W. Va. Code R. agency 141, tit. 141, ser. 141-49, att. 1

Current through Register Vol. XLI, No. 40, October 4, 2024

Attachment 1 - GUIDE FOR CONDUCT OF NONJUDICIAL PUNISHMENT PROCEEDINGS

General

This guide is designed to ensure that the proceedings comply with all legal requirements. It contemplates a three-step process conducted in the presence of the member, consisting of the following:

(1) notification,

(2) hearing (that may be omitted if the member admits guilt), and

(3) imposition of punishment (if the findings result in determination of guilt).

1.Guide for Formal Proceedings.

(Note to CO: If punishment options will include restraints of freedoms, member is entitled to demand a trial by court-martial. The following formal proceedings guide assumes that restraints of freedom will be included in the punishment options).

Notification and Hearing.

a. Statements of CO.

(1) As your commander, I have disciplinary powers under Section 15 of the USCMJ. I have received a report that you violated the Uniform State Code of Military Justice, and I am considering imposing nonjudicial punishment using formal proceedings. This is not a formal trial like a court-martial. As a record of these proceedings I will use ________________ (Choose: DA Form 2627 or the appropriate AF Form 3070).

(2) I now hand you that form. Read the specific item that states the offense(s) you are reported to have committed and the items that list the rights you have in these proceedings. Under the provisions of Article 31 of the USCMJ, 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.

Note. Wait for the member to read the appropriate form. Allow him or her to retain a photocopy of the form until the proceedings are finished and you have either imposed punishment or decided not to impose it.

(3) Do you understand the offense(s) you are reported to have committed?

b. Response of Member. Yes/No. If the member does not understand the offense(s), explain the offense(s) to him/her.

c. Statement of CO. Do you understand your rights? Do you have any questions about your rights in these proceedings?

d. Response of Member. Yes/No. Note. 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: Section 15, USCMJ; Chapter 3, WVMCM; or contact your servicing Judge Advocate office. Additional information can be found in Part V of the Manual for Courts-Martial (MCM); AR 27-10, Chapter 3; or AFI51-202.

e. Statement of CO. There are some decisions you have to make:

(1) It is my intent to initiate nonjudicial punishment proceedings using the formal proceedings. You have to decide whether you want to demand trial by court-martial. If you demand a court-martial, these proceedings will stop. I then will have to decide whether to initiate court-martial proceedings against you. If you were to be tried by court-martial for the offense(s) alleged against you, you could be tried by summary court-martial, special court-martial, or general court-martial. If you were to be tried by special or general court-martial you would be able to be represented by a military lawyer appointed at no expense to you or by a civilian lawyer of your choosing at no expense to the Government.

(2) If you do not demand trial by court-martial, you must then decide whether you want to present witnesses or submit other evidence in defense, extenuation, and/or mitigation. You have the right to confront witnesses, examine the evidence and submit matters in defense, extenuation and/or mitigation. Your decision not to demand trial by court-martial will not be considered as an admission that you committed the offense(s); you can still submit evidence on your behalf.

(A) Evidence in defense is facts showing that you did not commit the stated offense(s). Even if you cannot present any evidence in defense, you can still present evidence in extenuation or mitigation.

(B) Evidence in extenuation is circumstances surrounding the offense showing that the offense was not very serious.

(C) Evidence in mitigation is facts about you showing that you are a good member and that you deserve light punishment.

(3) You can make a statement and request to have a spokesperson appear with you and speak on your behalf. I will interview any available witnesses and consider any evidence you think I should examine.

(4) 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?

f. Response of Member. Yes/No.

g. Statements of CO.

(1) If you do not demand trial by court-martial and 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 (punishment). (See Chapter 3, WVMCM).

(2) You should compare this punishment with the punishment you could receive in a court-martial. (If the member requests to be informed of the maximum court-martial sentence you may state the following: The maximum sentence you could receive in a court-martial is (sentence) for the offense(s); however, under the USCMJ no punishment will exceed ten years imprisonment or the death penalty). (See Part IV and Appendix 12 of the MCM, lists punishments for each violation of the various punitive Articles).

The CO:

(A) May inform the member that referring the charges to a summary or special court-martial would reduce the maximum sentence. For example, a summary court may not impose more than 1 month of confinement. A special court may not impose more than a year of confinement.

(B) Should not inform the member of the particular punishment you may consider imposing until all evidence has been considered.

(3) As the Record of Nonjudicial Punishment Proceedings form indicates, 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?

h. Response of Member. Yes/No. 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.

i. Statements of CO.

