New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle L - Division of Military and Naval Affairs › Chapter IV - Military Justice › Part 519 - Non-judicial Punishment Procedures Army National Guard › Section 519.4 - Punishment

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
Rules and
				  limitations.
Whether to impose punishment and the nature of the
					 punishment are solely the decisions of the imposing commander. However,
					 commanders are encouraged to consult with their NCO's on the appropriate type,
					 duration and limits of punishment to be imposed. Additionally, as NCO's are
					 often in the best position to observe a member undergoing punishment and
					 evaluate daily performance and attitude, their views on clemency should be
					 given careful consideration.
(1)
TABLE 4-1 TYPES OF
								  PUNISHMENT
MAXIMUM PUNISHMENT FOR ENLISTED
								  MEMBERS
PUNISHMENT
IMPOSED BY COMPANY GRADE
								  OFFICERS
IMPOSED BY FIELD GRADE
								  OFFICERS
Admonition/Reprimand
Yes
Yes
Withholding of privilege
2 consecutive weeks
2 consecutive weeks
Restriction with or without suspension from duty
2 consecutive weeks
2 consecutive weeks
Extra duties
2 consecutive weeks not to exceed 2 hours p/day;
								holidays included
2 consecutive weeks not to exceed 2 hours p/day;
								holidays included
Reduction (E2-E7)
E-2 through E-4, one grade but see Chapter 6 (NGR
								600-200)
E-5, E-6 and E-7, one grade but see Chapter 6 (NGR
								600-200)
Reduction (E8 and E9)
No, see section
								519.6  (NGR 600-200)
No, see section
								519.6  (NGR 600-200)
Fine
$150.00
$150.00
(2)
PUNISHMENT FOR COMMISSIONED AND
								  WARRANT OFFICERS
Withholding of privileges
2 consecutive weeks
2 consecutive weeks
Restrictions with or without suspension from
								duty
2 consecutive weeks
2 consecutive weeks
Imposed by Governor, Commanding Officer or Force of
Organized Militia or General or Flag Ranking Command
Fine of $200.00
(b)
Types of punishment.
See paragraph (a)(1) of this subdivision, table 4-1 for
					 maximum punishments.
(1)
Admonition
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
is the act of formal censure by a commander which
				  reproves or rebukes the offender for his misconduct. It may be oral or written.
				  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 Part.
(3) Withholding of privileges shall only be
				  executed while the offender is in a duty status.
(4) Restriction to certain specified limits
				  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 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 or withholding of
				  privileges, restrictions to certain specified limits, extra duties and
				  confinement shall be executed within 60 days after the punishment is
				  imposed.
(8) Fine may apply to pay
				  or allowances as stated in Military Law, section
				  130.15, subdivisions (a)(1)(C),
				  (a)(2)(F) and (f).
(i) Fines will be
				  collected by the unit commander and deposited in the unit's state military fund
				  account.
(ii) In the case of AGR
				  personnel, fines will be collected by the commander and remitted to the unit
				  State military fund or in the case of assignment to another unit to the
				  assigned unit's State military fund,
e.g.,
STARC.
(9) Reduction in
				  grade (herein meaning "pay grade").
(i) Only
				  the commander with the authority to promote to the grade from which demoted may
				  reduce a member in grade with the exception as indicated in subparagraph (iii)
				  of this paragraph. See paragraph (ii) of this subdivision for reduction of
				  offenders in grades E-8 and E-9.
(ii) An offender may be reduced only one
				  grade in each non-judicial punishment action.
(iii) Reduction authority pertaining to AGR
				  personnel is not delegated and rests with this headquarters. Reduction actions
				  will be implemented by completing and forwarding a copy of DMNA form 1057 to
				  Headquarters, NYARNG, ATTN: MNSP-AGR.
(10) Reduction in grade (herein meaning "pay
				  grade"). (This paragraph and paragraph (9) of this subdivision do not apply to
				  commissioned officers and warrant officers see paragraph [c][2] of this
				  section.)
(i) Promotional authority. The grade
				  from which reduced must be within the promotion authority of the imposing
				  commander or of any officer subordinate to the imposing commander. For the
				  purposes of this Part, the imposing commander, or any subordinate commander has
				  "promotion authority", if he or she has the general authority to appoint to the
				  grade from which reduced or to any higher grade (AR 600-200).
(ii) Lateral appointment or reduction of NCO
				  to Specialist and a Specialist to NCO. An NCO may not be laterally appointed to
				  a Specialist in the same pay grade under section
				  130.15  of the Military Law.
				  However, the NCO may be reduced to a Specialist or NCO of a lower pay grade
				  provided the latter grade is authorized in the member's primary military
				  occupational specialty (PMOS). A Specialist may not be laterally appointed to
				  an NCO in the same pay grade but may be reduced to a Specialist or NCO of a
				  lower pay grade provided the latter grade is authorized in the member's primary
				  MOS. For example, a Sergeant may not be appointed to a Specialist 5 but may be
				  reduced to a Specialist 4 or to Corporal. If reduction is included in the
				  punishment, the imposing commander must determine whether the lower pay grade
				  status of either Specialist or NCO is authorized in the member's primary MOS.
