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5. Nonjudicial Punishment

CHAPTER 5

Nonjudicial Punishment

 

  1.       References

  2.       Introduction

  3.       Authority to Impose Nonjudicial Punishment

  4.       Who Can Receive Nonjudicial Punishment

  5.       How to Decide What Offenses Are Appropriate for NJP

  6.       Types of Article 15s and Punishments

  7.       Notice Requirements (The “First Reading”)

  8.       Soldier’s Rights

  9.       Hearing

  10.       Clemency

  11.       Filing

  12.       Appeals

  13.       Publicizing Article 15s

  14.       Supplementary Action

  15.       The Relationship between Article 15s and Courts-Martial

  16.       Practice Points

 

I. References

A. UCMJ art. 15.

B. Manual for Courts-Martial, United States pt. V (2016) [hereinafter MCM].

C. U.S. Dep't of Army, Reg. 27-10, Legal Services: Military Justice chs. 3, 4, 21 (11 May 2016) [hereinafter AR 27-10].  NOTE:  all references to AR 27-10 in this version of the Criminal Law Deskbook cite to the 11 May 2016 edition of the regulation.

II. Introduction

A. Purpose.  Nonjudicial punishment (NJP) provides commanders with a prompt means of maintaining good order and discipline and promotes positive behavior changes in Servicemembers without the stigma of a court-martial.  MCM pt. V, para. 1c.

B. Proceedings under Art. 15 are not criminal prosecutions.  United States v. Mack, 9 M.J. 300, 312 (C.M.A. 1980); Cf. Middendorf v. Henry, 96 S.Ct. 1281 (1976)

C. For samples of the forms used in the Army (DA Form 2627) and how to properly complete them, see AR 27-10, current version.

III. Authority to Impose Nonjudicial Punishment

A. Who may impose?

1. Commanders.

a) “Commanders” are commissioned or warrant officers who exercise primary command authority over an organization; is the person looked to by superior authorities as the individual chiefly responsible for maintaining discipline in the organization.  AR 27-10, para. 3-7a.

b) Can include detachment commanders and commanders of provisional units.  Whether an officer is a commander is determined by the duties he or she performs, not necessarily by the title of the position occupied.  AR 27-10, para. 3-7a.

2. Joint Commanders.  See AR 27-10, para. 3-7b.

B. Can Article 15 authority be delegated?  AR 27-10, para. 3-7c.

1. Article 15 authority may not be delegated.

2. Exception:  General court-martial convening authorities and commanding generals can delegate Article 15 authority to a deputy or assistant commander or to chief of staff (if general officer or frocked to general officer rank).  Delegation must be written.

C. Can Article 15 Authority Be Limited?  Yes.

1. Permissible limitations.  AR 27-10, para. 3-4c & 3-7d.

a) Superior commander may totally withhold.

b) Superior commander may partially withhold (e.g., over categories of personnel, offenses, or individual cases).

(1) No requirement that limitations be written but probably a good idea (e.g., write a memorandum or publish in post regulation).

2. Impermissible limitations.  MCM pt. V, para. 1d(2); AR 27-10, para. 3-4b.

a) Superior commander cannot direct a subordinate commander to impose an Article 15.

b) Superior commander cannot issue regulations, orders, or “guides” that either directly or indirectly suggest to subordinate commanders that --

(1) Certain categories of offenders or offenses are to be disposed of under Article 15.

(2) Predetermined kinds or amounts of punishment are to be imposed for certain categories of offenders or offenses.

IV. Who Can Receive Nonjudicial Punishment

A. Military Personnel of a Commander's Command.  AR 27-10, para. 3-8.

1. Assigned.

2. Affiliated, attached, or detailed.

3. The “Beans and Bullets” Rule.  AR 27-10, para. 3-8a(3)(b).

B. Personnel of Other Armed Forces (services).  AR 27-10, para. 3-8c.

1. An Army commander is not prohibited from imposing NJP on members of his or her command that are from other services.  However, if an Army commander imposes NJP on members of another service, he or she may only do so under the circumstances and procedures outlined for imposing NJP prescribed by that member’s parent service.

