Louisiana Administrative Code › Title 41 - MILITARY FORCES OF THE STATE › Part II - Military Justice › Chapter 9 - Complaints Under Article 138, LCMJ › Section II-914 - Nonjudicial Punishment Guide - Appendix

Current through Register Vol. 50, No. 6, June 20, 2024
[General Note to Commander: This guide is designed to ensure
				  that the proceedings comply with all legal requirements. It contemplates a
				  three-step process, conducted in the presence of the member, consisting of
				  notification, hearing (that may be omitted if the member admits guilt), and
				  imposition of punishment (if the findings result in a determination of guilt).
				  It is not the purpose of this guide to answer all questions which may arise
				  during an Article 15 proceedings. When this guide, Chapter 5 of the LAARNG
				  Regulation 27-10/LA ANG Regulation 111-1, Chapter 3 of AR 27-10, and other
				  legal materials available fail to provide sufficient information concerning law
				  or procedure, the administering Commander should seek advice on these matters
				  from a judge advocate. The SCM should examine the format for record of trial
				  located at Figures 7-1 and 7-2 of LAARNG Regulation 27-10/LA ANG Regulation
				  11It may be useful as a checklist during the proceedings to ensure proper
				  preparation after trial. The Commander should become familiar with this guide
				  before using it. Instructions for the Commander are contained in brackets, and
				  should not be read aloud. Language in parentheses reflects optional or
				  alternative language. The Commander should read the appropriate language
				  aloud].
Section 1 - Notification
[If the notification of punishment is to be accomplished by
				  other than the imposing commander, the procedures under this provision should
				  be appropriately modified (see note 10d, below)].
CO: As your commander, I have disciplinary powers under
				  Article 15 of the LCMJ. I have received a report that you violated the
				  Louisiana Code, and I am now considering imposing nonjudicial punishment. This
				  is not a formal trial like a court-martial. As a record of these proceedings I
				  will use DA Form 2627. I now hand you this form. Read items 1 and 2. Item 1
				  states the offense(s) you are reported to have committed and item 2 lists the
				  rights you have in these proceedings. Under the provisions of Article 31 of the
				  LCMJ, you are not required to make any statement or provide any information
				  concerning the alleged offense(s). If you do, it may be used against you in
				  these proceedings or in a trial by court-martial. You have the right to consult
				  with a lawyer as stated in item 2.
[Note 1. Wait for the member to read items 1 and 2 of DA Form
				  2627. Allow him or her to retain copy five of the form until the proceedings
				  are finished and you have either imposed punishment or decided not to impose
				  it].
CO: Do you understand item 1? Do you understand the
				  offense(s) you are reported to have committed?
Member: (Yes) (No)
[Note 2. If the member does not understand the offense(s),
				  explain the offense(s) to him. Reference may be made to the LCMJ and to Part IV
				  of the Manual for Courts-Martial, United States, and Annotated which contains
				  an explanation of each of the punitive articles together with the essential
				  factual elements necessary to constitute the offense].
CO: Do you understand item 2? Do you have any questions about
				  your rights in these proceedings?
Member: (Yes) (No)
[Note 3. If the member does not understand his or her rights,
				  explain them in greater detail. If the member asks a question you cannot
				  answer, recess the proceedings. You can probably find the answer in one of the
				  following sources:
Article 15, LCMJ; Paragraph 3-4 of LAARNG Reg 27-10/LA ANG
				  Reg 111-1;
Part V, MCM. If you cannot find the answer in one of those
				  sources, contact your servicing Staff Judge Advocate Office.].
CO: There are some decisions you have to make: You have to
				  decide whether you want to demand trial by court-martial. If you demand a
				  court-martial these proceedings will stop. I would then have to decide whether
				  to initiate court-martial proceedings against you. If you were to be tried by
				  court-martial for the offense(s) alleged against you, you could be tried by
				  summary court-martial, special court-martial, or general court-martial. If you
				  were to be tried by special or general court-martial, you would be able to be
				  represented by a military lawyer appointed at no expense to you or by a
				  civilian lawyer of your choosing at no expense to the government.
