N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.2 - The military justice system
(a) General. The military justice system is
comprised of judicial proceedings known as courts-martial and nonjudicial
proceedings commonly referred to as article 15 proceedings (referring to
article 15 of the UCMJ or section 130.15 of the New York State Military
Law).
(b) The courts-martial
system. The goal of the courts-martial system is to achieve justice. As in
American criminal courts, special and general courts-martial are adversary
proceedings. That is, lawyers representing the government and the accused
vigorously present the facts, law and arguments most favorable to each side
following the rules of procedure and evidence. Based upon these presentations
the military judge decides questions of law. The court-martial applies the law
and decides questions of fact. Only a court-martial can determine the ultimate
question of innocence or guilt. Any general or special court-martial conviction
is a state court conviction.
(1) There are
three types of courts-martial:
(i) a general
courts-martial;
(ii) a special
courts-martial (including bad conduct discharge [BCD] special court-martial);
or
(iii) a summary
courts-martial.
(c) General courts-martial (GCM). The general
court-martial tries the most serious offenses and may adjudge the most severe
sentences authorized by law. It consists of at least five members, as well as a
military judge. A GCM may consist of a military judge alone where the judge
approves a written request from the accused for such trial.
(1) General courts-martial shall have the
power to sentence to: confinement with hard labor for not exceeding 200 days;
fines not exceeding $200; confinement with hard labor in lieu of fines imposed
not exceeding one day for each dollar of fine imposed; forfeiture of pay and
allowances, not exceeding $200; dismissal; dishonorable discharge; bad conduct
discharge; reprimand; reduction of noncommissioned officers to an inferior
grade; and to combine any two or more of such punishments in the sentences
imposed.
(2) In both general and
special courts-martial, an enlisted member may request that at least one-third
of the total membership of the court be enlisted personnel.
(3) General courts-martial may be convened by
order of the Chief of Staff to the Governor, the commanding officer of a force
of the organized militia, the commanding officer of a division or corresponding
unit of the Army National Guard or the commanding officer of a wing or
corresponding unit of the Air National Guard. A sample format for an Order
Convening Courts-Martial is contained in Appendix L-2. NOTE:The selection of
court members is the sole responsibility of the convening authority and this
responsibility cannot be delegated.
(d) Actions after forwarding charges in
general courts-martial.
(1) The section
130.32 investigation which is an investigation under section 130.32 of the
Military Law, may be ordered by any convening authority, and is required before
any charge or specification is referred to a general court-martial by the
convening authority for such court. The offenses investigated by the
appropriate commander and forwarded as charges to the convening authority are
the basis of this investigation. The officer appointed to conduct the
investigation pursuant to section 130.32 must inquire into the truth of the
matter set forth in the charges and make a recommendation regarding disposition
of the charges in the interest of justice and discipline. For guidance on
conducting such investigations, see DA Pam 27-17, modifying its advice for
state use where appropriate. A sample Investigating Officer's Report (DMNA form
1051) is contained in Appendix L-2.
(2) At the section 130.32 investigation, the
accused shall be advised of the charges against him and his right to counsel.
He is entitled to be represented by civilian counsel, at his own expense, or by
military counsel of his selection, if reasonably available. At such
investigation, the accused shall have the full opportunity to examine and
cross-examine witnesses as well as present anything he may desire on his own
behalf. The investigating officer shall examine all available witnesses
requested by the accused.
(3) If,
after such investigation, the charges are forwarded to the convening authority,
they shall be accompanied by a statement summarizing the testimony taken on
both sides. A copy of this summary shall be given to the accused. NOTE: Where
an investigation is conducted prior to the time the accused is charged, a
further investigation after charging will not be required unless:
(i) the accused was not present at the
investigation and given the opportunity for representation, examination and
presentation; or
(ii) the accused
after being informed of the charges demands a further investigation. Even in
such cases where the accused participated in the investigation, he is entitled
to demand a further investigation if at the time of the initial investigation
he had not been charged.
(4) Certain time limitations. Where a person
is ordered into arrest or confinement when being held for trail by a general
courts-martial, the charges, together with the investigation and all other
papers shall be forwarded to the general courts-martial, convening authority
within eight days.
