N.Y. Comp. Codes R. & Regs. tit. 9 § 520.3

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

Section 520.3 - Administering non-judicial punishment

(a)

(1) General.

(i) The initial determination to impose non-judicial punishment, the types and severity of the punishment to be imposed and for what class of offenses, as well as the initial determination to suspend, vacate a suspension, mitigate, remit or set aside punishment, should be based on information that the commander determines to be reliable. In making this determination, he/she is not bound by the military rules of evidence or standards of proof applicable in a trial by court-martial. However, the commander's action must be temperate, well conceived, just and conducive to good discipline. The servicing JA has the responsibility to advise and help the commander evaluate the facts and determine what offense was committed, if any. However, the basic burden of decision remains with the commander.

(ii) A person not authorized to impose non-judicial punishment in a given case may recommend to a commander who is so authorized, the imposition of non-judicial punishment on an offender if the recommendation is based upon the commission of an offense punishable under the New York State Military Law. Such recommendation may not include the nature or extent of punishment to be imposed, or any remedial action to be taken if punishment is imposed.

(iii) If non-judicial punishment action is to be brought, it should be commenced as soon as possible after a punishable offense has been committed, in order to promote swift corrective action and meaningful rehabilitation of the offender.

(iv) The action is commenced on the date and time the notification that a punishable offense has been committed, is mailed or delivered to the offender.

(v) Any punishment imposed in the action is deemed to have included all offenses known to have been committed before the action commenced. Any offense known to have been committed before the first action has been commenced may not be the basis of a separate non-judicial punishment action commenced after the first action has been commenced. Once the first action has been commenced, offenses thereafter committed may be the basis of additional non-judicial punishment actions in accordance with principles of fairness and justice. For example, assume a notification of intent to impose/recommend non-judicial punishment in dated 10 June 1980, alleging the commission by SGT Jones of an AWOL offense for May 1980. If another notification of intent to impose/recommend non-judicial punishment is dated 8 July 1980 alleging AWOL offenses by the same SGT Jones for unattended UTA's on 10 June 1980, a potential multiple offenses problem arises. To avoid this problem (which at the time of the first notification, a 10 June 80 AWOL may not have been anticipated), the approximate time of the commencement of the first action should be indicated on the notification under the commencement date section (see DMNA form 1063 (Appendix L-2[A25])). Also, the times or the numbers (UTA 1, 2, 3, or 4) of the UTA(s) unattended because the offender was AWOL and which were on the same date in the second action as was the date of the first notification, should be stated in the "charge" block 1 of the second notification. Thus all notifications should bear the time and date of commencement, and, if a UTA - AWOL situation, the number of the UTA which is the basis of the AWOL.

(vi) The severity of non-judicial punishment once imposed for any offense, may not thereafter be increased by the commander imposing the punishment, his successor in command, or superior authority, but may be suspended, mitigated, remitted or set aside by any of these persons as stated in subparagraphs (ii)- (iii) of this paragraph.

(vii) An offender has no right to demand trial by court-martial in lieu of non-judicial punishment. The commander authorized to impose the punishment may nevertheless, at any time, proceed by court-martial, even though he had initially elected to commence a non-judicial punishment action. In this event, all requirements for court-martial authority apply.

(viii) All correspondence concerning the processing of non-judicial punishment actions should substantially conform to the applicable forms in Appendix L-2 of this Part.

(ix) All correspondence and indorsements in the action must be dated or provide for a date, and at least one complete record submitted to the commander, NYANG, through HQ NYANG/SJA must bear original signatures or reproductions thereof on those parts of the record that require signatures and have been signed. This does not apply where the offender has not signed, though required to do so.

(x) Where the offender has a right to submit matters in extenuation, mitigation, or defense before punishment may be imposed, or as part of an appeal, or has a right to appeal, only the responsible commander may, upon timely request by the offender, grant reasonable extensions of time to submit such matters or exercise the right to appeal. Timely requestmeans request submitted within the time stated to reply to the correspondence.

(a) Any replies to correspondence by the offender submitted late may not be considered, unless the offender shows good cause for the delay and the matters submitted are meritorious. No further opportunity to show good cause or merit need be provided to the offender. Late means beyond the time required without extensions having been granted.

(b) Whether or not the late matters are considered, the responsible commander will note the date the late matters were submitted and forward them through the unit JA for inclusion in the record, to the next superior authority or the commander, NYANG through HQ NYANG/SJA, as appropriate.

