top of page

Non-Judicial Punishment (NJP) -- What You Should Know


Ok, so it's not that dramatic (at least not anymore, and the wording is different, and the modern military is different. . . .), but I use this clip often to explain Article 15, Non-Judicial Punishment, across the armed services. The basics--it is administrative punishment with more severe consequences than administrative paperwork, but less severe than a court-martial. But, unlike administrative paperwork, the service member has the right to demand a trial by court-martial.


 

Every service has administrative punishment. Whether called, for example, a Letter of Reprimand or a GOMAR, it's a "write-up." Enough of those can get a service member administratively discharged. Fired, if you will, though with much more severe consequences than getting fired by a civilian employer.


Non-judicial punishment, codified in 10 U.S.C. § 815, has different names in the various services based on their individual tradition. The Navy and Coast Guard generally call it "Captain's Mast." The Marines call it "Office Hours" or "NJP." The Army and Air Force (and, I suppose, the Space Force) call it "Article 15" or just "NJP" ("NJP" can be heard across several services). Each service has its own service-specific process (and it's important your lawyer knows that), but the basics are the same.


As it exists today, non-judicial punishment allows a commander to impose a limited range of more serious punishment without the due process requirements of a court-martial.


The range of punishment depends on the rank of the commanding officer, and whether the service member is "embarked on a vessel" at the time. Regardless, it can include confinement for up to 30 days, forfeiture of pay, restriction to specified limits, detention of pay, correctional custody, extra duties, and, if enlisted, reduction in rank.


Here is generally how it works. Command becomes aware of some incident it believes amounts to a violation of the Uniform Code of Military Justice, or, it is repeated misconduct for which the service member has previously received progressive administrative paperwork. At that point, the level of involvement by the local Staff Judge Advocate's office varies by service.


For example, the Army maintains a commander-led approach. The SJA receives the NJP form after it's over. In contrast, the Air Force maintains an aggressive SJA-led approach. Each SJA office maintains a Chief of NJP or includes that within the responsibilities of the Chief of Military Justice. That service drives very aggressive metrics to push the case to closure quickly, often to the dismay of law enforcement, who want to conduct a thorough and complete investigation per their own regulations. The Navy has a more "hearing-like" approach.


Whether strong-armed by the SJA, or the commander's decision, the service member will be "ordered to report" if the decision is to impose non-judicial punishment. Service members know that is a formal reporting process. The form number varies by service, but the service member is informed he is being offered non-judicial punishment in lieu of court-martial. Along with the relevant service form, the service member receives a copy of the evidence the Command would like him to see. Note that this is not the same as discovery in a court-martial, where Command must disclose EVERYTHING in its possession. Here, all Command must do is provide enough to show that there is enough evidence to find the member guilty. Though there is no established standard of proof at the non-judicial punishment level, most regulations suggest applying a "beyond reasonable doubt" standard because the member has the right to refuse the offer of non-judicial punishment and demand trial by court-martial.


Within three days of offer, the service member must decide. Unlike courts-martial, here the commander imposing the punishment serves as the "judge." Here things can be a bit different across services. At least one actually holds a hearing, allowing the service member put evidence before the commander and the lawyer, if retained or detailed, to make remarks. Most merely allow the service member to submit documents for the commander's review.


The commander then decides whether to impose non-judicial punishment (find the member guilty) and order punishment, "drop the charge(s)," or lower them to admin paperwork.


If punishment is imposed, the service member has the right to appeal the factual sufficiency, and the punishment, to higher headquarters.


That is, of course, if the service member accepts the commander's offer of non-judicial punishment. You can refuse and demand trial by court-martial.


That comes with more protection, but exposes the service member to much higher consequences.


Again, demanding trial by court-martial varies by the services. For example, the Marine Corps is incredibly fond of the Summary Court-Martial. That is for another post, but for now just now the Corps prefers to summarily send you to military jail for 30 days then returning you to work, at a rate unheard of in the other services. In the Air Force, turning down non-judicial punishment guarantees you a special court-martial (unless you are an officer). In fact, I was often told as an Assistant Staff Judge Advocate that if I pushed for a NJP, and it was turned down, that was my case at trial. If you are an officer, not much can be done at NJP other than forfeiture of pay, and denial takes you to a general court-martial, because an officer cannot be dismissed by a special court-martial.


Most often, reviewing an offer of non-judicial punishment involves considering balancing the impact of the summary punishment against the risk of a court-martial.


In all services, you are provided a military defense counsel to assist you at no charge. These passionate, committed professionals are the equivalent to a public defender. And the relationships they have built, if they are truly passionate and not just looking to check the advanced litigation box, are worth their weight in gold.


When considering your representation, first, time matters. You don't have it. You need to act quickly. Extensions can be requested in most circumstances. If you are considering retaining private counsel, consider these factors.


Does the attorney have sufficient, RELEVANT experience as a litigator? Though not always the case, a former JAG with 20+ years experience typically has not seen the inside of a courtroom or litigated an issue in approximately 10 years.


Does the attorney, who likely has prior experience in one armed service, fully understand how Non-Judicial Punishment is imposed across all services? A civilian defense counsel should understand your individual service, even if he or she did not serve in it.


Does the attorney understand the history of non-judicial punishment in the United States military? This leads into the final consideration, but the military is different. Your attorney should know where we come from, and how we are here, to effectively communicate to commanders that have been raised and developed in a particular way of thinking.


Final question, does the attorney have experience engaging with, and advising Command at the highest levels. Skill alone is not enough. Experience is required. The right attorney understands how to shape your particular case within the military experience to communicate with Command in a way to obtain the best result in your case, and take your case to trial if necessary; not just to punch back while taking your money.

4 views0 comments

Σχόλια


bottom of page