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Prehearing Advice - 14135_115
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Legalman 1 & C - Navy Lawyer / Jag training guide manuals
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Accused’s Notification and Election of Rights. Accused Attached to or Embarked in a Vessel
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 con- sult 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 Man- ual, 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-mar- tial 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 cap- tain’s mast]. The accused was advised that ac- ceptance of nonjudicial punishment does not preclude  further  administrative  action.  In  com- pleting 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 cap- tain’s mast, the following example should be made on a page 13: (Grade and name of accused) received punish- ment 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. EXECUTIVE  OFFICER’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 the 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 sestion G of figure 5-1 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 5-12

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