N.Y. Comp. Codes R. & Regs. tit. 9 § 515.2

Current through Register Vol. 46, No. 22, May 29, 2024

Section 515.2 - The military justice system

(a) General. 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).

(b) The courts-martial system. 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.

(1) There are three types of courts-martial:

(i) a general courts-martial;

(ii) a special courts-martial (including bad conduct discharge [BCD] special court-martial); or

(iii) a summary courts-martial.

(c) General courts-martial (GCM). 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.

(1) General courts-martial shall have the power to sentence to: confinement with hard labor for not exceeding 200 days; fines not exceeding $200; confinement with hard labor in lieu of fines imposed not exceeding one day for each dollar of fine imposed; forfeiture of pay and allowances, not exceeding $200; dismissal; dishonorable discharge; bad conduct discharge; reprimand; reduction of noncommissioned officers to an inferior grade; and to combine any two or more of such punishments in the sentences imposed.

(2) In both general and special courts-martial, an enlisted member may request that at least one-third of the total membership of the court be enlisted personnel.

(3) General courts-martial may be convened by order of the Chief of Staff to the Governor, the commanding officer of a force of the organized militia, the commanding officer of a division or corresponding unit of the Army National Guard or the commanding officer of a wing or corresponding unit of the Air National Guard. A sample format for an Order Convening Courts-Martial is contained in Appendix L-2. NOTE:The selection of court members is the sole responsibility of the convening authority and this responsibility cannot be delegated.

(d) Actions after forwarding charges in general courts-martial.

(1) The section 130.32 investigation which is an investigation under section 130.32 of the Military Law, may be ordered by any convening authority, and is required before any charge or specification is referred to a general court-martial by the convening authority for such court. The offenses investigated by the appropriate commander and forwarded as charges to the convening authority are the basis of this investigation. The officer appointed to conduct the investigation pursuant to section 130.32 must inquire into the truth of the matter set forth in the charges and make a recommendation regarding disposition of the charges in the interest of justice and discipline. For guidance on conducting such investigations, see DA Pam 27-17, modifying its advice for state use where appropriate. A sample Investigating Officer's Report (DMNA form 1051) is contained in Appendix L-2.

(2) At the section 130.32 investigation, the accused shall be advised of the charges against him and his right to counsel. He is entitled to be represented by civilian counsel, at his own expense, or by military counsel of his selection, if reasonably available. At such investigation, the accused shall have the full opportunity to examine and cross-examine witnesses as well as present anything he may desire on his own behalf. The investigating officer shall examine all available witnesses requested by the accused.

(3) If, after such investigation, the charges are forwarded to the convening authority, they shall be accompanied by a statement summarizing the testimony taken on both sides. A copy of this summary shall be given to the accused. NOTE: Where an investigation is conducted prior to the time the accused is charged, a further investigation after charging will not be required unless:

(i) the accused was not present at the investigation and given the opportunity for representation, examination and presentation; or

(ii) the accused after being informed of the charges demands a further investigation. Even in such cases where the accused participated in the investigation, he is entitled to demand a further investigation if at the time of the initial investigation he had not been charged.

(4) Certain time limitations. 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.

(5) Role of state judge advocate. 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.

(6) Service of charges. 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.

(e) Special courts-martial (SPCM).

(1) The special courts-martial is the intermediate court in our military justice system. A special courts-martial may not try a commissioned officer, but may try warrant officers. The membership of non-BCD special courts-martial may take any of three forms. It may consist of:

(i) at least three members;

(ii) at least three members and a military judge; or

(iii) solely of a military judge if the accused so requests in writing.

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.

(2) Special courts-martial shall have the power to sentence to: confinement with hard labor for not exceeding 100 days; fines not exceeding $100; confinement with hard labor in lieu of fines imposed; forfeiture of pay and allowances not exceeding $100; bad conduct discharge; reprimand; reduction of noncommissioned officers to an inferior grade; and to combine any two or more of such punishments in the sentences imposed.

(3) The military judge of a special court-martial is detailed by the convening authority, and he must be a commissioned officer of a force of the organized militia or a person on the state reserve list or state retired list who is a member of the bar of New York and who is certified to be qualified for duty as a military judge by the state judge advocate. The convening authority shall appoint a trial counsel and defense counsel, together with such assistants as he deems necessary or appropriate.

(4) Charges are referred for trial by a special court-martial by means of completing the endorsement on Part V of the charge sheet, DMNA form 1050 (see Appendix L-2).

