W. Va. Code R. agency 141, tit. 141, ser. 141-49, app I
Section I, General
1. Purpose and Scope.
This appendix implements Chapter 15, article 1E, Section 15 of the Code of West Virginia, 1931, as amended (hereafter referred to as the Uniform State Code of Military Justice, or the "USCMJ"). It includes the regulations promulgated pursuant to Chapter 15, Article 1E, Section 15, USCMJ and prescribes certain requirements, policies, limitations and procedures certain requirements, policies, limitations and procedures for persons having the authority to impose nonjudicial punishment; for persons who may take some action with respect to the proceedings. Accordingly, no action should be taken under the authority of Chapter 15, Article 1E, Section 15 of the USCMJ without reference to and compliance with this Appendix and the West Virginia Manual for Courts-Martial. Chapter 15, Article 1E, Section 15 of the USCMJ shall be here referred to as "Section 15".
Section II. Authority
2. Who may impose Nonjudicial Punishment.
a. Commanders shall have authority to impose nonjudicial punishment upon military personnel of their commands. "Commander" means a commissioned or warrant officer of the state military force who by virtue of rank and assignment exercises primary command authority over a military organization or prescribed territorial area, which under pertinent official directives is recognized as a "command." The authority of a commander to impose nonjudicial punishment as to certain types of offenses, certain categories of persons, or in specific cases, to impose certain types of punishment may be limited or withheld by a superior commander.
b. Delegation of Authority. Only the Governor and general officers in command may delegate their authority under Section 15 to a principal assistant (ordinarily a Vice, Assistant, or Deputy Commander, Chief of Staff, or Executive Officer). However, a principal assistant cannot be a civilian, retired member or be appointed. This position is limited to commissioned officers. Additionally, this limitation on delegation of authority itself does not take away authority of other commanding officers authorized to impose nonjudicial punishment under the Code and Manual; but those other commanding officers may not delegate that authority. However, a commander superior to the commander with nonjudicial punishment authority may withhold that authority.
c. Only the Governor, the Adjutant General, an officer exercising general court-martial convening authority, or an officer of a general or flag rank in command may impose nonjudicial punishment upon an officer's of his command.
3. Persons upon whom nonjudicial punishment may be imposed.
a. Military personnel of his command.
(1) For the purpose of Section 15, military personnel are considered to be "of the command" of a commander if they are:
(A) Assigned to an organization commanded by that commander.
(B) Affiliated with the command (by attachment, detail, or otherwise) under conditions, either expressed or implied, that indicate that the commander of the unit to which affiliated and the commander of the unit to which they are assigned are to exercise administrative or disciplinary authority over them.
(2) Under similar circumstances, a commander may be assigned territorial command responsibility so that all or certain military personnel in the area will be considered to be of the command for the purpose of Section 15. To determine if an individual is of the command of a particular commanding officer, refer first to those written or oral orders or directives that affect the status of the individual. If orders or directives do not expressly confer authority to administer nonjudicial punishment to the commander of the unit with which the member is affiliated or present (as when, for example, they contain no provision attaching the member "for disciplinary purposes"), consider all attendant circumstances, such as:
(A) The phraseology used in the orders.
(B) Where the member slept, ate, was paid, performed duty, the duration of the status, and other similar factors.
(3) If orders or directives include such terms as "attached for administration of military justice," or simply "attached for administration," the individual so attached will be considered to be of the command, of the commander, of the unit of attachment for the purpose of Section 15.
b. Termination of status. Nonjudicial punishment may not be imposed upon an individual by a person authorized to impose nonjudicial punishment, after the individual ceases to be of his command by reason of transfer or otherwise. This is so even if Section 15 nonjudicial punishment proceedings have been instituted, so long as the proceedings have not resulted in the imposition of punishment prior to the time of the change in status. The person authorized to impose nonjudicial punishment who has instituted the proceedings may, in the case of such a change in status, forward the Record of Nonjudicial Punishment Proceedings to the gaining commander for appropriate disposition.
c. Personnel of Army National Guard and Air National Guard. A commander is not prohibited from imposing nonjudicial punishment on a military member of his or her command solely because the member is a member of another component of the West Virginia National Guard. Other provisions of this regulation notwithstanding, a commander may impose punishment upon a member of another Service only under the circumstances, and according to the procedures, prescribed by the member's parent Service.
