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Right of an Accused to Demand Trial by Court-Martial
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Preparation Instructions - 14134_109
In most cases, criminal acts are not minor offenses. However, they are serious or minor depending upon circumstances and, thus, while some disciplinary of- fenses carry severe maximum penalties, the law recog- nizes  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 determina- tion of whether such an infraction is minor. For exam- ple, 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 barber- shop 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. Cases Previously Tried in Civil Court Sections 0108b and 0124c(2) of the JAGMAN per- mit the use of NJP to punish an accused for an offense that he or she has been (1) tried (whether acquitted or convicted) by a domestic or foreign civilian court, (2) diverted out of the regular criminal process for a proba- tionary  period,  or  (3)  adjudicated  by  juvenile  court authorities. This is true only if authority is obtained from  the  OEGCMJ  (usually  the  general  or  flag  officer in  command  over  the  command  desiring  to  impose nonjudicial punishment). 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  NJP. Off-Base Offenses COs and OICs may dispose of minor disciplinary infractions that occur on base or off base at NJP. Unless the off-base offense is a traffic offense 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 responsibil- ity for maintaining law and order rests with civil author- ity. 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-installation driving privileges. THE NJP PACKAGE The NJP package, as we will refer to it, includes numerous documents and forms along with any evi- dence on the case. As we will discuss, strict compliance with filling out the forms is essential to a proper NJP proceeding. REPORT AND DISPOSITION OF OFFENSE(S) Your  office  may  receive  notification  that  an  offense has been commited in a variety of ways. These ways can include a shore patrol report, a verbal complaint by a victim, or a local report chit. Except when serious crimes are involved, charges are reduced to writing on the Report and Disposition of Offense(s), NAVPERS 1626/7, and processed in the manner prescribed by the form  itself. The NAVPERS 1626/7 is a one-sheet (back and front) form. It is  not a substitute for a charge sheet and it is not  a  substitute  for  the  pretrial  investigation  re- quired by Article 32, UCMJ. However, so long as the offense(s) remains in the group of cases to be handled by the CO at mast, this one form satisfies most paper work  requirements  of  a  mast  proceeding.  Among  the functions the NAVPERS 1626/7 serves are the follow- ing: l  It  reports  the  offense(s). . It records that the accused has been advised of his or her rights under Article 31, UCMJ. l It records any premast restraint. . It serves as a preliminary inquiry report. 5-4

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