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Criminal Defense Strategies for Servicemen & Women in California
As a military town, San Diego is home to many different members of the armed forces. However, military personnel can face serious consequences both inside and out of the military system. The Uniform Code of Military Justice (UCMJ) is only part of the discipline system that those in the military are subject to. An arrest for any crime that happens off base can result in criminal charges in state or federal court. Having a San Diego military lawyer who is familiar with both the military and civilian judicial process is key to defending your career and rights.
Anyone serving in a military branch knows that even if your case in the civilian courts is resolved, the punishment of military courts can be worse and longer lasting. A San Diego military attorney with a long history of casework is always the best choice when seeking legal counsel. Dealing with command on your own is daunting when years of work and planning are put at risk. Attorney’s who have successfully helped people of all ranks in the military and civilian court systems assembled the information below.
What Is Non-Judicial Punishment?
A non-judicial punishment is the military court’s alternative sentencing system. While the NJP deals with minor violations of the UCMJ, the consequences of an NJP can affect the rest of your military career. Minor offense or infractions can include making false statements to investigators, disobeying orders, petty theft, or other disorderly conduct. Destruction of property is a common minor offense that can subject a service member to NJP proceedings.
- NJP terminology includes Article 15, Captain’s Mast for Navy and Marines, while for Air-Force members it is called Office-Hours.
A San Diego military lawyer will be familiar with NJP proceedings regardless of what branch of the military a person serves in. The procedures are mostly the same between the branches, but the real difference comes in knowing how to interact and negotiate with the different commands with the Marine Corps, Navy, and Army.
Why Should You Accept NJP?
The review of evidence and punishment in an NJP is put in the hands of your direct command. While command must follow the UCMJ, this proceeding avoids a formal court-martial in the military court. Minor violations that can be directly addressed by command can avoid the long and difficult process of court-martial. A well-negotiated settlement with an NJP can get anyone looking to continue with military service back to normal life.
If you don’t accept NJP Article 15, then the likely consequence is court-martial prosecution. The court-martial process is far more complex and can fall under General, Special, or Summary Court-Martial. Punishment from a guilty finding in court-martial is usually far more serious and long-lasting than NJP.
How Does an NJP Work?
The first decision the accused must make is whether to accept NJP. You have a right to court-martial which means refusing the NJP. If you refuse the NJP the military will begin court-martial proceedings. Accepting the NJP means that you waive certain rights given to all military members under the UCMJ. Most military personnel, with some exception, can refuse NJP. Refusal of NJP is likely to result in a formal court-martial and more serious consequences if there is a finding of guilt.
You always have the right to a personal appearance either in a military court or with the officer who will impose sentencing. Even if you chose NJP you still have the right to a hearing to present any evidence that will assist command in determining guilt and punishment. Any hearing for NJP can be open to the public; however, you are granted the right to a spokesperson on the hearing and to hear any and all evidence that is being used against you. Once you decide to accept NJP proceedings there is still a long road of evidence gathering, interviewing witnesses and looking through personnel records to defend against any charges alleged.
Proving innocence or getting evidence to contradict what command has gathered requires skill and years of experience as a criminal lawyer. Gathering evidence from witnesses through investigators and motions can be the difference between innocence and the end a career. Putting together a true picture of a person being accused through character evidence and a lifetime of achievements is a big part of the NJP process.
The commanding officer makes the ultimate decision of guilt or innocence with an NJP. Your lawyer can present any evidence that shows what really happened and what the command or investigators failed to present. There are so many cases in the military where investigations are poorly and hastily conducted. Key witnesses are never interviewed and evidence that can change the entire look of a case is not found. Experienced and tenacious commitment to uncovering the truth is how cases are won. A person’s personal and military history is always relevant in any NJP hearing. Focusing only on what a person is accused of by command limits a case and exposes the accused to unnecessary punishment.
Your Rights Under NJP
In accepting an Article 15 action for the allegations you waive the right to have a full court process determine guilt and possibly the sentencing. You have the right to refuse any punishment imposed on you and the right to examine and review any evidence that the military has against you. A Marine Corps NJP or any other military branch also guarantees that you will be notified if and when an NJP is being offered or considered by command and a specific list of all offenses and allegations brought against you.
Your San Diego military lawyer will give you a complete overview of all the charges that you are facing as well any evidence obtained through investigation. Once you are in the NJP process your commanding officer will be the ultimate judge of the evidence and determine if there is enough evidence for a finding of guilt. If you are found guilty then the command will also determine the appropriate punishment. Throughout this process having a defense lawyer who has dealt with the military courts for many years is crucial.
The NJP process does vary from court-martial in several other ways. The military rules of evidence are not applied for the most part; which is a significant difference from a formal court-martial. The person accused also is not required to be personally present for a proceeding and can have any decision made by command without his actually appearing. Command is given wide discretion about what evidence and records can be used in deciding if the accused is guilty. Statements from fellow officers, former commanders, and other service records can all play an important part in the NJP outcome.
What Is the Punishment for an NJP?
If your command finds you guilty of part or all of the alleged offenses you still have rights before being sentenced. In many cases, for drug and alcohol-related offenses the sentencing can be suspended or deferred. Suspending a sentence can allow the service member to be on a short term of probation to prove their good standing and ability to follow terms imposed. Most often a person who does well on probation can have their case dismissed entirely with no adverse effect on their service record.
Punishment will vary depending on what Grade of officer is imposing the NJP. A field grade officer that is at least O-4 or higher can impose correctional custody up to 30 days, reprimand, confinement, or forfeiting base pay. An officer can impose extra duty and base restriction. The commander can also reduce the service-members rank by one pay grade. Officer of grade up to O-3 can impose similar punishments however they are not as serious. Custody and restriction can be up to seven or 14 days respectively. Base pay can be forfeited for a maximum of 7 days. Rank reduction, however, can still be imposed. Other punishments, such as extra duty and quarters arrest are also possible. The punishment also depends on the military branch in which the defendant is serving.
After an NJP, if the military member is found guilty, command may seek to impose an administrative separation from the service. Another consequence could be the creation of a UIF file. This UIF (unfavorable information file) goes into your military personnel file. Such an action can follow you for the rest of your military career and will be used in any future review or discipline hearings.
How A San Diego Military Lawyer Challenges The NJP
The experience of a criminal lawyer crosses over into the military world in many ways. Gathering evidence, looking into reports and investigations are all part of the defense process. The military law has a unique system of justice but many factors play the same in military and civilian life. Character evidence, past conduct, and stellar service records all go into determining how a case is resolved with a commanding officer.
Can I Appeal an NJP Decision?
The appeal of an NJP is permitted, however, it first must be submitted to a JAG (Judge Advocate) for review and consideration. UCMJ requires that an appeal is based on reasoning that the NJP was disproportionate or in some way unfair in light of the offense. Any appeal request must always be in writing along with several other formal requirements.
If you are military personnel in San Diego and require the assistance of an experienced San Diego military attorney, contact our office today at 858-943-6591 for a free consultation and see how we can help with your charges.