If nonjudicial punishment (NJP) is imposed, the commanding officer is required to ensure that the accused is advised of his right to appeal. A person punished under Article 15 may appeal the imposition of such punishment through proper channels to the appropriate appeal authority.
Timing of Appeals
Appeals must be submitted in writing within five calendar days of the imposition of NJP, or the right to appeal shall be waived in the absence of good cause shown. The appeal period begins to run from the date of the imposition of NJP, even though all or any part of the punishment imposed is suspended.
If it appears to the accused that good cause may exist which would make it impracticable or extremely difficult to prepare and submit the appeal within the 5 calendar day period, the accused should immediately advise the officer who imposed the punishment of the perceived problems and requests an appropriate extension of time. The officer imposing NJP shall determine whether good cause was shown and shall advise the accused whether an extension of time will be permitted.
A servicemember who has appealed may be required to undergo any restraint punishment or extra duties imposed while the appeal is pending, except that, if action is not taken on the appeal by the appeal authority within five days (not working days) after the written appeal has been submitted, and if the accused has so requested, any unexecuted punishment involving restraint or extra duties shall stay until action on the appeal is taken.
Two Grounds for Appeal
There are only two grounds for appeal: the punishment was unjust or the punishment was disproportionate to the offense committed. Unjust punishment exists when the evidence is insufficient to prove the accused committed the offense; when the statute of limitations prohibits lawful punishment; or when any other fact, including a denial of substantial rights, calls into question the validity of the punishment. Punishment is disproportionate if it is, in the judgment of the reviewer, too severe for the offense committed. An offender who believes his punishment is too severe thus appeals on the ground of disproportionate punishment, whether or not his letter artfully states the ground in precise terminology.
Note, however, that a punishment may be legal but excessive or unfair considering circumstances such as the nature of the offense; the absence of aggravating circumstances; the prior record of the offender; and any other circumstances in extenuation and mitigation. The grounds for appeal need not be stated artfully in the accused's appeal letter, and the reviewer may have to deduce the appropriate ground implied in the letter. In artful draftsmanship or improper addressees or other administrative irregularities are not grounds for refusing to forward the appeal to the reviewing authority. If any commander in the chain of addressees notes administrative mistakes, they should be corrected, if material, in that commander's endorsement which forwards the appeal. Thus, if an accused does not address his letter to all appropriate commanders in the chain of command, the commander who notes the mistake should merely readdress and forward the appeal. He should not send the appeal back to the accused for redrafting since the appeal should be forwarded promptly to the reviewing authority.
The officer who imposed the punishment should not, by endorsement, seek to "defend" against the allegations of the appeal but should, where appropriate, explain the rationalization of the evidence. For example, the officer may have chosen to believe one witness' account of the facts while disbelieving another witness' recollection of the same facts and this should be included in the endorsement. This officer may properly include any facts relevant to the case as an aid to the reviewing authority but should avoid irrelevant character assassination of the accused. Finally, any errors made in the decision to impose NJP or in the amount of punishment imposed should be corrected by this officer and the corrective action noted in the forwarding endorsement. Even though the corrective action is taken, the appeal must still be forwarded to the reviewer.
As a preliminary matter, it should be noted that NJP is not a criminal trial, but rather an administrative proceeding, primarily corrective in nature, designed to deal with minor disciplinary infractions without the stigma of a court-martial conviction. As a result, the standard of proof applicable at Article 15 hearings is "preponderance of the evidence" vice "beyond a reasonable doubt."
Procedural and Evidentiary Errors
Errors of procedure do not invalidate punishment unless the error or errors deny a substantial right or do substantial injury to such right. Thus, if an offender was not properly warned of his right to remain silent at the hearing, but made no statement, he has not suffered a substantial injury. If an offender was not informed that he had a right to refuse NJP, and he had such a right, then the error amounts to a denial of a substantial right.
Strict rules of evidence do not apply at NJP hearings. Evidentiary errors not amounting to insufficient evidence, will not normally invalidate punishment.
Part V, para. 7e, MCM (1998 ed.), requires that, before taking any action on an appeal from any punishment in excess of that which could be given by an O-3 commanding officer, the reviewing authority must refer the appeal to a lawyer for consideration and advice. The advice of the lawyer is a matter between the reviewing authority and the lawyer and does not become a part of the appeal package. Most of the services now require that all NJP appeals be reviewed by a lawyer prior to action by the reviewing authority.
Authorized Appellate Action
In acting on an appeal, or even in cases in which no appeal has been filed, the superior authority may exercise the same power with respect to the punishment imposed by the officer who imposed the punishment. Thus, the reviewing authority may:
- Approve the punishment in whole
- Mitigate, remit, or set aside the punishment to correct errors
- Mitigate, remit, or suspend (in whole or in part) the punishment for reasons of clemency
- Dismiss the case (If this is done, the reviewer must direct the restoration of all rights, privileges, and property lost by the accused by virtue of the imposition of punishment.), or
- Authorize a rehearing where there are substantial procedural errors not amounting to a finding of insufficient evidence to impose NJP.
At the rehearing, however, the punishment imposed may be no more severe than that imposed during the original proceedings, unless other offenses which occurred subsequent to the date of the original proceeding are added to the original offenses. If the accused, while not attached to or embarked in a vessel, waived his right to demand a trial by court-martial at the original proceedings, he may not assert this right as to those same offenses at the rehearing but may assert the right as to any new offenses at the rehearing.
Upon completion of action by the reviewing authority, the servicemember shall be promptly notified of the result.
Information derived from Handbook of Military Justice & Civil Law