 

V. How to Decide What Offenses Are Appropriate for NJP

A. Relationship to administrative corrective measures.

1. NJP should be used when administrative corrective measures (for example, denial of pass privileges, counseling, extra training, administrative reductions in grade, administrative reprimands) are inadequate due to the nature of the minor offense or because of the Servicemember’s service record.  MCM pt. V, para. 1d(1). 

2. NJP is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct. Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.AR 27-10, para. 3-3a.

3. Commanders and supervisors need to ensure that extra training does not become extra duty (punishment) that was given without following NJP procedures.  Extra training must relate directly to the deficiency observed and must be oriented to correct that particular deficiency, although extra training can occur after duty hours.  AR 27-10, para. 3-3c.

B. NJP may be imposed for minor offenses.  MCM pt. V, para. 1e; AR 27-10, para. 3-9.

1. Whether an offense is minor depends on several factors:

a) The nature of the offense and the circumstances surrounding its commission;

b) The offender’s age, rank, duty assignment, record and experience;

c) The maximum sentence imposable for the offense if tried by a general court-martial.

2. A minor offense is one that does not authorize the imposition of a dishonorable discharge or confinement in excess of one year if tried at a general court-martial.  MCM pt. V, para. 1e.  However, the maximum punishment authorized for an offense is not controlling.  United States v. Pate, 54 M.J. 501, 506 (Army Ct. Crim. App. 2000).

3. Determining what is a minor offense versus a major offense is within the discretion of the imposing commander.  MCM pt. V, para. 1e. 

C. Limitations.

1. Double punishment prohibited. 

a) Once Article 15 punishment is imposed, cannot impose another Article 15 for same offense or substantially same misconduct.  MCM pt. V, para. 1f(1); AR 27-10, para. 3-10.  However, punishment imposed for a non-minor offense is NOT “a bar to trial by court-martial for the same offense.”  MCM pt. V, para. 1e, AR 27-10, para. 3-10.

b) Commanders need to bring all known offenses that are determined to be appropriate for disposition by NJP and that are ready to be considered at that time.  This includes all offenses arising from a single incident or course of conduct.  MCM pt. V, para. 1f(3); AR 27-10, para. 3-10.

2. Statute of limitations.  Except as provided Art. 43(d), UCMJ, NJP may not be used for offenses which were committed more than 2 years before the date of imposition.  MCM pt. V, para. 1f(4); AR 27-10, para. 3-12.

3. Civilian courts.  NJP may not be used for an offense that has been tried by a federal court.  NJP may not be used for an offense that has been tried by a state court unless AR 27-10, ch. 4 has been complied with.  MCM pt. V, para. 1f(5).

4. NJP should not be used when it is clear that only a court-martial will meet the needs of justice and discipline.  MCM pt. V, para. 1d(1).

D. Preliminary inquiry.

1. Commanders need to conduct a preliminary inquiry using the procedures in R.C.M. 303 and Chapter 4, AR 15-6. 

2. The inquiry should cover whether an offense was committed; whether the Soldier was involved; and the character and military record of the accused.  AR 27-10, para. 3-14.  Note that for purposes of R.C.M. 306, Executive Order 13699 (implementing the 2014 NDAA amendments) amended the discussion to R.C.M. 306(b) to remove the character and military service of the accused as one of the factors for a commander to consider in the initial disposition decision. 

E. Decision to impose NJP.

1. Having conducted an investigation and considering the above, the commander should decide whether to impose NJP by considering:

a) The nature of the offense;

b) The record of the Servicemember;

c) The needs for good order and discipline;

d) The effect of NJP on the Servicemember and the Servicemember’s record.  MCM pt. V, para. 1d(1).

2. The commander needs to determine that the Soldier probably committed the offense and that NJP procedure is appropriate.  AR 27-10, para. 3-14.

3. NJP should be conducted at the lowest level of command commensurate with the needs of discipline.  AR 27-10, para. 3-5a.

4. If the commander believes that his or her authority is insufficient to impose proper NJP, then he or she should send the case to a superior using DA Form 5109.  AR 27-10, para. 3-5.

5. A superior commander may also return a case to a subordinate commander for appropriate disposition.  AR 27-10, para. 3-4c.

VI. Types of Article 15s and Punishments

A. Summarized Article 15.  AR 27-10, para. 3-16.

1. Only available for enlisted Servicemembers.

2. Punishment cannot exceed 14 days extra duty, 14 days restriction, oral admonition or reprimand, or any combination thereof.

