§ 55-481 — Summarized administrative discipline for minor offenses; procedure; appeal; notice; contents

Nebraska § 55-481

• Jurisdiction: Nebraska
• Ch. 55: Militia

Text

(1) Any commanding officer, with regard to enlisted members, and any general officer, with regard to officers, may issue summarized administrative discipline for minor offenses. A minor offense shall be any offense which, under the Uniform Code of Military Justice of the United States, 10 U.S.C. chapter 47, or other military or civilian law or military custom, has a maximum penalty of confinement for one year or less.
(2) In accordance with subsection (1) of this section, any commanding officer or general officer, after consultation with a duly appointed judge advocate in the Nebraska National Guard, may impose one or more of the following disciplinary actions for minor offenses without the intervention of a court-martial:
(a) Upon officers:
(i) Restriction to certain specified limits, with or without suspension from duty, for up to seven days; or
(ii) Forfeiture of pay for up to one day; and
(b) Upon enlisted personnel:
(i) Restriction to certain specified limits, with or without suspension from duty, for not more than seven consecutive days;
(ii) Forfeiture of pay for up to one day; or
(iii) Extra duty not to exceed ten days.
(3) Consecutive summarized administrative discipline for the same offense or incident is not authorized.
(4) The officer who imposes the summarized administrative discipline as provided in subsection (2) of this section, or a successor in command, may, at any time, suspend probationally any part or amount of the unexecuted discipline imposed. In addition, the officer or successor in command may, at any time, remit or mitigate any part or amount of the unexecuted discipline imposed and may set aside in whole or in part the discipline, whether executed or unexecuted, and restore all rights, privileges, and property affected.
(5) A person disciplined under this section who considers his or her discipline unjust or disproportionate to the offense may, within twenty-four hours of the announcement of findings and through the proper channel, appeal to the next superior authority or general officer. The appeal and record of the hearing shall be promptly forwarded and decided, but the person disciplined may in the meantime be required to undergo the discipline adjudged. The superior authority or general officer may exercise the same powers with respect to the discipline imposed as may be exercised under subsection (4) of this section by the officer who imposed the discipline. No appeal may be taken beyond the Adjutant General, and if the Adjutant General proposed the discipline under this section, the person may request reconsideration by the Adjutant General. Only one appeal or request for reconsideration shall be permitted.
(6) The imposition and enforcement of summarized administrative discipline 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 summarized administrative discipline has been enforced may be shown by the accused upon trial, and when so shown shall be considered in determining the measure of punishment to be adjudged in the event of a finding of guilty.
(7) Any summarized administrative discipline authorized by this section shall be executed within one year of the imposition of the discipline during any one or more periods of military duty.
(8) The enlisted member or officer shall be given twenty-four hours written notice of the intent to impose summarized administrative discipline under this section. Such notice shall include:
(a) The offense committed;
(b) A brief, written summary of the information upon which the allegations are based and notice that the enlisted member or officer may examine the statements and evidence;
(c) The possible disciplinary actions;
(d) An explanation that the rules of evidence do not apply at the hearing and that any testimony or evidence deemed relevant may be considered;
(e) The date, time, and location of the hearing; and
(f) The enlisted member’s or officer's rights, which shall include:
(i) Twenty-four hour notice of the hearing and twenty-four hours to prepare for the hearing, which time shall run concurrently;
(ii) The right to appear personally before the officer proposing the summarized administrative discipline or the officer’s delegate if the officer proposing the discipline is unavailable. The officer proposing such discipline must render findings based upon the record prepared by the delegate;
(iii) To be advised that he or she shall not be compelled to give evidence against himself or herself;
(iv) Notice as prescribed in this subsection;
(v) Examining the evidence presented or considered by the officer proposing the discipline;
(vi) Presenting matters in defense, extenuation, and mitigation orally, in writing, or both;
(vii) Presenting witnesses that are reasonably available. A witness is not reasonably available if his or her presence would unreasonably delay the hearing, there is a cost to the government, or military duty precludes a military member’s participation in the opinion of such military member's commander;
(viii) Consultation prior to the hearing with a trial defense attorney appointed in the Nebraska National Guard, if he or she is reasonably available. A trial defense attorney is not reasonably available if his or her presence would unreasonably delay the hearing, there is a cost to the government to make him or her available, or other military duties or civilian employment precludes such trial defense attorney's participation, in the opinion of such trial defense attorney. Consultation with the trial defense attorney may be through personal contact, telephonic communication, or other electronic means available at no cost to the government;
(ix) To have an open hearing; and
(x) To waive in writing or at the hearing any or all of the enlisted member’s or officer's rights.
(9) After considering the evidence, the officer proposing the discipline shall (a) announce the findings in writing with regard to each allegation, (b) inform the enlisted member or officer of the discipline imposed, if any, and (c) advise the enlisted member or officer of his or her right to appeal.
(10) The Adjutant General may adopt and promulgate regulations or policies to implement this section.

Legislative History

Source: Laws 2016, LB754, § 10.