NONJUDICIAL PUNISHMENT 4/14/2017 NONJUDICIAL PUNISHMENT UCMJ ART. 15; MCM Part V; JAGMAN CH. 1 Part (B); MJM CH. 1

Learning Objectives Understand: Nature of NJP NJP Jurisdiction 4/14/2017 Learning Objectives Understand: Nature of NJP NJP Jurisdiction Effect of prior civilian action Accused’s NJP rights NJP punishments NJP appeal procedure

4/14/2017 PURPOSE AND AUTHORITY

4/14/2017 NATURE & AUTHORITY Disciplinary Action - more serious than NPM's - less serious than CM - for minor offenses Terms USN/USCG: Mast USMC: Office Hours USAF/USA: Article 15

Commanding Officer NJP Authority 4/14/2017 All Military Members of Command Jurisdiction determined at time of Mast CO may not delegate NJP authority Flag Officer may delegate authority to principal assistant

Officer-in-Charge NJP Authority 4/14/2017 Enlisted Members Only Regardless of OIC's rank

EMBARKED UNITS JAGMAN 0108 Unit Attached/Embarked on Ship: 4/14/2017 JAGMAN 0108 Unit Attached/Embarked on Ship: CO defers NJP authority to CO of the ship Example: Squadrons on CVN’s Unit Embarked only for Transportation: CO retains NJP authority Ship CO also has NJP authority CO of ship should take disciplinary action under the UCMJ over members of embarked units only in unusual cases concerning incidents occurring on board the ship.

“PURPLE" CONSIDERATIONS 4/14/2017 “PURPLE" CONSIDERATIONS JAGMAN 0106(d) USN/USMC Rule NJP authority given to other service CO’s Joint CO may designate “Navy Unit” CO for NJP Other Services Army/Air Force personnel returned for NJP If Navy Commanding Officer imposing NJP on Army servicemember, CO must follow Army policy (e.g., burden of proof per Army Regs is beyond a reasonable doubt).

4/14/2017 PUNISHABLE OFFENSES

OFFENSES PUNISHABLE MCM, Part V 4/14/2017 Theory: NJP is for “minor” offenses Major: punished by DD or >1 year confinement Minor: everything else Reality: CO has VERY BROAD discretion based on the facts & situation

FORMER PUNISHMENT Major Offense - Credit for NJP 4/14/2017 FORMER PUNISHMENT Major Offense - Credit for NJP Minor Offense - Bar to CM MJ Decides

PRIOR CIVILIAN ACTION FEDERAL COURT: Bar to NJP/CM 4/14/2017 PRIOR CIVILIAN ACTION JAGMAN 0124, MJM 1.A.7.c FEDERAL COURT: Bar to NJP/CM STATE/FOREIGN COURTS: No Double Jeopardy Issue Requires Permission NJP/SCM: GCMCA consent SPCM/GCM: OJAG consent LANTFLT message in late 1990’s directing commands to take hands-off position with civilian DUI cases – guidance was to let civilian courts take care of it. This message has not been cancelled.

FROM DATE OF OFFENSE TO DATE OF PUNISHMENT STATUTE OF LIMITATIONS 4/14/2017 TWO YEARS FOR NJP No “discovery” rule (i.e., date command discovered an offense occurred is irrelevant). Periods of UA do not count towards 2 year period. FROM DATE OF OFFENSE TO DATE OF PUNISHMENT

ACCUSED’S RIGHTS REGARDING NJP 4/14/2017 ACCUSED’S RIGHTS REGARDING NJP

PRIOR TO NJP HEARING MEMBER INFORMED: 4/14/2017 MEMBER INFORMED: That CO is considering imposing NJP Charges Evidence Right to Refuse NJP, if applicable Right to Personal Appearance Rights at the Hearing

4/14/2017 RIGHT TO REFUSE MAST ALL members have right to refuse Article 15 punishment, UNLESS: THEY ARE ATTACHED TO OR EMBARKED UPON A VESSEL

No “BOOKER RIGHTS” = No Later Use! 4/14/2017 U. S. V. BOOKER, 5 M.J. 238 (1977) U. S. v. MATTHEWS, 6 M.J. 357 (1979) ISSUE: Use of prior SCM or NJP on sentencing at later court-martial. HOLDING: When right to refuse exists, member has right to assistance of counsel in making informed decision. No “BOOKER RIGHTS” = No Later Use! If member not given opportunity to speak with DC, then NJP cannot be used as aggravating evidence at a later CM.

