OFFENSES PUNISHABLE UNDER ARTICLE 15, UCMJ

Article 15 gives a CO power to punish individuals for minor offenses. The term minor offense has been the cause of some concern in the administration of nonjudicial punishment.

Article 15, UCMJ, and part V, par. 1e, MCM, state that the term minor offense means misconduct normally not more serious than that usually handled at a summary court-martial (SCM) (where the maximum punishment is 30 days' confinement). These sources also say that the nature of the offense and the circumstances surrounding its commission are also factors that should be considered in determining whether an offense is minor in nature.

The term minor offense ordinarily does not include misconduct that, if tried by general courtmartial (GCM), could be punished by a dishonorable discharge or confinement for more than 1 year. The Navy and Marine Corps, however, have taken the position that the final determination whether an offense is minor is within the sound discretion of the co.

Maximum Penalty

To determine if the offense is minor, begin the analysis with a consultation of punitive articles (part IV, MCM, 1984) and determine the maximum punishment for the offense. If the authorized confinement is 30 days to 3 months, the offense is most likely a minor offense, although the MCM does not specifically state this. If the authorized confinement is 6 months to a year, the offense may be minor. However, if authorized confinement is 1 year or more, the offense is usually not minor.

Circumstances Surrounding the Commission of an Offense

The MCM, 1984, also points out that in determining whether an offense is minor, the nature of the offense and the circumstances surrounding its commission should be considered. This is a significant statement and often is misunderstood as referring to the seriousness or gravity of the offense. Gravity refers to the maximum punishment. In contrast, nature of the offense refers to its character, not its gravity.

In military criminal law, there are two basic types of misconduct: disciplinary infractions and crimes.

Disciplinary infractions are breaches of standards governing the routine functioning of society. Thus, traffic laws, license requirements, disobedience of military orders, and disrespect to a military superior are disciplinary infractions. Crimes, on the other hand, involve offenses recognized as particularly evil. Crimes are acts of robbery, rape, murder, aggravated assault, and larceny. Both types of offenses involve a lack of self-discipline, but crimes involve a particular gross absence of selfdiscipline amounting to a moral ^deficiency. Crimes are the product of a mind particularly disrespectful of good moral standards.

In most cases, criminal acts are not minor offenses. However, they are minor or serious depending upon the circumstances. And thus, while some disciplinary offenses carry severe maximum penalties, the law recognizes that the impact of some of these offenses on discipline will be slight.

The circumstances surrounding the commission of a disciplinary infraction are important to the determination of whether such an infraction is minor. For example, willful disobedience of an order to take ammunition to a unit engaged in combat can have fatal results for those engaged in the combat and is a serious matter. Willful disobedience of an order to report to the barbershop will have much less of an impact. The offense must provide both extremes, and it does because of a high maximum punishment limit.

When dealing with disciplinary infractions, the commander must be free to consider the impact of the circumstance since he or she is considered to be the best judge. However, in disposing of crimes, society at large has an interest coexistent with that of the command, and criminal defendants are given more safeguards. Therefore, the commander's discretion in disposing of disciplinary infractions is much greater than the latitude afforded when dealing with crimes.

The Navy has taken the position that the final determination of what is a minor offense is within the sound discretion of the CO. Imposition of NJP does not, in all cases, prevent a later court-martial for the same offense. See part V, par. 1e, MCM, 1984.

Cases Previously Tried in Civil Court

Although a member may have been previously tried in a civil court he or she may still be subject to military law. Sections 0108b and 0124c(2) of the JAG Manual permit the use of nonjudicial punishment to punish an accused for offenses in the following circumstances:

. When tried (whether acquitted or convicted) by a domestic or foreign civilian court

. When diverted out of the regular criminal process for a probationary period

. When adjudicated by juvenile court authorities. This is true only if authority is obtained from the officer exercising general court-martial jurisdiction.

NJP may not be imposed for an act tried by a court that derives its authority from the United States, such as a federal district court.

Cases in which a finding of guilt or innocence has been reached in a trial by court-martial cannot be taken to nonjudicial punishment.

Off-Base Offenses

COs and OICs may dispose of minor off-base disciplinary infractions at NJP. Unless the off-base offense is a traffic violation or one previously adjudicated by civilian authorities, there is no limit on the authority of military commanders to resolve such offenses at NJP.

In areas not under military control, the responsibility for maintaining law and order rests with civil authority. The enforcement of traffic laws falls within the purview of this principle. Off-duty, off-installation driving offenses, however, show inability and lack of safety consciousness. Such driving performance does not prevent the use of nonpunitive measures that could include denial of on-base driving privileges.