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MILITARY JUSTICE -- AN OVERVIEW --

MILITARY JUSTICE -- AN OVERVIEW --. 43d MP BDE, JAG. THE PURPOSE OF MJ. To set the Standard Provide a process for enforcement Reinforce values that provide for an effective fighting force. THE COMMANDERS TOOL. Must be used with reason rather than emotion

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MILITARY JUSTICE -- AN OVERVIEW --

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  1. MILITARY JUSTICE -- AN OVERVIEW -- 43d MP BDE, JAG

  2. THE PURPOSE OF MJ • To set the Standard • Provide a process for enforcement • Reinforce values that provide for an effective fighting force

  3. THE COMMANDERS TOOL • Must be used with reason rather than emotion • Each case must be considered on its own merits • Process must be conducted in accordance with law and regulation • The commander is a magistrate

  4. CONSIDER ADMINISTRATIVE OPTIONS FIRST • Corrective training • Counseling • Admonition / Reprimand • Withdraw of Privileges • OER/EER • Bar to Reenlistment • Administrative separation/elimination

  5. ART 15 Commanders Notebook • Art 15 UCMJ • Manual for Courts Martial • DA Forms 2627 and 2627-1 • AR 27-10 • Commanders Legal Guide

  6. Purpose of Non-Judicial Punishment • Correct Educate and Reform Offenders who have shown that they cannot benefit by less stringent measures • Preserve an offender's record of service • Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel then trial by court-martial.

  7. Authority to Administer NJP • A commander who is a Commissioned or Warrant Officer of a • Troop, Battery, Company • Numbered Unit or Detachment • Authority is personal to the Commander • Authority may be withheld but not interfered with, AR 27-10 withholds Officer Art 15 to the GCMCA or General Officer Level for RC soldiers

  8. WHO MAY BE GIVEN AN ART 15? • Members of the command • Persons Detailed • Orders? • Where do they sleep, get paid, eat, work; duration • Transfer terminates status; forward to gaining command • RC officers, GCMCA or Gen. Officer

  9. WHAT TYPES OF OFFENCES? • Minor • Maximum punishment under UCMJ does not include a BCD • Violation of a General Order, 2yrs DD • Common sense consider age, intelligence, experience, prior service • Regulation is a guide • Real minor offense bars Court Martial

  10. ART 15 PROCEDURES • Summarized and Formal • Company Grade, Field Grade, General Officer • Commanders have options • Guilt or innocence • Punishments • Filing

  11. SUMMERIZED ART 15 Punishment • Same regardless of Commander’s Rank • 14 days restriction • 14 days extra duty • Oral admonition or Reprimand

  12. SUMMERIZED ART 15, NOTICE, (E-7 or Above) • Intent to impose punishment • Maximum Punishment • Offense and ART violated • Art 31 Rights • Right to Demand Trial • Right to confront witnesses, examine evidence, submit matters in defense, extenuation, and mitigation (spokesperson) • Right to Appeal

  13. AFTER NOTICE OPPORTUNITY TO DECIDE • Soldier gets a reasonable time (24 hours) • No right to an attorney • Soldier returns and notifies commander of his decision • If declines hearing ends • If accepts commander conducts hearing

  14. COMMANDER’S HEARING • Commander considers evidence oral and written against the soldier • Commander considers evidence submitted by the soldier; defense, extenuation or mitigation • Commander deliberates (standard is Beyond A Reasonable Doubt) • Commander imposes punishment

  15. IMPOSITION OF PUNISHMENT • Immediate • Unless otherwise stated • Appeal not acted upon within 3 days stays imposition of liberty provisions

  16. NOTICE OF APPELLATE RIGHTS • Commander explains rights of appeal and soldier indicates his selection on the DA Form 2627-1, immediately or has 5 days to decide • If appealed Command has 3 days to act or must suspend deprivations of liberty

  17. FILING OF SUMMERIZED ART 15 • Handwritten on a DA Form 2627-1 • Maintained in local Art 15 file • Destroyed upon transfer or after 2 years which ever occurs first