3. Can be imposed by company or field grade officers.

4. Recorded on DA Form 2627-1.

B. Formal Article 15.  AR 27-10, para. 3-17.

1. Appropriate if:

a) Soldier is an officer, or

b) Punishment (for any soldier) might exceed 14 days extra duty, 14 days restriction, oral admonition or reprimand, or any combination thereof.

2. Classified as company grade Article 15s, field grade Article 15s, and general officer Article 15s.  Technically, “general officer Article 15s” are intended only for officers (general officers can impose greater punishments on officers than other commanders can).  General officers can impose Article 15s on enlisted personnel, too, but the available punishments are the same as those available to field grade officers.

3. Recorded on DA Form 2627.

C. The maximum available punishment is based on rank of imposing commander (company grade, field grade, or for officer offenders, general officer) and the rank of the soldier receiving the punishment.  AR 27-10, para. 3-19, tbl. 3-1.  Usually, commanding generals withhold authority over officer misconduct using the local AR 27-10.  Company grade or field grade NJP over another officer is very rare.

 

ENLISTED PUNISHMENTS

Summarized

Company Grade

Field Grade

14 days extra duty

14 days extra duty

45 days extra duty

14 days restriction

14 days restriction

60 days restriction (45, if with extra duty)

 

7 days correctional custody (E1-E3)

30 days correctional custody (E1-E3)

 

1 grade reduction (E1-E4)

1 or more grade reduction (E1-E4)

1 grade reduction (E5-E6)

 

7 days’ forfeiture

Forfeiture of ½ of 1 month’s pay for 2 months

Oral reprimand/ admonition

Oral reprimand/ admonition

Oral/written reprimand/ admonition

 

 

OFFICER PUNISHMENTS

Company Grade

Field Grade

General Officer

Written reprimand/admonition

Written reprimand/admonition

Written reprimand/admonition

30 days restriction

30 days restriction

60 days restriction, or

 

 

30 days arrest in quarters

 

 

Forfeiture of ½ of 1 month’s pay for 2 months

 

 

D. Reduction in grade.

1. In general, a commander who can promote to a certain grade can also reduce from that grade.

2. Officers and enlisted soldiers above the grade of E-6 cannot be reduced at an Article 15.

E. Forfeiture of pay.

1. Forfeitures are based on grade to which reduced, whether or not reduction is suspended.

2. Forfeitures may be applied against a soldier's retired pay.  AR 27-10, para. 3-19b(7)(b). 

F. Admonition and reprimand. 

1. Officer admonitions and reprimands must be in writing.  Enlisted admonitions and reprimands can be oral or in writing.  MCM pt. V, para. 5c(1); AR 27-10, para. 3-19b(9)(d).

2. Admonitions and reprimands imposed under NJP should state clearly that they were imposed as punishment under Art. 15.  This is to contrast them with admonitions and reprimands given as an administrative matter, which have different procedures.  See AR 600-37. 

3. Written admonitions and reprimands are prepared in memorandum format and attached to the DA Form 2627.  AR 27-10, para. 3-19b(9)(d).

G. Combination of punishments.  AR 27-10, para. 3-19b(7)

1. Commanders can combine punishments.

2. No two or more punishments involving the deprivation of liberty may be combined to run either consecutively or concurrently, except that restriction and extra duty may be combined but not to run for a period in excess of the maximum duration allowed for extra duty.

3. For officers, arrest in quarters may not be imposed in combination with restriction.  MCM pt. V, para. 5d(1).

H. Punishment generally begins on the day imposed.  AR 27-10, para. 3-21.   Unsuspended punishments of reduction and forfeiture take effect on the day imposed.  Commanders can delay other punishments for up to 30 days for legitimate reasons (quarters, TDY, brief field problem).  However, once commenced, deprivation of liberty punishments will run continuously unless the Soldier is at fault or is incapacitated (cannot pause deprivation of liberty once it has commenced because of a field problem).  AR 27-10, para. 3-19b(7).

I. The MJA 2016 eliminated bread and water as a valid punishment.  The revised version of AR 27-10 will reflect this change.

