In the military, nonjudicial punishment may be imposed by a commander as a means to deal with minor violations of the Uniform Code of Military Justice (UCMJ). While nonjudicial punishment is administrative in nature, it can still have a profoundly negative impact on a military member’s career. If you have been offered nonjudicial punishment, we encourage you to contact JAG Defense for a free consultation with an experienced military defense attorney to discuss your options.
Nonjudicial punishment’s name is drawn from the authorizing statute – Article 15, UCMJ. It is known by different names in different services: “Article 15,” “NJP,” and “Captain’s Mast” are among the most common. When the service member is “offered” an Article 15 action, the commander is notifying the member that he or she believes the member has committed one or more offenses under the UCMJ. Additionally, he or she is presenting the member with a choice: whether or not to “accept” the Article 15. Except under limited circumstances, service members have the right to refuse or “turn down” an Article 15 and demand trial by court-martial. Also except under limited circumstances, members have the right to consult with counsel before making this election. Most of these rules vary by service.
If you decide to accept an Article 15, you lose your right to demand trial by court-martial. However, acceptance of an Article 15 is not an admission of guilt. Rather, it is your decision to have the imposing commander determine whether you are guilty or not guilty of the offenses of which you are suspected. The commander essentially becomes judge and jury with your permission and you waive your right to have the case heard by a court-martial. Once you “accept” the Article 15, the imposing commander must listen to your side of the case, if you decide to present any matters. You may present witnesses or other evidence (statements, police reports, etc.) to show why you are not guilty, or you may personally speak on these matters; why you should not be punished, or why your punishment should be very light. You may also ask someone to act as your spokesperson and to speak to the commander on your behalf. You may also choose to remain silent. Whether or not a military lawyer will be present, at your request, to assist you in front of the commander is service dependent.
You have a right to have witnesses testify on your behalf. As a general proposition, there are two kinds of witnesses: defense or “fact” witnesses and character witnesses. A fact witness is a person who can testify or provide evidence to show why you are not guilty. A character witness is a person who can testify that you are a good military member and thus unlikely to have committed the charged offense, or, if you did commit the offense, that you can be rehabilitated. With some limitations, live witnesses may be presented. Even if a live witness cannot be present, written statements and other documents can be presented. The Military Rules of Evidence do not apply at an Article 32 hearing. Accordingly, there are various ways to present evidence in front of the imposing commander.
After all the evidence in your case has been presented, the commander will decide whether you committed the offense(s). If the commander decides that you are not guilty of the charge(s), the proceeding ends and the Article 15 is destroyed. If he or she determines you committed the charged offense(s), the commander will then determine what punishment should be imposed. You will be personally notified what the punishment is and it will be written in on the Article 15 form.
If you are found guilty, you may present evidence in extenuation and mitigation to influence the commander’s decision as to an appropriate punishment. Matters in extenuation serve to explain the circumstances surrounding the offense. Matters in mitigation are introduced to lessen the possible punishment you might receive because of your personal situation, service record, acts of bravery, reputation, etc. If a service member has a tenuous personal situation; for example, if married with children, it is especially important to provide the commander with evidence of your family’s financial situation and what impact rank reduction and forfeitures would have on your spouse and children.
Maximum punishments which may be imposed, typically, for enlisted personnel under Article 15 follow:
Field Grade Article 15 (Imposed by a Major/Lieutenant Commander or higher)
Company Grade Article 15 (Given by Captain (O-3) or Lieutenant)
Again, there may be some service variation in the implementation of these rules, as well as other limits put upon imposing commanders. Punishment options are different for officer Article 15 actions, and the follow-on administrative actions for an officer can also be very significant.
Sometimes, an imposing commander may decide to “suspend” the punishment. He or she can do this regarding all or some of the punishment. If a commander agrees to suspend your sentence, he or she will decide on a punishment, but not impose it. The commander will give the member a set period of time to prove to him or her that further misconduct will not occur. If the member completes this set period of time without further misconduct, the sentence will be dismissed. However, should further misconduct occur (even very minor misconduct) during the period of suspension, the suspension will be lifted immediately and the punishment will be fully imposed as initially decided. Unsuspended punishments may begin immediately upon a finding of guilt, but may be delayed due to a variety of reasons.
The member may appeal the commander’s Article 15 decision to the next higher commander within five calendar days from the date the initial punishment is announced. Typically, but not always, the punishments of extra duty and restriction begin the same day they are imposed – rank reduction and forfeitures may also be imposed while awaiting the appeal decision but typically they are postponed pending the appeal decision. If the member fails to submit an appeal within five calendar days, the commander may reject your appeal as untimely.
There are a variety of follow-on administrative actions that may/will be initiated after the imposition of Article 15 action. These follow-on administrative actions are very service-specific and include such matters as establishment of an Unfavorable Information File, Performance/Restricted OPMF Section Filing, Officer Selection Record Filing, Performance/Fitness Report annotation, etc.
If the service member decides to refuse or “turn down” the Article 15 action, the chain of command will then decide whether to drop the case or forward it for court-martial action. The decision whether to turn down an Article 15 and demand a court-martial is a serious decision and should not be made without first consulting with a lawyer, preferably a seasoned trial lawyer who can help you fully assess the evidence and give you well-reasoned advice, based upon trial experience, of the benefits and dangers inherent in the choice.
If the command decides to go forward with a court-martial, then, depending on the circumstances of your case, the command will refer your case to a Summary Court-Martial, a Special Court-Martial, or a General Court-Martial. In many cases involving an Article 15 turn-down, a Summary Court-Martial will be convened, but this preference is very service-specific. Often, in some services, the command tends to move directly to trial by Special Court-Martial when an Article 15 is turned down. (Please see our Courts-Martial Practice Area page for additional information). The service member should carefully consider the consequences of a court-martial conviction. Depending upon the level of court, it may be considered a federal conviction and the member may be precluded from certain benefits and employment opportunities. Because these consequences can be so devastating, it is again important to seek the advice of a seasoned trial lawyer before making decisions in the Article 15 arena.
If you have been offered an Article 15, please contact JAG Defense for a free consultation with an experienced military defense lawyer regarding your case.