Nonjudical Punishment Appeals

What is Non-Judicial Punishment?

Nonjudicial punishment (NJP) is a disciplinary measure used in the military as an administrative form of discipline for minor offenses committed by military personnel. It is also known as “Article 15” in the Uniform Code of Military Justice (UCMJ).   Both the Army and Air Force refer to NJP as an “Article 15.”  NJP is also referred to as “Captain’s Mast” in the Navy and Coast Guard, and as “Office Hours” in the Marine Corps.  Regardless of what NJP is called in a particular service, it is a way for commanders to address disciplinary problems without going through the full legal process of a court-martial.  Ordinarily, the commander will conduct an investigation and, if it is found that there is sufficient evidence to support the charges, they will decide on the punishment.

Can a Service Member Appeal the Findings and Punishment Imposed at a Nonjudicial Punishment Proceeding?

If a service member receives punishment during the proceeding, they can appeal the nonjudicial punishment. The service member has five days to appeal the NJP.  Ordinarily, restriction and extra duty are postponed during the pendency of the appeal.  The appeal is forwarded through the imposing commander or successor-in-command, when applicable, to the superior authority.  The superior authority will act on the appeal unless otherwise directed by competent authority.  The service member may attach documents to the appeal for consideration.  A service member is not required to state reasons for their appeal; however, they may do so.  Generally, reasons for appeal are that based on the evidence, the service member does not believe they are guilty, or that the punishment imposed is excessive, or that a portion of the punishment should be mitigated or suspended.

Why Should a Service Member Appeal the Findings and Punishment of Nonjudicial Punishment?

Nonjudicial Punishment will have both immediate and long-term impacts on a service member.  These consequences range from immediate financial loss, including reduction of rank, to long-term consequences including the NJP serving as the basis for an administrative separation (Chapter action), whether through Notification or Board procedures for enlisted service members, or through a Board of Inquiry (BOI) for officer service members.  For senior NCOs, the Nonjudicial Punishment will trigger a Quality Management Program (QMP) Board where the service member will have to convince the Army not to separate them.  For service member with several years in the service, in the Army, a reduction of rank could trigger discharge through the Retention Control Points (RCP) program.  The NJP can be used as the basis for a Bar to Reenlistment, denying the service member continued service in the military.  The service member could still face the same charges on the NJP at a subsequent court-martial, or the NJP could be used in the sentencing phase of the trial by the Government as aggravating evidence to justify a more severe sentence.  Of course, there are also the intangible consequences of showing up to formation the next day reduced in rank – from embarrassment to loss of respect from other service members.

Potential Financial Loss from Nonjudicial Punishment.

Punishment typically takes place immediately, and can be devastating to a service member, especially financially.  According to the Fiscal Year 2023 military pay chart, loss of a half a month’s pay for two months for enlisted service members could be between $1,918 and $6,775 (E-1 with less than 2 years of service through E-9 with over 18 years of service).  For officers, loss of a half a month’s pay for two months could be between $3,637 and $12,050 (O-1 with less than 2 years of service through O-6 with over 18 years of service).  Additional financial loss will be suffered with a reduction of rank.  For an E-2 reduced to E-1, the loss of pay would be $231 a month ($2,772 a year).  For an E-4 reduced to E-1, the loss of pay would be $714 a month ($8,568 a year).  For an E-5 reduced to E-4, the loss of pay would be $284 a month ($3,408 a year).  For an E-6 reduced to an E-5, the loss of pay would be $513 a month ($6,156 a year).  In addition to the forfeitures and reduction in rank, the service member would lose money for his Basic Allowance for Housing (BAH) and Overseas Housing Allowance (OHA).  For example, for a service member living in Wiesbaden, Germany, a reduction from E-5 to E-4 would be a reduction in OHA of $335 a month ($4,028 a year).  A reduction from E-6 to E-5 would be a reduction in OHA of $264 a month ($3,168 a year).  All totaled and depending on the rank, a service member could lose up to $13,000 in a single year through reductions of pay, BAH/OHA, and NJP forfeitures.

