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Page Title: Right of an Accused to Demand Trial by Court-Martial
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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. 5-3

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