Title 9 Part 515

All forces of the organized militia of New York State including the Army National Guard, the Air National Guard, the Naval Militia, the New York Guard and such additional forces as may be created by the Governor are subject to the jurisdiction of the New York State Military Law. It should be noted that when members of the organized militia are ordered to Federal active duty pursuant to title 10, United States Code, section 672 and when New York Army National Guard or Air National Guard units deploy OCONUS on title 10 orders they are also concurrently subject to the provisions and jurisdiction of the Federal Uniform Code of Military Justice (UCMJ). Therefore, members serving on inactive duty training (IDT) (drills) under title 32, section 502, or annual training (AT) under title 32, section 503, or on Federal training duty (FTTD) under title 32, or while on administrative duty, attending administrative nights or an additional training days, whether paid or unpaid, or on state active duty (SAD) are all subject to the New York State Military Law.

Part of the New York State Military Law includes article 7, The Code of Military Justice. Contained in the Code of Military Justice are the punitive articles (sections 130.73 to 130.115) which are generally offenses of a military nature. (See Part 518 of this manual). However, since the members are also subject to the penal laws of the State of New York or of the state in which they are performing duty, the punitive articles in the State Code of Military Justice do not contain the more serious offenses such as murder, manslaughter, robbery, burglary, rape, sodomy, etc. Such offenses should be referred to the police where the offense occurred. The state where the offense occurred or the United States Government may exercise jurisdiction over these or other offenses not covered in the New York State Military Law. While the New York State Code of Military Justice and this Chapter are patterned after the Uniform Code of Military Justice, 1983 and the Manual for Courts Martial—United States, 1984 respectively, the state code and rules are tailored to be more practical for a largely part-time force. In order that commanders, judge advocates and members of the organized militia be familiar with the forms and procedures utilized under the Federal active duty system, the forms and procedures utilized to process a state court-martial are the same forms utilized by the active services, as modified for State use.

The military justice system is comprised of judicial proceedings known as courts-martial and nonjudicial proceedings commonly referred to as article 15 proceedings (referring to article 15 of the UCMJ or section 130.15 of the New York State Military Law).

The goal of the courts-martial system is to achieve justice. As in American criminal courts, special and general courts-martial are adversary proceedings. That is, lawyers representing the government and the accused vigorously present the facts, law and arguments most favorable to each side following the rules of procedure and evidence. Based upon these presentations the military judge decides questions of law. The court-martial applies the law and decides questions of fact. Only a court-martial can determine the ultimate question of innocence or guilt. Any general or special court-martial conviction is a state court conviction.

The general court-martial tries the most serious offenses and may adjudge the most severe sentences authorized by law. It consists of at least five members, as well as a military judge. A GCM may consist of a military judge alone where the judge approves a written request from the accused for such trial.

Where a person is ordered into arrest or confinement when being held for trail by a general courts-martial, the charges, together with the investigation and all other papers shall be forwarded to the general courts-martial, convening authority within eight days.

No matter shall be referred by the general courts-martial convening authority to trial by general court-martial without the consideration and advice of the state judge advocate. The state judge advocate shall review the charges and specifications as to legal and factual sufficiency. He may make such formal changes to the charges as are necessary to have them conform to the evidence.

The trial counsel to whom court-martial charges are referred shall have a copy of the charge served upon the accused. In peacetime no person shall be brought to trial by general courts-martial within five days after service of charges, or in the case of a special courts-martial, within three days.

If an enlisted accused requests in writing that the court have enlisted membership, then at least one-third of the membership of the court must be enlisted personnel.

When any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority when deemed advisable by him.

The summary courts-martial is a court composed of one officer, who may be either a lawyer or a nonlawyer. However, staff judge advocates shall preside over summary courts, whenever practicable. It is designed to handle relatively minor crimes. The summary courts-martial has simplified procedures which are outlined in Appendix L-2, Guide for Summary Courts-Martial.

Where a commander determines that non-judicial punishment is the appropriate vehicle for dealing with an offense, he will resort to section 130.15 of the Military Law of the State of New York. This section is the functional equivalent of article 15 of the UCMJ. Such proceedings are governed by Part 519 of this Title.

A company grade officer in command may impose nonjudicial punishment as outlined by regulation. If a company grade officer does not feel that company grade punishment is adequate for the offense, the case should be forwarded to the field grade commander with a request that the field grade commander exercise authority under the provisions of section 130.15. See Appendix L-2, Request to Superior to Exercise Article 15 Jurisdiction, DMNA form 1058. The company grade commander may not recommend punishment. As appropriate, the field grade commander may return the case to the company grade commander for disposition. A superior may not direct a subordinate commander to take action or dictate the type of punishment to be imposed. A field grade commander may impose punishment as outlined by regulation. A general or flag officer may impose punishment as outlined by regulation.

National Guard enlisted personnel whether on orders under title 32, United States Code, or State active duty under the New York State Military Law may not demand trial by court-martial in lieu of non-judicial punishment.

(See FM 27-1, Legal Guide for Commanders.)