Triggering Involuntary Separation from Nonjudicial Punishment.

Nonjudicial Punishment can lead a commander to initiate involuntary separation proceedings based on serious misconduct or a pattern of misconduct.  If the enlisted service member has less than 6 years in service and the command is not seeking an Other Than Honorable Discharge, the commander could initiate involuntary separation utilizing the “Notification Procedure” where the entire process is a “paper process.”  If the enlisted service member has over 6 years in service, or the command is seeking to separate the service member with an OTH discharge, then the command must utilize the “Board Procedures” and an Administrative Separation Board will be convened to determine whether the service member is separated and under what characterization of service.  For officer service members with over 6 years of service, a “Board of Inquiry,” also known as a “Show Cause Board,” will be convened to decide the issue of separation and characterization.  In any event, the NJP will be used as evidence to justify the involuntary separation.

Triggering Quality Management Program (QMP) Board from Nonjudicial Punishment.

All Noncommissioned Officers (NCOs) in the rank of Staff Sergeant and above whose performance, conduct, and/or potential for advancement do not meet Army standards, as determined under the QMP process by approved recommendations of an HQDA NCO evaluation board, will be denied continued active service.  An NCO who is subsequently reduced below the rank of Staff Sergeant remains eligible for denial of continued active service under this program when the basis for referral occurs as a Staff Sergeant or higher rank.  Nonjudicial Punishment is one of the triggering events that causes review of the NCOs file for denial of continued service in the Army.

Triggering Retention Control Point Separation from Nonjudicial Punishment.

If a service member is reduced in rank at a Nonjudicial Punishment proceeding, they may face denial of continued service in the Army depending upon how long they have been in the Army according to the Retention Control Point (RCP) program.  For instance, a Staff Sergeant with 17 years of service, if reduced to Sergeant E-5, would face separation since the RCP for E-5 is 16 years.  Depending on the current RCP cutoffs, NJP reductions could effectively eliminate a service member from the Army.

Triggering a Bar to Reenlistment from Nonjudicial Punishment.

In accordance with AR 601–280 (Army Retention Program), unsuitable Service Members will be identified early in their military service with a vision of eliminating them from continued service.  When administrative discharge is not warranted, action will be taken under this chapter (Chapter 8) to bar the service member from continued service with the Regular Army.  Nonjudicial punishment is a factor that determines whether a service member is unsuitable for continued service in the U.S. Army.

Consequences at a Court-Martial from Nonjudicial Punishment.

Despite the finding of guilt at a Nonjudicial Punishment, a service member still may face charges that were disposed of during NJP Proceedings.  Additionally, the Government prosecutor can introduce the Nonjudicial Punishment at the sentencing phase of the court-martial as matters in aggravation.  The NJP can be used to by the Government to seek harsher punishment and showing that the service member does not have rehabilitative potential.

How Does a Service Member Appeal the Findings and Punishment of Nonjudicial Punishment?

All appeal notifications will be made in writing.  In the Army, the appeal notification will be annotated on DA Form 2627 or DA Form 2627 – 1 and forwarded through the imposing commander or successor-in-command, when applicable, to the superior authority.  The superior authority will act on the appeal unless otherwise directed by competent authority.  The service member may attach documents to the appeal for consideration.  If the service member is serious about the appeal, they will attach supporting documents and evidence in support of their appeal outline the basis for appeal and requesting the specific action by the superior authority commander.

What are the Grounds for Appealing Nonjudicial Punishment?

An appeal of Nonjudicial Punishment may be taken if a service member considers the punishment to be “unjust or disproportionate to the offense.” MCM, Part V, paragraph 7a, Uniform Code of Military Justice, Article 15, paragraph (e).  The findings, the punishment, or both may be appealed.  A service member may assert the punishment is unjust because the offense was not committed.  A service member is not required to state reasons for their nonjudicial punishment appeal; however, the service member may do so.  In the Army, for example, the person may state the following in the appeal: (1) based on the evidence the service member does not believe they are guilty, (2) the punishment imposed is excessive, or (3) that a certain punishment should be mitigated or suspended.

