Non-Judicial Punishment: Middle Ground Between Admin Proceedings And Courts-Martial

 This material appeared in the June 2014 issue of On Watch (Volume XXV No.2). The PDF version of the issue is available in the On Watch archive, and a stand-alone memo version is pending. 

James M. Branum on Democracy Now, June 4 2014

James M. Branum on Democracy Now, June 4 2014

by James M. Branum

In this article I will be discussing an important area of the UCMJ, Article 15 (NPJ: Non-Judicial Punishment)1. NJP is used by commanders to deal with misconduct issues that are too serious to be dealt with using administrative corrective procedures, but are minor enough to not necessarily be appropriately handled through a full court-martial prosecution.2

While it is often neglected as area of concern by many attorneys, this is a mistake. NJP is one of the most powerful disciplinary tools used by commands to punish servicemembers for “crimes” while avoiding a formal court-martial proceeding.3 As such, the practical ramifications for servicemembers facing NJP can be serious.

In this article I will review the statutory and regulatory basis for NJP and then move to a practical discussion of tactics that can be used in dealing with a possible NJP. Much of this discussion will be relevant for all branches of the military, but I will only be discussing the branch-specific regulations of the Army. If your case involves another branch of the military, it is essential that you refer to the appropriate branch-specific regulations.

An important note – different terms are used by different branches of the military to describe NJP. The Army and Air Force normally refers to it as an “Article 15,” while the Marines refer to it as being “NJP’d” or being “sent to office hours.” And the Navy and Coast Guard refer to it as “Captain’s Mast.”  Since I will be focusing my attention on the use of NJP by the Army, I will be using the terms “Article 15” and “NJP” interchangeably in this article.4

I. The Role of Attorneys and GI Rights Counselors

The interplay between the roles of defense attorneys and GI rights counselors in the context of NJP is complicated. Attorneys can give legal advice (primarily counseling servicemembers about when and if they should accept NJP), while GI rights counselors, precluded from giving legal advice, are constrained by both law and ethical commitments to offering “non-directive counseling.”

While this article is generally directed at attorneys, GI Rights Counselors should still be aware of the basics of the law of NJP and be able to provide servicemembers with a verbal list of their options in dealing with NJP. Such information could prove especially valuable, because in practice, most servicemembers will get no legal advice about their pending NJP other than a quick “Article 15 session” at the post’s military defense office. In more serious cases, a GI Rights Counselor can and should encourage a servicemember to seek individualized legal counsel from either the military defense JAG or from a qualified civilian attorney. In addition, counselors can assist servicemembers in preparing to raise issues and arguments in their NJP hearings, and are permitted to be present at hearings as “spokespersons.”

II. The Law of Non Judicial Punishment

A. UCMJ Article 15

Article 15 of the UCMJ authorizes Commanders to use the NJP process. Article 15 serves as an authorizing statute which empowers the President and the Branch secretaries to enact regulations to implement the article but by itself provides little guidance on the process. Further worth noting at the outset are the following issues:

First, with the exception of servicemembers “attached to or embarked on a vessel,” NJP cannot be imposed on a servicemember who instead demands trial by court-martial. This effectively means that NJP is theoretically a voluntary process, but is one with a significant threat attached to it. Refusing an NJP is effectively a game of bluff.

Secondly, Article 15 provides for a very limited appeal and post-hearing relief process.5

Lastly and most importantly, as further discussed below, an NJP does not raise future double-jeopardy concerns. Per Article 15: “The imposition and enforcement of disciplinary punishment under this article 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 article; but the fact that a 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.”6

B. Manual for Courts-Martial Part V

The primary governing procedure for NJP is found in Manual for Courts-Martial, Part V (MCM).7 The MCM applies to all branches of the military. Practitioners are strongly encouraged to read the MCM in its entirety, but I focus my discussion on some key points that were not discussed above in regard to Article 15.

