Presentation on theme: "ALABAMA CODE OF MILITARY JUSTICE COMMAND AND LEADER TRAINING"— Presentation transcript:
1 ALABAMA CODE OF MILITARY JUSTICE COMMAND AND LEADER TRAINING Instructor Note:Selected Note Pages contain instruction comments to assist with your presentation.This Standard Training Package (STP) is current as of 31 October To ensure this is the most current version, please contact the ALNG-OSJA, MAJ Safiya IngramInstructor Comments:This is a briefing concerns the military justice system and the leader’s role in it. This brief will cover the legal foundation that supports the military justice system, the components of the military justice system and both the punitive and non-punitive options that are available to leaders and commanders.Pictured above is the seal of the United States Court of Appeals for the Armed Forces, the highest military court. An appeal from this court goes to the United States Supreme Court.ALNG STAFF JUDGE ADVOCATE ALNG MILITARY JUDGECOL W. TERRY TRAVIS COL TERRY MOORER
2 Agenda Legal Sources of the ACMJ Similarities between ACMJ & UCMJ ACMJ Purpose of the ACMJACMJACMJ Components ChartJurisdiction of the ACMJJurisdiction and ApplicabilityCrimes Covered in the ACMJSuspects RightsKey Personnel in the Military Justice SystemSoldiers RightsCommanders ResponsibilitiesInvestigations & SearchesDisposition of Offense Commanders OptionsAdministrative ActionsNon-Judicial Punishment (Article 15)Courts-MartialUnlawful Command InfluenceAppealsInstructor Comment:This is your training agenda. If you are receiving this training y video and have any questions. Please contact your units servicing Judge Advocate or the ALNG-OSJA at
3 Legal Sources of Alabama Military Justice Alabama Constitution & US ConstitutionModeled after Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (M.C.M.)Army Regulation, Air Force Instruction, Army & Air National Guard Regulation, and Local PoliciesThe ACMJ is also supported by its own MCM and State Military Department Regulation (SMDR) 27-10Instructor Comment: These are the legal sources of the ACMJ, the Alabama Constitution provides the Governor with the authority to make rules for the governing and regulating of the state military forces (US Constitution give authority to the States Sovereignty). Art 36 of the ACMJ gives the Governor the authority to prescribe pretrial, trial, and post-trial procedures and Art 56 of the ACMJ specifies the max limits for violations of the ACMJ. The state has devised an AMCM that contains 3 parts : preamble, punitive articles, and non judicial punishment procedures (MRE &RCM of the UCMJ are adopted and incorporated where they do not conflict with state law) regarding administration of military justice and implements the MCM.Instructor Note:The authority for a separate system of military justice comes from the Constitution of the United States. Art. I, sec. 8, clause 14 grants Congress the power to “make Rules for the Government and Regulation of the land and naval forces.” Pursuant to this power, Congress, in 1950, enacted the Uniform Code of Military Justice to govern all the Armed Forces. Likewise the Alabama Constitution grants theArticle 36, UCMJ provides the President with authority to prescribe pretrial, trial, and post-trial procedures while Article 36 ACMJ provides the Governor w/ authority to prescribe. Article 56 gives the President the authority to set forth maximum punishments for violations of the UCMJ. Arising out of the President’s use of this power is the Manual for Courts-Martial, an Executive Order of the President. Article 56 ACMJ specifies the maximum limitsThe most recent edition of the MCM was issued in 2008 (edited 2012), and contains 5 parts: Preamble; Rules for Courts-Martial; Military Rules of Evidence; Punitive Articles; and Non-judicial Punishment Procedures. The AMCM is similar to the MCMAdditionally, AR sets forth policies and procedures regarding the administration of military justice, and implements the MCM. Often, local commands create their own version of AR The military justice system draws from both military and federal court decisions.: Alabama SMDR accomplishes the same, but we do not have any current State court decisions
4 ACMJ is Similar to the UCMJ Alabama CodeUniform CodeAdministrative, Non-Judicial Punishment (summarized/formal), Courts-Martial (GCM, SPCM, SCM)Military and misdemeanor offensesSPCM not authorized adjudge Dishonorable DischargeAppellate process for NJP to next higher level commanderSPCM not authorized adjudge Bad Conduct Discharge or Dishonorable DischargesamesameInstructor Comment:These are similarities in ACMJ and UCMJ. The benefits of a State Model Code will be in having a code that will permit the ease of transitioning to the UCMJ when deployed. The Key differences b/t the ACMJ and UCMJ are that the ACMJ only allows the accused the right to turn down a summarized Art. 15 in the instance a CDR informs the accused that he is contemplating imposing restriction as a form of punishment. The primary focus of the ACMJ is on misdemeanor offenses; Maximum punishments imposed for NJP are based on Grade of Commander imposing punishment not the proceeding; Commanders at a Special Courts-Martial may adjudge Bad Conduct Discharge but not Dishonorable Discharge; the Maximum punishment imposed for Courts-martial may include confinement for more than 6 mos. but not to exceed one year; and only bad conduct discharge (No dishonorable discharge at this time); and the Appellate process is by a military Review Panel and when applicable review by writ of certiorari to Alabama Supreme CourtJA’s should familiarize themselves w/ fundamental Differences b/t ACMJ and UCMJ:UCMJSummarized NJP Proceedings – Accused has right to turn down and request Courts-Martial, CDR can impose confinementCovers Misdemeanor and Felony OffensesMaximum punishments imposed for NJP limited under Summarized proceedings and by the grade of the imposing commander(no forfeiture or reduction)Maximum punishments imposed for Courts-Martial: SPCM cannot adjudge BCD unless designated as BCD SPCM; General Courts-Martial max punishment up to deathAppellate process: US Court of Appeals For the Armed Forces, US Army Court of Criminal Appeals, (Government Appellate Division, Defense Appellate Division)same
5 Purpose of ACMJ Promote Justice Help Maintain Good Order and Discipline in the Armed ForcesPromote Efficiency and Effectiveness in the MilitaryStrengthen National SecurityInstructor Comments:Although Commanders administer military justice, Commanders rely on subordinate leaders and judge advocates for advice and recommendations. Proper administration of military justice will not only ensure good order and discipline, but also provide unit security and enhance military readiness.
6 Alabama Code of Military Justice ACMJInstructor Comment:This next portion of training will cover general provisions of the ACMJ.
7 ADMINISTRATIVE MEASURES ACMJ ComponentsLOCAL LAW ENFORCEMENT AGENCY*/CRIME/OFFENSEINCIDENT/ADMINISTRATIVE MEASURESCOURTS-MARTIAL*NO ACTION TAKEN*NON-JUDICIAL PUNISHMENT*CM APPEALSCM Military Review PanelInstructor Comments:This chart is to quickly familiarize you with the components of the ACMJ. You will notice that the CDR always has the discretion of using Administrative measures or not to take action when and where it is necessary after review of all evidence and matters.The trial counsel for the command prosecuting a matter must obtain Local Law enforcement release to prosecute a case under Courts-Martial proceedings. However, a CDR can still pursue administrative procedures and (NJP- if its not the same offense the individual is prosecuted by civilian courts. A service member may still receive an Art. 15 for other military type offenses that arise from a civilian prosecuted offense. The appeals court for the ACMJ Courts-martial is the Courts-Martial Review Panel.