(5) A special courts-martial may be convened by:

(i) any person who may convene a general courts-martial;

(ii) the commanding officer of a force of the organized militia, or of a garrison, fort, camp, station, air base or other place where members of a force of the organized militia are on duty;

(iii) the commanding officer of a division, brigade, regiment, detached or separate battalion, or corresponding unit of the Army National Guard, the New York Guard or of any other land force of the organized militia;

(iv) the commanding officer of a wing, group, detached or separate squadron or corresponding unit of the Air National Guard;

(v) the commanding officer of any naval vessel, and the commanding officer of any area, brigade, battalion, division, marine battalion or separate marine company of the naval militia;

(vi) the commanding officer of any separate or detached command or group of detached units of any of the forces of organized militia placed under a single commander; or

(vii) the commanding officer or officer in charge of any other command when empowered by the Chief of Staff to the Governor. See Appendix L-2 for form for Order Convening Courts-Martial.

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.

(6) How a special courts-martial works. A special courts-martial, like a general or summary court-martial, is put into motion by the preparation of charges. Any person subject to the state code may prefer charges. That person must sign the charges and specifications under oath before a commissioned officer, and state that he or she has personal knowledge of or has investigated the matter set forth in the charges and specifications and that they are true to the best of that person's knowledge and belief. The immediate commander shall cause the accused to be informed of the charges preferred against him. See Appendix L-2 for form of charge sheet, DMNA form 1050; and see FM 27-1 Legal Guide for Commanders for guidance in preparing and forwarding charges. Upon receiving the charges, the convening authority determines their disposition. The convening authority can dismiss any or all of the charges, forward them to another commander for disposition, or refer any or all of them to a court-martial. If the convening authority decides to refer the charges to a special courts-martial (or any other court-martial for which he is the convening authority), he or she will cause a convening order to be drawn up designating the type of court-martial and detailing the members. Where the court-martial will meet may also be designated.

(7) Once charges have been preferred against an accused, they are forwarded to the appropriate commander exercising special court-martial convening authority. This authority reviews the options applicable (See N.Y.R.C.M. 401-405). If it is determined that the matter should be tried by a special court-martial, the convening authority then refers the matter to such court. Consequently, referral is the order of the convening authority that charges against an accused will be tried by a specified court-martial.

(8) Consultation with a judge advocate as to the appropriate disposition of the charges is essential. If the convening authority finds or is advised by a judge advocate that there are reasonable grounds to believe an offense triable by court-martial was committed, that the accused committed it and that the specification alleges an offense, then the case will be referred to trial. After referral, the trial counsel serves a copy of the charge sheet on the accused. The accused cannot be brought to trial before a special court-martial over his objection within three days after service of the charges.

(9) Besides forwarding and referring charges to court-martial, the convening authority has additional responsibilities. The convening authority must detail properly qualified trial and defense counsel to the court-martial. If the proceeding is to be a BCD special court-martial, the convening authority must cause a reporter to be detailed so that a verbatim record can be prepared. One of the most important responsibilities of the convening authority is the detail of the members to the court-martial. Members should be those persons who in the opinion of the convening authority are best suited to the duty by reason of age, training, experience and temperament. The members shall be commissioned officers. However, if the accused has so requested, there may be an enlisted person designated to serve as one of the court members.

(10) Once the court-martial has taken place, the convening authority has certain responsibilities concerning the findings and sentence of the court-martial. See Appendix L-2 for Forms of Sentences. Findings and sentence should be reported to the convening authority without delay. The accused is entitled to submit matters for consideration to the convening authority regarding the findings and sentence adjudged. The convening authority may modify the findings and sentence of a court-martial as a command prerogative. He or she may approve, disapprove, commute or suspend the sentence in whole or in part. In taking action on the findings, the convening authority can dismiss a charge by setting aside the findings of guilty or change a finding of guilty to a finding of guilty to a lesser included offense. The convening authority cannot increase the punishment or add additional findings of guilty. Before taking action, the convening authority should seek the advice and recommendations of the staff judge advocate.

(11) Once the convening authority has acted on the findings and sentence, an approved sentence of a bad conduct discharge or any confinement is referred by the state judge advocate to a Board of Military Review. Such sentences are not executed until the appeal process is exhausted. Further any sentence of dismissal or dishonorable discharge must be approved by the Governor.

(12) A special court-martial proceeding is complicated and time consuming. It should be reserved for offenses which cannot be handled either by summary court-martial or nonjudicial punishment. The above information is an overview of how the special court-martial works; it is by no means complete and exhaustive. Before taking steps to convene a special court-martial, judge advocate assistance should be requested.

(13) "BCD special" courts-martial (BCDSPCM). In some instances a special courts-martial is authorized by the convening authority to adjudge a bad conduct discharge as part of its maximum sentence. This proceeding differs from an ordinary special courts-martial in that a verbatim (word-for-word transcript) court record is required and a military judge must be detailed. In the case of persons charged with AWOL under section 130.82 of the Military Law, personal jurisdiction of BCD special courts-martial can be obtained over such persons by means of substituted service under the provisions of section 308 of the Civil Practice Law and Rules provided that diligent efforts have been made to deliver the charges to the accused. See Appendix L-2 for form of Affidavits of Service. However, if personal jurisdiction is obtained in this manner, the BCD special courts-martial shall not have the power to adjudge confinement. (See N.Y.R.C.M. 804[c] and Military Law, section 130.3[d] ).