  1. NJP cannot be given for an offense for which a servicemember has already been punished; however, a subsequent court-martial for the same offense is still allowed.8
  2. Commanders have significant discretion to decide if NJP is appropriate. Superior commanders (at least theoretically) are not supposed to interfere with the discretion of subordinate commanders in making decisions regarding NJP.9
  3. NJP is appropriate for “minor” offenses under the UCMJ.10
  4. NJPs have a two-year statute of limitations.11
  5. A servicemember must receive sufficient notice of a pending NJP action. 12
  6. A servicemember who fails to request a trial by court-martial waives his or her right to not be tried through NJP.13
  7. A servicemember has the right to examine evidence, present witnesses and speak on his or her own behalf in the NJP proceeding.
  8. A servicemember can have a “spokesperson” present in most NJPs; however, there is no explicit reference in the regulation to a right to have legal counsel present.
  9. With the exception of the section on privilege, the rules of Military Evidence do not apply to NJP. Any “relevant matter” can be considered, as long as the accused has the chance to examine the evidence against him or her.14
  10. The potential punishments that can be imposed through NJP vary widely based upon the rank of the accused and the rank of the officer who is imposing NJP.15
  11. There is a limited process for suspension, mitigation, remission and setting aside of NJP.16
  12. There is a very limited appeal process of NJP.17

C. Branch-specific regulations

My experience has been almost entirely with Army cases so I will only be discussing the branch-specific NJP regulations for the Army. Nonetheless, it is imperative that you read and understand the appropriate regulations for the service branch you are dealing with.18

AR 27-10 (Military Justice), Chapter 319 provides the Army’s regulatory framework for NJP.

Key procedural provisions of this regulation include:

  1. NJP is defined as being something different than a “non-punitive,” also sometimes called “corrective,” action, the latter used to “correct” behavior through the loss of privileges and other minor measures. Commands are encouraged to use non-punitive measures rather than NJP for most situations.20
  2. NJPs are to be decided by the lowest level of a command as possible. However, since the rank of the officer conducting the NJP correlates to the maximum possible punishment, more serious cases are referred to higher levels of command.21
  3. The issue of the record of the NJP is significant, with serious ramifications for the accused. For example, commanders are reminded that the decision to retain record of the NJP in the soldier’s personnel file is “as important as the decision on whether to impose nonjudicial punishment itself.”22
  4. “Minor” offenses eligible for NJP consideration generally are those that would either merit no more than a summary court-martial or punishment of no more than one year of confinement, if a soldier demanded trial by court-martial. However, the regulation says that this provision is not “hard and fast rule.”23
  5. The two-year statute of limitations for NJP does not apply for the time period when a soldier is AWOL or otherwise out of military control.24
  6. Commanders are required to conduct a preliminary inquiry before proceeding with NJP.25
  7. After conducting the preliminary investigation, a command has the option of using a “summarized” procedure for enlisted cases in which the potential punishment should not exceed “(a) Extra duties for 14 days. (b) Restriction for 14 days. (c) Oral reprimand or admonition. (d) Any combination of the above.”26
  8. All NJP actions aside from “summarized” proceedings are to be conducted as a “formal proceeding.”27
  9. Soldiers facing NJP must be given adequate notice and the chance to consult with legal counsel.28
  10. Soldiers facing NJP do not have a right to counsel at the hearing. They are, however, allowed to have a “spokeperson” speak on their behalf. The spokesperson need not be an attorney but can be.29

For most soldiers the most important issue is the nature of potential punishments that can be given through an Article 15 process. The nature of the potential punishment is not easy to predict. Generally, three factors determine the maximum sentence allowed under an Army NJP: (1) whether the NJP is “summarized” or a formal Article 15 proceeding; (2) the level of command prosecuting the matter; and (3) the rank of the accused.

The chart on this page breaks down maximum Article 15 punishments in some level of detail.30

 

Chart: Maximum Punishments for NJP/Article 15 in the US Army30

(Click chart for larger version)

non-judicial punishments chart

Beyond these maximum punishments, it is important to note what items are NOT on the list, namely punitive discharges. While a soldier may likely receive an administrative separation (often called “being chaptered out”) after receiving an Article 15, the discharge characterization will be no worse than an OTH (other than honorable). And most importantly, a “conviction” in an NJP proceeding is not a conviction under federal or state law.

With regard to the experience of punishment that can be imposed under NJP, in the Army, unlike other branches, is very unlikely to impose confinement (jail time) as a punishment. More likely a soldier will receive a combination of restriction to post, extra duty,32 loss of pay and loss of rank. The most serious punishment for most soldiers is the loss of pay.

