Nonjudicial Punishment: Service Cultural Divides in Military Justice
Military members charged with violations of the Uniform Code of Military Justice (UCMJ) have a right to trial by court martial, except in the case of a member attached to or embarked in a vessel. However, in a surprising number of cases, servicemembers opt to accept nonjudicial punishment (NJP), instead of demanding their rights to courts-martial.
The rates at which military members accept NJP are also not consistent amongst the military branches. The 2009 Annual Report for the Code Committee on Military Justice shows how few in the military exercise their right to trial by court-martial, and the disparities between the branches.
In 2009, the Coast Guard reported fewer than 3.0 percent of all disciplinary cases were handled through court-martial. The Army adjudicated 5.7 percent of all cases through court-martial, while the Navy/Marine Corps and Air Force were at 11.5 percent and 9.9 percent respectively. Thus, over 90 percent of military members accepted administrative punishment when charged with misconduct, instead of fighting at a court-martial.
Why would a Sailor in the Navy accused of violating the UCMJ be twice as likely to seek trial by court-martial than a Soldier in the Army? This is an especially curious statistic since a Sailor is much more to be attached to or embarked in a vessel than a Soldier.
Where the Differences Lie
Soldiers call Article 15 (for the UCMJ section that governs nonjudicial punishment) what the Marines call Office Hours, and the Navy and Coast Guard call Captain's or Admiral's Mast, but the different vocabulary does not explain the differences in the numbers of those who choose to fight charges at a trial by court-martial. What causes these variations? From the perspective of over 25 years serving in various roles in the military justice process, I have observed cultural attitudes between the military branches which likely play a significant role in these disparities, both among the Services as a whole, and their legal systems.
Whatever the service, there is almost always substantial pressure on a servicemember to accept NJP rather than demand trial by court-martial. From the point of view of the accused member's NCOs and officers, NJP is a much more efficient process than a court-martial. Trial by court-martial requires considerable resources through investigation, prosecution, trial, and possible appeal. There is also the myth that the conviction rate is very high in courts-martial. You may have heard Mark Twain's quote on such statistics, "There are lies, damn lies, and statistics." These purported high conviction rates arose from including the many courts-martial in which an accused servicemember pleads guilty and does not fight a charge, and this statistic does not distinguish between courts in which the accused is represented by aggressive counsel who is not afraid of a fight and those members who are represented by counsel who view their role as facilitating guilty pleas and plea agreements. Those are just two reasons why these statistics give a false impression of conviction rates.
Additionally, in the military, Soldiers, Sailors, Airmen, and Marines are trained to follow orders and accept the guidance of those senior in rank. Thus, it is unsurprising that many servicemembers choose to go along with what "the system" offers, rather than fight for their honor, their freedom, and their military careers by exercising their rights. Unlike battle, in which the military member has a moral duty to sacrifice his individual welfare for the good of the unit and the mission, Article 15 of the UCMJ makes clear that the military member, when faced with criminal charges, is not required to sacrifice his honor, freedom, or career for the benefit of ‘being made an example'. The U.S. servicemember is not subject to the discipline of his ancient Roman predecessor, who could be punished by decimation, a punishment in which one out of every ten members of a unit was pulled out of the ranks for execution when a military unit failed in some significant way. Military justice is American justice, and the UCMJ protects the military member's right to confront the witnesses against him in a trial in which the standard of proof is beyond a reasonable doubt, just as is done in a criminal trial in civilian courts.
In fact, courts-martial are eminently more favorably disposed to an accused servicemember than civilian courts are to a defendant in criminal trial. A military member has the right to appointed counsel and expert assistance, without regard to his financial ability to hire his own attorney or expert help, and the military member also has the right to hire a civilian counsel at his own expense as well, if he wishes to have more experienced help serving with, or instead of, his military counsel. Rules regarding the discovery of evidence and exclusion of evidence are much more favorably construed in favor of the military defendant, as contrasted the rights of a citizen facing criminal charges in civilian courts.
Sometimes, more than institutional pressures may account for the low numbers of courts-martial or the differing rates between the military services. There is a general perception that court-martial proceedings are reserved for more serious offenses, while NJP is proper to correct minor infractions. This may cause those accused of minor infractions to assume that they will be better off accepting NJP. This is certainly not always the case, especially when the servicemember is not guilty of the charge, no matter how minor, or in those cases in which the evidence is lacking. Then, it is often in the best interest of the servicemember to refuse NJP and demand trial by court-martial.
Generally, Servicemembers Have a Right to Trial By Court-Martial
The important thing for all service members to know is that, in almost all circumstances, they have aright to trial by court-martial, regardless of the pressures they encounter. The best path is not always the easy path or the generally accepted path, but it is in your best interest to know your options when your freedom, career, or future is on the line.
