Nonjudical Punishment (Article 15)

What is Nonjudicial 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).   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.

What is the Burden of Proof for Non-Judicial Punishment or an Article 15?

In a nonjudicial punishment proceeding, the Government has the burden of proof to show that the service member committed the offenses for which they are accused.  The service member has no such burden and is presumed to be innocent.  The burden of proof requires the Government to produce evidence to establish the truth of facts needed to satisfy all the required legal elements of the offenses charged.  The burden of proof is the degree of certainty to which an evidentiary fact must be proven to be considered true or proved.  There are two primary levels of burden of proof with dealing with nonjudicial punishment or Article 15s – Proof “beyond a reasonable doubt” and proof by the “preponderance of the evidence.”

Proof Beyond a Reasonable Doubt.

The first burden of proof relating to nonjudicial punishment is “beyond a reasonable doubt.”  Proof “beyond a reasonable doubt” is the highest standard of proof required in criminal trials.  It means that the evidence presented by the Government must be so strong, convincing, and conclusive that no reasonable person could have any doubts as to the Accused’s guilt.  In other words, the proof must be so clear, direct, and convincing that a person cannot doubt that the Accused is guilty of the offense charged. The Government must prove all elements of the offense “beyond a reasonable doubt.” This standard is designed to protect the Accused from being found guilty based on mere suspicion or conjecture, by ensuring that the evidence presented is of the highest quality and meets an extremely high level of certainty.

Proof by the Preponderance of the Evidence.

The second burden of proof relating to nonjudicial punishment is by the “preponderance of the evidence.”  By the “preponderance of the evidence” is the standard of proof that is used in most civil lawsuits to determine which side wins. It is also known as the “balance of probabilities” standard.  Often described as a “more likely than not” standard or proof over 50.1%.  In a civil case, the plaintiff has the burden of proving their case by a “preponderance of the evidence.”  This means that they must show that it is “more likely than not,” based on the evidence presented, that their claim is true. The plaintiff doesn’t have to prove their case “beyond a reasonable doubt,” as they would in a criminal trial.  Instead, they must provide enough evidence to show that their version of events is more probable than the defendant’s.  The preponderance of the evidence standard is a lower burden of proof than “beyond a reasonable doubt,” which is used in criminal trials.  This standard is used in civil cases because the consequences of losing are typically less severe than they are in criminal cases. The UCMJ itself is silent on which burden of proof the Government must meet when determining the truth of the offenses alleged in nonjudicial punishment proceedings.  Instead, it allows each service to determine what burden of proof is required to prove nonjudicial punishment offenses.

The Army Standard – Proof Beyond a Reasonable Doubt.

For the Army, the burden of proof at nonjudicial punishment proceedings is “beyond a reasonable doubt.”  Army Regulation 27-10, paragraph 3-16(d) provides that, “before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).”  This is exactly the same burden of proof required in a court-martial.

The Air Force Standard – Probably Proof Beyond a Reasonable Doubt.

For the Air Force, the governing Air Force Instruction does not provide what the burden of proof is for nonjudicial punishment proceedings.  The Instruction, AFI 51-202, Section 3A, paragraph 3.4, provides that “while no specific standard of proof applies to NJP proceedings, including appeals, commanders should recognize that a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction. Whether such proof is available should be considered before initiating action under Article 15, UCMJ.  If such proof is lacking, NJP action is usually not advisable.”  By its language, if there is not proof “beyond a reasonable doubt” the commander should not be administering nonjudicial punishment.

The Navy and Marine Standard – By the Preponderance of the Evidence.

For the Navy and Marines, the burden of proof is by “preponderance of the evidence.”  JAGMAN paragraph 0110(b) provides, “Captain’s mast/office hours is not a criminal trial; it is a disciplinary proceeding.  Its purpose is to determine whether an offense was committed by the member and, if appropriate, to provide punishment therefore.  Such punishment is designed for minor misconduct in a nonjudicial forum, without a record of ‘federal conviction.’  As such, the standard of proof by which facts must be established at mast or office hours is a ‘preponderance of the evidence,’ rather than ‘beyond a reasonable doubt,’ as it is at courts-martial.”

