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(Note: The below article is from the Aug 97 edition of Navy "All Hands" Magazine. While it is written with Navy personnel in mind, for the most part, the information is applicable for members of all of the services.


Before coming into the military, service members and their families may not have given much thought to their legal rights — both inside and outside the Navy. Fortunately for service members and their families, the Navy-Marine Corps Legal Community provides vital legal services needed to address many of these issues. Two major components of the Navy-Marine Corps Legal Community are military justice and legal assistance.

Our military criminal law originates in the U.S. Constitution, federal law, federal regulations and, to some extent, tradition.

It incorporates and balances the constitutional powers of the President and the inherent authority of military commanders, with the individual rights of servicemembers.

More specifically, military criminal law includes the process of trial by court-martial and administrative punishments imposed without trial by court-martial, called "nonjudicial punishment."

The purpose of military criminal law is to enhance the national security of the United States by ensuring justice and the good order and discipline of the Armed Forces.

CO's Convening Authority

A commanding officer has the authority to impose nonjudicial punishment. The CO also has many other responsibilities including authorizing searches and seizures of property; making the initial determination to confine an accused; and exercising prosecutorial discretion. In exercising discretion, a CO may dismiss charges; effect nonpunitive measures; impose nonjudicial punishment; or refer a matter to court-martial.

In referring a matter to court-martial, the CO becomes the convening authority. As such, the CO decides what charges to refer to the court-martial; what type of courts-martial; and selects the court-martial members (jury).

Additionally, the convening authority may negotiate and bind the Navy or Marine Corps to pretrial agreements; grant immunity to witnesses; disapprove findings; and grant clemency on the sentence.

These powers are not absolute. Commanding officers and convening authorities are governed in their actions by the Uniform Code of Military Justice (UCMJ), the Manual for Courts-Martial (MCM) and the Manual of the Judge Advocate General (JAGMAN).

Nonjudicial Punishment (NJP)

Commanders are responsible for good order and discipline in their commands. Generally, discipline can be maintained through effective leadership including, when necessary, administrative corrective measures. Nonjudicial punishment is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the offense or the record of the servicemember, and where a court-martial is not warranted.

NJP is permitted under Article 15 of the UCMJ and is further governed by Part V of the MCM, and Part B of Chapter 1 of the JAGMAN.

This provides commanders with a prompt means of maintaining good order and discipline, and also promotes positive behavior changes in service members without the stigma of a court-martial conviction.

NJP is an appropriate form of discipline for minor offenses. Whether an offense is minor depends on several factors: the nature of the offense; the circumstances surrounding its commission; and the offender's age, grade, duty assignment, record and experience. A decision whether an offense is "minor" is a matter of discretion for the commander imposing punishment, but the imposition of punishment for an offense other than a minor offense is not a bar to trial by court-marital for the same offense.

Article 15, UCMJ, allows COs and officers in charge, when authorized by the Secretary of the service concerned, to impose limited punishment on servicemembers of their command.

Punishment under NJP is limited to confinement on bread and water or diminished rations, restriction to certain specified limits, arrest in quarters, correctional custody, extra duties, forfeiture of pay, detention of pay, and reduction in grade.

While admonition and reprimand may be imposed in all cases, other punishments which may be imposed in a particular case depend on the grade of the officer imposing punishment, the grade of the accused, and whether the accused is attached to or embarked on a vessel.

Except for individuals attached to or embarked on a vessel, servicemembers have the right to refuse the imposition of nonjudicial punishment.

Prior to the imposition of nonjudicial punishment, an accused is entitled to notification: that the imposition of nonjudicial punishment is being considered; a description of the alleged offenses; a summary of the evidence upon which the allegations are based; notification that the accused has the right to refuse the imposition of punishment; and any rights the accused has if NJP is accepted.

Refusal of NJP may not result in the dismissal of charges. A commanding officer can still refer the charges to court-martial.

An accused has the right to a personal appearance before the officer imposing punishment. During this appearance, the accused has the right against self-incrimination, the right to be accompanied by a spokesperson, the right to be informed of the evidence against him or her, the right to examine the evidence against him or her, the right to present matters on his or her own behalf, and to have the proceedings open to the public.

An accused may waive a personal appearance, if agreeable to the officer imposing punishment, and submit written matters for consideration by the imposition authority.