8 Jurisdiction of the ACMJ Over the Person:All ALNG members,At all times and all places except when in a federal Title 10 StatusOver the Offense:Title 32 Status or State Active Duty (SAD)Clear & Convincing Nexus b/t offense (military or non-military) and efficient functioning of the state military forceConcurrent Jurisdiction: Civilian court has primary jurisdiction for Courts-martialInstructor Comment: The jurisdiction of the ACMJ is over all ALNG members and applies at all times and places except when in a Federal T10 status. Jurisdiction over the offense applies when in a state duty status (T32 or SAD) and/or when there is a clear and convincing nexus b/t an offense (either military or non-military) and the state military forces efficient functioning. The civilian courts have primary jurisdiction when an act or omission violates military code and civilian criminal law (primarily applicable only with CMs but JAs must be aware of the possibility of double punishing in NJP).Instructor Note: Efficient Functioning: is not defined in the code, however this should be interpreted to mean military service operating w/ good order and discipline-When not in T10 Status-Nexus exists b/t an offense, either military or non-military and the state military force-nexus b/t act or omission (offense) and efficient functioning of the st. mil. (promoting/preserving good order and discipline)-Civilian courts when an act or omission violates military code and civilian criminal law
9 Jurisdiction and Applicability Jurisdiction after Civilian Convictions (See SMDR 27-10, Chap. 4)May, but ordinarily will not, be tried by court-martial or punished under Art. 15, for the same act.For instance, a soldier convicted of DUI by a civilian court won’t generally receive an Art. 15 for DUI.As the commander you may impose punishment for other actions which arise from the DUI, (i.e. dereliction of duty, fraternization, and any offense that is unique to the military and not considered by the civilian court).Instructor Comments: Where civilian courts prosecute a matter, ordinarily won’t use NJP for the same offense but the CDR may impose NJP for military unique offenses that are not covered or prosecuted by civilian authorities. So, for instance if civilian court prosecutes for a DUI the CDR may give an Art 15 for offenses that are specific to the military and are not prosecuted by civilian courts.
10 Crimes Covered in the ACMJ Common Law CrimesMilitary CrimesMisdemeanor Offenses:ForgeryHousebreakingAssaultDisrespectDisobedienceAWOLConduct Unbecoming an OfficerConduct Prejudicial to Good Order and DisciplineInstructor Comments: These lists are not exhaustive this is to give an idea of the offenses in the ACMJThere are 2 types of crimes under the ACMJ -- Common Law Crimes and Military Crimes.Common Law Crimes include forgery, housebreaking, assaultMilitary crimes are unique to military service and include such things as:Disrespect (Articles 89 & 91)Disobedience (Articles 90-92)AWOL (Art. 86)Conduct unbecoming an officer and gentleman (Art. 133)Conduct prejudicial to good order and discipline (Article 134)Jurisdiction over attempted crimes, conspiracy crimes, solicitation, and accessory crimes must be determined by the underlying offense. These types of offenses are not specified in the code – we must focus on the underlying offense.
11 Suspects Rights Article 31 (b), ACMJ: To be informed of the nature of the suspected offenseTo remain silentTo be informed that any statement you make can be used against youInstructor Comments:When questioning ordinary witnesses, you do not need to warn them of any rights. However, before questioning anyone suspected of a crime, you must inform them of their rights, primarily, nature of the charges, right to remain silent, the right against self-incrimination, and the right to counsel.Instructor Note:The right to counsel is purposely not listed on this slide because it is a right derived from the 5th and 6th Amendments to the Constitution and not codified in Article 31(b) of the UCMJ. It is a constitutional right applicable to soldiers that appears throughout the this presentation. Explain DA Form 3881 or Air Force Form AF Form 1168, Rights Warning Procedure/Waiver Certificate.Before your interview, consider the following questions:Do you suspect the Soldier of a committing a crime?Are you going to question the suspect about the crime?\Only if the answer to both of these questions is YES, are rights advisements required. Day-to-day work related conversations with a suspect do not require a rights advisement.However, if any meeting with a suspect is going to take place that is likely to elicit a response, whether it is intended to be only a one-way communication or not, it is better to do a rights advisement to ensure important evidence is not excluded at trial.The best resource for providing and documenting rights warnings is the DA Form The back page of the form actually provides interviewer instruction.Ideally, the suspect and the interviewer should have a copy of the form. The Soldier is then able to see and hear the warnings as they are read.If the Soldier waives his/her rights, an annotation should be made on the DA3881 and the interview should begin.A refusal to waive rights should also be annotated on the form and the interview never started.
12 Key Personnel in the Military Justice System CommanderStaff Judge AdvocateTrial CounselDefense CounselMilitary JudgePanel Members (Jury)Paralegal SpecialistInstructor Comments:Several individuals play a role in the military justice system. These individuals are:Commander: Each level has prosecutorial discretion, and exercises independent judgment with advice and input from subordinate leaders. A Convening Authority is a Commander who has the authority to send a case to court-martial. Generally, Battalion Commanders, Brigade Commanders, and Division or Corps Commanders act as Convening Authorities.Staff Judge Advocate -- Senior Ranking Lawyer who personally advises the Commanding General.Trial Counsel -- Usually a Captain or Major. Assigned to each Brigade Combat Team (BCT). They serve as both prosecutors in court and Command advisors.Defense Counsel -- Separate organization with a separate rating chain. The Trial Defense Service (TDS) became independent in 1979 to avoid real and perceived conflicts of interest and to ensure Soldiers could be zealously defended without defense counsel suffering repercussions.Military Judge -- LTC/COL. Separate organization, separate chain of command (Trial Judiciary).Panel Members -- Officer and Enlisted Soldiers who serve as a Jury for court-martial.Legal Specialist -- MOS 27D. JAGC enlisted paralegal specialist.
13 Soldiers Rights Presumption of Innocence Right against self-incriminationRight against unreasonable search/seizureFair and Impartial HearingRight to Counsel (in most situations)Other Rights (discussed throughout this class)Instructor Comments:In the Military Justice system, Soldiers have many rights derived from various sources of law:The ConstitutionRegulationsUCMJMCMCase Law (court decisions)We will discuss some of these throughout this class.
14 Commander’s Responsibilities Maintain good order and discipline!!!Investigate reported offensesEnforce the LawProtect Soldiers’ RightsDetermine Disposition of CaseInstructor Comments:The Commander has the ultimate discretion on how to dispose of offenses.Disposition depends on the seriousness of the offense, impact on unit mission and good order and discipline, and the quality of the evidence. Taking the following into consideration:Direct vs. Indirect Evidence (e.g., hearsay, circumstantial).Credibility of Witnesses.Existence of Physical Evidence.The Command Priorities:Speed: Different alternatives for the resolution of a case vary from the time it takes for final resolution. For example, it takes a lot longer to complete a court-martial than an Article 15.Good Order and Discipline: CDRs must consider the Cost and impact on command and society (Art 15 vs. CM).Justice: Commanders must consider each case on its own merits, considering the age, level of experience, maturity, duty performance, attitude, personal situation, etc., of each accused.
15 Conducting Investigations Discovery of Incident / Allegation:Initial ConsiderationsTypes of Inquires / InvestigationsConducting an InvestigationInstructor Comments:Conducting investigations and inquiries.Before a Commander can decide what to do in response to an incident or allegation, that Commander must have all of the information.There are different types of investigations both formal and informal, sometimes conducted by the Commander, other times by a subordinate investigating officer (IO).Trial Counsel should be consulted from the very beginning. TC can aid the Commander in weighing the above considerations. Here are several things that must be considered by a Commander (listed on slide).Trial Counsel can provide advice to the Commander and can get information from the Military Police, CID, or civilian law enforcement.Discovery of Incident - Initial Considerations: Who/What/Where/When/How/Why? Notify Trial Counsel EarlyWho reported incident?What evidence supports allegation?Where did the incident occur?When did the incident occur?How credible is allegation?Finally, what type of Inquiry/Investigation is best?
