N.Y. Comp. Codes R. & Regs. tit. 9 § 519.3

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

Section 519.3 - Procedures

(a) General. The authority to impose non-judicial punishment charges a commander with the responsibility of exercising his or her authority in an absolutely fair and judicious manner.

(b) Preliminary inquiry. (See N.Y.R.C.M. 303)

(1) The commander of the alleged offender must insure that the matter is promptly and adequately investigated. The commander may either investigate the matters himself or delegate such responsibility to a subordinate. However, in the latter case, the investigation should provide the commander with sufficient information to make an appropriate disposition of the incident. The investigation should cover:

(i) whether an offense was committed;

(ii) whether the member was involved;

(iii) the character and military record of the member.

(2) Usually the preliminary investigation is informal and consists of interviews with witnesses and/or a review of police or other informative reports. If, after the preliminary inquiry, the commander determines that the member has committed an offense and that non-judicial punishment is appropriate (see N.Y.R.C.M. 306, para c[3]), the commander should take action as set forth in this section.

(c) Commander's guide for notification and imposition. In all cases, other than summarized proceedings, commanders should use Appendix L-2 (A15) as a guide in conducting the proceedings.

(d) Proceedings, DMNA form 1057 (Appendix L-2 [A16]).

(1) All entries will be recorded on DMNANG form 1057 (Record of Proceedings under section 130.15 of the New York State Military Law, Appendix L-12 [A16]). DMNA form 1057 may be reproduced locally on 8 1/2" x 11" paper.

(2) Notification and explanation of rights.

(i) The imposing commander will ensure that the member is notified of the commander's intention to dispose of the matter under the provisions of section 130.15, State Military Code. The member will be provided a copy of DMNA form 1057 (Appendix L-2 [A16]) with items (1) and (2) completed, including the date and signature of the imposing commander. The imposing commander may authorize a commissioned officer, warrant officer, or NCO (E-7 or above), provided such person is senior to the member being notified, to deliver the DMNA form 1057 and inform the member of his or her rights. The NCO performing the notification should be the unit First Sergeant. In such cases, the notifier should follow Appendix L-2(A15), modified as required. The member should be provided with a copy of DMNA form 1057 (Appendix L-2 [A16]) and supporting documents and statements, for use during the proceedings. The member will return the copy to the commander for annotation. It will be given to the member for retention when all proceedings are completed.

(ii) Right to remain silent. The member will be informed that:

(a) he or she is not required to make any statement regarding the offense or offenses of which he or she is suspected; and

(b) any statement made may be used against him or her in the section 130.15, Military Law proceeding or in any other proceedings, including a trial by court-martial.

(iii) Right to counsel. The member will be informed of the right to consult with military counsel prior to the proceedings and be informed of the location of military counsel.

(iv) Other rights. The member will be informed of the right to:

(a) fully present his or her case in the presence, except in rare circumstances, of the imposing commander (see subparagraph [vi] of this paragraph);

(b) call witnesses;

(c) present evidence;

(d) request he or she be accompanied by a spokesperson;

(e) request an open proceeding (see clause (vi)(b) of this paragraph);

(f) examine available evidence.

(v) Decision period. The member will be given a reasonable time to consult with counsel, including time off from duty, if necessary, and to gather matters in defense, extenuation and/or mitigation. Normally, 48 hours is a reasonable decision period, during periods of annual training, FTTD, orders under Title 32, section 502(f), State Active Duty, and other periods of extended duty. If the member is in an inactive duty training (IDT) status, normally the member should be given until the next regularly scheduled drill. If a new imposing commander takes command after a member has been notified of the original imposing commander's intent to impose punishment, the member will be notified of the change.

(vi) Proceeding.

(a) In the presence of the commander. The member will be allowed to personally present matters in defense, extenuation, or mitigation in the presence of the imposing commander, except when, under rare circumstances it is not feasible. When personal appearance is requested, but is not possible, the imposing commander will appoint an officer to conduct the proceeding and make recommendations.

(b) Open proceeding. Section 130.15, Military Law proceedings are open. However, a member may request an open or closed hearing. In all cases, the imposing commander will, after considering all of the facts and circumstances, determine whether the proceeding will be open to the public, but does not require the commander to hold the proceeding in a location different from that in which he or she conducts normal business; i.e., his or her office.

(vii) Spokesperson. The person who may accompany the member to the section 130.15 proceeding and who speaks on his or her behalf need not be a lawyer. An offender has no right to legal counsel at the non-judicial proceeding, however, the commander may allow such representation in the proceeding based upon his discretion. A member may retain civilian counsel to act as his or her spokesperson, at no cost to the government; but the commander need not grant a delay for the appearance of any spokesperson, to include civilian counsel so retained. No travel fees or any other unusual costs may be incurred at government expense for the presence of the spokesperson. The spokesperson's presence is voluntary. Because the proceedings are not adversarial in nature, neither the member or the spokesperson (including any attorney present on behalf of the member) may examine or cross-examine witnesses, unless permitted by the imposing commander. The member or spokesperson may, however, indicate to the imposing commander relevant issues or questions he or she wishes to explore or ask. Notwithstanding this paragraph, examination and cross-examination should be permitted by the commander when reduction or fine is a permissible penalty.

(viii) Witnesses. The member's request for witnesses in defense, extenuation or mitigation shall be restricted to those witnesses reasonably available as determined by the imposing commander. To determine whether a witness is reasonably available, the imposing commander will consider the fact that neither witness fees nor transportation fees are authorized. Reasonably available witnesses will ordinarily include only personnel at the unit or the installation concerned and others whose attendance will not unnecessarily delay the proceeding.

(ix) Evidence. The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, he or she reasonably believes to be relevant to the offense.

(x) Action terminating proceedings. If, after evaluation of all pertinent matters, the imposing commander determines that non-judicial punishment is not warranted, the member will be notified that the proceedings have been terminated and all copies of DMNA form 1057 (Appendix L-2[A16]) will be destroyed.

(xi) Imposition of punishment. If the imposing commander determines, beyond a reasonable doubt, that the member has committed an offense and decides to impose punishment, ordinarily he or she will announce the punishment to the member. The commander may, if he or she desires to do so, explain to the member why a particular punishment was imposed.

(xii) Right to appeal. Appellate rights and procedures, which are available to the member will be explained in section 519.6 of this Part.

(e) No right to demand trial. New York Army National Guard personnel, whether on orders under Title 32, United States Code or State active duty under the New York State Military Law may not demand trial by court-martial in lieu of non-judicial punishment. This subdivision is not applicable to officers and warrant officers.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.3