III. Tactical Considerations regarding the decision to accept or not accept NJP

There are a variety of situations in which a servicemember might be facing a potential NJP. Each of these situations requires a different approach. For simplicity’s sake, I will discuss some hypothetical potential situations (from the perspective of both the commander and the accused) as examples of some common scenarios in which NJP might arise.

A. Hypothetical case #1 – PVT Brown has been wrongly accused of stealing from the unit

PVT Brown was wrongfully accused of stealing equipment from the unit, when in fact the actual thief was someone else who was favored by the unit’s NCOs. The command believes that PVT Brown committed the crime but has little evidence to tie him to the theft.

Commander’s perspective: The commander needs to punish someone for the theft to avoid a loss of face and to ensure continued discipline in the unit. Since PVT Brown has had disciplinary issues before and likely is the guilty party (in the command’s eyes), the command decides to go after him. Knowing there is insufficient evidence to take this matter to trial, the command may be tempted to prosecute this matter under Article 15.

Soldier’s perspective: PVT Brown knows that he is innocent and doesn’t want to be punished for something that he didn’t do, but he might be tempted to accept the Article 15 if he fears the prospect of a court-martial.

My advice to the soldier:33 In a case like this, I would work with the client to seek to find out if the command actually has enough evidence to take this to trial. If there is insufficient evidence, I would encourage my client to decline the Article 15, knowing that the command will either drop the charges or lose in a court-martial prosecution.

B. Hypothetical case #2 – PV2 Johnson went AWOL on her second enlistment in the Army. She was gone about a year before being apprehended and returned to her unit.

1. Commander’s perspective: In this situation, a commander has a wide variety of options. S/he could prosecute the soldier for AWOL or even desertion, which would serve to deter others from going AWOL but would consume considerable time and resources. The command could ignore the offense and keep the soldier in the unit or administratively separate her. The problem with this option is that the commander may feel that s/he is sending a tacit message to other soldiers that going AWOL is not punished. So, for commanders who do not want the hassle of a court-martial but also do not want to send the message that misconduct will go unpunished, prosecuting a soldier with an Article 15 followed by an administrative separation or retention in the unit may be good option.

2. Soldier’s perspective: The soldier want consider what she wants to accomplish in the end? If the PV2 Johnson wants to remain in the Army, then a court-martial is not an option, and so negotiating with the command for either retention (without NJP) or for accepting an Article 15 may be a good.

More likely, this soldier does not want to stay in the Army and instead wants to be discharged, but with the least negative ramifications possible. If this soldier is offered an Article 15 by her command, she might want to take it, but she should seek to have at least some level of assurance that the command intends to discharge her following the imposition of the Article 15.

On the other hand, if the soldier can present significant mitigating evidence to explain why such punishment is in appropriate, it may very well be possible to talk a command out of pursuing NJP or prosecution. In this case, PV2 Johnson wants out of the Army with the least punishment possible.

My advice to the soldier: Since PV2 Johnson wants out of the Army, I would contact the command directly and ask what their intentions are for her after she is given an Article 15. If they intend to chapter her out in a reasonable amount of time, I might recommend that she accept the Article 15 (but also prepare mitigation documentation to present to the command at her Article 15 hearing).

If they do not intend to discharge her, then accepting an Article 15 might be counter-productive to her goals. In such a scenario, I would spend time with the client working through what the various outcomes might be if she accepted or did not accept the Article 15.

C. Hypothetical case #3 – PFC Smith is a combat veteran with severe PTSD. His PTSD has been ignored by his unit despite his requests for help, so he began to self-medicate with marijuana Subsequently he “popped” hot on a random drug test. PFC Smith is on his first enlistment.

Command’s perspective: The command likely see this soldier as a “s***-bag” who is using the excuse of PTSD to get out of facing the consequences of drug use. At the same time, the command is likely dealing with several other such cases and would like to avoid the hassle of a court-martial and hence offers PFC Smith an Article 15 followed by an administrative discharge for “serious misconduct.”