The term “unjust” denotes illegality.  Examples of unjust punishment include: the act of misconduct for which punishment was imposed was not a punishable offense under the UCMJ; the member was not subject to the jurisdiction of the commanding officer who imposed punishment; the commanding officer who imposed punishment was without power or authority to act in the member’s case; or the punishment exceeded legal limitation based upon the status of the member and/or the commanding officer who imposed the punishment. Similarly, the illegality may result from the denial of a substantial right of the member at any stage of the proceedings (e.g., investigation, preliminary inquiry, interrogation, or the nonjudicial punishment proceeding).  Illegality may result from the failure to comply with procedural provisions applicable to Nonjudicial Punishment.  Additionally, a service member who received a punitive letter of censure may appeal, claiming that a matter raised in the letter is inaccurate or not relevant to the offense committed or the punishment imposed. Finally, illegality may result from a lack of sufficient evidence to establish that it was “more likely than not” that the member committed the misconduct, or in the Army and Air Force, that the NJP was not proven beyond a reasonable doubt.

The term “disproportionate” indicates that although the punishment imposed was legal, it was excessive or too severe considering all the circumstances (e.g., the nature of the misconduct involved; the absence of aggravating circumstances; the prior good record of the member; or any other circumstances that tend to lessen the severity of the misconduct or explain it in a light more favorable to the member).  Adverse administrative consequences of NJP such as delay in advancement or inability to reenlist are not punishment and are not a proper basis for NJP appeal although it may be appropriate for clemency and other subsequent actions.

Given the potential short and long-term consequences of Nonjudicial Punishment, it would be in the best interest of service members to seek the advice of the military lawyers at the Law Office of Will M. Helixon to develop a plan to respond to NJP proceedings and develop a plan to appeal any adverse findings.  Call us today for a consultation.

How Long Does a Service Member Have to Appeal Nonjudicial Punishment?

Only one appeal is permissible pursuant to UCMJ, Art. 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.  A reasonable time will vary according to the situation; however, an appeal (including all documentary matters) submitted more than 5 calendar days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander’s sound discretion for good cause shown, determines it to be timely.  The service member can request an extension of time to submit matters in appeal, however such request is not a right, and granting of additional time to submit an NJP appeal is within the discretion of the superior commander.

Does the Service Member have to Perform Extra Duties and Abide by Restriction During an Appeal of Nonjudicial Punishment?

A Service Member who has appealed their Nonjudicial Punishment may be required to undergo any punishment imposed while the appeal is pending, except that if action is not taken on the appeal within 5 days after the appeal was submitted, and if the Service Member so requests, any unexecuted punishment involving restraint or extra duty shall be stayed until action on the appeal is taken.

What Action Does the Imposing Commander take on Nonjudicial Punishment Appeals?

The imposing commander or the successor-in-command may take any action on the appeal with respect to the punishment that the superior authority could take (see MCM, 2019, and see para 3 – 33 of this regulation).  If the imposing commander or a successor-in-command suspends, mitigates, remits, or sets aside any part of the punishment, in the Army, this action will be recorded on item 8 of DA Form 2627, or item 5 of DA Form 2627 – 1. The appellant will be advised and asked to state whether, in view of this action, the appellant wishes to withdraw the appeal. Unless the appeal is voluntarily withdrawn, the appeal will be forwarded to the appropriate superior authority.  An officer forwarding the appeal may attach any matter in rebuttal of assertions made by the Soldier.  When the Soldier desires to appeal, the imposing commander, or the successor-in-command, will make available to the Soldier reasonable assistance in preparing the appeal and will promptly forward the appeal to the appropriate superior authority.

What Action Does the Superior Commander take on Nonjudicial Punishment Appeals?

The next superior authority to the commanding officer who imposed NJP will act on an appeal if the Soldier punished is still of the command of that officer at the time of appeal.  If the commander acted pursuant to a delegation of authority, the appeal will be acted on by the authority next superior to the delegating officer.  In the Army, regardless of the grade of the imposing commander, the Army TJAG is delegated the authority next superior for acting on appeals when no intermediate superior authority is reasonably available.  When forwarding a UCMJ, Art. 15 record of punishment to TJAG for action on appeal, the imposing commander or successor in command will review the appeal to determine if action is warranted.

