N.Y. Comp. Codes R. & Regs. tit. 9 § 516.2

Current through Register Vol. 46, No. 25, June 18, 2024

Section 516.2 - Jurisdiction

(a) Jurisdiction in general.

(1) Nature of courts-martial jurisdiction.

(i) The jurisdiction of courts-martial is entirely penal or disciplinary.

(ii) This code applies in all places within the State. It also applies to all persons subject to the code while serving outside the State and applies while such persons are going to and returning from such service outside the State in like manner and to the same extent as while those persons are serving within the State (see ML, 130.5[a]).

(iii) The jurisdiction of a court-martial with respect to offenses under the code is not affected by the place where the court-martial sits (see ML, 130.5 [b]).

(2) Requisites of court-martial jurisdiction. A court-martial always has jurisdiction to determine whether it has jurisdiction. Otherwise for a court-martial to have jurisdiction:

(i) the court-martial must be convened by an official empowered to convene it (see ML, 130.22, in the case of a general court-martial; ML 130.23, in the case of a special court-martial, and ML, 130.24 and Part 515 of this Title, in the case of a summary court-martial); and

(ii) the court-martial must be composed in accordance with these rules with respect to number and qualifications of its personnel (see ML, 130.16). As used here, personnel includes only the military judge, the members, and the summary court-martial officer; and

(iii) each charge before the court-martial must be referred to it by competent authority (see ML, 130.34); and

(iv) the accused must be a person subject to court-martial jurisdiction (see ML, 130.2); and

(v) the offense must be subject to court-martial jurisdiction (see ML, 130.34 and ML, 130.73 to 115).

(3) Contempt. A court-martial may punish for contempt any person who uses any menacing word, sign, or gesture in its presence, or who disturbs its proceedings by any riot or disorder. The punishment may not exceed confinement for 30 days or a fine of $100, or both. (see ML, 130.48).

(4) Exclusive and nonexclusive jurisdiction.

(i) Courts-martial have exclusive jurisdiction of purely military offenses.

(ii) An act or omission which violates both the code and local criminal law, foreign or domestic, may be tried by a court-martial, or by a proper civilian tribunal.

(iii) Where an act or omission is subject to trial by court-martial and by one or more civil tribunals, the determination of which tribunal within the State, or the United States will exercise jurisdiction is a matter for the State, the United States, or the municipality concerned, and is not a right of the suspect or accused.

(5) Reciprocal jurisdiction.

(i) Each armed force has court-martial jurisdiction over all persons subject to the code (ML, 130.17 and 130.2).

(ii) A member of one armed force may be tried by a court-martial convened by a member of another armed force when the accused cannot be delivered to the armed force of which the accused is a member without manifest injury to the organized militia. An accused should not ordinarily be tried by a court-martial convened by a member of a different component of the organized militia except when the above circumstances exist. However, failure to comply with this policy does not affect an otherwise valid referral.

(iii) Nothing in this subdivision prohibits detailing to a court-martial military judge who is a member of a component of the organized militia different from that of the accused or the convening authority, or both.

(iv) In all cases, review after that by the officer with authority to convene a general court-martial for the command which held the trial, where that review is required by the code, must be carried out by the component of the organized militia of which the accused is a member.

(6) Types of courts-martial.

(i) General courts-martial. Subject to paragraph (5) of this subdivision, general courts-martial may try any person subject to the code for any offense made punishable by the code. Upon a finding of guilty of an offense made punishable by the code, general courts-martial may adjudge any punishment authorized under ML, 130.18.

(ii) Special courts-martial. Subject to paragraph (5) of this subdivision, special courts-martial may try any person subject to the code except commissioned officers (see title 32, United States Code, section 328) title 32, United States Code, section 328) for any offense made punishable by the code. Upon a finding of guilty, special courts-martial may adjudge any punishable authorized under ML, 130.19. A bad conduct discharge cannot be adjudged unless a complete record of the proceedings and testimony before the court has been made.

(iii) Summary courts-martial (see N.Y.R.C.M. 1301[c] and [d] [1]).

(7) Concurrent jurisdiction of other military tribunals. The provisions of the code and this Chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals (see ML, 130.12).

(b) Persons subject to the jurisdiction of courts-martial.

(1) In general. Courts-martial may try any person when authorized to do so under the code (see ML, 130.2).

(2) Attachment of jurisdiction over the person.

(i) In general. Court-martial jurisdiction attaches over a person when action with a view to trial of that person is taken. Once court-martial jurisdiction attaches, such jurisdiction shall continue for all purposes of trial, sentence and punishment, notwithstanding the expiration of that person's term of service or other period in which that person was subject to the code or trial by court-martial.

(ii) Procedure. Actions by which court-martial jurisdiction attaches include: apprehension; imposition of restraint, such as restriction, arrest, or confinement and referral of charges.

(c) Jurisdiction over the offense. To the extent permitted by the United States or New York State Constitutions, courts-martial may try any offense under the code.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.2