Amendment to Chapter XXIV of E.O. No. 178 (s. 1938) Re: Manual for Courts-Martial, AFP

January 28, 1985

EXECUTIVE ORDER NO. 1005

AMENDING CHAPTER XXIV (SECTION 105 THRU 109) OF EXECUTIVE ORDER NO. 178, DATED DECEMBER 17, 1938, OTHERWISE KNOWN AS THE "MANUAL FOR COURTS-MARTIAL, ARMED FORCES OF THE PHILIPPINES"

Pursuant to the authority vested in me by Article 37 of Commonwealth Act No. 408, as amended, entitled "An Act for making further and more effectual provision for the national defense by establishing a system of military justice for persons subject to military law," I, FERDINAND E. MARCOS, President of the Republic of the Philippines, do hereby prescribe, consonantly to the provisions of Article of War 105, as amended, the attached rules amending Chapter XXIV (Sections 105 thru 109) of Executive Order No. 178, dated December 17, 1938, otherwise known as the "Manual for Courts-Martial, Armed Forces of the Philippines." cdt

DONE in the City of Manila, this 28th day of January, in the year of Our Lord, Nineteen Hundred and Eighty-Five.

Attachment

CHAPTER XXIV

Disciplinary Power of Commanding Officer

AUTHORITY — POLICIES APPLICABLE — EFFECT OF ERRORS — PUNISHMENTS — PROCEDURES; RECORDS OF PUNISHMENT — SUSPENSION, MITIGATION, REMISSION, AND SETTING ASIDE-APPEALS — MISCELLANEOUS

105. Authority.  a. Who May Impose Disciplinary Punishment. — For statutory basis of authority, see A.W. 105. The commanding officer of any detachment, company, battalion, squadron, commissioned vessel, or higher, command may, for minor offenses, impose disciplinary punishments upon persons of his command who are subject to military law, including officers, without the intervention of a court `martial. For purposes of A.W. 105, the following shall be deemed as "commanding officers" with respect to persons on detached service or assigned to their respective offices who are subject to military law: the Vice Chief of Staff, The Deputy Chief of Staff, the Deputy Chief of Joint Staff of the Armed Forces of the Philippines; the Chiefs of the Special, Administrative, Technical and Personal Staffs, General Headquarters, Armed Forces of the Philippines; and the Chiefs of the General Staff of the Major Services and Unified Commands of the Armed Forces of the Philippines. The terms "detached service" and "assigned" as used herein have the same meaning as the terms "of his command."

b. Delegation Prohibited. — The authority of a commanding officer under A.W. 105 can not be delegated, but communications with respect thereto may be signed or transmitted by him personally or as provided for official communications in general. However, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may specifically delegate his powers under A.W. 105 to an officer who is one of his principal assistants. Unless otherwise prescribed by these regulations or the terms of the delegation, the officer to whom these powers are delegated has the same authority under A.W. 105 as the officer who delegated the powers. cHDAIS

c. Minor Offenses. — The term "offenses", as used in connection with the authority to impose disciplinary punishment under A.W. 105 for minor offenses, includes only those acts or omissions punishable under the Articles of War. Whether or not an offense may be considered as "minor" depends upon its nature, the time and place of its commission, the persons committing it, and other circumstances surrounding its commission. Generally, the term includes derelictions not involving moral turpitude or any greater degree of criminality than is involved in the average offense tried by summary court martial. An offense for which the Articles of War prescribe a mandatory punishment or authorize the punishment of dishonorable discharge, or bad conduct discharge, or penitentiary confinement (See A.W. 41), is not a minor offense.

d. Nonpunitive Measures. — A.W. 105 and the provisions of this chapter do not apply to, include or limit the use of those nonpunitive measures that a commanding officer is authorized and expected to use in order to further strengthen the efficiency of his command or unit, such as administrative admonitions, reprimands, exhortations, disapprovals, criticisms, censures, reproofs and rebukes, written or oral, not intended or imposed as a punishment, but as a purely corrective measure, more analogous to instruction than to punishment, in the strict line of his duty to create and maintain efficiency.