d. Minor Offenses. Nonjudicial punishment may be imposed for acts or omissions that are minor offenses. Whether an offense is minor depends on several factors: the nature of the offense and the circumstances surrounding its commission; the offender's age, rank, duty assignment, record and experience; and the maximum possible sentence imposed for the offense if tried by general court-martial. The decision whether an offense is "minor" is a matter of discretion for the commander imposing nonjudicial punishment. But, nonjudicial punishment for an offense believed to be minor by a commander is not a bar to a trial by court-martial for the same offense. However, the accused may show at trial that nonjudicial punishment was imposed, and if the accused does so, this fact must be considered in determining an appropriate sentence. Violations of or failures to lawfully obey orders may be minor offenses if the prohibited conduct itself is of a minor nature although prohibited by a general order or regulation.
e. Double punishment prohibited. Several minor offenses arising out of substantially the same transaction or conduct will not be made the basis of separate actions under Section 15, USCMJ.
Section III. Policies Applicable.
4. Purposes of nonjudicial punishment; personal exercise in discretion in imposing nonjudicial punishment.
a. Purposes. A commander authorized by this appendix to impose nonjudicial punishment should use other nonpunitive measures to the maximum extent possible in furthering the efficiency of his command without resorting to the imposition of nonjudicial punishment. Use of Section 15, USCMJ is proper in all cases of minor offences in which administrative measure are considered inadequate or inappropriate. Nonjudicial punishment may be imposed in appropriate case to-
(1) Correct, educate, and reform offenders who have shown that they cannot benefit by less stringent measures;
(2) Preserve, in appropriate cases, an offender's record of service from unnecessary stigmatization by record of court-martial conviction; and
(3) Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.
b. Personal exercise of discretion. An officer authorized by regulation to impose Section 15, USCMJ who is considering a case for possible disposition by him will exercise his own discretion in evaluating the case, both as to whether punishment should be imposed under Section 15 at all and, subject to the limitations contained in paragraph 7 of this appendix, shall determine the nature and amount of the punishment, if any, to be imposed.
5. Relationship of nonjudicial punishment to nonpunitive measures.
a. Reduction in grade. Certain command officers in the WV Army and Air National Guard may impose reductions administratively upon enlisted personnel of their commands for inefficiency and other reasons. This authority, where it currently exists, exists apart from any authority they may have to impose a punitive reduction for misconduct under Section 15, USCMJ. These two separate and distinct kinds of authority must not be confused. Administrative reduction authority shall not be utilized for punitive purposes. (See NGR 600-200).
b. Reprimands and admonitions. An "admonition" is a warning or reminder given to an offender to deter repetition of a type of misconduct and to advise the offender of the consequences that may flow from a recurrence of that misconduct. A "reprimand" is an act of formal censure which reproves or rebukes the offender for his misconduct. An admonition may be included in a reprimand. Commanding officers have authority to give admonitions or reprimands as an administrative nonpunitive measure. Persons authorized by regulation to impose Section 15 nonjudicial punishment have the authority to impose admonitions or reprimands as nonjudicial punishment. If an admonition or reprimand is imposed as a punitive measure under Section 15 nonjudicial punishment, then the requirement set forth in this appendix must be followed.
(1) A written administrative admonition or reprimand should contain a statement indicating that it has been given merely as an administrative measure and not as Section 15 nonjudicial punishment.
(2) Admonitions and reprimands imposed as punishment orally or in writing should be clearly stated to have been imposed as punishment under Section 15 nonjudicial punishment.
6. Reference to superior.
Nonjudicial punishment should be administered at the lowest level of command permitted by this appendix and commensurate with the needs of discipline. However, after thoroughly considering the nature and circumstances of the offense and the age, previous record, maturity and experience of the offender, if the commander, authorized to impose Section 15,USCMJ by this appendix, determines that his authority under Section 15 nonjudicial punishment and this appendix is insufficient to impose an appropriate punishment, he may refer the case to an appropriate superior with a recommendation that the superior exercise his authority under Section 15, USCMJ and this appendix. Also, if the authority of a commanding officer to exercise Section 15 nonjudicial punishment has been limited by this appendix thus precluding him from imposing any punishment or an appropriate punishment, the case may be referred to an appropriate superior. In transmitting a case for action by a superior, no recommendation as to the nature or extent of the punishment to be imposed will be made. Transmittal will be accomplished by written correspondence on a DA Form 5109 or other appropriate service form.