(5) Role of
state judge advocate. No matter shall be referred by the general courts-martial
convening authority to trial by general court-martial without the consideration
and advice of the state judge advocate. The state judge advocate shall review
the charges and specifications as to legal and factual sufficiency. He may make
such formal changes to the charges as are necessary to have them conform to the
evidence.
(6) Service of charges.
The trial counsel to whom court-martial charges are referred shall have a copy
of the charge served upon the accused. In peacetime no person shall be brought
to trial by general courts-martial within five days after service of charges,
or in the case of a special courts-martial, within three days.
(e) Special courts-martial (SPCM).
(1) The special courts-martial is the
intermediate court in our military justice system. A special courts-martial may
not try a commissioned officer, but may try warrant officers. The membership of
non-BCD special courts-martial may take any of three forms. It may consist of:
(i) at least three members;
(ii) at least three members and a military
judge; or
(iii) solely of a
military judge if the accused so requests in writing.
If an enlisted accused requests in writing that the court have enlisted membership, then at least one-third of the membership of the court must be enlisted personnel.
(2) Special courts-martial shall have the
power to sentence to: confinement with hard labor for not exceeding 100 days;
fines not exceeding $100; confinement with hard labor in lieu of fines imposed;
forfeiture of pay and allowances not exceeding $100; bad conduct discharge;
reprimand; reduction of noncommissioned officers to an inferior grade; and to
combine any two or more of such punishments in the sentences imposed.
(3) The military judge of a special
court-martial is detailed by the convening authority, and he must be a
commissioned officer of a force of the organized militia or a person on the
state reserve list or state retired list who is a member of the bar of New York
and who is certified to be qualified for duty as a military judge by the state
judge advocate. The convening authority shall appoint a trial counsel and
defense counsel, together with such assistants as he deems necessary or
appropriate.
(4) Charges are
referred for trial by a special court-martial by means of completing the
endorsement on Part V of the charge sheet, DMNA form 1050 (see Appendix
L-2).
(5) A special courts-martial
may be convened by:
(i) any person who may
convene a general courts-martial;
(ii) the commanding officer of a force of the
organized militia, or of a garrison, fort, camp, station, air base or other
place where members of a force of the organized militia are on duty;
(iii) the commanding officer of a division,
brigade, regiment, detached or separate battalion, or corresponding unit of the
Army National Guard, the New York Guard or of any other land force of the
organized militia;
(iv) the
commanding officer of a wing, group, detached or separate squadron or
corresponding unit of the Air National Guard;
(v) the commanding officer of any naval
vessel, and the commanding officer of any area, brigade, battalion, division,
marine battalion or separate marine company of the naval militia;
(vi) the commanding officer of any separate
or detached command or group of detached units of any of the forces of
organized militia placed under a single commander; or
(vii) the commanding officer or officer in
charge of any other command when empowered by the Chief of Staff to the
Governor. See Appendix L-2 for form for Order Convening Courts-Martial.
When any such officer is an accuser, the court shall be convened by superior competent authority, and may in any case be convened by such authority when deemed advisable by him.
(6) How a special courts-martial works. A
special courts-martial, like a general or summary court-martial, is put into
motion by the preparation of charges. Any person subject to the state code may
prefer charges. That person must sign the charges and specifications under oath
before a commissioned officer, and state that he or she has personal knowledge
of or has investigated the matter set forth in the charges and specifications
and that they are true to the best of that person's knowledge and belief. The
immediate commander shall cause the accused to be informed of the charges
preferred against him. See Appendix L-2 for form of charge sheet, DMNA form
1050; and see FM 27-1 Legal Guide for Commanders for guidance in preparing and
forwarding charges. Upon receiving the charges, the convening authority
determines their disposition. The convening authority can dismiss any or all of
the charges, forward them to another commander for disposition, or refer any or
all of them to a court-martial. If the convening authority decides to refer the
charges to a special courts-martial (or any other court-martial for which he is
the convening authority), he or she will cause a convening order to be drawn up
designating the type of court-martial and detailing the members. Where the
court-martial will meet may also be designated.
(7) Once charges have been preferred against
an accused, they are forwarded to the appropriate commander exercising special
court-martial convening authority. This authority reviews the options
applicable (See N.Y.R.C.M. 401-405). If it is determined that the matter should
be tried by a special court-martial, the convening authority then refers the
matter to such court. Consequently, referral is the order of the convening
authority that charges against an accused will be tried by a specified
court-martial.
