MILITARY JUSTICE MILITARY JUSTICE -- AN OVERVIEW ---- AN OVERVIEW --

43d MP BDE, JAG

THE PURPOSE OF MJTHE PURPOSE OF MJ

To set the Standard Provide a process for enforcement Reinforce values that provide for

an effective fighting force

THE COMMANDERS TOOLTHE 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

CONSIDER ADMINISTRATIVE CONSIDER ADMINISTRATIVE OPTIONS FIRSTOPTIONS FIRST

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

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

Purpose of Non-Judicial Purpose of Non-Judicial PunishmentPunishment 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 Authority to Administer NJPNJP 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 WHO MAY BE GIVEN AN ART 15?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 WHAT TYPES OF OFFENCES?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 PROCEDURESART 15 PROCEDURES

Summarized and Formal Company Grade, Field Grade,

General Officer Commanders have options

– Guilt or innocence– Punishments– Filing

SUMMERIZED ART 15SUMMERIZED ART 15

Punishment

Same regardless of Commander’s Rank

14 days restriction 14 days extra duty Oral admonition or Reprimand

Punishment

Same regardless of Commander’s Rank

14 days restriction 14 days extra duty Oral admonition or Reprimand

SUMMERIZED ART 15, SUMMERIZED ART 15, NOTICE, (E-7 or Above)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 AFTER NOTICE OPPORTUNITY TO DECIDEOPPORTUNITY 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 HEARINGCOMMANDER’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 PUNISHMENTIMPOSITION OF PUNISHMENT

Immediate Unless otherwise stated Appeal not acted upon within 3

days stays imposition of liberty provisions

NOTICE OF APPELLATE NOTICE OF APPELLATE RIGHTSRIGHTS 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 FILING OF SUMMERIZED ART 15ART 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 15FORMAL 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 PUNISHMENT COMPANY GRADEGRADE 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 PUNISHMENT FIELD GRADE/GENERAL OFFICERGRADE/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 PUNISHMENTOFFICER 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 SPECIAL FORFITURE RULES FOR RESERVE RULES FOR RESERVE SOLDIERSSOLDIERS 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 SUSPENSION OF PUNISHMENTPUNISHMENT 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 FORMAL ART 15 ADDITIONAL RIGHTSADDITIONAL 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 HEARINGCOMMANDER’S HEARING

IS THE SAME Presentation of evidence Evidence in defense, extenuation

and mitigation

RECORDING THE FORMAL RECORDING THE FORMAL ART 15ART 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 NJPAPPEALS 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 NJPAPPEALS 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 NJPAPPEALS 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 - MAJOR MISCONDUCT - COURTS MARTIALCOURTS MARTIAL

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

SEARCH, SEIZURE, AND SEARCH, SEIZURE, AND INVESTIGATIONINVESTIGATION

THE COMMANDERS ROLETHE 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 RIGHTSART 31 RIGHTS

Its not Maranda Mere Suspect Superior subordinate relationship Investigative relationship

VIOLATIONS OF 4TH AND VIOLATIONS OF 4TH AND 5TH AMENDMENT RIGHTS5TH AMENDMENT RIGHTS

Art 138 complaint IG complaint Use of evidence

QUESTIONSQUESTIONS???