4/14/2017 U.S. v. EDWARDS 46 M.J. 41 (CAAF 1997) ISSUES: Is a ship in dry dock a “vessel” within the meaning of the vessel exception? Use of prior NJP on sentencing at later CM, when NJP held without Booker rights by a ship in dry dock.

U.S. v. EDWARDS 4/14/2017 LESSONS: The less “operational” a ship is, the greater the chance that it does not fit into the “vessel exception” Creates no new right at NJP Case only impacts use of NJP in aggravation at later Court

DISCIPLINARY REVIEW BOARD and EXECUTIVE OFFICER INQUIRY 4/14/2017 Unique to the Navy No requirement for DRB or XOI XO Authority: No punishment power Forward to CO, Dismiss, NPM

RIGHTS AT HEARING To be Present To Remain Silent 4/14/2017 To be Present To Remain Silent Miranda Warnings? To a Personal Representative Lawyer? To Examine the Evidence Is NJP considered custodial? If so, should Miranda warnings be given? We never read anyone their Miranda warnings – only 31b rights (no right to have a lawyer present during questioning).

RIGHTS AT HEARING To present a defense To present E & M evidence 4/14/2017 To present a defense Reasonably Available Witnesses To present E & M evidence To a public hearing Private Hearing?

ADMINISTRATIVE MATTERS 4/14/2017 ADMINISTRATIVE MATTERS Script in JAGMAN A-1-(e)(1) and Enclosure (1) of MJM Rules of Evidence Do Not Apply Except for Privileges Standard: Preponderance of Evidence* *Burden of proof for Navy, Marines and Coast Guard is preponderance of the evidence. BOP for Army is beyond a reasonable doubt. BOP for Air Force is not uniformly enforced, but because of right to refuse NJP, AF commanders are urged to apply beyond reasonable doubt standard.

ADMINISTRATIVE MATTERS 4/14/2017 ADMINISTRATIVE MATTERS CO retains full range of disposal options Publication of results Full results okay to military members No names if non-military could see it POW Notes Best practice is to publish rank/rate only (no name), offense and punishment.

4/14/2017 PUNISHMENTS

PUNISHMENTS Reprimand or Admonition Reduction in Rate 4/14/2017 PUNISHMENTS Reprimand or Admonition Reduction in Rate Forfeiture of Pay Restraint on Personal Liberty Confinement on B&W CCU Arrest in Quarters Restriction Extra Duties

REPRIMAND A PUNITIVE chewing out!!! Enlisted: Oral or written 4/14/2017 REPRIMAND A PUNITIVE chewing out!!! Enlisted: Oral or written Officer: Must be in writing Punitive Letter of Reprimand Sample: JAGMAN A-1-g and MJM Enclosure (6b) May be combined w/ all other punishments

REDUCTION IN RATE ONLY IMPOSED ON ENLISTED MEMBERS 4/14/2017 ONLY IMPOSED ON ENLISTED MEMBERS Only for pay grades: USN & USCG: E-6 & Below USMC: E-5 & Below Maximum of ONE PAYGRADE!!!! May be combined with other punishments Effect of suspension if member has been selected for promotion/advancement – if NJP award of RIR suspended for 6 months and member advanced in month 2 of suspension, nothing left to suspend – cannot suspend once advanced. If advising commands, recommend they check limiting date of advancement and work with their admin shop to ensure member’s advancement date is pushed back to limiting date (last possible date they can be advanced during that cycle).

FORFEITURE OF PAY Maximum: 1/2 of month’s pay x 2 4/14/2017 Maximum: 1/2 of month’s pay x 2 O-3 CO’s & OIC’s: 7 Days Officers: Only if imposed by 0-7+ If reduced at same time, max FF based on reduced pay grade May be combined with all other punishments FF of ½ ppm (basic pay – does not include allowances) for 2 months.