The Coast Guard Standard – By the Preponderance of the Evidence.

For the Coast Guard, the burden of proof is also by the “preponderance of the evidence.”  The Military Justice Manual, COMDTINST M5810.1H, Chapter 2, Section K, paragraph K.7. provides that “the standard of proof required in order to award punishment at NJP is a preponderance of evidence.  This standard means that before NJP may be awarded, the commanding officer must determine it is ‘more likely than not’ that the member committed an offense defined by the UCMJ.  Each element of each offense as defined in the MCM must be supported by a preponderance of the evidence (i.e., it is “more likely than not” that the element occurred).  This standard is more rigorous than a ‘probable cause’ standard of proof used by law enforcement to obtain a warrant, but a lower standard of proof than the ‘beyond a reasonable doubt’ standard used at a court-martial.”

What are the Consequences for Service Members Given the Burden of Proof for Nonjudicial Punishment?

Due to the fact that most commanders are not aware of the standards for burden of proof for nonjudicial punishment, and don’t know how to apply the standard to the offenses charged, service members should consult with a military lawyer before accepting nonjudicial punishment.  Talking to a military lawyer at the Law Office of Will M. Helixon will provide the service member with a complete list of the “pros and cons” of agreeing to nonjudicial punishment.  Both Will M. Helixon and John Caulwell have decades of experience advising commanders and clients on offering and accepting nonjudicial punishment proceedings or Article 15s.  Depending on the facts of the case, sometimes it is advisable to “turn down” an Article 15 and demand trial by court-martial.  Other times, it is in the best interest of the service member to accept the non-judicial punishment and argue to the commander that the evidence presented does not meet the burden of proof, and therefore the service member should be found “not guilty.”

What are the Consequences for a Service Member Demanding a Trial by Court-Martial?

A military court-martial is a legal proceeding used to try service members who are accused of committing offenses under the Uniform Code of Military Justice (UCMJ).  The court-martial process is similar to a civilian criminal proceeding but is specifically designed to address the unique needs of the military justice system. The court-martial may be convened for various reasons and can result in a range of outcomes from acquittal to incarceration to sex offender registration, depending on the facts of the case.  A conviction at most courts-martial are federal convictions for the purposes of determining a service member’s potential criminal history.  The types of court-martials include summary court-martial, special court-martial, and general court-martial.  Summary courts-martials involve minor offenses and are typically presided over by a single officer who makes the final decision.  Summary courts-martial are not federal convictions.  Special and general court-martials are more formal proceedings that are held for more serious offenses, and they involve a panel of military members (a jury) or a military judge who decides the outcome depending on the election by the service member. The Accused in a court-martial has the right to military defense counsel, and the proceedings generally follow the rules of evidence and procedural requirements of civilian courts. However, the military justice system has its own set of laws and regulations that govern the process, including rules related to confinement, discipline, and punishment.  The military justice system is designed to maintain discipline and order within military ranks, ensure the protection of national security, and uphold the Uniform Code of Military Justice (UCMJ).

Should a Service Member Demand Trial by Court-Martial or Accept the Nonjudicial Punishment Proceedings?

That is the million-dollar question and should not be made by a service member without thoroughly discussing the matter with an experienced military lawyer.  Only an experienced military lawyer will be able to evaluate the evidence in a service member’s case, the potential witnesses, and potential defenses available at a court-martial.  Only after extensive consultation with the service member and understanding the complete facts of the case, can an experienced military lawyer provide informed advice to the service member on whether they should accept the nonjudicial punishment proceedings. It is important to understand that the rules governing courts-martial and the rules governing nonjudicial punishment are vastly different.  It is every service member’s right to have their case tried by a court-martial and be provided with the rights and protections governing them.  By accepting the nonjudicial punishment proceedings, the service member is giving up these rights, and agreeing to proceed with the rules governing the nonjudicial punishment proceedings.  Only after speaking with an experienced military lawyer can the service member make an informed and knowledgeable decision as to which forum to choose, and which choice is in the service member’s best interest.  The most significant right given up by accepting the nonjudicial punishment proceeding is trial by court-martial, and instead, having the commander to serve as “judge and jury” at the NJP proceeding.  In the Navy, Marine Corps, and Coast Guard, the service members are agreeing to a much lower burden of proof to determine guilt at the NJP proceeding.  Contact the military lawyers at the Law Office of Will M. Helixon to discuss your options regarding accepting the proposed nonjudicial punishment proceeding.

