N.Y. Comp. Codes R. & Regs. Tit. 9 § 519.5 - Suspension, vacation, mitigation remission and setting aside
(a) Clemency.
(1) General. The imposing commander, his or
her successor-in-command, or the next superior authority may, in accordance
with the time prescribed in the MCM:
(i)
remit or mitigate any part or amount of the unexecuted portion of the
punishment imposed;
(ii) mitigate
reduction in grade, whether executed or unexecuted, to fine, detention or
pay;
(iii) at any time, suspend
probationally any part or amount of the unexecuted portion of the punishment
imposed;
(iv) suspend probationally
a reduction in grade or fine, whether or not executed. An uncollected fine of
pay shall be considered unexecuted.
(2) Meaning of successor-in-command. As used
in paragraph 134, MCM, a successor-in-command is the officer who has authority
to impose the same kind and amount of punishment of a member concerned that was
initially imposed or was the result of a modification and who:
(i) commands the unit to which the punished
member is presently assigned; or
(ii) is the commander succeeding to the
command occupied by the imposing commander, provided the member still is of
that command.
(3)
Recording of action. Any action of suspension, mitigation, remission or setting
aside, taken by an authority will be recorded according to notes 9 and 10, DMNA
form 1057 (Appendix L-2[A16]) or DMNA form 1059 (Record of Supplementary Action
Under Article 15) exhibit 3.
(b) Suspension. Ordinarily, punishment is
suspended to grant a probational period during which a member may show that he
or she deserves a remission of the remaining suspended punishment. An executed
punishment of reduction or fine may be suspended only within a period of four
months after the date imposed. Suspension of punishment may not be for a period
longer than six months from the suspension date. Further misconduct by the
member, within the period of suspension, may be grounds for vacation of the
suspended portion of the punishment.
(c) Vacation.
(1) A commander may vacate any suspended
punishment, provided the punishment is of the type and amount he or she could
impose. There is no appeal from a decision to vacate a suspension. The
following will be recorded according to notes 8 and 9 on DMNA form 1057
(Appendix L-2[A16]):
(i) action vacation a
suspension, to include the basis for vacation;
(ii) whether or not the member appeared and
was provided an opportunity to respond.
(2) Unless the vacation is prior to the
expiration of the stated period of suspension, the suspended punishment is
automatically remitted without further action. The death, discharge, or
separation from service of the member punished prior to the expiration of the
suspension automatically remits the suspended punishment.
(3) A specific act of misconduct resulting in
vacation of a suspended punishment may also be the basis for the imposition of
another section 130.15 proceeding. If the suspended punishment is a reduction
or fine, the member should, unless impracticable, be given an opportunity to
appear before the officer authorized to vacate the suspension to rebut the
information upon which the proposed vacation is based. The member may be given
the opportunity to appear in any case.
(4) In cases involving punishments other than
reduction and fine, the member will be informed of the basis of the proposed
vacation and should be given an opportunity to respond, either orally or in
writing. Failure to provide notification and an opportunity to appear or rebut
the information may result in the record of punishment being inadmissible in a
subsequent court-martial, but will not, by itself, render a vacation action
void.
(d) Mitigation.
(1) General.
(i) Mitigation is a reduction in either the
quantity or quality of punishment, e.g., a restriction for 14 days is reduced
to five days.
(ii) A fine may be
mitigated to a lesser amount.
(2) Appropriateness. Mitigation is
appropriate when:
(i) the recipient has, by
his or her subsequent good conduct, merited a reduction in the severity of
punishment;
(ii) the punishment
imposed was disproportionate to the offense of the offender.
(3) Limitation on mitigation.
(i) With the exception of reduction in grade,
the power to mitigate exists only with respect to a punishment or portion
thereof which is unexecuted. A reduction in grade may be mitigated to a fine
even though it has been executed.
(ii) Although a suspended punishment may be
mitigated to a punishment of a lesser quantity or quality (which is also
suspended for a period not greater than the remainder of the period for which
the punishment mitigated was suspended), it may not, unless the suspension is
vacated, be mitigated to an unsuspended punishment. (See paragraph [f][3] of
this section for the time period within which reduction ordinarily may be
mitigated, if appropriate, to a fine).
(e) Remission. This is an action whereby any
portion of the unexecuted punishment is cancelled. Remission is appropriate
under the same circumstances as mitigation. An unsuspended reduction is
executed upon imposition and thus cannot be remitted, but may be mitigated or
set aside. The death, discharge, or separation from the service of a member
punished remits any unexecuted punishment. A member punished under section
130.15 will not be held beyond his or her expiration of term of service (ETS)
to complete any unexecuted punishment.
(f) Setting aside and restoration.
(1) This is an action whereby the punishment
or any part or amount, whether executed or unexecuted, is set aside and any
rights, privileges or property affected by the portion of the punishment set
aside are restored. The basis for this action is a determination that, under
all the circumstances of the case, the punishment has resulted in a clear
injustice. Clear injustice means that there exists evidence usually newly
discovered, clearly exculpating the member. Normally the member's unsupported
sworn statement will not constitute clearly exculpating evidence. The fact that
the member's performance of service has been exemplary subsequent to the
punishment does not constitute a "clear injustice".
(2) In cases where administrative error
results in incorrect entries on DMNA form 1057, the appropriate remedy is
generally an administrative correction of the form and not a setting aside of
the punishment.
(3) The power to
set aside an executed punishment and to mitigate a reduction in grade to a
fine, absent unusual circumstances, will be exercised only within four months
after the punishment has been executed. When a commander sets aside any portion
of the punishment, he or she will record the basis for this action according to
notes 8 and 9, DMNA form 1057 (Appendix L-2[A16]) or DMNA form 1059 (Appendix
L-2[A18]).
Notes
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