(a)
Rules and
limitations.
Whether to impose punishment and the nature of the
punishment are solely the decisions of the imposing commander. However,
commanders are encouraged to consult with their NCO's on the appropriate type,
duration and limits of punishment to be imposed. Additionally, as NCO's are
often in the best position to observe a member undergoing punishment and
evaluate daily performance and attitude, their views on clemency should be
given careful consideration.
(1) |
TABLE 4-1 TYPES OF
PUNISHMENT
|
MAXIMUM PUNISHMENT FOR ENLISTED
MEMBERS
|
PUNISHMENT |
IMPOSED BY COMPANY GRADE
OFFICERS
|
IMPOSED BY FIELD GRADE
OFFICERS
|
Admonition/Reprimand |
Yes |
Yes |
Withholding of privilege |
2 consecutive weeks |
2 consecutive weeks |
Restriction with or without suspension from duty |
2 consecutive weeks |
2 consecutive weeks |
Extra duties |
2 consecutive weeks not to exceed 2 hours p/day;
holidays included |
2 consecutive weeks not to exceed 2 hours p/day;
holidays included |
Reduction (E2-E7) |
E-2 through E-4, one grade but see Chapter 6 (NGR
600-200) |
E-5, E-6 and E-7, one grade but see Chapter 6 (NGR
600-200) |
Reduction (E8 and E9) |
No, see section
519.6 (NGR 600-200) |
No, see section
519.6 (NGR 600-200) |
Fine |
$150.00 |
$150.00 |
(2) |
PUNISHMENT FOR COMMISSIONED AND
WARRANT OFFICERS
|
Withholding of privileges |
2 consecutive weeks |
2 consecutive weeks |
Restrictions with or without suspension from
duty |
2 consecutive weeks |
2 consecutive weeks |
Imposed by Governor, Commanding Officer or Force of
Organized Militia or General or Flag Ranking Command
Fine of $200.00
(b)
Types of punishment.
See paragraph (a)(1) of this subdivision, table 4-1 for
maximum punishments.
(1)
Admonition is a warning, reminder or reproof given by a
commander to an offender to deter repetition of the type of misconduct which
resulted in the admonition and to advise him of the consequences that may flow
from a recurrence of that misconduct. An admonition may be oral or written and
may be included in a reprimand.
(2)
Reprimand is the act of formal censure by a commander which
reproves or rebukes the offender for his misconduct. It may be oral or written.
Reprimand or admonition may be given administratively as a nonpunitive measure
to improve efficiency. For this purpose, the procedures contained in this
regulation need not be followed. If, however, the commander elects to impose
either a reprimand or an admonition as non-judicial punishment under Military
Law, section
130.15, the punishment must be
imposed in accordance with the procedures outlined in this Part.
(3) Withholding of privileges shall only be
executed while the offender is in a duty status.
(4) Restriction to certain specified limits
shall only be executed while the offender is in a duty status, with or without
suspension from performance of duty.
(5) Extra duties:
(i) shall only be executed while the offender
is in a duty status;
(ii) the
performance of extra duties shall not exceed two hours per day, and may include
holidays;
(iii) extra duties may
include performance of any military duty except duty which:
(a) demeans the grade or position of the
offender in type of duty or manner of performance;
(b) constitutes punishment not sanctioned by
the customs of the military;
(c)
normally is intended as an honor; or
(d) uses the offender as a personal
servant.
(iv) An
inactive duty period may be extended beyond the normal four-hour period to
accommodate the performance of the extra duties (see ML
130.15[a][2][c]).
(6)
Confinement is limited to those instances authorized in Military Law, section
130.15(a)(2)(E),
and shall only be executed while the offender is in a duty status.
(7) The punishments or withholding of
privileges, restrictions to certain specified limits, extra duties and
confinement shall be executed within 60 days after the punishment is
imposed.
(8) Fine may apply to pay
or allowances as stated in Military Law, section
130.15, subdivisions (a)(1)(C),
(a)(2)(F) and (f).
(i) Fines will be
collected by the unit commander and deposited in the unit's state military fund
account.