106. POLICIES.  a. General. — Commanders are responsible for the maintenance of discipline within their commands. In the great majority of instances, discipline can be maintained through effective leadership including, when required, the use of nonpunitive measures which a commander is expected to use to further the efficiency of his command or unit (See Sec. 105d). A commanding officer should resort to his power under A.W. 105 in every case where that article applies and where nonpunitive measures are considered insufficient, unless it is clear that punishment under that article would not meet the needs of justice and discipline. Superior commanders should restrain any tendency of subordinate commanders to resort unnecessarily to court-martial jurisdiction for the punishment of offenders.

b. Referral to Superior Authority. — If a commanding officer determines that his authority under A.W. 105 is insufficient to make a proper disposition of the case, he may refer the case to a superior commander for appropriate disposition.

c. Evaluation. — Before exercising authority under A.W. 105, a commanding officer must thoroughly evaluate each case. No policy may be established whereby certain categories of offenses must be disposed of under A.W. 105 regardless of the circumstances, or predetermined kinds or amounts of punishments must be imposed for certain classifications of offenses that are proper for disposition under A.W. 105.

d. Matters to be Considered in Determining Appropriate Punishments; Suspension. — Punishments under A.W. 105 are primarily corrective in nature. In determining the appropriate kind and amount of punishment to be administered, commanding officers should consider, the age, experience, intelligence, and prior disciplinary and military record of the offender, as well as all the other facts and circumstances of the case. In the selection of the appropriate kind or combination of punishments to be imposed, the nature and characteristics of the various forms of authorized punishments discussed in Section 108 should be considered. This information should also be used by superior authority to whom appeals from punishments imposed under A.W. 105 are directed when he takes action on those appeals.

In determining an appropriate punishment, commanders should consider the desirability of suspending probationally all or a portion of the punishment selected. Probational suspension of punishment normally is warranted in the case of first offenders or when persuasive extenuating or mitigating matters are present. Suspension not only provides a behavioral incentive to the offender, but also affords the commander an excellent opportunity to evaluate the offender during the period of suspension.

107. Effect of Errors. — Any failure to comply with any of the procedural provisions of this chapter will not invalidate a punishment imposed under A.W. 105, except to the extent that may be required by a clear and affirmative showing of injury to a substantial right of the person on whom the punishment was imposed, which right was neither expressly nor impliedly waived.

108. Punishments. — a. Authorized Maximum Punishments. — In addition to, or in lieu, of, admonition or reprimand, the various categories of commanding officers authorized in A.W. 105 and this chapter (See Sec. 105a) may impose upon military personnel of their commands, one or more of the following disciplinary punishments:

(1) Upon commissioned officers of his command —

(a) By any commanding officers —

(i) Withholding of privileges for not more than 30 consecutive days;

(ii) Restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days;

(iii) Arrest in quarters for not more than 15 consecutive days;

(iv) Forfeiture, of not more than one-half of one month's base pay;

(v) Detention or withholding of not more than one-half of one month's base pay per month for three months;

(vi) Deprivation of liberty on shore not exceeding 30 consecutive days, with respect to those attached to or embarked in a commissioned vessel of the Philippine Navy. SaTAED

b) By an officer exercising general court-martial jurisdiction or an officers of general flag rank in command —

(i) Withholding of privileges for not more than 60 consecutive days;

(ii) Restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(iii) Arrest in quarters for not more than 30 consecutive days;

(iv) Forfeiture of not more than one-half of one month's base pay per month for three months;

(v) Detention or withholding of not more than one-half of one month's base pay per month for six months;

(vi) Deprivation of liberty on shore not exceeding 60 consecutive days, with respect to those attached to or embarked in a commissioned vessel of the Philippine Navy.