VII. Notice Requirements (The “First Reading”)

A. Soldier must be notified of the following (AR 27-10, paras. 3-16b and 3-18):

1. Commander's intention to dispose of the matter under Article 15.

2. Offense suspected of.

3. Maximum punishment that the commander could impose under Article 15.

4. Soldier's rights under Article 15.

B. Delegating the notice responsibility.  AR 27-10, para. 3-18a.

1. Commander may delegate the notice responsibility to any subordinate who is a SFC or above (if senior to soldier being notified).  The commander still needs to personally sign the DA Form 2627 or 2627-1.

2. Good way to involve first sergeant or command sergeant major.

C. For a script that can be used during the first reading, see AR 27-10, app. B.

VIII. Soldier’s Rights

A. Formal.  AR 27-10, para. 3-18.

1. A copy of DA Form 2627 with items 1 and 2 completed so defense counsel may review and properly advise soldier.

2. Reasonable decision period and to consult with counsel (usually 48 hours).

a) Determined by the complexity of the case and the availability of counsel.

b) Soldier can request a delay, the commander can grant for good cause.

3. Right to remain silent.

4. Demand trial by court-martial (unless attached to or embarked on a vessel).

5. Request an open or closed hearing.  AR 27-10, para. 3-18(g)(2).

a) Ordinarily, hearings are open.  An open hearing usually takes place in the commander’s office with the public allowed to attend.

b) The commander should consider all facts and circumstances when deciding whether the hearing will be open or closed.

6. Request a spokesperson.

a) Need not be a lawyer.

b) Soldier may retain a lawyer at own expense.

7. Examine available evidence.

8. Present evidence and call witnesses.  AR 27-10, para. 3-18i.

a) The commander determines if the witness is reasonably available, considering that witness and transportation fees are not available

b) Reasonably available witnesses will ordinarily only be those at the installation concerned and others whose attendance will not unnecessarily delay the proceedings.

9. Appeal.

B. Summarized

1. Reasonable decision period (normally 24 hours).

2. Demand trial by court-martial.

3. Remain silent.

4. Hearing.

5. Present matters in defense, extenuation, and mitigation.

6. Confront witnesses.

7. Appeal.

IX. Hearing

A. The hearing is non-adversarial.  AR 27-10, para. 3-18g(2).  Neither the Soldier nor spokesperson (or retained lawyer) may examine or cross-examine witnesses unless allowed by the commander; however, the Soldier or spokesperson or lawyer can indicate to the imposing commander the relevant issues or questions that they would like to be explored or asked.

B. In the commander's presence unless extraordinary circumstances.  AR 27-10, para. 3-18g(1).

C. Rules of evidence.  MCM, pt. V, para. 4c(3); AR 27-10, para. 3-18j.

1. Commander is not bound by the formal rules of evidence, except for the rules pertaining to privileges.

2. May consider any matter the commander believes relevant (including, e.g. unsworn statements and hearsay).

3. But beware that if the Soldier turns down the Art. 15, the Military Rules of Evidence will apply at a court-martial. 

D. Proof beyond a reasonable doubt required.  AR 27-10, para. 3-18l.

X. Clemency

A. The imposing commander, a successor in command, or the next superior authority may grant clemency.  AR 27-10, para. 3-23.

B. Suspension.  AR 27-10, para. 3-24.

1. The execution of a punishment of reduction or forfeiture may be suspended for no more than four months.  Other punishments may be suspended for no more than six months.  For summary Art. 15s, suspensions are for no more than three months.

2. Automatically remitted if no misconduct during the suspension period.

3. Vacation.  AR 27-10, para. 3-25.

a) If the Solder violates a punitive article of the UCMJ (or other stated condition) during the suspension period, the commander may vacate the suspension.

b) If the vacation involves a condition on liberty, reduction in rank, or forfeiture of pay, the commander should hold a hearing as outlined in AR 27-10, para. 3-25.  For the vacation of other punishments, the Soldier should be given notice and an opportunity to respond.  If the Soldier is absent without leave when the commander proposes vacation, special rules apply.

c) The conduct that led to the vacation can serve as a separate basis for a new NJP action.

d) No appeal is authorized from the vacation of a suspended sentence.  AR 27-10, para. 3-29b.