				  The commander will indicate upon announcement of the reduction which status
				  within the pay grade is intended;
e.g.,
"to be reduced to
				  Specialist 4".
(iii) Date of rank.
				  When a person is reduced in grade as a result of an unsuspended reduction, his
				  or her date of rank in the grade to which reduced is the date the punishment or
				  reduction was imposed. If the reduction is suspended either on or after the
				  time the punishment was imposed, or if set aside or mitigated to forfeiture of
				  pay, the date of rank in the grade held before the punishment was imposed
				  remains unchanged. If a suspension of the reduction is vacated the date or rank
				  in the grade to which reduced as a result of the action is the date the
				  punishment was originally imposed, regardless of the date the punishment was
				  suspended or vacated.
(iv)
				  Entitlement to pay. When a member is restored to a higher pay grade because of
				  suspension or when a reduction is mitigated to a fine, entitlement or pay at
				  the higher grade is effective on the date of suspension or mitigation. This is
				  true even though an earlier date of rank is assigned. If, however, a reduction
				  is set aside and all rights, privileges and property are restored, the member
				  concerned will be entitled to pay as though the reduction had never been
				  imposed.
(v) Void reduction. A
				  reduction imposed as non-judicial punishment by an imposing commander not
				  having authority to do so is void and must be set aside. However, there is one
				  exception, which clearly evidences a commander's intent to impose at least as
				  authorized one grade reduction. This is a reduction to a lower specialist grade
				  when reduction should have been to a lower NCO grade (or vice versa). In this
				  case, administrative action will be taken to place the offender in the proper
				  rank for the MOS held in the reduced pay grade.
(vi) Removal form standing promotion list.
				  (See AR 600-200.)
(11)
				  Reduction in grade of offenders in grades E-8 and E-9:
(i) Only a major commander, New York Army
				  National Guard, is authorized to impose a reduction, suspended or unsuspended,
				  in a non-judicial punishment action where the offender is in the grade of E-8
				  or E-9. Likewise, only a major commander, New York Army National Guard, is
				  authorized to vacate a suspended reduction of an offender in grade E-8 or
				  E-9.
(ii) All procedures previously
				  described in this regulation apply to any action involving the reduction of an
				  offender in grades E-8 or E-9 subject to the following:
(a) Any non-judicial punishment imposed on an
				  offender in grades E-8 or E-9, not involving reduction, shall be imposed at the
				  unit level by the commander authorized to impose such non-judicial punishment
				  on offenders in grades E-8 or E-9.
(b) If the commander authorized to
				  non-judicially punish (other than reduction) such offenders, "intends to impose
				  reduction", paragraph 1 (the notification of offense) DMNA Form 1057 (Appendix
				  L-2[A16]) shall state that the commander intends to recommend to the
				  (appropriate major commander) the imposition of non-judicial punishment".
				  However, this notification of offense shall not include a recommendation of the
				  type of severity of punishment to be imposed.
(c) After all requirements in this Part
				  preliminary to the actual imposition of non-judicial punishment are met, the
				  commander who would have otherwise been authorized to impose the punishment
				  shall by indorsement, forward the record to the 42nd Infantry Division,
				  Headquarters Troop Command, Headquarters, 27th Brigade STARC (if the action is
				  not commenced by the Division Commander, Commander, Headquarters Troop Command)
				  or Commander, 27th Brigade through the unit Judge Advocate (for preliminary
				  legal sufficiency review for determination of imposition of non-judicial
				  punishment).
(d) Where the major
				  commander is forwarded the record to initially determine whether or not to
				  impose non-judicial punishment, he takes the place of the commander at the unit
				  level with all his authority for non-judicial punishment action
				  (
i.e.,
imposition of punishment, termination without
				  punishment, or termination of action and processing by
				  court-martial).
(iii) If
				  the major commander imposes a reduction (although he may impose any type of
				  non-judicial punishment he deems appropriate) only he, or his
				  successor-in-command may suspend, vacate a suspension, mitigate or remit or set
				  aside the reduction.
(a) Whatever remedial
				  action the major commander takes, once the appellate process is completed, the
				  record shall be maintained at the unit level, and the appropriate major
				  commander shall be notified of any further misconduct committed by such
				  offender in any suspension period.
(b) Any vacation action shall be commenced by
				  the unit commander recommending vacation action to the major commander and by
				  mailing or delivering the notification to the offender in accordance with this
				  regulation.
(iv) A STARC
				  Staff Judge Advocate, New York Army National Guard, shall review the record for
				  legal sufficiency in all cases of reductions in grade of offenders in grades
				  E-8 and E-9. All papers shall be forwarded to DMNA, ATTN: MNJA, 330 Old
				  Niskayuna Road, Latham, NY 12110-2224.