N.Y. Comp. Codes R. & Regs. tit. 9 § 520.6

Current through Register Vol. 46, No. 50, December 11, 2024

Section 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).

N.Y. Comp. Codes R. & Regs. Tit. 9 § 520.6