N.Y. Comp. Codes R. & Regs. tit. 9 § 519.5

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

Section 519.5 - Suspension, vacation, mitigation remission and setting aside

(a) Clemency.

(1) General. The imposing commander, his or her successor-in-command, or the next superior authority may, in accordance with the time prescribed in the MCM:

(i) remit or mitigate any part or amount of the unexecuted portion of the punishment imposed;

(ii) mitigate reduction in grade, whether executed or unexecuted, to fine, detention or pay;

(iii) at any time, suspend probationally any part or amount of the unexecuted portion of the punishment imposed;

(iv) suspend probationally a reduction in grade or fine, whether or not executed. An uncollected fine of pay shall be considered unexecuted.

(2) Meaning of successor-in-command. As used in paragraph 134, MCM, a successor-in-command is the officer who has authority to impose the same kind and amount of punishment of a member concerned that was initially imposed or was the result of a modification and who:

(i) commands the unit to which the punished member is presently assigned; or

(ii) is the commander succeeding to the command occupied by the imposing commander, provided the member still is of that command.

(3) Recording of action. Any action of suspension, mitigation, remission or setting aside, taken by an authority will be recorded according to notes 9 and 10, DMNA form 1057 (Appendix L-2[A16]) or DMNA form 1059 (Record of Supplementary Action Under Article 15) exhibit 3.

(b) Suspension. Ordinarily, punishment is suspended to grant a probational period during which a member may show that he or she deserves a remission of the remaining suspended punishment. An executed punishment of reduction or fine may be suspended only within a period of four months after the date imposed. Suspension of punishment may not be for a period longer than six months from the suspension date. Further misconduct by the member, within the period of suspension, may be grounds for vacation of the suspended portion of the punishment.

(c) Vacation.

(1) A commander may vacate any suspended punishment, provided the punishment is of the type and amount he or she could impose. There is no appeal from a decision to vacate a suspension. The following will be recorded according to notes 8 and 9 on DMNA form 1057 (Appendix L-2[A16]):

(i) action vacation a suspension, to include the basis for vacation;

(ii) whether or not the member appeared and was provided an opportunity to respond.

(2) Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. The death, discharge, or separation from service of the member punished prior to the expiration of the suspension automatically remits the suspended punishment.

(3) A specific act of misconduct resulting in vacation of a suspended punishment may also be the basis for the imposition of another section 130.15 proceeding. If the suspended punishment is a reduction or fine, the member should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate the suspension to rebut the information upon which the proposed vacation is based. The member may be given the opportunity to appear in any case.

(4) In cases involving punishments other than reduction and fine, the member will be informed of the basis of the proposed vacation and should be given an opportunity to respond, either orally or in writing. Failure to provide notification and an opportunity to appear or rebut the information may result in the record of punishment being inadmissible in a subsequent court-martial, but will not, by itself, render a vacation action void.

(d) Mitigation.

(1) General.

(i) Mitigation is a reduction in either the quantity or quality of punishment, e.g., a restriction for 14 days is reduced to five days.

(ii) A fine may be mitigated to a lesser amount.

(2) Appropriateness. Mitigation is appropriate when:

(i) the recipient has, by his or her subsequent good conduct, merited a reduction in the severity of punishment;

(ii) the punishment imposed was disproportionate to the offense of the offender.

(3) Limitation on mitigation.

(i) With the exception of reduction in grade, the power to mitigate exists only with respect to a punishment or portion thereof which is unexecuted. A reduction in grade may be mitigated to a fine even though it has been executed.

(ii) Although a suspended punishment may be mitigated to a punishment of a lesser quantity or quality (which is also suspended for a period not greater than the remainder of the period for which the punishment mitigated was suspended), it may not, unless the suspension is vacated, be mitigated to an unsuspended punishment. (See paragraph [f][3] of this section for the time period within which reduction ordinarily may be mitigated, if appropriate, to a fine).

(e) Remission. This is an action whereby any portion of the unexecuted punishment is cancelled. Remission is appropriate under the same circumstances as mitigation. An unsuspended reduction is executed upon imposition and thus cannot be remitted, but may be mitigated or set aside. The death, discharge, or separation from the service of a member punished remits any unexecuted punishment. A member punished under section 130.15 will not be held beyond his or her expiration of term of service (ETS) to complete any unexecuted punishment.

(f) Setting aside and restoration.

(1) 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. The basis for this 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 evidence usually newly discovered, clearly exculpating the member. Normally the member's unsupported sworn statement will not constitute clearly exculpating evidence. The fact that the member's performance of service has been exemplary subsequent to the punishment does not constitute a "clear injustice".

(2) In cases where administrative error results in incorrect entries on DMNA form 1057, the appropriate remedy is generally an administrative correction of the form and not a setting aside of the punishment.

(3) The power to set aside an executed punishment and to mitigate a reduction in grade to a fine, 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 or she will record the basis for this action according to notes 8 and 9, DMNA form 1057 (Appendix L-2[A16]) or DMNA form 1059 (Appendix L-2[A18]).

N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.5