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Article 15 of the Uniform Code of Military Justice (UCMJ) provides the authority for a Commanding Officer to impose non-judicial punishment (NJP). Subject to some limitations, individuals facing NJP have the right to refuse NJP and to consult with a criminal defense lawyer before making such a decision. Contrary to popular belief, however, there is no right to demand a trial by court-martial.

A Federal judge in Virginia recently dismissed criminal charges against 5 Marines who were charged in Federal court with driving under the influence of alcohol after the Marines had already been punished for the same offenses at NJP. Some of the defendants had consulted with a military criminal defense lawyer before electing to receive NJP while others waived their right to consult with counsel. In each case, the court held that the Marines’ did not receive sufficient information to make a voluntary, knowing and intelligent waiver of their right to refuse NJP. The court reasoned that the military JAG lawyers provided to those Marines that did elect to consult with counsel were prohibited under service regulations from forming an attorney-client relationship and that this prevented the Marines from making a fully-informed decision whether or not to accept NJP.

As noted before on this blog, a Federal criminal prosecution is not prohibited under the Double Jeopardy clause of the U.S. Constitution where the same charge was previously the subject of an NJP. Federal prosecution is, however, prohibited following a trial by court-martial since the court-martial is a criminal proceeding and the same sovereign (i.e. the Federal government) is the prosecuting agency. In dismissing the charges against the Marines, the court held that they did not receive sufficient information about the possible prosecution of the same charge in civilian court or of the possible consequences of such a prosecution. The court stated:

“An accused servicemember must be aware of all of the likely consequences — both military and civilian, as well as the interplay between them …”

The decision whether or not to accept NJP is an important one as it can have serious consequences both in the military and in a civilian court. If you have questions about an NJP case, you should consult with an experienced criminal defense lawyer familiar with both the military and civilian systems.