Soldier’s perspective: This is a troubling but common scenario. If PFC Smith accepts the command’s desired course of action, then he would end up not only being punished for his chosen method of dealing with PTSD, but also be kicked out of the Army, likely with an OTH (other than honorable discharge), which would make it difficult (but not impossible) to get care from the VA after discharge.

On the other hand, if PFC Smith rejects the proposed Article 15, then he faces the danger of a court-martial. If convicted in a court-martial, PFC Smith would not only face jail time and other penalties on his record, but also would have a federal conviction for drug use on his record. This would bar him from receiving federal financial aid for college when he is first discharged as well as affect him negatively when it comes to employment.

My advice: The client should negotiate with the command regarding his discharge, based on the mitigating factor of the PTSD diagnosis. If it is not possible to dissuade the command from moving forward with either an Article 15 or a court-martial, then it would be best for the soldier to receive the Article 15 but then be ready to contest the planned subsequent administrative separation, possibly through the assistance of a congressional inquiry or other outside pressure on the command.

D. Hypothetical case #4 – SPC Williams was pulled over by the police on post and was found to be driving while intoxicated. He was arrested and taken to the provost marshal (police) office before being returned to his unit.

SPC Williams would greatly benefit from having his DUI be adjudicated through an Article 15 process, because there would be no collateral civilian consequences to being found guilty of DUI. Besides the penalties of the Article 15 itself, he can lose his driving privileges on post. However, he would not lose his driver’s license (normally an automatic provision under state law).34

Servicemembers “convicted” in an Article 15 proceeding of drug possession or domestic violence are not subjected to the possible collateral consequences of their crimes (including the right to receive federal educational aid or to own firearms), since an NJP “conviction” does not constitute a criminal conviction.

E. Case #5 – SPC Victor Agosto publicly refuses to deploy to Afghanistan. His command offers him an Article 15.

This is an actual case that I worked in 2009 at Fort Hood, Texas. Since the facts of this case were told in the press, I can speak about it in this context.35

The command offered SPC Agosto an Article 15 punishment (with extra duty), but he decided to decline the Article 15 since the command refused to promise not to prosecute him in a court-martial after receiving the Article 15. The command then offered SPC Agosto a Summary Court-Martial (which caps jail time at no more than 30 days), an offer SPC Agosto accepted. Unfortunately, when the offer went up to the post general for approval, it somehow had changed from being a Summary Court-martial to a Special Court-Martial (with a cap of up to 12 months in prison). At this point SPC Agosto went to the press to tell his story, which caused the command to reconsider its decision and reinstate the prior offer of a summary court-martial. SPC Agosto received a sentence of 30 days in jail at the court-martial and then was chaptered out of the Army upon release from jail.

The significance of SPC Agosto’s declining the Article 15 was that it forced the command to make a decision. It could not give this soldier extra duty and then try to force him again to deploy to Afghanistan. Instead, the command was cornered into a position of feeling like it must dispose of the case as quickly as possible via summary court-martial.

IV. The Article 15 Hearing

In theory a servicemember can accept disposition of his or her case in an Article 15 without accepting guilt,36 but in reality this is not how it works. Commanders normally have made up their mind about the guilt of the accused. However, the accused does have a chance in an Article 15 hearing to present mitigating evidence to explain why his or her case merits either lesser punishment or suspended punishment (in which the sentence is suspended during a probationary period, after which any potential penalty is removed).37

Given the informal nature of most Article 15 hearings (even when they are theoretically a “formal” Article 15 hearing), it is normally best for the accused to bring paper documentation of any potential evidence in his or her favor, including written statements and other documentation. The accused also can have a spokesperson speak on his or her behalf. This person could be an attorney, but also could be a GI Rights counselor, a family member or even another soldier from the unit.38

Importantly, in Article 15 hearings in which a finding of guilty is made, the accused always should request that the sentence be suspended.

V. Post-Article 15 Hearing matters

Following an Article 15 hearing, a defendant has a variety of possible avenues for relief from any adjudged sentence. While such relief is rarely sought given the relatively light punishments associated with Article 15 proceedings, requesting such relief could prove valuable, particularly for a soldier administrative discharge after serving his or her Article 15 sentence.