(8) Consultation
with a judge advocate as to the appropriate disposition of the charges is
essential. If the convening authority finds or is advised by a judge advocate
that there are reasonable grounds to believe an offense triable by
court-martial was committed, that the accused committed it and that the
specification alleges an offense, then the case will be referred to trial.
After referral, the trial counsel serves a copy of the charge sheet on the
accused. The accused cannot be brought to trial before a special court-martial
over his objection within three days after service of the charges.
(9) Besides forwarding and referring charges
to court-martial, the convening authority has additional responsibilities. The
convening authority must detail properly qualified trial and defense counsel to
the court-martial. If the proceeding is to be a BCD special court-martial, the
convening authority must cause a reporter to be detailed so that a verbatim
record can be prepared. One of the most important responsibilities of the
convening authority is the detail of the members to the court-martial. Members
should be those persons who in the opinion of the convening authority are best
suited to the duty by reason of age, training, experience and temperament. The
members shall be commissioned officers. However, if the accused has so
requested, there may be an enlisted person designated to serve as one of the
court members.
(10) Once the
court-martial has taken place, the convening authority has certain
responsibilities concerning the findings and sentence of the court-martial. See
Appendix L-2 for Forms of Sentences. Findings and sentence should be reported
to the convening authority without delay. The accused is entitled to submit
matters for consideration to the convening authority regarding the findings and
sentence adjudged. The convening authority may modify the findings and sentence
of a court-martial as a command prerogative. He or she may approve, disapprove,
commute or suspend the sentence in whole or in part. In taking action on the
findings, the convening authority can dismiss a charge by setting aside the
findings of guilty or change a finding of guilty to a finding of guilty to a
lesser included offense. The convening authority cannot increase the punishment
or add additional findings of guilty. Before taking action, the convening
authority should seek the advice and recommendations of the staff judge
advocate.
(11) Once the convening
authority has acted on the findings and sentence, an approved sentence of a bad
conduct discharge or any confinement is referred by the state judge advocate to
a Board of Military Review. Such sentences are not executed until the appeal
process is exhausted. Further any sentence of dismissal or dishonorable
discharge must be approved by the Governor.
(12) A special court-martial proceeding is
complicated and time consuming. It should be reserved for offenses which cannot
be handled either by summary court-martial or nonjudicial punishment. The above
information is an overview of how the special court-martial works; it is by no
means complete and exhaustive. Before taking steps to convene a special
court-martial, judge advocate assistance should be requested.
(13) "BCD special" courts-martial (BCDSPCM).
In some instances a special courts-martial is authorized by the convening
authority to adjudge a bad conduct discharge as part of its maximum sentence.
This proceeding differs from an ordinary special courts-martial in that a
verbatim (word-for-word transcript) court record is required and a military
judge must be detailed. In the case of persons charged with AWOL under section
130.82 of the Military Law, personal jurisdiction of BCD special courts-martial
can be obtained over such persons by means of substituted service under the
provisions of section 308 of the Civil Practice Law and Rules provided that
diligent efforts have been made to deliver the charges to the accused. See
Appendix L-2 for form of Affidavits of Service. However, if personal
jurisdiction is obtained in this manner, the BCD special courts-martial shall
not have the power to adjudge confinement. (See N.Y.R.C.M. 804[c] and Military
Law, section 130.3[d] ).
(14) If
court-martial charges have been referenced against an enlisted member and the
possible punishment for any of those charges include a bad conduct or
dishonorable discharge, the member may submit a request for discharge for the
good of the service (chapter 10, AR 635-200).
(f) Summary courts-martial (SCM). The summary
courts-martial is a court composed of one officer, who may be either a lawyer
or a nonlawyer. However, staff judge advocates shall preside over summary
courts, whenever practicable. It is designed to handle relatively minor crimes.
The summary courts-martial has simplified procedures which are outlined in
Appendix L-2, Guide for Summary Courts-Martial.
(1) A summary courts-martial may be convened
by:
(i) Any person who may convene a general
or special court-martial.
(ii) The
field grade commander of any organization authorized a commander in the grade
of Lieutenant Colonel or equivalent, or higher.
(iii) The commanding officer or officer in
charge of any other command when empowered by the Chief of Staff to the
Governor.
(iv) A superior competent
authority to any of the above.
