N.Y. Comp. Codes R. & Regs. tit. 9 § 519.2

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

Section 519.2 - Authority

(a) Who may impose non-judicial punishment. Unless otherwise specified in this Part, any commander is authorized to exercise the disciplinary powers conferred by section 130.15.

(1) The term commander, as used in this section, is a commissioned or warrant officer who, by virtue of his or her grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a command.

(2) In the case of Active Guard/Reserve (AGR) personnel, commander includes the lowest level supervisor of an AGR member at his work station who is a commissioned or warrant officer.

(3) The words "imposing commander" refers to the commander or other officer who actually imposes the non-judicial punishment.

(4) Commands include the following:

(i) companies, troops and batteries;

(ii) numbered units and detachments;

(iii) missions;

(iv) service school;

(v) area commands;

(vi) work station (in the case of AGR personnel).

(5) Commands also include, in general, any other organization of the kind mentioned in paragraph (4) of this subdivision, the commander of which is the one looked to by superior authority as the individual chiefly responsible for maintaining discipline in that organization. Thus, an infantry company, whether or not separate or detached, N.Y.R.C.M. 504(b)(2), is considered to be a command. However, an infantry platoon that is part of a company and is not separate or detached is not considered to be a command. Although a commissioned or warrant officer exercising command is usually designated as the commander, this position may be designated by various other titles having the same official connotation; e.g., commandant, chief of mission or work supervisor.

(6) The detachment commander in HHD, STARC will obtain the recommendation of the appropriate DMNA director before imposing non-judicial punishment on an AGR member who is a full-time DMNA employee.

(b) Persons upon whom non-judicial punishment may be imposed. Military personnel of his or her command. A commander may impose punishment as authorized under section 130.15 upon commissioned officers, warrant officers and other military personnel of his or her command.

(1) For the purpose of section 130.15, military personnel are considered to be "of the command" of a commander if they are:

(i) Assigned to an organization commanded by him or her.

(ii) Affiliated with the command (by attachment, detail, TDY, AGR personnel or otherwise) under conditions, either expressed or implied, which indicate that the commander and the commander of the unit to which they are assigned, is to exercise administrative or disciplinary authority over them.

(2) Under circumstances similar to subparagraph (1)(i) of this subdivision, a commander may be assigned territorial command responsibility so that all or certain military personnel in the area will be considered to be of his or her command for the purpose of section 130.15.

(3) To determine if an individual is "of the command" of a particular commanding officer, refer first to those written or oral orders or directives that affect the status of the individual. If orders or directives do not expressly confer authority to administer non-judicial punishment to the commander of the unit with which service member is affiliated or present (as when, for example, they contain no provision attaching the member "for disciplinary purposes"), consider all attendant circumstances, such as:

(i) the phraseology used in the orders;

(ii) where the member slept, ate, was paid, performed duty, the duration of the status, and other similar factors;

(iii) whether the member is Active Guard/Reserve (AGR) under title 32, section 502(f), and is assigned to a certain work station on a full-time basis which is different from his parent unit;

(iv) whether the commander exercises the usual responsibilities and attributes of command over the member.

(4) If orders or directives include such terms as "attached for administration of military justice", or simply "attached for administration", the individual so attached will be considered to be of the command of the commander of the unit of attachment for the purpose of section 130.15.

(5) Termination of status. Non-judicial punishment will not be imposed upon an individual by a commander after the individual ceases to be of his or her command, because of transfer or otherwise. However, if section 130.15 proceedings have been instituted and punishment has not been imposed prior to the time of change of assignment, the commander who instituted the proceedings may forward the record of proceedings to the gaining commander for appropriate disposition.

(c) Minor offenses. Generally, the term "minor" includes misconduct involving a lesser degree of criminality than is involved in the average offense tried by SCM. Violations of or failures to obey general orders or regulations may be minor offenses if the prohibited conduct itself is of a minor nature even though also prohibited by a general order or regulation.

(d) Multiple punishment prohibited. Several minor offenses arising out of substantially the same offense, act or conduct will not be made the basis of separate actions under section 130.15.

(e) Punishment after exercise of jurisdiction by civil authorities. Non-judicial punishment may be imposed upon a member who has been tried in a civil court for the same act if the exercise of section 130.15 jurisdiction would promote the efficiency of the service.

(f) Statute of limitations. No punishment shall be imposed under ML, 130.15 for any offense committed more than two years before the imposition of such punishment.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.2