(ii) In the case of AGR
personnel, fines will be collected by the commander and remitted to the unit
State military fund or in the case of assignment to another unit to the
assigned unit's State military fund, e.g.,
STARC.
(9) Reduction in
grade (herein meaning "pay grade").
(i) Only
the commander with the authority to promote to the grade from which demoted may
reduce a member in grade with the exception as indicated in subparagraph (iii)
of this paragraph. See paragraph (ii) of this subdivision for reduction of
offenders in grades E-8 and E-9.
(ii) An offender may be reduced only one
grade in each non-judicial punishment action.
(iii) Reduction authority pertaining to AGR
personnel is not delegated and rests with this headquarters. Reduction actions
will be implemented by completing and forwarding a copy of DMNA form 1057 to
Headquarters, NYARNG, ATTN: MNSP-AGR.
(10) Reduction in grade (herein meaning "pay
grade"). (This paragraph and paragraph (9) of this subdivision do not apply to
commissioned officers and warrant officers see paragraph [c][2] of this
section.)
(i) Promotional authority. The grade
from which reduced must be within the promotion authority of the imposing
commander or of any officer subordinate to the imposing commander. For the
purposes of this Part, the imposing commander, or any subordinate commander has
"promotion authority", if he or she has the general authority to appoint to the
grade from which reduced or to any higher grade (AR 600-200).
(ii) Lateral appointment or reduction of NCO
to Specialist and a Specialist to NCO. An NCO may not be laterally appointed to
a Specialist in the same pay grade under section
130.15 of the Military Law.
However, the NCO may be reduced to a Specialist or NCO of a lower pay grade
provided the latter grade is authorized in the member's primary military
occupational specialty (PMOS). A Specialist may not be laterally appointed to
an NCO in the same pay grade but may be reduced to a Specialist or NCO of a
lower pay grade provided the latter grade is authorized in the member's primary
MOS. For example, a Sergeant may not be appointed to a Specialist 5 but may be
reduced to a Specialist 4 or to Corporal. If reduction is included in the
punishment, the imposing commander must determine whether the lower pay grade
status of either Specialist or NCO is authorized in the member's primary MOS.
The commander will indicate upon announcement of the reduction which status
within the pay grade is intended;
e.g., "to be reduced to
Specialist 4".
(iii) Date of rank.
When a person is reduced in grade as a result of an unsuspended reduction, his
or her date of rank in the grade to which reduced is the date the punishment or
reduction was imposed. If the reduction is suspended either on or after the
time the punishment was imposed, or if set aside or mitigated to forfeiture of
pay, the date of rank in the grade held before the punishment was imposed
remains unchanged. If a suspension of the reduction is vacated the date or rank
in the grade to which reduced as a result of the action is the date the
punishment was originally imposed, regardless of the date the punishment was
suspended or vacated.
(iv)
Entitlement to pay. When a member is restored to a higher pay grade because of
suspension or when a reduction is mitigated to a fine, entitlement or pay at
the higher grade is effective on the date of suspension or mitigation. This is
true even though an earlier date of rank is assigned. If, however, a reduction
is set aside and all rights, privileges and property are restored, the member
concerned will be entitled to pay as though the reduction had never been
imposed.
(v) Void reduction. A
reduction imposed as non-judicial punishment by an imposing commander not
having authority to do so is void and must be set aside. However, there is one
exception, which clearly evidences a commander's intent to impose at least as
authorized one grade reduction. This is a reduction to a lower specialist grade
when reduction should have been to a lower NCO grade (or vice versa). In this
case, administrative action will be taken to place the offender in the proper
rank for the MOS held in the reduced pay grade.
(vi) Removal form standing promotion list.
(See AR 600-200.)
(11)
Reduction in grade of offenders in grades E-8 and E-9:
(i) Only a major commander, New York Army
National Guard, is authorized to impose a reduction, suspended or unsuspended,
in a non-judicial punishment action where the offender is in the grade of E-8
or E-9. Likewise, only a major commander, New York Army National Guard, is
authorized to vacate a suspended reduction of an offender in grade E-8 or
E-9.