(2) Upon other military personnel of his command —

(a) By any commanding officer —

(i) Withholding of privileges for not more than 30 consecutive days;

(ii) Restriction to certain specified limits, with or without suspension from duty, for not more than. 30 consecutive days;

(iii) Arrest in quarters for not more than 15 consecutive days;

(iv) Forfeiture of not more than one-half of one month's base pay;

(v) Detention or withholding of not more than one-half of one month's base pay per month for three months;

(vi) Hard labor without confinement for not more than 15 consecutive days;

(vii) Confinement not under guard for not more than 15 consecutive days;

(viii) Correctional custody for not more than 15 consecutive days;

 

(ix) Extra duties, including fatigue or other duties, for not more than 15 consecutive days;

(x) Reduction to one or two inferior pay grades, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction;

(xi) With respect to those attached to or embarked in a commissioned vessel of the Philippine Navy, deprivation of liberty on shore not exceeding 30 consecutive days, or confinement on bread and water or diminished rations for not more than five consecutive days.

(b) By a commanding officer in the grade of Lieutenant Colonel or Commander or above —

(i) Withholding of privileges for not more than 60 consecutive days;

(ii) Restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days;

(iii) Arrest in quarters for not more than 30 consecutive days;

(iv) Forfeiture of not more than one-half of one month's base pay for two months;

(v) Detention or withholding of not more than one-half of one month's base pay per month for four months;

(vi) Hard labor without confinement for not more than 30 consecutive days;

(vii) Confinement not under guard for not more than 30 consecutive days;

(viii) Correctional custody for not more than 30 consecutive days;

(ix) Extra duties, including fatigue or other duties, for not more than 45 consecutive days;

(x) Reduction to the lowest or any intermediate inferior pay grade, if the grade from which demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades;

(xi) With respect to those attached to or embarked in a commissioned vessel of the Philippine Navy, deprivation of liberty on shore not exceeding 60 consecutive days, or confinement on bread and water or diminished rations for not more than five consecutive days.

b. Enforcement of Punishment; Degrading Punishments Prohibited. — Punishment will be strictly enforced. Any failure in this respect has, if anything, a worse effect on discipline than an unwarranted condonation of the offense for which the punishment was imposed. Except as otherwise prescribed, the immediate commanding officer of the person upon whom the punishment is imposed is charged with the execution of the punishment imposed pursuant to A.W. 105. No form or punishment is permitted which tends to demean or degrade the rank or position of the person on whom such punishment is imposed.

c. Nature of Punishments. — (1) Admonition and Reprimand. — When admonition or reprimand is imposed as a punishment under A.W. 105, it should be clearly indicated that it is imposed as a punishment under that article. (See Sec. 105d as to admonitions and reprimands imposed as purely administrative measures). An admonition or reprimand may be imposed in lieu of or combined with other punishments authorized under A.W. 105.

(2) Restriction. — Restriction, which is the least severe form of deprivation of liberty, involves moral rather than physical restraint. Restriction may be from a specified geographical limits, and the person undergoing this form of punishment may be required to report to a designated place at specified times, if it is considered reasonably necessary to insure that the punishment is being properly executed. Unless otherwise specified in the restriction order, a person in restriction may be required to perform any military duty. HaTDAE

(3) Arrest in Quarters. — As in the case of restriction, the restraint involved in this punishment is enforced by moral obligation rather than by physical means. An Officer undergoing punishment of arrest in quarters may be required to perform any military duty or duties prescribed by regulations promulgated by the Minister of National Defense. However, a military person so punished is required to remain within his quarters during the period of punishment unless the limits of his arrest are otherwise extended by appropriate authority. Quarters of a military person may consist of his military residence, whether a tent, barracks or other quarters assigned to him, or a private residence occupied by him when he has not been furnished government quarters.

(4) Correctional Custody. — It is the physical restraint of a person during duty or non-duty hours, or both, and may include extra duties or fatigue duties. If practicable, this form of restraint should not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial.

(5) Confinement. — The restraint involved in this punishment is enforced by physical means by being imprisoned in the guard house. Confinement under guard or control of a guard is not authorized.

(6) Confinement on Bread and Water or Diminished Rations. — This punishment may be imposed only upon enlisted persons attached to or embarked in a commissioned vessel of the Philippine Navy. It involves confinement in a place where the person so confined may communicate only with authorized personnel. The ration to be furnished a person undergoing a punishment of confinement on diminished rations is that specified by the authority charged with the administration of the punishment, but the ration may not consist solely of bread and water, unless this punishment has been specifically imposed. When punishment on bread and water or diminished rations is imposed, a signed certificate of a medical officer containing his opinion that no serious injury to the health of the person to be confined will be caused by that punishment, must be obtained before the punishment is executed. The certificate, which shall be attached to the record of proceedings, shall be in the following form:

"I certify that from an examination of __________________________, and of the place where he is to be confined, I am of the opinion that the execution of the foregoing sentence to confinement on (bread and water) (diminished rations) will (not) produce serious injury to his health."

