N.Y. Comp. Codes R. & Regs. tit. 9 § 519.4

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

Section 519.4 - Punishment

(a)Rules and limitations.

Whether to impose punishment and the nature of the punishment are solely the decisions of the imposing commander. However, commanders are encouraged to consult with their NCO's on the appropriate type, duration and limits of punishment to be imposed. Additionally, as NCO's are often in the best position to observe a member undergoing punishment and evaluate daily performance and attitude, their views on clemency should be given careful consideration.

(1)
TABLE 4-1 TYPES OF PUNISHMENT
MAXIMUM PUNISHMENT FOR ENLISTED MEMBERS
PUNISHMENT	IMPOSED BY COMPANY GRADE OFFICERS	IMPOSED BY FIELD GRADE OFFICERS
Admonition/Reprimand	Yes	Yes
Withholding of privilege	2 consecutive weeks	2 consecutive weeks
Restriction with or without suspension from duty	2 consecutive weeks	2 consecutive weeks
Extra duties	2 consecutive weeks not to exceed 2 hours p/day; holidays included	2 consecutive weeks not to exceed 2 hours p/day; holidays included
Reduction (E2-E7)	E-2 through E-4, one grade but see Chapter 6 (NGR 600-200)	E-5, E-6 and E-7, one grade but see Chapter 6 (NGR 600-200)
Reduction (E8 and E9)	No, see section 519.6 (NGR 600-200)	No, see section 519.6 (NGR 600-200)
Fine	$150.00	$150.00
(2)
PUNISHMENT FOR COMMISSIONED AND WARRANT OFFICERS
Withholding of privileges	2 consecutive weeks	2 consecutive weeks
Restrictions with or without suspension from duty	2 consecutive weeks	2 consecutive weeks

Imposed by Governor, Commanding Officer or Force of

Organized Militia or General or Flag Ranking Command

Fine of $200.00

(b)Types of punishment.

See paragraph (a)(1) of this subdivision, table 4-1 for maximum punishments.

(1)Admonition is a warning, reminder or reproof given by a commander to an offender to deter repetition of the type of misconduct which resulted in the admonition and to advise him of the consequences that may flow from a recurrence of that misconduct. An admonition may be oral or written and may be included in a reprimand.

(2)Reprimand is the act of formal censure by a commander which reproves or rebukes the offender for his misconduct. It may be oral or written. Reprimand or admonition may be given administratively as a nonpunitive measure to improve efficiency. For this purpose, the procedures contained in this regulation need not be followed. If, however, the commander elects to impose either a reprimand or an admonition as non-judicial punishment under Military Law, section 130.15, the punishment must be imposed in accordance with the procedures outlined in this Part.

(3) Withholding of privileges shall only be executed while the offender is in a duty status.

(4) Restriction to certain specified limits shall only be executed while the offender is in a duty status, with or without suspension from performance of duty.

(5) Extra duties:

(i) shall only be executed while the offender is in a duty status;

(ii) the performance of extra duties shall not exceed two hours per day, and may include holidays;

(iii) extra duties may include performance of any military duty except duty which:

(a) demeans the grade or position of the offender in type of duty or manner of performance;

(b) constitutes punishment not sanctioned by the customs of the military;

(c) normally is intended as an honor; or

(d) uses the offender as a personal servant.

(iv) An inactive duty period may be extended beyond the normal four-hour period to accommodate the performance of the extra duties (see ML 130.15[a][2][c]).

(6) Confinement is limited to those instances authorized in Military Law, section 130.15(a)(2)(E), and shall only be executed while the offender is in a duty status.

(7) The punishments or withholding of privileges, restrictions to certain specified limits, extra duties and confinement shall be executed within 60 days after the punishment is imposed.

(8) Fine may apply to pay or allowances as stated in Military Law, section 130.15, subdivisions (a)(1)(C), (a)(2)(F) and (f).

(i) Fines will be collected by the unit commander and deposited in the unit's state military fund account.

(ii) In the case of AGR personnel, fines will be collected by the commander and remitted to the unit State military fund or in the case of assignment to another unit to the assigned unit's State military fund, e.g., STARC.

