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Military Justice

Military Justice. Military Justice Overview. --. Basic considerations A. Nonpunitive disciplinary measures B. Elimination proceedings [AR635-200] C. Nonjudicial punishment [Article 15] D. Unlawful command influence E. Court-martial system F. Pretrial restraint.

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Military Justice

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  1. Military Justice

  2. Military Justice Overview --. Basic considerations A. Nonpunitive disciplinary measures B. Elimination proceedings [AR635-200] C. Nonjudicial punishment [Article 15] D. Unlawful command influence E. Court-martial system F. Pretrial restraint

  3. Select correct command response by beginning with the end in mind Apply command response correctly: Proper standard Proper procedure Trial counsel reliance Short-term Long-term: Integrated leadership system for dealing with problem soldiers: Right tool Right level Commander Focus

  4. Criminal Law: Civilian vs. Military • More similarities than differences: • Sources • Practitioners • Analytic approaches and procedures • Differences: • Purposes • Decisionmakers • Jurisdiction • Offenders

  5. Purposes of Military Justice • Promote justice • Assist in maintaining good order and discipline in the armed forces • Promote efficiency and effectiveness in the military establishment [and thereby] • Strengthen the national security of the United States

  6. Decisionmakers: Command Involvement • Making commander the decision-maker • Maintaining fairness by avoiding unlawful command influence • Augmenting commander’s nonpunitive options to deal with poor performance with punitive options to deal with misconduct

  7. Disciplinary Options • Take no action • Nonpunitive options • Punitive options • Nonjudicial punishment [Article 15, UCMJ] • Courts-martial

  8. Nonpunitive options Counseling Corrective training Reprimand Bar to reenlistment Adverse efficiency reports Administrative separation Punitive options Nonjudicial punishment Summarized Formal Court-martial Summary Special BCD-Special General Examples of Disciplinary Options

  9. Distinctions Between Nonpunitive and Punitive Options

  10. Distinctions Between Nonpunitive and Punitive Options • Supervisors use less-severe nonpunitive options to correct poor performance • Severe nonpunitive options generally require command involvement or approval • Commanders use punitive options to punish

  11. Nonpunitive Options: 1. Preliminary Inquiry • RCM 303 • Company commander responsible for conducting a preliminary inquiry to determine how to dispose of report of misconduct by soldier in unit

  12. Nonpunitive Options - Preliminary Inquiry - First Steps • Prevent further harm • Preserve evidence • Notify: • Chain of command • Soldier’s supervisors • Locate suspected soldier

  13. Nonpunitive Options - Preliminary Inquiry - Second Steps • Begin coordination with investigators and trial counsel • Flag soldier • Begin fact-finding • Begin determining applicable law & regulation • Begin framing range of options

  14. Incident Victim impact Impact on morale & discipline Other aggravating and mitigating factors Accused Past offenses Past duty performance Current performance Military character Future potential Accused Victim Family of accused Family of victim Unit’s leaders Unit’s soldiers Military public General public Factfinding

  15. Nonpunitive Options:2. Counseling • Can be oral or written, positive or negative • Purposes of negative counseling: • Identify poor performance • Determine reasons for poor performance • Develop plan to improve poor performance • Ensure understanding of adverse consequences if performance does not improve • Document basis for more severe options

  16. Nonpunitive Options:2. Counseling with a View toward Separation AR 635-200, para 1-18 • Counseling with a view toward separation, aka “rehabilitative counseling” or “1-18 counseling” • Required before initiating many separation actions • Required contents: • Reason for counseling • Separation action may be started if problem persists • Type of discharge that could result from separation action • OSJA has pre-printed forms

  17. Nonpunitive Options:3. Corrective Training - AR 600-20, para 4-6 • Extra training during or after duty hours • Requirements: • Connection [nexus] between poor performance and corrective training • Must be monitored • Must cease when training goal accomplished • Primary tool for the NCO • Examples

  18. Nonpunitive Options:4. Loss of Discretionary Benefits - e.g., AR 600-8-10, chap 2 [pass] • Abuse of privilege justifies loss of privilege - nexus required • Examples: • Loss of post driving privilege for DWI • Loss of pass privilege for FTR • Loss of check privilege for rubber checks • Loss of PX privilege for shoplifting • Written counseling used to document

