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Page Title: Prehearing Advice
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a guide and its use is not mandatory. However, you should  provide  the  PIO  with  this  form  in  case  the accused desires to make a statement. In addition to filling out a PIO’s report, the PIO completes section E of figure 5-1 by doing the follow- ing: l l l l Inserting a short resume of the division officer’s opinion  of  the  accused Listing the names of the witnesses whose pres- ence at mast is necessary to dispose of the case Recommending  disposition  of  the  case Summarizing  the  evidence  that  supports  the  rec- ommendation The  recommendation  of  the  PIO  is  not  binding  on the CO. After the PIO has completed his or her inquiry, the report chit, preliminary inquiry report, and all state- ments are sent to the CO for a determination of whether disposition  by  NJP  is  appropriate. PREHEARING  ADVICE If, after the preliminary inquiry, the CO determines that disposition by NJP is appropriate, the CO must make  sure  the  accused  is  given  the  advice  outlined  in part V, par. 4, MCM, 1984. The CO need not give the advice personally but may assign this responsibility to the legal officer, discipline officer, or another appropri- ate person. The advice that must be given includes the following: .  Contemplated  action—this  informs  the  accused that the CO is considering the imposition of NJP for the offense(s). .  Suspected  offense(s)—this  describes  the  sus- pected  offense(s)  to  the  accused.  The  description  should include the specific article(s) of the UCMJ that the accused is alleged to have violated. .  Government  evidence—this  advises  the  accused of the information that the allegations are based on. It also informs the accused that, upon request, he or she is allowed to examine all available statements and evi- dence. . Right to refuse NJP—unless the accused is at- tached to or embarked in a vessel (in which case he or she has no right to refuse NJP), this informs the accused of his or her right to demand trial by court-martial in lieu of NJP. The accused must also be informed (1) of the  maximum  punishment  imposable  at  NJP,  (2)  that  if he or she demands trial by court-martial, referral of the charges to trial by an SCM, an SPCM, or a GCM is possible, (3) that he or she cannot be tried by a special court-martial (SPCM) over his or her objection, and (4) that at an SPCM or a GCM he or she has the right to representation  by  counsel. l Right to confer with independent counsel—be- cause an accused who is not attached to or embarked in a vessel has the right to refuse NJP, this informs the accused of his or her right to confer with independent counsel about his or her decision to accept or refuse the NJP. This advice must be given to make sure the record of that NJP is admissible in evidence against the accused should he or she ever be tried by court-martial. A failure to advise an accused properly of his or her right to confer with  counsel,  or  a  failure  to  provide  counsel,  will  not, however, render the imposition of NJP invalid or make a ground for appeal. Therefore, if the command impos- ing  the  NJP  desires  that  the  record  of  the  NJP  be admissible for court-martial purposes, you must prepare the record of the NJP according to applicable service regulations  and  show  that: 1. 2. 3. the accused was advised of his or her right to confer  with  counsel; the accused either exercised his or her right to confer with counsel or made a knowing, intelligent, and voluntary waiver of this right; and the  accused  knowingly,  intelligently,  and  vol- untarily waived his or her right to refuse NJP. All such waivers must be in writing. .  Hearing  rights—the  accused  is  entitled  to  appear personally before the CO for the NJP hearing if he or she did not demand trial by court-martial or if the right to  demand  trial  by  court-martial  is  not  applicable.  At such a hearing the accused is entitled to: 1. be informed of his or her rights under Article 31, UCMJ; 2.  be  accompanied  by  a  spokesperson  provided by, or arranged for, the member (the proceedings should not be unduly delayed to permit the presence of the spokesperson,  nor  is  the  spokesperson  entitled  to  travel or similar expenses); 3. be informed of the evidence against him or her  relating  to  the  offense; 5-11

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