16 Types of Investigations Preliminary Inquiry: RCM 303Required for any offense reported to the CMDRNot only investigation for serious offensesNo formal requirementsAR 15-6:Usually initiated for complex offensesRequires appointment of Investigating Officer (JAG will prepare appointment letter)Cannot be used to investigate allegations of Sexual AssaultANG CDI:Any time need to gather facts to make a decision and those facts may not be easily gatheredConsult with SJA before initiating and appointing an investigatorMPI/CID or AFSOI:Serious offense* Complex Investigations:Sexual Assault InvestigationMust notify servicing JAG and ALNG-OSJA immediatelyDiscuss Which is Appropriate with Trial CounselInstructor Comments:A preliminary inquiry will not be the only investigation conducted for serious offenses. Serious offenses should also be investigated by either MPI or CID. Your Trial Counsel can help make contact with MPI or CID if they are not already involved. For example, the discovery of inappropriate material on a computer, depending on the nature of the material, could be an issue for CID. The Commander should contact the Trial Counsel or CID directly.AR 15-6 Investigations are frequently ordered by Battalion or Brigade Commanders. These are administrative investigations used to explore complex situations. Local installations may have policies or regulations in place which require 15-6 investigations under particular circumstances. For example, 15-6 investigations are usually required when sensitive items such as NVGs are lost. Also, in the deployed environment, certain incidents require a 15-6 investigation, which could be in addition to a criminal investigation.CDI : commander-directed” investigations and inquiries (CDI) are conducted for the primary purpose of gathering, analyzing, and recording relevant information about matters of significant interest to command authorities.Investigating Officers should be able to function impartially and give the commander the benefit of their"call them as I see them" efforts.Generally speaking, there are three main phases of any investigation. These are:1. Gathering the facts, to include questioning witnesses through oral testimony and obtaining documents;2. Analyzing the facts, making findings as well as conclusions and recommendations (if requested); and writing the report[AFSOI Air Force Special Office of Investigations – fraud, counterintelligence – offices on Active duty installations]Complex Investigations are required when there are allegations of sexual assault, CDRs are prohibited from using an AR 15-6 to conduct an investigation. If local law enforcement will not prosecute or will not conduct further investigation contact JA for further instructions. Complete a Complaint of Sexual Assault/Harassment form. CI’s do not apply to sexual harassment complaints unless the initial allegation was sexual assault. OSJA will make a determination as to the allegations. See CNGBI
17 Search and Seizure 4th Amendment protections Who can Authorize Probable CauseExceptions to Authorization requirementConsent SearchesHealth & Welfare Searches (Inspections, Inventories, and Urinalysis)Instructor Comments:There may also be times that a Soldier’s property may need to be searched. We will next discuss searches, seizures, and inspections. Inspections are closely related to searches but are conducted with different motives and analyzed differently.We will discuss:The Constitutional protection against unreasonable searchesWho can authorize a searchThe conditions that must be met before a search is conductedInspections and the Urinalysis programWhat to do if “contraband” is discoveredFourth Amendment to the U.S. Constitution; AFI , Security Police Standards and Procedures(4 Dec 2001); AFI , Separation and Retirement Procedures for Air National Guard and Air Reserve Members,(14 Apr 05); Military Rules of Evidence, Rules ; Manual for Courts-Martial; applicable state law; AFI 36-3209 (14 April 2005).The Fourth Amendment to the Constitution protects people from “UNREASONABLE” searches. Soldiers, despite their status in the military, are also protected by this right.Commanders must be able to distinguish between REASONABLE and UNREASONABLE.Who Can Authorize a Search: “Competent Authority” based upon “Probable Cause.”Civilian Authority (Judge)Military JudgesMilitary MagistratesCommander or Acting Commander* (Authority cannot be delegated)Can ONLY authorize searches in unit area (Includes unit’s barracks or vehicles in unit area)COMMANDER’S SHOULD NOT CONDUCT SEARCHES!If a warrant is required, it must be authorized by a “competent authority” and based upon probable cause to be REASONABLE.Competent authority includes:A competent civilian authority (judge)A Military Magistrate: A lawyer who serves as a neutral and detached officer to review the evidence and situation in a case. Usually, it is either a CID Agent or MP Investigator who provides the information when requesting authorization to search. A Military Magistrate is appointed to the position by orders, receives training, and reports directly to a Military Judge while performing those duties.Commanders (or Acting Commanders who are on orders in that capacity) may authorize a search if all conditions for a REASONABLE search are met.Commanders involved in the investigation should NOT conduct searches because they are no longer neutral and detached. Get authorization from the next higher commander.. Item in Plain View (Officer legally present)ConsentIncident to Lawful ArrestExigent Circumstances (Destruction of Evidence; Hot pursuit; Medical Emergency)Health and welfare inspections (not cover for unlawful search)Certain circumstances do not require that prior authorization be obtained prior to conducting a search or seizing evidence. However, except in the case of a consent search, this does not alleviate the need for probable cause.Plain view: A doctrine that allows officer to seize contraband or evidence that is visible and in the open and whose incriminating nature is immediately apparent. The Plain view doctrine applies when an officer is authorized to be in a certain area at the time the object is seen, smelled or felt (plain smell, plain feel ie. during a frisk) and the contraband item is detectable without moving or opening anything.
18 Disposition of Offenses Commander’s Options Once the investigation is complete,Commander must consider:How well is allegation Substantiated(Quality of Evidence Collected)What are Command Priorities(Speed, Good Order and Discipline, Justice)Are there Individual Soldier Considerations(Duty Performance, Attitude/Motivation, Personal Problems)Are there Sentencing Factors(Rehabilitation, Protection of Society, Preservation of good order and discipline, Deterrence - Specific & General)Instructor Comments:Commander has ultimate discretion on how to dispose of offenses. The decision should be based on:Quality of Evidence: Will affect whether admissible in court.Direct vs. Indirect Evidence (e.g., hearsay, circumstantial)Credibility of Witnesses.Existence of Physical Evidence.Whether the level of proof required by the contemplated action can be satisfiedART 15, GCM = Beyond a reasonable doubtAdministrative actions = Preponderance of the evidenceCommand Priorities:Speed: Your alternatives for resolution of a case will vary the time it takes for final resolution. For example, it takes a lot longer for a court-martial than an Article 15.Good Order and Discipline: Impact of actions (Art 15 vs. CM)Justice: Give victim and accused their day in court.Nature of Offense/Character of Accused
19 Disposition of Offenses Commander’s Options Take No Action (after investigating)Take Administrative Actions, and/orImpose Nonjudicial Punishment - Article 15Courts-MartialInstructor Comments:After the Commander concludes her/his preliminary investigation:Rule 306 of the Rules for Courts-Martial provides that offenses under the ACMJ should be disposed of in a timely manner, at the lowest appropriate level.The Commander may:Take No ActionTake Administrative ActionImpose Nonjudicial Punishment (ART 15)Administrative Action might also be imposed in conjunction with Article 15 or other UCMJ action.Prefer and Forward Charges
20 Alabama Code of Military Justice Administrative ActionsInstructor Comments: This portion of your training will address Administrative Actions. The provisions covered here are presently in full force and effect, the ACMJ does not limit, revise or remove any administrative measure that a CDR has available to address service member misconduct. This section will refresh you as to the provisions available to address matters in a non-punitive measure.
21 Administrative Action Army Admin. ActionsAir Force Admin. ActionsCounseling (AR )/ (ACorrective Training (AR )Administrative Reprimands (AR )Bar to Reenlistment (PPOM )FLAG (AR )MOS Reclassification (AR )Revoke Security Clearance (AR )Relief from DutiesAdverse NCOER/OERRemoval from Special StatusRehabilitative TransferAdministrative Reductions (AR )Administrative Separations (AR , )Letters of Counseling, Admonition, Reprimand (AFI )Demotion (ANGI )Administrative Separation (AFI & )Revocation of Security Clearance (AFI )Bar to Reenlisting (ANGI , AFI )Instructor Note: Bar to reenlistment for National Guard is regulated by NGB Personnel Policy operating manualInstructor Comments: These are some of the admin actions available in Army / Air ForceStandard of Proof in all administrative actions is “Preponderance of the Evidence.”Commanders have the option of forgoing ACMJ action in favor of administrative alternatives.Some administrative actions include:FLAG: temporary suspension of favorable actions such as pass privilege, attendance at schools and promotion eligibility. Should be initiated at beginning of investigation and removed once action is taken and completed. (Flagging is an Army specific provision, on the ANG side a security information file (SIF) may be generated but flagging is not a Air Force provision)MOS Reclassification: May occur after misconduct, loss of qualification (such as Parachute Riggers), loss of security clearance (many MOS require security clearances), or erroneous awarding of it (a Soldier was never qualified for a the MOS).Security Clearance Revocation: May result from certain types of misconduct.Relief from duties: Especially leadership positions.Adverse NCOER/OER - Automatic if relieved for cause. ANG- Officer Evaluations and NCO EvaluationsSpecial Status: i.e. Drill SGT.Rehab Transfer: Allows the Soldier opportunity to excel in a different environment. Opportunity for rehab transfer may be limited based on unit of assignment.Administrative Reductions: May result from inefficiency or misconduct in or out of uniform.Instructor Note:Do not demote a member when action under Article 15 or other sections of the ACMJ is more appropriate.AFI Administration Discharge Procedures for Commissioned OfficersAFI Administrative Separation of AirmenAFI , Separation and Retirement Procedures for Air National GuardAFI , Unfavorable Information File (UIF) ProgramAFI , Personnel Security Program Management (27 January 2005); DOD R, PersonnelSecurity Program (January 1987); DoDD , DoD Personnel Security Program, (9 April 1999).AFI , Reenlistment in the United States Air Force (21 November 2001); ANGI ,Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force (1 March 2004)AFI , Officer and Enlisted Evaluation Systems (15 Apr 2005); AFPD 36-24, MilitaryEvaluations (11 Jun 93)
22 Counseling Soldier’s Key to all administrative actions: Soldier must understand commander’s expectations for future conduct.Oral counseling is not enough – Creates no record.Put it in writing and document with specificityDA Form Include requirements of ARLetter of Counseling (applicable to ANG)Instructor Comments:The following involuntary separation actions under AR (enlisted) require written counseling and rehabilitation at least once before initiation of separation actions:ParenthoodPersonality DisorderOther Designated Physical or Mental ConditionsEntry-level Performance and ConductUnsatisfactory PerformancePattern of MisconductFailure to Meet Body Fat StandardsThese actions require that the Soldier receive a reasonable chance to improve. Army Regulation states that non-trainees should be transferred to another battalion-sized unit for three months and re-evaluated before separation is initiated. However, the regulation also authorizes the separation authority to waive this requirement in many cases.Commanders must ensure that a responsible person properly fills out the Counseling Form (DA Form 4856). This includes a documentation of the follow-up to the counseling and results of rehabilitation.Nonjudicial punishment and courts-martial charges also require documentation. Counseling is the fundamental – and arguably most important – step in effecting good order and discipline in the unit.ANG: Letter of Counseling (LOC) will be destroyed one year after the last recorded counseling session or upon the member‘s reassignment or separation. Must reflect that the soldier received and give 30 days to respond to a formal LOC.