(2) Summary courts-martial shall have the
power to sentence to: confinement with hard labor for not exceeding 25 days;
fines not exceeding $25; confinement with hard labor in lieu of fines imposed
not exceeding one day for each dollar or fine imposed; forfeiture of pay and
allowances not exceeding $25; reprimand; reduction of noncommissioned officers
to an inferior grade; and to combine any two or more of such punishments in the
sentences imposed.
(3) NOTE: That
under the New York State Military Law only enlisted personnel may be tried by a
summary court-martial. Therefore, commissioned officers and warrant officers
are not subject to summary court-martial.
(4) An accused may not be tried by summary
court-martial over objection to such a trial. Prior to trial an accused should
indicate in writing an acceptance of disciplinary action under summary
court-martial. If the accused objects to trial by summary court-martial, the
summary court officer will return the charge sheet to the convening authority
for disposition. If the accused consents to trial by SCM the summary court
officer will proceed to trial.
(5)
Troops performing duty outside the United States may be subject to the laws of
the foreign jurisdiction, the Uniform Code of Military Justice and the status
of forces agreement (SOFA) of treaties with the foreign government. In all such
instances a judge advocate should be consulted to clarify the issues of
jurisdiction.
(g)
Summary courts-martial conducted by judge advocate officer.
(1) In order to avoid the common criticism of
the traditional summary court-martial as being "a one man prosecutor, judge and
jury" and to avoid the appearance and accusation of "command influence", judge
advocate officers shall, where practicable, serve as the summary court-martial
officer.
(2) Judge advocate
officers are attorneys familiar with military law and military procedure as
well as the rules of evidence. Their professional training in examining facts
and applying the law to come to a judgment will expedite, "the military justice
system".
(3) Since most judge
advocate officers would be objective disinterested parties who are assigned to
a general or flag staff or attached to a brigade, squadron or wing, the
appearance of possible command influence will be greatly minimized if not
completely eliminated.
(4) By
utilization of judge advocate officers as summary court-martial officers, the
rights of the accused will be further safeguarded by ensuring that the
proceeding is conducted under due process of law.
(5) While it is not mandatory that a judge
advocate serve as the summary court-martial, it is encouraged where
practicable. If a judge advocate (regardless of rank) is not utilized as a
summary court-martial officer, a disinterested field grade officer should be
detailed on orders to serve as the summary court-martial.
(6) Regardless of whether a judge advocate or
field grade officer serves as a summary court-martial, the procedures to be
followed are outlined in Appendix L-2 (A9 and A10 and DA Pam 27-7 (where
appropriate to a state summary court-martial).
(h) How a summary court-martial works (see
Chapters 2 and 4, FM 27-1, Legal Guide for Commanders).
(1) Once an offense is committed it should be
investigated by the C.O. of the accused to the extent deemed necessary to
obtain all pertinent facts, witnesses, documents, etc. If charges are
preferred, the accused is served with a copy and notation is made thereof on
the charge sheet (see Part III, para 12 on the charge sheet, DMNA form 1050).
The charge sheet is then forwarded to the proper SCM convening authority (see
para 2-6a). Receipt of the charges should be noted in Part IV, para 13 of the
charge sheet. Thereafter, if the convening authority determines that the
charges should be referred to a summary court-martial, the convening order may
be by notation signed by the convening authority in Part V of the charge
sheet.
(2) In due course the trial
is held (see Appendix L-2 [A9]) and the record of trial is prepared, (see
Appendix L-2 [A10], DMNA form 1056) and is returned to the convening authority
for action. The action taken by the convening authority is shown in para 13 on
all copies of the record of trial and is thereafter signed by the convening
authority. This endorsement to the record of trial formalizes the convening
authority's action in the case and operates as the order promulgating that
action. A formal promulgating order is not required.
(3) The record of trial is forwarded to the
judge advocate of the supervisory authority, where the record is legally
reviewed by a judge advocate. Once the review is done, the judge advocate
"signs off" on the record indicating that it is legally sufficient; or, if
corrective action is necessary to cure errors in the record, the judge advocate
either initiates corrective action to be taken by the supervisory authority or
sends it back for corrective action by the convening authority.
(4) When the legal review (and corrective
action, if any) is completed, the record of trial is filed in the member's MPRJ
by forwarding a copy to DMNA, ATTN: MNPA-PSC. A sample completed record of
trial can be found in Appendix L-2 (A10).
Notes
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