Thursday, April 10, 2008

An interservice observation and some interservice questions

In the Air Force, the norm is for a CA to disapprove confinement in excess of the PTA's cap. In the Marine Corps and Navy -- at least as of 5 years ago when I last regularly reviewed naval ROTs -- the virtually universal practice was to suspend confinement in excess of the PTA's cap.

Questions:

1. In the Army, is the practice to suspend or disapprove confinement in excess of the PTA's cap?

2. Same question for the Coast Guard.

3. Why do Air Force SJAs and CAs prefer to cut deals in which time above the cap is disapproved rather than suspended?
Posted by Dwight Sullivan at 9:03 PM

11 comments:

John O'Connor said...

Does it really matter in most cases? Virtually all of the PTAs I saw in the Marine Corps suspended confinement only if the accused got a punitive discharge. Is it really worth bothering to vacate suspended confinement for someone who was on his way out the door anyway?

I bet the difference between the services has more to do with the macros and sample agreements that are floating around the office. I doubt there's much of a philosophical difference, because (in reality) there's not much of a practical difference between disapproval and suspension.

Thu Apr 10, 09:27:00 PM EDT
Dwight Sullivan said...

Suspensions aren't vacated often, but they sometimes are. If I were an accused, I would have a strong prefernce between suspension and disapproval.

Thu Apr 10, 09:32:00 PM EDT
Anonymous said...

joc pwned once again.

Thu Apr 10, 10:19:00 PM EDT
John O'Connor said...

Anonymous:

Huh? Only a moron would fail to realize that, as CAAFlog notes, it is better for an accused to have a disapproval than a suspension. My point was more subtle, one that apparently escaped you: that I would bet that there is no great philosophical difference that causes one service to disapprove confinement and anoher to suspend it, and the reason likely is that the counsel, CAs, and SJAs involved likely don't see much likelihood that suspended confinement will get vacated anyway. I'm not sure there's really anything CAAFlog and I disagree about on this issue.

Thu Apr 10, 10:26:00 PM EDT
Cloudesley Shovell said...

Disapprovals are probably better from the CA's standpoint as well. Has the benefit of the ability to vacate a suspension in the miniscule number of cases where it happens outweighed the numerous and common post-trial errors involving CA's actions that fail to properly implement a PTA?

The power to suspend sentences is a wonderful tool in the hands of a knowledgeable commander. Many use it effectively in the Article 15 arena to maintain good order and discipline.

However, in these days of using courts-martial as a substitute for administrative separation that shifts the burden of processing from the command to the lawyers (dumping a case over to the law center for a SpCM dive is a lot easier than setting up an admin board), commands would be far better off simplifying the process. The persistence of the "standard PTA" language is far more the product of inertia and fear of the unknown ("That's the way we've always done it!") than any rational reason.

Thu Apr 10, 10:38:00 PM EDT
Anonymous said...

The Army generally disapproves confinement in excess of the cap. The Coast Guard, in contrast, usually suspends confinement in excess of the cap.
I think our seaborne forces (Coast Guard, Navy, Marines) have it right. RCM 705(d)(2) and 1109 provide a framework for vacating that suspension if the accused violates some “future performance” provision of his PTA. Usually this is in the form of a promise to refrain from future misconduct, but could also take the form of a promise to testify against co-accused. The Coast Guard has a fairly well-established body of law on the process.
I once attempted to apply that same RCM 705(d)(2) and 1109 process to an Army PTA (that required disapproval instead of suspension) and the MJ seemed to think it violated public policy, so we just struck it entirely. The MJ also scoffed when I cited Coast Guard cases.

Fri Apr 11, 05:54:00 AM EDT
Dwight Sullivan said...

It would be an interesting experiment for Devil Dog and Navy DCs to start typing up the PTAs with the time in excess of the cap disapproved rather than suspended and see what happens.

Fri Apr 11, 07:30:00 AM EDT
Jason Grover said...

The only thing I would generally recommend to my CA to disapprove versus suspend might be a punitive discharge because, depending on the amount of confinement, we might avoid costly and lengthy appellate review. Generally though, I think most SJAs in the Navy are used to seeing suspensions of excess confinement, and thus would recommend to their CAs to only sign deals with suspensions. As Cloudesley points out, Navy COs have lots of experience with "holding it over their head" by suspending restriction or reduction at NJP and they are very comfortable and familiar with that concept from their NJPs.

Sat Apr 12, 03:11:00 AM EDT
John O'Connor said...

I think Jason Grover is right. Even though vacating suspended confinement from a court-martial is more difficult than vacating suspended confinement from an NJP, if a DC produced a PTA with disapproved confinement, I think it likely would be rejected because the TC or SJA or CA would reasist it on the grounds that they're getting something less fravorable than everybody else (e.g., the TC would be afraid of being thought soft by giving out deals with disapproved confinement when the srandard practice forever has been for suspended confinement).

Sat Apr 12, 07:18:00 AM EDT
Dwight Sullivan said...

I'm disappointed that a CAAFlog commentator as regular and beloved as JO'C violated a basic CAAFlog convention by referring to the previous poster as "Jason Grover" rather than the Super Muppet. Think of what that could lead to -- someone might even refer to the Kabul Klipper as "Marcus."

Sat Apr 12, 07:53:00 AM EDT
John O'Connor said...

If I started using your appellate defense nomenclature, I would love my cherished status as an outsider. Besides, then I might be viewed as not thinking less of defense counsel (preemptive notice: for those of you who don't know me, that last sentence is a joke).

Sat Apr 12, 09:54:00 PM EDT

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