MILITARY JUSTICE AN OVERVIEW 43 d MP BDE

MILITARY JUSTICE -- AN OVERVIEW -43 d MP BDE, JAG

THE PURPOSE OF MJ To set the Standard l Provide a process for enforcement l Reinforce values that provide for an effective fighting force l

THE COMMANDERS TOOL Must be used with reason rather than emotion l Each case must be considered on its own merits l Process must be conducted in accordance with law and regulation l The commander is a magistrate l

CONSIDER ADMINISTRATIVE OPTIONS FIRST Corrective training l Counseling l Admonition / Reprimand l Withdraw of Privileges l OER/EER l Bar to Reenlistment l Administrative separation/elimination l

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

Purpose of Non-Judicial Punishment Correct Educate and Reform Offenders who have shown that they cannot benefit by less stringent measures l Preserve an offender's record of service l Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel then trial by courtmartial. l

Authority to Administer NJP l l l 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 2710 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 l Persons Detailed l Orders? l Where do they sleep, get paid, eat, work; duration l Transfer terminates status; forward to gaining command l RC officers, GCMCA or Gen. Officer l

WHAT TYPES OF OFFENCES? Minor l Maximum punishment under UCMJ does not include a BCD l Violation of a General Order, 2 yrs DD l Common sense consider age, intelligence, experience, prior service l Regulation is a guide l Real minor offense bars Court Martial l

ART 15 PROCEDURES Summarized and Formal l Company Grade, Field Grade, General Officer l Commanders have options l – Guilt or innocence – Punishments – Filing

SUMMERIZED ART 15 Punishment Same regardless of Commander’s Rank l 14 days restriction l 14 days extra duty l Oral admonition or Reprimand l

SUMMERIZED ART 15, NOTICE, (E-7 or Above) l l l l 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) l No right to an attorney l Soldier returns and notifies commander of his decision l – If declines hearing ends – If accepts commander conducts hearing

COMMANDER’S HEARING Commander considers evidence oral and written against the soldier l Commander considers evidence submitted by the soldier; defense, extenuation or mitigation l Commander deliberates (standard is Beyond A Reasonable Doubt) l Commander imposes punishment l

IMPOSITION OF PUNISHMENT Immediate l Unless otherwise stated l Appeal not acted upon within 3 days stays imposition of liberty provisions l

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

FILING OF SUMMERIZED ART 15 Handwritten on a DA Form 2627 -1 l Maintained in local Art 15 file l Destroyed upon transfer or after 2 years which ever occurs first l

FORMAL ART 15 Differs because of the punishment that can be imposed l Level of punishment based upon grade of commander l Additional rights afforded the soldier l

PUNISHMENT COMPANY GRADE Admonition or Reprimand; oral or written l Extra Duty 14 days l Restriction 14 days or Correctional Custody for 7 days (but must be E-3 or below and there must be a facility) l Reduction of E-2 to E-4 one grade l Forfiture of 7 days pay l

PUNISHMENT FIELD GRADE/GENERAL OFFICER l l l 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 l Admonition or Reprimand; oral or written l Arrest 30 days or Restriction 60 days l Forfeiture of pay 1/2 of one months pay for two months l

SPECIAL FORFITURE RULES FOR RESERVE SOLDIERS l l 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 l Any violation of UCMJ can result in imposition of the punishment plus the initiation of another ART 15 l Can be a good option of some soldiers l

FORMAL ART 15 ADDITIONAL RIGHTS Right to consult with counsel l Right to request an open hearing l Maximum punishment that could be imposed, plus if asked the maximum punishment for a Courts Martial l Reasonable period of time is increased to 48 hours, but. . . l

COMMANDER’S HEARING IS THE SAME l Presentation of evidence l Evidence in defense, extenuation and mitigation

RECORDING THE FORMAL ART 15 l l 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 l 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 l 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 l 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 l Various Levels l The Players l The Rules l Special Problems for Reserves l

SEARCH, SEIZURE, AND INVESTIGATION

THE COMMANDERS ROLE l Inspections – Cannot target an individual or group – Consistent – Related to health, welfare or unit readiness l Search – Probable cause – Searches not requiring probable cause – Is the place or thing subject to protections – Who can authorize a search