Section IV. Punishments.
7. Limitations on Authorized Punishments.
a. General limitations. The Adjutant General may limit the power granted by Section 15 with respect to the kind and amount of the punishment authorized. Subject to those limitations, a commander authorized by this regulation to impose nonjudicial punishment upon military personnel of his command may do so pursuant to this regulation and the West Virginia Manual for Courts-Martial.
b. Restriction. Restriction is the least severe form of deprivation of liberty. Restriction involves moral rather than physical restraint. The severity of this type of restraint depends on its duration and the geographic limits specified when the punishment is imposed. A person undergoing restriction may be required to report to a designated place at specified times if reasonably necessary to ensure that the punishment is being properly executed. Unless otherwise specified by the nonjudicial punishment authority, a person in restriction may be required to perform any military duty.
c. Arrest in Quarters. As in the case of restriction, the restraint involved in arrest in quarters is enforced by a moral obligation rather than by physical means. This punishment may be imposed only on officers. An officer undergoing this punishment may be required to perform those duties prescribed by The Adjutant General. However, an officer so punished is required to remain within that officer's quarters during the period of punishment unless the limits of arrest are otherwise extended by appropriate authority. The quarters of an officer may consist of a military residence, whether a tent, stateroom, or other quarters assigned, or a private residence when government quarters have not been provided.
d. Reduction in Grade. Reduction in grade is one of the most severe forms of nonjudicial punishment and it should be used with discretion.
8. Rules relating to authorized punishments.
a. Restriction. The commanding officer who imposed the punishment, his successor in command, and superior authority may change the specified limits of restriction after imposition and before the term of restriction is completed, provided that the limits of restriction, as changed, are generally no more restrictive of movement than the limits imposed.
b. Extra duties. Extra duties shall be required to be performed during duty status, such as state active duty, inactive duty training, annual training, fulltime National Guard duty or other similar duty statuses and, within the duration of the punishment, for not more than two hours per day, holidays included. Extra duties may include the performance of fatigue duty or of any other military duty, such as practice march with full field equipment, but no duty may be imposed as extra duty which-
(1) Would constitute cruel or unusual punishment or a punishment not sanctioned by the customs of the service;
(2) Is a duty normally intended as an honor, such as assignment to a guard of honor;
(3) Is required to be performed in a ridiculous or unnecessarily degrading manner; for example, an order to clean a barracks floor with a toothbrush; or
(4) Is a punishment involving the use of the offender as a personal servant.
c. An enlisted person serving in the Army National Guard in the grade of E4 (SP4, CPL) or above; or an enlisted person serving in the Air National Guard in the grade of Sergeant (SGT), Senior Airman or above, may not be assigned extra duties as punishment under Section 15, USCMJ, which would demean his position as a noncommissioned officer or specialist. The performance of extra duties involving labor or duties not customarily performed by personnel in these grades is an example of extra duties of a demeaning nature. The supervision of details being accomplished after normal duty hours is an example of an extra duty which would not be demeaning.
d. Withholding of Privileges. Commanders may withhold some privileges; for example, pass privileges, as punishment. However, the privileges revoked should relate directly to the act of misconduct. For example, revoking driving privileges would not be appropriate for an assault offense, but removal of post exchange (PX) privileges might be appropriate for a soldier guilty of disorderly conduct in the PX.
e. Forfeitures and fines are based on the comparable active duty pay of the accused at the grade held at the time of the offense, except when the offense was committed while the accused was on state active duty, in which case, the forfeiture or fine is based on the amount of pay the accused was entitled to for a comparable period on state active duty.
9. Reserved.
10. Effective date and execution of punishments.
a. The date of imposition of nonjudicial punishment is the date the appropriate Record of Nonjudicial Punishment Proceedings is signed by the imposing commander.
b. The punishments of reduction in grade, if unsuspended, take effect upon the issuance of the appropriate order by The Adjutant General. A commander imposing Section 15 punishment of a reduction in grade shall, if unsuspended, promptly send to The Adjutant General the completed copy of the Record of Nonjudicial Punishment Proceedings with a Request for Reduction Order, AGO Form 600-200-2. This form must be completed by the commander imposing the punishment of reduction in grade, stating the reason for the reduction is: Section 15, Nonjudicial Punishment. If the reduction in grade is pending appeal, it should be noted on AGO Form 600-200-2. A reduction under Section 15, if suspended with the suspension later vacated, becomes executed and takes affect upon the issuance of the order by the State Adjutant General.
