EXECUTIVE OFFICER'S (XO'S) SCREENING

The XO may screen a case by holding an informal hearing or may merely review the record of the accused and the report chit. If the XO has been given the power by the CO, he or she may dismiss the case, but may NEVER impose punishment.

At XO's screening mast the accused is advised again of the right to refuse NJP and demand a trial by court-martial. At this point section G of figure 6-1 can be signed by the accused if it was not signed before. Be sure to get the witness' signature in this section also.

Remember Article 15, UCMJ, does not give the right to refuse NJP to persons attached to vessels. Also remember that an accused not attachhed to or embarked in a vessel may elect at any time before imposition of NJP to refuse it and demand a court-martial. It is possible for an accused to elect not to demand trial by court-martial at XO's screening but later at captain's mast demand it provided it is before punishment is imposed.

Once the XO has conducted an inquiry, he or she has the option of referring the case to mast or dismissing it. The XO fills in section F of figure 6-1 annotating the action he or she has taken. If the case is referred to the CO for mast, a formal hearing is set up. Note that sections H, I, and J of figure 6-1 is for the action of the CO, the accused's right of appeal, and the final administrative action, respectively.

THE NJP HEARING PROCEDURE

LEARNING OBJECTIVES: Describe the requirements for NJP hearing procedure. Explain some of the possible actions by the CO at mast.

The CO decides when and where a captain's mast will be held. The XO, legal officer, or discipline officer normally assists the CO. As an MA, you will be present to keep order and call the accused to mast. You will also provide any additional documents needed by the CO.

While local practices will come into play as far as setting up the mast and the formalities required, figure 6-7, appendix A-1-e of the JAG Manual is the official guide for the nonjudicial punishment proceedings.

HEARING REQUIREMENTS

Except as noted below, nonjudicial punishment cases must be handled at a hearing at which the accused is allowed to exercise the foregoing rights. In addition, there are other technical requirements about the hearing and the exercise of the accused's rights.

Personal Appearance Waived

An accused may waive his or her right to appear personally before the CO, and may submit a written explanation for consideration by the CO before NJP is imposed. If the accused makes this election, make sure the accused is informed of the right to remain silent

and that any matters submitted may be used at trial by court-martial.

Notwithstanding the accused's expressed desire to waive his or her right to appear personally at the nonjudicial punishment hearing, the accused may be ordered to attend the hearing if the officer imposing nonjudicial punishment desires his or her presence. If the accused waives his or her personal appearance and NJP is imposed, the CO must make sure the accused is informed of the punishment as soon as possible. For more information on this topic see part V, par. 4c(2), MCM, 1984.

Figure 6-7.-Captain's mast guide.

Figure 6-7.-Captain's mast guide-Continued.

Hearing Officer

Normally, the officer who actually holds the nonjudicial punishment hearing is the CO of the accused. COs or OICs are allowed to delegate their authority to hold the hearing to another officer under extraordinary circumstances. These circumstances must be unusual and significant rather than matters of convenience to the commander. This delegation of authority should be in writing and detailed reasons given. This delegation, however, does not include the authority to impose punishment. At such a hearing, the officer delegated to hold the hearing will receive all evidence, prepare a summarized record of matters considered, and send the record to the officer having nonjudicial punishment authority.

Burden of Proof

The CO must decide that the accused is "guilty" by a preponderance of the evidence. Black's Law Dictionary defines preponderance of evidence as "evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it. . ."

Personal Representative

The accused is responsible for getting a person to represent him or her at NJP. As a practical matter, the accused is free to choose anyone-a lawyer or nonlawyer, an officer or an enlisted person. The freedom of the accused to choose a representative does not compel the command to provide lawyer counsel, and current regulations do not create a right to counsel at NJP, whereas such a right does exist at a court-martial.

Representation by any lawyer who is willing and able to appear at the hearing on behalf of the accused is authorized. While a lawyer's workload may prevent the lawyer from appearing, a blanket rule that no lawyers can appear at Article 15 hearings would appear to contravene the spirit if not the letter of the law. It is likewise doubtful that a lawyer can lawfully be ordered to represent the accused. It is fair to say that the accused can have anyone who is able and willing to appear without cost to the government. While a command does not have to provide a personal ^{representative,} it should help the accused get the representative he or she wants. In this connection, if the accused desires a personal representative, allow him or her a reasonable time to get someone. Use good

judgment here, for such a period should be neither too short nor too long.

Witnesses

When the hearing involves controverted questions of fact about the alleged offenses, witnesses should be available to testify if they are present on the same ship or base or are otherwise available at no expense to the government. Thus, in a larceny case, if the accused denies wrongdoing, the witnesses who can testify that an offense was committed should be called to testify in person if they are available at no cost to the government. It should be noted, however, that no authority exists to subpoena civilian witnesses for an NJP proceeding.

Public Hearing

The accused is entitled to have the hearing open to the public unless the CO determines that the proceeding should be closed for good cause. The CO is not required to make any special arrangements to facilitate public access to the proceedings.

Publication of NJP Results

Authority to publish the results of nonjudicial punishment is granted by section 0115 of the JAG Manual. You may publish the name, rate, offense(s), and disposition of the offender in the plan of the day (POD). Publish the results not later than 1 month after the imposition of nonjudicial punishment. If the NJP is appealed, publish the results not later than 1 month after the date the appeal is denied. If the POD is distributed to military personnel only, you may include all the details stated previously. If the POD is distributed to other than military personnel, nonjudicial punishment results may be published without the name of the accused.