Continued from Part 1 -- Article 15s
Right of the Accused to Demand Trial by Court-Martial
Except in the case of a person attached to or embarked in a vessel, an accused may demand trial by court-martial in lieu of NJP. The key time factor in determining whether or not a person has the right to demand trial is the time of the imposition of the NJP and not the time of the commission of the offense.
Prehearing
Nonjudicial punishment results from an investigation into unlawful conduct and a subsequent hearing to determine whether and to what extent an accused should be punished. Generally, when a complaint is filed with the commanding officer of an accused (or if that commander receives a report of investigation from a military law enforcement source), that commander is obligated to cause an inquiry to be made to determine the truth of the matter.
If, after the preliminary inquiry, the commanding officer determines that disposition by NJP is appropriate, the commanding officer must cause the accused to be given certain advice. The commanding officer need not give the advice personally, but may assign this responsibility to the legal officer or another appropriate person. The following advice must be given, however.
Contemplated action. The accused must be informed that the commanding officer is considering the imposition of NJP for the offense(s).
Suspected offense. The suspected offense(s) must be described to the accused and such description should include the specific article of the UCMJ which the accused is alleged to have violated.
Government evidence. The accused should be advised of the information upon which the allegations are based or told that he may, upon request, examine all available statements and evidence.
Right to refuse NJP. Unless the accused is attached to or embarked in a vessel (in which case he has no right to refuse NJP), he should be told of his right to demand trial by court-martial in lieu of NJP; of the maximum punishment which could be imposed at NJP; of the fact that, should he demand trial by court-martial, the charges could be referred for trial by summary, special, or general court-martial; of the fact that he could not be tried at summary court-martial over his objection; and that, at a special or general court-martial, he would have the right to be represented by counsel.
Right to confer with independent counsel.United States v. Booker, 5 M.J. 238 (C.M.A. 1977), held that, because an accused who is not attached to or embarked in a vessel has the right to refuse NJP, he must be told of his right to confer with independent counsel regarding his decision to accept or refuse the NJP if the record of that NJP is to be admissible in evidence against him should the accused ever be subsequently tried by court-martial. A failure to properly advise an accused of his right to confer with counsel, or a failure to provide counsel, will not, however, render the imposition of NJP invalid or constitute a ground for appeal.
Hearing rights
If the accused does not demand trial by court-martial within a reasonable time after having been advised of his rights (usually 3 workdays unless the commander grants an extension), or if the right to demand court-martial is not applicable, the accused shall be entitled to appear personally before the commanding officer for the NJP hearing. At such hearing, the accused is entitled to:
(1) Be informed of his rights under Art. 31, UCMJ (Self Incrimination)
(2) be accompanied by a spokesperson provided by, or arranged for, the member, and the proceedings need not be unduly delayed to permit the presence of the spokesperson, nor is he entitled to travel or similar expenses
(3) be informed of the evidence against him relating to the offense
(4) be allowed to examine all evidence upon which the commanding officer will rely in deciding whether and how much NJP to impose
(5) present matters in defense, extenuation, and mitigation, orally, in writing, or both
(6) have witnesses present, including those adverse to the accused, upon request, if their statements will be relevant, and if they are reasonably available. A witness is reasonably available if his or her appearance will not require reimbursement by the government, will not unduly delay the proceedings, or, in the case of a military witness, will not necessitate his or her being excused from other important duties, and
(7) have the proceedings open to the public unless the commanding officer determines that the proceedings should be closed for good cause. No special facility arrangements need to be made by the commander. Even if the accused does not wish the proceedings to be open to the public, the commander may open them anyway at his/her own discretion. In most cases, the commander will open them partially, and have present relevant members of the command (XO, first sergeant, supervisor, etc.)
