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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
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