In the Army, action by the superior authority on appeal will be entered in item 8 on DA Form 2627, or item 5 on DA Form 2627 – 1.  A superior authority will act on the appeal expeditiously. Once the Soldier has submitted an appeal, including all pertinent allied documents, the appeal normally should be decided within 5 calendar days (3 days for summarized proceedings).  The superior authority may conduct an independent inquiry into the case.  The superior authority may refer an appeal in any case to a judge advocate for consideration and advice before taking action; however, the superior authority must refer an appeal from certain punishments to a judge advocate, whether or not suspended.  In acting on an appeal, the superior authority may exercise the same powers as may be exercised by the imposing commander or the imposing commander’s successor-in-command.  A timely appeal does not terminate merely because a service member is discharged from the Service.  It will be processed to completion by the superior authority.

What is the Role of the Government Trial Counsel (Judge Advocate) in Determining a Service Member’s Appeal of Nonjudicial Punishment?

When an appeal is referred to a judge advocate for review, the superior authority will be advised either orally or in writing of the judge advocate’s opinion on (1) the appropriateness of the punishment, and (2) whether the proceedings were conducted pursuant to law and regulations.  In the Army, if the advice is given orally, that fact and the name of the judge advocate who rendered the advice will be recorded in item 7 of DA Form 2627.  The judge advocate is not limited to an examination of written matters of the record of proceedings and may make any necessary inquiries.  The judge advocate rendering the advice should be the judge advocate providing legal advice to the officer acting on the appeal (superior commander).

What Can be Done if a Service Member’s Nonjudicial Punishment Appeal is Denied?

If the Appeal of the Nonjudicial Punishment is denied by the superior authority commander, the service member can request several actions by the imposing commander, the successor-in-command, or the superior authority commander to minimize the punishment.

There are various ways to minimize or reduce the impact of the results of nonjudicial punishment including through mitigation, remission, and set-aside and restoration.  Mitigation is appropriate when the service member has, by their subsequent good conduct, merited a reduction in the severity of the punishment, or the punishment imposed was disproportionate to the offense or the offender.  Remission is an action whereby any portion of the unexecuted NJP punishment is canceled.  Remission is appropriate under the same circumstances as mitigation.  An unsuspended reduction is executed on imposition and thus cannot be remitted but may be mitigated or set aside.  Setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual pursuant to UCMJ, Art. 15.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.  A set aside and restoration action can usually only be implemented within 4 months from the imposition of punishment.  The military lawyers at the Law Office of Will M. Helixon are experienced with petitioning commanders in the right case to consider mitigation, remission and set aside.  Call us today if you have any questions regarding your Article 15 or nonjudicial punishment.

Can a Service Member Appeal Nonjudicial Punishment to the Service Component BCMR?

Yes.  The Service Component Boards for Correction of Military Records (BCMR) have very broad authority to review and correct errors or injustices in a service member’s military record, OMPF, or officer record brief (ORB).  This includes changing the findings of Nonjudicial Punishment or even removing the NJP from the service member’s official military file.

Why Should a Service Member Hire the Law Office of Will M. Helixon for a NJP Appeal?

The military lawyers at the Law Office of Will M. Helixon have decades of experience advising commanders, both imposing commanders and superior authority commanders, on imposing Nonjudicial Punishment on service members in their over 40 years of military experience.  Additionally, both Will M. Helixon and John Caulwell have served as both military prosecutors and military defense lawyers, and currently live in Germany.  Their vast experience and knowledge of defensing service members facing NJP and submitting appeals to NJP will be invaluable to those seeking to appeal their Nonjudicial Punishment.

More about the Law Office of Will M. Helixon.

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martial, adverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB process, adverse administrative matters, military justice matters, and legal assistance matters, including the correction of military records.  No longer in Kansas City, the firm now has a European office physically located in Vilseck, Germany.  Call us today to assist with your legal issue in Germany or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.