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Captainís Mast Guide -Continued
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Personal Appearance Waived Part V, par. 4c(2), MCM, 1984, provides that if the accused waives his or her right to appear personally before the CO, he or she may submit written matters for consideration by the CO before the imposition of NJP. If the accused makes this election, inform the accused of his or her right to remain silent and that any matters submitted may be used against him or her at a trial by court-martial. Notwithstanding  the  accused’s  expressed  desire  to waive his or her right to appear personally at the NJP hearing, he or she maybe ordered to attend the hearing if the officer imposing NJP 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. Hearing Officer Normally, the officer who actually holds the NJP 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 the reasons for it detailed. 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 NJP 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 evi- dence which is offered in opposition to it . . . .” Personal Representative The burden of getting a representative is on the accused. As a practical matter, the accused is free to choose anyone he or she wants—a lawyer or a nonlaw- yer, an officer or an enlisted person. This freedom of the accused to choose a representative does not compel the command to provide lawyer counsel, and current regu- lations do not create a right to lawyer counsel at NJP where such a right exists at court-martial. Representation  by  any  lawyer  who  is  willing  and able to appear at the hearing is available to the accused. While a lawyer’s workload may prevent the lawyer from appearing, a blanket rule that no lawyers will be available to 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 on his or her behalf without cost to the government. While a command does not have to provide a personal repre- sentative, it should help the accused get the repre- sentative 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  judg- ment 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 that he or she took the money, the witnesses who can testify that the accused did take the money 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 NJP is granted by the JAGMAN, section 0115. 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 NJP. 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, NJP results maybe pub- lished without the name of the accused. 5-21

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