(14) If court-martial charges have been referenced against an enlisted member and the possible punishment for any of those charges include a bad conduct or dishonorable discharge, the member may submit a request for discharge for the good of the service (chapter 10, AR 635-200).

(f) Summary courts-martial (SCM). 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.

(1) A summary courts-martial may be convened by:

(i) Any person who may convene a general or special court-martial.

(ii) The field grade commander of any organization authorized a commander in the grade of Lieutenant Colonel or equivalent, or higher.

(iii) The commanding officer or officer in charge of any other command when empowered by the Chief of Staff to the Governor.

(iv) A superior competent authority to any of the above.

(2) Summary courts-martial shall have the power to sentence to: confinement with hard labor for not exceeding 25 days; fines not exceeding $25; confinement with hard labor in lieu of fines imposed not exceeding one day for each dollar or fine imposed; forfeiture of pay and allowances not exceeding $25; reprimand; reduction of noncommissioned officers to an inferior grade; and to combine any two or more of such punishments in the sentences imposed.

(3) NOTE: That under the New York State Military Law only enlisted personnel may be tried by a summary court-martial. Therefore, commissioned officers and warrant officers are not subject to summary court-martial.

(4) An accused may not be tried by summary court-martial over objection to such a trial. Prior to trial an accused should indicate in writing an acceptance of disciplinary action under summary court-martial. If the accused objects to trial by summary court-martial, the summary court officer will return the charge sheet to the convening authority for disposition. If the accused consents to trial by SCM the summary court officer will proceed to trial.

(5) Troops performing duty outside the United States may be subject to the laws of the foreign jurisdiction, the Uniform Code of Military Justice and the status of forces agreement (SOFA) of treaties with the foreign government. In all such instances a judge advocate should be consulted to clarify the issues of jurisdiction.

(g) Summary courts-martial conducted by judge advocate officer.

(1) In order to avoid the common criticism of the traditional summary court-martial as being "a one man prosecutor, judge and jury" and to avoid the appearance and accusation of "command influence", judge advocate officers shall, where practicable, serve as the summary court-martial officer.

(2) Judge advocate officers are attorneys familiar with military law and military procedure as well as the rules of evidence. Their professional training in examining facts and applying the law to come to a judgment will expedite, "the military justice system".

(3) Since most judge advocate officers would be objective disinterested parties who are assigned to a general or flag staff or attached to a brigade, squadron or wing, the appearance of possible command influence will be greatly minimized if not completely eliminated.

(4) By utilization of judge advocate officers as summary court-martial officers, the rights of the accused will be further safeguarded by ensuring that the proceeding is conducted under due process of law.

(5) While it is not mandatory that a judge advocate serve as the summary court-martial, it is encouraged where practicable. If a judge advocate (regardless of rank) is not utilized as a summary court-martial officer, a disinterested field grade officer should be detailed on orders to serve as the summary court-martial.

(6) Regardless of whether a judge advocate or field grade officer serves as a summary court-martial, the procedures to be followed are outlined in Appendix L-2 (A9 and A10 and DA Pam 27-7 (where appropriate to a state summary court-martial).

(h) How a summary court-martial works (see Chapters 2 and 4, FM 27-1, Legal Guide for Commanders).

(1) Once an offense is committed it should be investigated by the C.O. of the accused to the extent deemed necessary to obtain all pertinent facts, witnesses, documents, etc. If charges are preferred, the accused is served with a copy and notation is made thereof on the charge sheet (see Part III, para 12 on the charge sheet, DMNA form 1050). The charge sheet is then forwarded to the proper SCM convening authority (see para 2-6a). Receipt of the charges should be noted in Part IV, para 13 of the charge sheet. Thereafter, if the convening authority determines that the charges should be referred to a summary court-martial, the convening order may be by notation signed by the convening authority in Part V of the charge sheet.

(2) In due course the trial is held (see Appendix L-2 [A9]) and the record of trial is prepared, (see Appendix L-2 [A10], DMNA form 1056) and is returned to the convening authority for action. The action taken by the convening authority is shown in para 13 on all copies of the record of trial and is thereafter signed by the convening authority. This endorsement to the record of trial formalizes the convening authority's action in the case and operates as the order promulgating that action. A formal promulgating order is not required.

(3) The record of trial is forwarded to the judge advocate of the supervisory authority, where the record is legally reviewed by a judge advocate. Once the review is done, the judge advocate "signs off" on the record indicating that it is legally sufficient; or, if corrective action is necessary to cure errors in the record, the judge advocate either initiates corrective action to be taken by the supervisory authority or sends it back for corrective action by the convening authority.

(4) When the legal review (and corrective action, if any) is completed, the record of trial is filed in the member's MPRJ by forwarding a copy to DMNA, ATTN: MNPA-PSC. A sample completed record of trial can be found in Appendix L-2 (A10).

N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.2