Except in the case of a person attached to or embarked in a vessel, an accused may demand a trial by court-martial in lieu of nonjudicial punishment (NJP). The key time factor in determining whether or not a person has the right to demand trial is the time of the imposition of the NJP and not the time of the commission of the offense.
Nonjudicial punishment results from an investigation into unlawful conduct and a subsequent hearing to determine whether and to what extent an accused should be punished. Generally, when a complaint is filed with the commanding officer of an accused (or if that commander receives a report of investigation from a military law enforcement source), that commander is obligated to cause an inquiry to be made to determine the truth of the matter.
If, after the preliminary inquiry, the commanding officer determines that disposition by NJP is appropriate, the commanding officer must cause the accused to be given certain advice. The commanding officer need not give the advice personally but may assign this responsibility to the legal officer or another appropriate person. The following advice must be given, however.
- Contemplated action. The accused must be informed that the commanding officer is considering the imposition of NJP for the offense(s).
- Suspected offense. The suspected offense(s) must be described to the accused and such description should include the specific article of the UCMJ which the accused is alleged to have violated.
- Government evidence. The accused should be advised of the information upon which the allegations are based or told that he may, upon request, examine all available statements and evidence.
- Right to refuse NJP. Unless the accused is attached to or embarked in a vessel (in which case he has no right to refuse NJP), he should be told of his right to demand trial by court-martial in lieu of NJP; of the maximum punishment which could be imposed at NJP; of the fact that, should he demand trial by court-martial, the charges could be referred for trial by summary, special, or general court-martial; of the fact that he could not be tried at summary court-martial over his objection; and that, at a special or general court-martial, he would have the right to be represented by counsel.
- Right to confer with independent counsel. United States v. Booker, 5 M.J. 238 (C.M.A. 1977), held that, because an accused who is not attached to or embarked in a vessel has the right to refuse NJP, he must be told of his right to confer with independent counsel regarding his decision to accept or refuse the NJP if the record of that NJP is to be admissible in evidence against him should the accused ever be subsequently tried by court-martial. A failure to properly advise an accused of his right to confer with counsel, or a failure to provide counsel, will not, however, render the imposition of NJP invalid or constitute a ground for appeal.
If the accused does not demand a trial by court-martial within a reasonable time after having been advised of his rights (usually 3 workdays unless the commander grants an extension), or if the right to demand court-martial is not applicable, the accused shall be entitled to appear personally before the commanding officer for the NJP hearing. At such hearing, the accused is entitled to:
- Be informed of his rights under Art. 31, UCMJ (Self-Incrimination)
- Be accompanied by a spokesperson provided by, or arranged for, the member, and the proceedings need not be unduly delayed to permit the presence of the spokesperson, nor is he entitled to travel or similar expenses
- Be informed of the evidence against him relating to the offense
- Be allowed to examine all evidence upon which the commanding officer will rely in deciding whether and how much NJP to impose
- Present matters in defense, extenuation, and mitigation, orally, in writing, or both
- Have witnesses present, including those adverse to the accused, upon request, if their statements will be relevant, and if they are reasonably available. A witness is reasonably available if his or her appearance will not require reimbursement by the government, will not unduly delay the proceedings, or, in the case of a military witness, will not necessitate his or her being excused from other important duties, and
- Have the proceedings open to the public unless the commanding officer determines that the proceedings should be closed for good cause. No special facility arrangements need to be made by the commander. Even if the accused does not wish the proceedings to be open to the public, the commander may open them anyway at his/her own discretion. In most cases, the commander will open them partially and have present relevant members of the command (XO, first sergeant, supervisor, etc.)
The Manual for Courts-Martial provides that, if the accused waives his right to personally appear before the commanding officer, he may choose to submit written matters for consideration by the commanding officer prior to the imposition of NJP. Should the accused make such an election, he should be informed of his right to remain silent and that any matters so submitted may be used against him in a trial by court-martial. Notwithstanding the accused's expressed desire to waive his right to personally appear at the NJP hearing, he may be ordered to attend the hearing if the officer imposing NJP desires his presence.
Normally, the officer who actually holds the NJP hearing is the commanding officer of the accused. Part V, para. 4c, MCM (1998 ed.), allows the commanding officer or officer in charge to delegate his authority to hold the hearing to another officer under extraordinary circumstances.
These circumstances are not detailed, but they must be unusual and significant rather than matters of convenience to the commander. This delegation of authority should be in writing and the reasons for it detailed. It must be emphasized that this delegation does not include the authority to impose punishment.
At such a hearing, the officer delegated to hold the hearing will receive all evidence, prepare a summarized record of matters considered, and forward the record to the officer having NJP authority. The commander's decision will then be communicated to the accused personally or in writing as soon as practicable.
The concept of a personal representative to speak on behalf of the accused at an Article 15, UCMJ, hearing has caused some confusion. The burden of obtaining such a representative is on the accused. As a practical matter, he is free to choose anyone he wants -- a lawyer or a nonlawyer, an officer or an enlisted person.
This freedom of the accused to choose a representative does not obligate the command to provide lawyer counsel, and current regulations do not create a right to lawyer counsel to the extent that such a right exists at court-martial. The accused may be represented by any lawyer who is willing and able to appear at the hearing.
While a lawyer's workload may preclude the lawyer from appearing, a blanket rule that no lawyers will be available to appear at Article 15 hearings would appear to contravene the spirit if not the letter of the law. It is likewise doubtful that one can lawfully be ordered to represent the accused. It is fair to say that the accused can have anyone who is able and willing to appear on his behalf without cost to the government.
While a command does not have to provide a personal representative, it should help the accused obtain the representative he wants. In this connection, if the accused desires a personal representative, he must be allowed a reasonable time to obtain someone.
The presence of a personal representative is not meant to create an adversarial proceeding. Rather, the commanding officer is still under an obligation to pursue the truth. In this connection, he/she controls the course of the hearing and should not allow the proceedings to deteriorate into a partisan adversarial atmosphere.
When the hearing involves controverted questions of fact pertaining to the alleged offenses, witnesses shall be called to testify if they are present on the same ship or base or are otherwise available at no expense to the government. Thus, in a larceny case, if the accused denies he took the money, the witnesses who can testify that he did take the money must be called to testify in person if they are available at no cost to the government. It should be noted, however, that no authority exists to subpoena civilian witnesses for an NJP proceeding.
Burden of Proof
The commanding officer or officer in charge must decide that the accused committed the offenses(s) by a preponderance of the evidence.
After consideration of all the factors, the commander makes his/her findings:
- a. Dismissal with or without warning. This action normally is taken if the commanding officer is not convinced by the evidence that the accused is guilty of an offense, or decides that no punishment is appropriate in light of his past record and other circumstances. Dismissal, whether with or without a warning, is not considered NJP, nor is it considered an acquittal.
- b. Referral to a court-martial, or pretrial investigation under Article 32, UCMJ.
- c. Postponement of action (pending further investigation or for other good cause, such as a pending trial by civil authorities for the same offenses)
- d. Imposition of NJP.