A person is attached to or embarked in a vessel if, at the time the disciplinary punishment is imposed, he is assigned or attached to the vessel, is on board for passage, or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group, or other regularly organized body.

(7) Extra Duties. — This involves the performance of duties in addition to those normally assigned to the person undergoing the punishment. It may include fatigue duties, Military duties of any kind may be assigned as extra duty. (But see Sec. 108b);

(8) Reduction in Grade. — This is one of the most severe forms of disciplinary punishment which may be imposed as penalty for misconduct. A commander, therefore, should exercise his authority to effect a reduction with discretion. As used in A.W. 105, the phrase, "if the grade from which demoted is within the authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction" does not refer to the authority to promote the individual concerned but to the general authority to promote to the grade held by the individual to be punished.

(9) Forfeiture of Basic Pay. — Forfeiture involves a permanent loss of entitlement to the basic pay forfeited. "Basic pay" includes no element of pay other than the basic pay fixed by statute or regulations for the grade of the individual concerned. It excludes additional pay such as longevity pay, flying pay, hazardous duty pay, incentive pay, combat pay, specialist pay, sea duty pay, etc. If the punishment includes both reduction, whether or not suspended, and forfeiture of pay, the forfeiture must be based on the grade to which reduced. Also, any monthly contribution from his pay that a military person is required by law to make to entitle him to benefits under the said law must be deducted before the net amount of pay subject to forfeiture is computed. The amount to be forfeited will be expressed in peso amounts only (not in peso and centavos) and not in a number of days' pay or fractions of monthly pay. If the forfeiture is to be applied for more than one month, the amount to be forfeited per month and the number of months should be stated. Forfeiture of pay may not extend to any pay accrued before the date of its imposition.

(10) Detention or Withholding of Basic Pay. — Unlike a forfeiture of pay, a detention or withholding of pay involves only a temporary withholding of pay involves only a temporary withholding of pay, and in no case shall extend beyond the offender's term of service. The period for which the pay is to be withheld must be specified at the time the punishment of detention is imposed. As in the case if forfeiture of pay, only basic pay may be withheld, and that any monthly contribution from his pay that any military person is required by law to make to entitle him to the benefits under said law must be deducted before the net amount of pay subject to withholding is computed. The amount to be withheld will be expressed in peso amounts only (not in pesos and centavos) and not in a number of days' pay or fractions of monthly pay. If the withholding is to be applied for more than one month, the amount to be withheld per month and the number of months should be stated. if the punishment includes both reduction, whether or not suspended, and withholding, the withholding must be based on the grade to which reduced. The amount of pay withheld is returned to the offender at the expiration of the specified period of withholding or the offender's term of service, whichever is earlier. Withholding of pay may not extend to any pay accrued before the date of its imposition.

d. Combination and Apportionment. — (1) Restriction and extra duties may be combined to run concurrently, but the combination may not exceed the maximum duration imposable for extra duties. Restriction or extra duties may also be combined to run concurrently with correctional custody but not beyond the maximum duration imposable for correctional custody. Restriction may be combined to run concurrently with arrest in quarters but not beyond the maximum duration imposable for arrest in quarters. Correctional custody inherently includes a form of restriction and may include extra duties. Arrest in quarters and restriction, or two or more of the punishments of correctional custody, extra duties, and restriction may not be combined to run consecutively in the maximum amount imposable for each. All of these punishments are in the nature of deprivation of liberty, and when they are combined to run concurrently there must be an apportionment as provided herein.

Forfeiture of basic pay and withholdings of basic pay may not be combined to run either concurrently or consecutively without and apportionment. Both punishments amount to a deprivation of entitlement to pay, either permanently or temporarily. A commanding officer may also impose forfeiture or withholding of pay, or a properly apportioned combination of these punishments, with a reduction in grade. Confinement on bread and water or diminished rations may not be imposed in combination with correctional custody, extra duties or restriction.