  18. FORMAL ART 15 • Differs because of the punishment that can be imposed • Level of punishment based upon grade of commander • Additional rights afforded the soldier

  19. PUNISHMENT COMPANY GRADE • Admonition or Reprimand; oral or written • Extra Duty 14 days • Restriction 14 days or Correctional Custody for 7 days (but must be E-3 or below and there must be a facility) • Reduction of E-2 to E-4 one grade • Forfiture of 7 days pay

  20. PUNISHMENT FIELD GRADE/GENERAL OFFICER • Admonition or Reprimand; oral or written • Extra Duty 45 days • Restriction 60 days or Correctional Custody for 30 days (but must be E-3 or below and there must be a facility) • Reduction of E-2 to E-4 one or more grades, reduction of E-5 one grade • Forfeiture of 1/2 of one months pay for 2 months

  21. OFFICER PUNISHMENT • Only General Officers or GCMCA • Admonition or Reprimand; oral or written • Arrest 30 days or Restriction 60 days • Forfeiture of pay 1/2 of one months pay for two months

  22. SPECIAL FORFITURE RULES FOR RESERVE SOLDIERS • If RC soldier is not serving punishment on AD then apply a forfeiture to percentage to pay earned during forfeiture period • The percentage is applied to pay earned during period of forfeiture • Example 200/912.60=21.92% x Pay Earned • If soldier earns no pay during the period then no pay is fortified

  23. SUSPENSION OF PUNISHMENT • Commander may suspend punishment for up to 6 months • Any violation of UCMJ can result in imposition of the punishment plus the initiation of another ART 15 • Can be a good option of some soldiers

  24. FORMAL ART 15 ADDITIONAL RIGHTS • Right to consult with counsel • Right to request an open hearing • Maximum punishment that could be imposed, plus if asked the maximum punishment for a Courts Martial • Reasonable period of time is increased to 48 hours, but...

  25. COMMANDER’S HEARING IS THE SAME • Presentation of evidence • Evidence in defense, extenuation and mitigation

  26. RECORDING THE FORMAL ART 15 • DA Form 2627 • If E-4 or below and first one filed locally • For all others it goes in the OMPF • Restricted • Performance • If E-5 or above and previous ART 15 on file automatically goes to performance fiche

  27. APPEALS OF NJP • Grounds • Punishment was disproportionate to the offense • Punishment was unjust because it did not comply with the law or regulation • Argue lack of guilt. Note: Acceptance of ART 15 is not evidence of guilt but merely consent to procedures.

  28. APPEALS OF NJP • Procedure • Appeal is started with notation on the DA Form 2627 • Within 5 days of imposition of punishment or "for good cause shown" • Appeal to the imposing commander and forwarded to the appellate authority (next line supervisor) • If soldier transferred it goes to the new superior • Must be first sent for legal review if...

  29. APPEALS OF NJP • Appellate Authority Options • Suspend all or a portion of the punishment • Mitigate the punishment - i.e. change reduction to forfeiture, reduce the period of suspension of liberty • Remission of punishment - cancels the unexecuted portion of the punishment • Set Aside punishment if there is a clear injustice, i.e. new evidence unquestionably exculpating the soldier

  30. MAJOR MISCONDUCT - COURTS MARTIAL • Federal Conviction • Various Levels • The Players • The Rules • Special Problems for Reserves

  31. SEARCH, SEIZURE, AND INVESTIGATION

  32. THE COMMANDERS ROLE • Inspections • Cannot target an individual or group • Consistent • Related to health, welfare or unit readiness • Search • Probable cause • Searches not requiring probable cause • Is the place or thing subject to protections • Who can authorize a search

  33. ART 31 RIGHTS • Its not Maranda • Mere Suspect • Superior subordinate relationship • Investigative relationship

  34. VIOLATIONS OF 4TH AND 5TH AMENDMENT RIGHTS • Art 138 complaint • IG complaint • Use of evidence

  35. QUESTIONS???

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