If you do not demand trial by court-martial, you must then
				  decide whether you want to present witnesses or submit other evidence in
				  "defense," "extenuation," and/or "mitigation." Your decision not to demand
				  trial by court-martial will not be considered as an admission that you
				  committed the offense(s); you can still submit evidence in your behalf.
Evidence in "defense" are facts showing that you did not
				  commit the offense(s) stated in item 1. Even if you cannot present any evidence
				  in "defense," you can still present evidence in "extenuation" or
				  "mitigation."
Evidence in "extenuation" are circumstances surrounding the
				  offense, showing that the offense was not very serious.
Evidence in "mitigation" are facts about you, showing that
				  you are a good Service member and that you deserve light punishment.
You can make a statement and request to have a spokesperson
				  appear with you and speak on your behalf. I will interview any available
				  witnesses and consider any evidence you think I should examine.
Finally, you must decide whether you wish to request that the
				  proceedings be open to the public. Do you understand the decisions you have to
				  make?
Member: (Yes) (No)
CO: If you do not demand trial by court-martial and after you
				  have presented your evidence, I am convinced that you committed the offense, I
				  could then punish you. The maximum punishment I could impose on you under
				  Article 15 would be as follows:
[Note 4. Maximum punishments under LCMJ Article 15 varies
				  depending on the level of command imposing punishment and the rank of the
				  member being punished. A ready reference maximum punishments chart is located
				  in LAARNG Reg 27-10/LAANG Reg 11Explain to the member each punishment which
				  could be imposed in his individual case. It is not necessary for you to read
				  the following statute, however, understand that LCMJ Article 15 authorizes the
				  imposition of any one or more of the following punishments:
Upon officers in his command:
Restriction to certain specified limits, with or without
				  suspension from duty, for not more than fifteen consecutive days;
A fine of not more than one hundred dollars ($100.00);
If imposed by the governor, the adjutant general, or an
				  officer of a general or flag rank in command;
Arrest in quarters for not more than fifteen consecutive
				  days;
Forfeiture of pay of not more than one hundred dollars
				  ($100.00);
Upon other military personnel of his command:
Forfeiture of pay of not more than fifty dollars
				  ($50.00);
Reduction to the next inferior pay grade, if the grade from
				  which demoted is within the promotion authority of the officer imposing the
				  reduction or any officer subordinate to the one who imposes the
				  reduction;
Extra duties, including fatigue or other duties, for not more
				  than fourteen (14) consecutive days;
Restriction to certain specified limits, with or without
				  suspension from duty, for not more than fourteen (14) consecutive days;
If imposed by an officer of the grade of major or lieutenant
				  commander, or above (otherwise known as a "Field Grade Article 15"):
Forfeiture of pay of not more than one hundred dollars
				  ($100.00);
Reduction to the lowest or any intermediate pay grade, if the
				  grade from which demoted is within the promotion authority of the officer
				  imposing the reduction or any officer subordinate to the one who imposes the
				  reduction, but an enlisted member in a pay grade above E-4 may not be reduced
				  more than two pay grades;
Extra duties, including fatigue or other duties, for not more
				  than fourteen (14) consecutive days;
Restriction to certain specified limits, with or without
				  suspension from duty, for not more than fourteen (14) consecutive days;
A fine of not more than twenty-five dollars
				  ($25.00)]."
CO: You should compare this punishment with the punishment
				  you could receive in a court-martial.
[Note 5. If the member requests to be informed of the maximum
				  court-martial sentence(s), you may advise him that the maximum possible
				  punishments for courts-martial under the LCMJ are as follows:
Summary Courts-Martial (LCMJ Article 20):
Confinement of not more than one week;
Reduction of enlisted personnel to the lowest pay
				  grade;
A fine of not more than $100 per single offense or, in lieu
				  thereof, confinement of not more than 1 day for each dollar of said
				  fine;
Forfeiture of up to one month pay and allowances;
A reprimand;
Any combination of these punishments.
