La. Admin. Code tit. 41 § II-402

Current through Register Vol. 50, No. 8, August 20, 2024

Section II-402 - Prerequisites

A. General. Before taking action under LCMJ Article 15, the commanding officer must satisfy himself that:

1. based on a swiftly conducted, fair, and impartial preliminary factual investigation, the alleged misconduct actually was committed by the accused Service member (see Chapter 3);

2. the misconduct was an offense under the Louisiana Code of Military Justice. This can be verified by consulting the "elements of the offense" analysis found under the analogous UCMJ punitive article in Part IV of the most current Manual for Courts Martial;

3. non-judicial punishment is appropriate to the offense in view of the nature and circumstances of the alleged misconduct and the Service member's past record. Stated another way, non-punitive measures are simply inadequate or inappropriate, and the violation is of a "minor" nature not warranting court-martial.

B. Minor Offenses. Whether an offense is "minor" depends on several factors: the nature of the offense and the circumstances surrounding its commission, the offender's age, rank, duty assignment, record, and experience. Ordinarily, a "minor offense" would exclude conduct that would warrant a dismissal, bad conduct, or dishonorable discharge or constitute a "felony" under civilian law (i.e. punishable by imprisonment at hard labor if convicted). Generally speaking, the term "minor" does not include offenses involving any greater degree of criminality than is involved in the average offense tried by summary court-martial. However, this rule is flexible, and rests with the commander's discretion. The decision whether an offense is "minor" is a matter of discretion for the commander imposing non-judicial punishment, but non-judicial punishment for an offense other than a minor offense (even though thought by the commander to be "minor") is not a bar to trial by court-martial for the same offense. [See R.C.M. 907(b)(C)(iv).] However, the accused may show at trial that non-judicial punishment was imposed, and if the accused does so, this fact must be considered in determining an appropriate sentence. [See Article 15(f); R.C.M. 1001(c) (B).]

La. Admin. Code tit. 41, § II-402

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2359 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).