What are the Procedures for Nonjudicial Punishment Proceedings?

The major myth that must be debunked is that by accepting the nonjudicial punishment proceedings the service member is pleading guilty to the Article 15.  That is not the case.  In fact, the service member is afforded many protections at the nonjudicial punishment proceeding.  Some of the guarantees afforded the service member at the nonjudicial punishment proceeding are the right to be present at the proceeding, the right to review the evidence against them, the right to consult with military lawyers before accepting the proceeding, the right to have a spokesperson at the proceeding, the right to have witnesses at the proceeding, the right to investigate the allegations alleged in the offenses, the right to present evidence refuting the offenses on the Article 15, the right to present matters in mitigation and extenuation at the proceeding, and the right to make a statement on their own behalf at the proceeding.  Exercising these rights is an important decision that must be made in consultation with a military attorney.  In almost all instances, the detailed military lawyer will not attend the nonjudicial punishment proceeding on behalf of the service member.  If the service member wants a military lawyer present at the proceeding, they must hire a civilian military lawyer.  The military lawyers at the Law Office of Will M. Helixon are experienced representing service members at nonjudicial punishment proceedings throughout Germany, and compiling evidence and matters in mitigation and extenuation to be considered by the commander when adjudicating guilt and punishment.

What are the Possible Punishments at a Nonjudicial Punishment proceeding?

Depending on the type of nonjudicial punishment the service member receives (summarized, company grade, field grade), and the rank of the officer imposing their punishment, the maximum possible punishments vary.  The typical maximum punishments include correctional custody (not more than 30 days for E-4 and below), extra duty (up to 45 days), restriction to limits (up to 60 days), forfeiture of pay (half month’s pay for 60 days), reduction of rank (to the lowest enlisted rank if E-4 or below, and one rank if E-5 or E-6), and an official reprimand. Of course, there are other consequences of an nonjudicial punishment.  If the NJP is issued for an officer, it could trigger a “show cause” board requiring the offer to show why they should be retained in the military.  If the NJP is issued to a non-commissioned officer, it could trigger a Quality Management Program (QMP) Board where the NCO would have to respond as to why they should not be separated from the military service (Army).  If the NCO is reduced in rank, the reduction could trigger separation according to the Retention Control Points (RCP) based on the time the NCO has in service (Army).  Sometimes, a service member is barred from re-enlistment based on the NJP, thereby ending the career of the service member.  Further, the NJP can be used as evidence in a subsequent administrative separation notification procedures or an administrative separation board where the Government is seeking to involuntarily separate the service member.  It is important for the service member to understand the “follow-on” consequences of the nonjudicial punishment proceeding.  If a service member has questions about these and other potential “follow-on” consequences of NJP, the military lawyers at the Law Office of Will M. Helixon are available for immediate consultation throughout Germany.

Are there Arrest Consequences from the Offenses Charges at a Nonjudicial Punishment Proceeding?

There MAY be arrest consequences related to the investigation giving rise to the offense charged at the nonjudicial punishment proceeding.  If the case was investigated by military law enforcement (CID, OSI, NCIS, MPI, or other military law enforcement investigators) or the case was investigated by local police authorities, it is likely you were charged or “titled” with an offense, otherwise known as being arrested. Titling is the decision to place the name of a person in the ‘subject’ block of a CID report of investigation (ROI).  Unlike a criminal conviction, which requires proof beyond a reasonable doubt, to title someone only requires existence of credible information that a person committed a criminal offense. This “titling” will appear on all criminal background checks run on the service member in the future and will appear as an arrest record.

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.

Are there other ways to Minimize or Reduce the Effects of the Results of Nonjudicial 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.

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.