26-1015. Commanding officer; nonjudicial punishments; appeal

A. Under rules the governor adopts and under any additional rules adopted by the adjutant general, limitations may be placed on the powers granted by this chapter with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this chapter to an accused who demands trial by court-martial and the kinds of courts-martial to which the case may be referred on a demand. Punishment may not be imposed on any member of the national guard under this chapter if the member, before the imposition of the punishment, has demanded trial by court-martial in lieu of the punishment. A member of the national guard may not demand a trial by court-martial in lieu of the punishment if the nonjudicial punishment options do not include arrest in quarters or restriction. Similar rules may be adopted with respect to the suspension of authorized punishments. If authorized by rules of the adjutant general, a commanding officer exercising general court-martial jurisdiction or an officer of general flag rank in command may delegate the officer's powers under this article to a principal assistant.

B. Subject to subsection A of this section, any commanding officer, in addition to or in lieu of admonition or reprimand, may impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

1. On officers of the commanding officer's command:

(a) Restriction to certain specified limits, with or without suspension from duty, for not more than thirty consecutive days.

(b) If imposed by the governor, the adjutant general or a general officer in command:

(i) Arrest in quarters for not more than thirty consecutive days.

(ii) Forfeiture in an amount of not more than twenty-eight drill periods.

(iii) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty consecutive days.

2. On other personnel of the commanding officer's command:

(a) Correctional custody for not more than seven consecutive days.

(b) Forfeiture in an amount of not more than seven drill periods.

(c) Reduction to the next inferior pay grade, if the grade from which the person demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction.

(d) Extra duties, including fatigue or other duties, for not more than fourteen consecutive days.

(e) Restriction to certain specified limits, with or without suspension from duty, for not more than fourteen consecutive days.

(f) If imposed by an officer of the grade of major or above:

(i) Correctional custody for not more than thirty consecutive days.

(ii) Forfeiture in an amount of not more than twenty-eight drill periods.

(iii) Reduction to the lowest or any intermediate pay grade, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades. The pay grade from which the person is demoted must be within the promotion authority of the officer imposing the reduction or any officer subordinate to the officer who imposes the reduction.

(iv) Extra duties, including fatigue or other duties, for not more than forty-five consecutive days.

(v) Restriction to certain specified limits, with or without suspension from duty, for not more than sixty consecutive days.

C. Two or more of the punishments of arrest in quarters, correctional custody, extra duties or restriction may not be combined to run consecutively in the maximum amount that may be imposed for each. If any of those punishments are combined to run consecutively, there shall be an apportionment. For the purpose of this subsection, " correctional custody" means the physical restraint of a person during duty or nonduty hours and may include extra duties, fatigue duties or hard labor. If practicable, correctional custody shall not be served in immediate association with persons awaiting trial or held in confinement pursuant to trial by court-martial.

D. An officer in charge may impose on enlisted members assigned to the unit of which the officer is in charge punishments authorized under subsection B, paragraph 2 of this section as the governor specifically prescribes by rule.

E. The officer who imposes a punishment authorized in subsection B of this section or the officer's successor in command may suspend probationally, at any time, any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection B of this section, whether or not the punishment is executed. In addition, the officer may remit or mitigate, at any time, any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and property affected. The officer may also mitigate reduction in grade to forfeiture of pay. If mitigating an arrest in quarters to restriction, a correctional custody to extra duties or restriction, or both, or extra duties to restriction, the mitigated punishment shall not be for a greater period than the punishment mitigated. If mitigating reduction in grade to forfeiture of pay, the amount of the forfeiture shall not be greater than the amount that could have been imposed initially under this article by the officer who imposed the punishment mitigated.

F. A person who is punished under this article and who considers the punishment unjust or disproportionate to the offense may appeal, through the proper channel, to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may be required in the meantime to undergo the punishment adjudged. The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection E of this section by the officer who imposed the punishment. Before acting on an appeal from a punishment of arrest in quarters for more than seven days, correctional custody for more than seven days, forfeiture of more than seven days' pay, reduction of one or more pay grades from the fourth or a higher grade, extra duties for more than fourteen days or restriction for more than fourteen days, the authority who is to act on the appeal shall refer the case to a judge advocate for consideration and advice and may so refer the case on appeal from any punishment imposed under subsection B of this section.

G. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by court-martial for a serious crime or offense growing out of the same act or omission, and not properly punishable under this section. The fact that a disciplinary punishment has been enforced may be shown by the accused at trial, and if shown shall be considered in determining the measure of punishment to be adjudged if there is a finding of guilty.

H. The adjutant general, by rule, may prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing.