N.Y. Comp. Codes R. & Regs. tit. 9 § 520.2

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

Section 520.2 - Types of punishment

(a)

(1) Admonition.

This 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.

A 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.

(i) 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 regulation.

(3) Withholding of privileges.

This shall only be executed while the offender is in a duty status.

(4) Restriction to certain specified limits.

This 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.

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

(8) Fines.

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

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

(a) Only the commander with the authority to promote to the grade from which demoted may reduce a member in grade. See section 520.7 of this Part for reduction of offenders in grades E-7, E-8 and E-9.

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

(b) Limitations on 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.

(c)Suspension, mitigation, remission and setting aside of punishment.

The commander who imposed non-judicial punishment, his successor-in-command, and superior authority have the power to thereafter suspend, vacate or extend a suspension, mitigate, remit or set aside all or any part or amount of the punishment and to restore all rights, privileges and property affected.

(1) Suspension of punishment. This is to postpone application of all, or a portion of a punishment for a specified probationary period, with the understanding that the punishment will be automatically remitted at the end of that period if the offender has not been guilty of further misconduct.

(i) Any authorized punishment may be suspended.

(ii) The purpose of suspending punishment is to grant a deserving individual a probationary period during which he may demonstrate that he is worthy of a "second chance" in that the offense for which non-judicial punishment was imposed was a temporary lapse in an otherwise good service record.

(iii) The commander suspending the punishment must indicate in the correspondence suspending the punishment that the punishment will automatically terminate at the end of a specified period, or on a specified date, if the offender has not been guilty of any subsequent offense punishable under the Military Law committed during the period of suspension.

(iv) Punishment may not be suspended for a period longer than the earlier of six calendar months from the date of suspension, or beyond an enlistment or current term of service.

(a) Notwithstanding anything in this regulation to the contrary, the period of suspension may be extended by the commander who suspended the punishment by as many days as an offender is AWOL from duty during the suspension period, but in no event beyond an enlistment or current term of service. A day as used herein is any part of a day in which the offender was required to be in a duty status.

(b) This commander with mail or deliver to the offender written notice that his suspension period has been extended to a certain date and the basis therefor. (See DMNA form 1069 (Appendix L-2[A31]).

(c) All persons who have received or reviewed the record shall be sent the same notice.

(d) the procedures outlined in this regulation for notice, certificates of mailing or delivery, matters in extenuation, appeal or review, need not be followed when a suspension period is extended.

(e) The mere extension of a suspension period on a Wing or Group level is not subject to review, except for legal sufficiency. Such actions shall not be forwarded to HQ NYANG.

(v) The date of suspension of a punishment should normally be the date of the imposition of the punishment which is being suspended, but any part of the punishment which remains unexecuted may be suspended at any time.

(vi) Reduction in grade or fine may be suspended whether or not executed, at any time within four months after the date of imposition.

(a) If a fine has been executed, is later suspended and the suspension is thereafter automatically terminated, the money collected must be returned on the termination date, but without interest.

(2) Mitigation. This is defined as a reduction in either the quantity or the quality of punishment, and is appropriate when the offender has demonstrated, subsequent to the imposition of his punishment, that his conduct merits a reduction in the severity of his punishment.

(i) Unexecuted portions of punishment may be mitigated at any time.

(ii) Executed punishments may not be mitigated, except that an unsuspended reduction may be mitigated so long as the action is taken within a reasonable time after the punishment has been executed, normally not more than four months.

(3) Remission is the action whereby any portion of the unexecuted punishment is cancelled, and is appropriate under the same circumstances as mitigation.

(i) At any time before the execution of the punishment is completed, the unexecuted portion of the punishment may be remitted.

(ii) While a suspended reduction may be remitted, there can be no remission of an unsuspended reduction since that punishment is executed at the time it is imposed.

(4) Setting aside. This is an action whereby the punishment or any part thereof, whether executed or unexecuted, is set aside and any rights, privileges, and property affected by the imposition of the punishment are restored.

(i) This action is used in extreme cases where the facts and circumstances of the original matter demonstrate that the punishment resulted in a clear injustice to the offender. Setting aside a punishment in its entirety restores the offender to the position he was in before the non-judicial punishment action commenced, as if the action had never existed or the conduct providing the basis for the action had never occurred.

(5) Any time a suspension occurs after the date punishment was imposed, a suspension period has automatically terminated, or a punishment has been mitigated, remitted or set aside, at the Wing or Group level, the responsible commander shall, by letter, inform the commander, NYANG of same, specifying the name and unit of the offender, the punishment date and the date and nature of the remedial action taken.

(d)Effective date of punishment.

(1) The effective date of an unsuspended punishment is the date the punishment is imposed. The effective date of a suspended punishment is the date of the suspension.

(i) Although a punishment may be imposed and suspended on the same date, sequentially punishment must come first.

(ii) When a reduction is suspended, the offender is entitled to pay in the grade held immediately before the reduction, effective as of the date of suspension.

(2) The effective date of a vacated suspension is the date of vacation. If a suspended reduction is vacated, the offender receives pay in the grade to which reduced when the punishment was imposed, effective on the date of vacation.

(3) The effective date of a mitigated punishment is the date of mitigation. If a reduction is mitigated, the offender is entitled to pay in the restored grade affective as of the date of mitigation.

(4) The effect of remitting or setting aside punishment is to cancel it effective as of the date punishment was imposed. If a reduction has been remitted or set aside, the offender is entitled to pay in the grade held immediately before the reduction, effective as of the date of imposition of punishment.

(e)Date of rank.

(1) If the reduction is unsuspended, the date of rank in the reduced grade is the date the punishment was imposed.

(2) If the reduction is suspended, remitted, or set aside, the date of rank in the grade held before the reduction remains unchanged.

(3) If the reduction is mitigated, the date of rank in the restored grade is the date of the indorsement mitigating the punishment.

(4) If a suspended reduction is vacated, the date of rank in the grade to which reduced before the suspension, is the date the original reduction was imposed.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 520.2