New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle L - Division of Military and Naval Affairs › Chapter IV - Military Justice › Part 520 - Air National Guard › Section 520.3 - Administering non-judicial punishment

Current through Register Vol. 46, No. 28, July 10, 2024
(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.