c. If, upon imposition of a unsuspended fine and a person has reused or failed to pay their fine, the commander imposing the fine shall promptly send to The Adjutant General a completed copy of the Record of Nonjudicial Punishment Proceedings and a written notification of failure to pay fine.
d. Other punishments, if unsuspended and if no appeal is filed, will take effect and be carried into execution on the date they are imposed unless otherwise prescribed by the officer imposing the punishment or by superior authority. If, at the time punishment is imposed, the recipient appeals by marking the appropriate box on the Record of Nonjudicial Punishment Proceedings, the execution of any punishment will be stayed pending completion of such appeal, unless the recipient requests otherwise. If the recipient refuses to indicate his desires as to appeal at the time punishment is imposed, either verbally or on the Record of Nonjudicial Punishment Proceedings, punishment will not be stayed.
e. If the member to be punished is already undergoing any of the punishments involving extra duties and the commanding officer wishes to impose an additional punishment of that kind, he may prescribe that the additional punishment will begin to run on a date on or after the termination of the first punishment.
f. When an unsuspended punishment of extra duties or restriction has been imposed under Section 15 by appropriate authority, any commanding officer of the person to be punished may order the punishment to be executed in such a manner and under such supervision as he may direct. The particular extra duties to be performed may be varied from time to time within the duration of the punishment duration of the punishment, not to exceed more than two hours per day, holidays included.
Section V. Right to Demand Trial.
11. When Section 15 proceedings instituted.
Section 15 proceedings may be instituted when a commander, having the authority to impose Section 15 nonjudicial punishment, receives a report or learns of a violation of the USCMJ by enlisted personnel of his command. The facts consisting of the violation are to be set forth in the appropriate Record of Nonjudicial Punishment Proceedings.
12. Procedures.
a. The commander who intends to impose the punishment will notify the member concerned of that intent in writing on the Record of Nonjudicial Punishment Proceedings and will inform the member of his rights. If the punishment options will include restraints on freedom, the commander will also inform the member of his right to demand a trial by courts-martial.
b. The officer who intends to impose the punishment will afford the member a reasonable period of time in which to consult with a person to speak in his behalf and to decide whether or not he will demand trail, if applicable. When appropriate, the commander will direct the member to state either that he does, or does not, demand trial within that period.
(1) This period should be established after due consideration of such factors as the gravity of the offense and the time involved in physically transmitting the communication.
(2) Under ordinary circumstances, 48 hours may be considered to be a reasonable time.
c. If a new imposing commander takes command after a member has been notified of the original imposing commander's intent to impose punishment, the member will be notified of the change. The member will again be given a reasonable decision period in which to consult with counsel.
d. If the member demands trial by court-martial on any offense, no further action will be taken to impose nonjudicial punishment for that offense unless the member's demand is voluntarily withdrawn. Whether court-martial charges will be preferred against the member for the remaining offense(s) and the level of court-martial selected will be resolved by the appropriate commander. A member's demand for trial by court-martial will not bar disposition of minor offenses by nonpunitive measures by the appropriate commander.
e. If a demand for trial is not made prior to expiration of the specified interval, including any extension of time that may have been granted, or the member refuses to elect a choice, the commander may continue with Section 15 proceedings. Punishment may also be imposed where the member refuses to complete and/or sign the Record of Nonjudicial Punishment Proceedings, after having been afforded a reasonable time in which to make a decision. The member will be informed that failure to complete and sign the appropriate item may be treated as a voluntary withdrawal of any oral demand for trial. The member will also be informed that punishment can be imposed where he fails to make a timely demand for trial or refuses to complete and/or sign the Record of Nonjudicial Punishment Proceedings. If the member persists in the refusal, and punishment is imposed, in addition to recording the punishment, the following entry will be made on the form "After having been fully advised of (his) (her) rights, member (did not demand trial prior to expiration of the time specified for a decision) (refused to (complete) (sign) (complete and sign) this form."