Where an apportionment is required when complying certain punishments the following Table of Equivalent Disciplinary Punishments will be used in substituting one form of punishment for another:

 

TABLE OF EQUIVALENT DISCIPLINARY PUNISHMENTS
Kind of Punishment	Upon Commissioned Officers	Upon Other Personnel
Arrest in quarters	1 day	1 day
Restriction	2 days	2 days
Extra duties	—	1 1/2 day *
Correctional custody	—	1 day
Forfeiture of pay	1 day's pay	1 day's pay
Withholding of pay	1 1/2 day's pay	1 1/2 day's pay

*The factors designated by asterisks are 2 instead of 1 1/2 when the punishment is imposed by a commanding officer below the grade of lieutenant colonel or commander. The punishment of forfeiture and withholding of basic pay may not be substituted for the other punishments listed in the table, nor may those other punishments be substituted for forfeiture or withholding of pay.

(2) Illustrations:

(a)A commanding officer in the grade of lieutenants colonel or commander, or above, may impose upon an enlisted person punishment consisting of restriction for 20 days, extra duties for 15 days, and correctional custody for 10 days to run consecutively using the following calculations: the authorized maximum restriction imposable is 60 days, of which only 20 days have been imposed; 15 days extra duties can be substituted for 20 of the unused days of restriction (1 1/2 for 2); and 10 days of correctional custody can be substituted for the remaining 20 days of unused restriction to limit (1 for 2).

(b)A commanding officer with GCM jurisdiction may impose upon a commissioned officer a forfeiture of 5 days' pay and a detention of 10 days' pay pay for the first month; the same forfeiture and detention for the second month, the same forfeiture and detention for the third months, and a detention of 15 days' pay for the fourth month. This is calculated as follows: the total amount that may be forfeited is one-half of one month's pay month for three months, or 45 days' pay. However, a total of only 25 days' pay has been forfeited, leaving a total permissible detention of 30 days' pay (20 x 1 1/2). The monthly allocation of forfeitures and detention, shown in this illustration, has been made because (A) the combination of punishments may not operate so as to deprive the offender of more than one-half of his monthly pay in any one month, and (B) the forfeiture may not be imposed beyond the third month. Other allocations, equally within the above principles, could be made.

(3) Use of the Table. — The Table of Equivalent Disciplinary Punishments may be used only when punishment is initially imposed. It may not be used in mitigating punishment or at the time of vacation of suspension of punishments, e.g., a punishment of 30 days correctional custody may not at the end of 20 days, be mitigated to restriction for more than 10 days as only 10 days of the original punishment remains unserved. A punishment of 30 days correctional custody which has been suspended may not at the time of the vacation of the suspension be mitigated to restriction for more than 30 days.

e. Effectivity of Punishments. — Disciplinary punishments imposed under the authority of A.W. 105, if unsuspended, shall take effect and will be carried into execution on the date the offender is informed of the imposition of punishment upon him. If the punishment is suspended, but thereafter vacated, they shall take effect on the date the commanding officer orders the vacation of the suspension.

109.PROCEDURE, RECORDS OF PUNISHMENT.  — a. Notification of Imposition of Punishment. — The commanding officer, upon ascertaining to his satisfaction from the investigation conducted that an offense cognizable by him under A.W. 105 has been committed by a member of his command, will proceed to impose the punishment. The member will be notified in writing of the misconduct or offense committed by him. The member shall also be directed to acknowledge receipt by similar indorsement through proper channels, and to include in his indorsement the date of such receipt, and any appeal (See Section 109-B) he may desire to make. The immediate commanding officer of the member will be informed of the matter and given the necessary data for the record.