23 A.K.A.- Remedial Training Corrective TrainingA.K.A.- Remedial TrainingTraining or instruction must be directly related to the deficiency observed and oriented to correct that particular deficiencyRemedial PTBi-hourly check-in for FTRsTraining, NOT PunishmentMust not be excessively humiliating or degradingInstructor Comments:Corrective Training Must relate to the deficiency and cease when rehabilitation has occurred. It Must not be used as a subterfuge for nonjudicial punishment. Corrective training should be conducted while the leader is present. For example, if a Soldier’s corrective training is scheduled outside normal duty hours, that Soldier’s leader or leaders should be there for the training as well. This also reduces the perception that the corrective training is punishment.An example of appropriate corrective training for a Soldier who does not report to PT Formation on time would be a requirement that the Soldier report to his Squad Leader 15 minutes prior to the start of every Formation.
24 Administrative Reprimand (AR 600-37/AFI 36-2907 ) Officially documents misconduct or poor performance in official filesFormal Procedures (Soldier may Rebut in Writing)Filing OptionsLocal FileOMPF (General Officer directed for ARNG); UIF (generally as a policy matter should not be filed here for ANG).Instructor Comments:An administrative written reprimand is official documentation of misconduct or poor performance which is placed in a Soldier’s official files.An Administrative Reprimand may be initiated accordingly:For Enlisted: Immediate or higher level commander in chain of command. A supervisor, school commandant, general officer, or GCMCA.For Officers: Immediate or higher level commander in chain of command, general officer, rater, intermediate or senior rater.The accused will be Notified and given an opportunity to rebut: May Rebut in writing.Filing: Letters are filed in Soldier’s MPRJ (local file), for a period of 3 years or less and will be destroyed upon reassignment to another GCM jurisdiction. May be filed in OMPF, upon the direction of a general officer or GCMCA.**ANG Admonition/Reprimand: As a policy matter, they should not be filed in the recipient's official personnel file, but rather in a Commander's or supervisor's own file on the member. The Commander may use them in determinations on promotion, assignment, OPRs, etc. based upon the Commander's discretion. The length of time the Commander wishes them kept "on file" is also a matter of discretion. The only avenue of appeal from an administrative admonition or reprimand would appear to be through a "complaint of wrongs" procedure pursuant to any applicable law or regulation.
25 Army Bar to Reenlistment The Army desires to retain only those Soldiers of high moral character, competence, and demonstrated adaptability (PPOM ).Initiation of proceeding required for:Failure to make satisfactory progress in Army Weight Control Program.2 Consecutive APFT failures.Removal for Cause from NCOES Courses.Instructor Comments:Bar to Reenlistment (PPOM )It is military Policy that Only personnel of high moral character, competence, and demonstrated adaptability to the professional Soldier’s moral code will be reenlisted in the Army. Those who do not meet the standard will be barred.Non-trainable Soldiers or Soldiers unsuitable for continued service (single parent Soldiers or Dual Active Duty couples with dependent family members who do not or are unable to file an approved family care plan) may be separated for the good of the service.Initiation of Bar or separation proceedings ar required for:Failure to make satisfactory progress in weight control program2 consecutive APFT failuresRemoval for cause from NCOES courses.A Bar: Is a probationary period that is reviewed at day intervals. If bar is not removed, then separation action is initiated and Soldier cannot reenlist. There is a long list of reasons to impose in PPOM Unsuitable/non-trainable Bar.NOTE: Bar to reenlistment is one of the most UNDER-utilized tools a Commander has!
26 Air Force Barring Reenlistment “Continued retention in the ANG is a command prerogative and not an inherent right of any individual." "No individual will be extended without the concurrence of his/her commander.“Command discretion &Not required to specify reasons for decision14 Ineligibility Factors (waiver not permitted)Instructor Note:AFI , Reenlistment in the United States Air Force (21 November 2001); ANGI , Enlistment and Reenlistment in the Air National Guard and as a Reserve of the Air Force (1 March 2004).Instructor Comment: retention in the Air Force is at the discretion of the commander, and the commander is not required to specify the cause for the bar. Here are some ineligibility factors to consider for the ANG:1. Morally unacceptable persons convicted by a civilian court of an offense punishable by death or convicted of oneor more felonies, persons under restraint, persons having frequent difficulties with law enforcement;2. Persons under parole, probation, or suspended sentence from a civil court (This is subject to certain exceptions listed in the regulation);3. Persons under the influence of alcohol or drugs;4. Persons with a documented history of mental illness or insanity;5. Students enrolled in the advanced course of AFROTC, Army ROTC, or Naval ROTC, or scholarship students within these programs;6. Drug abusers, unless cleared of drug abuse charges10. Individuals not selected for retention under state selective retention programs;11. Conscientious objectors; and12. Individuals convicted of misdemeanor crimes of domestic violence.