Section VI. Procedure: Records of Punishment
13. General.
a. The power to impose nonjudicial punishment charges a commanding officer, or an officer to whom that power has been delegated, with the grave responsibility of exercising his authority in a completely judicious manner. Authority under Section 15 must be administered with fairness in a formal and dignified manner at every stage of the proceedings. The right and opportunity to present matters in defense, extenuation, or mitigation, and the right fully to present his case in the presence of the officer who intends to impose punishment, will be afforded the member. The member will be afforded the right to be accompanied by a person to speak on his behalf and to call witnesses in defense, extenuation or mitigation. If the member so requests, the proceeding will be opened to the public, except where military exigencies or security interests preclude public disclosure. If the commanding officer decides to impose punishment, he will announce the punishment in the presence of the member except under rare circumstances when this is not feasible. The commander may then explain to the member such matters as what he considered in determining the punishment, and the appellate rights and procedures which are available to the member.
b. Announcement of Punishment. The punishment may be announced at the next unit formation after punishment is imposed or, if appealed, after the decision on the appeal. It also may be posted on the unit bulletin board. The purpose of announcing the results of punishments is to preclude perceptions of unfairness of punishment and to deter similar misconduct by other service members. An inconsistent or arbitrary policy regarding announcement of punishments should be avoided because it could result in the appearance of vindictiveness or favoritism. In deciding whether to announce punishment of service members in the grade of E-5 or above, the imposing commander should consider the nature of the offense, the service member's military record and duty position, the deterrent effect, the impact on unit morale or mission, the impact on the victim and the impact of the leadership effectiveness of the service member.
c. Commander's guide for notification and imposition of nonjudicial punishment. The federal nonjudicial process is discussed in detail in Part V of the MCM. For service branch specific information, Army commanders should review Chapter 3 of AR 27-10 and Air commanders should review AFI51-202. Additionally, a suggested format for conducting the proceeding is located in Attachment 1 of this regulation. While these materials provide guidance on conducting the proceedings, strict adherence to the letter of the suggested guides is not a procedural requirement for an imposition of nonjudicial punishment. Prior to any Section 15 proceedings, the commander should have completed a preliminary inquiry and have concluded that nonjudicial punishment is appropriate for the offense and the offender.
d. Preliminary inquiry.
(1) The commander of an alleged offender must ensure that the matter is investigated promptly and adequately. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident. The investigation should cover:
(A) Whether an offense was committed.
(B) Whether the member was involved.
(C) The character and military record of the member.
(2) Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or any other informative reports. If, after the preliminary inquiry, the commander determines, based on the evidence currently available, that the member probably has committed an offense and that a nonjudicial punishment procedure is appropriate, the commander should, unless the case is to be referred to a superior commander, take action as set forth in this appendix.
14. Procedural rules.
a. Notification - Summarized Proceedings.
(1) General. A commander, after a preliminary inquiry into an alleged offense by an enlisted member, may use summarized proceedings if it is determined that should punishment be found to be appropriate, it should not exceed:
(A) extra duties for 14 days;
(B) oral reprimand or admonition;
(C) any combination of the above.
(2) Notification and Explanation of Rights. If an imposing commander determines that summarized proceedings are appropriate, the service member will be notified of:
(A) the commander's intent to initiate nonjudicial punishment;
(B) the commander's intention to use summarized proceedings;
(C) the service member's lack of a right to demand trial by court-martial;
(D) the maximum punishments allowable thereunder;
(E) the service member's right to remain silent;
(F) the offenses that the service member has allegedly committed with reference to the sections of the law that are alleged to have been violated;
(G) the service member's right to confront witnesses, examine the evidence and submit matters in defense, extenuation and/or mitigation; and
(H) the service member's right to appeal.
(3) No Right to Counsel in Summarized Proceedings. The service member does not have the right to consult with counsel prior to the hearing nor does the service member have the right to counsel or a spokesperson during the hearing.
(4) Hearing. Consistent with the applicable service branch regulations of the service member, if a hearing is scheduled, notification of the date and time of the hearing will be made orally or in writing. The hearing should be scheduled no sooner than twenty-four (24) hours and no later than sixty (60) days after the service member receives notification of the commander's intent to impose nonjudicial punishment.
b. Notification - Formal Proceedings.
(1) Commander's Determination. A commander, who after preliminary inquiry determines that the punishment options will include restraint of freedoms, must notify the service member of the right to demand trial by court-martial and turn down nonjudicial punishment.
