New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Appendices
Appendix L-2
APPENDIX A1
CHARGE SHEET
____________
I. PERSONAL DATA
............
1. NAME OF ACCUSED (LAST, FIRST, MI) 2. SSN:
3. GRADE/RANK
4. PAY
GRADE
............
5. UNIT OR ORGANIZATION
6. CURRENT SERVICE
a. INITIAL DATE
b. TERM
............
7. PAY PER MONTH
a. BASIC
b. SEA/FOREIGN
c. TOTAL
............
8. NATURE OF RESTRAINT
9. DATE(S) IMPOSED OF ACCUSED
............
II. CHARGES AND SPECIFICATIONS
............
10. CHARGE: New York Military Law, Section
SPECIFICATION:
............
III. PREFERRAL
............
11
a. NAME OF ACCUSER (Last, First, MI)
b. GRADE
c. ORGANIZATION OF ACCUSER
............
d. SIGNATURE OF ACCUSER
e. DATE
............
AFFIDAVIT: Before me, the undersigned, authorized by law to administer Oaths in cases of this character, personally appeared the above-named accuser this day of , , and signed the foregoing charge(s) and specification (s) under oath that he/she is a person subject to the State Code of Military Justice and that he/she either has personal knowledge of or has investigated the matters set forth therein and that the same are true to the best of his/ her knowledge and belief.
____________
Typed Name of Officer
____________
Organization of Officer
____________
Grade
____________
Official Capacity to Administer Oath
(See R.C.M. 307(b) - must be commissioned officer)
______________
Signature
____________
DNMA Form 1050, Dec 86
____________
12. On , the accused was informed of the charges against him/her and of the name(s) of the accuser(s) known to me. (See R.C.M. 308 (a) if notification cannot be made.)
____________
Typed Name of Immediate Commander
____________
Organization of Immediate Commander
____________
Grade
____________
Signature
............
IV. RECEIPT BY SUMMARY COURT-MARTIAL CONVENING AUTHORITY
............
13. The sworn charges were received at hours, at
FOR THE COMMANDER:
____________
Typed Name of Officer
____________
Official Capacity of Officer Signing
____________
Grade
____________
Signature
............
V. REFERRAL; SERVICE OF CHARGES
............
14
a DESIGNATION OF COMMAND OF CONVENING AUTHORITY
b PLACE
c DATE
............
Referred for trial to the Summary Court-Martial convened by notation on this charge sheet 19 , subject to the following instructions: is detailed a Summary Court-Martial upon the consent of and shall sit at
____________
Typed Name of Officer
____________
Official Capacity of Officer Signing
____________
Grade
____________
Signature
............
15. On , 19 , I served a copy hereof on the above named accused.
Typed Name of Trial Counsel Grade or Rank of Trial Counsel
________
Signature
............
FOOTNOTES: 1-When an appropriate commander signs personally, inapplicable fords are stricken.
2-See R.C.M. 601(e) concerning instructions. If none, so state.
____________
APPENDIX A2
INVESTIGATING OFFICER'S REPORT
(Of Charges Under ML Sect 130.32 and R.C.M. 405,
Manual for Courts-Martial
____________
1
a. FROM:
b. GRADE:
c. ORGANIZATION
d. DATE OF REPORT
............
2
a. TO:
b. TITLE
c. ORGANIZATION
............
3
a. NAME OF
b. GRADE
c. SSN
d. ORGANIZATION DATE OF ACCUSED: CHARGES
............
(Mark an X in the appropriate box) YES NO
4. In accordance with ML Sec 130.32 and R.C.M 405, Manual for
Courts-Martial, I have investigated the charges appended hereto (Exhibit 1)
............
5. The accused was represented by counsel (if not, see 9 below)
............
6. Counsel who represented the accused was qualified under R.C.M. 405(d), 502(d)
............
7
a. NAME OF DEFENSE COUNSEL
b. GRADE
8.
a. NAME OF ASSISTANT DEFENSE COUNSEL (if any)
b. GRADE
............
c. ORGANIZATION (If appropriate) c. ORGANIZATION (If appropriate)
............
9. (To be signed by accused if accused waives counsel. If accused does not sign, Investigating Officer will explain in detail in Item 21.)
............
a. PLACE
b. DATE
............
I HAVE BEEN INFORMED OF MY RIGHT TO BE REPRESENTED IN THIS INVESTIGATION BY COUNSEL, INCLUDING MY RIGHT TO CIVILIAN OR MILITARY COUNSEL OF MY CHOICE IF REASONABLY AVAILABLE. I WAIVE MY RIGHT TO COUNSEL IN THIS INVESTIGATION.
............
c. SIGNATURE OF ACCUSED
............
10. AT THE BEGINNING OF THE INVESTIGATION I INFORMED THE ACCUSED OF:
(Mark an X in the appropriate box) YES NO
a. The Charge(s) Under Investigation
b. The Identity of the Accuser
c. The Right Against Self-Incrimination
d. The Purpose of the Investigation
e. The Right to be Present Throughout the Taking of Evidence
f. The Witnesses and Other Evidence Known to Me Which I Expect to Present
g. The Right to Cross-Examine Witnesses
h. The Right to have Available Witnesses and Evidence Presented
l. The Right to Present Anything in Defense, Extenuation or Mitigation
j. The Right to Make a Sworn or Unsworn Statement, Orally or in Writing
____________
DMNA Form 1051, Dec 86
____________
11
a. The Accused and Accused's Counsel Were Present Throughout YES NO the Presentation of Evidence (If the accused or counsel were absent during part of the presentation of evidence, complete "b" below.)
............
b. State the circumstances and describe the proceedings conducted in absence of accused or counsel
............
NOTE: If additional space is required for any item, enter the additional material in item 21 or on a separate sheet. Identify such material with the proper numerical and, if appropriate, lettered heading (Example: "7c"). Securely attach any additional sheets to the form and add a note in the appropriate item of the form: "See additional sheet".
............
12
a. THE FOLLOWING WITNESSES TESTIFIED UNDER OATH: (Check appropriate box)
NAME GRADE ORGANIZATION/ADDRESS YES NO
............
b. The Substance of the Testimony of These Witnesses has Been Reduced to Writing and is Attached.
13
a. The Following Statements, Documents, or Matters Were Considered; The Accused was Per-mitted to Examine Each.
DESCRIPTION OF ITEM LOCATION OF ORIGINAL (If not attached)
............
b. Each Item Considered, or a Copy or Recital of the Substance or Nature
Thereof, is Attached.
14. There are Grounds to Believe that the Accused was not Mentally Respon-sible for the Offense(s) or not Competent to Participate in the Defense.
15. The Defense did Request Objections to be Noted in this Report. (if Yes, specify in Item 21 below).
16. All Essential Witnesses will be Available in the Event of trial.
17. The Charges and Specifications are in Proper Form.
18. Reasonable Grounds Exist to Believe that the Accused Committed the Of-fense(s) Alleged.
19. I am not aware of any Grounds which Would Disqualify me from acting as Investigating Officer [see R.C.M. 405(d)(1)]............
20. I RECOMMEND:
a. TRIAL BY ________ SUMMARY________ SPECIAL ________GENERAL COURT-MARTIAL
b. OTHER ________ (Specify in Item 21 below)
............
21. REMARKS (Include, as necessary, explanation for any delays in the Investigation, and expla-nation for any "no" answers above.)
Examples of other matters which may be discussed here are:
1) Discussion of evidence, cred-ibility of witnesses and sufficiency of proof;
2) Recommendations to dismiss or change any specification;
3) Statement of any anticipated offenses or of any anticipated difficulties in prov-ing any specification on which trial is recommended;
4) Any other matter which should be known to the Convening Authority or subsequent reviewing authorities.
............