Before making a decision of this magnitude, a servicemember must carefully consider the facts, defenses, and career consequences of any proceeding. Those accused of violating the UCMJ or who are under investigation should not waive their right to trial by court-martial without first speaking to a knowledgeable military defense lawyer.
The rates at which military members accept NJP are also not consistent amongst the military branches. The 2009 Annual Report for the Code Committee on Military Justice shows how few in the military exercise their right to trial by court-martial, and the disparities between the branches.
In 2009, the Coast Guard reported fewer than 3.0 percent of all disciplinary cases were handled through court-martial. The Army adjudicated 5.7 percent of all cases through court-martial, while the Navy/Marine Corps and Air Force were at 11.5 percent and 9.9 percent respectively. Thus, over 90 percent of military members accepted administrative punishment when charged with misconduct, instead of fighting at a court-martial.
Why would a Sailor in the Navy accused of violating the UCMJ be twice as likely to seek trial by court-martial than a Soldier in the Army? This is an especially curious statistic since a Sailor is much more to be attached to or embarked in a vessel than a Soldier.
Where the Differences Lie
Soldiers call Article 15 (for the UCMJ section that governs nonjudicial punishment) what the Marines call Office Hours, and the Navy and Coast Guard call Captain's or Admiral's Mast, but the different vocabulary does not explain the differences in the numbers of those who choose to fight charges at a trial by court-martial. What causes these variations? From the perspective of over 25 years serving in various roles in the military justice process, I have observed cultural attitudes between the military branches which likely play a significant role in these disparities, both among the Services as a whole, and their legal systems.
Whatever the service, there is almost always substantial pressure on a servicemember to accept NJP rather than demand trial by court-martial. From the point of view of the accused member's NCOs and officers, NJP is a much more efficient process than a court-martial. Trial by court-martial requires considerable resources through investigation, prosecution, trial, and possible appeal. There is also the myth that the conviction rate is very high in courts-martial. You may have heard Mark Twain's quote on such statistics, "There are lies, damn lies, and statistics." These purported high conviction rates arose from including the many courts-martial in which an accused servicemember pleads guilty and does not fight a charge, and this statistic does not distinguish between courts in which the accused is represented by aggressive counsel who is not afraid of a fight and those members who are represented by counsel who view their role as facilitating guilty pleas and plea agreements. Those are just two reasons why these statistics give a false impression of conviction rates.
Additionally, in the military, Soldiers, Sailors, Airmen, and Marines are trained to follow orders and accept the guidance of those senior in rank. Thus, it is unsurprising that many servicemembers choose to go along with what "the system" offers, rather than fight for their honor, their freedom, and their military careers by exercising their rights. Unlike battle, in which the military member has a moral duty to sacrifice his individual welfare for the good of the unit and the mission, Article 15 of the UCMJ makes clear that the military member, when faced with criminal charges, is not required to sacrifice his honor, freedom, or career for the benefit of ‘being made an example'. The U.S. servicemember is not subject to the discipline of his ancient Roman predecessor, who could be punished by decimation, a punishment in which one out of every ten members of a unit was pulled out of the ranks for execution when a military unit failed in some significant way. Military justice is American justice, and the UCMJ protects the military member's right to confront the witnesses against him in a trial in which the standard of proof is beyond a reasonable doubt, just as is done in a criminal trial in civilian courts.
In fact, courts-martial are eminently more favorably disposed to an accused servicemember than civilian courts are to a defendant in criminal trial. A military member has the right to appointed counsel and expert assistance, without regard to his financial ability to hire his own attorney or expert help, and the military member also has the right to hire a civilian counsel at his own expense as well, if he wishes to have more experienced help serving with, or instead of, his military counsel. Rules regarding the discovery of evidence and exclusion of evidence are much more favorably construed in favor of the military defendant, as contrasted the rights of a citizen facing criminal charges in civilian courts.
Sometimes, more than institutional pressures may account for the low numbers of courts-martial or the differing rates between the military services. There is a general perception that court-martial proceedings are reserved for more serious offenses, while NJP is proper to correct minor infractions. This may cause those accused of minor infractions to assume that they will be better off accepting NJP. This is certainly not always the case, especially when the servicemember is not guilty of the charge, no matter how minor, or in those cases in which the evidence is lacking. Then, it is often in the best interest of the servicemember to refuse NJP and demand trial by court-martial.
Generally, Servicemembers Have a Right to Trial By Court-Martial
The important thing for all service members to know is that, in almost all circumstances, they have aright to trial by court-martial, regardless of the pressures they encounter. The best path is not always the easy path or the generally accepted path, but it is in your best interest to know your options when your freedom, career, or future is on the line.
Before making a decision of this magnitude, a servicemember must carefully consider the facts, defenses, and career consequences of any proceeding. Those accused of violating the UCMJ or who are under investigation should not waive their right to trial by court-martial without first speaking to a knowledgeable military defense lawyer.
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