PREHEARING ADVICE

If, after the preliminary inquiry, the CO determines that disposition by NJP is appropriate, the CO must make sure the accused is given the advice outlined in part V, par. 4, MCM, 1984. The CO need not give the advice personally but may assign this responsibility to the legal officer, discipline officer, or another appropriate person. The advice that must be given includes the following: 

. Contemplated action-this informs the accused that the CO is considering the imposition of NJP for the offense(s). 

. Suspected offense(s)-this describes the suspected offense(s) to the accused. The description should include the specific article(s) of the UCMJ that the accused is alleged to have violated. 

. Government evidence-this advises the accused of the information that the allegations are based on. It also informs the accused that, upon request, he or she is allowed to examine all available statements and evidence. 

. Right to refuse NJP-unless the accused is attached to or embarked in a vessel (in which case he or she has no right to refuse NJP), this informs the accused of his or her right to demand trial by court-martial in lieu of NJP. The accused must also be informed (1) of the maximum punishment imposable at NJP, (2) that if he or she demands trial by court-martial, referral of the charges to trial by an SCM, an SPCM, or a GCM is possible, (3) that he or she cannot be tried by a special court-martial (SPCM) over his or her objection, and (4) that at an SPCM or a GCM he or she has the right to representation by counsel. l Right to confer with independent counsel-because an accused who is not attached to or embarked in a vessel has the right to refuse NJP, this informs the accused of his or her right to confer with independent counsel about his or her decision to accept or refuse the NJP. This advice must be given to make sure the record of that NJP is admissible in evidence against the accused should he or she ever be tried by court-martial. A failure to advise an accused properly of his or her right to confer with counsel, or a failure to provide counsel, will not, however, render the imposition of NJP invalid or make a ground for appeal. Therefore, if the command imposing the NJP desires that the record of the NJP be admissible for court-martial purposes, you must prepare the record of the NJP according to applicable service regulations and show that:

^1. the accused was advised of his or her right to confer with counsel;

^2. the accused either exercised his or her right to confer with counsel or made a knowing, intelligent, and voluntary waiver of this right; and

3. the accused knowingly, intelligently, and voluntarily waived his or her right to refuse NJP. All such waivers must be in writing. . Hearing rights-the accused is entitled to appear personally before the CO for the NJP hearing if he or she did not demand trial by court-martial or if the right to demand trial by court-martial is not applicable. At such a hearing the accused is entitled to:

1. be informed of his or her rights under Article 31, UCMJ;

2. be accompanied by a spokesperson provided by, or arranged for, the member (the proceedings should not be unduly delayed to permit the presence of the spokesperson, nor is the spokesperson entitled to travel or similar expenses);

3. be informed of the evidence against him or her relating to the offense;

4. be allowed to examine all evidence that the CO will rely on in deciding whether and how much NJP to impose;

5. present matters in defense, extenuation, and mitigation, orally, in writing, or both;

6. have witnesses present. These witnesses can include those adverse to the accused, upon request, if (a) their statements will be relevant, (b) they are reasonably available, (c) their appearance will not require reimbursement by the government, (d) their appearance will not unduly delay the proceedings, or in the case of a military witness, (e) will not necessitate their being excused from other important duties; and

7. have the proceedings open to the public unless the CO determines that the proceedings should be closed.

FORMS

The form that you must use to record that the accused was informed of his or her prehearing rights will depend upon the status of the accused.

The accused's notification and election of rights (figs. 5-4, 5-5, and 5-6), also illustrated in appendixes A-1-b, A-1-c, and A-1-d of the JAGMAN, comply with the previous requirements of prehearing advice to the accused.

Use appendix A-1-b, figure 5-4, when the accused is attached to or embarked in a vessel.

Use appendix A-1-c, Figure 5-5, when an accused is not attached to or embarked in a vessel, and the command does not afford the accused the right to consult with a lawyer to assist the accused in deciding whether to accept or reject NJP. In this case the record of NJP will not be admissible for any purpose at any later court-martial.

Use appendix A-1-d, figure 5-6, when an accused is not attached to or embarked in a vessel, and the command affords the accused the right to consult with a lawyer before deciding whether to accept or reject NJP.

The use and retention of the proper form are essential. Whatever form you use, attach it to the NAVPERS 1626/7 and retain it in the command's unit punishment book (UPB).

In the event punishment is imposed at captain's mast, and appendix A-1-d, figure 5-6, is used, or the accused is represented by a lawyer at the hearing, you will need to document the Booker rights advice on a page 13 of the member's service record book. This is necessary because appendix a-1-d, figure 5-6, stays in the command's UPB. If the member transfers out of the area and is later charged with offenses that are referred to a court-martial, the trial counsel (TC) can prove

Booker rights advice was given with the page 13. As an example, the page 13 should state the following:

(Grade and name of accused) signed JAG Manual, appendix A-1-d, before his or her captain's mast which was held on (date of captain's mast). The accused [talked to a lawyer before deciding whether to demand trial by court-martial in lieu of captain's mast] [gave up his or her right to talk to a lawyer before deciding whether to demand trial by court-martial in lieu of captain's mast]. The accused was advised that acceptance of nonjudicial punishment does not preclude further administrative action. In completing the remainder of the form, the accused did not demand trial by court-martial in lieu of captain's mast.

If the accused is represented by a military or civilian lawyer as a personal representative at his or her captain's mast, the following example should be made on a page 13:

(Grade and name of accused) received punishment at captain's mast on (date). The accused was represented by a lawyer.

If the member refuses to sign the forms, simply record that you advised the member of his or her rights but he or she declined to sign the forms. Note that the member must demand trial by court-martial and if he or she fails to make such to demand, the command may proceed with NJP. Once all prehearing advice is given, the accused is ready for the XO's screening.