C. Mitigation.  The commander can reduce the quantity or quality of the punishment.  AR 27-10, para. 3-26.

D. Remission.  The commander can cancel any portion of the unexecuted punishment.  AR 27-10, para. 3-27.

E. Setting aside and restoration. AR 27-10, para. 3-28

1. Commanders can set aside any part or amount of a punishment, whether executed or unexecuted, and restore whatever rights, privileges or property that was affected are restored.

2. Should only be done when there was “clear injustice,” defined as an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

3. Should generally occur within four months from the date that punishment was imposed.

XI. Filing

A. Summarized Article 15.  AR 27-10, para. 3-16f.

1. DA Form 2627-1 filed locally.

2. Destroyed two years after imposition or upon transfer from the unit.

B. Formal Article 15.  AR 27-10, paras. 3-6, 3-37.

1. Specialist/Corporal (E-4) and below.

a) Original DA Form 2627 filed locally in unit nonjudicial punishment or unit personnel files, unless the Soldier has been found guilty of a sex-related offense, in which case, the document must be filed in the performance portion in the Soldier’s AMHRR. (Pending update in AR 27-10).

b) Locally filed DA Form 2627 shall be destroyed two years after imposition or upon transfer to another general court-martial convening authority.

2. All other soldiers.

a) Performance portion or restricted portion of AMHRR.  (Pending update in AR 27-10).

(1) Any record of nonjudicial punishment which includes a finding of guilty for having committed a sex-related offense will be filed as a sex-related offense in the performance portion of the Soldier’s AMHRR.

(2) Performance portion is routinely used by career managers and selection boards for the purpose of assignment, promotion, and schooling selection.

(3) Restricted portion contains information not normally viewed by career managers or selection boards.  See AR 600-8-104.

b) A commander’s decision where to file is as important as the decision relating to the imposition of NJP itself.  AR 27-10, para. 3-6a.  Commanders should consider:

(1) Interests of the Soldier’s career.

(2) Soldier’s age, grade, total service, whether Soldier has prior NJP, recent performance.

(3) Army’s interest in advancing only the most qualified personnel for positions of leadership, trust, and responsibility.

(4) Whether the conduct reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, evidence of serious character deficiency, or substantial breach of military discipline.

c) Imposing commander’s filing decision is subject to review by superior authority.

d) Records directed for filing in the restricted portion will be redirected to the performance portion if the soldier already has an Article 15 received while he was a sergeant (E-5) or above, filed in his restricted fiche.  AR 27-10, para. 3-6c.

e) Superior commander cannot withhold subordinate commander's filing determination authority.

XII. Appeals

A. Soldier only has right to one appeal under Article 15.  AR 27-10, para. 3-29.

B. Time limits to appeal.

1. Reasonable time.

2. After five calendar days, appeal presumed untimely and may be rejected.

C. Who acts on an appeal?  AR 27-10, para. 3-30.

1. Successor in command or imposing commander can take action on appeal, and if he or she resolves the issue, may not have to forward.

2. The next superior commander generally handles the appeal. 

3. Should act on appeal within five calendar days (three calendar days for summarized proceedings).  While the punishment generally runs during the appeals period, if the command takes longer than the designated period, and the Soldier requests, the punishments involving deprivation of liberty will be interrupted until the appeal is completed.  AR 27-10, para. 3-21b.

D. Procedure for submitting appeal.

1. Submission of additional matters optional. 

2. Submitted through imposing commander.

E. Action by appellate authority. 

1. May conduct independent inquiry.  May take appellate action even if soldier does not appeal.  AR 27-10, paras. 3-33, 3-35.

2. Legal review.  AR 27-10, para. 3-34.

a) Must refer certain appeals to the SJA office for a legal review before taking appellate action.  UCMJ art. 15(e); DA Form 2627, note 9 (on reverse of form).

(1) Reduction in one or more pay grades from E4 or higher, or

(2) More than 7 days arrest in quarters, 7 days correctional custody, 7 days forfeiture of pay, or 14 days of either extra duty or restriction

b) May refer an Article 15 for legal review in any case, regardless of punishment imposed.

c) The JA rendering the advice should be the JA providing advice to the officer taking action on the appeal.  AR 27-10, para. 3-34d.

(1) Must review the appropriateness of the punishment and whether the proceedings were conducted under law and regulations.

(2) Not limited to the written matters in the record; may make additional inquiries.

