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
Notwithstanding the accuseds 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.
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. Blacks 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 . . . .
The burden of getting a representative is on the
accused. As a practical matter, the accused is free to
choose anyone he or she wantsa 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 lawyers 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.
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.
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.