La. Admin. Code tit. 41 § II-412
Current through Register Vol. 50, No. 9, September 20, 2024
Section II-412 - Waiver of Court-Martial and Demand for HearingA. General. If the service member waives court-martial but demands an Article 15 hearing, the commander must arrange for and conduct the hearing before deciding whether to impose non-judicial punishment. The commander himself must conduct the hearing except in rare circumstances where it is not feasible for him to do so. In those circumstances, the commander must appoint another officer to conduct the hearing. After conducting the hearing, the appointed officer should submit written recommendations to the commander.B. Spokesman. During the hearing the service member may be represented by a spokesman. The individual need not be an attorney, and the spokesman's participation in the case must be completely voluntary. In addition, no travel fees or other unusual costs will be incurred at government expense to insure the spokesman's presence at the hearing. Neither shall the service member's desire to be represented by a spokesman be permitted to cause unreasonable delay in the disposition of his case.C. Accused Witnesses. The service member may indicate the witnesses he desires produced at the hearing. If the witnesses are reasonably available, the commander must arrange for their presence. No witness or transportation fees will be incurred at government expense to insure the witnesses' presence. Reasonably available witnesses include those present for duty at the installation concerned and those whose presence can be arranged without the expenditure of government travel funds and whose attendance at the hearing will not materially delay the proceedings.D. Evidentiary Considerations. During the hearing, neither the member nor the spokesman may examine or cross-examine witnesses unless the commander allows them to do so. However, the Service member or the spokesman may brief the commander on the relevant issues and areas. The commander should explore those issues and areas in questioning the witnesses. The imposing commander is not bound by the formal rules of evidence before courts-martial (except privileges), and may consider any matter, including unsworn statements, that the commander reasonably believes to be relevant to the offense.E. Punishment Warranted. If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the service member. The commander may, if he desires to do so, explain to the service member why a particular punishment was imposed.F. Punishment Not Warranted. If, after evaluation of all pertinent matters, the imposing commander determines that non-judicial punishment is not warranted, the service member is notified that the proceedings have been terminated and all copies of DA Form 2627 are destroyed.G. Appellate Rights. After punishment is imposed the appellate rights and procedures which are available to the service member are explained to the service member. (Refer to Paragraph 4-16)H. Subsequent Court-Martial. The imposition and enforcement of disciplinary punishment under LCMJ Article 15 for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under LCMJ Article 15. However, the fact that a disciplinary punishment has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty by court-martial.La. Admin. Code tit. 41, § II-412
Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2362 (November 2009).AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).