Section 400.1225  Suspension, Vacation, Mitigation, Remission and Set Aside of Punishment

a)         General. The imposing commander, his or her successor in command, or any superior commander may suspend, mitigate or remit punishment as a means of correcting behavior and rehabilitating the offender. If used correctly, these can be valuable tools in maintaining morale and discipline. This action can be taken on the commander's own initiative, or the SMF member can request the action. These commanders also have the authority to vacate suspended punishments or set aside punishments when appropriate.

1)         Successor in Command. For these purposes, the successor in command may be either:

A)        The officer who has succeeded to the command or position occupied by the imposing commander, if that officer has authority to impose the punishment involved on the member, and providing the member is still assigned to that command; or

B)        The officer authorized to impose the punishment on the member, if the member has been reassigned.

2)         Recording of Action. The imposing commander may suspend a punishment when completing item 4 of the NGIL Form 60-R.  Any supplementary action involving suspension, mitigation, remission or set aside shall be recorded on NGIL Form 61-R. Any action involving vacation of a suspended punishment shall be recorded on NGIL Form 62-R.

3)         A commander can suspend, mitigate, remit or set aside punishment only if the commander had the authority to impose that punishment.  For example, a company commander cannot suspend, mitigate, remit or set aside a reduction imposed on an E-7.  A commander not empowered to act may, however, recommend that action to the next superior commander authorized to impose the punishment involved.

b)         Suspension.  To suspend punishment is to postpone application of all or part of it for a specified probationary period, with the understanding that it will be automatically remitted at the end of that period if the offender does not engage in further misconduct.  Suspension is often warranted for a first offender or when there are persuasive matters in extenuation or mitigation.

1)         A commander may, at any time, suspend any part or amount of the imposed punishment that remains unexecuted. Furthermore, an executed punishment of reduction in grade or forfeiture of pay may be suspended, at any time, provided the suspension is accomplished within a period of 4 months after the date of imposition.

2)         Punishment may not be suspended for longer than 6 calendar months from the date of the suspension, or beyond an enlistment or the member's expiration of term of service (ETS).  This 6-month limitation on suspensions may or may not be 180 days. For example, a punishment imposed on March 1 may be suspended until August 31, even though this period is 183 days.  The suspension action shall set a specific date when, unless it is vacated sooner, the suspension shall terminate and the punishment shall be automatically remitted without further action.

3)         Suspension of a punishment automatically includes a condition that the member does not violate, for the period of the suspension, any punitive articles of the UCMJ, criminal laws of the State of Illinois, or this Subpart. Commanders may specify other conditions as well, but any such conditions must be reasonably related to the offense. The commander must consult with his or her Staff Judge Advocate before imposing conditions.  Furthermore, any additional conditions of suspension must be clearly stated within the punishment endorsement, and they must be capable of being completed during the period of suspension.

c)         Vacation of Suspension. A commander may vacate any suspended punishment, provided the punishment is of a type and amount he or she could impose, if the commander determines that the member has committed an offense during the period of suspension or has failed to meet a condition upon which the suspension was based.  Vacation proceedings shall be recorded on NGIL Form 62-R. The action must be initiated before the end of the suspension period.

1)         The commander or his or her designee shall personally notify the member of the basis of the proposed vacation, date and sign item 2 of the NGIL Form 62-R when the member is served, and give the member an opportunity to rebut the information on which the proposed vacation is based. If personal notification is impractical because of the member's unauthorized absence or other reason, the member may be notified by certified mail, and the commander shall document the reason for that service in item 7 of the form. The member may consult with counsel prior to submitting a rebuttal. The member does not have to make any statement concerning the allegations, but does not have the same procedural rights granted under Section 400.1220.  The member shall be given the opportunity to present rebuttal matters, in person and/or in writing as determined by the commander, and the commander shall consider any such matters presented.  However, the commander shall schedule the proceedings at his or her discretion, and the member has no right to appeal the commander's decision.

2)         A single offense may be the basis for both vacation action and a new NJP proceeding only when the new offense warrants substantial additional punishment.  Also, in a suitable case, the original punishment may be continued in a suspended status and a separate NJP proceeding may be initiated for the new offense.

3)         If a reduction in grade is suspended and the suspension is later vacated, the reduction is effective on the date of vacation, but the member's date of rank in the grade to which reduced is the date the reduction was initially imposed. For example, if a member receives NJP on June 1 consisting of a suspended reduction in grade for 6 months, and the commander subsequently vacates the suspension on September 1, the effective date of the reduction is September 1, but the member's new date of rank is June 1.

d)         Mitigation. To mitigate punishment is to change it to a less severe punishment in quantity or type; however, the general nature of the punishment must remain the same. For example, restraints on liberty (i.e., restriction or extra duties) may not be mitigated to monetary punishments (i.e., forfeitures of pay), and a forfeiture of pay may be mitigated only to a lesser forfeiture of pay. Mitigation may be appropriate when the offender's subsequent good conduct merits a reduction in severity of the punishment, or when the punishment imposed was disproportionate to the offense or the offender.

1)         With the exception of reduction in grade, the power to mitigate exists only with respect to a punishment or portion of the punishment that is unexecuted.

2)         A reduction in grade, whether or not executed, can be mitigated to a forfeiture of pay, but not to a lesser reduction or no reduction, provided the action is taken within 4 months after execution of the punishment.

3)         Extra duties can be mitigated to restriction, but restriction, being the least severe restraint on liberty, cannot be mitigated to a different form of punishment.  Also, when a restraint on liberty is mitigated, the lesser punishment may not run for a period greater than the remainder of the period for which the punishment was initially imposed. For example, when a person is given 15 days of extra duties, 5 days of this punishment has been served, and the punishment is then mitigated to restriction, the mitigated punishment may not exceed restriction for a period of 10 days.

e)         Remission. To remit punishment is to excuse the offender from the unexecuted portion of the punishment, and remission may be appropriate under the same circumstances as for mitigation.  In this regard, an unsuspended reduction is executed on imposition and cannot be remitted, but it may be suspended, mitigated or set aside if appropriate. In addition, the member's death, separation or discharge automatically remits any unexecuted punishment, and a member shall not be involuntarily held beyond his or her ETS to complete any unexecuted punishment.

f)         Set Aside.  When a commander determines that a member who was punished, or is being punished, has suffered a "clear injustice", the commander may cancel the punishment and restore the member's rights, privileges or property accordingly.

1)         For these purposes, "clear injustice" means that there exists an unwaived legal or factual error that materially prejudices a substantial right of the member.  For example, a clear injustice would exist when information later comes to the commander's attention that casts substantial doubt on the member's guilt or establishes persuasive extenuation for the commission of the offense.

2)         A punishment cannot be set aside merely because a member avoids future misconduct, or because the member's subsequent performance of duty has been exemplary, or because the punishment may have a future adverse impact on the retention or promotion potential of the member.

3)         Setting aside a punishment in its entirety restores the member to the position he or she was in before the punishment was imposed, as if the nonjudicial punishment action had never been initiated. For example, if an E-5 receives NJP on June 1 consisting of a reduction in grade, and the punishment is set aside on September 1, the date of rank and effective date for the restored grade reverts to that held before reduction, and the member shall be entitled to pay at the E-5 grade for the 3 months he or she was paid at the reduced grade.

4)         Action to set aside punishment must be taken within 4 months after execution of the punishment, unless the commander determines unusual circumstances exist. In such a case, the commander must explain those circumstances in item 1b of the NGIL Form 61-R.