(2) Notice and Rights. If an imposing commander determines that formal proceedings are appropriate, the service member will be notified of:
(A) the commander's intent to initiate nonjudicial punishment;
(B) the commander's intention to use formal proceedings;
(C) the maximum punishments allowable thereunder;
(D) the service member's right to remain silent;
(E) the offenses that the service member has allegedly committed with reference to the sections of the law that are alleged to have been violated;
(F) the service member's right to confront witnesses, examine the evidence and submit matters in defense, extenuation and/or mitigation;
(G) the service member's right to consult with a judge advocate, and the location of such counsel;
(H) the service member's right to demand trial by court-martial at any time prior to imposition of nonjudicial punishment;
(I) the service member's right to appeal.
(3) Decision Period. The service member will be given a reasonable time to consult with counsel, to gather matters in defense, extenuation, and/or mitigation and to decide whether to accept the nonjudicial punishment or demand a trial by court-martial.
(4) The decision period will normally be forty-eight (48) hours depending on the availability of counsel but such period may be extended at the request of the accused service member.
(5) Rules of Evidence. The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the offense.
(6) Upon imposition of nonjudicial punishment the right to demand trial by court-martial is extinguished even if after appeal, the nonjudicial punishment is invalidated.
c. Action upon receipt of notification.
(1) Spokesperson. If the member is entitled to a spokesperson, the person who may accompany the member to the Section 15 proceeding and who speaks on the member's behalf need not be a lawyer. An offender has no right to legal counsel at the nonjudicial proceedings. The member may retain civilian counsel to act as the member's spokesperson at no cost to the Government. However, the commander need not grant a delay for the appearance of any spokesperson, to include civilian counsel so retained. No travel fees nor any other costs may be incurred at Government expense for the presence of the spokesperson. The spokesperson's presence is voluntary. Because the proceedings are not adversary in nature, neither the member nor spokesperson (including any attorney present on behalf of the member) may examine or cross-examine witnesses, unless permitted by the imposing commander. The member or spokesperson may, however, indicate to the imposing commander relevant issues or questions they wish to explore or ask.
(2) Open or Closed Proceedings. A Section 15 proceedings before the commander is not an adversary proceeding. The member's request that the proceedings be open to the public shall ordinarily be granted except where military exigencies or security interests preclude this procedure. It shall be within the discretion of the commander administering Section 15 proceedings to determine when such exigencies or security interests predominate over the member's request that the proceedings be open to the public.
(3) Witnesses. The member's request for witnesses in defense, extenuation, or mitigation shall be restricted to those witnesses who are reasonably available as determined within the discretion of the commander imposing Section 15 punishment. In determining whether a witness is reasonably available, the commander imposing Section 15 punishment shall take into consideration that no witness fees or transportation fees will be paid. Reasonably available witnesses will ordinarily include those military personnel present for duty at the installation concerned, or those available without the expenditure of travel funds to obtain their presence, and whose attendance will not materially delay the disposition of the proceedings.
(4) Action termination proceedings. If, after evaluation of all pertinent matters, the officer conducting the proceedings determines that nonjudicial punishment is not warranted, he should notify the member that he has terminated the proceedings.
15. Records of punishment.
a. Forms.
(1) Air Force. The appropriate AF Form 3070 as it may be amended or replaced from time to time will be used to record the nonjudicial punishment proceedings.
(2) Army.
(A) Summarized Proceedings. A DA Form 2627-1 (Summarized Record of Proceedings) as it may be amended or replaced from time to time will be used to record the summarized nonjudicial punishment proceedings. However, the notification of right to demand court-martial will be stricken from the form. An illustrated example of DA Form 2627-1 is contained in AR 27-10.
(B) Formal Proceedings. A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) will be used to record formal nonjudicial punishment proceedings.
b. Filing and Removal.
(1) In all Section 15 proceedings in which the punishment imposed is reduction in grade, unsuspended and not appealed, the commander imposing the punishment shall forward a copy of the record of punishment and attachments (if any), along with a Request for Reduction Orders to the Military Personnel Office for processing and filing.
(2) Section 15 proceedings and records shall be filed and removed pursuant to applicable service regulations and directives.
(3) Exceptions. In all cases where a fine has been imposed upon a member, the record of punishment filed in the member's military personnel file shall not be removed from the file after one year, unless the fine has been paid by the member or set aside by a superior on appeal or otherwise.
c. Appeals: Records of punishment.
