N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.7 - Preparation, preferral and forwarding of charges

(See chapter 4, FM 27-1, Legal Guide for Commanders.)

(a) Preparation of charges. Where a commander determines that non-judicial punishment is inadequate, yet the offense does not warrant a general or special court-martial, a summary court-martial may be utilized. The commander will use DMNA form 1050 (Charge Sheet), a sample copy of which is contained in Appendix L-2. This form must be prepared in an original and four copies.

(1) While a commander is responsible for preparation of the charge sheet, there is no legal requirement that he do it personally. The preparation of the charge sheet is a critical function of the commander. Whenever possible, the commander will seek the assistance of a judge advocate officer. Once the charges and specifications have been prepared and signed under oath, they are a public record and should not be altered except on the advice of a judge advocate.

(2) The accuser (i.e., the person who believes that the charges and specifications are true) will sign in Part III, DMNA form 1050. While the accuser is usually the commander, it may be any person subject to the State Military Law. A superior authority may not order anyone to act as an accuser. The signing of the charge sheet must be made before a commissioned officer authorized to take oaths (see Military Law, section 131.2 ). The accuser must take the oath.

(3) The next step in the process; i.e., preferral of the charges against the accused, requires that the commander or his or her representative read the charges and specifications to the accused. The commander or commander's representative will then complete Part III, paragraph 12, DMNA form 1050.

(4) The commander or his or her designated representative will next forward the charge sheet and all allied information as well as exhibits to the commander exercising summary court jurisdiction (see subdivision [b] of this section).

(b) Forwarding and referral of charges.

(1) Letter of transmittal. A letter of transmittal is used to forward the charge sheet and allied information to the court-martial convening authority (see Appendix L-2 [A12]). This letter contains information about the accused and the commander's specific recommendations for disposition of the charges. The commander must personally sign the letter of transmittal and attach one copy to each set of the charge sheet and allied material. When making a recommendation for the disposition of the charges, the commander should consider the nature of the offenses, the personal history of the accused, and whether the accused should be eliminated from the service. After considering these matters, the company commander should relate the punishment to the type of court-martial which may impose it. The commander must keep in mind that charges against an accused should be tried by the lowest court which has power to adjudge an appropriate and adequate punishment.

(2) Allied papers. Military Police or CID reports of investigation, if available, should be forwarded with the charges. If these investigation reports are not completed when the company commander is ready to forward the charges, the charges should be forwarded with a statement saying that the reports will follow when they become available. Initial and interim reports received by the commander may be forwarded with the charge sheet. Under no circumstances should a commander delay the forwarding of charges until completion of the final CID or Military Police report.

(3) Witness statements. All available witness statements should be forwarded with the charge sheet. Witness statements and summaries of expected testimony may be sworn or unsworn. While in most cases it is best to attach written statements from all available witnesses, it is not necessary to delay forwarding the charges to obtain them. Handwritten statements may be attached to the charges if the typing will cause unnecessary delay.

(4) Available documentary evidence. In order to safeguard documentary evidence, originals should not be forwarded with the charge sheet. It is sufficient to forward copies of the documents. For example, if the case is based on a forged check, it would be unwise to forward the original and risk its loss in transmittal.

(5) Extracts of military records of previous convictions (DD form 493). This document is prepared by the personnel officer at the request of the company commander and should be forwarded with the charges.

(6) Personal evaluation sheet. The personal evaluation sheet, a local form, contains information concerning the accused's military record and the company commander's evaluation of the accused's conduct and efficiency.

(7) Time limits. The prompt disposition of charges is essential to our system of military justice. An unexplained delay in the processing of charges at any stage may result in the dismissal of charges. When a question concerning a delay is brought up at trial, the burden is on the State to justify the delay and show that it was not intentional or due to an oppressive design or neglect on the part of the command. The period of time for which the State is accountable starts when the accused is placed in restraint or when charges have been preferred.

(8) At any stage of the proceedings, the company commander should call a judge advocate for advice if there are any questions or doubts.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.7