9 NYCRR Part 519 - Executive Department

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9 NYCRR 519.1 - Applicable policies

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NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Aug 15, 2022

(a)General.

The administration of non-judicial punishment in the State military forces shall be governed by section 130.15 of the Military Law of the State of New York, by the Manual for Courts-Martial, United States, 1984 and AR 27-10 dated 25 September 1986, as amended, except insofar as the provisions of the Manual for Courts-Martial and AR 27-10 may be inconsistent with the State Code or inconsistent with or modified by this Part and Part V, NY Manual for Courts-Martial. Any inconsistency with this Part and any of the above cited references shall be resolved in favor of this Part and Part V, NYMCM.

(b)Use of non-judicial punishment.

(1)A commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment. Use of non-judicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that non-judicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for non-judicial punishment to have the proper corrective effect. Non-judicial punishment may be imposed to:

(i)correct, educate and reform offenders who the imposing commander determines cannot benefit from less stringent measures;

(ii)preserve a member's record of service from unnecessary stigma by a record of court-martial conviction; and

(iii)further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

(c)Relationship of non-judicial punishment to nonpunitive measures.

(1)General.

Non-judicial punishment is imposed to correct misconduct in violation of the State Code of Military Justice. Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct. Non-punitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life and similar deficiencies. These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.

(2)Included among nonpunitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training, bar to reenlistment, and MOS reclassification. Certain commanders may administratively reduce enlisted personnel for inefficiency and other reasons. This authority exists apart from any authority to punish misconduct under Military Law, section 130.15. These two separate and distinct kinds of authority must not be confused (AR 600-200).

(3)Reprimands and admonitions.

(i)Commanding Officers have authority to give admonitions or reprimands either as an administrative measure or as non-judicial punishment. If imposed as a punitive measure under section 130.15 the procedure set forth in section 519.3 of this Part must be followed.

(ii)A written administrative admonition or reprimand will contain a statement that it has been imposed as an administrative measure and not a punishment under section 130.15 (AR 600-37). Admonitions and reprimands imposed as punishment under section 130.15, whether administered orally or in writing (para 5c(1), Part V, MCM), should state clearly that they were imposed as punishment under that section.

(4)Extra training or instruction.

One of the most effective nonpunitive measures available to a commander is extra training or instruction (AR 600-200). It is used when a member's duty performance has been substandard or deficient; e.g., a member who fails to maintain proper attire may be required to attend classes on the wearing of the uniform and stand inspection until the deficiency is corrected. The training or instruction should relate directly to the deficiency observed and should be oriented to correct that particular deficiency. Extra training or instruction may be conducted after duty hours.

(5)Administrative reductions.

These reductions may be made at the member's request to avoid adverse action. If taken to avoid such adverse action, reductions will state that the action was taken “with prejudice”. (See para 6-33, AR 600-200).

(d)Personal exercise of discretion.

A commander who is considering a case for possible disposition under section 130.15 will personally exercise discretion in:

(1)evaluating the case to determine whether non-judicial punishment should be imposed;

(2)determining the amount and nature of any punishment, if punishment is appropriate.

9 NYCRR 519.2 - Authority

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NYCRR title agency: Executive Department
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Source version current through: Aug 15, 2022

(a)Who may impose non-judicial punishment.

Unless otherwise specified in this Part, any commander is authorized to exercise the disciplinary powers conferred by section 130.15.

(1)The term commander, as used in this section, is a commissioned or warrant officer who, by virtue of his or her grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a command.

(2)In the case of Active Guard/Reserve (AGR) personnel, commander includes the lowest level supervisor of an AGR member at his work station who is a commissioned or warrant officer.

(3)The words “imposing commander” refers to the commander or other officer who actually imposes the non-judicial punishment.

(4)Commands include the following:

(i)companies, troops and batteries;

(ii)numbered units and detachments;

(iii)missions;

(iv)service school;

(v)area commands;

(vi)work station (in the case of AGR personnel).

(5)Commands also include, in general, any other organization of the kind mentioned in paragraph (4) of this subdivision, the commander of which is the one looked to by superior authority as the individual chiefly responsible for maintaining discipline in that organization. Thus, an infantry company, whether or not separate or detached, N.Y.R.C.M. 504(b)(2), is considered to be a command. However, an infantry platoon that is part of a company and is not separate or detached is not considered to be a command. Although a commissioned or warrant officer exercising command is usually designated as the commander, this position may be designated by various other titles having the same official connotation; e.g., commandant, chief of mission or work supervisor.

(6)The detachment commander in HHD, STARC will obtain the recommendation of the appropriate DMNA director before imposing non-judicial punishment on an AGR member who is a full-time DMNA employee.

(b)Persons upon whom non-judicial punishment may be imposed.