(1) Appeals of nonjudicial punishment. If the member appeals the nonjudicial punishment, the original records of punishment and all attachments (if any) shall be forwarded to the appropriate superior. After acting on the appeal, the superior authority shall forthwith return the record of punishment an all attachments (if any) to the commander who imposed the punishment for filing in the member's military personnel file.
(2) In all cases where a reduction in grade is appealed and the superior authority approves the reduction in grade, the commander who imposed the punishment shall forward the record of punishment to The Adjutant General as set forth in paragraph 15(b).
(3) Reduction in grade; appeal. Whenever a reduction in grade is set aside by a superior on appeal or otherwise and a lesser punishment is imposed on the member, the record of punishment shall be filed in the member's military personnel file for a period of one year and upon the expiration thereof it shall be removed.
(4) Setting aside of punishment. In any case where the punishment imposed upon a member in a Section 15 proceeding is wholly set aside by a superior on appeal or otherwise and no punishment is imposed the record of punishment shall be removed.
Section VII. Suspension, Mitigation, Remission and Setting Aside.
16. General.
a. The imposing commander, a successor-in-command, or the next superior authority may, in accordance with the time prescribed-
(1) Remit or mitigate any part or amount of the unexecuted portion of the punishment imposed.
(2) Mitigate reduction in grade, whether executed or unexecuted, to forfeiture of pay.
(3) At any time, suspend probationally (for a period of time) any part or amount of the unexecuted portion of the punishment imposed.
(4) Suspend probationally (for a period of time) a reduction in grade or forfeiture, whether or not executed. An uncollected forfeiture of pay will be considered unexecuted.
b. Successor in command, defined; recording of action.
(1) As used in paragraph 6a, part V, MCM, a "successor in command" is the officer who has authority to impose the same kind and amount of punishment on a member concerned that was initially imposed or was the result of a modification and who commands the unit to which the punished member is currently assigned or attached, is the commander succeeding to the command occupied by the imposing commander, provided the member still is of that command, or is the successor to the delegate who imposed the punishment, provided the same authority has been delegated to that successor and the member is still of that command.
(2) Recording of action. Suspensions, mitigations, remissions and setting aside shall be documented on DA Form 2627 or DA Form 2627-1 or AF Form 366 and as these may be amended or replaced from time to time, used in the imposition of the nonjudicial punishment fully indicating the actions taken and the reasons therefore. Vacations of suspension shall likewise be documented, including the notice to, appearance by and response of the service member or if the service member was not notified or did not appear, why the member was not given notice and an opportunity to respond and the reasons for the vacation.
17. Suspension.
Ordinarily, punishment is suspended to grant a probational period during which a member may show that the member deserves a remission of the remaining suspended punishment. An executed punishment of reduction or forfeiture may be suspended only within a period of 4 months after the date imposed. Suspension of punishment may not be for a period longer than 6 months from the suspension date. In the case of summarized proceeding, suspensions of punishment may not be for a period longer than 3 months from the date of suspension. Further misconduct by the member, within the period of the suspension, may be grounds for vacation of the suspended portion of the punishment. Unless otherwise stated, an action suspending a punishment automatically includes a condition that the member not violate any punitive Section of the USCMJ.
18. Mitigation.
Mitigation is a reduction in either the quantity or quality of a punishment, its general nature remaining the same. Mitigation is appropriate when the offender's later good conduct merits a reduction in the punishment, or when it is determined that the punishment imposed was disproportionate. The nonjudicial punishment authority who imposes nonjudicial punishment, the commander who imposes nonjudicial punishment, or a successor in command may, at any time, mitigate any part or amount of the unexecuted portion of the punishment imposed. The nonjudicial punishment authority who imposes nonjudicial punishment, the commander who imposes nonjudicial punishment, or a successor in command may also mitigate reduction in grade, whether executed or unexecuted, to forfeiture of pay, but the amount of the forfeiture may not be greater than the amount that could have been imposed by the officer who initially imposed the nonjudicial punishment. Reduction in grade may be mitigated to forfeiture of pay only within 4 months after the date of execution.
When mitigating:
(1) arrest in quarters to restriction; or
(2) extra duties to restriction, the mitigated punishment may not be for a greater period than the punishment mitigated. As restriction is the least severe form of deprivation of liberty, it may not be mitigated to a lesser period of another form of deprivation of liberty, as that would mean an increase in the quality of the punishment.
