44/14/2017NATURE & AUTHORITYDisciplinary Action - more serious than NPM's - less serious than CM - for minor offensesTermsUSN/USCG: MastUSMC: Office HoursUSAF/USA: Article 15
5Commanding Officer NJP Authority 4/14/2017All Military Members of CommandJurisdiction determined at time of MastCO may not delegate NJP authorityFlag Officer may delegate authority to principal assistant
6Officer-in-Charge NJP Authority 4/14/2017Enlisted Members OnlyRegardless of OIC's rank
7EMBARKED UNITS JAGMAN 0108 Unit Attached/Embarked on Ship: 4/14/2017JAGMAN 0108Unit Attached/Embarked on Ship:CO defers NJP authority to CO of the shipExample: Squadrons on CVN’sUnit Embarked only for Transportation:CO retains NJP authorityShip CO also has NJP authorityCO 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.
8“PURPLE" CONSIDERATIONS 4/14/2017“PURPLE" CONSIDERATIONSJAGMAN 0106(d)USN/USMC RuleNJP authority given to other service CO’sJoint CO may designate “Navy Unit” CO for NJPOther ServicesArmy/Air Force personnel returned for NJPIf 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).
10OFFENSES PUNISHABLE MCM, Part V 4/14/2017Theory: NJP is for “minor” offensesMajor: punished by DD or >1 yearconfinementMinor: everything elseReality: CO has VERY BROAD discretion based on the facts & situation
11FORMER PUNISHMENT Major Offense - Credit for NJP 4/14/2017FORMER PUNISHMENTMajor Offense - Credit for NJPMinor Offense - Bar to CMMJ Decides
12PRIOR CIVILIAN ACTION FEDERAL COURT: Bar to NJP/CM 4/14/2017PRIOR CIVILIAN ACTIONJAGMAN 0124, MJM 1.A.7.cFEDERAL COURT: Bar to NJP/CMSTATE/FOREIGN COURTS:No Double Jeopardy IssueRequires PermissionNJP/SCM: GCMCA consentSPCM/GCM: OJAG consentLANTFLT 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.
13FROM DATE OF OFFENSE TO DATE OF PUNISHMENT STATUTEOFLIMITATIONS4/14/2017TWO YEARS FOR NJPNo “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
14ACCUSED’S RIGHTS REGARDING NJP 4/14/2017ACCUSED’S RIGHTS REGARDING NJP
15PRIOR TO NJP HEARING MEMBER INFORMED: 4/14/2017MEMBER INFORMED:That CO is considering imposing NJPChargesEvidenceRight to Refuse NJP, if applicableRight to Personal AppearanceRights at the Hearing
164/14/2017RIGHT TO REFUSE MASTALL members have right to refuse Article 15 punishment, UNLESS:THEY ARE ATTACHED TO OR EMBARKED UPON A VESSEL
17No “BOOKER RIGHTS” = No Later Use! 4/14/2017U. 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.
184/14/2017U.S. v. EDWARDS46 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.
19U.S. v. EDWARDS4/14/2017LESSONS:The less “operational” a ship is, the greater the chance that it does not fit into the “vessel exception”Creates no new right at NJPCase only impacts use of NJP in aggravation at later Court
20DISCIPLINARY REVIEW BOARD and EXECUTIVE OFFICER INQUIRY 4/14/2017Unique to the NavyNo requirement for DRB or XOIXO Authority:No punishment powerForward to CO, Dismiss, NPM
21RIGHTS AT HEARING To be Present To Remain Silent 4/14/2017To be PresentTo Remain SilentMiranda Warnings?To a Personal RepresentativeLawyer?To Examine the EvidenceIs 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).
22RIGHTS AT HEARING To present a defense To present E & M evidence 4/14/2017To present a defenseReasonably Available WitnessesTo present E & M evidenceTo a public hearingPrivate Hearing?
23ADMINISTRATIVE MATTERS 4/14/2017ADMINISTRATIVE MATTERSScript in JAGMAN A-1-(e)(1) and Enclosure (1) of MJMRules of Evidence Do Not ApplyExcept for PrivilegesStandard: 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.
24ADMINISTRATIVE MATTERS 4/14/2017ADMINISTRATIVE MATTERSCO retains full range of disposal optionsPublication of resultsFull results okay to military membersNo names if non-military could see itPOW NotesBest practice is to publish rank/rate only (no name), offense and punishment.
26PUNISHMENTS Reprimand or Admonition Reduction in Rate 4/14/2017PUNISHMENTSReprimand or AdmonitionReduction in RateForfeiture of PayRestraint on Personal LibertyConfinement on B&WCCUArrest in QuartersRestrictionExtra Duties
27REPRIMAND A PUNITIVE chewing out!!! Enlisted: Oral or written 4/14/2017REPRIMANDA PUNITIVE chewing out!!!Enlisted: Oral or writtenOfficer: Must be in writingPunitive Letter of ReprimandSample: JAGMAN A-1-g and MJM Enclosure (6b)May be combined w/ all other punishments
28REDUCTION IN RATE ONLY IMPOSED ON ENLISTED MEMBERS 4/14/2017ONLY IMPOSED ON ENLISTED MEMBERSOnly for pay grades:USN & USCG: E-6 & BelowUSMC: E-5 & BelowMaximum of ONE PAYGRADE!!!!May be combined with other punishmentsEffect 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).
