West Virginia Code of State Rules › Agency 141 - Adjutant General › Title 141 - LEGISLATIVE RULE ADJUTANT GENERAL › Series 141-49 - Military Justice › Appendix I - NONJUDICIAL PUNISHMENT

Current through Register Vol. XLI, No. 28, July 12, 2024
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.