Except in the case of a service member attached to or embarked in a vessel (normally Sailors assigned to ships or Marines/Sailors embarked on a ship for a deployment), the member can refuse non-judicial punishment (NJP) under Article 15, UCMJ and demand trial by court-martial. This is a very important decision for any service member who is notified that his/her commander is considering imposing NJP because a single NJP in today’s down-sizing and zero-tolerance environment often will be career ending.[spacer height=”20px”]
A special or general court-martial conviction is a federal conviction and can also have long term impacts on future career opportunities and, depending on the sentence, the ability to obtain certain veterans’ benefits. The potential punishments at a special and general court-martial are also significantly greater than the maximum punishments at NJP.[spacer height=”20px”]
On the other hand, courts-martial are governed by strict rules of procedure and evidence which often is to the benefit of an accused, and the accused has the right to be represented by a lawyer. A military judge will preside over the court-martial, ensuring the court is fair and that only legally admissible evidence and testimony is admitted. The member also has the right to the military’s equivalent of a jury. For Navy/Marine Corps members, there is also a higher burden of proof at court-martial – it’s proof beyond a reasonable doubt, the highest burden of proof under the law.[spacer height=”20px”]
Finally, it’s important to remember that a “demand for trial by court-martial” does not necessarily mean the case will be sent to a court-martial by the commander. The commander can pursue other administrative actions, a court-martial, or nothing at all. The demand, however, means that the commander cannot impose NJP.[spacer height=”20px”]
Before a member demands trial by court-martial, he or she needs to consider the following factors:[spacer height=”20px”]
What is the strength of the evidence against me for each alleged charge?[spacer height=”20px”]
Are there admissibility rules that would exclude evidence at trial, such as a violation of rights under Article 31b, UCMJ (failure to give appropriate rights warnings)?[spacer height=”20px”]
Is there any additional misconduct that can be added if the case is forwarded for court-martial? A demand for court-martial does not limit the government from pursing only the charges that were proffered to be handled at NJP.[spacer height=”20px”]
How will a NJP impact my career and future? How will a court-martial conviction impact my career and future?[spacer height=”20px”]
What is the likely punishment if I am found guilty at NJP by my commander? How about at court-martial?[spacer height=”20px”]
How likely is the command to court-martial me vice pursuing other options such as administrative separation?[spacer height=”20px”]
Is my commander going to be fair to me at NJP?[spacer height=”20px”]
Am I willing/can I wait 3-6 months for a trial by court-martial?[spacer height=”20px”]
These are just some of the considerations that should be discussed with a military law attorney prior to making this important decision. Contact Korody Law, P.A. at 904.383.7261 for a free case evaluation. Worldwide representation of military personnel.