22
a. TYPED NAME OF INVESTIGATING OFFICER
b. GRADE
c. ORGANIZATION
d. SIGNATURE OF INVESTIGATING OFFICER
e. DATE
____________
APPENDIX A3
STATE OF NEW YORK
Division of Military and Naval Affairs
330 Old Niskayuna Road
Latham, New York 12110-2224
MARIO M. CUOMO LAWRENCE P. FLYNN
Governor Major General
Commander in Chief Chief of Staff to the Governor
Special Courts Martial DATE
Convening Order No. 1-86
Pursuant to the authority contained in Section 130.19 of the New York State Military Law a Special Courts-Martial is hereby convened. It may try such persons as may properly be brought before it and shall meet at the Headquarters, New York Army National Guard, 330 Old Niskayuna Road, Latham, New York 12110-2224 at Room 417, unless otherwise directed. The Courts-Martial will be constituted as follows:
MEMBERS
Name of Member Social Security Number Unit Trial Counsel
Name of Member Social Security Number Unit Military Judge
Name of Member Social Security Number Unit Defense Counsel
Name of Member Social Security Number Unit Member
Name of Member Social Security Number Unit Member
Name of Member Social Security Number Unit Member
Name of Member Social Security Number Unit Alternate Member
Name of Member Social Security Number Unit Alternate Member
Name of Member Social Security Number Unit Alternate Member
All cases referred to the Special Court-Martial convened by Order No. 1-86 this office dated (whatever date is on the Convening Order), in which the proceedings have not begun, will be brought to trial before the Court-Martial hereby convened.
FOR THE CHIEF OF STAFF TO THE GOVERNOR:
WILLIAM F. McINTOSH
Colonel, GS, NYARNG
The Adjutant General
APPENDIX A4
Subpoena to Testify Before Military Court
THE PEOPLE OF THE STATE OF NEW YORK
TO:
You and each of you are hereby commanded to be and appear in person before a ________of the State Military Forces at ________ in the City of ________ on the ________ day of ________, 19________at ________in the ________to testify and give evidence as a witness in a case then and there to be tried between the People of the State of New York and ________on the part of said ________and for failure to obey you will be deemed guilty of an offense against the State and may be punished by such court-martial as provided by law.
Witness my hand, this ________ day of ________, 19 ________.
____________
SIGNATURE
____________
GRADE, BRANCH & UNIT
[President of said Court
[or Summary Court Officer
INSTRUCTIONS: A subpoena may be served by any person eighteen years of age and upwards. Service is made by showing the original subpoena to the witness and delivering a copy thereof to him together with witness fees. See NYRCM 703(e).
The affidavit should state the place of service by giving house number and name or number of the street and name of city, town or village where service is made.
APPENDIX A5
SUBPOENA DUCES TECUM
THE PEOPLE OF THE STATE OF NEW YORK
TO:____________,
You and each of you are hereby commanded to be and appear in person before a (1) of the State Military Forces at (2) ________, in the City of ________, State of New York, on the ________day of ________, 19________, at ________o'clock in the ________to testify and give evidence as a witness in a case then and there to be tried between The People of the State of New York and (3) ________on the part of said (4) ________and you are required to bring with you and there produce (5) ____________
____________
____________
and for failure to obey you will be deemed guilty of an offense against the State and may be punished by such court-martial as provided by law.
WITNESS MY HAND THIS ________day of ________, 19 ________.
(6)
___________
Signature
(7)
___________
Grade, Branch and Unit
(8) (President of said Court or
( Summary Court Officer
Notes:
(1) "General Court-Martial,", "Special Court-Martial" or "Summary Court."
(2) "the Armory, 107th Infantry, 643 Park Avenue" or other exact location.
(3) Grade, name and organization of the accused.
(5) Description of books, papers or documents required.
(6) Signature of President of Court or Summary Court Officer.
(7) Grade and organization of the President or Summary Court.
(8) "President" or "Summary Court Officer." Strike out one.
Instructions: A subpoena duces tecum may be served by any person eighteen years of age and upwards. Service is made by showing the original subpoena duces tecum to the witness and delivering a copy thereof to him, together with witness fees, See N.Y.R.C.M. 703(e).
The affidavit should state the place of service by giving house number and name or number of the street and name of city, town or village where service is made.
APPENDIX A6
ATTACHMENT AGAINST WITNESS FOR FAILURE TO APPEAR
THE PEOPLE OF THE STATE OF NEW YORK
TO (1)____________Greeting:
WHEREAS, proof has been made to the satisfaction of a (2) ________duly appointed by (3)________Order No. ________, (4)________, dated ________ that a subpoena duly issued from said court was duly and personally served on (5) ________ requiring him to attend before said court at a time and place in said subpoena named, to testify and give evidence as a witness in a case then and there to be tried between The People of the State of New York and (6)________, and that said (5) ________ is a necessary and material witness at said trial and that he has failed and neglected to attend as so required.
Now, you are hereby commanded to attach said (5) ________ and bring him forthwith before the said (2) ________ at (7) ________, in the ________, State of New York to testify and give evidence as a witness in the above-named case and to answer all other matters that may be brought against him for not obeying said subpoena, and have you then and there this writ.
Given under my hand this day of , 19 .
(8)
Signature
(9)
Grade, Branch & Unit
(10) President of said Court or
Summary Court Officer
Notes:
(1) "John Doe, a marshal of the court below named," or "the sheriff of the City of New York or county of " or "any police officer, constable or marshal or other peace officer of the city, town or village of ",
(2) "General Court-Martial", "Special Court-Martial" or "Summary Court-Martial".
(3) "General" or "Special",
(4) Description of Headquarters of Convening Authority.
(5) Name of witness.
(6) Grade, name and unit of accused.
(7) Place of trial, such as the armory, 107th Infantry, 643 Park Avenue, in the City of New York.
(8) Signature of President or Summary Court Officer.
(9) His grade, branch and unit.
(10) Strike one.
APPENDIX A8
WAIVER/WITHDRAWAL OF APPELLATE RIGHTS IN GENERAL
AND SPECIAL COURTS-MARTIAL SUBJECT TO EXAMINATION
IN THE OFFICE OF THE STAFF JUDGE ADVOCATE
I have read the attached action, dated ________.
I have consulted with ________, my associate defense counsel concerning my appellate rights and I am satisfied with his/her advice.
I understand that:
1. If I do not waive or withdraw appellate review --
a. My case will be examined in the Office of the State Judge Advocate to deter-mine whether the findings and sentence are legally correct and whether the sentence is appropriate.
b. After examination in the Office of the State Judge Advocate and final action in my case, I may petition the State Judge Advocate for review under ML, Section 130.68(b). Such a petition must be filed within two years after the convening authority took action in my case, unless I can show good cause for filing later.
2. If I waive or withdraw appellate review --
a. My case will not be examined in the Office of the State Judge Advocate.
b. My case will be reviewed by a judge advocate for legal error, and I may submit in writing allegations of legal error for consideration by the judge advocate.
c. After review by the judge advocate and final action in my case, I may petition the State Judge Advocate for review under ML, Section 130.68(b). Such a pe-tition must be filed within two years after the convening authority took action in my case, unless I can show good cause for filing later.
d. A waiver or withdrawal, once filed, may not be revoked.
3. Understanding the above, I hereby waive my rights to appellate review. I make this decision freely and voluntarily. No one has made any promises that I would receive any benefits from this waiver and no one has forced me to make it.
Typed Name of Accused
Rank of Accused
Signature of Accused
Date
APPENDIX A11
FORMS OF SENTENCES
a. Announcement of sentence
See R.C.M. 1007.
In announcing the sentence, the president, or, in cases tried by military judge alone, the military judge should announce:
"(Name of accused), this court-martial sentences you ________."
The sentence should now be announced following one of the forms contained in b below, or any necessary modification or combination thereof. Each of the forms of punishment prescribed in b are separate, that is, the adjudging of one form of punishment is not contingent upon any other punishment also being adjuged. The forms in c, however, may be combined and modified so long as the punishment adjudged is not forbidden by the code and does not exceed the maximum authorized by New York State Military Law, Sections 130.18, 130.19 and 130.20(c) in the particular case being tried. In announcing a sentence consisting of combined punishments, the president or military judge may, for example, state:
"To be dishonorably discharged from the service, to be confined for one year, to forfeit all pay and allowances, and to be reduced to Private E-1;" or
"To be discharged from the service with a bad-conduct discharge, to be confined for six months, and to forfeit $35.00 pay per month for six months;" or
"To be dismissed from the service, to be confined for one year, and to forfeit all pay and allowances;" or
"To perform hard labor without confinement for one month and to forfeit $25.00 pay per month for one month."
b. Single punishment forms
[Note: The following may, in combination with the format for announcing the sentence in a above, be used as a format for a sentence worksheet, appropriately tailored for the specific case.]
1. To no punishment.
Reprimand
2. To be reprimanded.
Forfeitures, Etc.