Military personnel of his or her command. A commander may impose punishment as authorized under section 130.15 upon commissioned officers, warrant officers and other military personnel of his or her command.

(1)For the purpose of section 130.15, military personnel are considered to be “of the command” of a commander if they are:

(i)Assigned to an organization commanded by him or her.

(ii)Affiliated with the command (by attachment, detail, TDY, AGR personnel or otherwise) under conditions, either expressed or implied, which indicate that the commander and the commander of the unit to which they are assigned, is to exercise administrative or disciplinary authority over them.

(2)Under circumstances similar to subparagraph (1)(i) of this subdivision, a commander may be assigned territorial command responsibility so that all or certain military personnel in the area will be considered to be of his or her command for the purpose of section 130.15.

(3)To determine if an individual is “of the command” of a particular commanding officer, refer first to those written or oral orders or directives that affect the status of the individual. If orders or directives do not expressly confer authority to administer non-judicial punishment to the commander of the unit with which service member is affiliated or present (as when, for example, they contain no provision attaching the member “for disciplinary purposes”), consider all attendant circumstances, such as:

(i)the phraseology used in the orders;

(ii)where the member slept, ate, was paid, performed duty, the duration of the status, and other similar factors;

(iii)whether the member is Active Guard/Reserve (AGR) under title 32, section 502(f), and is assigned to a certain work station on a full-time basis which is different from his parent unit;

(iv)whether the commander exercises the usual responsibilities and attributes of command over the member.

(4)If orders or directives include such terms as “attached for administration of military justice”, or simply “attached for administration”, the individual so attached will be considered to be of the command of the commander of the unit of attachment for the purpose of section 130.15.

(5)Termination of status.

Non-judicial punishment will not be imposed upon an individual by a commander after the individual ceases to be of his or her command, because of transfer or otherwise. However, if section 130.15 proceedings have been instituted and punishment has not been imposed prior to the time of change of assignment, the commander who instituted the proceedings may forward the record of proceedings to the gaining commander for appropriate disposition.

(c)Minor offenses.

Generally, the term “minor” includes misconduct involving a lesser degree of criminality than is involved in the average offense tried by SCM. Violations of or failures to obey general orders or regulations may be minor offenses if the prohibited conduct itself is of a minor nature even though also prohibited by a general order or regulation.

(d)Multiple punishment prohibited.

Several minor offenses arising out of substantially the same offense, act or conduct will not be made the basis of separate actions under section 130.15.

(e)Punishment after exercise of jurisdiction by civil authorities.

Non-judicial punishment may be imposed upon a member who has been tried in a civil court for the same act if the exercise of section 130.15 jurisdiction would promote the efficiency of the service.

(f)Statute of limitations.

No punishment shall be imposed under ML, 130.15 for any offense committed more than two years before the imposition of such punishment.

9 NYCRR 519.3 - Procedures

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NYCRR title agency: Executive Department
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Source version current through: Aug 15, 2022

(a)General.

The authority to impose non-judicial punishment charges a commander with the responsibility of exercising his or her authority in an absolutely fair and judicious manner.

(b)Preliminary inquiry.

(See N.Y.R.C.M. 303)

(1)The commander of the alleged offender must insure that the matter is promptly and adequately investigated. The commander may either investigate the matters himself or delegate such responsibility to a subordinate. However, in the latter case, the investigation should provide the commander with sufficient information to make an appropriate disposition of the incident. The investigation should cover:

(i)whether an offense was committed;

(ii)whether the member was involved;

(iii)the character and military record of the member.

(2)Usually the preliminary investigation is informal and consists of interviews with witnesses and/or a review of police or other informative reports. If, after the preliminary inquiry, the commander determines that the member has committed an offense and that non-judicial punishment is appropriate (see N.Y.R.C.M. 306, para c[3]), the commander should take action as set forth in this section.

(c)Commander's guide for notification and imposition.

In all cases, other than summarized proceedings, commanders should use Appendix L-2 (A15) as a guide in conducting the proceedings.

(d)Proceedings, DMNA form 1057 (Appendix L-2 [A16]).

(1)All entries will be recorded on DMNANG form 1057 (Record of Proceedings under section 130.15 of the New York State Military Law, Appendix L-12[A16]). DMNA form 1057 may be reproduced locally on 8 ½″ × 11″ paper.

(2)Notification and explanation of rights.

(i)The imposing commander will ensure that the member is notified of the commander's intention to dispose of the matter under the provisions of section 130.15, State Military Code. The member will be provided a copy of DMNA form 1057 (Appendix L-2 [A16]) with items (1) and (2) completed, including the date and signature of the imposing commander. The imposing commander may authorize a commissioned officer, warrant officer, or NCO (E-7 or above), provided such person is senior to the member being notified, to deliver the DMNA form 1057 and inform the member of his or her rights. The NCO performing the notification should be the unit First Sergeant. In such cases, the notifier should follow Appendix L-2(A15), modified as required. The member should be provided with a copy of DMNA form 1057 (Appendix L-2[A16]) and supporting documents and statements, for use during the proceedings. The member will return the copy to the commander for annotation. It will be given to the member for retention when all proceedings are completed.