(1) 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 do not make a timely demand for trial or if you refuse to sign that part of the Record of Nonjudicial Punishment Proceedings form indicating your decision on these matters, I can continue with these Section 15 proceedings even without your consent. You are dismissed.

Note. At this point, the proceedings should be recessed unless the 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 you resume the proceedings. Member will be informed that failure to complete and sign the appropriate item may be treated as a voluntary withdrawal of any oral demand for trial. If the member persists in the refusal, and punishment is imposed, in addition to recording the punishment, the following entry will be made on the form "Advised of (his) (her) rights, the member (did not demand trial during the decision period) (refused to (complete) (sign) (complete and sign) this form.)"

(2) Do you demand trial by court-martial?

j. Response of Member. Yes/No. (If the answer is yes, continue with next statement.)

k. Statements of CO.

(1) I will now have you complete the appropriate block indicating your demand for a courts-martial. Because you have demanded trial by court-martial, these proceedings will stop. I now must decide whether to initiate court-martial proceedings against you. I will notify you when I have reached a decision. You are dismissed.

(If the answer is no, continue with next statement.)

(2) I will now have you complete the appropriate block indicating your choice to continue with these proceedings. An open hearing 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 hearing?

l. Response of Member. Yes/No.

m. Statement of CO. Do you wish to be accompanied by a spokesperson?

n. Response of Member. Yes/No.

o. Statement of CO. Complete the appropriate block 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?

p. Response of Member. Yes/No.

q. Statement of CO. Now compete the appropriate block indicating your decision, and sign and date the form in the space provided under that item.

Note. The CO will:

(1) 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.

(2) 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 Record of Nonjudicial Punishment Proceedings form. If you are convinced that the member committed the offense(s) beyond a reasonable doubt and deserves to be punished, proceed to impose punishment.

(3) 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.

(4) 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. Ensure 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?

Note: 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 Record of Nonjudicial Punishment Proceedings form. If you are still convinced that the member committed the offense(s) and deserves to be punished, impose punishment.

2.Imposition of punishment.

Statement of CO: I have considered all the evidence. I am convinced that you committed the offense(s). I impose the following punishments: (Announce Punishment.)

Note. After you have imposed punishment, complete items the appropriate items.

3.Appellate advice.

Main paragraphs are required to have title followed by either paragraph text or two or more subparagraphs1.

Note. The CO will hand the form to the member.

a. Statement of CO. Read the item which lists the punishment I have just imposed on you. Now read the item, 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 15 days. An appeal submitted after that time may be rejected. Even if you appeal, the punishments are effective today, unless the imposing commander sets another date. With respect to a reduction in grade, it is effective upon issuance of the appropriate order from the Adjutant General. Once you submit your appeal, it must be acted upon by (title and organization of next superior) within 5 calendar days, excluding the day of submission. Otherwise, any punishment involving deprivation of liberty (correctional custody, restriction or extra duty), at your request, will be interrupted pending the decision on the appeal. Do you understand your right to appeal?

b. Response of Member. Yes/No.

c. Statement of CO. Do you desire to appeal?

d. Response of Member. Yes/No.

Note. If the answer is yes, go to note at e(3). If the answer is no, continue with next statement.

e. Statements of CO.

(1) If you do not want to appeal, complete the appropriate block.

Note. Now give the member detailed orders as to how you want him or her to carry out the punishments.

(2) You are dismissed.

If the answer is yes, continue with next statement.

(3) Do you want to submit any additional matters to be considered in an appeal?

f. Response of Member. Yes/No. (If the answer is yes, go to note at g(2). If the answer is no, continue with next statement.)

g. Statements of CO.

(1) Complete the appropriate block. I will notify you when I learn what action has been taken on your appeal. You are dismissed.

Note. If the answer is yes, continue with next statement.

(2) If you intend to appeal and do not have the additional matters with you, this form 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 5 calendar days from the date punishment is imposed). After you complete the appropriate blocks, I will send the form 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.

1.Guide for Summarized Proceedings

Notification and Hearing

a. Statements of CO.

(1) As your commander, I have disciplinary powers under Section 15 of the USCMJ. I have received a report that you violated the Uniform State Code of Military Justice, and I am considering imposing nonjudicial punishment using summarized proceedings. This is not a formal trial like a court-martial. As a record of these proceedings I will use ________________ (Choose: DA Form 2627-1 or the appropriate AF Form 3070).

