Continued From Part 4 -- Appeals
Clemency action is a reduction in the severity of punishment done at the discretion of the officer authorized to take such action for whatever reason deemed sufficient to him/her. Remedial corrective action is a reduction in the severity of punishment or other action taken by proper authority to correct some defect in the NJP proceeding and to offset the adverse impact of the error on the accused's rights.
The following officials have authority to take clemency action or remedial corrective action:
1. The officer who initially imposed the NJP
2. The authority who initially imposed the NJP (the office rather than the officer)
3. the successor in command over the person punished
4. the superior authority to whom an appeal from the punishment would be forwarded, whether or not such an appeal has been made
5. the commanding officer or officer in charge of a unit, activity, or command to which the accused is properly transferred after the imposition of punishment by the first commander, and
6. the successor in command of the latter.
The types of action that can be taken either as clemency or corrective action are setting aside, remission, mitigation, and suspension.
Setting aside punishment. This power has the effect of voiding the punishment (or any part or amount thereof) and restoring the rights, privileges, and property lost to the accused by virtue of the punishment imposed. This action should be reserved for compelling circumstances where the commander feels a clear injustice has occurred. This means, normally, that the commander believes the punishment of the accused was clearly a mistake.
Remission. This action relates to the unexecuted parts of the punishment; that is, those parts which have not been completed. This action relieves the accused from having to complete his punishment, though he may have partially completed it. Rights, privileges, and property lost by virtue of executed portions of punishment are not restored, nor is the punishment voided as in the case when it is set aside. The expiration of the current enlistment or term of service of the servicemember automatically remits any unexecuted punishment imposed under article 15.
Mitigation. Generally, this action also relates to the unexecuted portions of punishment. Mitigation of punishment is a reduction in the quantity or quality of the punishment imposed; in no event may punishment imposed be increased so as to be more severe.
Without increasing quantity, the following reductions by mitigation may be taken:
(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 (to run concurrently), or
(4) extra duties to restriction
The length of the deprivation of liberty or the amount of forfeiture or other money punishment can also be reduced and, hence, mitigated without any change in the quality (type) of punishment.
Reduction in grade. Reduction in grade, even though executed, may be mitigated to forfeiture of pay. The amount of forfeiture can be no greater than that which could have been imposed by the mitigating commander had he initially imposed punishment. This mitigation may be done only within four months after the date of execution.