(c) If the late matters are not to be considered, the responsible commander shall so state, including any comments he wishes to make.

(d) If the responsible commander finds good cause shown for the delay and that the matters submitted late have merit, he shall so state, including any comments he wishes to make, and he may use such as the basis for any otherwise permissible remedial action under this Part, if the punishment has already been imposed.

(e) If non-judicial punishment actions are commenced in cases where the same offense has been committed by two or more offenders at the same time, date, and place, the actions must be separate for each offender.

(2) Notification of intent to impose/recommend non-judicial punishment.

(i) The commander authorized to impose non-judicial punishment or the person recommending the imposition of non-judicial punishment, as the case may be, must mail or deliver to the offender written notification of the following: (See DMNA form 1063 (Appendix L-2[A25])).

(a) the specific offense(s) alleged to have been committed, the time, date and place of commission, and the statute allegedly violated; and

(b) the intention to impose non-judicial punishment or the intention to recommend the imposition of such punishment for such offense to the commander authorized to impose non-judicial punishment;

(c) the right of the offender to submit any matter in extenuation, mitigation, or defense to the charges; but that the offender need not do so, since any statement made by him may be used as evidence against him in a trial by court-martial; and

(d) the directions to the offender to acknowledge receipt of notification of the intended action by signing, dating and returning it within a specified period (usually at least 10 days from the date of mailing or delivery) to decide whether or not to submit any matters in extenuation, etc. accompanied by any such matters; and the advice that the action may nevertheless proceed upon the failure to reply or submit matters within the required time.

(3) Certificate of mailing or personal delivery. (See DMNA form 1065 [Appendix L-2(A27)])

(i) Personal delivery. The individual who personally delivers the correspondence will certify on DMNA form 1065 that he has done so, and specify the date, place and person to whom delivered.

(a) Generally, to ensure that best efforts at notification were made, personal delivery to a person of suitable age and discretion other than the offender should only be made when delivery is at the last known residence of the offender and the offender is not present or will not accept delivery.

(b) If personal delivery was attempted at the last known residence of the offender, and neither the offender nor another person of suitable age and discretion thereat could or would accept delivery when it was attempted, the person attempting delivery may leave the correspondence in a place at such residence where it is reasonably likely to be found. He will also state on the certificate specifically where at the residence the correspondence was left.

(c) No other evidence of personal delivery is required but it is recommended that any receipts returned or obtained be placed in the record of the punishment which is to be ultimately placed in the field personnel record of the offender.

(ii) Mailing. Any mailing under this regulation may be by ordinary mail. The person mailing the correspondence so that it should ultimately be delivered by the United States Postal Service to the last known residence of the offender, must certify on DMNA form 1065 (Appendix L-2[A27]) that the specific correspondence was mailed on a specific date. No other evidence of mailing is necessary.

(iii) In a non-judicial punishment action, mailing or delivering the correspondence to the last known address of the offender is sufficient. The person receiving such correspondence at such address need not be the offender.

(a) Where, during the processing of the action, correspondence is mailed or delivered to the offender at more than one address and there is no receipt by or delivery personally to the offender, the person making the certificate must indicate the reasons for mailing or delivering the correspondence to the different addresses.

(4) Acknowledgement of receipt of notification. The acknowledgement shall be the first indorsement to the notification of intent to impose/recommend non-judicial punishment. (DMNA form 1063 [Appendix L-2[A(25)]). The offender must be given a clear choice of whether or not he wishes to submit matters in extenuation, mitigation or defense. If he chooses to submit such matters, he must include the statement that they are attached to the acknowledgment, or will be sent within the specified time to reply to the notification.

(5) Imposition of punishment and notice of right to appeal. The punishment may not be imposed until the earlier of the three following dates: the reply date specified in the notification; the date the offender has actually replied; or the date the notification has been returned unclaimed, addressee unknown, etc. The imposition of punishment should be the second indorsement to the notification and includes (DMNA form 1064 [Appendix L-2(A26)]):

(i) A statement that either:

(a) the matters submitted in extenuation, mitigation, or defense were considered and are attached. (It is here that the commander imposing the punishment may state the reasons why notwithstanding the matters submitted, punishment will nevertheless be imposed); or

(b) no acknowledgment or receipt of the notification was timely received; or the notification was returned unclaimed, addresse unknown, etc. as of a certain date; or the notification was received on a certain date, but no matters in extenuation, mitigation, or defense have been timely submitted.