Regardless of how a commander learns of an alleged offense, the matter must be promptly and adequately investigated. See chapter 2, FM 27-1, Legal Guide for Commanders. However, during the course of the investigation, insure that a suspect's rights are not violated (see section 515.6 of this Part).

(See chapter 2, FM 27-1, Legal Guide for Commanders.)

(See chapter 4, FM 27-1, Legal Guide for Commanders.)

Where a commander determines that non-judicial punishment is inadequate, yet the offense does not warrant a general or special court-martial, a summary court-martial may be utilized. The commander will use DMNA form 1050 (Charge Sheet), a sample copy of which is contained in Appendix L-2. This form must be prepared in an original and four copies.

A letter of transmittal is used to forward the charge sheet and allied information to the court-martial convening authority (see Appendix L-2 [A12]). This letter contains information about the accused and the commander's specific recommendations for disposition of the charges. The commander must personally sign the letter of transmittal and attach one copy to each set of the charge sheet and allied material. When making a recommendation for the disposition of the charges, the commander should consider the nature of the offenses, the personal history of the accused, and whether the accused should be eliminated from the service. After considering these matters, the company commander should relate the punishment to the type of court-martial which may impose it. The commander must keep in mind that charges against an accused should be tried by the lowest court which has power to adjudge an appropriate and adequate punishment.

Military Police or CID reports of investigation, if available, should be forwarded with the charges. If these investigation reports are not completed when the company commander is ready to forward the charges, the charges should be forwarded with a statement saying that the reports will follow when they become available. Initial and interim reports received by the commander may be forwarded with the charge sheet. Under no circumstances should a commander delay the forwarding of charges until completion of the final CID or Military Police report.

All available witness statements should be forwarded with the charge sheet. Witness statements and summaries of expected testimony may be sworn or unsworn. While in most cases it is best to attach written statements from all available witnesses, it is not necessary to delay forwarding the charges to obtain them. Handwritten statements may be attached to the charges if the typing will cause unnecessary delay.

In order to safeguard documentary evidence, originals should not be forwarded with the charge sheet. It is sufficient to forward copies of the documents. For example, if the case is based on a forged check, it would be unwise to forward the original and risk its loss in transmittal.

This document is prepared by the personnel officer at the request of the company commander and should be forwarded with the charges.

The personal evaluation sheet, a local form, contains information concerning the accused's military record and the company commander's evaluation of the accused's conduct and efficiency.

The prompt disposition of charges is essential to our system of military justice. An unexplained delay in the processing of charges at any stage may result in the dismissal of charges. When a question concerning a delay is brought up at trial, the burden is on the State to justify the delay and show that it was not intentional or due to an oppressive design or neglect on the part of the command. The period of time for which the State is accountable starts when the accused is placed in restraint or when charges have been preferred.

The purpose of this Chapter is to provide commanders with guidance and the measures that can be taken from a military justice perspective to ensure attendance for duty of his or her members.

In order to deal with the issues of attendance of members for duty some definitions should be reviewed.

shall be punished as a court-martial may direct. The terms absent without leave (AWOL) and unauthorized absence (UA) for purposes of this Chapter are identical.

The New York State Military Law, like the Federal Uniform Code of Military Justice, 1983 (UCMJ-1983) enumerates related offenses to AWOL such as missing movement, New York State Military Law, section 130.83 and desertion, New York State Military Law, section 130.81.

Unit commanders, unit personnel officers, or personnel noncommissioned officers (NCO's) must ensure that members are fully aware of and understand their obligations. The members must further be made aware of the prerequisites for participation and the actions that will result from unsatisfactory participation. This information is furnished members by:

In order to reduce unauthorized absences, the commander shall employ the following measures:

Note:

Procedures in paragraphs (5)-(11) of this subdivision can only be accomplished through non-judicial punishment or courts-martial. Nonjudicial punishment is administered in accordance with Part 519 of this Title. Measures such as restriction, withholding of privileges and extra duties should not be imposed when the member is in IDT status.

Counseling is the least severe procedure in the management of improper conduct. Counseling should be informal and private. It is used to correct behavior which will require disciplinary measures, if continued. Counseling is a positive nondisciplinary management tool used primarily to correct or improve future behavior or conduct.

The admonition, either oral or written, is suitable for first time AWOL's. This is the lowest level of a disciplinary action and, in effect, serves as a first time warning that, if the AWOL is repeated, more severe discipline may be imposed. When imposing this form of discipline, the member should be allowed to explain his or her actions and offer facts in mitigation or justification. The member should also be specifically advised that, if the misconduct is repeated more severe discipline will be imposed. An admonition may be included in a reprimand.

If the foregoing measures prove fruitless to deter future AWOL's, the commander should consider disciplinary measures such as non-judicial punishment pursuant to New York Military Law, section 130.15 (see Part 519 of this Title) or courts-martial pursuant to article 7 of the New York State Military Law (see Parts 515 and 516 of this Title) and New York State Manual for Courts-Martial.

If the individual continues to accrue unauthorized absences after the foregoing measures have been utilized, the commander should seriously consider separation from the military pursuant to chapter 7, NGR 600-200 or appropriate Air Force regulations.