3. To forfeit $________pay per month for ________(months) (years).
4. To forfeit all pay and allowances.
5. To pay the State of New York a fine of $ ________.
Reduction of Enlisted Personnel
6. To be reduced to ________.
Restraint and Hard Labor
7. To be restricted to the limits of ________ for (days) (months).
8. To perform hard labor without confinement for (days) (months).
9. To be confined for ________ (days) (months) (years) (the length of your natural life).
Punitive Discharge
10. To be discharged from the service with a bad-conduct discharge (Enlisted Personnel only).
11. To be dishonorably discharged from the service (Enlisted Personnel and Warrant Officers only).
12. To be dismissed from the service (Commissioned Officers only).
APPENDIX A12
SAMPLE LETTER OF TRANSMITTAL
SUBJECT: Letter of Transmittal
Commander
Division
Street Address
City, State Zip Code
1. Transmitted herewith is the Charge Sheet for Lieutenant John Doe, Social Security Number 000-00-0000, HHC, first Battalion, New York Army National Guard involving alleged violations of the New York State Code.
2. After reviewing the Report of Investigation and Charge Sheet (copies of both are enclosed) it is my recommendation that the charges be referred to General Court-Martial, so that proper punishment may be administered.
3. Lieutenant Doe has been a substandard performer in this Battalion for the past two years. For every position he has held, he has required more than average supervision.
4. Lieutenant Doe has no military awards.
5. Lieutenant Doe has made complete restitution of the property in question, and has cooperated completely with the investigating authorities in this matter.
Signature Block
Commander
Instructions for Transmittal of Charges
Letter of Transmittal
A letter of transmittal is used to forward the Charge Sheet and allied papers to a superior commander for disposition when the recommended disposition is a General or Special Court-Martial. This letter is usually a local form which contains information about the accused and the commander's specific recommendation for disposition of the charges. The commander makes a personal recommendation as to the type of court-martial, keeping in mind the punishment authorized by the type of court-martial recommended. When making a recommendation for the disposition of the charges, the commander should consider and relate in the letter of transmittal information concerning the accused's background and character of military service, and a description of any unusual circumstances in the case. The commander should also include consideration of the nature of the offenses, and whether the accused should be eliminated from the service. When making a recommendation as to disposition, the commander must keep in mind that charges against an accused should be tried by the lowest court which has power to adjudge an appropriate and adequate punishment. The commander must personally sign the letter of transmittal and attach one copy to each set of the Charge Sheet and allied papers.
APPENDIX A13
GUIDE FOR PREPARATION OF RECORD OF TRIAL BY GENERAL
COURT-MARTIAL AND BY SPECIAL COURT-MARTIAL WHEN A
VERBATIM RECORD IS NOT REQUIRED
a. Record of trial
Note. See first three notes at beginning of Appendix 14. If a verbatim record is not required [see N.Y.R.C.M. 1103(b)(2)(C) and (c)(2)], a summarized report of testimony, objections and other proceedings is permitted. In the event of an acquittal of all charges and specifications, or termination of the proceedings prior to findings by withdrawal, mistrial, or dismissal, the record may be further summarized and need only contain sufficient information to establish lawful jurisdiction over the accused and the offenses [See N.Y.R.C.M. 1103(e)].
This appendix is to be used as a general guide, the actual record may depart from it as appropriate. The manner of summarizing several items of procedure is shown in Appendix 14a.
Title
RECORD OF TRIAL
of
(Name - last, first, middle initial) (Service No.) (Grade)
(Organization and armed force) (Station or Ship)
by
____________COURT-MARTIAL
Convened by
(Title of convening authority)
(Command of convening authority)
Tried at
(Place or places of trial) on
(Date or dates of trial) 19 ________
Copies of Record
Copies of record ________copy of record furnished the accused as per at-tached certificate or receipt.
________copy(ies) of record forwarded herewith.
RECEIPT FOR COPY OF RECORD
Receipt for record I hereby acknowledge receipt of a copy of the above-described record of trial, delivered to me at ________ this ________day of ________,
19 ________ .
(Signature of accused or defense counsel)
(Name of accused or defense counsel)
Note. See N.Y.R.C.M. 1104(b)(1) concerning service of record on the accused or defense counsel.
CERTIFICATE
______
(Place)
______
I certify that on this day delivery of a copy of the above-described record of
Certificate in lieu of trial was made to the accused,
receipt
________
________
APPENDIX A15
SUGGESTED GUIDE FOR CONDUCT OF ARMY NATIONAL
GUARD NON-JUDICIAL PUNISHMENT PROCEEDINGS [FN*]
Section I. Notification
CO: As your commander, I have disciplinary powers under Section 130.15 of the State Military Code. I have received a report that you violated the State Military Code, and I am considering imposing non- judicial punishment. This is not a formal trial like a court-martial. As a record of these proceedings I will use DMNA Form 1057. I now hand you this form. Read items 1 and 2. Item 1 states the offense(s) you are reported to have committed and item 2 lists the rights you have in these proceedings. You are not required to make any statement or provide any information concerning the alleged offense(s). If you do, it may be used against you in these proceedings or in a trial by court-martial. You have the right to consult with a lawyer as stated in item 2.
1. Note for CO:
Wait for the member to read items 1 and 2 DMNA Form 1057. Allow him or her to retain a copy of the form until the proceedings are finished and you have either imposed punishment or decided not to impose it.
CO: Do you understand item 1? Do you understand the offense(s) you are reported to have committed?
M (Member): (Yes) (No)
2. Note for CO:
If the member does not understand the offense(s), explain the offense(s) to him or her.
CO: Do you understand item 2? Do you have any questions about your rights in these proceedings?
M: (Yes) (No)
3. Note for CO:
If the member does not understand his or her rights, explain them in greater detail. If the member asks a question you cannot answer, recess the proceedings. You probably can find the answer in one of the following sources:
a) Article 15, UCMJ;
b) Part V, N.Y. MCM.
If you cannot find the answer in one of these sources, contact your JA office.
CO: There are some decisions you have to make:
a. You must decide whether you want to present witnesses or submit other evidence in defense, extenuation, and/or mitigations.
(1) Evidence in defense are facts showing that you did not commit the offense(s) stated in item 1. Even if you cannot present any evidence in defense, you can still present evidence in extenuation or mitigation.
(2) Evidence in extenuation are circumstances surrounding the offense, showing that the offense was not very serious.
(3) Evidence in mitigation are facts about you, showing that you are a good soldier and that you deserve light punishment.
b. You can make a statement and request to have a spokesperson appear with you and speak on your behalf. I will interview any available witness and consider any evidence you think I should examine.
c. Finally, you must decide whether you wish to request that the proceedings be open to the public. Do you understand the decisions you have to make?
M: (Yes) (No)
CO: If after you have presented your evidence, I am convinced that you committed the offense, I could then punish you. The maximum punishment I could impose on you would be____________.
4. Note to CO:
See Table 4-1, Part V, N.Y. MCM for maximum punishments.____________
CO: As item 2 points out, you have a right to talk to an attorney before you make your decisions. A military lawyer whom you can talk to free of charge is located at ________. Would you like to talk to an attorney before you make your decisions?
M: (Yes) (No)
5. Note to CO:
If the member desires to talk to an attorney, arrange for the member to consult an attorney.
The member should be encouraged to consult the attorney promptly. Inform the member that consultation with an attorney may be by telephone. The member should be advised that he or she is to notify you if any difficulty is encountered in consulting an attorney.
CO: You now have 48 hours to think about what you should do in this case. You may advise me of your decision at any time within the 48-hour period. If you refuse to sign that part of DMNA Form 1057 indicating your decision on these matters, I can proceed to impose punishment upon you without your consent. You are dismissed.
6. Note to CO:
At this point, the proceedings should be recessed unless the service member affirmatively indicates that he or she has made a decision and does not want additional time or to consult with an attorney. In the event the member does not make a decision within the specified time or refuses to complete or sign item 3 of DMNA Form 1057, see paragraph 3-6f. When you resume the proceedings, begin at item 3, DMNA Form 1057.
CO: An open proceeding means that the proceeding is open to the public. If the hearing is closed, only you, I, designated members of the chain of command, available witnesses and a spokesperson if designated, will be present. Do you request an open proceeding?