29FORFEITURE OF PAY Maximum: 1/2 of month’s pay x 2 4/14/2017Maximum: 1/2 of month’s pay x 2O-3 CO’s & OIC’s: 7 DaysOfficers: Only if imposed by 0-7+If reduced at same time, max FF based on reduced pay gradeMay be combined with all other punishmentsFF of ½ ppm (basic pay – does not include allowances) for 2 months.
30CONFINEMENT WITH BREAD & WATER 4/14/2017ONLY E-3 & below!Not authorized punishment in USCGONLY while attached to or embarked on ship!ONLY for max of 3 daysCombine Punishment?Yes: Non-RestraintNo: With other RestraintCan reduce an E-4 to E-3 and then award 3 days B&W. Also not authorized by Army or Air Force.
31CORRECTIONAL CUSTODY UNIT 4/14/2017CORRECTIONAL CUSTODY UNITOnly on E-3 & belowMAX: 30 DaysO-3 CO’s & OIC’s: 7 DaysCombined Punishment?Yes: Non-RestraintNo: RestraintCan reduce an E-4 to E-3 and award CCU. Cannot do that at SCM.
34“Arrest” is a Military Term of Art 4/14/2017ARREST IN QUARTERS“Arrest” is a Military Term of ArtOnly Imposed on OfficersOnly Imposed by Flag OfficerCombined Punishment?Yes: Non-RestraintNo: Restraint
35RESTRICTION Restricted to limits of base/ship MAX: 4/14/2017RESTRICTIONRestricted to limits of base/shipMAX:Enlisted: 60 days, 45 with Extra DutiesOfficer: 30 days60 days if imposed by Flag15 days if imposed by O-3 or below COOIC: 14 daysCoast Guard may actually defer restriction or restriction with extra duties while underway until unit returns to port. MJM 1.E.3.d(1)
36EXTRA DUTIES Only Imposed on Enlisted Members 4/14/2017EXTRA DUTIESOnly Imposedon Enlisted MembersRuns Concurrently When Combined with RestrictionDo NOT confuse this punishment with Extra Military Instruction, which some people mistakenly refer to as “extra duties”.45 Days Max
37MAXIMUM PUNISHMENTS Use NJS Max Punishment Chart!!! Impacted by: 4/14/2017MAXIMUM PUNISHMENTSUse NJS Max Punishment Chart!!!Impacted by:Imposing Officer’s RankService Member’s RankShip or Shore?How some punishments can and cannot combine with others
39NJP APPEALS USN: ISIC or Area Coordinator with Judge Advocate 4/14/2017NJP APPEALSREVIEW AUTHORITYUSN: ISIC or Area Coordinator with Judge AdvocateUSMC/USCG: Chain Of Command with Judge AdvocateMJM 1.F.2JAGMAN 0117
40NJP APPEALS Grounds: Timing Unjust Disproportionate 4/14/2017SUBMISSION PROCEDUREGrounds:UnjustDisproportionateTiming5 Working Days from NJP (USCG – 5 calendar days)Extensions may be grantedDay of NJP does not count in computing these days.
41NJP APPEALS Comment on Basis for Appeal 4/14/2017COMMAND ACTIONComment on FactsComment on Basis for AppealEnclose Copies of InvestigationEnclose Copies of Accused's Record of Performance
42RESTRAINT AND EXTRA DUTIES MUST BE STAYED NJP APPEALS4/14/2017STAY OF PUNISHMENTIF ACCUSED:Files timely appealRequests stay of punishmentAppellate authority fails to act w/in 5 days of submissionRESTRAINT AND EXTRA DUTIES MUST BE STAYED
43NJP APPEAL REVIEW AUTHORITY Reviewed for abuse of discretion 4/14/2017REVIEW AUTHORITYReviewed for abuse of discretionReferred to JAG for recommendationMay order a new hearing or take corrective actionIf new hearing, punishment cannot exceed first NJP
44CORRECTIVE ACTION AUTHORITY CO who imposed punishment 4/14/2017AUTHORITYCO who imposed punishmentSuccessor in CommandSubsequent CO after transfer of memberReview Authority
45TYPES OF CORRECTIVE ACTION 4/14/2017Generally, must be taken w/in 4 months of execution of punishmentSet AsideRemissionMitigationSuspension – max 6 months
46KEY TAKEAWAYS When may NJP be imposed and upon whom Lawful punishments 4/14/2017When may NJP be imposed and upon whomEffect of prior punishmentLawful punishmentsLimitations of punishmentsCombination of punishmentsUse punishment chartNJP AppealsGroundsTimeframe