(ii)Right to remain silent. The member will be informed that:

(a)he or she is not required to make any statement regarding the offense or offenses of which he or she is suspected; and

(b)any statement made may be used against him or her in the section 130.15, Military Law proceeding or in any other proceedings, including a trial by court-martial.

(iii)Right to counsel. The member will be informed of the right to consult with military counsel prior to the proceedings and be informed of the location of military counsel.

(iv)Other rights. The member will be informed of the right to:

(a)fully present his or her case in the presence, except in rare circumstances, of the imposing commander (see subparagraph [vi] of this paragraph);

(b)call witnesses;

(c)present evidence;

(d)request he or she be accompanied by a spokesperson;

(e)request an open proceeding (see clause (vi)(b) of this paragraph);

(f)examine available evidence.

(v)Decision period. The member will be given a reasonable time to consult with counsel, including time off from duty, if necessary, and to gather matters in defense, extenuation and/or mitigation. Normally, 48 hours is a reasonable decision period, during periods of annual training, FTTD, orders under Title 32, section 502(f), State Active Duty, and other periods of extended duty. If the member is in an inactive duty training (IDT) status, normally the member should be given until the next regularly scheduled drill. If a new imposing commander takes command after a member has been notified of the original imposing commander's intent to impose punishment, the member will be notified of the change.

(vi)Proceeding.

(a)In the presence of the commander. The member will be allowed to personally present matters in defense, extenuation, or mitigation in the presence of the imposing commander, except when, under rare circumstances it is not feasible. When personal appearance is requested, but is not possible, the imposing commander will appoint an officer to conduct the proceeding and make recommendations.

(b)Open proceeding. Section 130.15, Military Law proceedings are open. However, a member may request an open or closed hearing. In all cases, the imposing commander will, after considering all of the facts and circumstances, determine whether the proceeding will be open to the public, but does not require the commander to hold the proceeding in a location different from that in which he or she conducts normal business; i.e., his or her office.

(vii)Spokesperson. The person who may accompany the member to the section 130.15 proceeding and who speaks on his or her behalf need not be a lawyer. An offender has no right to legal counsel at the non-judicial proceeding, however, the commander may allow such representation in the proceeding based upon his discretion. A member may retain civilian counsel to act as his or her spokesperson, at no cost to the government; but the commander need not grant a delay for the appearance of any spokesperson, to include civilian counsel so retained. No travel fees or any other unusual costs may be incurred at government expense for the presence of the spokesperson. The spokesperson's presence is voluntary. Because the proceedings are not adversarial in nature, neither the member or the spokesperson (including any attorney present on behalf of the member) may examine or cross-examine witnesses, unless permitted by the imposing commander. The member or spokesperson may, however, indicate to the imposing commander relevant issues or questions he or she wishes to explore or ask. Notwithstanding this paragraph, examination and cross-examination should be permitted by the commander when reduction or fine is a permissible penalty.

(viii)Witnesses. The member's request for witnesses in defense, extenuation or mitigation shall be restricted to those witnesses reasonably available as determined by the imposing commander. To determine whether a witness is reasonably available, the imposing commander will consider the fact that neither witness fees nor transportation fees are authorized. Reasonably available witnesses will ordinarily include only personnel at the unit or the installation concerned and others whose attendance will not unnecessarily delay the proceeding.

(ix)Evidence. The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, he or she reasonably believes to be relevant to the offense.

(x)Action terminating proceedings. If, after evaluation of all pertinent matters, the imposing commander determines that non-judicial punishment is not warranted, the member will be notified that the proceedings have been terminated and all copies of DMNA form 1057 (Appendix L-2[A16]) will be destroyed.

(xi)Imposition of punishment. If the imposing commander determines, beyond a reasonable doubt, that the member has committed an offense and decides to impose punishment, ordinarily he or she will announce the punishment to the member. The commander may, if he or she desires to do so, explain to the member why a particular punishment was imposed.

(xii)Right to appeal. Appellate rights and procedures, which are available to the member will be explained in section 519.6 of this Part.

(e)No right to demand trial.

New York Army National Guard 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. This subdivision is not applicable to officers and warrant officers.

9 NYCRR 519.4 - Punishment

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NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Aug 15, 2022

(a)Rules and limitations.