M: (Yes) (No)
CO: Initial block 3(a) and (b) indicating your decision. Do you want to submit any evidence showing that you did not commit the offense(s), or explaining why you committed the offense(s), or any other information about yourself that you would like me to know? Do you wish to have any witnesses testify, including witnesses who would testify about your good past military record or character?
M: (Yes) (No)
CO: Now initial block 3(c) indicating your decision, and sign and date the form in the space provided under that item.
7. Note to CO:
a. Wait until the member initials the blocks and signs and dates the form. If the answers to all the questions are no, you may proceed to impose punishment.
b. If the answer regarding witnesses and evidence is yes, and the member is prepared to present his or her evidence immediately, proceed as follows. Consider the evidence presented. If the evidence persuades you that you should not punish the member, terminate the proceedings, inform the member, and destroy all copies of DMNA Form 1057. If you are convinced beyond a reasonable doubt that the member committed the offense(s) and deserves to be punished, proceed to impose punishment.
c. If the member needs additional time to gather his or her evidence, give the member a reasonable period of time to gather the evidence. Tell the member when the proceedings will resume and recess the proceedings.
d. If someone else conducted the notification proceedings, the imposing commander should conduct the remainder of the proceedings. When you resume the proceedings, consider the member's evidence. Insure that the member has the opportunity he or she deserves to present any evidence. Ask the member, "Do you have any further evidence to present?" If the evidence persuades you that you should not punish the member, terminate the proceedings, inform the member of your decision, and destroy all copies of DMNA Form 1057. If you are still convinced that the member committed the offense(s) and deserves to be punished, impose punishment.
Section II. Imposition of Punishment
CO: I have considered all the evidence. I am convinced that you committed the offense(s). I impose the following punishment: (Announce punishment).
8. Note to CO:
After you have imposed punishment, complete items 4 and 5 in DMNA Form 1057 and sign the blank below item 5.
Section III. Appellate Advice
9. Note to CO:
Hand the DMNA Form 1057 to the member.
CO: Read item 4 which lists the punishment I have just imposed on you. Now read item 5 which points out that you have a right to appeal this punishment to (title and organization of next superior authority). You can appeal, if you believe that you should not have been punished at all, or that the punishment is too severe. Any appeal should be submitted within 30 days. An appeal submitted after that time may be rejected. Even if you appeal, the punishment is effective today (unless the imposing commander sets another date). Once you submit your appeal it must be acted upon by (title and organization of next superior) expeditiously. Otherwise, any punishment involving deprivation of liberty (correctional custody, restriction or extra duty) will be interrupted pending the decision on the appeal. Do you understand your right to appeal?
M: (Yes) (No)
CO: Do you desire to appeal?
M: (Yes) (No)
10. Note to CO:
If the answer is yes, go to note 12. If the answer is no, continue as follows:
CO: If you do not want to appeal, initial block a in item c and sign the blank below item 6.
11. Note to CO:
Now give the member detailed orders as to how you want him or her to carry out the punish-ments.
CO: You are dismissed.
12. Note to CO:
If the answer is yes, continue as follows:
CO: Do you want to submit any additional matters to be considered in an appeal?
M: (Yes) (No)
13. Note to CO:
If the answer is yes, go to note 14. If the answer is no, continue as follows:
CO: Initial block b in item 6 and sign the blank below item 6. I will notify you when I learn what action has been taken on your appeal. You are dismissed.
14. Note to CO:
If the answer is yes, continue as follows:
CO: If you intend to appeal and do not have the additional matters with you, item 6 will not be completed until after you have obtained all the additional material you wish to have considered on appeal. When you have obtained this material, return with it by ________ (specify a date 30 days from the date punishment is imposed) and complete item 6, by initialing the box and signing the blank below. After you complete item 6, I will send DMNA Form 1057 and the additional matters you submit to (title and organization of next superior authority). Remember that the punishment will not be delayed (unless the imposing commander sets another date). You are dismissed.
APPENDIX A16
____________
ARMY NATIONAL GUARD RECORD OF PROCEEDINGS UNDER
SECTION 130.15 OF THE NEW YORK STATE MILITARY LAW 1/
____________
WARNING: YOU HAVE A RIGHT TO BE PRESENT AT NON-JUDICIAL PUNISHMENT PRO-
CEEDINGS UNDER MILITARY LAW SECTION 130.15. HOWEVER, IF YOU FAIL
TO APPEAR AT SUCH PROCEEDINGS, YOU WILL BE DEEMED TO HAVE
WAIVED YOUR RIGHT TO BE PRESENT AND THE PROCEEDING WILL TAKE
PLACE WITHOUT YOU.
Name and Grade SSN Unit Pay (Basic)
PART I - INITIAL ACTION
____________
1. I am considering whether you should be punished under Section 130.15 NYS Military Law for The following misconduct: 2/
2. You have several rights under this Section 130.15 procedure. First, I want you to understand that I have not yet made a decision whether or not you will be punished, and I will not impose any punishment unless I am convinced by a preponderance of the evidence that you committed the offense. You may ordinarily have a public hearing before me. You may bring a person to speak on your behalf. You may present witnesses and other evidence to show why you should not be punished at all (matters in defense) or why punishment should be very light (matters in extenuation and mitigation). I shall consider everything you present before deciding whether I will impose punishment or the type and amount of punishment I will impose. You are not required to make any statements at all, but if you do, they may be used against you in this Section 130.15 Proceeding. You now have ________hours to decide what you want to do. 3/
DATE AND TIME NAME, GRADE AND ORGANIZATION SIGNATURE
OF COMMANDER
____________
3. In the Section 130.15 proceedings:
a. An open hearing is ________is not ________requested. 4/
b. A person to speak on my behalf will ________will not________accompany me. 4/
c. Matters in defense and/or extenuation:
________are not presented. ________ are attached hereto.
________will be presented in person. 4/
(Signature and Date)
____________
4. I have considered all matters presented in defense and/or extenuation and mitigation. 5/
The following punishment(s) (is) (is not) imposed: 6/
5. You are advised of your right to appeal this punishement to ________, the next superior authority. An appeal made more than 15 days after the punishment was imposed may, in the absence of unusual circumstances, be considered as not being made within a reasonable time and be rejected. The next senior authority will decide whether an appeal is timely or not.
DATE NAME, GRADE AND ORGANIZATION SIGNATURE
OF COMMANDER
____________
PART II - APPELLATE ACTION
____________
6.
a. ________I do not appeal. b. ________I appeal and do not submit matters for consid-eration by the next superior authority. 7/
c. ________I appeal and submit the matter attached hereto for consideration by the next superior authority. 7/
DATE NAME AND GRADE OF SERVICE MEMBER SIGNATURE
____________
7. I have considered the appeal and it is my opinion that: 8/
____________
DATE NAME AND GRADE OF JUDGE ADVOCATE SIGNATURE
____________
8. After consideration of all matters presented in appeal, the appeal is:________denied. ________granted in part as follows: 4/
DATE NAME AND GRADE OF SERVICE MEMBER SIGNATURE
PART III - ATTACHMENTS AND/OR COMMENTS 9/10/
____________
____________
SPECIFICATION: In that SSG Robert I. Missing, HHC, 1st Bn, 71st Inf, New York National Guard did, without proper authority, at Fort Drum, New York, on or about 5 July 1986, absent himself from his unit at which he was required to be, to wit: Training Area 17A, located at Fort Drum, New York and did remain absent until he was apprehended on or about 6 July 1986. 3/
INSTRUCTIONS FOR USE OF ARMY NATIONAL GUARD RECORD OF
PROCEEDINGS UNDER SECTION 130.15 OF THE NEW YORK STATE MILITARY LAW
1/ See Appendix 15 DMNA Reg No. 27-2 for further guidance.
2/ Insert a concise statement of each offense in terms stating a specific violation of the State Military Code. If additional space is needed, use Part III and/or continuation sheets as de-scribed in Instruction 9/ below.
3/ Give the individual an information copy of this form. Keep all other copies together until Item 9 is completed. Under ordinary circumstances, 72 hours is a reasonable time within which to require the individual to make a decision.
4/ Place a check mark on appropriate line.
5/ If, after presentation of matters in defense and in extenuation and mitigation, the commander decides not to impose Section 130.15 proceedings, the individual should be so notified and all copies of this record destroyed.
