(a) Apprehension in AWOL cases.
(1) The apprehension of persons AWOL is
explicitly authorized by New York State Military Law, section
130.7:
(i) Apprehension is the taking into custody
of a person.
(ii) Any person
authorized under regulations issued pursuant to this Part (see Rule 302,
N.Y.R.C.M.) to apprehend persons subject to this code, any marshal of a
court-martial appointed pursuant to the provisions of this Part and any peace
officer acting pursuant to his special duties or police officer may apprehend
persons subject to this code upon reasonable belief that an offense has been
committed and that the person apprehended committed it.
(2) Apprehension in the New York Military Law
is the equivalent of "arrest" in civilian terminology, and there must be
grounds for ordering a person to be apprehended. The person must be subject to
the jurisdiction of the New York Military Law; i.e., presently a member of the
organized militia and there must be probable cause to apprehend the person.
Probable cause to apprehend exists when there are reasonable grounds to believe
that an offense (AWOL) has been or is being committed and the person to be
apprehended committed or is committing it. Reasonable grounds means that there
must be the kind of reliable information that a reasonably prudent person would
rely on which makes it more likely than not that something is true. The person
who determines probable cause may rely on the reports of others.
(3) The person authorizing or ordering
apprehension shall be the immediate commander of the person about whom a report
of an AWOL offense was received. The commander, in conjunction with authorizing
or ordering an apprehension; shall cause to be prepared DMNA form 1057,
Non-Judicial Punishment, or DMNA form 1050, a courts-martial Charge Sheet
setting forth the charges and specifications of the alleged offense. A copy of
DMNA form 1057 or DMNA form 1050 shall be attached to a written Order or
Authorization for Apprehension, DMNA form 1062. (See Appendix L-2 [A24]). The
DMNA form 1062 and supporting papers will be reviewed by a judge advocate who
shall initial under the authorizing signature, and the order of apprehension
shall be delivered to the person who or agency which shall execute the
apprehension.
(4) The person making
the apprehension must be one authorized to do so by Rule 302(b) N.Y.R.C.M. An
apprehension for an AWOL offense shall be made by military law enforcement
officials, civilian law enforcement officials, or, commissioned, warrant, petty
and noncommissioned officers (E-8 or above) on either an IDT, AT or state
active duty status. Whenever possible, apprehension should be carried out by or
in conjunction with state, city or local policy or local sheriffs' departments.
Where no state, city or local police or sheriffs' department personnel are
available, apprehension may be executed by unit personnel without law
enforcement assistance, only if the use of force is not required or utilized.
Under no circumstances are unit personnel to use handcuffs or other restraining
devices.
(5) Apprehension, as used
in the context of AWOL recovery, is not meant to be a form of restraint, and
must not be construed or treated as a form of punishment, detention or
confinement. Discipline or punishment of AWOL cases can only be administered
through the article 15 or court-martial process.
(6) Apprehension herein is utilized only to
secure the delivery of a person to his unit while in a drill or AT status for
purposes of disciplining the individual. The use of physical force, restraint
or coercion by unit members is not authorized. NOTE: Paragraphs (7) and (8) of
this subdivision are not applicable if apprehension is being effected by a
peace officer, i.e., State Police, Sheriff's Office personnel or local police
officers.
(7) Apprehension is made
by clearly notifying the person to be apprehended that he is in custody. Such
notification should be in substantially the following format:
Are you (name and rank of AWOL service member)?
Pursuant to the order of ________ Commander of ________ and
a warrant for apprehension dated (hand copy of warrant and charge sheet to
person being detained) you are being taken into custody for violation of the
State Code of Military Justice, New York State Military Law, section 130.82 for
being absent without leave. You are directed to accompany me to the armory
pursuant to the aforesaid warrant.
This notice must be given orally or in writing by the
person making the apprehension, and force or restraint to effect custody must
not be used, if performed by unit personnel. Any person or persons making an
apprehension should maintain custody of the person apprehended and deliver to
and inform as promptly as possible the immediate commander of the person
apprehended or any official higher in the chain of command of the person
apprehended if it is impractical to inform the immediate commander.
(8) In the event the person being
taken into custody refuses to accompany the apprehending official back to the
armory, such person should be given a notice in substantially the following
format:
Your refusal to accompany me pursuant to an order of your
commander and the warrant for apprehension is a further violation of the State
Code of Military Justice and may result in further charges, and additional
judicial proceedings pursuant to the State Code of Military Justice. Such
proceedings could result in a less-than-honorable discharge and/or confinement
in a civilian jail.
(9) The
failure or refusal of the person apprehended to cooperate or to remain at drill
or AT may result in a further violation of the New York Military Law, but such
action on the part of the person apprehended is not a reason or cause for any
person, other than a peace officer, to use physical force, restraint or
detention to prevent the person apprehended from leaving.
(10) An apprehension by unit personnel may be
made at any time or any place except by means of entering a private dwelling
where the person to be apprehended resides. In other words apprehensions at
personal residences are only permissible to the extent of being "pursuant to
at-the-door" contact with the individual to be apprehended. Of course, law
enforcement personnel may enter if they so choose, to carry out our
warrants.
(11) A person who is not
a resident of a private dwelling entered may not challenge the legality of an
apprehension made without a search or arrest warrant, but the persons making an
apprehension do not have authority to execute civilian arrest or search
warrants.
(12) A complete written
report of the apprehension, including date, time and location thereof shall be
filed with the immediate commander of the person apprehended as soon as
reasonably practicable after the apprehension is made.
(13) In the case of apprehensions made
pursuant to courts-martial charges, unit personnel should attempt to serve a
copy of the charge sheet on the accused prior to the issuance of a warrant for
apprehension. (See sections
516.3[h],
516.6[b]
and
516.8[d]
of this Title). This is well advised because if the individual has been
notified of the charges by service of the charge sheet (so as to satisfy the
rule requirements of having the opportunity to prepare a defense) then the
court-martial may proceed upon the individual being brought before the
court-martial by execution of the warrant for apprehension. If not, then all
that can be accomplished when the individual is first brought in is service of
the charge sheet and arraignment (reading of the charges and taking of a
plea).