Whether to impose punishment and the nature of the punishment are solely the decisions of the imposing commander. However, commanders are encouraged to consult with their NCO's on the appropriate type, duration and limits of punishment to be imposed. Additionally, as NCO's are often in the best position to observe a member undergoing punishment and evaluate daily performance and attitude, their views on clemency should be given careful consideration.

(1)
TABLE 4-1 TYPES OF PUNISHMENT
MAXIMUM PUNISHMENT FOR ENLISTED MEMBERS
PUNISHMENT	IMPOSED BY COMPANY GRADE OFFICERS	IMPOSED BY FIELD GRADE OFFICERS
Admonition/Reprimand	Yes	Yes
Withholding of privilege	2 consecutive weeks	2 consecutive weeks
Restriction with or without suspension from duty	2 consecutive weeks	2 consecutive weeks
Extra duties	2 consecutive weeks not to exceed 2 hours p/day; holidays included	2 consecutive weeks not to exceed 2 hours p/day; holidays included
Reduction (E2-E7)	E-2 through E-4, one grade but see Chapter 6 (NGR 600-200)	E-5, E-6 and E-7, one grade but see Chapter 6 (NGR 600-200)
Reduction (E8 and E9)	No, see section 519.6 (NGR 600-200)	No, see section 519.6 (NGR 600-200)
Fine	$150.00	$150.00
(2)
PUNISHMENT FOR COMMISSIONED AND WARRANT OFFICERS
Withholding of privileges	2 consecutive weeks	2 consecutive weeks
Restrictions with or without suspension from duty	2 consecutive weeks	2 consecutive weeks

Imposed by Governor, Commanding Officer or Force of

Organized Militia or General or Flag Ranking Command

Fine of $200.00

(b)Types of punishment.

See paragraph (a)(1) of this subdivision, table 4-1 for maximum punishments.

(1)Admonition is a warning, reminder or reproof given by a commander to an offender to deter repetition of the type of misconduct which resulted in the admonition and to advise him of the consequences that may flow from a recurrence of that misconduct. An admonition may be oral or written and may be included in a reprimand.

(2)Reprimand is the act of formal censure by a commander which reproves or rebukes the offender for his misconduct. It may be oral or written. Reprimand or admonition may be given administratively as a nonpunitive measure to improve efficiency. For this purpose, the procedures contained in this regulation need not be followed. If, however, the commander elects to impose either a reprimand or an admonition as non-judicial punishment under Military Law, section 130.15, the punishment must be imposed in accordance with the procedures outlined in this Part.

(3)Withholding of privileges shall only be executed while the offender is in a duty status.

(4)Restriction to certain specified limits shall only be executed while the offender is in a duty status, with or without suspension from performance of duty.

(5)Extra duties:

(i)shall only be executed while the offender is in a duty status;

(ii)the performance of extra duties shall not exceed two hours per day, and may include holidays;

(iii)extra duties may include performance of any military duty except duty which:

(a)demeans the grade or position of the offender in type of duty or manner of performance;

(b)constitutes punishment not sanctioned by the customs of the military;

(c)normally is intended as an honor; or

(d)uses the offender as a personal servant.

(iv)An inactive duty period may be extended beyond the normal four-hour period to accommodate the performance of the extra duties (see ML 130.15[a][2][c]).

(6)Confinement is limited to those instances authorized in Military Law, section 130.15(a)(2)(E), and shall only be executed while the offender is in a duty status.

(7)The punishments or withholding of privileges, restrictions to certain specified limits, extra duties and confinement shall be executed within 60 days after the punishment is imposed.

(8)Fine may apply to pay or allowances as stated in Military Law, section 130.15, subdivisions (a)(1)(C), (a)(2)(F) and (f).

(i)Fines will be collected by the unit commander and deposited in the unit's state military fund account.

(ii)In the case of AGR personnel, fines will be collected by the commander and remitted to the unit State military fund or in the case of assignment to another unit to the assigned unit's State military fund, e.g., STARC.

(9)Reduction in grade (herein meaning “pay grade”).

(i)Only the commander with the authority to promote to the grade from which demoted may reduce a member in grade with the exception as indicated in subparagraph (iii) of this paragraph. See paragraph (ii) of this subdivision for reduction of offenders in grades E-8 and E-9.

(ii)An offender may be reduced only one grade in each non-judicial punishment action.

(iii)Reduction authority pertaining to AGR personnel is not delegated and rests with this headquarters. Reduction actions will be implemented by completing and forwarding a copy of DMNA form 1057 to Headquarters, NYARNG, ATTN: MNSP-AGR.

(10)Reduction in grade (herein meaning “pay grade”). (This paragraph and paragraph (9) of this subdivision do not apply to commissioned officers and warrant officers see paragraph [c][2] of this section.)

(i)Promotional authority. The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this Part, the imposing commander, or any subordinate commander has “promotion authority”, if he or she has the general authority to appoint to the grade from which reduced or to any higher grade (AR 600-200).