Special Courts-Martial (LCMJ Article 19):
A fine of not more than $200 per single offense, or, in lieu
				  thereof, confinement of not more than 1 day for each dollar of said
				  fine;
Forfeiture of pay and allowances;
A reprimand;
Bad conduct or dishonorable discharge;
Reduction of a noncommissioned officer to the ranks;
Confinement of not more than twelve months; or
Any combination of these punishments.
General Courts-Martial (LCMJ Article 18):
A fine of not more than $1,000 per single offense, or, in
				  lieu thereof, confinement of not more than 1 day for each dollar of said
				  fine;
Forfeiture of pay and allowances;
A reprimand;
Dismissal, bad conduct, or dishonorable discharge;
Reduction of a noncommissioned officer to the ranks;
Confinement of not more than two years; or
Any combination of these punishments.
[You should not inform the member of the particular
				  punishment you may consider imposing until all the evidence has been
				  considered].
CO: As item 2 points out, you have a right to talk to an
				  attorney before you make your decisions. A military lawyer whom you can talk to
				  free of charge is located at _____. Would you like to talk to an attorney
				  before you make your decisions?
Member: (Yes) (No)
[Note 6. If the member desires to talk to an attorney,
				  arrange through the servicing Judge Advocate Office for the consultation to
				  take place. The member should be encouraged to consult the attorney promptly.
				  Inform the member that consultation with an attorney may be by telephone. The
				  member should be advised that he or she is to notify you if any difficulty is
				  encountered in this undertaking].
CO: You now have 48 hours (or 15 days, if in an IDT status)
				  to think about what you should do in this case. You may advise me of your
				  decision at any time within the aforementioned period. If you do not make a
				  timely demand for trial or if you refuse to sign that part of DA Form 2627
				  indicating your decision on these matters, I can continue with these Article 15
				  proceedings even without your consent. Do you understand?
Member: (Yes) (No)
CO: You are now dismissed.
[Note 7. At this point, the proceedings should be recessed
				  unless the Service member affirmatively indicates that he or she has made a
				  decision and does not want additional time or to consult with an attorney. In
				  the event the member does not make a decision within the specified time or
				  refuses to complete or sign item 3 of DA Form 2627, the imposing commander may
				  continue the proceedings. In such instances, the Service member will be
				  informed that failure to complete and sign item 3 may be treated as a voluntary
				  withdrawal of any oral demand for trial. If the Service member persists in his
				  refusal and punishment is imposed, in addition to recording the punishment, the
				  following entry will be made in item 4, DA Form 2627: "Advised of his rights,
				  the Service member (did not demand trial during the decision period) (refused
				  to (complete)(sign) item 3.)" When you resume the proceedings, begin at item 3,
				  DA Form 2627].
CO: Do you demand trial by court-martial?
Member: (Yes) (No)
[Note 8. If the answer is yes, continue as follows:]
CO: Initial block a, sign and date item 3. Because you have
				  demanded trial by court-martial, these proceedings will stop. I now must decide
				  whether to initiate court-martial proceedings against you. I will notify you
				  when I have reached a decision. You are dismissed.
[Note 9. If the answer is no, continue as follows:]
CO: An open hearing means that the proceeding is open to the
				  public. If the hearing is closed, only you, I, designated members of the chain
				  of command, available witnesses and a spokesperson, if designated, will be
				  present. Do you request an open hearing?
Member: (Yes) (No)
CO: Do you wish to be accompanied by a spokesperson?
Member: (Yes) (No)
CO: Initial block 3b and indicating your decision. Do you
				  want to submit any evidence showing that you did not commit the offense(s), or
				  explaining why you committed the offenses(s), or any other information about
				  yourself that you would like me to know?
Do you wish to have any witnesses testify, including
				  witnesses who would testify about your good past military record or
				  character?
Member: (Yes) (No)
CO: Now initial block 3b indicating your decision, and sign
				  and date the form in the space provided under that item.
[Note 10.
a. Wait
				until the member initials the blocks and signs and dates the form. If the
				answers to all the questions are no, you may proceed to impose punishment.