(2) I now hand you that form. Read the specific item that states the offense(s) you are reported to have committed and the items that list the rights you have in these proceedings. Under the provisions of Article 31 of the USCMJ, you are not required to make any statement or provide any information concerning the alleged offense(s). If you do, it will be used against you in these proceedings or in a trial by court-martial.

(3) Do you understand the offense(s) you are reported to have committed?

b. Response of Member. Yes/No. If the member does not understand the offense(s), explain the offense(s) to him/her.

c. Statement of CO. Do you understand your rights? Do you have any questions about your rights in these proceedings?

d. Response of Member. Yes/No. Note. 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: Section 15, USCMJ; WVMCM, Chapter 3, or contact your servicing Judge Advocate office. Additional information can be found in Part V of the Manual for Courts-Martial (MCM); AR 27-10, Chapter 3; or AFI51-202.

e. Statement of CO. There are some decisions you have to make:

(1) It is my intent to initiate nonjudicial punishment proceedings using the summarized proceedings. You have the right to confront witnesses, examine the evidence and submit matters in defense, extenuation and/or mitigation. You must decide whether you want to present witnesses or submit other evidence in defense, extenuation, and/or mitigation.

(B) Evidence in extenuation is circumstances surrounding the offense showing that the offense was not very serious.

(C) Evidence in mitigation is facts about you showing that you are a good member and that you deserve light punishment.

(2) You can make a statement and request witnesses. I will interview any available witnesses and consider any evidence you think I should examine.

(3) Finally, you must decide whether you wish to request that the proceedings be open to the public. An open hearing means that the proceeding is open to the public. If the hearing is closed, only you, I, designated members of the chain of command, and available witnesses, will be present. Do you understand the decisions you have to make?

f. Response of Member. Yes/No.

g. Statements of CO.

(1) 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 extra duties for 14 days, oral reprimand or admonition, or any combination of those punishments.

(2) In a summarized proceeding, you do not have the right to consult with counsel prior to the hearing, nor do you have the right to counsel or a spokesperson during the hearing. (Note. The notification of right to demand court-martial will be stricken from the form.)

(3) The hearing will be scheduled no sooner than twenty-four (24) hours and no later than sixty (60) days from today's date. In this case, your hearing will be scheduled for ________ (Date, time, and location). Do you have any questions?

h. Response of Member. Yes/No.

i. Statements of CO.

(1) I will now give you time to prepare your case. You are dismissed.

Note. At this point, the proceedings should be recessed until the scheduled date.

j. Statements of CO. Do you request an open hearing?

k. Response of Member. Yes/No.

l. Statement of CO. 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. Response of Member. Yes/No.

n. Statement of CO. Now compete the appropriate block indicating your decision, and sign and date the form in the space provided under that item.

Note. The CO will:

(1) 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.

(3) 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. Ensure 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?

2.Imposition of punishment.

Statement of CO: I have considered all the evidence. I am convinced that you committed the offense(s). I impose the following punishments: (Announce Punishment.)

Note. After you have imposed punishment, complete items the appropriate items.

3. Appellate advice

Main paragraphs are required to have title followed by either paragraph text or two or more subparagraphs1.

Note. The CO will hand the form to the member.

a. Statement of CO. Read the item which lists the punishment I have just imposed on you. Now read the item, 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 15 days. An appeal submitted after that time may be rejected. Even if you appeal, the punishments are 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) within 5 calendar days, excluding the day of submission. Otherwise, any punishment involving deprivation of liberty (extra duty), at your request, will be interrupted pending the decision on the appeal. Do you understand your right to appeal?

b. Response of Member. Yes/No.

c. Statement of CO. Do you desire to appeal?

d. Response of Member. Yes/No.

Note. If the answer is yes, go to note at e(3). If the answer is no, continue with next statement.

e. Statements of CO.

(1) If you do not want to appeal, complete the appropriate block.

Note. Now give the member detailed orders as to how you want him or her to carry out the punishments.

(2) You are dismissed.

If the answer is yes, continue with next statement.

(3) Do you want to submit any additional matters to be considered in an appeal?

f. Response of Member. Yes/No. (If the answer is yes, go to note at g(2). If the answer is no, continue with next statement.)

g. Statements of CO.

(1) Complete the appropriate block. I will notify you when I learn what action has been taken on your appeal. You are dismissed.

Note. If the answer is yes, continue with next statement.

W. Va. Code R. agency 141, tit. 141, ser. 141-49, att. 1