(ii)Lateral appointment or reduction of NCO to Specialist and a Specialist to NCO. An NCO may not be laterally appointed to a Specialist in the same pay grade under section 130.15 of the Military Law. However, the NCO may be reduced to a Specialist or NCO of a lower pay grade provided the latter grade is authorized in the member's primary military occupational specialty (PMOS). A Specialist may not be laterally appointed to an NCO in the same pay grade but may be reduced to a Specialist or NCO of a lower pay grade provided the latter grade is authorized in the member's primary MOS. For example, a Sergeant may not be appointed to a Specialist 5 but may be reduced to a Specialist 4 or to Corporal. If reduction is included in the punishment, the imposing commander must determine whether the lower pay grade status of either Specialist or NCO is authorized in the member's primary MOS. The commander will indicate upon announcement of the reduction which status within the pay grade is intended; e.g., “to be reduced to Specialist 4”.

(iii)Date of rank. When a person is reduced in grade as a result of an unsuspended reduction, his or her date of rank in the grade to which reduced is the date the punishment or reduction was imposed. If the reduction is suspended either on or after the time the punishment was imposed, or if set aside or mitigated to forfeiture of pay, the date of rank in the grade held before the punishment was imposed remains unchanged. If a suspension of the reduction is vacated the date or rank in the grade to which reduced as a result of the action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated.

(iv)Entitlement to pay. When a member is restored to a higher pay grade because of suspension or when a reduction is mitigated to a fine, entitlement or pay at the higher grade is effective on the date of suspension or mitigation. This is true even though an earlier date of rank is assigned. If, however, a reduction is set aside and all rights, privileges and property are restored, the member concerned will be entitled to pay as though the reduction had never been imposed.

(v)Void reduction. A reduction imposed as non-judicial punishment by an imposing commander not having authority to do so is void and must be set aside. However, there is one exception, which clearly evidences a commander's intent to impose at least as authorized one grade reduction. This is a reduction to a lower specialist grade when reduction should have been to a lower NCO grade (or vice versa). In this case, administrative action will be taken to place the offender in the proper rank for the MOS held in the reduced pay grade.

(vi)Removal form standing promotion list. (See AR 600-200.)

(11)Reduction in grade of offenders in grades E-8 and E-9:

(i)Only a major commander, New York Army National Guard, is authorized to impose a reduction, suspended or unsuspended, in a non-judicial punishment action where the offender is in the grade of E-8 or E-9. Likewise, only a major commander, New York Army National Guard, is authorized to vacate a suspended reduction of an offender in grade E-8 or E-9.

(ii)All procedures previously described in this regulation apply to any action involving the reduction of an offender in grades E-8 or E-9 subject to the following:

(a)Any non-judicial punishment imposed on an offender in grades E-8 or E-9, not involving reduction, shall be imposed at the unit level by the commander authorized to impose such non-judicial punishment on offenders in grades E-8 or E-9.

(b)If the commander authorized to non-judicially punish (other than reduction) such offenders, “intends to impose reduction”, paragraph 1 (the notification of offense) DMNA Form 1057 (Appendix L-2[A16]) shall state that the commander intends to recommend to the (appropriate major commander) the imposition of non-judicial punishment”. However, this notification of offense shall not include a recommendation of the type of severity of punishment to be imposed.

(c)After all requirements in this Part preliminary to the actual imposition of non-judicial punishment are met, the commander who would have otherwise been authorized to impose the punishment shall by indorsement, forward the record to the 42nd Infantry Division, Headquarters Troop Command, Headquarters, 27th Brigade STARC (if the action is not commenced by the Division Commander, Commander, Headquarters Troop Command) or Commander, 27th Brigade through the unit Judge Advocate (for preliminary legal sufficiency review for determination of imposition of non-judicial punishment).

(d)Where the major commander is forwarded the record to initially determine whether or not to impose non-judicial punishment, he takes the place of the commander at the unit level with all his authority for non-judicial punishment action (i.e., imposition of punishment, termination without punishment, or termination of action and processing by court-martial).

(iii)If the major commander imposes a reduction (although he may impose any type of non-judicial punishment he deems appropriate) only he, or his successor-in-command may suspend, vacate a suspension, mitigate or remit or set aside the reduction.

(a)Whatever remedial action the major commander takes, once the appellate process is completed, the record shall be maintained at the unit level, and the appropriate major commander shall be notified of any further misconduct committed by such offender in any suspension period.

(b)Any vacation action shall be commenced by the unit commander recommending vacation action to the major commander and by mailing or delivering the notification to the offender in accordance with this regulation.