The Military Rules of Evidence, other than rules concerning privileges, do not apply to the imposition of nonjudicial punishment. The officer imposing punishment may consider all relevant matters so long as the accused has been given proper notice and the opportunity to respond. The officer must be convinced of the accused's guilt by a preponderance of the evidence.

The accused may appeal the imposition of nonjudicial punishment on the grounds that it is unjust or disproportionate to the offense. The appeal must be in writing and forwarded to the next superior authority via the officer who imposed punishment.

The appeal must be referred to a judge advocate (a military lawyer) for consideration and advice before the authority who is to act on it may make any decision.

Court-martial

Article 16, UCMJ, provides for three different types of courts-martial: summary, special, and general. These forms of courts-martial differ in their make-up and the punishments which may be imposed.

The Military Rules of Evidence apply to all classifications of courts-martial. Moreover, an accused must be proven guilty beyond a reasonable doubt.

Summary Court-martial

A summary court-martial consists of one commissioned officer, and may try only enlisted personnel for noncapital offenses.

The punishment which may be imposed depends on the grade of the accused.

In the case of enlisted members above the fourth pay grade, a summary court-martial may impose restriction for no more than two months, forfeiture of two-thirds of one month's pay, and reduction to the next inferior pay grade.

In the case of all other enlisted members, the court-martial may also impose confinement for not more than one month and may reduce the accused to the lowest pay grade, E-1.

The accused has the absolute right to refuse trial by summary court-martial. The accused does not have the right to representation by an attorney. The accused does have the right to cross-examine witnesses, to call witnesses and produce evidence, and to testify or remain silent.

Special Court-martial

A special court-martial consists of not less than three members and a military judge, or an accused may be tried by military judge alone upon request of the accused.

A special court-martial is often characterized as a misdemeanor court, and may try all persons subject to the UCMJ, including officers and midshipmen.

A special court-martial may impose admonition, reprimand, restriction, extra duty, confinement for no more than six months, and forfeiture of two-thirds of a month's pay for six months in all cases. In addition, enlisted members may be reduced to the lowest pay grade, and receive a bad-conduct discharge.

General Court-martial

A general court-martial consists of not less than five members and a military judge, or an accused may be tried by military judge alone upon request of the accused.

A general court-martial is often characterized as a felony court, and may try all persons subject to the UCMJ, including officers and midshipmen.

A general court-martial may adjudge any punishment not prohibited by the UCMJ, including death when specifically authorized.

Pretrial Confinement

Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges.

Although the military justice system does not provide for bail, the service member is entitled to the same Fourth Amendment probable cause safeguard as a civilian confined prior to trial. In an important contrast to the civilian system, an accused servicemember continues to draw full pay and allowances while in pretrial confinement.

The commanding officer and the independent review officer weigh the need for pretrial confinement against other available forms of restraint.

The military justice system recognizes three other forms of restraint: conditions on liberty, restriction in lieu of arrest and arrest. Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts. Restriction in lieu of arrest is an order directing the person to remain within specified limits, such as a ship, barracks or installation.

Arrest differs from restriction only in that it includes suspension from performance of duties that involve supervision of subordinates, serving as a guard, or bearing arms.

Legal Assistance

The legal complexities of today make the world we live in an especially intimidating place at times. Whether it is a new or used car, renting an apartment, buying a home, paying taxes or writing a will, the legal intricacies are there to confound us all, adding stress in our lives.

Fortunately, Sailors and their family members have the right to free legal advice and assistance under the Navy Legal Assistance Program. In the Navy, legal assistance is legal aid and advice for most personal, noncriminal matters.

Eligible beneficiaries include service members, both active duty and retired, and their immediate family members. In addition, Chapter VII of the JAGMAN sets forth additional categories of persons who are eligible to receive legal assistance, including survivors of eligible members and retirees, certain overseas civilian employees and their family members and allied forces service members serving with U.S. Armed Forces in CONUS and their family members. Legal assistance providers are the attorneys, paralegals and administrative clerks assigned to a legal assistance office. Legal assistance attorneys can be either a "judge advocate” or a civilian attorney who is licensed to practice law in the state where the legal assistance office is located.

A "judge advocate” is an attorney who has graduated from an accredited law school, is licensed to practice law by the highest court of a state or by a federal court and who has graduated from the Naval Justice School, Newport, R.I.