27 Administrative Separations Soldier’s Rights:Notice and Opportunity to RespondAttorney (Consultation / Board Representation)Hearing (Separation Board) if:> 6 years of serviceOther Than Honorable Discharge recommendedCharacterization of Service (Options):Honorable (No misconduct; Entitled to all benefits)General (Minor misconduct; Entitled to most benefits)Other than Honorable (Requires Board)More serious misconduct; Forfeits most benefitsStandard of Proof:“Greater weight of the evidence”Preponderance of the evidence (51%)Instructor Comments: ANG right to a board is based in part on the seriousness of the offenseAR which applies to Army enlisted and AFI applies to ANG Airmen, and both regulations set forth the criteria for conducting an Enlisted Administrative Separation. Administrative Separations may result in either an Honorable, General, or Other Than Honorable Discharge.AFI , Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members (14 April 2005) and AFI Administrative Separation of AirmenThe Soldier must receive notice and is afforded an opportunity to rebut the recommendation for separation.If a Soldier has more than 6 years of service or the Commander recommends the Soldier be discharged Other than Honorably, the Soldier is entitled to a hearing before an Administrative Separation Board.Officer Separations AR – Withdrawal of Federal Recognition NGR /101 AFI , Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members (14 April 2005) andAFI Administration Discharge Procedures for Commissioned Officers
28 Types of Involuntary Separations Convenience of the GovernmentParenthoodPersonality DisorderOther designated physical or mental conditionDefective/Fraudulent EntryAlcohol/Drug Abuse Rehab. FailureUnsatisfactory PerformanceMisconduct***Minor Disciplinary InfractionsPattern of MisconductSerious MisconductFailure to Meet Body Fat StandardsInstructor Comments: This list of reasons for Involuntary separations are similar for both ARNG & ANGTo ensure successful separation actions there must be a local file that contains legally sufficient counseling IAW AR (Discussed in previous slides). AFI & , (voluntary separation)Common types of Involuntary Separation initiated by a Command are:Failure to properly maintain a family care plan, personality disorders, and other designated physical or mental conditionsEnlistment, Reenlistment, and Extensions. Separation may be avoided if basis was waivable and command makes the recommendation.Alcohol/Drug Abuse Rehabilitation failure.Substandard performance not rising to a crime; need documented counseling and rehabilitative efforts IAW ARThis includes misconduct that occurs both on and off post.Pattern of minor infractions, counseling/ rehab required.At least two minor offenses, counseling/ rehab required.One offense, no counseling required, offense would warrant BCD under ACMJ.Statement, acts, or marriage. May proceed to a board if the command feels the Soldier falsely made the statement to avoid further service or if the Soldier wants the opportunity to show that they will not act on their feelings and further service is in the best interest of the Army.Failure to meet the Body Fat Standards outlined in AR
29 Punitive Options Nonjudicial Punishment (Article 15) Summary Courts-MartialSpecial Courts-MartialGeneral Courts-MartialInstructor Comments:Among the punitive options available under the ACMJ are both Nonjudicial Punishment (Article 15), and court-martial.There are 3 types of court-martial:Summary Courts-MartialSpecial Courts-MartialGeneral Courts-Martial
30 Procedural Timeline Instructor Comment: CRIME IS COMMITTED OR SUSPECTED↓COMMANDER ORDERS AN INVESTIGATION ( IF NEEDED ) EXISTING VERIFIED INFORMATION MAY BE ENOUGH(Commander makes determination to use Administrative Actions or Non-judicial punishment or Courts-Martial or Not to take Action)(Any Action may be combined with Administrative Actions)CHARGES ARE PREFERREDCONVENING AUTHORITY ORDERS AN ARTICLE 32 INVESTIGATIONARTICLE 32 IS CONVENEDARTICLE 32 REPORT SENT CONVENING AUTHORITYCONVENING AUTHORITY REFERS CHARGES FOR A COURT MARTIALPRETRIALCOURT MARTIALSENTENCINGOnly when CDR decides to go w/ CMInstructor Comment:This timeline leads into the NJP process (STOP when you get to the red portion – that is the Courts-martial process)After the commander is informed of the offense the CDR then makes a determination as to how he/she wants to proceed Amber is the investigative phase and progresses into yellow as he/she decides what action to take (each of these actions will have additional requirements for their completion) at this point the only action that can be green is the decision not to take any further action. Begin w/ NJP
31 Alabama Code of Military Justice Non-Judicial PunishmentInstructor Comment: This portion of your training addresses Non-judicial Punishment (Article 15’s) and is a punitive provision that you as servicemembers are now subject to while in your T32 capacity as members of the ALNG.
32 Non-Judicial Punishment (NJP) Article 15 Non-judicial punishment is proper in all cases involving minor offenses whenadministrative and leadership measures (nonpunitive) are inadequate or inappropriate. (See SMDR 27-10, para. 3-2)Instructor Comments:NJP is a Disciplinary punishment for minor offenses without the intervention of a court martial”ACMJ, Article 15(a) [emphasis added“Nonjudicial punishment provides the commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior and changes in service members without the stigma of a court-martial conviction.”AMCM 3-2(b) [emphasis added]Commanders still have administrative measures available as discussed earlier but here are a few of them.Counseling (AR )Corrective Training (AR )Administrative Reprimands (AR )Bar to Reenlistment (PPOM09-206)FLAG (AR )MOS Reclassification (AR )Revoke Security Clearance (AR )Relief from DutiesAdverse NCOER/OERRemoval from Special StatusRehabilitative TransferAdministrative Reductions (AR )Administrative Separations (AR or AR )
33 NJP (Article 15)Any commanding officer may impose disciplinary punishments for minor offenses without the intervention of a court-martial...”Article 15 Purpose and FunctionWho may impose an Article 15No Absolute right to demand trial by courts-martialInstructor Comments:What is considered a “Minor” offense is in the discretion of the commander imposing punishment.Commander should handle at the lowest level possible. If Admin measures are not sufficient to address the misconductArticle 15: is A provision of the ACMJ which authorizes punishment of Soldiers for minor offenses. It is referred to as “nonjudicial punishment” because the punishment is imposed by a commander rather than through a court-martial proceeding.A commander should use Article 15 for minor violations of the ACMJ, and when non-punitive administrative procedures have failed or are inappropriate.An Article 15 serves the function of correcting, educating, and reforming a Soldier who has engaged in misconduct. Though a punitive action, it enables the Soldier to avoid the stigma of a court-martial.An Article 15 may be imposed on a commissioned officer, as well as on enlisted personnel.IMPORTANT TO REMEMBER: A commander can combine administrative and nonjudicial punishment in an attempt to maintain good order and discipline. A combination of these measures is often the most effective application. For example, a squad leader who is caught drunk on duty might be relieved from his leadership position, required to give alcohol abuse related classes as a form of corrective training, and given an Article 15. Be sure not to structure such classes as punishment or otherwise attempt to embarrass the Soldier (e.g., the class need not know that the instructor was caught drunk on duty).
34 NJP (Article 15) Factors to consider: Nature and circumstances of the offense.Offender’s age, rank, record, and experience.Offender’s history of misconduct (or lack thereof).Max sentence if court-martial were imposed.Customs of the service.See AMCM 3-2(d)Instructor Notes:Minor” is in the discretion of the commander imposing punishment.Coommander should handle at the lowest level possible. If Admin measures are not sufficient to address misconduct
35 NJP Authorities WHO CAN IMPOSE DISCIPLINARY ACTIONS: Any Commanding officerGovernor, TAG, GO of flag rank in commandCommissioned or warrant officer in command (AMCM 3-5(a))Delegation of Authority:The Governor, TAG, or general officers of flag rank in command may delegate their authority to a Principal Assistant as defined by AMCM.O6 or below may not delegate.Written memo requiredInstructor Comments:Commanding Officer as defined by AMCM 3-5(a) is: “Commissioned or warrant officer who by virtue of rank and assignment exercises primary command authority over a military organization or prescribed territorial area, which under pertinent official directives is recognized as a command.”
36 Soldier’s Rights Formal and Summarized Remain Silent Examine Evidence Present A DefenseCall WitnessesCannot Demand Trial by Courts-martial unless Restriction contemplatedAppeal to the next superior authorityFormal Article 15s: ADDITIONAL RIGHTS AVAILABLE ONLY IN FORMAL ARTICLE 15s (Both Company Grade and Field Grade)Consult With CounselHave A SpokespersonAsk For An Open HearingInstructor Note: Only right to consult with counselInstructor Comments:Soldiers always have the following rights:To be informed of the charges against themTo present evidence and witnesses on his/her own behalf.Can only turn down Art 15 and demand trial by CM if restriction contemplated.If the Soldier accepts the Article 15 procedures he/she has the right to appeal the decision based on view that punishment is unjust or disproportionate to the offenseA Soldier’s acceptance of Article 15 procedures is not an admission of guilt.Unlike Summarized proceedings, a Soldier involved in a Formal proceeding has the right to consult an attorney. However, there is no right to have a government attorney present at the hearing.A Soldier may request to be represented by a spokesperson at the hearing. This spokesperson has no right to examine or cross-examine witnesses, but can make suggestions as to relevant issues or questions to the commander.In addition, a Soldier may request that the Formal Article 15 hearing be open. The Commander, however, has the discretion to approve or disapprove the request.
37 NJP (Article 15) The Following DO NOT Have NJP Authority: Section chiefs.Deputy commanders.Platoon leaders.First sergeants.These individuals may make recommendations, but they may not demand that the CDR take action, nor may they initiate NJP.Instructor Comments: If you are any of these positions you do not have the authority to impose or imply that a servicemember will receive an Art 15.This is important in terms of avoiding UCI. These individuals may recommend to the CDR that an Art. 15 may be considered as an appropriate COA for the offense.