(iv)A STARC Staff Judge Advocate, New York Army National Guard, shall review the record for legal sufficiency in all cases of reductions in grade of offenders in grades E-8 and E-9. All papers shall be forwarded to DMNA, ATTN: MNJA, 330 Old Niskayuna Road, Latham, NY 12110-2224.

(c)Limitations and types of punishment.

(1)In addition to, or in lieu of an admonition or reprimand, only one of the authorized punishments in Military Law, section 130.15 may be imposed for each non-judicial punishment action.

(2)The punishments of confinement, extra duties, or reduction may not be imposed non-judicially on officers or warrant officers.

(3)Punishments imposed may not be so grossly disproportionate to the offenses committed, so as to violate fundamental principles of fairness and justice.

(d)Effective date and execution of punishment.

(1)General.

The date of imposition of non-judicial punishment is the date items 1-3, DMNA form 1057 (Appendix L-2[A16]), as appropriate, are signed by the imposing commander. This action will normally be accomplished on the day punishment is imposed.

(2)Unsuspended punishments.

Unsuspended punishments of reduction and forfeiture take effect on the date imposed. Other unsuspended punishments take effect on the date they are imposed, unless the imposing commander prescribes otherwise. In those cases where the execution of the punishment must legitimately be delayed ( e.g., the member is hospitalized, authorized emergency leave) the execution of punishment should begin immediately thereafter. The delay in execution of punishment should not exceed 30 days. Once the member has submitted an appeal, including all pertinent attachments, such appeal normally should be decided within 30 calendar days, excluding the submission date. If the appeal is not decided within this period, the performance of those punishments involving deprivation of liberty will be interrupted pending decision on the appeal.

(3)Vacated, suspended reduction.

Suspended reduction, later vacated is effective on the date vacation is directed. Any commanding officer of the person to be punished may order the punishment to be executed and in such a manner and under such supervision as he or she may direct.

(e)Announcement of punishment.

(1)The punishment may be announced at the next unit formation after punishment is imposed; or, if appealed, after the decision of the appeal. It also may be posted on the unit bulletin board. The purpose of announcing the results of punishment is to preclude perceptions of unfairness of punishment and to deter similar misconduct by other service members. An inconsistent or arbitrary policy regarding the announcement of punishment that might result in the appearance of vindictiveness or favoritism should be avoided. In deciding whether to announce punishment of members in the grade of E-5 or above, the following should be considered:

(i)the nature of the offense;

(ii)the individual's military record and duty position;

(iii)the deterrent effect;

(iv)the impact on unit morale;

(v)the impact on any victim;

(vi)the detrimental impact on the mission or leadership effectiveness of the individual concerned.

9 NYCRR 519.5 - Suspension, vacation, mitigation remission and setting aside

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(a)Clemency.

(1)General.

The imposing commander, his or her successor-in-command, or the next superior authority may, in accordance with the time prescribed in the MCM:

(i)remit or mitigate any part or amount of the unexecuted portion of the punishment imposed;

(ii)mitigate reduction in grade, whether executed or unexecuted, to fine, detention or pay;

(iii)at any time, suspend probationally any part or amount of the unexecuted portion of the punishment imposed;

(iv)suspend probationally a reduction in grade or fine, whether or not executed. An uncollected fine of pay shall be considered unexecuted.

(2)Meaning of successor-in-command.

As used in paragraph 134, MCM, a successor-in-command is the officer who has authority to impose the same kind and amount of punishment of a member concerned that was initially imposed or was the result of a modification and who:

(i)commands the unit to which the punished member is presently assigned; or

(ii)is the commander succeeding to the command occupied by the imposing commander, provided the member still is of that command.

(3)Recording of action.

Any action of suspension, mitigation, remission or setting aside, taken by an authority will be recorded according to notes 9 and 10, DMNA form 1057 (Appendix L-2[A16]) or DMNA form 1059 (Record of Supplementary Action Under Article 15) exhibit 3.

(b)Suspension.

Ordinarily, punishment is suspended to grant a probational period during which a member may show that he or she deserves a remission of the remaining suspended punishment. An executed punishment of reduction or fine may be suspended only within a period of four months after the date imposed. Suspension of punishment may not be for a period longer than six months from the suspension date. Further misconduct by the member, within the period of suspension, may be grounds for vacation of the suspended portion of the punishment.

(c)Vacation.

(1)A commander may vacate any suspended punishment, provided the punishment is of the type and amount he or she could impose. There is no appeal from a decision to vacate a suspension. The following will be recorded according to notes 8 and 9 on DMNA form 1057 (Appendix L-2[A16]):

(i)action vacation a suspension, to include the basis for vacation;

(ii)whether or not the member appeared and was provided an opportunity to respond.

(2)Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. The death, discharge, or separation from service of the member punished prior to the expiration of the suspension automatically remits the suspended punishment.