(ii) All procedures previously
described in this regulation apply to any action involving the reduction of an
offender in grades E-8 or E-9 subject to the following:
(a) Any non-judicial punishment imposed on an
offender in grades E-8 or E-9, not involving reduction, shall be imposed at the
unit level by the commander authorized to impose such non-judicial punishment
on offenders in grades E-8 or E-9.
(b) If the commander authorized to
non-judicially punish (other than reduction) such offenders, "intends to impose
reduction", paragraph 1 (the notification of offense) DMNA Form 1057 (Appendix
L-2[A16]) shall state that the commander intends to recommend to the
(appropriate major commander) the imposition of non-judicial punishment".
However, this notification of offense shall not include a recommendation of the
type of severity of punishment to be imposed.
(c) After all requirements in this Part
preliminary to the actual imposition of non-judicial punishment are met, the
commander who would have otherwise been authorized to impose the punishment
shall by indorsement, forward the record to the 42nd Infantry Division,
Headquarters Troop Command, Headquarters, 27th Brigade STARC (if the action is
not commenced by the Division Commander, Commander, Headquarters Troop Command)
or Commander, 27th Brigade through the unit Judge Advocate (for preliminary
legal sufficiency review for determination of imposition of non-judicial
punishment).
(d) Where the major
commander is forwarded the record to initially determine whether or not to
impose non-judicial punishment, he takes the place of the commander at the unit
level with all his authority for non-judicial punishment action
(i.e., imposition of punishment, termination without
punishment, or termination of action and processing by
court-martial).
(iii) If
the major commander imposes a reduction (although he may impose any type of
non-judicial punishment he deems appropriate) only he, or his
successor-in-command may suspend, vacate a suspension, mitigate or remit or set
aside the reduction.
(a) Whatever remedial
action the major commander takes, once the appellate process is completed, the
record shall be maintained at the unit level, and the appropriate major
commander shall be notified of any further misconduct committed by such
offender in any suspension period.
(b) Any vacation action shall be commenced by
the unit commander recommending vacation action to the major commander and by
mailing or delivering the notification to the offender in accordance with this
regulation.
(iv) A STARC
Staff Judge Advocate, New York Army National Guard, shall review the record for
legal sufficiency in all cases of reductions in grade of offenders in grades
E-8 and E-9. All papers shall be forwarded to DMNA, ATTN: MNJA, 330 Old
Niskayuna Road, Latham, NY 12110-2224.
(c)
Limitations and types of
punishment.
(1) In addition to, or in
lieu of an admonition or reprimand, only one of the authorized punishments in
Military Law, section
130.15 may be imposed for each
non-judicial punishment action.
(2)
The punishments of confinement, extra duties, or reduction may not be imposed
non-judicially on officers or warrant officers.
(3) Punishments imposed may not be so grossly
disproportionate to the offenses committed, so as to violate fundamental
principles of fairness and justice.
(d)
Effective date and execution of
punishment.
(1) General.
The date of imposition of non-judicial punishment is the
date items 1-3, DMNA form 1057 (Appendix L-2[A16]), as appropriate, are signed
by the imposing commander. This action will normally be accomplished on the day
punishment is imposed.
(2)
Unsuspended punishments.
Unsuspended punishments of reduction and forfeiture take
effect on the date imposed. Other unsuspended punishments take effect on the
date they are imposed, unless the imposing commander prescribes otherwise. In
those cases where the execution of the punishment must legitimately be delayed
( e.g., the member is hospitalized, authorized emergency
leave) the execution of punishment should begin immediately thereafter. The
delay in execution of punishment should not exceed 30 days. Once the member has
submitted an appeal, including all pertinent attachments, such appeal normally
should be decided within 30 calendar days, excluding the submission date. If
the appeal is not decided within this period, the performance of those
punishments involving deprivation of liberty will be interrupted pending
decision on the appeal.
(3)
Vacated, suspended reduction.
Suspended reduction, later vacated is effective on the date
vacation is directed. Any commanding officer of the person to be punished may
order the punishment to be executed and in such a manner and under such
supervision as he or she may direct.