Current through Register Vol. 48, No. 12, March 22, 2024
a) General. The
authority to impose NJP charges a commander with the responsibility of
exercising his or her authority in an absolutely fair and judicious manner. The
commander's action must be temperate, just and conducive to good order and
discipline.
b) Preliminary Inquiry.
The commander of the alleged offender must ensure that the matter is promptly
and adequately investigated. The preliminary investigation is usually informal
and consists of interviews with witnesses and/or review of police/investigative
reports, if available. The investigation should cover:
1) Whether an offense was
committed;
2) The nature and
circumstances of the offense; and
3) The age, maturity, experience and military
record of the offender.
c) Initiation of Proceedings and Referral to
Superior. A commander who, after a preliminary inquiry, determines that NJP
proceedings may be appropriate, should consult with his or her Staff Judge
Advocate for advice and assistance. NJP action should be initiated at the
lowest level of command commensurate with the needs of discipline. If a
commander determines his or her authority under NJP is insufficient to impose a
proper punishment, the matter may be referred to a superior commander for
initiation of proceedings (e.g., the offense may warrant reduction but the
immediate commander does not have reduction authority). In such a case, all
relevant documents shall be forwarded through command channels to the
appropriate commander using NGIL Form 63-R (Request to Superior to Exercise
Nonjudicial Punishment Authority). The superior commander shall either initiate
the NJP action or refer the matter for other appropriate action.
d) Notification
1) The appropriate commander shall complete
item 1 of NGIL Form 60-R (Record of Nonjudicial Punishment Proceedings) as
follows:
A) State the allegation following the
guidance provided by DMA and consult the appropriate Staff Judge Advocate for
assistance. However, an NJP action remains valid even if the specification
fails to include all the elements of an offense, provided that the member is
reasonably informed of the nature of the alleged misconduct.
B) Inform the SMF member of his or her rights
with respect to the NJP proceeding.
C) State the name, rank and duty title of the
next superior commander.
D) Contact
the appropriate Staff Judge Advocate or NGIL-JA for assignment of a military
counsel to assist the member. At a minimum, the military counsel's name, rank
and business telephone number shall be listed on the form, but his or her home
addresses or telephone numbers shall not be included.
E) State the date and time at which the
member must report to you to make his or her elections and presentation, if
applicable. In this regard, the member shall be given a reasonable period of
time to consult with counsel, to prepare his or her case, and to decide what
rights noted under subsection (e) he or she shall exercise. The length of the
decision period shall be determined by the notifying commander after
considering such factors as the complexity of the case and the availability of
counsel and witnesses. An NJP action may be initiated and completed within an
inactive duty training (IDT) weekend if:
i) it
is a noncomplex case, i.e., an uncontested case;
ii) the notifying commander ensures
availability of counsel and witnesses; and
iii) the member is provided sufficient duty
time to prepare his or her defense.
F) Sign in the commander's signature block.
The signature of the commander is nondelegable.
2) The notifying commander shall personally
notify the member of the initiation of NJP proceedings in accordance with DMA
guidance. However, when circumstances prevent the commander from personally
notifying and serving the NGIL Form 60-R on the member, or the notifying
commander elects not to do so, the notifying commander may direct a subordinate
who is senior in rank to the member to notify and serve the member. The
commander or the subordinate, as appropriate, shall date and sign item 2 (proof
of service) of the NGIL Form 60-R when the member is served. Regardless of who
serves the member, a copy of the NGIL Form 60-R shall be given to the member at
that time. If personal notification is impractical because of the member's
unauthorized absence or other reason, the member may be notified by certified
mail, and the commander shall document the reason for the service by mail in
item 11 of the NGIL Form 60-R. The member also has the right to examine all
statements and evidence upon which the commander intends to rely in arriving at
a decision whether to impose punishment, and the type and amount of punishment
to be imposed, unless those matters are privileged or restricted by law or
regulation (e.g., Office of Special Investigation (OSI) or Criminal
Investigation Command (CID) reports, classified information, etc.). In this
case, NJP proceedings may proceed if the member's counsel has access to the
records, or a summary of the information, for use in preparing a defense to the
allegations.