b. Proceedings. — The investigation will be conducted in writing in all cases involving commissioned officers and in all cases in which the punishment includes reduction in grade, confinement on bread and water or diminished rations, correctional custody, restriction or extra duties for more than 30 days, or forfeiture or withholding of pay. In other cases, the proceedings may be in writing or may be conducted orally, following the same sequence. However, in any case the erring member shall be informed of the charge of accusation against him and given the opportunity to refute the same by the submission of counterevidence in his behalf. Where the member waives his right to be investigated, the commanding officers may proceed to determine and impose the appropriate disciplinary punishment. Also, in any case, the member may be permitted to appear in person before the officer authorized to impose the punishment, and to submit any matter desired in mitigation, extenuation, or defense. Any written statements or other documentary evidence pertaining to the case which have been considered by the officer authorized to impose the punishment shall be attached to the file of the case. When oral proceedings are conducted, the commander will cause a summarized record to be made and filed (See Section 109f).

c. Investigating Officer. — The commanding officer may designate an officer to conduct the investigation described above and that officer shall thereafter promptly transmit to him a summary transcript of all information presented at the investigation and the quantum of punishment to be imposed. receipt of the transcript, punishment, under A.W. 105 may be imposed without further hearing.

d. Record of Court of Inquiry, etc. — The record of a court of inquiry, board of officers or other fact-finding body, in which proceeding the member was accorded the rights of a party with respect to an act or omission for which disciplinary punishment is contemplated, may be substituted for the impartial hearing required above. SAHEIc

e. Summary Transcript. — A summary transcript of all information presented in the investigation and having any bearing on the guilt or innocence of the member and the quantum of punishment to be imposed, or a copy of the report of a court of inquiry, board of officers or other fact-finding body, together with any additional evidence presented by the member, shall be forwarded to the next superior authority when that reference is made under the policies set forth in Section 106. If the superior competent authority imposes punishment under A.W. 105, the member shall be notified personally or in writing as soon as practicable of the punishment imposed.

f. Unit A.W. 105 Punishment Record. — As to each offense for which punishment is imposed under A.W. 105, the immediate commanding officer of the person on whom such punishment was imposed will cause a record to be made and filed in his office or other proper place, showing the offense, the authority that imposed it, the date the accused received the notice of the imposition of punishment, the decision of superior authority, on any appeal, any mitigation or remission of the punishment, and any remarks or additional data desired. Copy of such record of punishment shall be entered into the permanent military personal file of the member concerned.

109-A. Suspension, Mitigation, Remission, and Setting Aside. — a. The officer who imposes the punishment or his successor in command or superior authority, may, at any time, suspend probationally any part or amount of the unexecuted portion of the punishment imposed, and may suspend probationally a reduction in grade or a forfeiture imposed whether executed or not executed. He may also at any time remit or mitigate any part or amount of the unexecuted portion of the punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and property affected. He may also mitigate reduction in grade, whether executed or unexecuted, to forfeiture or detention of pay.

b. The following rules shall be observed regarding suspension of punishments:

(1) An executed punishment of reduction or forfeiture may be suspended only within a period of three months after the date of its imposition.

(2) Suspension of a punishment may not be for a period longer than four months from the date of the suspension, and the expiration of the current enlistment or terms of service of the person involved automatically terminates the period of suspension.

(3) Unless the suspension is sooner vacated, the suspended portions of the punishment are remitted, without further action, upon the termination of the period of suspension.

(4) Vacation of suspension may be effected by any commanding officer competent to impose upon the offender concerned punishment of the kind and amount involved in the vacation of suspension.

(5) Although a formal hearing is not necessary to vacate a suspension, the probationeer should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate suspension of the punishment to rebut any derogatory or adverse information upon which the proposed vacation is based, and may be given the opportunity so to appear in any case.

c. When mitigating (1) arrest in quarters to restriction; (2) confinement on bread and water or diminished rations to correctional custody; (3) correctional custody or confinement on bread and water or diminished rations to extra duties or restriction, or both; or (4) extra duties to restriction, the mitigated punishment may not be for a greater period than the punishment mitigated. For Example, if a punishment of arrest in quarters for 30 days is to be mitigated to restriction to specified limits the duration of the restriction may not exceed 30 days. Similarly, when mitigating forfeiture to withholding, the amount of the withheld pay may not be greater than the amount of the forfeiture. When mitigating reduction in grade to forfeiture or withholding, the amount of the forfeiture or withheld pay may not be greater than the amount that could have been imposed initially under A/W. 105 by the officer who imposed the punishment mitigated. Thus, if a commander in grade below lieutenant colonel or commander imposes a reduction and it is later mitigated by him or superior authority, the maximum mitigated punishment would be one-half of one month's base pay forfeiture of pay or one-half of one month's base pay for month for three months withholding of pay (Section 108d). Restriction may not be mitigated to a lesser period of other punishments in the nature of deprivation of liberty, such as correctional custody or extra duties, for restriction is the least severe form of deprivation of liberty.

