Every new recruit and officer candidate is taught about the Uniform code of Military Justice (UCMJ) and their rights should they ever face allegations of misconduct. However, few of us remember all of these rights such hypothetical charges become reality.
As a result, too many Soldiers, Sailors, Airmen, and Marines accept non-judicial punishment (NJP) rather than fully exercising their rights to a trial by court-martial. Depending on the severity of the charges, this can be a costly mistake with long term consequences lasting far beyond a military career.
While some charges of misconduct are unique to the military, many allegations of crimes are similar to their counterparts in the civilian world, including:
- Drug crimes, including possession, distribution and selling
- Failing or refusing to comply with mandatory urinalysis testing
- Sex crimes, including sexual harassment
- Computer crimes, including possession of child pornography
A finding of guilt for committing any of these crimes, whether as a result of NJP or a court-martial, can have a devastating impact on both a person’s military career and civilian life. This article proposes that service members should give more thought to the decision before accepting NJP; whether you call it Article 15 (Army), Mast (Navy), Nonjudicial punishment (Air Force), or Office Hours (Marine Corps).
The Cons May Outweigh the Pros of NJPs
For many military personnel, accepting NJP seems to be the default mode: a safer, easier route. They fear taking a chance with the seemingly more dangerous choice of trial by court-martial. NJP punishment limits are greater than those that can be imposed by a court-martial – though this does not mean that these punishments should be taken lightly. For example, even though confinement is not available in an NJP (except in a very limited manner when imposed by a ship’s captain) NJP may result in pay forfeiture, reduction in paygrade, or loss of liberty for up to sixty days.
The rules at NJP do not make it a safer, easier route than trial by court-martial. For example, the Military Rules of Evidence (MRE) do not apply in NJPs. These important rules, however, do apply in every type of court-martial.
Secondly, NJPs require a lower standard of proof than courts-martial. The officer hearing the case only has to be convinced of guilt by a preponderance of the evidence (the so-called “51% rule”) to find against the service member. In a court-martial, the military judge or the military jury must find the service member guilty of the alleged conduct beyond a reasonable doubt – a much higher standard of proof than preponderance of the evidence.
Finally, during NJP hearings, the person responsible for determining the guilt or innocence of the service member and assigning punishment is a person who is ofttimes neither impartial nor neutral. In special and general courts-martial, those decisions are made either by a military judge or by a panel of jurors, called members in military law. The former is an independent and neutral magistrate, while the latter go through a long interview process, called voir dire, designed to weed out prejudice, bias, and lack of judicial temperament. As a practitioner of military justice for well over twenty years, I can attest that the military justice process is more just, thoughtful, and fair than the civilian criminal justice system.
For these reasons, it is often in a service member’s best interest to exercise his or her right to refuse non-judicial punishment and demand trial by court-martial.
How a Civilian Criminal Defense Attorney Can Help
Once a service member refuses NJP, then the Commanding Officer, or Convening Authority, has to decide whether to drop the charges or send them to a court-martial. During either process – NJP or court-martial – service members need to remember that they have the right to the advice and counsel of a civilian criminal defense attorney.
Some may be hesitant to hire a civilian lawyer, believing that a civilian lawyer would not have sufficient experience with the military or military law. This is only true if one does not do any research. There is a small corps of attorneys who are very experienced in military law, and any service member would be wise to do his or her research to find such an attorney.
These civilian criminal defense attorneys have more experience defending service members against allegations of misconduct than junior judge advocates (attorneys serving on active duty). Unfortunately, very few senior judge advocates are assigned to defense work. Simply put, seasoned civilian defense attorneys have years more experience in both the military and civilian legal systems than their junior counterparts serving on active duty. It is that fact which best explains why service members make the financial sacrifice to hire a civilian defense counsel even though they have access to free legal representation by a judge advocate.
The key is finding the best defense attorney for your case. Effective civilian defense attorneys understand the military legal system and how best to build a case and challenge allegations of misconduct. Civilian lawyers also understand what the service member has on the line and how criminal conviction can haunt a service member for years beyond the end of military service.
There is always a risk involved in accepting NJP or having allegations of misconduct handled by court-martial. Depending on the circumstances, a service member’s best interests are often best served in the long term by fighting the charges in a court-martial than simply accept NJP.
Do not waive your rights to a court-martial until you fully understand what you may be irrevocably surrendering. For more information on your available options following allegations of misconduct, call an experienced criminal defense attorney.