  19. Nonpunitive Options:5. Admonition and Reprimand - AR 600-37, chap 3 • Can be oral or written [“memorandum of reprimand”] • If written, can be filed locally or permanently [“OMPF filing”] • OMPF filing a career-terminator • Mandatory GOMOR for drunk driving - often filed in OMPF- AR 190-5

  20. Nonpunitive Options: 6. MOS Reclassification - AR 600-200, ch 2 • Grounds: Misconduct or inefficiency incompatible with “the technical, supervisory or other requirements of the MOS.” • If loss of MOS required due to misconduct, must first be processed for administrative separation UP AR 635-200 • Examples: • Military Police – Legal Specialists • Security Analysts • Command involvement

  21. Nonpunitive Options:7. Suspension/Revocation of Security Clearance - AR 380-67, ch 8 • Broad Grounds: Soldier’s misconduct or other behavior raises serious questions about continued access to classified materials • Examples: • Substance abuse • Financial difficulties • Excessive gambling

  22. Nonpunitive Options:8. Adverse Efficiency Reports • OERs [AR 623-105] & NCOERs [AR 623-205] • Misconduct: Must be substantiated • Poor performance: Must be well-documented [written counseling,etc.] IAW local guidance F

  23. Nonpunitive Options: 9. Bar to Reenlistment - AR 601-280, ch 8 • No right to a career • Broad grounds • Mandatory initiation of separation proceedings if soldier fails to improve • Anticipate tightened requirements if recruiting shortfalls continue

  24. Nonpunitive Options:10. Administrative Reduction - AR 600-8-19, chap 6 • Broad Grounds: “Any action or course of conduct affirmatively evidencing that the [soldier]… lacks those abilities and qualities required and expected of a person of that grade and experience.” • Approval authority: • E-4 and below - company commander • E-5 and above - right to board proceeding

  25. B. Administrative Separation - AR 635-200 • Generally requires approval by battalion or brigade commander • Right to board if soldier has more than 6 years of service or OTH discharge sought • Rehabilitative counseling generally required • Renewed emphasis on taking other rehabilitative measures because of: • Recruiting shortfalls • Increased investment in training soldiers

  26. B. Administrative Separation - Developments • 114,451 enlisted separations for FY97 • Overall enlisted attrition: 15% lost in first six months + 22% more lost before initial ETS 37% overall attrition • Chap 11 and 13 will generally be rehabilitatively transferred before initiating separations [see para 1-18c, AR 635-200] • Voluntary Chap 16 no longer available

  27. Parenthood Personality disorder Overweight Entry-level separation Fraudulent entry Rehabilitative failure/substance abuse In lieu of court-martial Unsatisfactory performance Pattern of misconduct Commission of a serious offense Homosexuality Some Types of Administrative Separation

  28. B. Administrative Separation - Characterization of Discharge • Administrative discharges: • Honorable • General • Other than honorable [OTH] • Punitive discharges: • Bad conduct discharge [BCD] • Dishonorable discharge [DD] • Consequences of receiving anything except an honorable discharge: • Perception - College Fund - Other benefits

  29. B. Administrative Separation - Characterization of Discharge • Admin options for characterizing discharge: • Honorable • General • Other than honorable • Availability of options vary by type of separation, e.g., chapter 14 for misconduct can result in: • Honorable [ordered by GCMCA] • General [ordered by SPCMCA] • Other than honorable [ordered by GCMCA after formal board proceedings]

  30. B. Administrative Separation - Board Proceedings • Soldier has right to board when: • Soldier has more than 6 or more years of AD and RC service on date of initiation of separation • OTH discharge sought • Homosexuality [Chap 15] • Board recommends: • Whether respondent be retained or separated • How respondent’s discharge is characterized • Separation authority decides: • Retention/separation - Characterization • Suspension

  31. B. Administrative Separation - Officers - AR 600-8-24 • Broad grounds: • Substandard performance of duty • Moral and professional dereliction • In the interests of national security • Expedited procedures for probationary officers

  32. B. Administrative Separation - Homosexuality • Investigative responsibility: • Unit: Consensual acts between adults • Criminal investigation: • Force • Children • Fraternization [?] • DO NOT start either unit or criminal investigation until you have established that: • Allegation meets definition of homosexual conduct [Statements, Acts, Marriage] • Allegation is credible

