Defending Those Who Defend Us®
Nonjudicial punishment under Article 15, UCMJ, is a disciplinary measure more serious than administrative reprimands but less serious than trial by court-martial. Whether to accept or refuse nonjudicial punishment is one of the most important decisions a service member can make and, depending on their decision, can have significant consequences.
Military Justice Attorneys has advised countless service members facing the decision of whether to accept Article 15 nonjudicial punishment. If you are under investigation or have been notified of nonjudicial punishment, contact one of our military defense lawyers today to learn more about your rights.
What is nonjudicial punishment?
Authorized under Article 15, UCMJ, nonjudicial punishment is a disciplinary measure more serious than administrative corrective measures (like an administrative reprimand or counseling) but less serious than trial by court-martial.
The purpose of nonjudicial punishment is to provide commanders with a prompt means of maintaining good order and discipline within their commands without the stigma and collateral consequences of a court-martial conviction.
Nonjudicial punishment is intended to be used to punish minor offenses under the UCMJ but has historically been used as a tool by commanders to handle a range of misconduct from order violations, alcohol related offenses, fraternization, to even low-level sex crimes. Nonjudicial punishment is rarely offered to resolve accusations of serious criminal misconduct.
Commanders must exercise sole and independent discretion in determining whether to offer or impose nonjudicial punishment. No superior may direct a subordinate authority to impose nonjudicial punishment in a particular case or issue any regulation, order, or guidance which suggests to subordinate authorities that certain categories of minor offenses be disposed of by nonjudicial punishment instead of by court-martial or administrative corrective measures.
What are my rights at NJP?
As the accused or suspect, you have the right to be informed of the charges you are facing at nonjudicial punishment, be informed of the maximum possible penalties, be allowed to review the evidence against you, and be provided with paperwork notifying you of your rights, among other rights.
Perhaps the most important right, however, is the right to demand trial by court-martial instead of accepting nonjudicial punishment. The Manual for Courts-Martial provides that nonjudicial punishment may not be imposed on any service member who, before the imposition of nonjudicial punishment, demanded trial by court-martial in lieu of nonjudicial punishment, except for service members attached to or embarked in a vessel.
This is a substantial right for most members of the Army, Air Force, and Marine Corps who are rarely attached to or embarked in a vessel. In most instances, service members from those branches will have the opportunity to refuse nonjudicial punishment and demand trial by court-martial. This right still applies to the United States Navy but is much more diminished given how often Sailors are either attached to ship or out to sea, rendering them unable to refuse NJP.
Unfortunately, many service members do not read or understand their rights before deciding to accept NJP/Article 15. As the accused, you have the ultimate right to seek legal counsel before making the decision to accept or refuse NJP.
What are the collateral consequences of accepting NJP?
MAJ recently received a call from a U.S. Army Captain stationed at Camp Humphreys, South Korea. He had already been offered, and accepted, nonjudicial punishment (NJP) under Article 15, UCMJ, from his commanding officer for allegations of conduct unbecoming an officer based on comments he made to a fellow officer after a night of drinking at the Officer’s Club. At the time of his call, he had five days to appeal his Article 15, and wanted to know what his options were for appealing the Article 15, and the subsequent punishment.
After we had explained to the officer that his chances of appealing his Article 15 punishment were rather low, the office indicated that he was told by the Trial Defense Services (“TDS”) attorney that it was in his best interest to accept Article 15, rather than risk a court-martial over the matter. The officer went on to say that the TDS attorney told him that he should accept Article 15, and simply plead not guilty. We indicated to the officer that this line of thinking was not necessarily wrong, but we asked whether the TDS attorney explained the other half of the story – the collateral consequences for accepting Article 15? The officer answered, “no.”
After we expressed dismay in the fact that he had received less than adequate advice from the local TDS, we walked him through the likely impact his Article 15 conviction would have on his career, and life. Let the young officer’s mistake be a lesson for anyone reading:
Should you accept or refuse NJP?
This is the million-dollar question. While every case is different—and requires consultation with an experienced attorney—below are some important considerations to think about.
There are many factors that go into the decision of whether to accept or reject NJP. These may include how much time and grade the service member has, the amount or quality of evidence, the risk of court-martial punishment, the severity of charges, whether there is more misconduct that has not been discovered by command, prior service, number of deployments, the service member’s EAS/ETS, collateral administrative consequences, whether there is mitigating or extenuating circumstances, and whether a guilty plea is required.
However, the most important question you must first ask is: can I plead guilty to something I know I did not do? Whether you accept NJP or not is, largely, going to depend on this answer.
While NJP appears to often be a “safer” option for service members—and it usually is—accepting NJP requires a service member to give up important due process rights to which they would otherwise be entitled.
For example, the accused at NJP does not have a defense attorney, there are no Military Rules of Evidence, often the accused is not provided an opportunity to put on evidence in his defense. In most of the service branches, there is also a lower standard of proof—as guilt is determined by a preponderance of the evidence—or just 51% certainty, versus a much higher standard at courts-martial that being beyond a reasonable doubt.
In contrast, in the court-martial system, an accused has the opportunity to gather the full amount of evidence through discovery, maintain his innocence, and have a professional legal voice behind them that can tell their side of the story. This gives you the opportunity to fight allegations that otherwise would be much more likely to be handed down by a commander at NJP/Article 15.
Bottom line is that, with few exceptions, the service member who accepts NJP/Article will likely be found guilty of the charged misconduct regardless of what he states as his defense. Thus, the accused who accepts NJP/Article 15, with the intent of later contesting the charges is usually a very bad strategy.
We would be honored to serve as your advocate and partner during the period of your military legal process. Please get in touch and arrange your free initial consultation.
Can I appeal nonjudicial punishment?
Yes, but it’s difficult to win an appeal. The Manual for Courts-Martial (MCM) states that a “Servicemember punished under Article 15 who considers the punishment to be unjust or disproportionate to the offense may appeal through the proper channels to the next superior authority.” Those are the two bases for appeal: that the punishment is unjust or disproportionate to the offense.
The MCM states that “Servicemember who has appealed may be required to undergo any punishment imposed while the appeal is pending, except that if action is not taken on the appeal within 5 days after the appeal was submitted, and if the Servicemember so requests, any unexecuted punishment involving restraint or extra duty shall be stayed until action on the appeal is taken.”
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Military Justice Attorneys has advised countless service members facing the decision of whether to accept Article 15 nonjudicial punishment. If you are under investigation or have been notified of nonjudicial punishment, contact one of our military defense lawyers today to learn more about your rights.