6/ Strike out inapplicable word(s). The amount of any fine or detention of pay should be expressed in whole dollar amounts. Odd dollar amounts should be rounded off to the next lower whole dollar amount. If a punishment is suspended, the following statement should be added after it: To be automatically remitted if not vacated before (date). If punishment includes a written admonition or reprimand, it will be attached to this form and listed in Part III.
7/ If the Individual appeals, this form and attached sheets should be transmitted immediately to the next Superior authority. All witness statements, official records, and other documentary evidence considered by the commander imposing punishment also should be transmitted.
8/ Before acting on an appeal, it must be referred to a judge advocate for advice when the pun-ishment, whether or not suspended includes reduction of one or more pay grades from the fourth or a higher pay grade, or for a fine.
9/ In this space, provide a brief list of attachments. Such attachments should include all witness statements, all documentary and other evidence, all statements presented by the accused, any evidence or statements presented on appeal, and copies of any supplementary actions on the punishment that are taken. The list of supplementary actions should indicate the date of the action and provide a brief description of its nature. Supplementary actions include each action in suspension, mitigation, remission, or setting aside of punishment, or vacation of suspension.
Attachments of such supplementary actions must include the date of the action and the name, grade and position of the officer taking it. The officer taking each action, or his authorized representative, will sign below the description of the action. When a representative signs such a supplementary action, he will state his own name, grade and position in addition to those of the commander. Distribution of supplementary actions should be made as in the original action.
If additional space is needed for completion of any item(s), continuation should be accomplished on plain bond paper and listed herein as "Continuation Sheet 1", "Continuation Sheet 2", etc.
10/ Applicable portions of the following suggested formats may be used to accomplish supplemen-tary actions: (Appropriate language should be entered in Part III or, if necessary, on contin-uation sheet):
a. Suspension, Mitigation, Remission or Setting Aside Other than by Superior Acting on Appeal:
DATE:
On (date), the punishment(s) of____________
____________
____________, imposed on
(date of punishment(s) against
(name of offender)
(unit)
(was)
(Typed name, grade and position /s/____________
b. Vacation of Suspension:
DATE:
The suspension of the punishment(s) of____________
____________
____________, imposed on date of
punishment(s) against________(unit) and ________(name of offender) suspended, to be automatically remitted if not vacated before (date), (is) (are) hereby vacated. The unexecuted portion(s) of the punishment(s) will be duly executed.
(Typed name, grade and position) /s/ ____________
APPENDIX A17
ARMY NATIONAL GUARD
REQUEST TO SUPERIOR TO EXERCISE ARTICLE 15, JURISDICTION
THRU: (Include Zip Code) TO: (Include Zip Code)
(Check appropriate line and complete narrative)
1. ________ It has been reported ________ The enclosed file indicates that on or about
________
(date) at
(Place)
____________
____________
____________
____________
NOTE: Insert the name and organization of the individual concerned and the nature of the alleged misconduct in the form of a Clear and concise statement of an offense that constitutes conduct punishable under the State Code and the article of the State Code violated.
2. I recommend that you exercise your authority under the provisions of Article 15, in the disposition of this case.
3. Enclosures: (List)
Date Name, Grade and Organization Signature of Commander
____________
APPENDIX A18
____________
ARMY NATIONAL GUARD RECORD OF SUPPLEMENTARY ACTION
UNDER 130.15 MILITARY LAW OF THE STATE OF NEW YORK
For use of this form, see AR 27-10
The proponent is MNJA.
Name and Grade SSN Unit
____________
Type of Supplementary Action (other than by superior authority acting on appeal) (Put a check mark on the appropriate line)
________SUSPENSION ________ MITIGATION
(Complete item 1 below) (Complete item 2 below)
________ REMISSION ________ SETTING ASIDE
(Complete item 3 below) (Complete item 4 below)
________VACATION OF SUSPENSION
(Complete item 5 below)
____________
1. SUSPENSION
The punishment(s) of ____________
____________
imposed on the above service member on date of punishment
(is)
(are) suspended and will automatically be remitted if not vacated before
________
date.
____________
2. MITIGATION
The punishment(s) of____________
____________
imposed on the above service member on date of punishment
(is)
(are) mitigated to____________
____________
3. REMISSION
The punishment(s) of____________
____________
imposed on the above service member on date of punishment
(is)
(are) remitted.
____________
4. SETTING ASIDE
The punishment(s) of____________
____________
imposed on the above service member on date of punishment
(is)
(are) set aside on the basis that____________
____________
____________
____________
All rights, privileges and property affected are hereby restored.
____________
5. VACATION OF SUSPENSION
a. The suspension of the punishment(s) of____________
____________
imposed on the above service member on date of punishment
(is)
(are) hereby vacated. The unexecuted portion(s) of the punishment(s) will be duly executed.
b. Vacation is based on the following offense(s): ____________
____________
____________
____________
c. The member (was) (was not) given an opportunity to rebut.
d. The member (was) (was not) present at the vacation proceeding
____________
AUTHENTICATION (Place check mark on appropriate line)
____________
________ By my order ________The officer who imposed the punishment
________ The Successor-in-Command to the Imposing Commander
________ As Superior Authority
Date Name, Grade and Organization Signature
of Commander
____________
APPENDIX A19
STATE OF NEW YORK )
) ss.:
COUNTY OF )
, being duly sworn deposes and says that deponent is over the age of eighteen years and is not a party in this proceeding. Deponent served a true copy of ________in the following manner stated herein, and said person being the proper and authorized person to be served in this proceeding, (The name of said person, complete address, time and date of service is as follows on line (A).
Line (A)
* 1. by delivering to and leaving with personally ________, known to the deponent to be the same person mentioned and described in the above proceeding as the person to be served.
2. by delivering to and leaving with personally ____________
on the________M. at the premises mentioned above in line (A), such person knowing the person to be served and associated with him, and after conversing with him, deponent believes him to be a person of suitable age and discretion, and by mailing a copy of the proceeding herein to said authorized person to the address and at the time stated above in line (A) which is his last known address, enclosed in a postpaid sealed wrapper in an official depository of the United States Postal Service.
3. by affixing a true copy of he same to the door of the actual place of business, dwelling place or usual place of abode stated in line (A) above and by mailing a copy of the proceeding herein to said person to the address and on the date and time stated on line (A) above.
Service was made in the manner stated in this paragraph because deponent was unable, with due diligence to find the proper or authorized person to be served or a person of suitable age and discretion at actual place of business, dwelling place or usual place of abode stated in line (A) above, having called there at the following times and dates:
Deponent further states that he describes the person actually served as follows:
SEX SKIN COLOR HAIR COLOR AGE (APPROX)
________Male ________Black ________ Light ________
________Female ________White ________Med.
________ ________Dark
WEIGHT (APPROX) ________pounds
Other identifying features:
(Print Name Below Signature)
Sworn to before me this
________day of________, 19________.
________
Notary Public, State of New York
My Commission expires:
*Three means of service listed -- complete applicable paragraph.
APPENDIX A20
PROCEDURAL RIGHTS OF THE ACCUSED SUMMARY COURTS-MARTIAL
You have been accused of a violation of the New York Military Law or other lawful order or regulation duly issued by the State of New York, and you are to be tried by summary court-martial.
You have the absolute right to object to trial by summary court-martial. If you object the appropriate authority will decide how to dispose of the case. The charges may be referred to a special or general court-martial, or they may be dismissed, or the offense charged may be disposed of by non-judicial punishment or administrative measures.
You are not entitled to military defense counsel in this summary court-martial, however, you may obtain your own private counsel to represent you at your own expense.
Except when military exigencies require otherwise, the summary court-martial will grant you an opportunity to consult with military defense counsel before the trial for advice concerning your rights and options, and the consequences of your waiving any rights.
You are entitled to receive a copy of the charge sheet specifying the violations you have been charged with prior to the opening of trial or arraignment.
If, after trial, you are found guilty of any charges, you may submit written matters to the convening authority after sentence is adjudged.
There is no right of appeal from the decision of a summary court-martial, and you are not entitled to military counsel to pursue an appeal.
The record of your summary court-martial, and the findings and actions taken thereupon will be reviewed by a judge advocate for legal sufficiency to ensure that all proceedings have been properly conducted.
I HAVE RECEIVED AND READ A COPY OF MY RIGHTS IN A SUMMARY COURT-MARTIAL.
