Deferment of confinement, forfeitures,

and reduction in grade; waiver of Article 58b forfeitures (a) In general. (1) After a sentence is announced, the convening II-101 authority may defer a sentence to confinement, forfeitures, or reduction in grade in accordance with this rule. Deferment may be at the request of the accused as provided in subsection (b), or without a request of the accused as provided in subsection (c). authority’s (2) Deferment of a sentence to confinement, forfeitures, or reduction in grade is a postponement of the running of the sentence. (b) Deferment requested by an accused. The convening authority or, if the accused is no longer in the the officer convening exercising general court-martial jurisdiction over the command to which the accused is assigned, may, upon written application of the accused, at any time after the adjournment of the court-martial and before the entry of judgment, defer the accused’s service of a sentence to confinement, forfeitures, and reduction in grade. (c) Deferment without a request from the accused. jurisdiction, (1) In a case in which a court-martial sentences to confinement an accused referred to in paragraph (2), the convening authority may defer service of the sentence to confinement, without the consent of the accused, until after the accused has been permanently released to the armed forces by a State or foreign country. (2) Paragraph (1) applies to an accused who, while in custody of a State or foreign country, is temporarily returned by that State or foreign country to the armed forces for trial by court-martial and, after the court- martial, is returned to that State or foreign country under the authority of a mutual agreement or treaty, as the case may be. (3) As used in this subsection, the term “State” means a State of the United States, the District of Columbia, a territory, and a possession of the United States. (d) Action on deferment request. (1) The authority acting on the deferment request may, in that authority’s discretion, defer service of a sentence to confinement, forfeitures, or reduction in grade. (2) In a case in which the accused requests deferment, the accused shall have the burden of showing that the interests of the accused and the community in deferral outweigh the community’s interests in imposition of the punishment on its effective date. Factors that the authority acting on a deferment request may consider in determining whether to grant the deferment request include, where II-102 applicable: the probability of the accused’s flight; the probability of the accused’s commission of other offenses, intimidation of witnesses, or interference with the administration of justice; the nature of the offenses (including the effect on the victim) of which the accused was convicted; the sentence adjudged; the command’s immediate need for the accused; the effect of deferment on good order and discipline in the command; the accused’s character, mental condition, family situation, and service record. The decision of the authority acting on the deferment request shall be subject to judicial review only for abuse of discretion. The action of the authority acting on the deferment request shall be in writing. A copy of the action on the deferment request, to include any rescission, shall be included in the record of trial and a copy shall be provided to the accused and to the military judge. (e) Restraint when deferment is granted. When deferment of confinement is granted, no form of restraint or other limitation on the accused’s liberty may be ordered as a substitute form of punishment. An accused may, however, be restricted to specified limits or conditions may be placed on the accused’s liberty during the period of deferment for any other proper reason, including a ground for restraint under R.C.M. 304. (f) End of deferment. Deferment of a sentence to confinement, forfeitures, or reduction in grade ends: (1) In a case where the accused requested deferment under subsection (b)— (A) When the military judge of a general or special court-martial enters the judgment into the record of trial under R.C.M. 1111; or (B) When the convening authority of a summary court-martial acts on the sentence of the court-martial; (2) In a case where the deferment was granted under subsection (c), when the accused has been permanently released to the armed forces by a State or foreign country; (3) When the deferred confinement, forfeitures, or reduction in grade are suspended; (4) When the deferment expires by its own terms; or (5) When the deferment is otherwise rescinded in accordance with subsection (g). (g) Rescission of deferment. (1) Who may rescind. The authority who granted the deferment or, if the accused is no longer within that authority’s jurisdiction, the officer exercising general court-martial jurisdiction over the command to which the accused is assigned, may rescind the deferment. (2) Action. Deferment of confinement, forfeitures, or reduction in grade may be rescinded when additional information is presented to a proper authority which, when considered with all other information in the case, that authority finds, in that authority’s discretion, is grounds for denial of deferment under paragraph (d)(2). The accused and the military judge shall promptly be informed of the basis for the rescission. The accused shall also be informed of the right to submit written matters and to request that the rescission be reconsidered. The accused may be required to serve the sentence to confinement, forfeitures, or reduction in grade pending this action. (3) Orders. Rescission of a deferment before or concurrently with the entry of judgment shall be noted in the judgment that is entered into the record of trial under R.C.M. 1111. (h) Waiving forfeitures resulting from a sentence to confinement to provide for dependent support. (1) With respect to forfeiture of pay and allowances resulting only by operation of law and not adjudged by the court, the convening authority may waive, for a period not to exceed six months, all or part of the forfeitures for the purpose of providing support to the accused’s dependent(s). The convening authority may waive and direct payment of any such forfeitures when they become effective by operation of Article 58(b). (2) Factors that may be considered by the convening authority in determining the amount of forfeitures, if any, to be waived include, but are not limited to, the length of the accused’s confinement, the number and age(s) of the accused’s family members, whether the accused requested waiver, any debts owed by the accused, the ability of the accused’s family members to find employment, and the availability of transitional compensation for abused dependents permitted under 10 U.S.C. 1059. (3) For the purposes of this rule, a “dependent” means any person qualifying as a “dependent” under 37 U.S.C. 401.