(3)A specific act of misconduct resulting in vacation of a suspended punishment may also be the basis for the imposition of another section 130.15 proceeding. If the suspended punishment is a reduction or fine, the member should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate the suspension to rebut the information upon which the proposed vacation is based. The member may be given the opportunity to appear in any case.

(4)In cases involving punishments other than reduction and fine, the member will be informed of the basis of the proposed vacation and should be given an opportunity to respond, either orally or in writing. Failure to provide notification and an opportunity to appear or rebut the information may result in the record of punishment being inadmissible in a subsequent court-martial, but will not, by itself, render a vacation action void.

(d)Mitigation.

(1)General.

(i)Mitigation is a reduction in either the quantity or quality of punishment, e.g., a restriction for 14 days is reduced to five days.

(ii)A fine may be mitigated to a lesser amount.

(2)Appropriateness.

Mitigation is appropriate when:

(i)the recipient has, by his or her subsequent good conduct, merited a reduction in the severity of punishment;

(ii)the punishment imposed was disproportionate to the offense of the offender.

(3)Limitation on mitigation.

(i)With the exception of reduction in grade, the power to mitigate exists only with respect to a punishment or portion thereof which is unexecuted. A reduction in grade may be mitigated to a fine even though it has been executed.

(ii)Although a suspended punishment may be mitigated to a punishment of a lesser quantity or quality (which is also suspended for a period not greater than the remainder of the period for which the punishment mitigated was suspended), it may not, unless the suspension is vacated, be mitigated to an unsuspended punishment. (See paragraph [f][3] of this section for the time period within which reduction ordinarily may be mitigated, if appropriate, to a fine).

(e)Remission.

This is an action whereby any portion of the unexecuted punishment is cancelled. Remission is appropriate under the same circumstances as mitigation. An unsuspended reduction is executed upon imposition and thus cannot be remitted, but may be mitigated or set aside. The death, discharge, or separation from the service of a member punished remits any unexecuted punishment. A member punished under section 130.15 will not be held beyond his or her expiration of term of service (ETS) to complete any unexecuted punishment.

(f)Setting aside and restoration.

(1)This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored. The basis for this action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. Clear injustice means that there exists evidence usually newly discovered, clearly exculpating the member. Normally the member's unsupported sworn statement will not constitute clearly exculpating evidence. The fact that the member's performance of service has been exemplary subsequent to the punishment does not constitute a “clear injustice”.

(2)In cases where administrative error results in incorrect entries on DMNA form 1057, the appropriate remedy is generally an administrative correction of the form and not a setting aside of the punishment.

(3)The power to set aside an executed punishment and to mitigate a reduction in grade to a fine, absent unusual circumstances, will be exercised only within four months after the punishment has been executed. When a commander sets aside any portion of the punishment, he or she will record the basis for this action according to notes 8 and 9, DMNA form 1057 (Appendix L-2[A16]) or DMNA form 1059 (Appendix L-2[A18]).

9 NYCRR 519.6 - Appeals para 7, part V, MCM

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Aug 15, 2022

(a)General.

(1)Only one appeal is permissible under section 130.15 proceedings. There is no appeal from the imposition of the proceedings. The appeal is from the punishment. An appeal not made within a reasonable time may be rejected as untimely by the senior authority. A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 30 days after the punishment is imposed will be presumed to be untimely, unless the superior authority, in his or her sound discretion for good cause shown, determines it to be timely.

(2)If, at the time of imposition of punishment, the member indicates a desire not to appeal, the superior authority may reject a subsequent election to appeal, even though it is made within the 30-day period. Although a suspended punishment may be appealed, no appeal is authorized from the vacation of a suspended punishment.

(3)When the member desires to appeal, the imposing commander, or his or her successor-in-command, will make available to the member reasonable assistance (to include judge advocate counseling, if available) in preparing the appeal and will promptly forward the appeal to the appropriate senior authority.

(b)Who may act on appeal.

(1)The authority next senior to the commanding officer will act on an appeal if the member punished is still of the command of that officer at the time of appeal. If, at the time of appeal, the member is no longer of the imposing commander's command, the authority next senior to the member's present commanding officer (who can impose the same kind and amount of punishment as that imposed or resulting from subsequent modifications) will act upon the appeal.

(2)The authority “next senior” to an imposing commander is normally the next senior in the chain of command, or such other authority as may be designated by competent authority as being next senior for the purposes of section 130.15 proceedings. A senior authority who exercises GCM jurisdiction, or is a general officer in command, may delegate those powers he or she has as senior authority to a commissioned officer in his or her command.

(c)Procedure for submitting an appeal.

