N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.3 - Procedures
(a) General. The
authority to impose non-judicial punishment charges a commander with the
responsibility of exercising his or her authority in an absolutely fair and
judicious manner.
(b) Preliminary
inquiry. (See N.Y.R.C.M. 303)
(1) The
commander of the alleged offender must insure that the matter is promptly and
adequately investigated. The commander may either investigate the matters
himself or delegate such responsibility to a subordinate. However, in the
latter case, the investigation should provide the commander with sufficient
information to make an appropriate disposition of the incident. The
investigation should cover:
(i) whether an
offense was committed;
(ii) whether
the member was involved;
(iii) the
character and military record of the member.
(2) Usually the preliminary investigation is
informal and consists of interviews with witnesses and/or a review of police or
other informative reports. If, after the preliminary inquiry, the commander
determines that the member has committed an offense and that non-judicial
punishment is appropriate (see N.Y.R.C.M. 306, para c[3]), the commander should
take action as set forth in this section.
(c) Commander's guide for notification and
imposition. In all cases, other than summarized proceedings, commanders should
use Appendix L-2 (A15) as a guide in conducting the proceedings.
(d) Proceedings, DMNA form 1057 (Appendix L-2
[A16]).
(1) All entries will be recorded on
DMNANG form 1057 (Record of Proceedings under section 130.15 of the New York
State Military Law, Appendix L-12 [A16]). DMNA form 1057 may be reproduced
locally on 8 1/2" x 11" paper.
(2)
Notification and explanation of rights.
(i)
The imposing commander will ensure that the member is notified of the
commander's intention to dispose of the matter under the provisions of section
130.15, State Military Code. The member will be provided a copy of DMNA form
1057 (Appendix L-2 [A16]) with items (1) and (2) completed, including the date
and signature of the imposing commander. The imposing commander may authorize a
commissioned officer, warrant officer, or NCO (E-7 or above), provided such
person is senior to the member being notified, to deliver the DMNA form 1057
and inform the member of his or her rights. The NCO performing the notification
should be the unit First Sergeant. In such cases, the notifier should follow
Appendix L-2(A15), modified as required. The member should be provided with a
copy of DMNA form 1057 (Appendix L-2 [A16]) and supporting documents and
statements, for use during the proceedings. The member will return the copy to
the commander for annotation. It will be given to the member for retention when
all proceedings are completed.
(ii)
Right to remain silent. The member will be informed that:
(a) he or she is not required to make any
statement regarding the offense or offenses of which he or she is suspected;
and
(b) any statement made may be
used against him or her in the section 130.15, Military Law proceeding or in
any other proceedings, including a trial by court-martial.
(iii) Right to counsel. The member will be
informed of the right to consult with military counsel prior to the proceedings
and be informed of the location of military counsel.
(iv) Other rights. The member will be
informed of the right to:
(a) fully present
his or her case in the presence, except in rare circumstances, of the imposing
commander (see subparagraph [vi] of this paragraph);
(b) call witnesses;
(c) present evidence;
(d) request he or she be accompanied by a
spokesperson;
(e) request an open
proceeding (see clause (vi)(b) of this paragraph);
(f) examine available evidence.
(v) Decision period. The member
will be given a reasonable time to consult with counsel, including time off
from duty, if necessary, and to gather matters in defense, extenuation and/or
mitigation. Normally, 48 hours is a reasonable decision period, during periods
of annual training, FTTD, orders under Title 32, section 502(f), State Active
Duty, and other periods of extended duty. If the member is in an inactive duty
training (IDT) status, normally the member should be given until the next
regularly scheduled drill. 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.
(vi) Proceeding.
(a) In the presence of the commander. The
member will be allowed to personally present matters in defense, extenuation,
or mitigation in the presence of the imposing commander, except when, under
rare circumstances it is not feasible. When personal appearance is requested,
but is not possible, the imposing commander will appoint an officer to conduct
the proceeding and make recommendations.
(b) Open proceeding. Section 130.15, Military
Law proceedings are open. However, a member may request an open or closed
hearing. In all cases, the imposing commander will, after considering all of
the facts and circumstances, determine whether the proceeding will be open to
the public, but does not require the commander to hold the proceeding in a
location different from that in which he or she conducts normal business; i.e.,
his or her office.
(vii)
Spokesperson. The person who may accompany the member to the section 130.15
proceeding and who speaks on his or her behalf need not be a lawyer. An
offender has no right to legal counsel at the non-judicial proceeding, however,
the commander may allow such representation in the proceeding based upon his
discretion. A member may retain civilian counsel to act as his or her
spokesperson, at no cost to the government; but the commander need not grant a
delay for the appearance of any spokesperson, to include civilian counsel so
retained. No travel fees or any other unusual costs may be incurred at
government expense for the presence of the spokesperson. The spokesperson's
presence is voluntary. Because the proceedings are not adversarial in nature,
neither the member or the 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 he or she wishes to explore
or ask. Notwithstanding this paragraph, examination and cross-examination
should be permitted by the commander when reduction or fine is a permissible
penalty.
(viii) Witnesses. The
member's request for witnesses in defense, extenuation or mitigation shall be
restricted to those witnesses reasonably available as determined by the
imposing commander. To determine whether a witness is reasonably available, the
imposing commander will consider the fact that neither witness fees nor
transportation fees are authorized. Reasonably available witnesses will
ordinarily include only personnel at the unit or the installation concerned and
others whose attendance will not unnecessarily delay the proceeding.
(ix) Evidence. The imposing commander is not
bound by the formal rules of evidence before courts-martial and may consider
any matter, including unsworn statements, he or she reasonably believes to be
relevant to the offense.
(x) Action
terminating proceedings. If, after evaluation of all pertinent matters, the
imposing commander determines that non-judicial punishment is not warranted,
the member will be notified that the proceedings have been terminated and all
copies of DMNA form 1057 (Appendix L-2[A16]) will be destroyed.
(xi) Imposition of punishment. If the
imposing commander determines, beyond a reasonable doubt, that the member has
committed an offense and decides to impose punishment, ordinarily he or she
will announce the punishment to the member. The commander may, if he or she
desires to do so, explain to the member why a particular punishment was
imposed.
(xii) Right to appeal.
Appellate rights and procedures, which are available to the member will be
explained in section
519.6
of this Part.
(e) No right to demand trial. New York Army
National Guard personnel, whether on orders under Title 32, United States Code
or State active duty under the New York State Military Law may not demand trial
by court-martial in lieu of non-judicial punishment. This subdivision is not
applicable to officers and warrant officers.
Notes
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