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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15770
Experience:  Lawyer and current JAG officer.
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Dose Non-Judicial Punishment (NJP) have anything to do with

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Dose Non-Judicial Punishment (NJP) have anything to do with the Military Justice Process; in relation to a Memorandum put out by the Secretary of Defense on 06Aug 2013, SUBJ: Integrity of the Military Justice Process?
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.
Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

It really depends on what definition you are using. In terms of Military Justice, NJP is not generally considered in that category. It is an administrative tool, like discharge processes, letters of reprimand, and evaluations, that are used by commanders.

Unlike actually Military Justice, no rules of evidence, criminal procedure or burdens of proof apply to NJP. So, in that sense, NJP is not specifically military justice.

That being said, NJP is what I would call the global military justice system, in that is is meant to deal with disciplinary matters, but at an administrative level. Additionally, to the extent that you are referring to the memo about command influence, NJP is one of those things that should not be subject to NJP. A higher level commander can not force a lower level commander to issue an NJP.
Customer: replied 1 year ago.

What do you mean by the statement below that was in your answer?


 


NJP is one of those things that should not be subject to NJP

Expert:  Allen M., Esq. replied 1 year ago.
Understandable question to a pretty poor sentence on my part.

Additionally, to the extent that you are referring to the memo about command influence, NJP is one of those things that should not be subject to undue command influence. A commander must make independent determinations about whether or not to proceed with NJP and what punishments to give in NJP.

While a higher level commander can certainly ask "what is your plan on this?" the higher level commander can't say "You will give NJP, any time this offense occurs."

If a higher level commander wants to ensure that NJP happens every time a certain offense occurs, that higher level commander can say "any time this offense occurs, you will forward it to me. I am withholding jurisdiction on these matters." Then the higher level commander can do as he/she wants with that particular offense.
Customer: replied 1 year ago.

I understand that reply, but since you do not have this Memo from the SECDEF, I will put the essence of what it said in one sentence below, with the understanding that NJP would require at least facts and evidence to support any punishment levied;


 


To be clear, each military justice case must be resolved on its own facts.

Expert:  Allen M., Esq. replied 1 year ago.
I read the memo, so I understand what you're talking about.

Yes, the point of that sentence is to state that, in each case, a commander is to make an independent determination of whether or not to proceed.

The entire reason the memo had to be put forward was based on a decision in a court case that said that comments from the President counted as undue command influence on commanders, because the comments suggested that when people are charged, they must be punished and punished in a certain way.

The intent of this memo was to try and undue that comment by the President and indicate that no one, just based on being charged alone, should be punished. The external pressure from media should not be taken into consideration. The current position against sexual assault, for example, should not factor into how harshly to punish someone.

That being said, that memo does not create a burden of proof for NJP that was any different than the burden of proof that was there before. It couldn't, because the NJP rules are statutory, set by Congress in our laws. A memo from the SecDef couldn't undo that.

So, I'm not sure what you're getting at here, because I'm just seeing your questions in isolation from the actual facts of the situation you are wanting to apply this information to. A commander, when making a decision about NJP, should only consider the facts of that particular case, when deciding the "guilty" or "innocence" of that person for that particular offense.
Customer: replied 1 year ago.

You pretty much told me what I needed to know, sorry for me not understanding the MEMO and its intent, I understand that perfectly now. . .thank you for the freebie.


My son recently went through NJP and was punished for an incident that he was involved in, but not guilty of breaking any rules, other than being a witness. He was punished for something he did not do and there was no evidence to support this commanders decision.

Expert:  Allen M., Esq. replied 1 year ago.
Well, the problem with that sort of situation is that there is no burden of proof for an NJP.

To control for that, soldiers have the right to demand trial by court martial rather than accepting NJP (something his defense counsel should have told him). If there was no evidence against him, court martial rules of evidence, procedure and the burden of proof would have prevented a conviction.

But, to obtain those rights you have to forgo NJP and demand trial by court martial. Otherwise, you essentially give your commander a nearly unfettered ability to punish you, for little to no reason. You can certainly appeal that decision to the next level commander, but it isn't a true legal appeal with any sort of legal oversight. In that sense, NJP really is not military justice. It is administrative in nature.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15770
Experience: Lawyer and current JAG officer.
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