Matters in mitigation. RCM 1001(c)(1)(B)


  1. uscourtmartiallawyers53Personal factors concerning the accused introduced to lessen the punishment; e.g., evidence of the accused’s reputation or record in the service for efficiency, fidelity, temperance, courage, etc.
  2. United States v. Demerse , 37 M.J. 488 (C.M.A. 1993). Counsel should pay particular attention to awards and decorations based on combat service.
  3. United States v. Perry , 48 M.J. 197 (1998). The CAAF upheld military judge’s decision not to instruct panel that accused stood to be found liable for $80,000 recoupment by USNA of accused’s education expenses, when separated from service prior to completion of five year commitment due to misconduct, as too collateral in this case.
  4. United States v. Simmons , 48 M.J. 193 (1998). The military judge’s prohibition on the accused from offering evidence of a civilian court sentence for the same offenses that were the basis of his court-martial was error. Civilian conviction and sentence for same misconduct may be aggravating or mitigating, but defense counsel is in the best position to decide.
  5. United States v. Bray , 49 M.J. 300 (1998). Proper mitigation evidence under RCM 1001(c) included the possibility that the accused suffered a psychotic reaction as a result of insecticide poisoning. Such evidence might lessen the adjudged sentence, and is therefore relevant.
  6. Retirement benefits.
    1. United States v. Washington , 55 M.J. 441 (2001). At time of trial, accused was a senior airman (E-4) who could retire during her current enlistment. The military judge excluded defense evidence that estimated the accused’s retirement pay if she retired after twenty years in the pay grades of E-4 and E-3. The military judge erred by refusing to admit a summary of expected lost retirement of approximately $240,000.00 if accused was awarded a punitive discharge.
    2. United States v. Boyd , 55 M.J. 217 (2001). The military judge declined to give a requested defense instruction on the loss of retirement benefits that could result from a punitive discharge. The accused had fifteen and a half years active service. The court held that there was no error in this case, but stated “we will require military judges in all cases tried after the date of this opinion (10 July 2001) to instruct on the impact of a punitive discharge on retirement benefits, if there is an evidentiary predicate for the instruction and a party requests it.”
    3. United States v. Luster , 55 M.J. 67 (2001). The military judge erred when she prevented defense from introducing evidence that would show the financial impact of lost retirement resulting from a punitive discharge. The accused had eighteen years and three months of active service. The court cautioned against using the time left until retirement as the basis for deciding whether such evidence should be admitted. The probability of retirement was not remote and the financial loss was substantial. Compare with United States v. Henderson , 29 M.J. 221 (C.M.A. 1989). The military judge correctly denied defense introduction of financial impact data about accused’s loss of retirement benefits if reduced in rank or discharged (accused was 3+ years and a reenlistment away from retirement eligibility). “[T]he impact upon appellant’s retirement benefits was not ‘a direct and proximate consequence’ of the bad- conduct discharge.”
    4. United States v. Becker , 46 M.J. 141 (1997). The MJ erred when he refused to allow accused with 19 years and 8-1/2 months active duty service at time of court-martial to present evidence in mitigation of loss in retired pay if discharged. “The relevance of evidence of potential loss of retirement benefits depends upon the facts and circumstances of the individual accused’s case.”
    5. United States v. Greaves , 46 M.J. 133 (1997). The military judge should give some instructions when the panel asks for direction in important area of retirement benefits. Accused was nine weeks away from retirement eligibility and did not have to reenlist.
    6. United States v. Sumrall , 45 M.J. 207 (1996). The CAAF recognized right of retirement-eligible accused to introduce evidence that punitive discharge will deny retirement benefits, and with proper foundation, evidence of potential dollar amount subject to loss.
    7. United States v. Polk , 47 M.J. 116 (1997). No Fifth Amendment due process violation where Master Sergeant lost substantial retired pay as result of bad-conduct discharge. Accused with twenty-three years of service proffered no other evidence of loss of retirement benefits, but in unsworn statement addressed loss if discharged. DC multiplied half of base pay times thirty years to argue severe penalty.

United States v. Demerse

United States v. Becker