Page 333 - Trump Executive Orders 2017-2021

10036 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

violation of any condition of the suspension as provided in this rule.
(b) Timeliness.
(1) Violation qf conditions. Vacation shall be based on a violation of any condition of
suspension which occurs within the period of suspension.
(2) Vacation proceedings. Vacation proceedings under this rule shall be completed within a
reasonable time.
(3) Order vacating the suspension. The order vacating the suspension shall be issued before
the expiration of the period of suspension.
( 4) Interruptions to the period qf suspension. Unauthorized absence of the probationer or the
commencement of proceedings under this rule to vacate suspension interrupts and tolls the
running of the period of suspension.
(c) Cot?finement of probationer pending vacation proceedings.
(1) Tn general. A probationer under a suspended sentence to confinement may be confined
pending action under subsection (e) of this mle, in accordance with the procedures in this
subsection.
(2) Who may order cor!finement. Any person who may order pretrial restraint under RC.M.
304(b) may order confinement of a probationer under a suspended sentence to confinement.
(3) Ra.s·isfor confinement. A probationer under a suspended sentence to confinement may
be ordered into confinement upon probable cause to believe the probationer violated any
conditions of the suspension.
( 4) Preliminary revielv of confinement. Unless vacation proceedings under subsection (d)
of this rule are completed within 7 days of imposition of confinement of the probationer (not
including any delays requested by probationer), a preliminary review of the confinement shall
be conducted by a neutral and detached officer appointed in accordance with regulations of
the Secretary concerned.
(A) Rights of confined probationer. Before the preliminary review, the probationer shall
be notified in writing of:
(i) The time, place, and purpose of the preliminary review, including the alleged
violation(s) ofthe conditions of suspension;
(ii) The right to be present at the preliminary review;
(iii) The right to be represented at the preliminary review by civilian counsel
provided by the probationer or, upon request, by military counsel detailed for this purpose;
and
(iv) The opportunity to be heard, to present witnesses who are reasonably available
and other evidence, and the right to confront and cross-examine adverse witnesses unless the
officer conducting the preliminary review detennines that this would subject these witnesses to
risk or harm. For purposes of this subsection, a witness is not reasonably available if the
witness requires reimbursement by the United States for cost incurred in appearing, cannot
appear without unduly delaying the proceedings or, if a military witness, cannot be excused
from other important duties. Witness testimony may be provided in person, by video
teleconference, by telephone, or by similar means of remote testimony.
(B) Rules t<f evidence. Only Mil. R. Evid. 301, 302, 303, 305, 412, and Section V
(Privileges) apply to proceedings under this mle, except MiL R. Evid. 412(b )(1 )(C) does not
apply. In applying these rules to a preliminary review, the tenn "military judge," as used in
these rules, shall mean the officer conducting the preliminary review, who shall assume the
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military judge's authority to exclude evidence from the hearing, and who shall, in discharging

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