(ii) The punishment imposed. Include, if desired, any admonitions or reprimands in separately numbered paragraphs.

(iii) Any suspension, mitigation, remission, or setting aside of any specified portion or all of the punishment if done at this time; and a specified date for the termination of the suspension for that part, or all of the punishment if suspended at this time. (Any punishment imposed without remedial action taken at this time is deemed executed on the date of the punishment indorsement, for purposes of any remedial action which can be taken in the future).

(iv) If an unsuspended reduction is imposed, the new date of rank in the grade to which reduced.

(v) Advice of right to appeal from the imposition of non-judicial punishment in accordance with Military Law, section 130.15(d), whether or not the punishment is suspended, mitigated, or remitted at this time, and the right to submit matters to be considered on an appeal.

(vi) The directions to acknowledge receipt of the punishment indorsement by signing, dating and returning it within a specified period (usually at least 10 days from the date the punishment indorsement was mailed or delivered), and to decide whether or not to appeal, accompanied by any matters to be considered on the appeal; and the advice that the action may nevertheless proceed upon the failure to reply or submit matters within the required time.

(vii) The commander may add a statement expressing his expectations that the offender's misconduct will not further occur, and that in the future, the offender will redeem this lapse in his conduct.

(viii) The decision as to appropriate punishment should be discussed with the servicing JA after the member has had an opportunity to present matters in defense, mitigation or extenuation. This determination can never be made properly until after careful consideration of all matters which the member presents. However, in the event that military member does not present proper matters, it is proper, before imposing the non-judicial punishment, to discuss appropriate punishment with the servicing JA, based upon the available information.

(6) Acknowledgement of receipt of punishment and notice of right to appeal indorsement (DMNA form 1064 [Appendix L-2(A27)]). The offender must be given a clear choice of whether or not he elects to appeal, and whether or not he desires to submit matters for consideration on an appeal. If he chooses to submit such matters, advise him they should be attached to the acknowledgment.

(7) Certificate of mailing or personal delivery. Comply with the provisions of paragraph (3) of this section (DMNA form 1065 [Appendix L-2(A27)]).

(8) Processing the action, with or without an appeal. The next indorsement on DMNA form 1064 (Appendix L-2[A26]) will depend on whether or not the offender has timely elected to appeal and submitted matters to be considered on the appeal.

(i) If the offender timely appeals and timely submits matters to be considered on the appeal, the officer who imposed the punishment, shall by indorsement, forward the record (including the matters submitted to be considered on appeal, and any written comments on said matters such officer wishes to make), to the next superior authority to decide the appeal.

(ii) If the offender timely appeals, but does not timely submit matters to be considered on the appeal, whether or not he has indicated a desire to submit such matters on the acknowledgement of receipt of punishment and notice of right to appeal indorsement, the officer who has imposed the punishment shall state the lack of timely submission in his indorsement, and proceed as in subparagraph (i) of this paragraph.

(iii) If no acknowledgment of receipt of the punishment and notice of right to appeal indorsement has been timely received from the offender, or, if such indorsement has been returned unclaimed, addressee unknown, etc., before the reply date, or, if there is evidence the acknowledgement has been received by the offender, on a certain date but no appeal election and matters to be considered on the appeal have been timely submitted, or if the offender timely elects not to appeal; the officer who imposed the punishment shall, by indorsement, forward the record together with an applicable statement why the punishment is not being appealed, to his/her servicing JA.

(iv) The JA servicing the officer imposing punishment shall cause a review of the record to be made and if found free from defects shall affix to the record a certificate of legal sufficiency and forward two copies of the record to the JA servicing the appellate authority for legal sufficiency review.

(v) The JA servicing the appellate authority shall log and cause a legal sufficiency review to be made of the record. If the action is not legally sufficient then same will be returned for corrective action. If the action is legally sufficient, then a certificate of legal sufficiency shall be affixed and a copy of the action with certificate shall be kept for the appellate authority records.

(9) The appellate authority shall decide any appeal, may include reasons for his decisions, and shall return the record to the unit which forwarded the record, for further processing in accordance with this regulation, including directing the offender to acknowledge receipt of the decision on the appeal (DMNA form 1064 [Appendix L-2(A26)]).

N.Y. Comp. Codes R. & Regs. Tit. 9 § 520.3