19. Remission.
This is an action whereby any portion of the unexecuted punishment is canceled by the officer imposing the punishment or his superior. Remission is appropriate under the same circumstance as mitigation. Discharge or other separation for the service remits any unexecuted punishment under Section 15 will not be held beyond his expiration of term or service to complete any unexecuted punishment imposed.
20. Setting aside and restoration.
Setting aside is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. The nonjudicial punishment authority who imposed punishment, the commander who imposes nonjudicial punishment, or a successor in command may set aside punishment. The power to set aside punishments and restore rights, privileges, and property affected by the executed portion of a punishment should ordinarily be exercised only when the authority considering the case believes that, under all circumstances of the case, the punishment has resulted in clear injustice. Also, the power to set aside an executed punishment should ordinarily be exercised only within a reasonable time after the punishment has been executed. In this connection, 4 months is a reasonable time in the absence of unusual circumstances. In cases where administrative error results in incorrect entries on DA Form 2627, DA Form 2627-1 or AF Form 3070, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.
Section VIII. Appeals.
21. General.
Any service member on whom nonjudicial punishment has been imposed and who considers the punishment to be unjust or disproportionate to the offense, may appeal to the next superior commander.
22. Appellate Authority.
Nonjudicial punishment appeals are made to the "next superior authority," who is generally the immediate commander superior to the officer who imposed the punishment. When a principal assistant imposes punishment, the "next superior authority" is the commander superior to the commander who delegated the power.
23. Number of Appeals.
Only one appeal is permissible.
24. Time to Appeal.
The service member will be given a reasonable time within which to submit an appeal. A reasonable time shall normally be fifteen (15) days or the end of the next monthly drill following, whichever comes first.
25. Who May Act on an Appeal.
A superior authority to the commander who imposed the nonjudicial punishment, generally, the next superior commander, may act on an appeal.
26. Procedure.
Appeals shall be in writing and will be made on DA Form 2627 or DA Form 2627-1, or AF Form 3070 as applicable and shall set forth the reasons for appeal including additional documentation and evidence which supports the appeal. Normally, the superior authority shall not consider additional evidence which was not presented to the commander who imposed the nonjudicial punishment, unless, the exclusion of it would yield an unfair result.
27. Legal Review.
Before acting on an appeal, the superior authority shall refer the case to a judge advocate for consideration and advice. The judge advocate shall render an opinion as to the appropriateness of the punishment and whether the proceedings were conducted in accordance with law and regulations. When a case is so referred, the judge advocate is not limited to an examination of any written matter comprising the record of proceedings, and may make any inquiries and examine any additional matter deemed necessary.
28. Action by Superior Authority.
In acting on an appeal, the superior authority may exercise the same power with respect to punishment imposed as may be exercised by the officer who imposed the nonjudicial punishment. The superior authority may take such action even if no appeal has been filed. The superior authority will consider the record of proceedings, any matters submitted by the service member, any matters considered during legal review, and any other appropriate matters. If the superior authority sets aside nonjudicial punishment due to procedural error, such superior authority may authorize additional proceedings by the imposing commander or a successor, but the punishment shall be no more severe than that originally imposed. Upon completion of action by the superior authority, the servicemember upon whom punishment was imposed, shall be promptly notified of the result.
29. Statute of limitations.
Nonjudicial punishment may not be imposed for offenses which were committed more than three (3) years before the date of imposition of punishment, unless such three-year limitation is waived by the accused in writing or unless the accused has filed an appeal under this regulation or the WVMCM. The period of limitations does not run when the member concerned is absent without authority; fleeing from justice; outside the territory where the United States or the State of West Virginia has authority to apprehend; in the custody of civil authorities; or, in the hands of the enemy.
30. Disposition of fines.
All fines imposed under this chapter (Section 15 proceedings) shall be collected from the offender by the commander imposing punishment and forwarded to The Adjutant General who shall deposit the same in the state military fund. Fines collected must be in the form of a cashier's check, certified check or money order payable to "The Adjutant General of West Virginia". Payment plans and payment by debit or credit card will be permitted upon approval of The Adjutant General.
W. Va. Code R. agency 141, tit. 141, ser. 141-49, app I