3) The SMF member
shall be informed of the maximum punishment that may be imposed under Appendix
A if he or she is found guilty of the alleged offenses; however, the member is
not entitled to be informed of the type or amount of punishment he or she will
receive if NJP ultimately is imposed.
4) If a new commander takes command after NJP
proceedings are initiated, but before the member presents his or her case to
the imposing commander, a new NGIL Form 60-R shall be initiated by the new
commander. Once again, the member shall be given a reasonable decision period
in which to consult counsel.
5)
When evidence of an additional offense or offenses arises following initiation
of NJP proceedings, and before the member is notified of the punishment, a
commander may:
A) Withdraw the initial NGIL
Form 60-R and reinitiate NJP proceedings to include the additional offenses;
or
B) Proceed with the initial NJP
proceeding and create a second NGIL Form 60-R for the additional
offenses.
e)
Member's Election of Rights
1) The member has
the following rights during NJP proceedings:
A) To remain silent and not make any
statement concerning the allegations. However, if the member waives this right,
any statements made may be used against him in the NJP proceedings or in any
other proceedings.
B) To consult
with appointed military counsel. The member is not entitled to request military
counsel of his or her choice, but the member may consult with civilian counsel
retained at the member's own expense.
C) To make a personal presentation before the
next superior commander in lieu of presenting his or her case before the
notifying commander. To fully present his or her case before the imposing
commander in writing or in person, or both (subject to subsection (f)). This
includes the right to call witnesses if determined reasonably available by the
imposing commander, the right to present evidence, to be represented by a
spokesperson (if reasonably available), and to examine available
evidence.
2) The member
has the right to consult with appointed military counsel (in person or by
telephone) prior to making his or her elections under subsection (e)(1)(C). If
necessary, the member or his or her counsel may request an extension of the
time period stated in item 1 of the NGIL Form 60-R. Such a request should be in
writing, stating the reasons for the request. The commander may grant an
extension for good cause shown by the member or his or her counsel.
3) A member requesting a personal
presentation before the notifying commander shall indicate that request in item
3 of the NGIL Form 60-R. The presentation shall be made at that time or at such
time as the commander directs.
4)
If the member requests a personal presentation before the next superior
commander, the member shall so indicate in item 3 of the NGIL Form 60-R. The
notifying commander shall forward all documents, statements and evidence to
that commander. The next superior commander shall then review the information,
collect any additional information he or she feels is necessary, and notify the
member and his or her counsel of the date and time of the
presentation.
5) If the member does
not notify the commander of his or her decision within the specified time and
does not request a delay, or if the member refuses to complete or sign item 3
of the NGIL Form 60-R, the notifying commander may continue the proceedings
based on available information. If punishment is imposed, that information
shall be recorded in item 4 (commander's decision) of the NGIL Form 60-R, along
with the following entry: "Advised of his/her rights and (member failed to
respond within the specified time) (member refused to complete and sign item
3)".
f) Member's
Presentation
1) Following DMA guidance, the
member shall be allowed to personally present matters in defense, extenuation
or mitigation to the imposing commander, except when a personal appearance is
prevented by unavailability of the commander or by extraordinary circumstances
(e.g., the member is stationed at a geographic location remote from that of the
imposing commander and cannot be readily brought before the commander). When a
personal appearance is requested, but is not granted, the imposing commander
shall appoint a commissioned officer who is superior to the member to conduct
the presentation, and the member shall be entitled to make a personal
presentation before that designated officer. The designated officer shall then
prepare a memorandum summarizing the member's presentation and shall forward it
to the imposing commander, along with all written matters submitted by the
member.
