Current through Register Vol. 48, No. 12, March 22, 2024
a)
General. This Subpart prescribes the requirements, policies, limitations and
procedures for the imposition of nonjudicial punishment (NJP) pursuant to the
Adjutant General's authority under Code Section 15. It is a modification of
Part V of the MCM and should be interpreted consistent with the MCM. Unless
modified by the Code or this Part, the applicable procedures contained in NGIL
27-10 and NGIL ANG Instruction 51-202 (both 2010; no later amendments or
additions are incorporated) apply to NJP administered under this
Subpart.
b) Use of Nonjudicial
Punishment
1) Commander's Responsibility.
Commanders are responsible for good order and discipline in their commands.
Generally, discipline can be maintained through effective leadership, including
administrative corrective measures. A commander should use nonpunitive
disciplinary tools (e.g., counseling and reprimands) to the fullest extent to
further the efficiency of the command before resorting to NJP. However, NJP may
be used in all misconduct cases involving minor offenses for which the
commander considers nonpunitive measures to be inadequate or inappropriate. In
determining the method of discipline, commanders should consider the nature of
the offense, the record of the service member, the need for good discipline,
and the effect of punitive measures on the service member's record. All
disciplinary measures shall be resolved at the lowest appropriate level and
shall use the least severe discipline appropriate to the offense.
2) Statute of Limitations. Prompt action is
essential for NJP to have the proper corrective effect. NJP may not be imposed
for offenses committed more than 3 years before the date of initiation of
NJP.
3) Applicability of Army or
Air Force NJP Regulations
When the use of NJP is appropriate, the procedures of this
Subpart shall be used in lieu of the administrative reduction in rank
procedures created by applicable personnel regulations (Army Regulation (AR)
600-8-19, NGR (AR) 600-200 or ANGI 36-2503, etc.). When a situation arises that
is not addressed by this Subpart, the Army or Air Force regulations concerning
NJP should be consulted for guidance, as appropriate (e.g., AR 27-10, Air Force
Instruction (AFI) 51-202).
4) Restriction on Punishment after Exercise
of Jurisdiction by Civilian Authorities. An SMF member who has been tried in a
civilian court may, but normally will not, be disciplined under this Subpart
for the same acts over which the civilian court exercised jurisdiction. NJP
action should not be used to discipline SMF members for civil court convictions
because, in that instance, civil authorities have already disposed of criminal
allegations and imposed criminal punishments. In cases of civil court
convictions, the chain of command should normally consider appropriate
administrative (i.e., nonpunitive) measures. Prior to imposition of NJP on SMF
members for offenses that have been disposed of by civilian courts, commanders
must obtain written approval of the Adjutant General or designee. Requests for
that approval shall be staffed through command channels to:
Office of the Adjutant General
ATTN: NGIL-JA
1301 N. MacArthur Blvd.
Springfield IL 62702-2317
c) Personal Exercise of Discretion
1) A commander shall personally exercise
discretion in the NJP process by:
A)
Evaluating the case to determine whether NJP proceedings should be
initiated.
B) Determining whether
the member committed the offenses for which NJP proceedings are
initiated.
C) Determining the
amount and nature of any punishment, if punishment is appropriate.
2) No superior may direct any
subordinate commander to impose NJP on any individual.
3) No superior may issue regulations or
guidance that either directly or indirectly suggests to subordinate commanders
that:
A) Certain categories of offenders or
offenses should be disposed of by NJP (e.g., AWOL members shall be processed
for NJP).
B) Predetermined kinds or
amounts of punishment should be imposed for certain categories of offenders or
offenses (e.g., AWOL NCOs shall be reduced one grade).
d) Multiple Punishments
1) When a commander determines that NJP is
appropriate for a particular service member, all known offenses determined to
be appropriate for disposition by NJP and ready to be considered at that time,
including all the applicable offenses arising from a single incident or course
of conduct, shall ordinarily be considered together and not made the basis for
multiple punishments.
2) Double
Jeopardy Prohibited
When a punishment has been imposed under NJP, or NJP
proceedings are terminated for a reason tantamount to a finding of not guilty,
further punishment may not be imposed for the same offense. Same offense means
an offense that was part of a single incident or course of action.
Administrative action, including administrative discharge proceedings, can be
taken for an offense previously punished under NJP proceedings and does not
constitute double punishment under this Subpart.
e) Cases Involving State or Federal
Prosecution Interest
If an offense is subject to both NJP proceedings and to
criminal trial in a State or federal court, the commander shall consult NGIL-JA
prior to initiation of NJP proceedings.
f) Standard of Proof
1) NJP determinations must be supported by
substantial evidence. For NJP purposes, this means a measure or degree of proof
that reasonably convinces the imposing commander of the SMF member's guilt,
considering:
A) all available direct evidence,
i.e., evidence based on actual knowledge or observation of witnesses;
and
B) all available indirect
evidence, i.e., facts or statements from which reasonable inferences,
deductions and conclusions may be drawn to establish an unobserved fact,
knowledge or state of mind.
2) When considering the evidence, no
distinction shall be made between the relative value of direct and indirect
evidence. In some cases, direct evidence may be more convincing than indirect
evidence and, in other cases, indirect evidence may be more convincing than the
statement of an eyewitness.
g) Effect of Errors. Failure to comply with
any of the procedural provisions in this Subpart shall not invalidate a
punishment imposed under the Code, unless the error materially prejudiced a
substantial right of the service member on whom the punishment was
imposed.