|  Frequently
I consult with service members who are facing Non-Judicial Punishment
(Captain’s Mast) and in each case, if the person is not assigned
to a sea going command, the decision has to be made as to whether
the person should accept Mast, or refuse Mast and demand trial by
Courts-Martial. It is a tough decision and is one that very well
may determine that person’s future in the military.
Non-Judicial Punishment under the provisions of Article 15, Uniform
Code of Military Justice is designed to permit a Commanding Officer
to summarily dispose of minor disciplinary infractions. If the person
is assigned to a sea going command, there is no right to refuse
Mast. When the option to refuse NJP does exist, a lot of thought
and reasoning must be put into the decision. There is rarely a clear-cut
answer and frequently consideration must be given as to what may
happen after Mast. Once Non-Judicial Punishment has been imposed,
in many cases the Commanding Officer can direct that the service
member be processed for administrative separation. In certain cases,
such as drug abuse and sexual harassment, administrative separation
processing is mandatory.
To get back to the ultimate decision, consideration must first
be given to the fact that Non-Judicial Punishment does not result
in a federal conviction and in essentially most respects, it does
not follow a person out of the military. The punishment that can
be imposed at Captain’s Mast is relatively minor and unquestionably
many service members have gone on to a long and successful career
after being subjected to NJP. Generally speaking, if a person did
commit the subject misconduct, accepting Mast may be the best way
to go. Again generally speaking, if the person did not commit the
subject misconduct, then I suggest he may want to refuse Mast and
demand trial by Courts-Martial. Understand my rationale for this
is that I do not have much faith in the NJP proceedings resulting
in a finding of not guilty. While occasionally that happens, it
is quite routine from what I have seen that by accepting Mast, the
person is basically accepting that he is going to be found guilty
and punished. I can not accept that result for an innocent person.
However, the decision to refuse NJP is one that must be made with
great caution.
Refusal of Non-Judicial Punishment routinely leads to the case
being referred to a Special Courts-Martial. Remember, there is a
risk that even the innocent person can be convicted at a Courts-Martial.
If a person is convicted at Special Courts-Martial, it is considered
a federal conviction and the potential punishment is much more severe
than what was available at NJP, including up to a year in confinement
and a Bad Conduct Discharge. The result of the Special Courts-Martial
will follow a person for life, long after he is out of the military.
Even if the Court does not impose a BCD, the conviction itself can
serve as the basis for a subsequent administrative separation from
the service, possibly with an Other than Honorable discharge. In
the recent years, I have frequently seen Commanding Officers send
cases to administrative separation proceedings, rather than Courts-Martials
after Mast has been refused. In some situations this helps the accused
by giving him a chance of fighting the allegations without the serious
risks, while in other cases it significantly impairs the ability
of the accused to fully defend against the allegations. An adverse
finding at an administrative separation board results in the worst
case scenario of a discharge from the service and an Other than
Honorable discharge.
Hopefully from this article you will see that the decision to refuse
Non-Judicial Punishment should not be taken lightly. It is not as
simple as you may expect since there are inherent risks in any case
going to a Courts-Martial. However, if in fact a service member
is truly innocent of the charges, the only real chance in my opinion
of being cleared comes when NJP is refused. This is a very difficult
decision and is one that should be made with the advice and assistance
of an attorney who practices military criminal law.
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