3. Matters considered.  May consider the record of the proceedings, any matters submitted by the Servicemember, any matters considered during the legal review, and any other appropriate matters.  MCM pt. V, para. 7f.  The rules do not require that the Servicemember be given notice and an opportunity to respond to any additional matters considered.

4. Options.  AR 27-10, paras. 3-23 through 3-33.

a) Approve punishment.

b) Suspend. 

c) Mitigate.

d) Remit.

e) Set Aside. 

F. Petition to the Department of the Army Suitability Evaluation Board (DASEB).  AR 27-10, para. 3-43; AR 600-37.

1. Sergeants (E-5) and above may petition to have DA Form 2627 transferred from the performance to the restricted portion.

2. Soldier must present evidence that the Article 15 has served its purpose and transfer would be in the best interest of the Army.

3. Soldiers can petition for removal of the Article 15.  AR 600-37, ch. 7.

4. Petition normally not considered until at least one year after imposition of punishment.

XIII. Publicizing Article 15s

A. Permissible, but must delete social security number of the soldier and relevant privacy information.  AR 27-10, para. 3-22.

B. Timing.  At next unit formation after punishment is imposed, or, if appealed, after the decision on appeal.  Can post on the unit bulletin board.

C. Commander considerations.  Avoid inconsistent or arbitrary policy.  Before publishing the punishments of sergeants and above, consider:

1. The nature of the offense.

2. The individual’s military record and duty position.

3. The deterrent effect.

4. The impact on unit morale or mission.

5. The impact on the victim.

6. The impact on the leadership effectiveness of the individual concerned.

XIV. Supplementary Action

A. Any action taken by an appropriate authority to suspend, vacate, mitigate, remit, or set aside a punishment under formal Art. 15 proceedings after action has been taken on an appeal or the DA Form 2627 has been distributed to agencies outside the unit (personnel, finance) must be recorded on a DA Form 2627-2.  AR 27-10, para. 3-38.

 

XV. The Relationship Between Article 15s and Courts-Martial

A. Double jeopardy.

1. Absent bad faith by the government, Soldiers can be court-martialed for a serious offense that has been the subject of NJP.  Art. 15(f), UCMJ; United States v. Pierce, 27 M.J. 367 (C.M.A. 1989)See also AR 27-10, para. 3-10.

2. The defense can move to dismiss specifications for minor offenses if the accused was previously punished under Article 15 for that offense.  R.C.M. 907(b)(2)(D)(iii).

a) When an Article 15 involves several offenses, if one of the offenses is a major offense, then the whole incident could be considered major offense and it might not be error to fail to dismiss the other minor offenses.  If at trial, the court acquits on the major offense and all that is left are minor offenses, then the findings should not be approved.  United States v. Bond, 69 M.J. 701 (C.G. Ct. Crim. App. 2010).

B. The defense serves as the gatekeeper for the admission in the presentencing proceeding of evidence of prior Article 15s where the NJP and the court-martial involve the same offense.  Pierce, 27 M.J. 367.

1. The defense can allow the factfinder to see the Art. 15 as mitigation to show the factfinder that he or she has been previously punished.  UCMJ art. 15(f); United States v. Gammons, 51 M.J. 169 (1999)

2. The defense can also ask the military judge to give sentencing credit based on the Art. 15 without having the panel become aware of the Art. 15.  The accused is entitled to “complete credit for any and all nonjudicial punishment suffered: day-for-day, dollar-for-dollar, stripe-for-stripe.”  Pierce, 27 M.J. at 369; Gammons, 51 M.J. 169See U.S. Dep’t of Army, Pam 27-9, Military Judges’ Benchbook para. 2-7-21 (10 Sep. 2014) for the Table of Equivalent Punishments that is used to calculate “day-for-day, dollar-for-dollar, stripe-for stripe.”  This is generally the option chosen.

3. The defense can also ask for the panel members to consider the previous Art. 15 for mitigation, and have the military judge instruct on the specific credit that will be applied. U.S. Dep’t of Army, Pam 27-9, Military Judges’ Benchbook para. 2-7-21 (10 Sep. 2014).

