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

2. Learning Objectives Understand: Nature of NJP NJP Jurisdiction
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Learning Objectives
Understand:
Nature of NJP
NJP Jurisdiction
Effect of prior civilian action
Accused’s NJP rights
NJP punishments
NJP appeal procedure

3. 4/14/2017
PURPOSE
AND
AUTHORITY

4. 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

5. Commanding Officer NJP Authority
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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

6. Officer-in-Charge NJP Authority
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Enlisted Members Only
Regardless of OIC's rank

7. EMBARKED UNITS JAGMAN 0108 Unit Attached/Embarked on Ship:
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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.

8. “PURPLE" CONSIDERATIONS
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“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).

9. 4/14/2017
PUNISHABLE OFFENSES

10. 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

11. FORMER PUNISHMENT Major Offense - Credit for NJP
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FORMER PUNISHMENT
Major Offense - Credit for NJP
Minor Offense - Bar to CM
MJ Decides

12. PRIOR CIVILIAN ACTION FEDERAL COURT: Bar to NJP/CM
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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.

13. FROM DATE OF OFFENSE TO DATE OF PUNISHMENT
STATUTE OF
LIMITATIONS
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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

14. ACCUSED’S RIGHTS REGARDING NJP
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ACCUSED’S RIGHTS REGARDING NJP

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

16. 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

17. No “BOOKER RIGHTS” = No Later Use!
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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.

18. 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.

19. 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

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

21. RIGHTS AT HEARING To be Present To Remain Silent
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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).

22. RIGHTS AT HEARING To present a defense To present E & M evidence
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To present a defense
Reasonably Available Witnesses
To present E & M evidence
To a public hearing
Private Hearing?

23. ADMINISTRATIVE MATTERS
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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.

24. ADMINISTRATIVE MATTERS
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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.

25. 4/14/2017
PUNISHMENTS

26. PUNISHMENTS Reprimand or Admonition Reduction in Rate
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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

27. REPRIMAND A PUNITIVE chewing out!!! Enlisted: Oral or written
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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

28. 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).

29. 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.

30. 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.

31. 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.

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34. “Arrest” is a Military Term of Art
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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

35. RESTRICTION Restricted to limits of base/ship MAX:
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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)

36. EXTRA DUTIES Only Imposed on Enlisted Members
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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

37. MAXIMUM PUNISHMENTS Use NJS Max Punishment Chart!!! Impacted by:
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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

38. APPEALS & CORRECTIVE ACTION
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APPEALS & CORRECTIVE ACTION

39. NJP APPEALS USN: ISIC or Area Coordinator with Judge Advocate
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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

40. NJP APPEALS Grounds: Timing Unjust Disproportionate
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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.

41. NJP APPEALS Comment on Basis for Appeal
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COMMAND ACTION
Comment on Facts
Comment on Basis for Appeal
Enclose Copies of Investigation
Enclose Copies of Accused's Record of Performance

42. RESTRAINT AND EXTRA DUTIES MUST BE STAYED
NJP APPEALS
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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

43. NJP APPEAL REVIEW AUTHORITY Reviewed for abuse of discretion
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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

44. CORRECTIVE ACTION AUTHORITY CO who imposed punishment
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AUTHORITY
CO who imposed punishment
Successor in Command
Subsequent CO after transfer of member
Review Authority

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

46. KEY TAKEAWAYS When may NJP be imposed and upon whom Lawful punishments
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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