Since judge advocates perform many duties for the Navy, judge advocates assigned to assist individuals with personal legal problems are known as legal assistance attorneys.

If a legal assistance attorney is unable to resolve the case or a specialized attorney is needed, the legal assistance attorney will refer you to a civilian attorney, normally through a local lawyer referral service, who can handle the case.

Legal assistance offices are located on almost every base, ship and installation. At major installations, the Naval Legal Service Office (NLSO) is a key source for providing legal assistance. If no NLSO is in your area, contact your local staff or station judge advocate to find out where you can receive assistance.

    Legal Assistance Services

    • Drafting powers of attorney
    • Drafting wills
    • Estate planning advice
    • Reviewing contracts and leases (ideally, before you sign)
    • Providing notarizations
    • Personal finance advice
    • Family and domestic relations advice (divorce, separation, family suport, adoption, custody, paternity and name changes)
    • Consumer affairs
    • Tax advice on real and personal property and income (and in certain locations tax preparation and electronic filing (ELF))
    • Answering questions about landlord-tenant issues (including leases, security deposits and evictions)
    • Providing advice on immigration and naturalization issues

    Tax assistance

    Your legal assistance attorney can answer general tax questions related to your personal taxes. Legal assistance attorneys are prohibited from providing tax advice or services for businesses (including personal businesses of service members and their family), clubs and organizations.

    Tax help at legal assistance offices includes general advice and assistance regarding federal, state and local taxes. Most NLSOs are the sponsoring offices in their area for tax preparation services offered under the Volunteer Income Tax Assistance (VITA) and Electronic Filing (ELF) Programs.

    All VITA/ELF offices prepare federal returns and many also will prepare state returns. VITA and ELF services are provided at no cost to persons entitled to legal assistance.

    Tax return preparation services are generally available from January through April 15. Overseas, tax preparation services are generally available until June 15.

    You should also be able to obtain state and federal income tax forms for filing your income tax return at your legal assistance office.

    Domestic relations

    • Adoption. If you and your spouse want to adopt a baby, a legal assistance attorney can assist you by explaining the appropriate legal procedures.

      In some areas, a legal assistance attorney can assist you in the preparation of the required paper work. A legal assistance attorney can also provide information about the Navy's Adoption Expense Reimbursement Program.

      Marital problems. If you and your spouse are having marital difficulties and need legal advice, a legal assistance attorney can advise you or your spouse concerning the legal and practical implications of annulment, paternity, legal separation, divorce and child custody.

      Additionally, if the matter is uncontested (that is, you and your spouse are in total agreement about how to resolve the situation), assistance may be given, by separate legal assistance offices, to each party in preparing the necessary pro se documents, meaning you represent yourself before a court.

      One legal assistance office may not represent both parties in legal matters, such as divorce, even if it is uncontested. The amount of assistance available will vary according to local practice.

      Spousal and child support. If your spouse is not providing sufficient support for you and the children and you don't know how to enforce the obligation, a legal assistance attorney can assist you in determining whether your spouse is meeting his or her obligation, how you can enforce this obligation and what, if any, legal action you may take in order to ensure that your spouse will continue to meet this obligation in the future.

    Legal assistance may include the legal assistance attorney notifying your spouse in writing that he or she has an obligation to support his or her family members, notifying your spouse's commanding officer of your spouse's non-support and/or advising you to seek an involuntary allotment from or garnishment of your spouse's military pay.

    If you are the noncustodial parent supporting your spouse and children, a legal assistance attorney can advise regarding your support obligations.

    Wills, estates and trusts

    • Will preparation. If you want to ensure that your worldly possessions go to the individuals you have chosen, then a will is the solution.

      A will is a legal document which specifies how you want your property distributed after your death. It may also include other matters such as appointment of your child's guardian. Not every person needs a will. A legal assistance attorney can advise you whether you need one and how it can affect the disposition of your estate.

      The legal assistance attorney generally can draft a will that fits your particular desires and needs.

      If the legal assistance attorney determines that he or she cannot provide adequate advice or assistance regarding your estate, then he or she will assist you in locating a civilian attorney so that your needs can be fulfilled by a specialist in estate planning.

      A legal assistance attorney may be able to provide an "advance medical directive" or a "living will" which relates to the use of extraordinary life-sustaining measures if you become seriously ill.

