La. Admin. Code tit. 41 § II-427

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-427 - Setting Aside and Restoration

A. Generally. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. Non-judicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the service member. An example of "clear injustice" would be the discovery of new evidence unquestionably exculpating the service member. "Clear injustice" does not include the fact that the service member's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the service member.

B. Proof Required. Normally, the service member's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

C. Administrative Errors. In cases where administrative error results in incorrect entries on the Article 15 documents, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

D. Timeliness. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within four months after the punishment has been executed. When a commander sets aside any portion of the punishment, he will record the basis for this action upon the form. Any punishment set aside after four months from the date punishment has been executed will be accompanied with a detailed addendum of the unusual circumstances warranting such action.

La. Admin. Code tit. 41, § II-427

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2366 (November 2009).

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