall be forwarded to the Judge Advocate General and shall be included in the original record of trial. The reduction of a sentence under this rule shall not abridge any right of the accused to appellate review.

(f) Suspension.

(1) The convening authority may suspend a sentence of a dishonorable discharge, bad-conduct discharge, dismissal, or confinement in excess of six months, if—

(A) The Statement of Trial Results filed under R.C.M. 1101 includes a recommendation by the military judge that the convening authority suspend the sentence, in whole or in part; and

(B) The military judge includes a statement explaining the basis for the suspension recommendation.

(2) If the convening authority suspends a sentence under this subsection—

(A) The portion of the sentence that is to be suspended may not exceed the portion of the sentence that the military judge recommended be suspended;

(B) The duration of the suspension may not be less than that recommended by the military judge; and

(3) A sentence that is suspended under this rule shall comply with the procedures prescribed in R.C.M. 1107(c), (d), and (e).

(g) Decision; forwarding of decision and related matters.

(1) No action. If the convening authority decides to take no action on the sentence under this rule, the staff judge advocate or legal advisor shall notify the military judge of this decision.

(2) Action on sentence. If the convening authority decides to act on the sentence under this rule, such action shall be in writing and shall include a written statement explaining the action. If any part of the sentence is disapproved, reduced, commuted, or suspended, the action shall clearly state which part or parts are disapproved, reduced, commuted, or suspended. The convening authority’s staff judge advocate or legal advisor shall forward the action with the written explanation to the military judge to be attached to the record of trial.

(h) Service on accused and crime victim. If the convening authority took any action on the sentence under this rule, a copy of such action shall be served on the accused, crime victim, or on their respective counsel. If the action is served on counsel, counsel shall, by expeditious means, provide the accused or crime victim with a copy. If the judgment is entered expeditiously, service of the judgment will satisfy the requirements of this subsection.

Discussion

See R.C.M. 1104(b) addressing post-trial motions and proceedings to resolve allegations of error in the convening authority’s action under R.C.M. 1109. For purposes of this provision, the term “crime victim” has the same meaning as in R.C.M. 1106A(b)(2).