38 NJP Procedures Summarized Procedures: Use only if restriction is NOT contemplated*.This is a non-adversarial process but is a hearing before the commander.Imposition of punishment based on finding beyond reasonable doubt that the offense was committed.Termination of the Proceedings: finding that an offense did not occur or that NJP is not necessary.Can be published on unit bulletin boardAppeals are to the next Superior Commander.Punishment may not be increased on Appeal by the Superior CommanderFiling: OMPF restricted or performance ficheFormal Procedures: (same procedures as informal)Use if contemplating restrictionSoldier has the right to turn down & request CM if contemplating restriction.Appeals are to the next superior commander.Filing: OMPF restricted or performanceInstructor Comment: There are 2 procedures to NJP: formal and summarized proceedings*If Restriction is contemplated allows SM to turn down NJP and request CM*TAG approval is required in advance for restriction!Once SM notified, he/she has to accept w/in normally two weeks, but may be as short as two days if SM is on orders and all resources are readily available.Non-adversarial.No right to counsel at the hearing.No right to cross-examine witnesses.Open hearing unless closed by the CDR.SM may present defense, mitigation, and/or extenuation.SM may bring witnesses or evidence.Rules of evidence do not apply.SM may bring a spokesperson, who need not be an attorney. Or bring a civilian attorney at own expenseIf proceedings are terminated b/c not guilty the summary of the proceedings are destroyed.FORMAL Procedures: Accepting a NJP process extinguishes right to request Courts-Martial.APPEAL: the commander may take the following Actions:No actionSet aside/change NJP (may not increase)Authorize additional proceedings
39 NJP: Range of Punishments Admonition: may be written or verbal.Reprimand: more severe than admonition.Withholding privileges: up to 6 consecutive monthsForfeiture of pay: within limits of gradeReduction in grade: within limits of gradeExtra duty: within limits of gradeRestriction or suspension: Caveat - SM can turn down NJP and demand Courts-Martial.Instructor Comments: If a Soldier is found guilty at an Article 15, a Commander must determine the appropriate punishment for the offense or offenses. The Commander has the discretion to give up to the maximum punishment or no punishment at all.-“A reprimand is a more severe form of censure than an admonition.” –AMCM 3-10(a)-Restriction: Gives the SM the option for Court Martial!-Deprives SM of liberty by force of moral obligation rather than physical restraint.Restriction may also include suspension from duties. Ordering SM to perform duty at a certain place is not restriction. Restriction (in lieu of arrest): Soldier is ordered to remain within specified boundaries (on the installation). Individuals are required to perform full military duties while on restriction.Conditions that are too harsh or restrictions on liberty that are too great can be “tantamount to confinement.”Instructor Notes:-These ranges are specified in the ACMJ, AMCM and SMDR 27-10-Articulate the differences on Confinement vs. Restriction to post or w/holding privileges-Punishment is usually effective immediately but may be delayed for good cause.
40 Withholding privileges - 6 mos. NJP PunishmentsCOMPANY COMMANDERFIELD GRADEG.O. & OFFICERS in CMDAdmonitionReprimandWithholding privileges mos.Forfeiture - 8 daysForfeiture - 12 daysReduction – 1 grade(for enlisted)1 to 2 grades³1 to 2 grades³*Extra duties - 8 daysExtra duties - 14 daysExtra duties - 14 days *Restriction – 8 daysRestriction – 14 daysInstructor Note: Severity of the Punishment: IAW ALA criminal code prosecution of misdemeanor offenses must commence w/in 1 yrShould be “Least severe discipline appropriate to the offense.” –AMCM 3-1(b)Instructor Comment:REDUCTION: is the Grade from which demoted must be within the promotion authority of the commander.ANG DEMOTION apply to airmen in grades E-1 to E-9. This disciplinary tool can result in demotions of onegrade or three or more grades. Administrative demotions apply to airmen in grades E-1 to E-9.Left to the discretion of the commander, but should be consistent within the command and comparable to the rest of the state.EXTRA DUTY: Should be military duty, but extra duty imposed on NCOs should not be demeaning to their grade or position.Should not be a duty normally considered an honor to perform (memorials, color guard).May not constitute a health or safety hazard.* As the code is written GO and Gov authority is limited to that of a Company-Grade NJP. This is a typo and is/will be before the legislature for correction prior to implementation. As written GO and GOV would not be able to use.1 The maximum punishment that can be imposed by any commander will not exceed extra duty for 14 days, restriction for 14 days, oral reprimand, or any combination thereof. Combinations of extra duties and restriction cannot exceed the maximum allowed for extra duty.2 Amount of forfeiture is computed at the reduced grade, even if suspended, if reduction is part of the punishment imposed. For RC Soldiers, use monthly basic pay for the grade and time in service of an AA Soldier (see para 20–9).3 Only if imposed by a field grade commander of a unit authorized a commander in the grade of O–5 or higher. In the RC, reduction is only authorized from grade E–5. For RC Soldiers of grade E–6 and higher, reduction is authorized only if the grade from which the Soldier is reduced is within the promotion authority of the officer imposing the reduction.4 In the case of commissioned officers and warrant officers, admonitions and reprimands given as nonjudicial punishment must be administered in writing Art. 15 paragraph 5b(1), MCM 2008 (this is not included in 3-9, Ch. 3, AMCM, 2013). 5 At the time punishment is imposed -This refers to officers and WosDEMOTION AUTHORITY is on the next slideRANK DEMOTION AUTHORITYTraditional Guardsmen E-1 to E State Adjutant General, but may be delegated to wing, group or base commanderTraditional Guardsmen E-7 to E State Adjutant General, but may be delegated to Assistant Adjutant for AirFull –time AGRs State Adjutant General*Members on active duty with NGBor ANG Readiness Center Director, Air National Guard, with concurrence of the State Adjutant General* ANGI and ANGI do not specify a separate demotion authority for AGRs. However,the StateAdjutant General holds the authority to terminate AGR status for cause.Statutory Limits:Commanders have one year to take action45 days to appeal NJP1 training period counts as a “day” for pay purposes, so there are typically 4 “days” ina drill weekend.Basic pay only: does not include incentive pay, proficiency pay, allowances(If reduced, basic pay is calculated at the reduced rate).
41 ANG Involuntary Demotions RankDemotion AuthorityTraditional Guardsmen E-1 to E-6TAG (delegate to wing/group/base CDRTraditional Guardsmen E-7 to E-9TAG (delegate to Assistant Adjutant for AirFull-Time AGRsTAGMembers on AD w/ NGB or ANG Readiness CenterDir. ANG with TAG concurrenceInstructor Comment:A reduction of three or more grades should only be used in an extraordinarily unique case when there appears to be no reasonable hope that the airman will again exhibit the proficiency, leadership, or fitness previously possessed. In this case, commanders may consider separation or discharge action under AFIANGI , Administrative Demotion of Airmen (1 March 2004); AFPD Military Promotion and Demotion (21 June 1993);(Do not demote a member when action under Article 15 or other sections of the UCMJ is more appropriate. Do not forgo demotion because discharge is contemplated.3)* ANGI and ANGI do not specify a separate demotion authority for AGRs. However, the State Adjutant General holds the authority to terminate AGR status for cause.RuleIf airman isThen demotion is to grade no lower than1E-4 or higherE-22E-3E-1
42 NJP: Actions at Punishment Phase Combining Punishment:Multiple punishments run consecutive but cannot exceed the longest available punishment.Generally may not impose punitive action for the same offense twice. NJP does not limit imposing additional administrative and leadership measures.Mitigating Punishment:CDR may mitigate, reduce, vacate, or suspend punishment, but may not increase punishment after determination.Must be documented.May change a reduction in grade to pay forfeiture.Instructor Comments:We must be aware and Avoid double jeopardyAll offenses punishable by Art. 15 should be dealt with at the same time.A court martial may be imposed for the same offense, but prior use of Art. 15 will mitigate the sentence at the court martial.Art. 15 will not be used as evidence at the guilt phase of the court martial.Situations where both Art. 15 and Admin. Sep. are available, but separation is discretionary.