  33. Distinctions Between Nonpunitive and Punitive Options

  34. Distinctions Between Nonpunitive and Punitive Options Can Blur • Some performance problems are also military crimes, e.g. FTR, AWOL, dereliction of duty • Some nonpunitve options involve severe sanctions • Rule of thumb: Commanders become involved when distinctions blur

  35. Drunk Driving • RCM 303 Preliminary inquiry: • What facts? • Which sources? • Nonpunitive options • Mandatory • Other • “Double jeopardy?” +

  36. Punitive Options C. Nonjudicial Punishment [NJP] Summarized Formal D. Unlawful Command Influence E & F. Courts-Martial Summary Special BCD-Special General

  37. 1. Purposes of Nonjudicial Punishment [NJP] • Correct, educate and reform offenders who cannot benefit from less stringent measures • Preserve a soldier’s record from the unnecessary stigma of a court-martial conviction • Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial

  38. 1. Authority to Impose Nonjudicial Punishment [NJP] • Commander [commissioned or warrant officer] exercising primary command authority over a military organization or territorial area • Commanders can impose nonjudicial punishment upon members of their command

  39. 1. Nonjudicial Punishment:Minor Offenses • Use of nonjudicial punishment normally confined to minor offenses • Minor offenses are those which have maximum punishments not containing a dishonorable discharge or confinement for longer than one year • Maximum punishments are noted in the Punitive Articles [Part IV, MCM] and Appendix 12, MCM

  40. 1. Nonjudicial Punishment:Double Jeopardy • Misconduct can only be punished once under Article 15 • BUT… • Non-minor offenses can also be tried by court-martial • Off-post misconduct can be punished by both military and civilian authorities • Use of nonjudicial punishment does not prevent use of nonpunitive options

  41. Types of Nonjudicial Punishment Procedures • Summarized [DA Form 2627-1] • Formal [DA Form 2627] • Company grade • Field grade

  42. Rules Applicable to Both Types of NJP [Summarized and Formal] • Must address UCMJ offense • Soldier may refuse NJP and “demand” trial by court-martial • Guilt must be established beyond reasonable doubt • Finding of guilty not a criminal conviction NCIC

  43. Rules Applicable to Both Types of NJP [Summarized and Formal] • Company commander may not delegate authority to determine guilt or select punishment to, e.g., 1SG or PLT LDR • Soldier may appeal findings & punishments • Findings may be posted or announced: • Delete SSAN on posted forms • Post findings of not guilty • Consider carefully before posting findings if accused is a NCO

  44. a. Summarized Proceedings • Least-severe punitive action • Use to address least-severe misconduct • Use when mildest punishment is all that is required, e.g., outstanding soldier • Maximum punishments: • Oral reprimand • Extra Duty for 14 days • Restriction for 14 days

  45. a. Summarized Proceedings • Advantages: • Can be handwritten • Fast - soldier only has 24 hours to decide whether to accept • No stigma - stays in local records for 2 years or until soldier transferred • Limitations: • Can only be used for enlisted accused • No right to see Trial Defense Service [TDS]

  46. Imposed by company grade cdr: 14 days restriction/extra duty 7 days correctional custody [E-3 and below] 7 days pay 1 grade reduction [E-4 and below] Imposed by field grade commander: 60 days restriction 45 days extra duty 30 days correctional custody [E-3 and below] 1/2 month pay for 2 months E-4: 1 or more grade E-5: 1 grade* Maximum Punishments:Formal Proceedings

  47. Summarized: Normally 24 hours to decide Right to refuse Right to present evidence Right to remain silent No right to consult a lawyer No right to request spokesman No right to open hearing Formal: Normally 48 hours to decide Right to refuse Right to present evidence Right to remain silent Right to consult lawyer Right to request spokesman*** Right to open hearing Rights in Summarized & Formal NJP

  48. Question: What do you do if you have notified accused of intent to use formal proceedings, he’s seen TDS lawyer, 48 hours have elapsed, and he remains silent when you ask him if he “demands” trial by court-martial? Hypothetical

  49. Question: What do you do if you have notified accused of intent to use formal proceedings, he’s seen TDS lawyer, 48 hours have elapsed, and he remains silent when you ask him if he “demands” trial by court-martial? Answer: Proceed with formal Article 15 Hypothetical

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