DATED:
____________
APPENDIX A22
LETTER OF INSTRUCTIONS
UNEXCUSED ABSENCES
(Type on Unit letterhead)
(file symbol) (date)
SUBJECT: Letter of Instructions - Unexcused Absence
(Member's name and address)
1. Attendance records of this unit show that you were. . .
(1) .
2. Under AR 135-91, you are required to attend all scheduled unit training assemblies and annual training periods. In addition, you are required to participate in a satisfactory manner with regard to proper military appearance and performance of assigned duties.
3. Unless the absences indicated in paragraph 1 are excused, you will have accrued (number) unexcused absences within a one-year period. The one-year period begins on the date you incur your first unexcused absence.
4. Absences from training assemblies may be excused only for reasons of sickness, injury, emergency or other circumstances beyond your control. If your absence was for one of these reasons, you should furnish this unit an appropriate affidavit or certification by a doctor, medical officer, or other person(s) having specific knowledge of the emergency or circumstances, requesting that it be excused. Your absence cannot be excused unless your request, and affidavit or certificate, are received within 15 days of the date you receive this letter.
5. You will be notified in writing within 10 days after receipt of your request as to whether the absence has been excused.
6. If you have family responsibilities that are causing a hardship or if your civilian job is of critical importance to the national or community health, safety, or interest, you should contact me so that I can advise and assist you in the proper procedures to resolve these problems.
7. If you do not have a legitimate reason for failing to report for duty you may be subject to non-judicial punishment under New York State Military Law Section 130.15 or a court-martial pursuant to Article 7 of the New York State Military Law wherein you may lose privileges, be fined money, reduced in grade, or be confined to jail.
8. As you are aware, if you accumulate nine unexcused absences within a one-year period, you can be declared an unsatisfactory participant. If this action is taken, you may be transferred to the Individual Ready Reserve (IRR) for the balance of your obligation.
9. I hope that as a result of this letter you will take immediate steps to improve your attendance.
10. The next scheduled training assembly for this unit is (time and date).
(signature and signature block of unit commander)
________
(1) Insert one of the following:
. . . absent from the scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on (periods and dates).
. . . charged with unexcused absence on (periods and dates) because of (insert improper military appearance or unsatisfactory performance of assigned duties).
(1) .
. . . Receipt of the original hereof is acknowledged.
Have the member sign and date the unit's file copies below this statement when the letter is delivered.
APPENDIX A23
TABLE OF INFORMATION REGARDING ABSENCES
TYPE OF ABSENCE
Excused Absence*
REASON(S) FOR ABSENCE
a. Sickness
b. Injury
c. Circumstances beyond member's control
WHO MAY EXCUSE ABSENCE
Unit commander or, in his or her absence, the acting unit commander.
BASIS FOR EXCUSE/EXCEPTION
Personal knowledge of unit commander/acting unit commander, or valid documentation, that member's absence was caused by, or will be caused by reason of a, b or c above.
DOCUMENTATION REQUIRED
Valid certificate of doctor or medical officer.**
Affidavits from other persons having personal knowledge of the emergency or circumstance.**
TYPE OF ABSENCE
Unexcused Absence***
REASON(S) FOR ABSENCE
Any reason other than those shown for excused absence.
WHO MAY GRANT EXCEPTION TO UNEXCUSED ABSENCE
The Chief of Staff to the Governor.
BASIS FOR EXCUSE/EXCEPTION
1. Clearly demonstrated exemplary performance of duty and potential for continued outstanding service. Individual's prior record of attendance at scheduled training assemblies is a primary factor for consideration.
2. Exception will not be approved unless there are extenuating circumstances directly bearing on the failure to attend scheduled training.
DOCUMENTATION REQUIRED
None, unless in the opinion of the unit commander/acting unit commander, an exception is warranted. In such cases, the documentation will be as required by the Chief of Staff to the Governor.
________
Notes:
*Excused absences are not chargeable as unsatisfactory participation.
**Unit commanders/acting unit commanders need not require such documentation when the sickness, injury or circumstance(s) are known by or apparent to them.
*** Unexcused absences are chargeable as unsatisfactory participation, unless an exception is granted and the absence is made up by equivalent training (AR 135-91, para. 4-10d).
APPENDIX A24
WARRANT FOR APPREHENSION
TO: Sheriff, County of , Greeting
Whereas, the undersigned has convened a Special Court-Martial by Special Order No.
, NYARNG dated , charges having been preferred against , residing at , as set forth on the attached charge sheet (DMNA Form 1050). Now, therefore I command you to apprehend the above named and deliver him into the custody of the military forces of the State at in accordance with the State Code of Military Justice and regulations issued thereunder, for which this shall be his warrant; and I further command you to make return to me of the action under this warrant within two days from the day hereof.
Given under my hand at , New York this ________day of
________, 19 ________.
Signature of Convening Authority
Grade, Branch and Unit of
Convening Authority
APPENDIX A25
____________
AIR NATIONAL GUARD
NOTIFICATION OF INTENT TO Use 81/2 x 11 bond sheets DATE
IMPOSE/RECOMMEND NON- if additional space is
JUDICIAL PUNISHMENT required and identify by TIME
(See Note 1) item number on reverse (See Note 2)
____________
TO: (Name, Grade, SSAN, Unit, HOR) FROM: (Name, Grade, Title, Unit)
____________
1. Preliminary investigation has disclosed that:
____________
________
In violation of the New York State Military Law, Section(s)
________ (See Note 4).
____________
2. I intend to punish you/recommend to the Commander, , that he punish you (see Note 5) under Section 130.15 of the Military Law for the above offense(s), unless you give me satisfactory written evidence that you did not commit the offense(s) or give me satisfactory explanation which shows that you should not be punished.
____________
3. You should realize that this is a serious matter. Although non-judicial punishment will not give you a record of a court conviction, it may remain in your military records. It may affect your future chances for favorable training opportunities, assignments, promotions and so forth. You have the right to submit any matters in extenuation, mitigation or defense.
____________
4. You do not have to give any information about the offense(s) described above. If you do, it may be used for or against you either in this action or in a trial by court-martial.
____________
5. I will consider any matters in extenuation, mitigation, or defense you submit in deciding whether (you committed the offense(s), whether to impose punishment, and if so, what type of punishment)/whether to recommend the imposition of punishment to the Commander. If I do recommend punishment be imposed, I will forward to the Commander any written material you submit. However, you are not entitled to make a further separate presentation to that Commander. (See Note 6).
____________
____________
6. You must acknowledge receipt of this notification and reply to this notification by indorsement. Fill in the indorsement on the back of this sheet, attach any documents which you may desire to be considered, and return the indorsements, the documents, and this written notification to me no later than ________. If you do not reply or submit matters for my consideration within the required time, this action may nevertheless proceed.
____________
____________
7. Additional Information (if any): (See Note 7)
____________
Typed name, grade & title of person intending to impose/recommend ________Atch punishment. (See Note 8)
Commander (See Note 3)
____________________
Signature
____________
INDORSEMENT No. 1 to NOTIFICATION OF INTENT TO IMPOSE/ DATE:
RECOMMEND NON-JUDICIAL PUNISHMENT
DATED________ (by individual concerned)
____________
TO: (Title, organization of person sending FROM: (Name,
Notification grade & Orgn.)
____________
1. I received this Notification on ________.
____________
2. I understand that I may submit matters in extenuation, mitigation, or defense, including evidence that I did not commit the offense(s), information which may provide a reason for not imposing or recommending punishment, and which will help to decide what my punishment should be, if any (place check mark on applicable line).
____________
________ I do not desire to submit written matters in extenuation,
mitigation or defense.
________ I have attached my written matters.
________ My written matters in extenuation, mitigation or defense are as follows, (attach additional sheets if necessary)
____________
3. I understand that I will not have another separate opportunity to submit matters in extenuation, mitigation or defense before a decision is made of whether or not punishment will be imposed.
____________
Type or Print Name, Grade &
SSAN of Individual concerned. ________ Atch
____________
(1) .
____________
INSTRUCTIONS FOR IMPOSITION/RECOMMENDATION OF
NON-JUDICIAL PUNISHMENT
NOTE 1. Strike "Impose" or "Recommend" as applicable.
NOTE 2. State military time Notification is signed.