C. Admitting nonrelated (other past misconduct) formal Article 15s during the presentencing proceeding.

1. Admissible at trial by court-martial during presentencing as a record from "personnel records." R.C.M. 1001(b)(2). 

2. The record needs to be properly completed and properly maintained.  Possible objections to the admissibility of records of nonjudicial punishment include:

a) Record of nonjudicial punishment is incomplete.  E.g., United States v. Rimmer, 39 M.J. 1083 (A.C.M.R. 1994) (holding that record inadmissible because the form had no indication whether soldier appealed).  See also United States v. Godden, 44 M.J. 716 (A.F. Ct. Crim. App. 1996) (holding that administrative errors on record did not affect any procedural due process rights of appellant and record admissible).

b) Record not maintained in accordance with regulation.  E.g., United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994) (finding that record maintained in Investigative Records Repository was not a personnel record maintained in accordance with regulation because regulation specifically stated that records of courts-martial or nonjudicial punishment would not be maintained under its authority).

c) Record does not indicate that the accused had the opportunity to consult with counsel and the accused waived his/her right to demand trial by court-martial.  United States v. Booker, 5 M.J. 238 (C.M.A. 1978); United States v. Kelley, 45 M.J. 259 (1996).

d) Record does not have discernible signatures.  United States. v. Dyke, 16 M.J. 426 (C.M.A. 1983).

e) Appeal incomplete.  United States  v. Yarbough, 33 M.J. 122 (C.M.A. 1991).

f) Irregular procedure.  United States v. Haynes, 10 M.J. 694 (A.C.M.R. 1981).

3. May be considered in administrative proceedings.

D. Summarized Article 15 (DA Form 2627-1).

1. Not admissible at trial by court-martial.  AR 27-10, para. 5-36.

2. May be considered in administrative proceedings.

XVI. Practice Points

A. NJP is the business of paralegals, trial counsel, and defense counsel.  Chiefs of Justice and Staff Judge Advocates rarely get involved other than for general officer Article 15s.  Watch for practices that might damage the system like having commanders offer waiver of counsel forms to Soldiers during the first reading.

B. Trial counsel should review formal Article 15s.  Remember, if the Soldier turns down the Article 15, you will own the problem.  A few minutes up front can save days of trial preparation later.

C. Soldiers turn down Article 15s for lots of reasons.  The key for defense counsel is to communicate with the trial counsel right away.  Hold on to the file and call the trial counsel to avoid the natural response by the commander to what might seem like a challenge to his or her authority.  A few minutes up front can save days of trial preparation later and prevent the parties from becoming entrenched in their positions.

D. One of the major reasons that Soldiers turn down Article 15s is that they do not trust this particular commander to fairly hear their case.  Often, the Soldier will be charged with offenses that arose out of a conflict with the commander who now wants to impose the Article 15, and the Soldier may understandably feel that the commander will not give them a fair shake.  If you are the Government, this may be a reason to be more involved than you might otherwise be with a company-grade Article 15 and/or consider having the Trial Counsel attend the actual proceeding.  If you are the defense, this is likely a good reason for appeal, if it appears the commander was not evaluating the evidence objectively or awarding punishment that appears commensurate with the offense.

E. As a general matter, if the government elects to charge offenses at a court-martial that were the subject of earlier NJP – the Soldier will likely receive sentencing credit for any punishment given by the NJP authority.  Likewise, defense counsel should normally seek Pierce credit for previous Art. 15s rather than seeking dismissal under R.C.M. 907(b)(2)(D)(iii).

F. If trial counsel ensure that the record is properly completed and your office performs proper records maintenance, you should be able to admit the record of a previous Art. 15 (not related to current offenses) under R.C.M. 1001(a)(2).  Defense counsel should nit-pick prior Art. 15s – almost any mistake in the record or in the maintenance of the record will keep it out of evidence.  Most importantly, a deployment, even if with the same unit, will likely involve the transfer to a different GCMCA, which means no Article 15 conducted at home station prior to deployment should be admissible at a deployed court-martial

G. For general officer Article 15s, defense counsel should consider requesting to attend, especially if the SJA or DSJA will be present.    

H. Beware of Soldiers seeking personal appearance as part of an Article 15 appeal.  There is no regulatory basis to demand such, and it can create issues for your commander if he or she allows one Soldier to appear, and denies the request by another.  It is a point to consider when advising commanders on crafting and using open door policies as well.

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