      Trusts. If you are concerned about how your children will be able to pay for college if you are not around to assist them, or if your family will be taken care of financially, your legal assistance attorney can advise you as to possible solutions.

      One possible solution may be a trust. A trust is a legal document whereby you place certain properties and assets -- perhaps monies, stocks or real estate under the control of a third party who has an obligation to ensure that those properties and assets are applied toward a certain goal such as your children's educational needs.

      Because the laws vary among all the states as to trusts and their validity, you must consult an attorney before establishing a trust.

      Legal assistance attorneys may include trust provisions in a will, but are not permitted to draft so-called "living trusts."

    Consumer advice

    • Debts and Bankruptcy. Most service members borrow money at some time during their life. Some Sailors get into financial difficulties and need help getting out of debt. A legal assistance attorney can advise you on the laws and legal protections as they relate to loans, credit cards, credit bureaus and bankruptcy.

    • "Lemon Law." If you have recently purchased an automobile that doesn't perform well and are unable to get proper service from your dealer, your legal assistance attorney can advise you as to possible remedies which may include asserting your rights under an applicable "Lemon Law," contacting the manufacturer's area representative or filing a complaint with the local Better Business Bureau against the dealership.

    • Leases. If you buy a house, then get permanent change of station orders to a different geographic location and you don't want to sell the house, you may want to consult your legal assistance attorney.

      If you decide to rent or lease your house, your legal assistance attorney can assist you by explaining the local laws regarding the rights and duties of a landlord and by explaining the best ways to resolve difficulties with the house or tenants while you are away.

      In some areas, your legal assistance attorney may draft a lease to fit your needs. A legal assistance attorney will also provide assistance to tenants by reviewing their lease and advising them of their rights under local law.

      Powers of attorney. If you need to give someone permission to release your household goods shipment because you're leaving before your furniture, your legal assistance attorney can acquaint you with an area of law known as "agency," which allows you to appoint another person to act in your place when you cannot be available. Such an appointment is commonly accomplished by a power of attorney. Your legal assistance attorney will advise you that a power of attorney may be drafted to authorize a person to act on your behalf in most of your affairs through a general power of attorney, or only in specific situations such as obtaining emergency medical care for your children or registering your car through a limited or "special" power of attorney.

      Your legal assistance attorney will explain the differences, advising which type would best meet your needs, and prepare an appropriate power of attorney.

      Credit laws. If you receive your monthly credit card statements and feel it contains unauthorized charges, your legal assistance attorney can advise you as to your rights under the federal and state laws on credit card billing, can advise you of appropriate action you should take, and prepare or assist you in the preparation of necessary documents and correspondence.

      Notary public. Legal assistance attorneys and many legalmen are empowered under federal law to act as a notary without the usual $5 fee most public notaries charge. Many legal assistance offices also have civilian notaries.

      Civil courts. A legal assistance attorney can advise you as to your protection under the Soldiers and Sailors Civil Relief Act.

      This act provides certain protections to active-duty members who have been sued in a civil court (as distinguished from a criminal proceeding) and who, because of their military duties cannot defend themselves from the lawsuit.
      This protection may include:
      • The civilian court appointing an attorney to represent you.
      • The court postponing the proceedings until you are able to reasonably defend yourself.
      • The court may allow you to void a default judgment if such was awarded against you.

      Legal assistance providers are constantly helping Sailors with a variety of legal matters. In fact, they assisted clients with more than 590,000 legal matters in 1996.

        Legal Assistance Can

        Legal Assistance Can't

        • Serve as advocate and counsel for an eligible client.
        • Provide legal assistance to those not eligible to receive such assistance.
        • Prepare and sign correspondence on behalf of an eligible client.
        • Provide legal assistance via a third party. The attorney must deal directly with the client, not a friend or relative of the person to be assisted.
        • Negotiate with another party or that party's attorney.
        • Assist or counsel eligible persons regarding legal problems arising from the client's business or commerical interests.
        • Prepare legal documents, as permitted by the JAGMAN, other regulations and local pratice.
        • Provide in-court representation for an individual (except in limited cases).
        • When necessary, refer eligible persons to a civilian lawyer.
        • Under normal circumstances, give advice over the telephone.
        • Your legal assistance attorney holds all conversations and dealings with you in strict confidence, as required by the Navy rules of professional responsibility.
        • Represents both parties in a dispute.

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