2) The purpose of the
personal presentation is to allow the member to present information to the
commander in a manner that may be more effective or more persuasive than a
written presentation. Formal rules of evidence are not applicable. The
commander may consider any matter, including unsworn statements, that he or she
believes to be relevant to the offense. The commander may ask questions to
clarify facts or issues; however, the member's presentation is not an
adversarial proceeding. The commander shall not present "government" witnesses
or evidence, and neither the member nor a spokesperson (including any attorney
present on behalf of the member) may examine or cross-examine witnesses, unless
permitted by the imposing commander.
3) NJP presentations may be open or closed to
members of the public at the discretion of the imposing commander. However,
even when closed, the commander may have a member of his or her staff (e.g.,
the First Sergeant) attend the proceedings as he or she determines
appropriate.
4) At the
presentation, the member shall be entitled to:
A) Examine any relevant documents or physical
objects on which the commander intends to rely in deciding whether to impose
punishment or how much punishment to impose (subject to the limitations of
subsection (d)(2)).
B) Be
accompanied by a spokesperson provided or arranged for by the member. The
member's spokesperson may be his or her appointed military counsel or civilian
counsel retained at his or her own expense. However, the member has no right to
legal counsel at the presentation, and the commander need not grant a delay for
the appearance of any spokesperson if that person is not reasonably available,
as determined by the commander.
C)
Present relevant witnesses in defense, extenuation or mitigation who are
reasonably available, as determined by the commander, and can be presented
without legal process. To determine whether a witness is reasonably available,
the imposing commander shall consider the fact that written statements are
acceptable. Neither witness nor transportation fees are authorized to be paid.
Reasonably available witnesses will normally include only personnel at the
installation concerned, and those personnel whose attendance shall not
unnecessarily delay the proceedings.
5) The imposing commander must carefully
consider all matters submitted by the member in defense, extenuation or
mitigation. If, after evaluation of all pertinent matters, the imposing
commander determines that NJP is not warranted, the commander shall so indicate
in item 4 of the NGIL Form 60-R, the member shall be notified, and the
proceedings shall be terminated.
6)
If, after evaluation of all pertinent matters, the imposing commander
determines that NJP is warranted, the commander shall line out and initial the
allegations, if any, that he or she determines the member did not commit. The
commander shall then determine an appropriate punishment and complete item 4 of
the NGIL Form 60-R, using the model punishment formats established by DMA.
Whenever possible, the commander should impose NJP on the member in person. The
commander may also counsel the member at this time concerning the misconduct.
If appropriate, the commander shall refer the member to military or civilian
agencies that can assist in resolving any personal problems that may have
contributed to the misconduct. The commander shall then explain appellate
rights and procedures to the member, following DMA guidance. The member shall
complete item 5 (member's appeal decision) of the NGIL Form 60-R.
g) Appeals of Nonjudicial
Punishment
1) General. A member may appeal an
NJP action if he or she considers the punishment to be unjust or
disproportionate to the offense. The member may appeal either the findings, the
punishment or both. The member shall appeal through the imposing commander to
the next superior commander, or to such other authority designated by the
Adjutant General for NJP purposes. If the appellate authority is the Adjutant
General, he or she shall act on the appeal in the cases of officers, warrant
officers or enlisted personnel in the grades of E-8 or E-9. In all other cases,
he or she may delegate the power to act on the appeal to the Assistant Adjutant
General (Army) or to the Assistant Adjutant General (Air). All matters to be
considered on appeal must be submitted by the member in writing, the member has
no right to an oral presentation on appeal, and only one appeal is permissible
under NJP proceedings.
2) Procedure
for Submitting an Appeal
A) At the time the
punishment is announced to the member, he or she shall be informed of his or
her right to appeal and shall be directed to state whether he or she is
appealing the commander's action. The member shall indicate his or her appeal
decision in item 5 (appeal decision) of the NGIL Form 60-R. If the member
elects to appeal, the member may request 10 calendar days to submit any
additional written matters in support of the appeal. The commander may grant an
extension of the 10-day period for good cause shown by the member or his or her
counsel. If written matters are not presented to the imposing commander within
the prescribed time, the appeal shall be sent to the appellate authority for
his or her decision with a statement to that effect.