NOTE 3. The person sending the Notification is the one who is authorized to impose the punishment or who recommends the imposition of punishment. This same person will sign the Notification at the bottom.
NOTE 4. If the space provided in Item 1 is insufficient for all offenses being considered, insert the following in that item: "You committed the offenses listed in At-tachment 1", and state them in full in a "List of Offenses", as Attachment 1 to the Notification.
NOTE 5. Strike "to impose punishment" or "to recommend imposition of punishment" as applicable.
NOTE 6. If authorized to impose punishment, strike all language after the slash. If recommending punishment, strike parenthetical language before the slash.
NOTE 7. Use additional pages, as necessary.
NOTE 8. Strike "impose" or "recommend" as applicable.
INSTRUCTIONS FOR PUNISHMENT AND
RIGHT TO APPEAL
1. This indorsement follows the first indorsement to the original notification and all indorsements follow the proper sequence. It will be indorsement No. 2 in most cases. It will not be used when an offender validly demands trial by court-martial since the nonjudicial punishment action ceases at that time.
2. The punishment imposed and any remedial action taken at this time should be in item 1. If an unsuspended reduction is imposed, a paragraph in substantially the following format should be added:
"You are hereby reduced to the permanent grade of (Sergeant) (E-4) in the NYANG and as a Reserve of the USAF. Your new date of rank as (Sergeant E-4) is ________."
3. Item 2 is optional. Strike if not used, and strike inapplicable language.
4. If the offender has failed to reply to the Notification of Intent to Impose/Recommend Nonjudicial Punishment, punishment may be imposed in the following format as appropriate for item 3:
"In taking this action, I note that you failed to respond to the Notification of Intent to Impose/Recommend Nonjudicial Punishment by (date) , as you were required to do (or, you responded but you did not submit any matters in extenuation, mitigation or defense within the required time)."
5. If the action is being terminated without the imposition of punishment because of insufficient evidence, the indorsement should be in substantially the following format as applicable and Form 2 will not be used:
"1. After considering all the evidence submitted in this action, I do not find sufficient evidence to believe you committed a punishable offense(s).
2. This action is hereby terminated and all references to the commission of the alleged offense(s) and the commencement of this action are hereby ordered to be expunged from your records, and all rights, privileges and property of which you have been deprived or which have been affected by the proceedings to date are hereby restored.
3. You are directed to acknowledge receipt of this indorsement."
6. When the action is terminated before nonjudicial punishment is imposed because the commander wishes to proceed with a court-martial the indorsement will be in substantially the following format and Form 2 will not be used:
"1. After considering all the evidence submitted in this action and the circumstances surrounding the commission of the alleged offense(s), I am terminating this action without imposing nonjudicial punishment, and will instead, proceed by court-martial.
2. You will be notified in the near future when the court-martial proceedings are commenced.
3. You are directed to acknowledge receipt of this indorsement."
7. This Item is optional with the commander. If not used, strike item 6.
8. Use these indorsements for commander to Wing or Group commander, Wing or Group Commander to unit JA and/or to Commander, NYANG, and Unit JA to HQ NYANG/SJA. Add additional sheets in this format if needed.
APPENDIX A27
APPENDIX 28
AIR NATIONAL GUARD
INSTRUCTIONS FOR ACTION
ON APPEAL FROM
NON-JUDICIAL PUNISHMENT
1. Strike inapplicable language in this form.
2. Item 2 should include one of the two below stated paragraphs.
"2. I have considered the written matters you submitted in support of your appeal (The appellate authority may state how such matters have or have not affected the appeal, including punishment, type and severity and any remedial action)"; or
"2. In deciding your appeal, I note your failure to submit matters in support of your appeal, within the required time."
3. The following language, as applicable, may be used in item 3:
"3. I find your punishment to be neither unjust nor disproportionate to the offense(s); therefore your appeal is denied;" or
"3. Your appeal is granted. Your punishment is set aside and all rights, privileges, and property of which you have been deprived by virture of the punishment are hereby restored;" (See Note 4 below), or
"3. The following action is taken on your appeal: ________" The appellate authority may take whatever remedial action he deems appropriate and which is authorized under this regulation in paragraph 6, and may also sustain the finding of commission of the offense notwithstanding the remedial action taken, if sustaining such finding is consistent therewith. If such remedial action is taken, the appeal is granted to that extent. NYANG/SJA Form 5 should be used as a guide for the language appropriate to the remedial action taken.
4. If the action on appeal suspends, mitigates, remits or sets aside a reduction, add the following:
"The reduction imposed on ________is (suspended) (mitigated) (remitted) (set aside). Your date of rank as (grade) is ________" See paragraph 8 of the Regulation, and if the action on appeal suspends the reduction, add the appropriate language here using NYANG/SJA Form 5 and item 1 of NYANG/SJA Form 2 as a guide. If the reduction is mitigated, include here the other form of punishment to which it is mitigated. Note, only previously suspended reductions or other unexecuted punishments or portions thereof may be remitted. The appellate authority may also add an explanation of the effects of the remedial action taken, as he wishes.
5. Following the above action will come successive indorsements necessary to transmit the record to the offender. The appropriate commander will take any necessary action required by granting of the offender's appeal.
APPENDIX 29
AIR NATIONAL GUARD
INSTRUCTIONS REGARDING
NOTIFICATION OF INTENT TO VACATE
(RECOMMEND VACATION OF) SUSPENDED
NON-JUDICIAL PUNISHMENT
1. Complete with the same kind of information required for the Notification of Intent to Impose/Recommend Non-Judicial Punishment but with the new offenses.
2. Strike as applicable and include organization if the person making the notification did not suspend the punishment.
3. Strike as applicable throughout this Form.
4. Strike Item 3 on the Indorsement if the person sending the Notification is authorized to vacate the suspension.
APPENDIX 30
AIR NATIONAL GUARD
INSTRUCTIONS FOR VACATION OF
SUSPENSION INDORSEMENT
TO NOTIFICATION OF INTENT TO VACATE
1. Strike as applicable.
2. If action taken results in execution of a reduction which was previously Suspended, a paragraph in substantially the following form should be added:
"Your new date of rank as (Airman, E-2) ________ will be ________."
3. If no vacation will occur, item 2 should read substantially as follows, as applicable
"2. After considering all the evidence submitted in this action, I do not find sufficient evidence to warrant a vacation of your suspended punishment. Your suspension termination date remains ( ________). (However, because I find you committed the offense(s) alleged, I am extending your Suspension termination date until ________."
This later alternative may only be used and the suspension period extended, day for day, for each AWOL alleged.
4. Use these additional indorsements as necessary.
APPENDIX 31
AIR NATIONAL GUARD
INSTRUCTIONS FOR USE OF EXTENSION OF
SUSPENSION PERIOD OF NON-JUDICIAL
PUNISHMENT
1. This action will only be used, if during the time punishment is suspended in one nonjudicial punishment action, the offender is AWOL, and the Commander suspending the punishment does not desire to bring a vacation action and no vacation action has otherwise commenced on the recommendation of another person for the(se) alleged AWOL(s). Also, if, no vacation is commenced, but a new nonjudicial punishment is commenced for the(se) AWOL(s), any punishment imposed for such new offense(s) may not include an extension of a current suspension. This is based on the necessity for separate actions for separate offenses which also prohibits a new nonjudicial punishment action from vacating a current suspension as part of the punishment imposed in such new action, in lieu of a vacation action.
2. Use additional indorsements as necessary.
APPENDIX A32
AIR NATIONAL GUARD SUSPENSION, ETC. OF
NONJUDICIAL PUNISHMENT IMPOSED
____________
________ OF NONJUDICIAL PUNISHMENT Date:
IMPOSED ________
____________
1. On ________
(1) .
____________
2.
____________
Type Name, Grade, Title and Signature
Organization of Commander
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1. Insert "SUSPENSION", "MITIGATION", "REMISSION" OR "SETTING ASIDE" as appropriate. DMNA Form 1070 should only be used when the remedial action is taken after the date punishment is imposed, but not pursuant to an appeal. If remedial action is taken at the time punishment is imposed, the sample language here may be used on Form 1064, item 1. If the remedial action is taken pursuant to an appeal, the sample language here may be used on Form 1066.
2. Use the following paragraphs as applicable:
"I hereby remit the unexecuted (portion of the) punishment relating to effective as of date ".
