military justice -- an overview --
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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 - PowerPoint PPT PresentationTRANSCRIPT
MILITARY JUSTICE MILITARY JUSTICE -- AN OVERVIEW ---- AN OVERVIEW --
43d MP BDE, JAG
THE PURPOSE OF MJTHE PURPOSE OF MJ
To set the Standard Provide a process for enforcement Reinforce values that provide for
an effective fighting force
THE COMMANDERS TOOLTHE 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
CONSIDER ADMINISTRATIVE CONSIDER ADMINISTRATIVE OPTIONS FIRSTOPTIONS FIRST
Corrective training Counseling Admonition / Reprimand Withdraw of Privileges OER/EER Bar to Reenlistment Administrative separation/elimination
ART 15 Commanders ART 15 Commanders NotebookNotebook Art 15 UCMJ Manual for Courts Martial DA Forms 2627 and 2627-1 AR 27-10 Commanders Legal Guide
Purpose of Non-Judicial Purpose of Non-Judicial PunishmentPunishment 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.
Authority to Administer Authority to Administer NJPNJP 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
WHO MAY BE GIVEN AN WHO MAY BE GIVEN AN ART 15?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
WHAT TYPES OF WHAT TYPES OF OFFENCES?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
ART 15 PROCEDURESART 15 PROCEDURES
Summarized and Formal Company Grade, Field Grade,
General Officer Commanders have options
– Guilt or innocence– Punishments– Filing
SUMMERIZED ART 15SUMMERIZED ART 15
Punishment
Same regardless of Commander’s Rank
14 days restriction 14 days extra duty Oral admonition or Reprimand
Punishment
Same regardless of Commander’s Rank
14 days restriction 14 days extra duty Oral admonition or Reprimand
SUMMERIZED ART 15, SUMMERIZED ART 15, NOTICE, (E-7 or Above)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
AFTER NOTICE AFTER NOTICE OPPORTUNITY TO DECIDEOPPORTUNITY 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
COMMANDER’S HEARINGCOMMANDER’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
IMPOSITION OF PUNISHMENTIMPOSITION OF PUNISHMENT
Immediate Unless otherwise stated Appeal not acted upon within 3
days stays imposition of liberty provisions
NOTICE OF APPELLATE NOTICE OF APPELLATE RIGHTSRIGHTS 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
FILING OF SUMMERIZED FILING OF SUMMERIZED ART 15ART 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
FORMAL ART 15FORMAL ART 15
Differs because of the punishment that can be imposed
Level of punishment based upon grade of commander
Additional rights afforded the soldier
PUNISHMENT COMPANY PUNISHMENT COMPANY GRADEGRADE 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
PUNISHMENT FIELD PUNISHMENT FIELD GRADE/GENERAL OFFICERGRADE/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
OFFICER PUNISHMENTOFFICER 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
SPECIAL FORFITURE SPECIAL FORFITURE RULES FOR RESERVE RULES FOR RESERVE SOLDIERSSOLDIERS 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
SUSPENSION OF SUSPENSION OF PUNISHMENTPUNISHMENT 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
FORMAL ART 15 FORMAL ART 15 ADDITIONAL RIGHTSADDITIONAL 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...
COMMANDER’S HEARINGCOMMANDER’S HEARING
IS THE SAME Presentation of evidence Evidence in defense, extenuation
and mitigation
RECORDING THE FORMAL RECORDING THE FORMAL ART 15ART 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
APPEALS OF NJPAPPEALS 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.
APPEALS OF NJPAPPEALS 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...
APPEALS OF NJPAPPEALS 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
MAJOR MISCONDUCT - MAJOR MISCONDUCT - COURTS MARTIALCOURTS MARTIAL
Federal Conviction Various Levels The Players The Rules Special Problems for Reserves
SEARCH, SEIZURE, AND SEARCH, SEIZURE, AND INVESTIGATIONINVESTIGATION
THE COMMANDERS ROLETHE 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
ART 31 RIGHTSART 31 RIGHTS
Its not Maranda Mere Suspect Superior subordinate relationship Investigative relationship
VIOLATIONS OF 4TH AND VIOLATIONS OF 4TH AND 5TH AMENDMENT RIGHTS5TH AMENDMENT RIGHTS
Art 138 complaint IG complaint Use of evidence
QUESTIONSQUESTIONS???