(9) Reduction in grade (herein meaning "pay grade").

(i) Only the commander with the authority to promote to the grade from which demoted may reduce a member in grade with the exception as indicated in subparagraph (iii) of this paragraph. See paragraph (ii) of this subdivision for reduction of offenders in grades E-8 and E-9.

(ii) An offender may be reduced only one grade in each non-judicial punishment action.

(iii) Reduction authority pertaining to AGR personnel is not delegated and rests with this headquarters. Reduction actions will be implemented by completing and forwarding a copy of DMNA form 1057 to Headquarters, NYARNG, ATTN: MNSP-AGR.

(10) Reduction in grade (herein meaning "pay grade"). (This paragraph and paragraph (9) of this subdivision do not apply to commissioned officers and warrant officers see paragraph [c][2] of this section.)

(i) Promotional authority. The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this Part, the imposing commander, or any subordinate commander has "promotion authority", if he or she has the general authority to appoint to the grade from which reduced or to any higher grade (AR 600-200).

(ii) Lateral appointment or reduction of NCO to Specialist and a Specialist to NCO. An NCO may not be laterally appointed to a Specialist in the same pay grade under section 130.15 of the Military Law. However, the NCO may be reduced to a Specialist or NCO of a lower pay grade provided the latter grade is authorized in the member's primary military occupational specialty (PMOS). A Specialist may not be laterally appointed to an NCO in the same pay grade but may be reduced to a Specialist or NCO of a lower pay grade provided the latter grade is authorized in the member's primary MOS. For example, a Sergeant may not be appointed to a Specialist 5 but may be reduced to a Specialist 4 or to Corporal. If reduction is included in the punishment, the imposing commander must determine whether the lower pay grade status of either Specialist or NCO is authorized in the member's primary MOS. The commander will indicate upon announcement of the reduction which status within the pay grade is intended; e.g., "to be reduced to Specialist 4".

(iii) Date of rank. When a person is reduced in grade as a result of an unsuspended reduction, his or her date of rank in the grade to which reduced is the date the punishment or reduction was imposed. If the reduction is suspended either on or after the time the punishment was imposed, or if set aside or mitigated to forfeiture of pay, the date of rank in the grade held before the punishment was imposed remains unchanged. If a suspension of the reduction is vacated the date or rank in the grade to which reduced as a result of the action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated.

(iv) Entitlement to pay. When a member is restored to a higher pay grade because of suspension or when a reduction is mitigated to a fine, entitlement or pay at the higher grade is effective on the date of suspension or mitigation. This is true even though an earlier date of rank is assigned. If, however, a reduction is set aside and all rights, privileges and property are restored, the member concerned will be entitled to pay as though the reduction had never been imposed.

(v) Void reduction. A reduction imposed as non-judicial punishment by an imposing commander not having authority to do so is void and must be set aside. However, there is one exception, which clearly evidences a commander's intent to impose at least as authorized one grade reduction. This is a reduction to a lower specialist grade when reduction should have been to a lower NCO grade (or vice versa). In this case, administrative action will be taken to place the offender in the proper rank for the MOS held in the reduced pay grade.

(vi) Removal form standing promotion list. (See AR 600-200.)

(11) Reduction in grade of offenders in grades E-8 and E-9:

(i) Only a major commander, New York Army National Guard, is authorized to impose a reduction, suspended or unsuspended, in a non-judicial punishment action where the offender is in the grade of E-8 or E-9. Likewise, only a major commander, New York Army National Guard, is authorized to vacate a suspended reduction of an offender in grade E-8 or E-9.

(ii) All procedures previously described in this regulation apply to any action involving the reduction of an offender in grades E-8 or E-9 subject to the following:

(a) Any non-judicial punishment imposed on an offender in grades E-8 or E-9, not involving reduction, shall be imposed at the unit level by the commander authorized to impose such non-judicial punishment on offenders in grades E-8 or E-9.

(b) If the commander authorized to non-judicially punish (other than reduction) such offenders, "intends to impose reduction", paragraph 1 (the notification of offense) DMNA Form 1057 (Appendix L-2[A16]) shall state that the commander intends to recommend to the (appropriate major commander) the imposition of non-judicial punishment". However, this notification of offense shall not include a recommendation of the type of severity of punishment to be imposed.