43 Non-Judicial Punishment Comparisons Alabama CodeUniform CodePunishments may be imposed at Summarized or Formal Proceedings*G.O. & GovernorAdmonition/ReprimandExtra Duty: 14 daysReduction: 1 to 2 gradesForfeiture: 12 days payField Grade:Company Grade:Extra Duty: 8 daysReduction: 1 gradeForfeiture: 8 days pay(*Restriction at Formal)Punishments are limited at Summarized ProceedingsField Grade:Forfeiture ½ of 1 mo. for 2 mo.Reduction E4-1: total, E5-6: 1gradeRestriction: 60 daysExtra Duty: 45 daysCompany:Forfeiture 7 days payReduction 1 grade (E1-4)Restriction 14 daysExtra Duty: 14 daysSummarized:Forfeiture: NoReduction: NoRestriction: 14 daysInstructor Comment: This is a comparison of the Art 15 punishments that may be imposed. There will be a difference incorportated that will reduce the amount of punishment available during a summarized proceeding. Whereby the maximum amount punishable will be 6 days for any provision that imposes extra duty, or forfeituure, reduction 1 gradeInstructor Notes:*GO/GOV authority as written in code is limited to that of a Co Grade CDR.ACMJ does not distinguish b/t formal and summarize as far as punishment imposed*Restriction gives SM opportunity to turn down
44 Investigation NJP INVESTIGATIONS: A formal investigation is not required i.e., AR 15-6 investigation, ANG Command Directed Investigation (CDI).An investigation initiated for another purpose may be sufficient i.e., FLIPL, AFOSI, LOD or GSA accident report.The investigation does not have to be documented (i.e., Commander personally witnesses the offending act – late for formation)Instructor Comments: The Air Force also has the AF Office of Special InvestigationInvestigate promptly and adequately and take the following into consideration when conducting investigationWas an offense committed?Was this particular SM involved?What is the character and record of the SM?Some investigations are Usually an informal, but they still must be a thorough investigation with Witness interviews and a Review of recordsAFI , Inspector General Complaints (8 Feb 05); SAF/IGQ “CDI Guide” and “IOGuide:” various specific AFIs and ANGIs authorizing investigations
45 Article 15 Appeals Procedure: Written Appeal (Some Commanders Permit Personal Appearance)Submitted Through Imposing CommanderAppellate Authority:Next Higher Level CommanderInstructor Comments:Soldiers may appeal the punishment imposed through an Article 15 proceeding on grounds that the punishment was unjust, or too harsh.Procedure – Appeals are made in writing, using a Form 2627 or Documents supporting the appeal may also be attached and submitted. Normally, a Soldier must appeal within 5 days of the imposition of punishment.Review – A Judge Advocate will review the Article 15 and supporting documents IAW SMDR The Judge Advocate will then determine if the evidence supports a finding of guilty and if the punishment was authorized.Actions -- Action may be taken on an appeal by the next higher commander to the Commander who imposed the punishment.Possible actions on an appeal are:Approval of the punishmentReduction of the punishmentRemission: The unexecuted portion of the punishment is vacated.Suspension of punishment: Soldier placed on probation (Not to exceed 6 months). Punishment vacated at end of probation unless a ACMJ violation is committed during that time.Setting aside punishment: Punishment is completely vacated and all rights, privileges, and property are restored.
46 Article 15 Filing Summarized: Kept in unit (local) file for two years or transferFormal: Depends upon pay grade of accusedE-4 and below: Filed LocallyE-5 and above: Filed in OMPFInstructor Comments:When an Article 15 results in a finding of guilt and punishment is imposed the Article 15 must then be filed.Summarized: Maintained in local file for 2 years or until the Soldier transfers out of the unit.Formal: The filing of a Formal Article 15 depends on the Soldier’s grade.Enlisted Soldiers who are E4 and below: It will be maintained in the local file for up to 2 years.Soldiers in the grade of E-5 or above: the Article 15 is filed in the Soldier’s OMPF. The Commander imposing the Article 15 decides whether to file it in the Performance fiche, or the Restricted fiche of the OMPF.NOTE: In recent years, documents filed in the Restricted fiche of the OMPF have been reviewed by promotions boards considering promotion to CSM/SGM.
47 Practice Tips for Imposing NJP Actions Contact your SJA when you decide to impose NJP.Determine a time to conduct NJPSet aside specific day or drill period to conductDesignate in advance who will conduct the NJPBe prepared to conduct in alternate locations or by alternate means if not geographically located.Consistent application of punishmentCreate a tracking system to monitor how NJP is imposedLowest appropriate level.” –AMCM 3-1(b)Higher-level commander may withhold authority.AVOID UNLAWFUL COMMAND INFLUENCE!May not predetermine punishment for offenses.May not insist on prosecution of cases
48 Procedural TimelineCRIME IS COMMITTED OR SUSPECTED↓COMMANDER ORDERS AN INVESTIGATION ( IF NEEDED ) EXISTING VERIFIED INFORMATION MAY BE ENOUGH(Commander makes determination to use Administrative Actions or Non-judicial punishment or Courts-Martial or Not to take Action)(Any Action may be combined with Administrative Actions)COMMANDER PREFERS CHARGES TO THE CONVENING AUTHORITYCONVENING AUTHORITY ORDERS AN ARTICLE 32 INVESTIGATIONARTICLE 32 IS CONVENEDARTICLE 32 REPORT SENT CONVENING AUTHORITYCONVENING AUTHORITY REFERS CHARGES FOR A COURT MARTIALPRETRIALCOURT MARTIALSENTENCINGCDR decides to go w/ CMInstructor Comments: Now in the procedural timeline the commander determines that this matter rises to the level of Courts-martial (following the yellow) afterthe offense has occurred when the CDR makes a determination to proceed to a CM, then moves to the investigative phase and progresses all the way to sentencing (and appeal)
49 Alabama Code of Military Justice Courts-MartialInstructor Comment: We are now covering the portion on the ACMJ Courts-Martial system.
50 Courts-Martial (CM) Three types of Courts-Martial: General Court-Martial (GCM)* Judge w/5 membersSpecial Court-Martial (SPCM) Judge w/3 membersSummary Court-MARTIAL (SCM) 1 Officer (LTC)Instructor Comments:The Commander or anyone subject to the code may prefer charges against an accused.The charges are referred to a court-martial only by a commander in his/her capacity as the Convening Authority.
