La. Admin. Code tit. 41 § II-408

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

Section II-408 - Initial Notification

A. The first steps in an Article 15 proceeding are the commander's oral and written notification to the service member. The elements of this step are stated on the DA Form 2627, Record of Proceedings under Article 15, UCMJ. Located at Appendix C is a "Suggested Guide for Conduct of Non-judicial Punishment Proceedings." The initial notification contains the following elements:

1. Statement of Offense. The commander who intends to impose the punishment must inform the member of that intent. The initial notification must include a brief statement of the offense that the commander believes the member has committed, including the specific Article(s) of the LCMJ. The commander shall prepare the charge sheet only with the advice and assistance of a Judge Advocate or a Paralegal. In drafting Item 1 of the DA Form 2627, the paralegal should use the model sample specification forms in Part IV, Punitive Articles, of the Manual for Courts-Martial by selecting the UCMJ Punitive Article which corresponds to the LCMJ Punitive Article under which the accused is being punished. The notice should include a brief summary of the information upon which the allegations are based or a statement that the member may, upon request, examine available statements and evidence.

2. Right to Demand Trial by Court-Martial. Unless the member is attached to or embarked in a vessel, the member has a right to demand court-martial in lieu of the Article 15. If the member has this right, the commander must so advise the individual, covering the following specific facts:

a. the member may demand trial by court-martial in lieu of non-judicial punishment;

b. the maximum punishment which the non-judicial punishment authority may impose by non-judicial punishment;

c. if trial by court-martial is demanded, charges could be referred for trial by summary, special, or general court-martial along with an explanation of the maximum possible punishments those courts-martial may adjudge; that the member may not be tried by summary court-martial over the member's objection; and that at a special or general court-martial the member has the right to be represented by military counsel at no personal expense.

3. Rights under Article 31(b), LCMJ. The commander must inform the member that under Article 31(b), the member has a right to remain silent and that anything said by the individual can be used against him.

4. Right to Consult Counsel or Representative. The commander shall inform the individual of the right to consult counsel or his personal representative concerning the proposed disciplinary action. At the time of the initial notification, the commander shall inform the service member of the period of time which the service member has to consult with counsel or personal representative and make the necessary decisions on such matters as the right to demand court-martial. The service member shall be afforded the opportunity to view the video and complete the survey provided by LANG TDS on State Judge Advocate's site Louisiana Knowledge Online (LKO) at http://nglashcbsvitsp1/SiteDirectory/sja/default. Unit personnel shall provide a method for the service member to view such video if the service member does not have the ability to do so. If the service member wishes to consult counsel after viewing the video, then unit personnel shall provided him with the contact information for LANG TDS. In no event shall a service member be given less that 48 hours, to consult with counsel, if he chooses to do so. The commander must afford the service member a reasonable amount of time to consult with counsel. In determining the amount of time afforded to service member to consult with counsel, the commander should consider such factors as the gravity of the offense and the availability of counsel. If, after viewing the LANG TDS video, the service member chooses not to avail himself to the right to counsel, then the commander may precede with the remainder of the article 15 preceding and does not have to wait a full 48 hours.

5. Right to Informal Public Hearing. The commander must inform the service member of the right to fully present evidence, and to be accompanied by a person to speak on his behalf. The commander must also inform the service member that, upon request, the hearing will be open to the public unless military exigencies or security interests preclude public disclosure.

6. Maximum Possible Punishments. While the service member is not entitled to be informed as to the type or amount of punishment actually contemplated by the commander if he does not demand trial by court-martial, he will in each case be informed of the maximum punishment which may be imposed under Article 15 by the officer who is to impose the punishment, and, if he specifically requests such, he shall be advised of the maximum punishment that could be adjudged by court-martial upon conviction for the offense involved. Figure 4-1 contains a chart outlining permissible Article 15 maximum punishments and the commanders authorized to impose such within the LANG. Figure 6-2 contains a table outlining permissible maximum punishments under courts-martial.

7. Possibility of Counsel. The service member will also be told that, if he demands trial, trial could be by SCM, SPCM, or GCM. The service member will also be told that he may object to trial by SCM and that at SPCM or GCM he would be entitled to representation by qualified LANG TDS, or by civilian counsel obtained at no government expense.

La. Admin. Code tit. 41, § II-408

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2361 (November 2009).

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