MILITARY JUSTICE -- AN OVERVIEW --

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MILITARY JUSTICE -- AN OVERVIEW --

• 43d MP BDE, JAG

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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

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THE COMMANDERS TOOL

• 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

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CONSIDER ADMINISTRATIVE OPTIONS FIRST

• Corrective training
• Counseling
• Admonition / Reprimand
• Withdraw of Privileges
• OER/EER
• Bar to Reenlistment
• Administrative separation/elimination

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ART 15 Commanders Notebook

• Art 15 UCMJ
• Manual for Courts Martial
• DA Forms 2627 and 2627-1
• AR 27-10
• Commanders Legal Guide

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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.

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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

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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

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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

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ART 15 PROCEDURES

• Summarized and Formal
• Company Grade, Field Grade, General Officer
• Commanders have options
• Guilt or innocence
• Punishments
• Filing

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SUMMERIZED ART 15

• Punishment
• Same regardless of Commanders Rank
• 14 days restriction
• 14 days extra duty
• Oral admonition or Reprimand

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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

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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

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COMMANDERS 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

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IMPOSITION OF PUNISHMENT

• Immediate
• Unless otherwise stated
• Appeal not acted upon within 3 days stays
  imposition of liberty provisions

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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

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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

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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

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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

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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

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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

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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 200/912.6021.92 x Pay Earned
• If soldier earns no pay during the period then no
  pay is fortified

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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

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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...

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COMMANDERS HEARING

• IS THE SAME
• Presentation of evidence
• Evidence in defense, extenuation and mitigation

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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

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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.

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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...

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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

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MAJOR MISCONDUCT - COURTS MARTIAL

• Federal Conviction
• Various Levels
• The Players
• The Rules
• Special Problems for Reserves

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SEARCH, SEIZURE, AND INVESTIGATION
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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

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ART 31 RIGHTS

• Its not Maranda
• Mere Suspect
• Superior subordinate relationship
• Investigative relationship

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VIOLATIONS OF 4TH AND 5TH AMENDMENT RIGHTS

• Art 138 complaint
• IG complaint
• Use of evidence

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QUESTIONS???