All appeals will be made on DMNA form 1057 and then forwarded to the imposing commander or successor-in-command; or, when applicable, to the senior authority. The senior authority will act on the appeal unless otherwise directed by competent authority. The member is not required to state reasons for his or her appeal, however, the member may do so. For example, the person may state the following in the appeal:

(1)based upon the evidence he or she does not believe he or she is guilty;

(2)the punishment imposed is excessive, or that a certain punishment should be mitigated or suspended.

(d)Action by the imposing commander or the successor-in-command.

The imposing commander or his or her successor-in-command may take any action on the appeal with respect to the punishment that the senior authority could have taken (para 6, part V, N.Y. MCM and subdivision [e] of this section). If he or she suspends, mitigates, remits or sets aside any part of the punishment, this action will be recorded according to notes 8 and 9, DMNA form 1057 (Appendix L-2[A16]). The appellant will be advised and asked to state whether, in view of this action, he or she wishes to withdraw the appeal. Unless the appeal is voluntarily withdrawn, the appeal will be forwarded to the appropriate superior authority. An officer forwarding the appeal may attach any matter in rebuttal of assertions made by the member.

(e)Action by the senior authority.

Action by the senior authority on appeal will be entered in item 5, DMNA form 1057 (Appendix L-2[A16]). A senior authority will act on the appeal expeditiously. A senior authority may conduct an independent inquiry into the case, if necessary or desirable. The senior authority must refer an appeal from a reduction or fine to a judge advocate (JA) for consideration and advice before taking action; he or she may refer an appeal in any case. In acting on an appeal, the senior authority may exercise the same powers with respect to the punishment imposed as may be exercised by the imposing commander or his or her successor-in-command. A timely appeal does not terminate merely because a service member is discharged from the service. It will be processed to completion by the senior authority.

(f)Action by a judge advocate.

(1)When an appeal is referred to a JA, the senior authority will be advised either orally or in writing of the JA's opinion on:

(i)the appropriateness of the punishment;

(ii)whether the proceedings were conducted in accordance with law and regulations.

(2)If the advice is given orally, that fact and the name of the JA who rendered the advice will be recorded in item 7, DMNA form 1057 (Appendix L-2[A16]).

(3)The JA is not limited to an examination of written matters of the record of proceedings and may make any inquiries that are necessary.

(g)Action by senior authority regardless of appeal.

Any senior authority may exercise the same powers as may be exercised by the imposing commander, or his or her successor-in-command, whether or not an appeal has been made from the punishment (para 7[f] [1], part V, MCM). “Any senior authority” has the same meaning as that given to the term “authority next senior” in paragraph (b)(2) of this section, except that it also includes any authority senior to that authority. A service member has no right to petition for relief under this subdivision and any petition so made may be summarily denied by the superior authority to whom it is addressed.

9 NYCRR 519.7 - Records of punishment, DMNA form 1057 (Appendix L-2[A16])

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Dates and status

NYCRR title agency: Executive Department
Section status: Section source receipt
Source version current through: Aug 15, 2022

(a)Disposition of DMNA form 1057 (Appendix L-2[A16]).

Copies of written or other documentary evidence pertaining to the case which has been considered by the officer imposing the non-judicial punishment or the commander on appeal are attached to DMNA form 1057.

(b)Distribution:

(1)Original.

Unit of assignment for filing in the military personnel records of the individual to be maintained for three years. If the case is appealed, original goes forward with the MPRJ to the next higher headquarters.

(2)First copy.

Member concerned.

(3)Second copy.

For commander's use.

(4)Third copy.

In the case of AGR personnel, this copy will be forwarded to MNSP-AGR, 330 Old Niskayuna Road, Latham, NY 12110-2224.

(c)Disposition of all documents when action is appealed.

(1)Action is set aside.

All local records are destroyed if appeal by member is successful.

(2)Action is under appeal.

When a member receiving punishment under section 130.15 elects to appeal the same, materials relied on in support of the appeal are submitted in writing to the commander imposing punishment. This must be accomplished within 35 calendar days from the date of imposition of punishment, unless additional time is granted.

(i)Forwarding of the appeal. After making any comments necessary to rebut statement(s) furnished by the member initiating the appeal, the commander who initially imposed punishment will forward the member's MPRJ and all pertinent documents to the next higher headquarters for review.

(ii)Action by reviewing authority. After reviewing the appeal, the officer concerned will accomplish one of the procedures below:

(a)If the section 130.15 action is set aside, the appeal and all pertinent documents are returned to the member's commander along with the MPRJ. The member's commander will ensure that all local records of the section 130.15 proceeding are destroyed.

(b)If the reviewing officer affirms the action, whether or not the punishment is modified, he will return the appeal with his decision to the commander. The decision will be accompanied by all documents and the MPRJ of the member concerned. The reviewing officer will maintain a record of the section 130.15 proceeding and will destroy the same upon expiration of the term of punishment.

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