39A-5-302. Nonjudicial punishment.
| (1) |
The governor and the adjutant general of Utah may prescribe regulations governing the administration of nonjudicial punishment. The imposition and enforcement of disciplinary punishment under this section for any act or omission is not a bar to trial by a civilian court of competent jurisdiction. |
Terms Used In Utah Code 39A-5-302
- Adjutant general: means the commanding general of the Utah National Guard as appointed by the governor under Section 39A-1-201. See Utah Code 39A-1-102
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Commanding officer: means both a commissioned officer and a warrant officer designated as a commander. See Utah Code 39A-5-102
- Enlisted member: means an individual in an enlisted grade. See Utah Code 39A-5-102
- Grade: means a step or degree in a graduated scale of office or military rank, established and designated as a grade by law or regulation. See Utah Code 39A-5-102
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Military: means any or all of the armed forces of the United States. See Utah Code 39A-5-102
- Military court: means a court-martial, a court of inquiry, or a provost court. See Utah Code 39A-5-102
- Month: means a calendar month, unless otherwise expressed. See Utah Code 68-3-12.5
- National Guard: includes part-time and full-time active guard and reserve (AGR), and the Utah State Defense Force when called to active duty by the governor. See Utah Code 39A-5-102
- Officer: means a commissioned or warrant officer. See Utah Code 39A-5-102
- Probation: A sentencing alternative to imprisonment in which the court releases convicted defendants under supervision as long as certain conditions are observed.
- Property: includes both real and personal property. See Utah Code 68-3-12.5
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
| (2) |
A service member subject to this chapter may request trial by military court in lieu of nonjudicial punishment at any time prior to imposition of nonjudicial punishment.
| (a) |
Upon receipt of a timely request for trial by military court in lieu of nonjudicial punishment, the commanding officer may grant the request, or deny the request and continue with nonjudicial punishment proceedings. If the commander denies the member’s request for trial by military court, the commander may not impose limitations on personal liberty as a punishment under nonjudicial punishment proceedings. For purposes of this section, punishments imposing limitations on personal liberty include restriction to specific limited areas and extra duties. |
| (b) |
Denial of a request for trial by military court in lieu of nonjudicial punishment does not create a private right of action and is not subject to judicial review. |
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| (3) |
Any commanding officer in the National Guard may, in addition to a reprimand, impose one or more of the punishments under this section without the intervention of a military court.
| (a) |
Forfeiture of pay shall be calculated based on the monthly amount a service member would receive as base pay if on active duty. |
| (b) |
If a reduction of pay grade is imposed, forfeiture of pay is based on the grade to which the service member was reduced even if the reduction was suspended. |
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| (4) |
Punishment imposed by the governor, a general officer, or a full colonel upon officers within the general officer’s or full colonel’s command may include:
| (a) |
forfeiture of not more than one-half of one month‘s pay per month for three months; and |
| (b) |
restriction to specific limited areas, with or without suspension from duty, for not more than 60 consecutive days. |
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| (5) |
Punishment imposed by the governor, a general officer, or a full colonel upon enlisted personnel within the general officer’s or full colonel’s command may include:
| (a) |
forfeiture of not more than one-half of one month’s pay per month for two months; |
| (b) |
reduction of one or more pay grades if the imposing commander holds promotion authority over the grade from which the enlisted member was demoted, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; |
| (c) |
extra duties, including fatigue or other duties, for not more than 60 consecutive days; and |
| (d) |
restriction to specific limited areas, with or without suspension from duty, for not more than 60 consecutive days. |
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| (6) |
Punishment imposed by a commander of the grade of lieutenant colonel or major upon enlisted personnel within the lieutenant colonel’s or major’s command may include:
| (a) |
forfeiture of not more than one-half of one month’s pay per month for two months; |
| (b) |
reduction of no more than two pay grades if the imposing commander holds promotion authority over the grade from which the enlisted member was demoted; |
| (c) |
extra duties, including fatigue or other duties, for not more than 45 consecutive days; and |
| (d) |
restriction to specific limited areas, with or without suspension of duty, for not more than 45 consecutive days. |
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| (7) |
Punishment imposed by a commander of the grade of captain or lieutenant upon enlisted personnel within the captain’s or lieutenant’s command may include:
| (a) |
forfeiture of not more than one-half of one month’s pay for one month; |
| (b) |
extra duties, including fatigue or other duties, for not more than 30 consecutive days; |
| (c) |
restriction to specific limited areas, with or without suspension from duty, for not more than 30 consecutive days; and |
| (d) |
reduction of one pay grade if the imposing commander holds promotion authority over the grade from which the enlisted member was demoted. |
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| (8) |
Punishments of restriction to specific limited areas and extra duty may be combined to run concurrently, but the combination may not exceed the maximum duration imposable for extra duty. |
| (9) |
| (a) |
The imposing commander or a successor in command may, at any time, suspend by probation:
| (i) |
all or any part of the amount of the unexecuted punishment; and |
| (ii) |
a reduction in grade or a forfeiture imposed, whether or not executed. |
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| (b) |
The imposing commander or a successor in command shall set the terms of probation for any suspended punishment. |
| (c) |
The imposing commander or a successor in command may, at any time, vacate or mitigate any part or amount of the unexecuted punishment. The imposing commander or a successor in command may also set aside in whole or in part the findings, punishment, or both, whether executed or unexecuted, and restore all rights, privileges, and affected property. |
| (d) |
The imposing commander or a successor in command may mitigate reduction in grade to forfeiture of pay. Extra duties may be mitigated to restriction. |
| (e) |
A mitigated punishment may not span a greater period of time than the original punishment. |
| (f) |
When mitigating a reduction in grade to forfeiture of pay, the amount of the forfeiture may not exceed the maximum allowable forfeiture the imposing commander could have originally imposed. |
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| (10) |
| (a) |
A service member punished under this section may appeal to the next superior commander in the service member’s chain of command. The next superior commander shall conduct a de novo review of both the findings and punishment under procedures provided by regulation. The next superior commander may modify or set aside the findings or punishment, having the same options afforded the imposing commander as described in this section. In no case may the next superior commander increase the severity of the findings or the amount of punishment originally imposed. |
| (b) |
If two levels of command exist above the imposing commander, the service member, having exhausted the service member’s first level of appeal, may appeal to the next superior commander. If the matter originates with the governor, the adjutant general, or one level of command below the adjutant general, no right to a second appeal exists. The decision of the adjutant general on an appeal of nonjudicial punishment is final and is not subject to further appeal or judicial review. |
| (c) |
The decision of the governor or the adjutant general to impose nonjudicial punishment upon a service member is final and is not subject to further appeal or judicial review. |
| (d) |
The imposing commander shall promptly forward any appeal to the next superior commander. During the course of the appeal, the imposing commander may require the appellant to submit to the imposed punishment. |
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| (11) |
A superior commander shall first obtain a legal review from a judge advocate of the Utah National Guard before acting on an appeal from any of the following imposed punishments:
| (a) |
forfeiture of more than seven day’s pay; |
| (b) |
reduction of one or more pay grades; |
| (c) |
extra duties for more than 14 days; or |
| (d) |
restriction for more than 14 days. |
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| (12) |
Punishments imposed under this section, except forfeiture of pay, may not extend beyond the termination of the duty status of the punished individual. |
Renumbered and Amended by Chapter 373, 2022 General Session
