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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27117
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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what are my choices if i was notified of an njp and was forced

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what are my choices if i was notified of an njp and was forced to talk to the commanding officer before my njp rights were read to me?, I'm not sure if this is true but i was told i had to be read my rights 72 hours after the incident
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

What do you mean "forced to talk to the commander before your NJP rights were read"?

Customer: replied 1 year ago.


i was told by my Master sergeant that i had to speak to my commanding officer about my NJP before i was read my njp rights i beileve i have to be informed of an NJP by my senior enlisted leader

Expert:  P. Simmons replied 1 year ago.
Thanks

Army or Marines?
Customer: replied 1 year ago.


Marines.

Expert:  P. Simmons replied 1 year ago.
Thanks

I ask since the Army has a separate process for NJP's. They call it "first reading" and "second reading" where the commander reads the rights to the soldier, then the soldier gets to see a lawyer, then the commander conducts NJP.

The Marines do not use this method. Under our method, the Marine is advised by the chain of command (typically a senior SNCO) of the charges, given the chance to see a lawyer, and then NJP is run.

One more question...did you speak to the commander? What happened?? Did he or she advise you of your rights? Did they run the NJP right off? Or did they send you away to see a lawyer?
Customer: replied 1 year ago.

the LtCol did not advice me of my rights he asked me to explain my situation after telling him of my situation he then told me I would be read my rights by my Msgt i dont know if this is relavent but he asked me about my situation in front of two other Marines being NJP'd for different incidents.

Expert:  P. Simmons replied 1 year ago.

Thank you

 

Under Art 31, UCMJ, it is not proper for a commander to question a suspect about their involvement in a criminal act without first advising them of their right to remain silent.

 

 

So what you describe, this was a violation of Art 31, UCMJ.

 

 

The remedy for Art 31 violations is that the statement by the accused is excluded from court martial.

 

 

Basically, if you refuse NJP and demand court martial, your statement to the commander can be excluded. They can not use that statement at trial.

 

 

They can use other admissiable evidence...so, for example, if there is other evidence that shows you committed criminal misconduct the government can use that to prosecute you. But they can not use that statement you gave to the commander.

 

 

This will not prevent them from running NJP, if you accept NJP.

 

 

I am not sure what you are referring to about 72 hours...there is no rule that requires advisement within 72 hours, nor is there a rule that requries you get 72 hours to consider if to accept NJP. Basically, there is no "72 hour rule" relating to NJP. It souns like some sort of urban legend.

 

 

BotXXXXX XXXXXne: The interrogation by the commander was a violation of Art 31. They can not use that statement at court martial. But if they have other evidence that can be used at court, it may be they can convict you at court...so you want to consider that before refusing NJP

 

 

Best of luck Marine

 

 

Let me know if you have more questions

Customer: replied 1 year ago.


what would you say are my best choices for appealing the NJP to get my rank back i was charged with articles 86,92,112 i denied being guilty of article 92 it was said that i willfully disobeyd liberty policy set for by my captain which he didnt set any because he was leaving the next day on deployment that left me the senior man in charge i set no liberty policy and as for the article 112 i was charged because my eyes were bloodshot there is no evidence to support my being drunk on duty there wasn't a breatholyzer test done or blood drawn to determine my blood alchohol level to prove the accusation.

Expert:  P. Simmons replied 1 year ago.

NJP appeal is very limited. You can appeal if either

 

1. THe punishment was too harsh (and this is almost always a looser appeal, since max punishment at NJP is so limited)

 

2. The proceeding was unfair

 

I would appeal based on the Art 31 violation. What you describe is a clear violation of Art 31. If the commander used that evidence at the NJP (your statement to him that was no warned) that would be unfair and that would be a basis to apppeal.

 

If you loose the appeal, you can send another appeal to the BCNR and ask them to review it.

 

 

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27117
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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