W. Va. Code R. § 141-49-3

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 141-49-3 - Nonjudicial Punishment

3.1. Authority. -- Any commander having authority pursuant to Section 15, USCMJ, may, for minor offenses without the intervention of a court-martial, impose and execute disciplinary punishments as set forth in the WVMCM and Appendix I to this regulation.

3.2. Minor Offenses. -- Whether an offense is minor depends on several factors: the nature of the offense and the circumstances surrounding its commission; the offender's age, rank, duty assignment, record and experience; and the maximum possible sentence imposed for the offense if tried by general court-martial. The decision whether an offense is "minor" is a matter of discretion for the commander imposing nonjudicial punishment. But, nonjudicial punishment for an offense believed to be minor by a commander is not a bar to a trial by court-martial for the same offense. However, the accused may show at trial that nonjudicial punishment was imposed, and if the accused does so, this fact must be considered in determining an appropriate sentence. Violations of or failures to lawfully obey orders may be minor offenses if the prohibited conduct itself is of a minor nature although prohibited by a general order or regulation.

3.3. Nonpunitive Measures. -- Section 15, USCMJ and the provisions set forth herein do not apply to, include, or limit the use of those administrative or nonpunitive measures that a commander is authorized and expected to use to further the efficiency of his command or unit, such as administrative admonitions, reprimands, exhortations, disapprovals, criticism, censures, reproofs and rebukes, written or oral, not intended or imposed as punishment for a military offense. Section 15, USCMJ does not deprive a commander of the authority to make use of admonition and reprimand, not as a penalty but as a purely corrective measure, more analogous to instruction than to punishment, in the strict line of his duty to create and maintain efficiency.

3.4. Punishments.

3.4.a. Double Punishment Prohibited. -- When nonjudicial punishment has been imposed for an offense, nonjudicial punishment may not again be imposed for the same offense. 'Same offense' means an offense that was part of a single incident or course of conduct. Administrative action can be taken for the same offense and will not be considered double punishment under this regulation.

3.4.b. Increased Punishment Prohibited. -- Once nonjudicial punishment has been imposed, it may not be increased, upon appeal or otherwise unless the punishment imposed was not provided for in the Code.

3.4.c. Multiple Punishments Prohibited. -- When a commander determines that nonjudicial punishment is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be considered at that time, including all such offenses arising from a single incident or course of conduct, shall ordinarily be considered together, and not made the basis for multiple punishments.

3.4.d. Statute of Limitations. -- Nonjudicial punishment may not be imposed for offenses which were committed more than three (3) years before the date of imposition of punishment, unless such three-year limitation is waived by the accused in writing or unless the accused has filed an appeal under the WVMCM.

3.4.e. Imposition. -- Nonjudicial punishment imposed under Section 15, WVCMJ will be performed by members of the state military forces in and during their duty status, such as state active duty, inactive duty training, annual training, fulltime National Guard duty or other similar duty statuses, except as to fines and forfeitures, and reductions and reprimands, which may be imposed after conclusion of a duty status. Punishment which tends to demean the grade or position of the person should not be imposed. (See Appendix I).

3.5. Right to Demand Trial. -- An accused has the right to demand trial by court-martial only if the commander who initiated the nonjudicial punishment proceeding elects to retain the restraint of freedom punishments. Those restraints of freedom punishments are restriction and arrest in quarters. If prior to the offer of nonjudicial punishment, the commander elects not to use the restraint of freedom punishments, the accused has no right to turn down the nonjudicial punishment and demand a court-martial trial. If the commander does not include the right of the accused to turn down the nonjudicial punishment and demand a court-martial trial, on initiation, of the nonjudicial punishment action, the commander has waived the right to retain the restraint of freedom punishments.

W. Va. Code R. § 141-49-3