Sentencing determination

(a) Generally. Subject to limitations in this Manual, the sentence to be adjudged is a matter within the discretion of the court-martial. A court-martial may adjudge any punishment authorized in this Manual in order to achieve the purposes of sentencing under subsection (f), including the maximum punishment or any lesser punishment, or may adjudge a sentence of no punishment except— (1) When a mandatory minimum sentence is prescribed by the code, the sentence for an offense shall include any punishment that is made mandatory by law for that offense. The sentence for an offense may not be greater than the maximum sentence established by law or by the President for that offense; and (2) If the military judge accepts a plea agreement with a sentence limitation, the court-martial shall sentence the accused in accordance with the limits II-87 established by the plea agreement. (b) Sentencing forum election. In a general or special court-martial consisting of a military judge and members, upon the announcement of findings and before any matter is presented in the presentencing phase, the military judge shall inquire— (1) In noncapital cases, whether the accused elects sentencing by members in lieu of sentencing by military judge for all charges and specifications for which the accused was found guilty; and (2) In capital cases, whether the accused elects sentencing by members in lieu of sentencing by military judge for all charges and specifications for which the accused was found guilty and for which a sentence of death may not be adjudged. (c) Form of election. The accused’s election under subsection (b), shall be in writing and signed by the accused or shall be made orally on the record. The military judge shall ascertain whether the accused has consulted with defense counsel and has been informed of the right to make a sentencing forum election under subsection (b). (d) Noncapital cases. in which (1) Sentencing by members. In a general or special court-martial the accused has elected sentencing by members in lieu of sentencing by military judge under paragraph (b)(1), the members shall determine a single sentence for all of the charges and specifications of which the accused was found guilty. The military judge announces the sentence determined by the members in accordance with R.C.M. 1007. (2) Sentencing by military judge. Unless a timely election for sentencing by members is made by the accused under subsection (b), the military judge shall determine the sentence of a general or special court- martial in accordance with this paragraph. (A) Segmented sentencing for confinement and fines. The military judge at a general or special court- term of martial shall determine an appropriate for each fine, confinement and specification for which the accused was found guilty. Subject to subsection (a), such a determination may include a term of no confinement or no fine when appropriate for the offense. if applicable, (B) Concurrent or consecutive terms of confinement. If a sentence includes more than one term of confinement, the military judge shall determine II-88 whether the terms of confinement will run concurrently or consecutively. For each term of confinement, the military judge shall state whether the term of confinement is to run concurrently or consecutively with any other term or terms of confinement. The terms of confinement for two or more specifications shall run concurrently— (i) when each specification involves the same victim and the same act or transaction; (ii) when provided for in a plea agreement; (iii) when the accused is found guilty of two or more specifications and the military judge finds that the charges or specifications are unreasonably multiplied; or (iv) when otherwise appropriate under subsection (f); or (v) in a special court-martial, to the extent necessary to reduce the total confinement to the maximum confinement authorized under R.C.M. 201(f)(2). for other (C) Unitary sentencing forms of punishment. All punishments other than confinement or fine available under R.C.M. 1003, if any, shall be determined as a single, unitary component of the sentence, covering all of the guilty findings in their entirety. The military judge shall not segment those punishments among the guilty findings. (e) Capital cases. The following applies to cases in accordance with R.C.M. referred as capital 1004(b)(1)(A) that include a finding of guilty for a charge and specification for which death may be adjudged. (1) Sentencing by members. (A) Where all of the findings of guilty are for charges and specifications for which death may be adjudged, the members shall determine whether the sentence for each such specification shall be death or a lesser punishment. The members shall then determine a single sentence for all charges and specifications for which the accused was found guilty. The military judge shall announce the sentence determined by the members in accordance with R.C.M. 1007. (B) Where there is a finding of guilty for a specification for which death may be adjudged and a finding of guilty for a specification for which death may not be adjudged, and the accused elects sentencing by members under paragraph (b)(2) for those specifications for which a sentence of death may not be adjudged: (i) The members shall determine whether the sentence for each specification for which death may be adjudged shall be death or a lesser punishment; (ii) The members shall determine a single, unitary sentence for all the charges and specifications for which the accused was found guilty; and (iii) The military judge shall announce the sentence determined by the members in accordance with R.C.M. 1007. (2) Sentencing by members and military judge. Unless a timely election for sentencing by members is made by the accused under paragraph (b)(2), where there is a finding of guilty for a specification for which death may be adjudged and a finding of guilty for a specification for which death may not be adjudged: (A) The members shall determine whether the sentence for each specification for which death may be adjudged shall be death or a lesser punishment; (B) The members shall determine a single, unitary sentence for the specifications for which death may be adjudged; (C) The military judge shall determine the sentence for all charges and specifications for which death may not be adjudged in accordance with paragraph (d)(2); and than one include more (D) If the sentence determined in subparagraphs (B) and (C) term of confinement, the military judge shall determine, in accordance with paragraph (d)(2), whether the terms of confinement, including any term of confinement determined by members, will run concurrently or consecutively. (E) The military judge shall ensure that the sentence, at a minimum, includes any authorized punishment determined by the members. The military judge, taking into account the noncapital offenses addressed in sentencing by the military judge, must include, at a minimum, the discharge determined by the members and may include a more severe form of discharge in the sentence. (F) The military judge shall announce the sentence this rule, in accordance with R.C.M. 1007. (f) Imposition of sentence. In sentencing an accused under impose punishment that is sufficient, but not greater than necessary, to promote justice and to maintain good order and discipline in the armed forces, taking into consideration— the court-martial shall (1) the nature and circumstances of the offense and the history and characteristics of the accused; (2) the impact of the offense on— (A) the financial, social, psychological, or medical well-being of any victim of the offense; and (B) the mission, discipline, or efficiency of the command of the accused and any victim of the offense; (3) the need for the sentence to— (A) reflect the seriousness of the offense; (B) promote respect for the law; (C) provide just punishment for the offense; (D) promote adequate deterrence of misconduct; (E) protect others from further crimes by the accused; (F) rehabilitate the accused; and (G) provide, in appropriate cases, the opportunity for retraining and returning to duty to meet the needs of the service; and (4) the sentences available under these rules. (g) Information that may be considered. The court- martial, in applying the factors listed in subsection (f) to the facts of a particular case, may consider— (1) Any evidence admitted by the military judge during the presentencing proceeding under R.C.M. 1001; and (2) Any evidence admitted by the military judge during the findings proceeding.