The avenues for relief primarily are sought through either the command that has imposed the original Article 15 sentence or the next higher level in the chain-of-command.39 Forms of relief include clemency,40 suspension,41 remission,42 mitigation43 or “setting aside and restoration.”44 Beyond these avenues of discretionary relief, a defendant also has the right to one appeal of the Article 15 ruling, but it must be made within five calendar days of the Article 15 hearing.45 The appeal itself is made in writing.

Conclusion

The primary area of work in a case involving NJP is with helping a servicemember to decide if he or she should accept an NJP, and if so, under what circumstances. Certainly it makes sense for servicemembers to be ready to exercise their right to make their case to the command at the hearing and to be ready to seek post-hearing relief (and of course their one appeal). But the reality is that the NJP process is stacked against the accused, and we should not give false hope to our clients. The client has the most power before she or he says yes or no to the imposition of NJP. It is critical that we help our clients to make the most of this power.

 

About the author:

James M. Branum has practiced military law as a civilian attorney since 2006, representing hundreds of servicemembers in a variety of areas, including court-martial defense, representation before administrative boards, conscientious objection and first amendment issues. Notable cases include those of war resisters Kimberly Rivera, Travis Bishop, Victor Agosto, Cliff Cornell and Robin Long.

Currently serving as the legal director of the Oklahoma City-based Center for Conscience in Action, he is also a past chair and current steering committee member of the Military Law Task Force of the National Lawyers Guild.

Branum has also taught several CLE seminars on military law issues and is the author of US Army AWOL Defense: A Practice Guide and Formbook, available from many booksellers.

 

 Endnotes: 

1. The Uniform Code of Military Justice can be found online as part of the Manual for Courts-Martial (2012), at www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf. Amendments were made to the UCMJ since this edition’s release but have not yet been incorporated into the compiled text of the MCM.

2. Navy Legal Services, Non Judicial Punishment, at:

jag.navy.mil/legal_services/defense_services_addendum.htm#njp

3. One commentator describes a commander’s option to pursue NJP in this way: “Article 15 provides military commanders an alternative to court martial for addressing ‘minor offenses.’ Military legal scholars usually refer to the decision to proceed under Article 15 as a forum choice by the commander, but the subject of the Article 15 may object and demand trial by court-martial. In essence, the decision by the commander and accused to proceed under Article 15 represents a form of alternative dispute resolution. The commander agrees to lower limits on punishment, and the accused agrees to summary proceedings in which the commander will ultimately decide his responsibility for the misconduct and punishment.” Marhshall L.Wilde, Incomplete Justice: Unintended consequences of military nonjudicial punishment, A. F. L REV. 118 (2007), at: afjag.af.mil/shared/media/document/AFD-081009-007.pdf

4. Non-Judicial Punishment,, WIKIPEDIA, at en.wikipedia.org/wiki/Non-judicial_punishment

5. Uniform Code of Military Justice, Article 15(d-e) at loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf

6. Id. at (f).

7. Manual for Courts-Martial (2012), Part V at www.loc.gov/rr/frd/Military_Law/pdf/MCM-2012.pdf Amendments were made to the UCMJ since this edition’s release but have not yet been incorporated into the compiled text of the MCM.

8. Id. at (1)(f).

9. Id. at (1)(d).

10. Id. at (1)(e).

11. Id. at (1)(f)(4).

12. Id. at (4).

13. Id. at (4)(b).

14. Id. at (4)(c)(3).

15. Id. at (5).

16. Id. at (6).

17. Id. at (7).

18. For Air Force cases, refer to AFI 51-202, at static.e-publishing.af.mil/production/1/af_ja/publication/afi51-202/afi51-202.pdf. For Coast Guard cases, refer to Military Justice Manual (Command Instruction M5810.1D) Chapter 1 – Non Judicial Punishment, at uscg.mil/legal/mj/MJ_Doc/MJM113.pdf. For Navy and Marine Corps cases, see chapter 1 of the Manual of the Judge Advocate General, JAG INSTRUCTION 5800.7F (commonly referred to as the JAGMAN), at www.jag.navy.mil/library/instructions/jagman2012.pdf.

