Title 9 Part 519

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

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.

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.

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.

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.

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.

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

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.

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

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

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.

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.

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

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

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.

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.

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.

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

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:

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.

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.

Mitigation is appropriate when:

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.

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:

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.

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.

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.