Circumstances. The circumstances surrounding the commission of a disciplinary infraction are important to the determination of whether such an infraction is minor. For example, willful disobedience of an order to take ammunition to a unit engaged in combat can have fatal consequences for those engaged in the fight and, hence, is a serious matter. Willful disobedience of an order to report to the barbershop may have much less of an impact on discipline. The offense must provide for both extremes, and it does because of a high maximum punishment limit. When dealing with disciplinary infractions, the commander must be free to consider the impact of circumstance since he is considered the best judge of it; whereas, in disposing of crimes, society at large has an interest coextensive with that of the commander, and criminal defendants are given more extensive safeguards. Hence, the commander's discretion in disposing of disciplinary infractions is much greater than his latitude in dealing with crimes.
Imposition of NJP does not, in all cases, preclude a subsequent court-martial for the same offense. See Part V, para. 1e, MCM (1998 ed.) and page 4-34. Additionally, Article 43, of the UCMJ, prohibits the imposition of NJP more than two years after the commission of the offense.
Cases previously tried in civil courts. Military regulations permit the use of NJP to punish an accused for an offense for which he has been tried by a domestic or foreign civilian court, or whose case has been diverted out of the regular criminal process for a probationary period, or whose case has been adjudicated by juvenile court authorities, if authority is obtained from the officer exercising general court-martial jurisdiction (In the Air Force, such permission can only be granted by the Secretary of the Air Force).
NJP may not be imposed for an act tried by a court that derives its authority from the United States, such as a Federal district court.
Clearly, cases in which a finding of guilt or innocence has been reached in a trial by court-martial cannot be then taken to NJP. However, the last point at which cases may be withdrawn from court-martial before findings with a view toward NJP is presently unclear.
Off-base offenses. Commanding officers and officers in charge may dispose of minor disciplinary infractions (which occur on or off-base) at NJP. Unless the off-base offense is one previously adjudicated by civilian authorities, there is no limit on the authority of military authorities to resolve such offenses at NJP.
Part 2 --Nonjudicial Punishment Rights
Part 3 --Punishment Limits
Part 4 --Appeals
Part 5 --Clemancy and Corrective Actions
Part 6 --Special Rules for Reservists
Information derived from Handbook of Military Justice & Civil Law
