1. A. General. A commander may vacate any suspended punishment provided the punishment is of the type and amount the commander could impose and where the commander has determined that the servicemember has committed misconduct (amounting to an offense under the LCMJ) during the suspension period. A suspension may be vacated by any non-judicial punishment authority or commander competent to impose upon the servicemember concerned punishment of the kind and amount involved in the vacation of suspension. [See Para 4-16(c) and
   Figure 4-9.]
2. B. Procedure. The commander is not bound by the formal rules of evidence before courts-martial, and may consider any matter, including unsworn statements; the commander reasonably believes to be relevant to the misconduct. There is no appeal from a decision to vacate a suspension. Unless the vacation is undertaken prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. Misconduct resulting in vacation of a suspended punishment may also be the basis for the imposition of another
   Article 15.
3. C. Servicemember's Right to Rebut. The commander should, unless impracticable, give the servicemember an opportunity to rebut the information on which the proposed vacation is based. This may be by personal appearance or in writing, at the discretion of the commander. Failure to provide prior notification and/or an opportunity to appear or otherwise respond to the basis of a proposed vacation will not, by itself, render a vacation action void, though it may render the record of non-judicial punishment inadmissible in any subsequent court-martial.
4. D. Vacation Not Considered NJP. Vacation of a suspended non-judicial punishment is not itself non-judicial punishment and additional action to impose non-judicial punishment for a violation of a punitive article of the code upon which the vacation action is based is not precluded thereby.

Authority Note

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).

Historical Note

HISTORICAL NOTE: Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2366 (November 2009).