(c) After all requirements in this Part preliminary to the actual imposition of non-judicial punishment are met, the commander who would have otherwise been authorized to impose the punishment shall by indorsement, forward the record to the 42nd Infantry Division, Headquarters Troop Command, Headquarters, 27th Brigade STARC (if the action is not commenced by the Division Commander, Commander, Headquarters Troop Command) or Commander, 27th Brigade through the unit Judge Advocate (for preliminary legal sufficiency review for determination of imposition of non-judicial punishment).

(d) Where the major commander is forwarded the record to initially determine whether or not to impose non-judicial punishment, he takes the place of the commander at the unit level with all his authority for non-judicial punishment action (i.e., imposition of punishment, termination without punishment, or termination of action and processing by court-martial).

(iii) If the major commander imposes a reduction (although he may impose any type of non-judicial punishment he deems appropriate) only he, or his successor-in-command may suspend, vacate a suspension, mitigate or remit or set aside the reduction.

(a) Whatever remedial action the major commander takes, once the appellate process is completed, the record shall be maintained at the unit level, and the appropriate major commander shall be notified of any further misconduct committed by such offender in any suspension period.

(b) Any vacation action shall be commenced by the unit commander recommending vacation action to the major commander and by mailing or delivering the notification to the offender in accordance with this regulation.

(iv) A STARC Staff Judge Advocate, New York Army National Guard, shall review the record for legal sufficiency in all cases of reductions in grade of offenders in grades E-8 and E-9. All papers shall be forwarded to DMNA, ATTN: MNJA, 330 Old Niskayuna Road, Latham, NY 12110-2224.

(c)Limitations and types of punishment.

(1) In addition to, or in lieu of an admonition or reprimand, only one of the authorized punishments in Military Law, section 130.15 may be imposed for each non-judicial punishment action.

(2) The punishments of confinement, extra duties, or reduction may not be imposed non-judicially on officers or warrant officers.

(3) Punishments imposed may not be so grossly disproportionate to the offenses committed, so as to violate fundamental principles of fairness and justice.

(d)Effective date and execution of punishment.

(1) General.

The date of imposition of non-judicial punishment is the date items 1-3, DMNA form 1057 (Appendix L-2[A16]), as appropriate, are signed by the imposing commander. This action will normally be accomplished on the day punishment is imposed.

(2) Unsuspended punishments.

Unsuspended punishments of reduction and forfeiture take effect on the date imposed. Other unsuspended punishments take effect on the date they are imposed, unless the imposing commander prescribes otherwise. In those cases where the execution of the punishment must legitimately be delayed ( e.g., the member is hospitalized, authorized emergency leave) the execution of punishment should begin immediately thereafter. The delay in execution of punishment should not exceed 30 days. Once the member has submitted an appeal, including all pertinent attachments, such appeal normally should be decided within 30 calendar days, excluding the submission date. If the appeal is not decided within this period, the performance of those punishments involving deprivation of liberty will be interrupted pending decision on the appeal.

(3) Vacated, suspended reduction.

Suspended reduction, later vacated is effective on the date vacation is directed. Any commanding officer of the person to be punished may order the punishment to be executed and in such a manner and under such supervision as he or she may direct.

(e)Announcement of punishment.

(1) The punishment may be announced at the next unit formation after punishment is imposed; or, if appealed, after the decision of the appeal. It also may be posted on the unit bulletin board. The purpose of announcing the results of punishment is to preclude perceptions of unfairness of punishment and to deter similar misconduct by other service members. An inconsistent or arbitrary policy regarding the announcement of punishment that might result in the appearance of vindictiveness or favoritism should be avoided. In deciding whether to announce punishment of members in the grade of E-5 or above, the following should be considered:

(i) the nature of the offense;

(ii) the individual's military record and duty position;

(iii) the deterrent effect;

(iv) the impact on unit morale;

(v) the impact on any victim;

(vi) the detrimental impact on the mission or leadership effectiveness of the individual concerned.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.4