19. Legal Services, Army Regulation AR 27-10 (Military Justice) (“AR-27-10”), at armypubs.army.mil/epubs/pdf/r27_10.pdf

20. AR 27-10 (3-2).

21. Id. at  (3-5).

22. Id. at  (3-6).

23. Id. at  (3-9).

24. Id. at (3-12).

25. Id. at (3-14).

26. Id. at (3-16).

27. Id. at (3-17).

28. Id. at (3-18).

29. Id. at (3-18)(h).

30. This chart is adapted from the material in AR 27-10 3-16 and AR 27-10, Table 3-1.

31. Company grade is a command headed by a O-3 or below. Field grade is a command headed by an O-4 or higher, including the battalion XO if he or she is the acting battalion commander. General grade is a command headed by a general. See Fort Jackson Trial Defense Services, Article 15 Information, at

jackson.armylive.dodlive.mil/staff/osja/tds/article-15/

32. “Extra duty” for the Army normally means working a short half-shift after the regular work day, so that a soldier would stay at work until 2000 instead of going home at 1630. Extra-duty normally means only an extension of one’s regular work or some other menial work assignment. By definition extra duty is not “hard labor” which can only be sentenced through a court-martial. See Joseph B. Berger, “Making Little Rocks Out of Big Rocks: Implementing Sentences to Hard Labor Without Confinement,” The Army Lawyer (December 2004) DA PAM 27-50-379, at loc.gov/rr/frd/Military_Law/pdf/12-2004.pdf

33. In these hypothetical situations, I am providing the advice I would give the hypothetical soldiers as an attorney. Paralegal GI Rights counselors would of course approach these situations differently, since they do not give advice but simply provide information to servicemembers on their rights. Still, I think the discussion of these hypothetical situations is helpful to GI Rights counselors in thinking through the best way to make sure that clients have all of the information they need to exercise their rights.

34. Wilde, supra note 3, at 132-133.

35. Dahr Jamail, “Be Bold”, Truth-Out, July 21, 2009, at truth-out.org/archive/component/k2/item/85221:be-bold; see also Dahr Jamail, “Afghanistan War Resister to put the war on trial”, Truth-Out, July 14, 2009, at truth-out.org/archive/component/k2/item/85106:afghanistan-war-resister-to-put-the-war-on-trial

36. The military would disagree with me on this point. Here is the advice that the Fort Jackson TDS office provides on this point:

   What do I do if I’m not guilty, but I don’t want to risk a court-martial?

   Answer. You check the block “I do not demand court-martial…” Most people think that this is called “accepting” an Article 15. This is absolutely not true!  When you decide not to demand a court-martial, what you are really deciding to do is let the commander be the jury. You are not admitting that you are guilty of anything. You can then proceed to be your own attorney and convince your commander that you are innocent. You may believe that he already thinks you’re guilty, otherwise he wouldn’t have offered you the Article 15 in the first place. However, you should keep two things in mind:

  1. Your commander hasn’t heard your side of the story yet.  When he initially read you your Article 15 before he sent you to a JAG, he wasn’t allowed to ask you any questions they hear the soldier’s side of the story.
  2. If you turn down the Article 15 and get a court-martial jury, the jury will be comprised of officers and NCOs just like your commander and first sergeant.

Fort Jackson Trial Defense Services, supra note 31.

37. Id.

38. AR 27-10 (3-18) (h).

39. Id. at  (3-23).

40. Id. at (3-23).

41. Id. at (3-24); see also id. at (3-25) for the provisions on how a suspension can be vacated.

42. Id. at (3-27) The most important portion of this section of the regulation is, “The death, discharge, or separation from the Service of the Soldier punished remits any unexecuted punishment. A Soldier punished under UCMJ, Art. 15 will not be held beyond the Soldier’s expiration of term of service (ETS) to complete any unexecuted punishment.” I have had one lucky case in which we knew the ETS date was rapidly approaching. We were able to have my client stall on accepting the Article 15 until a day before he was scheduled to be discharged. At that point, the command had no choice but to drop the Article 15, because otherwise any potential sentence would have been remitted by action of law under this regulation.

43. Id. at (3-26).

44. Id. at (3-28). This provision requires a showing of “clear injustice” and effectively wipes the record clean of there ever having been an Article 15.

45. Id. at (3-29).

 

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