Section 28-3.1-114 - Commanding officer's nonjudicial punishment(1) Punishment may be imposed for any offense cognizable by a court-martial upon any member of the state military forces under this section. Under such regulations as the governor may prescribe, limitations may be placed on the powers granted by this section with respect to the kind and amount of punishment authorized and the levels of commanding officers and warrant officers exercising command authorized to exercise those powers. If authorized by regulations of the governor, the governor or an officer of general rank in command may delegate his or her powers under this section to a principal assistant. If subject to disciplinary punishment, the accused must be afforded the opportunity to be represented by defense counsel having the qualifications prescribed under section 28-3.1-102(10), if available. Otherwise, the accused must be afforded the opportunity to be represented by any available commissioned officer of his or her choice. The accused may also employ civilian counsel of his or her own choosing at his or her own expense. In all proceedings, the accused is allowed three duty days, or longer on written justification, to reply to the notification of intent to impose punishment under this section.(2) Subject to subsection (1) of this section, any commanding officer may, in addition to or in lieu of admonition or reprimand, impose one or more of the following disciplinary punishments without the intervention of a court-martial: (a) Upon an officer of his or her command: (I) Withholding of privileges for not more than two weeks, which need not be consecutive;(II) Restriction to certain specified limits, with or without suspension from duty, for not more than two weeks, which need not be consecutive;(III) If imposed by the governor, the adjutant general, or a commanding officer of the Army or National Guard, a fine or forfeiture of pay and allowance of not more than the amount of pay and allowance received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status;(b) Upon other military personnel of his or her command:(I) Withholding of privileges for not more than two weeks, which need not be consecutive;(II) Restriction to certain specified limits, with or without suspension from duty, for not more than two weeks, which need not be consecutive;(III) Extra duties for not more than fourteen days, which need not be consecutive, and for not more than two hours per day, holidays included;(IV) Reduction to next inferior grade if the grade from which he or she was demoted was established by the command or an equivalent or lower command; or(V) A fine of any amount up to the maximum pay and allowances received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status.(2.5) If the commanding officer is of field grade, grade of O-4 or rank of major or above, he or she may impose on an enlisted member any one or a combination of the following disciplinary punishments without the intervention of a court-martial: (a) Any of the punishments stated in subsections (2)(b)(I) to (2)(b)(III) of this section;(b) A fine of any amount up to the maximum pay and allowances received for two unit training assemblies or two days of annual training, whichever is applicable according to duty status;(c) Reduction to the lowest or any intermediate pay grade, if the current grade from which he or she is demoted is within the promotion authority of the officer imposing the reduction or an officer subordinate to the one imposing the reduction, but enlisted members in military grades above E-4 may not be reduced by more than two military grades.(3) The governor may, by regulation, place limitations on the powers granted by this section with respect to the kind and amount of punishment authorized and the levels of commanding officers and warrant officers exercising command authorized to exercise those powers.(4) An officer in charge may, for minor offenses, impose on enlisted members assigned to the unit of which he or she is in charge, the punishments authorized to be imposed by commanding officers.(4.4) Maximum allowable punishments of withholding of privileges, restrictions, and extra duties may not be combined to run consecutively.(4.7) The officer who imposes the punishment pursuant to this section, or the successor in command, may, at any time, suspend, set aside, mitigate, or remit any part or amount of the punishment and restore all rights, privileges, and property affected. The officer also may:(a) Mitigate reduction in grade to forfeiture of pay;(b) Mitigate arrest in quarters to restriction; or(c) Mitigate extra duties to restriction.(5) Except where punishment has been imposed by the governor, a person punished under this section who considers such punishment unjust or disproportionate to the offense may, through the proper channel, appeal to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may in the meantime be required to undergo the punishment adjudged. The officer who imposes the punishment, his or her successor in command, and superior authority may suspend, set aside, or remit any part or amount of the punishment and restore all rights, privileges, and property affected.(6) 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; but the fact that disciplinary punishment 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) Whenever a punishment of forfeiture of pay and allowances is imposed under this section, the forfeiture may apply to pay or allowances accruing on and after the date that punishment is imposed and to pay and allowances accrued before that date.Amended by 2021 Ch. 206, § 7, eff. only if the federal government creates the Space National Guard in the "FY 2022 National Defense Authorization Act" and take effect on the date identified in the written notice from the resource and legislative director of the department of military and veterans affairs to the revisor of statutes, as required in section 10 of this act, that the Space National Guard was created or, if the notice does not specify that date, on the date of the notice to the revisor of statutes, or on the effective date of this act (5/28/2021), whichever is later government creates the Space National Guard in the "FY 2022 National Defense Authorization Act" and takes effect on date identified in written notice from the resource and legislative director of the department of military and veterans affairs to the revisor of statutes, as required in section 10 of this act, that the Space National Guard was created or, if the notice does not specify that date, on the date of the notice to the revisor of statutes, or on the effective date of this act (5/28/2021), whichever is later (amendment did not take effect).Amended by 2018 Ch. 95, § 6, eff. 4/2/2018.L. 83: Entire article added, p. 1167, § 1, effective June 10. L. 86: (1) and (2)(b)(V) amended, p. 1014, § 2, effective July 1. L. 91: (2)(b)(V) amended, p. 1377, § 2, effective April 1. L. 2002: (1), IP(2)(a), IP(2)(b), (2)(b)(IV), (4), and (5) amended, p. 605, § 68, effective May 24. L. 2018: (1), IP(2), (2)(a), (2)(b)(I), (2)(b)(II), (2)(b)(IV), (2)(b)(V), and (3) amended and (2.5), (4.4), and (4.7) added, (SB 18-135), ch. 742, p. 742, § 6, effective April 2. L. 2021: (2)(a)(III) amended, (HB 21-1231), ch. 1078, p. 1078, § 7, effective (see editor's note).Section 15(2) of chapter 206 (HB 21-1231), Session Laws of Colorado 2021, provides that changes to subsection (2)(a)(III) take effect only if the federal government creates the Space National Guard in the "FY 2022 National Defense Authorization Act" and take effect on the date identified in the written notice from the resource and legislative director of the department of military and veterans affairs to the revisor of statutes, as required in section 28-5-703.5, that the Space National Guard was created or, if the notice does not specify that date, on the date of the notice to the revisor of statutes, or on May 28, 2021, whichever is later. As of publication date, the revisor of statutes had not received the written notice