N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.2 - Jurisdiction
(a) Jurisdiction in
general.
(1) Nature of courts-martial
jurisdiction.
(i) The jurisdiction of
courts-martial is entirely penal or disciplinary.
(ii) This code applies in all places within
the State. It also applies to all persons subject to the code while serving
outside the State and applies while such persons are going to and returning
from such service outside the State in like manner and to the same extent as
while those persons are serving within the State (see ML, 130.5[a]).
(iii) The jurisdiction of a court-martial
with respect to offenses under the code is not affected by the place where the
court-martial sits (see ML, 130.5 [b]).
(2) Requisites of court-martial jurisdiction.
A court-martial always has jurisdiction to determine whether it has
jurisdiction. Otherwise for a court-martial to have jurisdiction:
(i) the court-martial must be convened by an
official empowered to convene it (see ML, 130.22, in the case of a general
court-martial; ML 130.23, in the case of a special court-martial, and ML,
130.24 and Part 515 of this Title, in the case of a summary court-martial);
and
(ii) the court-martial must be
composed in accordance with these rules with respect to number and
qualifications of its personnel (see ML, 130.16). As used here, personnel
includes only the military judge, the members, and the summary court-martial
officer; and
(iii) each charge
before the court-martial must be referred to it by competent authority (see ML,
130.34); and
(iv) the accused must
be a person subject to court-martial jurisdiction (see ML, 130.2);
and
(v) the offense must be subject
to court-martial jurisdiction (see ML, 130.34 and ML, 130.73 to 115).
(3) Contempt. A court-martial may
punish for contempt any person who uses any menacing word, sign, or gesture in
its presence, or who disturbs its proceedings by any riot or disorder. The
punishment may not exceed confinement for 30 days or a fine of $100, or both.
(see ML, 130.48).
(4) Exclusive and
nonexclusive jurisdiction.
(i) Courts-martial
have exclusive jurisdiction of purely military offenses.
(ii) An act or omission which violates both
the code and local criminal law, foreign or domestic, may be tried by a
court-martial, or by a proper civilian tribunal.
(iii) Where an act or omission is subject to
trial by court-martial and by one or more civil tribunals, the determination of
which tribunal within the State, or the United States will exercise
jurisdiction is a matter for the State, the United States, or the municipality
concerned, and is not a right of the suspect or accused.
(5) Reciprocal jurisdiction.
(i) Each armed force has court-martial
jurisdiction over all persons subject to the code (ML, 130.17 and
130.2).
(ii) A member of one armed
force may be tried by a court-martial convened by a member of another armed
force when the accused cannot be delivered to the armed force of which the
accused is a member without manifest injury to the organized militia. An
accused should not ordinarily be tried by a court-martial convened by a member
of a different component of the organized militia except when the above
circumstances exist. However, failure to comply with this policy does not
affect an otherwise valid referral.
(iii) Nothing in this subdivision prohibits
detailing to a court-martial military judge who is a member of a component of
the organized militia different from that of the accused or the convening
authority, or both.
(iv) In all
cases, review after that by the officer with authority to convene a general
court-martial for the command which held the trial, where that review is
required by the code, must be carried out by the component of the organized
militia of which the accused is a member.
(6) Types of courts-martial.
(i) General courts-martial. Subject to
paragraph (5) of this subdivision, general courts-martial may try any person
subject to the code for any offense made punishable by the code. Upon a finding
of guilty of an offense made punishable by the code, general courts-martial may
adjudge any punishment authorized under ML, 130.18.
(ii) Special courts-martial. Subject to
paragraph (5) of this subdivision, special courts-martial may try any person
subject to the code except commissioned officers (see title 32, United States
Code, section 328) title 32, United States Code, section 328) for any offense
made punishable by the code. Upon a finding of guilty, special courts-martial
may adjudge any punishable authorized under ML, 130.19. A bad conduct discharge
cannot be adjudged unless a complete record of the proceedings and testimony
before the court has been made.
(iii) Summary courts-martial (see N.Y.R.C.M.
1301[c] and [d] [1]).
(7) Concurrent jurisdiction of other military
tribunals. The provisions of the code and this Chapter conferring jurisdiction
upon courts-martial do not deprive military commissions, provost courts, or
other military tribunals of concurrent jurisdiction with respect to offenders
or offenses that by statute or by the law of war may be tried by military
commissions, provost courts, or other military tribunals (see ML,
130.12).
(b) Persons
subject to the jurisdiction of courts-martial.
(1) In general. Courts-martial may try any
person when authorized to do so under the code (see ML, 130.2).
(2) Attachment of jurisdiction over the
person.
(i) In general. Court-martial
jurisdiction attaches over a person when action with a view to trial of that
person is taken. Once court-martial jurisdiction attaches, such jurisdiction
shall continue for all purposes of trial, sentence and punishment,
notwithstanding the expiration of that person's term of service or other period
in which that person was subject to the code or trial by
court-martial.
(ii) Procedure.
Actions by which court-martial jurisdiction attaches include: apprehension;
imposition of restraint, such as restriction, arrest, or confinement and
referral of charges.
(c) Jurisdiction over the offense. To the
extent permitted by the United States or New York State Constitutions,
courts-martial may try any offense under the code.
Notes
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