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. He or she may impose NJP at a later period of
active duty or inactive duty training (so long as this is
within 2 years of the date of the offense).
. He or she may request from the regular compo-
nent officer exercising general court-martial jurisdic-
tion (OEGCMJ) over the accused an involuntary recall
of the accused to active duty or inactive duty training to
impose NJP.
l If the accused waives his or her right to be present
at the NJP hearing, the CO or OIC may impose NJP after
the period of active duty or inactive duty training of the
accused has ended.
Punishment imposed upon persons who were invol-
untarily recalled for imposition of NJP may not include
restraint unless SECNAV approves the recall.
Right of an Accused to Demand Trial by
Court-Martial
Article 15a, UCMJ, and part V, par. 3, MCM, 1984,
provide another limitation on the exercise of NJP. Ex-
cept for a person attached to or embarked in a vessel, an
accused may demand trial by court-martial in lieu of
N J P.
This right to refuse NJP exists up until the time of
imposition of NJP (that is, up until the CO announces
the punishment). This right is not waived by the accused
having previously signed a report chit showing that he
or she would accept NJP.
The category of persons who may not refuse NJP
includes those persons assigned or attached to a vessel
who are on board for passage or assigned or attached to
an embarked staff, unit, detachment, squadron, team, air
group, or other regularly organized body.
The key time factor in determining whether or not
a person has the right to demand trial by court-martial
is the time of the imposition of the NJP and not the time
of the commission of the offense. There is no power for
a CO or an OIC to impose NJP on a civilian.
OFFENSES PUNISHABLE UNDER
ARTICLE 15, UCMJ
Article 15 gives a CO power to punish individuals
for minor offenses. The term minor offense has been the
cause of some concern in the administration of nonju-
dicial punishment.
Article 15, UCMJ, and part V, par, 1e, MCM, say
that the term minor offense means misconduct normally
not more serious than that usually handled at an sum-
mary court-martial (SCM) (where the maximum pun-
ishment is 30 days’ confinement). These sources also
say that the nature of the offense and the circumstances
surrounding its commission are also factors that should
be considered in determining whether an offense is
minor in nature.
The term minor offense ordinarily does not include
misconduct that, if tried by a general court-martial
(GCM), could be punished by a dishonorable discharge
(DD) or confinement for more than 1 year. The Navy
and Marine Corps, however, have taken the position
that the final determination of whether an offense is
minor is within the sound discretion of the CO.
Maximum Penalty
To determine if the offense is minor, begin the
analysis with a consultation of the punitive articles (part
IV, MCM, 1984) and determine the maximum punish-
ment for the offense. Although the MCM does not so
state, if the authorized confinement is 30 days to 3
months, the offense is most likely a minor offense. If
the authorized confinement is 6 months to 1 year, the
offense may be minor. However, if authorized confine-
ment is 1 year or more, the offense is usually not minor.
Nature of the Offense and Circumstances
Surrounding Its Commission
The MCM, 1984, also states that, in determining
whether an offense is minor, the nature of the offense
and the circumstances surrounding its commission
should be considered. This is a significant statement and
often is misunderstood as referring to the seriousness or
gravity of the offense. Gravity refers to the maximum
punishment. In contrast, the nature of the offense refers
to its character, not its gravity.
In military criminal law, there are two basic types
of misconduct—disciplinary infractions and crimes.
Disciplinary infractions are breaches of standards gov-
erning the routine functioning of society. Thus, traffic
laws, license requirements, disobedience of military
orders, and disrespect to military superiors are discipli-
nary infractions. Crimes, on the other hand, involve
offenses recognized as particularly evil. Crimes are acts
of robbery, rape, murder, aggravated assault, and lar-
ceny. Both types of offenses involve a lack of self-dis-
cipline, but crimes involve a particular gross absence of
self-discipline amounting to a moral deficiency. Crimes
are the product of a mind particularly disrespectful of
good moral standards.
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