La. Admin. Code tit. 41 § II-405

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

Section II-405 - Policies

A. General. Commanders are responsible for good order and discipline in their commands. Generally, discipline can be maintained through effective leadership including, when necessary, administrative corrective measures. Non-judicial punishment is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the minor offense or the record of the Service member, unless it is clear that only trial by court-martial will meet the needs of justice and discipline. Non-judicial punishment shall be considered on an individual basis.

B. Proportionality. Commanders considering non-judicial punishment should consider the nature of the offense, the record of the Service member, the needs for good order and discipline, and the effect of non-judicial punishment on the Service member and the Service member's record. A commander should employ his power under LCMJ Article 15 in every case in which punishment is deemed necessary and that section applies, unless it is clear that punishment under that section would not meet the ends of justice and discipline. Superior commanders should restrain any tendency of subordinate commanders to resort prematurely or unnecessarily to court-martial jurisdiction for the punishment of offenders. The punitive power under Article 15 must be used judiciously and with restraint. Punishment that is too severe creates resentment and bitterness and frustrates corrective efforts. Conversely, to be effective, the punishment must be adequate and proportional to deter the offender and others from committing the same offenses.

C. Suspension of Article 15. Commanders should consider suspending all or part of any punishment selected under Article 15, particularly in the case of first offenders or when significant extenuating or mitigating matters are present. Suspension provides an incentive to the offender and gives an opportunity to the commander to evaluate the offender during the period of suspension. [See paragraph 4-23 and Figure 4-4.] Additionally, commanders must seriously consider the collateral effects of a reduction in pay grade on the accused before imposing such a penalty.

D. Referral within Chain of Command. Although a superior commander has authority to impose disciplinary punishment upon military subordinates of his command, it is customary for such superior commander to refer any breach of discipline on the part of an enlisted person in grade E-6 or below who is a member of a subordinate unit to the attention of the immediate commander of the offender. If the officer, to whom information concerning a breach of discipline is forwarded, as contemplated in this paragraph, lacks jurisdiction to impose the most appropriate punishment, he should forward the matter to a superior authority. DA Form 5109-R, Request to Superior to Exercise Article 15 Jurisdiction, may be modified and used for these purposes, or the request can be made in memorandum format. [See Figure 4-7.]

E. Personal Consideration Required. A commander who is considering a case for disposition under Article 15 will exercise personal discretion in evaluating each case, both as to whether non-judicial punishment is appropriate, and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate authority impose non-judicial punishment in a particular case. No superior may issue regulations, orders, or "guides" which suggest to subordinate authorities that certain categories of minor offenses be disposed of by non-judicial punishment instead of by court-martial or administrative corrective measures, or that predetermined kinds or amounts of punishments be imposed for certain classifications of offenses that the subordinate considers appropriate for disposition by non-judicial punishment.

La. Admin. Code tit. 41, § II-405

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2360 (November 2009).

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