A frequent question for Servicemembers facing nonjudicial punishment is whether they have the right to counsel. It makes sense to ask such an important question considering that nonjudicial punishment, also referred to as NJP, is a procedure used in dealing with alleged misconduct committed by Servicemembers.
The proceedings, or the NJP hearing, do have similarities to a low-level, informal court proceeding. There is no judge in a black robe, but the hearing officer can still find a member guilty or not guilty, and then they can render an appropriate range of punishment. At the conclusion of the NJP hearing, the Servicemember could then face an uphill battle in their careers if the nonjudicial punishment results in negative paperwork placed in the Servicemember's military records.
So, is there a right to counsel in defending against nonjudicial punishment? The answer is absolutely. A Servicemember should have counsel because the consequences of nonjudicial punishment could be severe, especially if approached incorrectly. However, it is first important to understand what nonjudicial punishment is.
What Is Nonjudicial Punishment?
First, NJP is a proceeding that is administrative in nature. It is not judicial, hence, "nonjudicial" punishment. The proceedings may have similarities, but are not like typical court hearings, or like a military court-martial. There are no rules of evidence that are required, nor does a guilty finding result in a criminal conviction. The burden of proof utilized in nonjudicial punishment is by a "preponderance of the evidence," of that it is "more likely than not" that the member committed the alleged misconduct.
As an administrative hearing, the purpose of nonjudicial punishment is to ensure that punishment is brought to bear for bad conduct. However, it is a procedure designed to bring about good order and discipline among the ranks. It is used in an administrative manner, for purposes of creating order, and to create standards of conduct. According to Part V of the Manual for Courts-Martial, the purpose of nonjudicial punishment "provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in Servicemembers without the stigma of a court-martial conviction." This is why many chains of command may publicly display the names of Soldiers facing nonjudicial punishment. The names may be written on a whiteboard in a frequented area of the unit. Nonjudicial punishment is an administrative way to keep Soldiers in check.
Because nonjudicial punishment is administrative and not judicial, there will be a different standard to apply when considering a Servicemember's rights to counsel. In fact, NJP procedures are only intended for "minor offenses" as described in the Manual for Courts-Martial. It is commonly understood that in actual court proceedings, the right to counsel is so an individual facing prosecution is protected from the overreaching power of the state or the federal government. This right to counsel helps to protect them from the overwhelming power of a state's or nation's vast resources pitted against them. Fairness and justice are better achieved when an accused person has the ability to defend themselves. Such overreaching power is not necessarily present in administrative hearings such as nonjudicial punishment.
A Servicemember will not lose their freedom in prison. Sure, although nonjudicial punishment is intended to be minor in nature, a Servicemember can be dealt serious consequences if found guilty. Members can lose their careers over nonjudicial punishment, and they can lose rank and could even be limited with the imposition of restrictions, extra duty and even fines. However, unlike an actual court hearing, they cannot receive a conviction they could carry with them for the rest of their lives, nor can they face imprisonment.
What to Do When Nonjudicial Punishment Has Been Initiated Against You
When a member receives notice that nonjudicial punishment has been initiated against them, they typically have 48 hours to choose one of two options. An accused typically receives the Article 15 or NJP packet, which is the evidence supporting the nonjudicial proceedings. This is the evidence the command is considering when it initiates nonjudicial punishment. It typically includes an investigation report, witness statements, possibly photos or videos, and it can include a statement from the accused as well. At this point in the process, having a lawyer in your corner is a must. The accused Servicemember can choose to proceed with the nonjudicial punishment and appear before the hearing officer and plead guilty or not guilty. They can then argue their case for innocence or for guilt and a mitigated punishment.
The second option is where it gets interesting. The accused Servicemember also has the option of declining nonjudicial punishment and instead opting for a court martial. Perhaps the Servicemember wants a Judge and panel to assess the merits of their case. Another reason to turn down NJP is because the command's perception of events is simply unfair and erroneous, and the Servicemember would prefer to litigate the merits of the case. Regardless of the reason, Counsel can review the evidence with the accused and point them in the right direction in making this very crucial decision. Counsel who are especially experienced in representing members in courts-martial will have a better understanding of what to expect in the court-martial process. Good counsel can provide a solid analysis of the consequences should the Servicemember decline nonjudicial punishment and instead opt for court-martial. If the decision is to turn down NJP, then the procedures stop there, and the Government is back to square one in determining whether or not to respond by preferring charges to a court-martial.
Right to a Spokesperson
If the accused, however, decides to proceed with nonjudicial punishment, then they are entitled to be accompanied by a "spokesperson." According to the Manual for Courts Martial, "If the Servicemember requests personal appearance, the Servicemember shall be entitled to: . . . Be accompanied by a spokesperson provided or arranged for by the member unless the punishment to be imposed will not exceed extra duty for 14 days, restriction for 14 days, and an oral reprimand."
This spokesperson can be a licensed attorney, or it can even be a fellow colleague in their unit. The most important aspect of having counsel for nonjudicial punishment is really in the preparation for the hearing, or what is referred to as the "second reading." Counsel can essentially prepare the Servicemember's case by preparing a written argument to be read by the Servicemember or be lining up witnesses and preparing witness statements.
Ultimately, if you are a Servicemember facing nonjudicial punishment, having an experienced military counsel can only help you make the right choices that could end up saving your career.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
