Other misconduct provisions Sample Clauses

Other misconduct provisions a. United States x. Xxxxx, 58 X.X. 715 (C.G. Ct. Crim. App. 2003). Pretrial agreement included a misconduct provision “that permitted the convening authority, among other things, to disregard the sentence limiting part of the pretrial agreement if the [accused] committed a violation of the UCMJ between the time the sentence was announced at her court-martial and the time the convening authority acted on the sentence.” Accused was in an unauthorized absence status for two days shortly after the end of court-martial proceedings. Relying on the misconduct provision, the convening authority approved the sentence as adjudged, rather than as would have been limited by the PTA (which would have suspended the BCD for twelve months from action). Although CGCCA had “reservations about some of the potential results of this misconduct provision, it held that provision does not violate public policy” at least as applied in this case to a sentence element that the convening authority only agreed to suspend.” Further, accused’s two-day AWOL was a “material breach” of the PTA that allowed the convening authority to be released from his obligations under the agreement. Finally, court finds that prior to finding accused violated the misconduct provision, convening authority should hold a proceeding similar to that provided for by Article 72, UCMJ and R.C.M. 1109 (vacation proceedings) and apply a preponderance of the evidence burden of proof. Although convening authority applied a lesser, incorrect burden of proof, the error was harmless.