"I hereby mitigate the (unexecuted) (portion of the) punishment relating to ________ until , at which time, unless the suspension is sooner vacated, it will be automatically terminated." Here, the commander may add an explanation of the effects of suspension and the consequences of vacation, if he wishes.
"I hereby set aside the (unexecuted) (portion of the) punishment relating to ________. All rights, privileges, and property of which you have been deprived by the (portion of the) punishment set aside, are hereby restored".
If the remedial action taken involves a reduction, the appropriate date of rank and grade, should be stated in the remedial action paragraph.
3. The commander who imposed the punishment, his successor-in-command or superior authority, may take the remedial action.
APPENDIX A33
____________
WARRANT FOR CONFINEMENT
IN CIVIL JAIL
AFTER TRIAL
THE PEOPLE OF THE STATE OF NEW YORK
To (1) ____________
____________Greeting:
Whereas, a (2)________was appointed by ________ Order No. ________ Headquarters ________ dated________,19________, and
Whereas, (3) ________residing at ________was duly and regularly tried by said court-martial for violation of the State Code of Military Justice, and was found guilty and was sentenced to confinement for ________days, and the proceedings, findings and sentence of said court-martial having been duly approved by the convening authority, (4) (and by the appropriate commanding general or commanding officer) and the place of confinement having been designated as (5)________at ________
Now, therefore, I command you to take the above named (3) ________to (5)________at ________ and deliver him to the jailor thereof; and the said jailor is hereby directed and required to receive the said (3) ________ and, unless sooner discharged, to keep him closely confined in the manner required by law for the said period of ________ days in accordance with the State Code of Military Justice and regulations issued thereunder, for which this shall be his warrant; and I further command you to make return to me of your action under this warrant within ________ days from the date hereof.
Signature
Grade, Branch and Unit
(6) President of said Court or
Summary Court Officer
____________
____________
Note: -
(1) "John Doe", a marshal of the court below named," or "the Sheriff of the City of New York or county of, or any police officer, constable or marshal or other peace officer of the city, town or village of ________".
(2) "General Court-Martial," Special Court-Martial," or "Summary Court-Martial."
(3) Grade, name, organization and home address of accused.
(4) If convicted by General Court-Martial matter in parenthesis following (4) should be stricken out.
(5) Description of place of confinement such as "the Sheriff's Jail" and address thereof.
(6) Strike out one.
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APPENDIX A34
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RIGHTS WARNING PROCEDURE/WAIVER CERTIFICATE
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Authority: NYS Military Law, section 130.31
Principal Purpose: To provide commanders and law enforcement officials with means by which information may be accurately identified.
Routine Uses: Your Social Security Number is used as an additional/alternate means of identification to facilitate filing and retrieval.
Disclosure: Disclosure of your Social Security Number is voluntary.
LOCATION ; DATE TIME FILE NO.
NAME(Last-First-MI) ORGANIZATION OR ADDRESS
_________________
SOCIAL SECURITY NO. GRADE/STATUS
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SECTION A - RIGHTS WAIVER/NON-WAIVER CERTIFICATE
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RIGHTS
The investigator whose name appears below told me that he/she is with the New York National Guard and wanted to question me about the following offense (s) of which I am suspected/accused: ____________
____________
Before he/she asked me any questions about the offense(s), however, he/she made it clear to me that I have the following rights:
1. I do not have to answer any questions or say anything.
2. Anything I say or do can be used as evidence against me in a criminal trial or court-martial.
3. (For personnel subject to the State Code of Military Justice) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both.
-or-
(For civilians not subject to the State Code) I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning. However, I understand that I must make my own arrangements to obtain a lawyer and this will be at no expense to the Government. I further understand that if I cannot afford a lawyer and want one, arrangements will be made to obtain a lawyer for me in accordance with the law.
4. If I am now willing to discuss the offense(s) under investigation, with or without a lawyer present, I have a right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if I sign the waiver below.
____________
COMMENT (Continue on page four)
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WAIVER
I understand my rights as stated above. I am now willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer first and without having a lawyer present with me.
WITNESSES (if available) SIGNATURE OF INTERVIEWEE
ORGANIZATION OR ADDRESS AND PHONE SIGNATURE OF INVESTIGATOR
NAME (Type or Print) TYPED NAME OF INVESTIGATOR
ORGANIZATION OR ADDRESS AND PHONE ORGANIZATION OF INVESTIGATOR
____________
NON-WAIVER
I do not want to give up my rights:
________I want a lawyer. ________I do not want to be questioned or say anything.
____________
SIGNATURE OF INTERVIEWEE
____________
ATTACH THIS WAIVER CERTIFICATE TO ANY SWORN STATEMENT (DA FORM 2823) SUBSEQUENTLY EXECUTED BY THE SUBJECT SUSPECT/ACCUSED.
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SECTION B - RIGHTS WARNING PROCEDURE
THE WARNING
1. WARNING - Inform the suspect/accused of:
a. Your official position.
b. Nature of offense(s).
c. The fact that he/she is a suspect/accused.
2. RIGHTS - Advise the suspect/accused of his/her rights as follows:
"Before I ask you any questions, you must understand your rights."
a. "You do not have to answer my questions or say anything."
b. "Anything you say or do can be used as evidence against you in a criminal trial or trial by court-martial."
c. (For personnel subject to the State Code) "You have the right to talk privately to a lawyer before, during, and after questioning and have to have a lawyer present with you during questioning. This lawyer can be a civilian you arrange for at no expense to the Government or a military lawyer detailed for you at no expense to you, or both."
-or-
(For civilians not subject to the State Code) "You have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with you during questioning. However, you must make your own arrangements to obtain a lawyer and this will be at no expense to the Government. If you cannot afford a lawyer and want one, arrangements will be made to obtain a lawyer for you in accordance with the law."
d. "If you are now willing to discuss the offense(s) under investigation, with or without a lawyer present, you have a right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if you sign a waiver certificate.
Make certain the suspect/accused fully understands his/her rights.
____________
THE WAIVER
"Do you understand your rights'?"
(If the suspect/accused says "no", determine what is not understood, and if necessary repeat the appropriate rights advisement. If the suspect/accused says "yes", ask the following question:)
"Do you want a lawyer at this time?"
(If the suspect/accused says "yes", stop the questioning until he/she has a lawyer. If the suspect/accused says "no", ask him/her the following question:)
"At this time, are you willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer and without having a lawyer present with you?"
(If the suspect/accused says "no", stop the interview and have him/her read and sign the non-waiver section of the waiver certificate on the other side of this form. If the suspect says "yes", have him/her read and sign the waiver section of the waiver certificate on page two of this form.
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SPECIAL INSTRUCTIONS
WHEN SUSPECT/ACCUSED REFUSES TO SIGN WAIVER CERTIFICATE:
If the suspect/accused orally waives his/her rights but refuses to sign the waiver certificate, you may proceed with the questioning. Make notations on the waiver certificate to the effect that he/she has stated that he/she understands his/her rights, does not want a lawyer, wants to discuss the offense(s) under investigation, and refuses to sign the waiver certificate.
IF WAIVER CERTIFICATE CANNOT BE COMPLETED IMMEDIATELY:
In all cases the waiver certificate must be completed as soon as possible. Every effort should be made to complete the waiver certificate before any questioning begins. If the waiver certificate cannot be completed at once, as in the case of street interrogation, completion may be temporarily postponed. Notes should be kept on the circumstances.
PRIOR INCRIMINATING STATEMENTS:
(1) If the suspect/accused has made spontaneous incriminating statements before being properly advised of his/her rights, he/she should be told that such state-ments do not obligate him/her to answer further questions.
(2) If the suspect/accused was questioned as such either without being advised of his/her rights or some question exists as to the propriety of the first statement, the accused must be so advised. The office of the serving Staff Judge Advocate should be contacted for assistance in drafting the proper rights advisal.
NOTE: If (1) or (2) apply, the fact that the suspect/accused was advised accordingly should be noted in the comment section on the waiver certificate and initialed by the suspect/accused.
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COMMENT (Continued)
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[FN*] This guide is designed to insure that the proceedings comply with all legal requirements. It contemplates a three-step process, conducted in the presence of the member, consisting of (1) notification, (2) hearing (that may be omitted if the member admits guilt) and (3) imposition of punishment (if the findings result in a determination of guilt).