d. The power to set aside punishments and restore rights, privileges, and property affected by the executed portion of a punishment should ordinarily be exercised only when the authority considering the case believes that, under all the circumstances of the case, the punishment has resulted in a clear injustice. Also, the power to set aside an executed punishment and mitigate a reduction in grade to a forfeiture or withholding of pay should ordinarily be exercised only within a reasonable time after the punishment has been executed. In the absence of unusual circumstances, three months is a reasonable time.

e. An application for suspension, mitigation, remission, or setting aside of the punishment, in whole or in part, not made within a reasonable time may be rejected by the authority to whom the application is made. An application made more than fifteen days after the punishment was imposed, in the absence of unusual or special circumstances, may be considered as not having been made within a reasonable time.

109-B. Appeals. — A person punished under authority of A/W. 105 who deems his punishment unjust or disappropriate to the offense may, through proper channels, appeal to the next superior authority, but may in the meantime be required to undergo the punishment adjudged. An appeal not made within a reasonable time may be rejected by the next superior authority. In the absence of unusual circumstances, an appeal made more than 30 days after the punishment was imposed may be considered as not having been made within a reasonable time. Authority "superior" to a particular commanding officer is the authority normally superior in the chain of command. However, when the punishment has been imposed under a delegation of a commander's power to impose disciplinary punishment (See Section 105b), the appeal will not be directed to that commander.

Appeals will be in writing through proper channels and will include a brief signed statement of the reasons for regarding the punishment as unjust or disproportionate. The immediate commanding officer of the accused will, when necessary, include with the appeal a copy of the record in the case. Before acting on an appeal from any punishment of arrest in quarters for more than 10 days; correctional custody for more than 10 days; forfeiture of more than seven days' pay; reduction of one or more pay grades from the fourth or higher pay grade; extra duties for more than 15 consecutive days; restriction for more than 15 days, or detention or withholding of pay for more than 15 days, the superior authority shall refer the case to his judge advocate or legal officer for consideration and advice, and may so refer the case upon appeal from any punishment imposed under A.W. 105. If the superior authority has no judge advocate or legal officer serving on his staff, he may refer the case for action to a superior authority who has a judge advocate or legal officer serving on his staff. In considering the case, the judge advocate or legal officer is not limited to an examination of any written matter comprising the record of proceedings and may make inquiries he determines to be desirable.

The superior authority will, in passing upon appeal, ordinarily hear no witnesses. He may exercise the same powers with respect to the punishment imposed as may be exercised under A.W. 105 by the officer who imposed the punishment or his successor in command. Thus, under the conditions set forth in sections 108 and 109-A, he may suspend, remit, mitigate, or set aside in whole or in part the punishment imposed.

After having considered the appeal, the superior authority will transmit the papers, through channels, to the appellant's immediate commanding officer with a direction to inform the appellant of the disposition of his appeal.

Under A.W. 105, any superior authority may exercise the same powers as may be exercised by the officer who imposed the punishment or his successor in command under section 108 and 109-A, whether or not an appeal has been made from the punishment. A superior authority who is a commanding officer exercising general court-martial jurisdiction or is an officer of general or flag rank in command may delegate the powers he has as superior authority under this chapter to a principal assistant.

109-C. Miscellaneous. — a. Not bar to trial, etc. — The imposition and enforcement of disciplinary punishment under A.W. 105 for an act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission and not properly punishable under A.W. 105. (See Section 71a). However, the accused may show at the trial that he has been punished under A.W. 105 and, when so shown, this fact shall be considered in determining the measure of punishment to be adjudged if a finding of guilty result.