If the answer regarding witnesses and evidence is yes, and
				  the member is prepared to present his or her evidence immediately, proceed as
				  follows. Consider the evidence presented. If the evidence persuades you that
				  you should not punish the member, terminate the proceedings, inform the member,
				  and destroy all copies of DA Form 2627. If you are convinced beyond a
				  reasonable doubt that the member committed the offense(s), and deserves
				  punishment, proceed to impose punishment as appropriate.
If the member needs additional time to gather his or her
				  evidence, give the member a reasonable period of time to gather the evidence.
				  Tell the member when the proceedings will resume and recess the proceedings. A
				  reasonable period of time for these purposes would ordinarily be until the
				  following MUTA during IDT periods and would vary depending on circumstances
				  during AT periods. Consult your servicing Judge Advocate if you have questions
				  on this subject.
If someone else conducted the notification proceedings, the
				  imposing commander should conduct the remainder of the proceedings. When you
				  resume the proceedings, consider the member's evidence. Insure that the member
				  has the opportunity he or she deserves to present any evidence. Ask the member,
				  "Do you have any further evidence to present?"
If the evidence persuades you that you should not punish the
				  member, terminate the proceedings, inform the member of your decision, and
				  destroy all copies of DA Form 2627. If you are still convinced that the member
				  committed the offense(s) and deserves to be punished, impose punishment as
				  appropriate].
Section 2 - Imposition of Punishment
CO: I have considered all the evidence. I am convinced that
				  you committed the offense(s) of ____________. I impose the following
				  punishment(s): _____________ [Announce punishment.]
[Note 11. After you have imposed punishment, complete items
				  4, 5, and 6 of DA Form 2627, and sign the blank below item 6].
Section 3 - Appellate Advice
[Note 12. Hand the DA Form 2627 to the member]
CO: Read item 4 which lists the punishment I have just
				  imposed on you. Now read item 6 which points out that you have a right to
				  appeal this punishment to (title and organization of next superior authority
				  under Article 15e). You can appeal if you believe that you should not have been
				  punished at all, or that the punishment is too severe. Any appeal should be
				  submitted within 5 calendar days, excluding today. An appeal submitted after
				  that time may be rejected. Even if you appeal, the punishment is effective
				  today (unless the imposing commander sets another date). Once you submit your
				  appeal, it must be acted upon by (title and organization of next superior)
				  within 5 calendar days, excluding the day of submission. Otherwise, any
				  punishment involving deprivation of liberty (restriction or extra duties), at
				  your request, will be interrupted pending the decision on the appeal. Do you
				  understand your right to appeal?
Member: (Yes) (No)
CO: Do you desire to appeal?
Member: (Yes) (No)
[Note 13. If the answer is yes, go to Note 15. If the answer
				  is no, continue as follows:]
CO: If you do not want to appeal, initial block a in item 7
				  and sign the blank below item 7.
[Note 14. Now give the member detailed orders as to how you
				  want him or her to carry out the punishments].
CO: You are dismissed.
[Note 15. If the answer is yes, continue as follows:]
CO: Do you want to submit any additional matters to be
				  considered in an appeal?
Member: (Yes) (No)
[Note 16. If the answer is yes, go to Note 17. If the answer
				  is no, continue as follows:]
CO: Initial block b in item 7 and sign the blank below item
				  7. I will notify you when I learn what action has been taken on your appeal.
				  You are dismissed.
[Note 17. If the answer is yes, continue as follows:]
CO: If you intend to appeal and do not have the additional
				  matters with you, item 7 will not be completed until after you have obtained
				  all the additional material you wish to have considered on appeal. When you
				  have obtained this material, return with it by ______________(specify a date 5
				  calendar days from the date punishment is imposed) and complete item 7, by
				  initialing the box and signing the blank below. After you complete item 7, I
				  will send the DA Form 2627 and the additional matters you submit to (title and
				  organization of next superior authority). Remember that the punishment will not
				  be delayed (unless the imposing commander sets another date). Do you
				  understand?
Member: (Yes) (No)
CO: You are dismissed.
AUTHORITY NOTE:
				  Promulgated in accordance with
				  R.S.
				  29:11(F).