Military law is a complex practice which usually involves the intersection of military regulations, orders, instructions, the Uniform Code of Military Justice ("UCMJ"), the Rules for Courts-Martial, and the Military Rules of Evidence. Navigating through these authorities requires special training, experience, and a thorough understanding of military life and culture. The consequences of violating the rule of law in the military can be devastating and can include reduction in rank, loss of pay, incarceration, discharge, and even the total loss of your retirement benefits. Because the military justice system moves very quickly, it is imperative to obtain legal counsel during the early stages of a case, i.e., before charges are filed against you (called "preferral/referral") and, if possible, during the investigative stage.
Often, but typically in serious cases (general courts-martial), service members wait too long to retain civilian counsel. This is not surprising. In the military, we are engrained with a deep sense of loyalty and camaraderie. Military members who face accusations of wrongdoing keep hoping their superiors and their branch of service won't turn their back on them. Unfortunately, by the time charges are filed against a service member, there are too many outside and "political" factors that trump concepts of "camaraderie and loyalty."
Non-Judicial Punishment (Article 15 of the Uniform Code of Military Justice)
A non-judicial punishment ("NJP") in the United States Armed Forces is a disciplinary procedure authorized by Article 15 of the Uniform Code of Military Justice. ("UCMJ") An NJP permits commanders to administratively discipline troops without a court-martial. Military commanders consider NJP an important disciplinary tool in their "quiver" of justice. Punishment can range from reprimand to reduction in rank, loss of pay, extra duty, and/or restrictions. While the receipt of an NJP does not constitute a criminal conviction (it's equivalent to a civil action), it is often the "fine line" that leads to a court-martial....here's why....
An NJP typically involves allegations that you have violated the UCMJ - either through an orders violation (Article 92) and/or a more serious offense such as assault, larceny, etc. In most situations, when a commander "offers" a you an NJP, he/she is wanting to handle the issue at an administrative level. However, at the NJP level, you have little to no chance of excluding evidence and/or testimony that may have been obtained through unlawful means or that exaggerates the truth. An NJP is really the commander's court and almost anything goes. Therein lies the problem. If you believe you are innocent and do not want to admit to things you have not done or are being exaggerated, you may not want to "accept" NJP. If you are in a situation where you can deny NJP (for example in the Navy if you are on a ship going vessel, you typically cannot decline NJP), you have a tough choice to make. If you decline NJP, the commander has few options, he/she must either drop the case against you, or escalate it to an appropriate court-martial level. That decision can impact your career, liberty, pay, and reputation.
The type of punishment you can be "awarded" (that is the silly term, because trust me when I tell you, you won't like the "award") at NJP depends on the rank and position of the commander and that of the accused.
Before determining whether to accept or decline NJP, contact us for a free consultation.
Courts-Martial (Summary, Special, General)
A court-martial is very different from a civilian court. First, it is governed by a unique body of law the UCMJ, the Rules for Courts-Martial (RCM) and the Military Rules of Evidence, which in turn can "borrow" rules and procedures from military instructions and standing orders. Violating an article of the UCMJ at the court-martial level is a criminal offense and can carry severe consequences including, loss of liberty (restriction/incarceration), reduction in grade/rank, loss of pay, and/or a discharge. Second, a court-martial is a very unique beast. Unlike a civilian court, it is not a "standing" court - in other words, it is only created (by a commander, called a Convening Authority) for the specific purpose of handling the disposition of criminal charges. But like a civilian court, a judge presides over the court-martial. Additionally, unlike an NJP and/or an Administrative Separation Board (See Separations) rules of evidence apply - this means that your attorney can keep out evidence that has been unlawfully obtained or would be extremely prejudicial if admitted.
The punishment that you can be awarded at a court-martial depends on the type of court-martial you are facing. A Summary Court-Martial is an intermediary level between an NJP and a Special Court-Martial. If I were to compare it to a civilian proceeding, I would compare it to a small-claims court in the manner in which it is handled and administered, except the punishment and conviction is criminal in nature. Like an NJP, the punishments that can be awarded at NJP depend on the rank of the accused.
A Special Court-Martial is akin to a misdemeanor offense out in town. Depending on the charge you are facing, the potential maximum punishment is 1 year confinement, reduction in rank to E-1, forfeiture of 2/3 pay for up to 1 year, and a Bad Conduct Discharge. A Special Court-Martial carries long-term consequences. Not only can it end your military career or lead to the loss of your retirement benefits, it may (and likely will) have an effect on your ability to find a job, get an education, and/or obtain VA benefits,
A General Court-Martial is the equivalent of a felony-level court in the civilian sector. Again depending on the charges you are facing, the range of punishments you can be awarded at a General Court-Martial can similar to that of a Special Court-Martial except a discharge would be labeled "Dishonorable" and can land you in a military prison for life.
Before getting to a General Court-Martial, the military must hold a proceeding called an Article 32 hearing. An Article 32 hearing is very similar to a "preliminary hearing" in civilian court - the purpose is to determine whether there is sufficient evidence to proceed to a General Court-Martial. In order to commence an Article 32, the commander (Convening Authority) initiates an Article 32 investigation and appoints an officer to conduct the investigation. Once the investigation/hearing is complete, that investigator submits his/her report to the Convening Authority with various recommendations which can vary from dismissal of some or all charges, and how the case should be disposed of (Special, Summary, NJP, or General Courts-Martial). The report typically includes an evaluation of the case, including potential hurdles faced by the government. Because the result of the Article 32 hearing can literally determine whether you face a General Court-Martial, a Special, or even no charges at all, it is critical that you are adequately represented by an attorney.
If you are facing the possibility of a court-martial, contact attorney Joe Casas immediately for a free consultation.