N.Y. Comp. Codes R. & Regs. tit. 9 § 519.6

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

Section 519.6 - Appeals para 7, part v, mcm

(a) General.

(1) Only one appeal is permissible under section 130.15 proceedings. There is no appeal from the imposition of the proceedings. The appeal is from the punishment. An appeal not made within a reasonable time may be rejected as untimely by the senior authority. A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 30 days after the punishment is imposed will be presumed to be untimely, unless the superior authority, in his or her sound discretion for good cause shown, determines it to be timely.

(2) If, at the time of imposition of punishment, the member indicates a desire not to appeal, the superior authority may reject a subsequent election to appeal, even though it is made within the 30-day period. Although a suspended punishment may be appealed, no appeal is authorized from the vacation of a suspended punishment.

(3) When the member desires to appeal, the imposing commander, or his or her successor-in-command, will make available to the member reasonable assistance (to include judge advocate counseling, if available) in preparing the appeal and will promptly forward the appeal to the appropriate senior authority.

(b) Who may act on appeal.

(1) The authority next senior to the commanding officer will act on an appeal if the member punished is still of the command of that officer at the time of appeal. If, at the time of appeal, the member is no longer of the imposing commander's command, the authority next senior to the member's present commanding officer (who can impose the same kind and amount of punishment as that imposed or resulting from subsequent modifications) will act upon the appeal.

(2) The authority "next senior" to an imposing commander is normally the next senior in the chain of command, or such other authority as may be designated by competent authority as being next senior for the purposes of section 130.15 proceedings. A senior authority who exercises GCM jurisdiction, or is a general officer in command, may delegate those powers he or she has as senior authority to a commissioned officer in his or her command.

(c) Procedure for submitting an appeal. All appeals will be made on DMNA form 1057 and then forwarded to the imposing commander or successor-in-command; or, when applicable, to the senior authority. The senior authority will act on the appeal unless otherwise directed by competent authority. The member is not required to state reasons for his or her appeal, however, the member may do so. For example, the person may state the following in the appeal:

(1) based upon the evidence he or she does not believe he or she is guilty;

(2) the punishment imposed is excessive, or that a certain punishment should be mitigated or suspended.

(d) Action by the imposing commander or the successor-in-command. The imposing commander or his or her successor-in-command may take any action on the appeal with respect to the punishment that the senior authority could have taken (para 6, part V, N.Y. MCM and subdivision [e] of this section). If he or she suspends, mitigates, remits or sets aside any part of the punishment, this action will be recorded according to notes 8 and 9, DMNA form 1057 (Appendix L-2[A16]). The appellant will be advised and asked to state whether, in view of this action, he or she wishes to withdraw the appeal. Unless the appeal is voluntarily withdrawn, the appeal will be forwarded to the appropriate superior authority. An officer forwarding the appeal may attach any matter in rebuttal of assertions made by the member.

(e) Action by the senior authority. Action by the senior authority on appeal will be entered in item 5, DMNA form 1057 (Appendix L-2[A16]). A senior authority will act on the appeal expeditiously. A senior authority may conduct an independent inquiry into the case, if necessary or desirable. The senior authority must refer an appeal from a reduction or fine to a judge advocate (JA) for consideration and advice before taking action; he or she may refer an appeal in any case. In acting on an appeal, the senior authority may exercise the same powers with respect to the punishment imposed as may be exercised by the imposing commander or his or her successor-in-command. A timely appeal does not terminate merely because a service member is discharged from the service. It will be processed to completion by the senior authority.

(f) Action by a judge advocate.

(1) When an appeal is referred to a JA, the senior authority will be advised either orally or in writing of the JA's opinion on:

(i) the appropriateness of the punishment;

(ii) whether the proceedings were conducted in accordance with law and regulations.

(2) If the advice is given orally, that fact and the name of the JA who rendered the advice will be recorded in item 7, DMNA form 1057 (Appendix L-2 [A16]).

(3) The JA is not limited to an examination of written matters of the record of proceedings and may make any inquiries that are necessary.

(g) Action by senior authority regardless of appeal. Any senior authority may exercise the same powers as may be exercised by the imposing commander, or his or her successor-in-command, whether or not an appeal has been made from the punishment (para 7[f] [1], part V, MCM). "Any senior authority" has the same meaning as that given to the term "authority next senior" in paragraph (b)(2) of this section, except that it also includes any authority senior to that authority. A service member has no right to petition for relief under this subdivision and any petition so made may be summarily denied by the superior authority to whom it is addressed.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.6