N.Y. Comp. Codes R. & Regs. Tit. 9 § 520.6 - Vacation of suspension
(a)
(1) Generally.
(i) Only the commander who imposed the
punishment and suspended it, his successor-in-command, or superior authority
may vacate a suspension.
(ii)
Suspension of punishment may be vacated only if the offender commits an offense
punishable under the Military Law after the date of suspension and before the
suspension has automatically terminated. The newly committed offense may, but
need not also be the subject of a separate non-judicial punishment
action.
(iii) A single offense
should be the basis for both vacation action and a new non-judicial punishment
action only when the new offense warrants substantial additional punishment.
Separate actions must be initiated in such event.
(iv) In a suitable case, the original
punishment may be continued in a suspended status and a separate action
commenced and punishment imposed for the new offense. (See section
520.2(c)(1)(iv)
of this Part.)
(v) A vacation of
suspension action must be in writing, and is commenced when the notification of
intent to vacate (recommend vacation of) the suspension of punishment is mailed
or delivered to the offender (DMNA form 1067 [Appendix L-2(A29)]).
(vi) The vacation action need not be entirely
completed during the suspension period if during the suspension period the
offender has been properly notified of the intent to vacate. Once the
suspension period has terminated, a vacation action can no longer be commenced
even though based on the alleged commission of an offense before the suspension
has terminated. However, this offense may be the basis of a new non-judicial
punishment action.
(vii) The
commencement of a vacation action automatically extends the suspension period
until the vacation action is decided.
(viii) There is no right to appeal a vacation
action; however, the offender has the right to submit matters in extenuation,
mitigation or defense.
(ix) The
vacation action will be processed in the same manner regarding legal
sufficiency review by the unit JA and forwarded to the commander, NYANG as the
original non-judicial punishment action.
(2) Notification, certificates of mailing or
personal delivery, acknowledgments of receipt of notification of vacation
action, vacation of suspension.
(i) All
procedures in administering non-judicial punishment (section
520.3(a)
of this Part) except concerning appeal, shall be followed in vacation
action.
(ii) The person authorized
to vacate the suspension or the person recommending the vacation action, as the
case may be, must include the following in the notification:
(a) the specific offenses alleged to have
been committed, the time, date and place of commission and the statute
allegedly violated; and
(b) the
date and nature of the original punishment imposed, the person imposing it and
for what offense; and
(c) the date
and portion of the punishment suspended and the termination date of the
suspension; and
(d) the intention
to vacate the suspension or to recommend same, as the case may be;
and
(e) the right of the offender
to submit any matter in extenuation, mitigation, and defense to the charges,
but that the offender need not do so, since any statement made by him may be
used as evidence against him in a further non- judicial punishment action, or
in a trial by court-martial; and
(f) the directions to acknowledge receipt of
the notification, by signing, dating and returning it within a specified period
(usually at least 10 days from the date of mailing or delivery), and to decide
whether or not to submit matters in extenuation, etc. accompanied by any such
matters; and the statement that the action may nevertheless proceed if the
offender fails to respond or submit matters within the required time.
(iii) The certificates of mailing
or delivery of the notification of vacation action are the same in this action
as in the original non-judicial punishment action.
(iv) The acknowledgment of receipt of
notification is the same as in the original non-judicial punishment
action.
(v) The suspension may not
be vacated until the earlier of the following three dates: the date specified
in the notification for a response, the date the offender has actually
responded, or the date the notification is returned unclaimed, addressee
unknown, etc. The vacation of suspension includes:
(a) the same alternative statements as used
for the imposition of punishment (see section
520.3[a][5][i]
[ a] and [b] of this Part); and
(b)
the action taken, referring to the nature and date of the punishment imposed,
and the execution date of the punishment; and
(c) if a suspended reduction is being
vacated, the new date of rank and new rank; and
(d) the direction to acknowledge receipt of
the vacation action by dating, signing and returning it (DMNA form 1068
[Appendix L-2(A30)]).
(vi) The vacation of suspension is effective
on the date of vacation. No reply from the offender is required to further
execute the punishment. The achnowledgement is further proof of the offender's
notification of the vacation.
(vii)
At any time before the suspension is vacated, the person authorized to vacate,
his successor-in-command, or superior authority may terminate the action
without vacation under circumstances in accordance with procedures specified in
section
520.4(a)
of this Part. (See note 3 to DMNA form 1068 [Appendix L-(A30)]).
(viii) In determining whether to vacate a
suspension, the commander shall adhere to the same standard of proof and
guidelines as in a non-judicial punishment action (see action 520.4[a][2] of
this Part).
Notes
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