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Military Justice 101 - Part 4
Nonjudicial Punishment (Article 15)
 More of this Feature
 1 - Introduction to Mil Law
 2 - Counseling & Reprimands
 3 - Admin Discharges
 5 - Self Incrimination
 6 - Pretrial Confinement
 7 - Court-Martials
 8 - Article 138 Complaints
 
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Nonjudicial punishment (NJP) refers to certain limited punishments which can be awarded for minor disciplinary offenses by a commanding officer or officer in charge to members of his/her command. In the Navy and Coast Guard, nonjudicial punishment proceedings are referred to as "captain's mast" or simply "mast." In the Marine Corps, the process is called "office hours," and in the Army and Air Force, it is referred to as "Article 15." Article 15 of the Uniform Code of Military Justice (UCMJ), and Part V of the Manual for Courts-Martial constitute the basic law concerning nonjudicial punishment procedures. The legal protection afforded an individual subject to NJP proceedings is more complete than is the case for nonpunitive measures, but, by design, is less extensive than for courts-martial.

The Term "Officer in Charge" does not mean an "OIC," as a "job title," but rather a specific officer where the flag officer holding general court-martial authority designates the office as the "officer in charge." In most cases, for NJP purposes, such designations are limited to the Coast Guard and Naval Services.

"Mast," "Article 15," and "office hours" are procedures whereby the commanding officer or officer in charge may:

  • Make inquiry into the facts surrounding minor offenses allegedly committed by a member of his command;
  • afford the accused a hearing as to such offenses; and
  • dispose of such charges by dismissing the charges, imposing punishment under the provisions of Art. 15, UCMJ, or referring the case to a court-martial.

What "mast," "Article 15," and "office hours" are not:

  • They are not a trial, as the term "nonjudicial" implies;
  • a conviction; and
  • an acquittal if a determination is made not to impose punishment.

Offenses punishable under article 15. Article 15 gives a commanding officer power to punish individuals for minor offenses. The term minor offense" has been the cause of some concern in the administration of NJP. Article 15, UCMJ, and Part V, para. 1e, MCM (1998 ed.), indicate that the term "minor offense" means misconduct normally not more serious than that usually handled at summary court-martial (where the maximum punishment is thirty days' confinement). These sources also indicate that the nature of the offense and the circumstances surrounding its commission are also factors which should be considered in determining whether an offense is minor in nature. The term "minor offense" ordinarily does not include misconduct which, if tried by general court-martial, could be punished by a dishonorable discharge or confinement for more than one year. The military services, however, have taken the position that the final determination as to whether an offense is "minor" is within the sound discretion of the commanding officer.

Nature of offense. The Manual for Courts-Martial, 1998 edition, also indicates in Part V, para. 1e, that, in determining whether an offense is minor, the "nature of the offense" should be considered. This is a significant statement and often is misunderstood as referring to the seriousness or gravity of the offense. Gravity refers to the maximum possible punishment, however, and is the subject of separate discussion in that paragraph. In context, nature of the offense refers to its character, not its gravity. In military criminal law, there are two basic types of misconduct-disciplinary infractions and crimes. Disciplinary infractions are breaches of standards governing the routine functioning of society. Thus, traffic laws, license requirements, disobedience of military orders, disrespect to military superiors, etc., are disciplinary infractions. Crimes, on the other hand, involve offenses commonly and historically recognized as being particularly evil (such as robbery, rape, murder, aggravated assault, larceny, etc.). Both types of offenses involve a lack of self-discipline, but crimes involve a particularly gross absence of self-discipline amounting to a moral deficiency. They are the product of a mind particularly disrespectful of good moral standards. In most cases, criminal acts are not minor offenses and, usually, the maximum imposable punishment is great. Disciplinary offenses, however, are serious or minor depending upon circumstances and, thus, while some disciplinary offenses carry severe maximum penalties, the law recognizes that the impact of some of these offenses on discipline will be slight. Hence, the term "disciplinary punishment" used in the Manual for Courts-Martial, 1998 edition, is carefully chosen.

Circumstances. The circumstances surrounding the commission of a disciplinary infraction are important to the determination of whether such an infraction is minor. For example, willful disobedience of an order to take ammunition to a unit engaged in combat can have fatal consequences for those engaged in the fight and, hence, is a serious matter. Willful disobedience of an order to report to the barbershop may have much less of an impact on discipline. The offense must provide for both extremes, and it does because of a high maximum punishment limit. When dealing with disciplinary infractions, the commander must be free to consider the impact of circumstance since he is considered the best judge of it; whereas, in disposing of crimes, society at large has an interest coextensive with that of the commander, and criminal defendants are given more extensive safeguards. Hence, the commander's discretion in disposing of disciplinary infractions is much greater than his latitude in dealing with crimes.

Imposition of NJP does not, in all cases, preclude a subsequent court-martial for the same offense. See Part V, para. 1e, MCM (1998 ed.) and page 4-34. Additionally, Article 43(b)(2), UCMJ, prohibits the imposition of NJP more than two years after the commission of the offense.

Cases previously tried in civil courts. Military regulations permit the use of NJP to punish an accused for an offense for which he has been tried by a domestic or foreign civilian court, or whose case has been diverted out of the regular criminal process for a probationary period, or whose case has been adjudicated by juvenile court authorities, if authority is obtained from the officer exercising general court-martial jurisdiction (In the Air Force, such permission can only be granted by the Secretary of the Air Force).

NJP may not be imposed for an act tried by a court that derives its authority from the United States, such as a Federal district court.

Clearly, cases in which a finding of guilt or innocence has been reached in a trial by court-martial cannot be then taken to NJP. However, the last point at which cases may be withdrawn from court-martial before findings with a view toward NJP is presently unclear.

Off-base offenses. Commanding officers and officers in charge may dispose of minor disciplinary infractions (which occur on or off-base) at NJP. Unless the off-base offense is one previously adjudicated by civilian authorities, there is no limit on the authority of military authorities to resolve such offenses at NJP.

Right of the accused to demand trial by court-martial. Except in the case of a person attached to or embarked in a vessel, an accused may demand trial by court-martial in lieu of NJP. The key time factor in determining whether or not a person has the right to demand trial is the time of the imposition of the NJP and not the time of the commission of the offense.

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Information derived from Handbook of Military Justice & Civil Law, Courtesy of the United States Navy

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