Personnel of Another Armed Force

Under present agreements between the armed forces, a Navy CO should not exercise NJP jurisdiction on Army or Air Force personnel assigned or attached to a naval command. As a matter of policy, return these personnel to their parent-service unit for discipline. If this is impractical and the need to discipline is urgent, NJP maybe imposed, but a report to the Department of the Army or Department of the Air Force is required. See the Naval Military Personnel Manual (MILPERS-MAN), Article 1860320.5a and 5b, for the procedures to follow.

Express agreements do not extend to Coast Guard personnel serving with a naval command, but other policy statements say that the naval command should not try to exercise NJP over such personnel assigned to its unit. Refer to section 1-3(c), Coast Guard Military Justice Manual, COMDTINST M5801.1.

Because the Marine Corps is part of the Department of the Navy, no general restriction extends to the exercise of NJP by Navy commanders over Marine Corps personnel or by Marine Corps commanders over Navy personnel.

Imposition of NJP on Embarked Personnel

The CO or OIC of a unit attached to a ship for duty should, as a matter of policy, refrain from exercising his or her power to imposed NJP and refer all such matters to the CO of the ship for disposition. This policy does not apply to Military Sealift Command (MSC) vessels operating under masters or to organized units embarked on a Navy ship for transportation only. Nevertheless, the CO of a ship may permit a CO or an OIC of a unit attached to that ship to exercise NJP authority.

Imposition of NJP on Reservists

Reservists on active duty for training or, under some circumstances, inactive duty for training, are subject to the UCMJ and, therefore, subject to the imposition of NJP.

The offense(s) that the CO or OIC seeks to punish at NJP must have occurred while the member was on active duty or inactive duty training. However, it is not necessary that NJP occurs (or the offense even be discovered) before the end of the active duty or inactive duty training period during which the alleged misconduct occurred. In that regard, the officer seeking to impose NJP has the following options: . He or she may impose NJP during the active duty or inactive duty training when the misconduct occurred.

. He or she may impose NJP at a later period of active duty or inactive duty training (so long as this is within 2 years of the date of the offense). . He or she may request from the regular component officer exercising general court-martial jurisdiction (OEGCMJ) over the accused an involuntary recall of the accused to active duty or inactive duty training to impose NJP. l If the accused waives his or her right to be present at the NJP hearing, the CO or OIC may impose NJP after the period of active duty or inactive duty training of the accused has ended.

Punishment imposed upon persons who were involuntarily recalled for imposition of NJP may not include restraint unless SECNAV approves the recall.

Right of an Accused to Demand Trial by Court-Martial

Article 15a, UCMJ, and part V, par. 3, MCM, 1984, provide another limitation on the exercise of NJP. Except for a person attached to or embarked in a vessel, an accused may demand trial by court-martial in lieu of NJP.

This right to refuse NJP exists up until the time of imposition of NJP (that is, up until the CO announces the punishment). This right is not waived by the accused having previously signed a report chit showing that he or she would accept NJP.

The category of persons who may not refuse NJP includes those persons assigned or attached to a vessel who are on board for passage or assigned or attached to an embarked staff, unit, detachment, squadron, team, air group, or other regularly organized body.

The key time factor in determining whether or not a person has the right to demand trial by court-martial is the time of the imposition of the NJP and not the time of the commission of the offense. There is no power for a CO or an OIC to impose NJP on a civilian.

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, say that the term minor offense means misconduct normally not more serious than that usually handled at an 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 a general court-martial (GCM), could be punished by a dishonorable discharge (DD) or confinement for more than 1 year. The Navy and Marine Corps, however, have taken the position that the final determination of 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 the punitive articles (part IV, MCM, 1984) and determine the maximum punishment for the offense. Although the MCM does not so state, if the authorized confinement is 30 days to 3 months, the offense is most likely a minor offense. If the authorized confinement is 6 months to 1 year, the offense may be minor. However, if authorized confinement is 1 year or more, the offense is usually not minor.

Nature of the Offense and Circumstances Surrounding Its Commission

The MCM, 1984, also states 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, the 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 military superiors 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 self-discipline 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 serious or minor depending upon 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 fight and is a serious matter. Willful disobedience of an order to report to the barbershop may have much less impact on discipline. 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 the best judge of it. However, in disposing of crimes, society at large has an interest coexistent with that of the command, and criminal defendants are given more safeguards. The commander's discretion in disposing of disciplinary infractions is much greater than his or her latitude in 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.