B) The member is not required to state the
reasons for his or her appeal or to submit any written matters. However, if the
member elects to submit written matters in support of the appeal, these matters
must be presented initially to the imposing commander. They may not be
presented directly to the appellate authority.
C) Punishments are not stayed pending final
decision on an appeal unless no action is taken within 10 calendar days after
the appeal was submitted. In that case, if the member requests, any unexecuted
punishment involving restriction or extra duty shall be stayed until action is
taken on the appeal.
D) If the
member refuses to complete or sign item 5 of the NGIL Form 60-R, that refusal
shall not be treated as an appeal. The commander shall process the NGIL Form
60-R as if the member declined to appeal and shall make the following entry in
item 5: "Advised of punishment and appellate rights and member refused to
(complete) (sign)."
3)
Action by Imposing Commander. The imposing commander may take any action on the
appeal that he or she deems appropriate, except that punishments may not be
increased on appeal. The commander's action shall be indicated in item 6
(action on appeal) of the NGIL Form 60-R. The commander may suspend, mitigate,
remit or set aside any part of the punishment. If the imposing commander grants
the full relief requested by the member, the appeal is not forwarded to the
appellate authority. In all other cases, the commander shall forward the appeal
to the appellate authority, through the Staff Judge Advocate, along with all
written materials considered in imposing the punishment. The commander may also
forward appropriate comments addressing any matters raised by the member in his
or her appeal, a statement of the commander's rationale for imposing the
punishment, and a recommendation for action on the appeal.
4) Action by Staff Judge Advocate. The Staff
Judge Advocate, or designee, shall advise the appellate authority as to the
appropriateness of the punishment and whether the proceedings were conducted in
accordance with the Illinois Code of Military Justice and this Subpart. The
legal opinion may be either oral or written, and shall be documented in item 7
(review of appeal) of the NGIL Form 60-R.
5) Action by Appellate Authority. Action by
the appellate authority shall be entered in item 8 of the NGIL Form 60-R. The
appellate authority shall take action expeditiously, normally within 10
calendar days after the appeal was submitted. The appellate authority may
conduct an independent inquiry into the case, if the appellate authority so
desires, and the appellate authority may exercise the same powers with respect
to the punishment as may be exercised by the imposing commander. After the
appellate authority takes action, the member shall be promptly notified of the
results and shall complete item 9 (member acknowledgment of appeal action) of
the NGIL Form 60-R. However, if all punishment is disapproved, the entire
action must be set aside and removed from the member's record. A final NJP
action cannot consist of "no punishment".
h) Notification by Certified Mail
1) All NJP proceedings shall be conducted in
person with the member, whenever possible, to ensure the member understands the
proceedings and has a full opportunity to exercise all rights granted under
this Subpart. However, if the commander determines the member is not reasonably
available to conduct any portion of the proceedings in person, the member may
be notified by certified mail of the following matters:
A) Initiation of NJP proceedings, if the
commander or his or her designee determines that personal notification is
impractical, and the commander documents the reason for service by mail in item
11 of the NGIL Form 60-R.
B)
Additional NJP matters, such as date and time of the personal presentation, the
member's punishment, the member's right to appeal, and action taken on the
appeal.
C) Supplementary NJP
actions under Section 400.2040. However, vacation of suspension proceedings
shall be initiated in person unless the commander or his or her designee
determines that personal notification is impractical, and the commander
documents the reason for service by mail in item 7 of the NGIL Form 62-R
(Record of Vacation of Suspended Nonjudicial Punishment).
2) In all of the situations described in
subsection (h)(1), the commander shall annotate the appropriate items on the
NGIL Forms 60-R, 61-R (Record of Supplementary Nonjudicial Punishment Action)
or 62-R showing notification by certified mail. The certified mail receipts
shall be forwarded with the applicable form.