CONFINEMENT WITH BREAD & WATER 4/14/2017 ONLY E-3 & below! Not authorized punishment in USCG ONLY while attached to or embarked on ship! ONLY for max of 3 days Combine Punishment? Yes: Non-Restraint No: With other Restraint Can reduce an E-4 to E-3 and then award 3 days B&W. Also not authorized by Army or Air Force.

CORRECTIONAL CUSTODY UNIT 4/14/2017 CORRECTIONAL CUSTODY UNIT Only on E-3 & below MAX: 30 Days O-3 CO’s & OIC’s: 7 Days Combined Punishment? Yes: Non-Restraint No: Restraint Can reduce an E-4 to E-3 and award CCU. Cannot do that at SCM.

4/14/2017

4/14/2017

“Arrest” is a Military Term of Art 4/14/2017 ARREST IN QUARTERS “Arrest” is a Military Term of Art Only Imposed on Officers Only Imposed by Flag Officer Combined Punishment? Yes: Non-Restraint No: Restraint

RESTRICTION Restricted to limits of base/ship MAX: 4/14/2017 RESTRICTION Restricted to limits of base/ship MAX: Enlisted: 60 days, 45 with Extra Duties Officer: 30 days 60 days if imposed by Flag 15 days if imposed by O-3 or below CO OIC: 14 days Coast Guard may actually defer restriction or restriction with extra duties while underway until unit returns to port. MJM 1.E.3.d(1)

EXTRA DUTIES Only Imposed on Enlisted Members 4/14/2017 EXTRA DUTIES Only Imposed on Enlisted Members Runs Concurrently When Combined with Restriction Do NOT confuse this punishment with Extra Military Instruction, which some people mistakenly refer to as “extra duties”. 45 Days Max

MAXIMUM PUNISHMENTS Use NJS Max Punishment Chart!!! Impacted by: 4/14/2017 MAXIMUM PUNISHMENTS Use NJS Max Punishment Chart!!! Impacted by: Imposing Officer’s Rank Service Member’s Rank Ship or Shore? How some punishments can and cannot combine with others

APPEALS & CORRECTIVE ACTION 4/14/2017 APPEALS & CORRECTIVE ACTION

NJP APPEALS USN: ISIC or Area Coordinator with Judge Advocate 4/14/2017 NJP APPEALS REVIEW AUTHORITY USN: ISIC or Area Coordinator with Judge Advocate USMC/USCG: Chain Of Command with Judge Advocate MJM 1.F.2 JAGMAN 0117

NJP APPEALS Grounds: Timing Unjust Disproportionate 4/14/2017 SUBMISSION PROCEDURE Grounds: Unjust Disproportionate Timing 5 Working Days from NJP (USCG – 5 calendar days) Extensions may be granted Day of NJP does not count in computing these days.

NJP APPEALS Comment on Basis for Appeal 4/14/2017 COMMAND ACTION Comment on Facts Comment on Basis for Appeal Enclose Copies of Investigation Enclose Copies of Accused's Record of Performance

RESTRAINT AND EXTRA DUTIES MUST BE STAYED NJP APPEALS 4/14/2017 STAY OF PUNISHMENT IF ACCUSED: Files timely appeal Requests stay of punishment Appellate authority fails to act w/in 5 days of submission RESTRAINT AND EXTRA DUTIES MUST BE STAYED

NJP APPEAL REVIEW AUTHORITY Reviewed for abuse of discretion 4/14/2017 REVIEW AUTHORITY Reviewed for abuse of discretion Referred to JAG for recommendation May order a new hearing or take corrective action If new hearing, punishment cannot exceed first NJP

CORRECTIVE ACTION AUTHORITY CO who imposed punishment 4/14/2017 AUTHORITY CO who imposed punishment Successor in Command Subsequent CO after transfer of member Review Authority

TYPES OF CORRECTIVE ACTION 4/14/2017 Generally, must be taken w/in 4 months of execution of punishment Set Aside Remission Mitigation Suspension – max 6 months

KEY TAKEAWAYS When may NJP be imposed and upon whom Lawful punishments 4/14/2017 When may NJP be imposed and upon whom Effect of prior punishment Lawful punishments Limitations of punishments Combination of punishments Use punishment chart NJP Appeals Grounds Timeframe