Overview of Military Justice

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THE PURPOSE OF MJ

To set the Standard

Provide a process for enforcement

Reinforce values that provide for an effective fighting force

Must be used with reason rather than emotion

Each case must be considered on its own merits

Process must be conducted in accordance with law and regulation

The commander is a magistrate

Corrective training

Counseling

Admonition / Reprimand

Withdraw of Privileges

OER/EER

Bar to Reenlistment

Administrative separation/elimination

ART 15 Commanders Notebook

Art 15 UCMJ

Manual for Courts Martial

DA Forms 2627 and 2627-1

AR 27-10

Commanders Legal Guide

Purpose of Non-Judicial Punishment

Correct Educate and Reform Offenders who have shown that they cannot benefit by less stringent measures

Preserve an offender’s record of service

Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel then trial by court-martial.

Authority to Administer NJP

A commander who is a Commissioned or Warrant Officer of a

Troop, Battery, Company

Numbered Unit or Detachment

Authority is personal to the Commander

Authority may be withheld but not interfered with, AR 27-10 withholds Officer Art 15 to the GCMCA or General Officer Level for RC soldiers

WHO MAY BE GIVEN AN
ART 15?

Members of the command

Persons Detailed

Orders?

Where do they sleep, get paid, eat, work; duration

Transfer terminates status; forward to gaining command

RC officers, GCMCA or Gen. Officer

WHAT TYPES OF OFFENCES?

Minor

Maximum punishment under UCMJ does not include a BCD

Violation of a General Order, 2yrs DD

Common sense consider age, intelligence, experience, prior service

Regulation is a guide

Real minor offense bars Court Martial

ART 15 PROCEDURES

Summarized and Formal

Company Grade, Field Grade, General Officer

Commanders have options

Guilt or innocence

Punishments

Filing

SUMMERIZED ART 15

Same regardless of Commander’s Rank

14 days restriction

14 days extra duty

Oral admonition or Reprimand

SUMMERIZED ART 15, NOTICE, (E-7 or Above)

Intent to impose punishment

Maximum Punishment

Offense and ART violated

Art 31 Rights

Right to Demand Trial

Right to confront witnesses, examine evidence, submit matters in defense, extenuation, and mitigation (spokesperson)

Right to Appeal

AFTER NOTICE OPPORTUNITY TO DECIDE

Soldier gets a reasonable time (24 hours)

No right to an attorney

Soldier returns and notifies commander of his decision

If declines hearing ends

If accepts commander conducts hearing

COMMANDER’S HEARING

Commander considers evidence oral and written against the soldier

Commander considers evidence submitted by the soldier; defense, extenuation or mitigation

Commander deliberates (standard is Beyond A Reasonable Doubt)

Commander imposes punishment

IMPOSITION OF PUNISHMENT

Immediate

Unless otherwise stated

Appeal not acted upon within 3 days stays imposition of liberty provisions

NOTICE OF APPELLATE RIGHTS

Commander explains rights of appeal and soldier indicates his selection on the DA Form 2627-1, immediately or has 5 days to decide

If appealed Command has 3 days to act or must suspend deprivations of liberty

FILING OF SUMMERIZED
ART 15

Handwritten on a DA Form 2627-1

Maintained in local Art 15 file

Destroyed upon transfer or after 2 years which ever occurs first

FORMAL ART 15

Differs because of the punishment that can be imposed

Level of punishment based upon grade of commander

Additional rights afforded the soldier

PUNISHMENT COMPANY GRADE

Admonition or Reprimand; oral or written

Extra Duty 14 days

Restriction 14 days or Correctional Custody for 7 days (but must be E-3 or below and there must be a facility)

Reduction of E-2 to E-4 one grade

Forfiture of 7 days pay

PUNISHMENT FIELD GRADE/GENERAL OFFICER

Admonition or Reprimand; oral or written

Extra Duty 45 days

Restriction 60 days or Correctional Custody for 30 days (but must be E-3 or below and there must be a facility)

Reduction of E-2 to E-4 one or more grades, reduction of E-5 one grade

Forfeiture of 1/2 of one months pay for 2 months

OFFICER PUNISHMENT

Only General Officers or GCMCA

Admonition or Reprimand; oral or written

Arrest 30 days or Restriction 60 days

Forfeiture of pay 1/2 of one months pay for two months

SPECIAL FORFITURE RULES FOR RESERVE SOLDIERS

If RC soldier is not serving punishment on AD then apply a forfeiture to percentage to pay earned during forfeiture period

The percentage is applied to pay earned during period of forfeiture

Example 200/912.60=21.92% x Pay Earned

If soldier earns no pay during the period then no pay is fortified

SUSPENSION OF PUNISHMENT

Commander may suspend punishment for up to 6 months

Any violation of UCMJ can result in imposition of the punishment plus the initiation of another ART 15

Can be a good option of some soldiers

FORMAL ART 15 ADDITIONAL RIGHTS

Right to consult with counsel

Right to request an open hearing

Maximum punishment that could be imposed, plus if asked the maximum punishment for a Courts Martial

Reasonable period of time is increased to 48 hours, but…

COMMANDER’S HEARING
 

Presentation of evidence

Evidence in defense, extenuation and mitigation

RECORDING THE FORMAL ART 15

DA Form 2627

If E-4 or below and first one filed locally

For all others it goes in the OMPF

Restricted

Performance

If E-5 or above and previous ART 15 on file automatically goes to performance fiche

APPEALS OF NJP

Grounds

Punishment was disproportionate to the offense

Punishment was unjust because it did not comply with the law or regulation

Argue lack of guilt. Note: Acceptance of ART 15 is not evidence of guilt but merely consent to procedures.

APPEALS OF NJP

Procedure

Appeal is started with notation on the DA Form 2627

Within 5 days of imposition of punishment or “for good cause shown”

Appeal to the imposing commander and forwarded to the appellate authority (next line supervisor)

If soldier transferred it goes to the new superior

Must be first sent for legal review if…

APPEALS OF NJP

Appellate Authority Options

Suspend all or a portion of the punishment

Mitigate the punishment – i.e. change reduction to forfeiture, reduce the period of suspension of liberty

Remission of punishment – cancels the unexecuted portion of the punishment

Set Aside punishment if there is a clear injustice, i.e. new evidence unquestionably exculpating the soldier

MAJOR MISCONDUCT – COURTS MARTIAL

Federal Conviction

Various Levels

The Players

The Rules

Special Problems for Reserves

SEARCH, SEIZURE, AND INVESTIGATION

THE COMMANDERS ROLE

Inspections

Cannot target an individual or group

Consistent

Related to health, welfare or unit readiness

Search

Probable cause

Searches not requiring probable cause

Is the place or thing subject to protections

Who can authorize a search

ART 31 RIGHTS

Its not Maranda

Mere Suspect

Superior subordinate relationship

Investigative relationship

VIOLATIONS OF 4TH AND 5TH AMENDMENT RIGHTS

Art 138 complaint

IG complaint

Use of evidence