51 Roles and Responsibilities Court-Martial Convening AuthoritiesGeneral: Governor, TAG, any commanding General OfficerSpecial: commanding officer ofa brigade, regiment (Army)a wing, group (Air Force)commanding officer or officer in charge when empowered by TAG.Summary: commanding officer ofa battalion (Army)a detached squadron or other detachment (Air Force)Instructor Note: Wing/ regiment Or corresponding unit of the Army or Air forceInstructor Comment:The Commanding officer is a commissioned officer or warrant officer in CMD by virtue of positionThe CDR is any GO/TAG any other officer in CommandGeneral Courts-MartialRequires Article 32 investigation but it Can be waived by the accused.Full trial procedures apply. CM panel can adjudge any punishment that does not exceed the maximum punishment for the offense(s).Commissioned Officers, Commissioned Warrant Officers, and Cadets are “Dismissed” rather than Discharged.Special Courts-Martial is authorized to adjudge a Bad Conduct Discharge.The Accused has a right to defense counsel and the government is represented by the Trial Counsel.The Court consists of at least three members and a military judge. The Accused may choose to be tried by a judge alone.Summary Courts-Martial:Convened by battalion-level commander (0-5) or higherNo military judgeThe rules of evidence applyLine officer presides over case (should be a FG/can be company grade)Usually there are no lawyers at the proceeding but the accused can consult with counsel for a advice and assistance prior to the hearingLegal advisor appointed to assist summary court-martial officer
52 CM Comparison of Punishments Alabama CodeUniform CodeGCM Maximum punishment:Any punishment not restricted (i.e., extra duty, withhold privileges, admonition/reprimand)Forfeiture: up to 1 year (total during period of confinement)Reduction to E1Bad Conduct dischargeDismissal (Officers)Confinement: up to 1 yrSPCM Maximum punishment:Any punishment not restricted (i.e., extra duty, withhold privileges, admonition/reprimand)Forfeiture: no more than 24 daysReduction: must be w/in promotion authority of CDR imposing reduction:E-1 to E-3, lowest gradeE-4 and above, up to 2 gradesRestriction/Confinement: no more than 6 mos.SCM Maximum punishment:Forfeiture : no more than 15 days of payReduction : must be w/in promotion authority of CDR imposing reduction:Restriction: 2 mos.GCM Maximum punishmentConfinement as authorized by law ( up to death)Total forfeiture of all pay/allowancesReduction to E1Bad Conduct/Dishonorable DischargeDismissal (Officers)BCD SPCM Maximum punishment12 months confinement2/3 forfeiture (pay only) for 12 monthsBad Conduct DischargeSPCM Maximum punishmentNO punitive discharge12 months confinement (if Judge present)2/3 forfeiture (pay only) for 12 months (if Judge present)SCM Maximum punishmentForfeiture of 2/3 of 1 month’s pay for 1 monthE4 & below: 30 days confinement, reduction to E1E5 & above: 2 months restriction, 1 grade reductionInstructor Comment:This is a comparison of punishments b/t the ACMJ and the UCMJACMJ GCM: Regarding extra duties and withholding privileges the code does not specify a limitation to maximums these punishments are not specifically limited
53 ACMJ COURTS-MARTIAL Instructor Comment: This is a graphic of the entire Court-Martial process
54 CM CONVENING AUTHORITY CONVENING AUTHORTIYGENERALSPECIALSUMMARYARTICLE 32 HEARINGCOMPANYNOYESBRIGADEGO/GOV*Gov, TAG or G.O. Commanding can convene – TAGmay reserve this authority.ART. 32 Hearing is required for courts-martial unless waivedINCIDENTART 32 HEARINGGCMSPCMINVESTIGATION i.e. AR 15-6 or other informal investigationSCMInstructor Comment:WAIVER: The Article 32 Investigation may be waived as a condition of a pre-trial agreement or for other reasons R.C.M. 702(c)(2)(e). The Article 32 Investigation should not be waived casually. The Investigation should never be waived without obtaining a benefit, such as a pretrial agreement, dismissal of charges, referral to an inferior court, or an alternative disposition. The client must be fully informed of the meaning and effect of a waiver. Standard of Review Art 32: preponderance of the evidenceARTICLE 32 is required or a pre-requisite to trialThere are four recognized purposes: (↓I’ll tell you what it says ↓)To inquire into the truth of the matteralleged in the charges(2) to consider the form of the charges,(3) to make a recommendation as todisposition of the charges(4) And obtaining discovery (See 405a RCM discussion and United States v. Roberts, 10 M.J. 308 (C.M.A. 1981).CM PROCESS
55 Unlawful Command Influence (UCI) UCI is:the improper use, or perception of useof a superior authority to interfere with the court-martial process.Accusatory (the process of bringing charges) v. adjudicative (the actual trial)Apparent v. actualInadvertent v. intentionalThe AMCM v. administrative mattersInstructor Comment:UCI is the improper use or the perception of the use of superior authority to interfere w/ court-martial (or any administrative matter)These are types of UCI:Accusatory UCI happens when someone that is responsible for bringing charges or processing charges takes a certain action because someone else pressured him or her to take that action. Adjudicative UCI is UCI that taints the trial process itself – the military judge, the defense counsel, the members, or a witness is pressured to do or not do something.Apparent UCI does not have to actually occur for there to be a problem. If the situation just looks bad – as in, members of the public would think that the system is unfair – then that can be enough for the military judge to grant the accused some relief.Inadvertent A commander or superior does not have to intend to commit UCI or have some sinister purpose. A commander or superior can have perfectly good intentions and still commit UCI. This often happens when commanders coach or mentor subordinates about military justice or issue policy letters.AMCM/Administrative The principles of UCI fully apply to Article 15s and all courts-martial. Because this concept arises in the ACMJ, it is generally limited to procedures that are found in the ACMJ. Accusatory UCI concepts generally do not apply to administrative proceedings like administrative separation boards. In fact, there are several regulations that include requirements for subordinates to initiate separation boards, GOMORs, or grade reduction boards. The Secretary of the Army can direct a subordinate to initiate a GOMOR or a separation board. However, the Secretary of the Army could not do the same for a court-martial or Article 15. Because tampering with an administrative proceeding is already a violation of the UCMJ, UCI generally does not apply to administrative proceedings.
56 Examples of Unlawful Command Influence “I am absolutely uncompromising about discipline in the leader ranks.”“I am going to CRUSH leaders who fail to lead by example.”“There is no place in the Army for drug users.”“Reduction in grade and $500 is a starting point.”“TDS is the enemy.”“The accused is a scumbag. Stay away from him.”“You testified for the accused? You have embarrassed the unit.”PAO comments: “They will likely be discharged from the Army.”Instructor Comment:Here are a few examples of UCI
57 What Are Things You Can Do That Are NOT UCI? Withhold Authority over:types of offensestypes of offenders,or certain commanders.I.e., withholding convening of courts-martial, withholding exercise of the disposition of Sexual Assault casesReach down and take specific cases.Send cases back down:with guidance to resolve at their level,with their tools (including taking no action).If you send a case back down to a subordinate, you cannot “boot-strap conditions” i.e., “I’ll let you handle this case provided you at least give X, Y, or Z.”Instructor Comment:There are matters that the commander may do that are not considered a violation of UCIOften, battalion commanders withhold drug offenses and certain types of assaults to their level, and often, commanding generals withhold the authority to deal with officer and senior NCO misconduct.
58 Actions by the Convening Authority The Convening Authority (CA) mayApprove the findings or sentence, in whole or in partDisapprove the findings or a sentence, in whole or in part unless the findings are Not GuiltyRemit, commute, or suspend the sentence in whole or in partOrder a rehearing on the findings, on the sentence, or on both (except when at trial the evidence is insufficient to support the findings)Dismiss the chargesPunishmentThe C.A. must take action on the sentenceThe C.A. may take action on the findingsInstructor Comment:If the Sentence includes a Bad-Conduct or Dishonorable DischargeThe C.A. cannot execute the sentence until appellate review has been completed, unless accused waived his right to appeal in writingC.A. is not required to take action on the findings of the Court-Martial. However, C.A. has sole discretion to:Dismiss any charge by setting aside a finding of guilty;Change a finding of guilty to a finding of guilty to a lesser-included offense;Set aside a reduction in rank and pay grade, even if the C.A. does not set aside, remit, or reduce the confinement adjudged by the Court-MartialOrder a Rehearing on findings of guilty (Except where the evidence was insufficient at the trial to support the findings)C.A. may order a proceeding in revision or a rehearingA Rehearing is essentially a new trialProceeding in revision is used to correct technical defectsDue to an error or omission in the record orIf the record shows improper or inconsistent action by a Court-Martial with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of accused
59 Appeals The Accused must submit: Within 10 days after receiving record of trialFor SCM the accused has 7 days after sentencingCourt-Martial Convening Authority (CMCA) appoints Courts-Martial Military Review PanelCourt-Martial Military Review PanelInitial appeals are reviewed and ruled uponSelection of Panel Members based on:Best qualified by reason of: age, education, training, experience, length of service and judicial temperament.Writ of Cert. to the Alabama Supreme CourtIf the accused seeks additional review, he must petition for a Writ of Cert. to the Supreme CourtInstructor Comment:The accused has 10 days after receipt of the authenticated Record of Trial to submit matters for consideration. Note the difference in time for Summary Courts-martial.It is possible to request up to an additional 60 days to submit matters but must be for good cause shown. (This is determined by the CA or person taking action)See post trial procedures AMCM ch. 9 Art ACMJ
60 Training Objectives Summary Compare ACMJ and UCMJ Justice SystemsDiscuss ACMJ JurisdictionInvestigationsDiscuss Administrative ActionsDiscuss Nonjudicial Punishment, Article 15Understand Courts-MartialInstructor Comment: Courts-Martial are a backup system: Primary jurisdiction lies w/ USA Office or local DAThis training is required by TAG. The projected date of implementation is 1 February, regardless CDRs still have use of Administrative measures which can include up to discharge.Questions regarding this training package should be directed to the ALNG-OSJA, MAJ Safiya Ingram or COL W. Terry Travis at