0106 authority to impose
Commander – The terms commander and commanding officer (CO), as used in this Part, refer to the same position. The term commander is defined in the MCM, Part V, paragraph 2 as a commissioned or warrant officer who, by virtue of rank and assignment, exercising primary command authority over a military organization or prescribed territorial area, which under pertinent official directives [such as the Standard Naval Distribution List (SNDL)] is recognized as a “command.” Note, a title does not by itself indicate authority to impose NJP – instead, the title must be associated with a recognized command (for example, personnel transfer orders indicating that one is being assigned as commanding officer of a unit does not provide NJP authority if that unit is not a recognized command in the SNDL or other official directive). “Commanders” includes an officer empowered to convene general and/or special courts-martial, a commander of a joint command, an officer designated pursuant to U.S. Navy Regulation 0722, and an officer designated as a commander of a separate and detached command pursuant to U.S. Navy Regulation 0723. Other titles (such as “Director”) may be used to designate Navy commanders. A commander may impose nonjudicial punishment upon officers and enlisted persons of the command; nonjudicial punishment is not authorized for midshipmen or cadets. This authority to impose nonjudicial punishment extends to Reserve commanders of commissioned units.
Officer in Charge (OIC) – Any commissioned officer who is designated as OIC of a unit by: departmental orders; tables of organization; manpower authorizations; orders of a flag or general officer in command (including one in command of a joint command to which members of the Naval service are attached); orders of the senior officer present; or designated as a special court-martial convening authority. An OIC may impose upon enlisted persons assigned to the unit admonition or reprimand and one or more of the punishments listed in paragraph 5b(2)(A)(i) to (vi) of Part V, MCM.
Principal Assistant – With the express prior written approval by the Chief of Naval Personnel, a flag or general officer in command may delegate all or a portion of his powers under Article 15, UCMJ, to a senior officer on his staff who is eligible to succeed to command in case of absence of such officer in command. To the extent of the authority thus delegated, the officer to whom such powers are delegated shall have the same authority as the officer who delegated the powers.
Joint Commander – A joint commander to whose staff, command, or unit members of the Naval service are assigned may impose nonjudicial punishment upon such individuals. A joint commander, alternatively, may designate, in writing, one or more Naval units, and shall for each such Naval unit designate a commissioned officer of the Naval service as CO for the administration of discipline under Article 15, UCMJ. A copy of any such designation by the joint commander shall be furnished to the Chief of Naval Personnel and to the Office of the Judge Advocate General (OJAG) (Code 20).
Withholding of nonjudicial punishment authority – Although no commander may direct that a subordinate impose NJP in a particular case, a superior commander may limit or withhold the exercise by subordinate commanders of any disciplinary authority they might otherwise have under MCM, Part V for certain types of offenses or certain categories of persons, in specific cases, or to impose certain types of punishment.
Terminology – The terms Admiral's Mast and Captain’s Mast refer to Article 15, UCMJ, hearings. Nonjudicial punishment is a term that describes the punishment imposed at the conclusion of an Article 15, UCMJ, hearing.
General rule – When nonjudicial punishment is imposed, the accused must be a member of the command or of the unit of the officer imposing the punishment. A member is "of the command," or "of the unit," if assigned or attached thereto. A member may be "of the command," or "of the unit," of more than one command or unit at the same time and, consequently, be subject to the nonjudicial punishment authority of both commanders. For example, members assigned to or attached to commands or units for the purpose of performing temporary duty (TDY) are subject to the nonjudicial punishment authority of the commanders of both the parent and TDY commands. Similarly, members assigned or attached to a detachment under the operational control of another command or unit by virtue of operational orders, or other authorized means, are subject to the nonjudicial punishment authority of the commanders of both the parent and supported units. Superior operational or administrative commanders may exercise nonjudicial punishment authority upon any subordinate member in their chain-of-command. For purposes of this section, all members of units responsible to the superior commander are considered “of the command.” Additionally, any general or special court-martial convening authority who has charges against the accused properly before him for disposition at a court-martial may impose nonjudicial punishment upon the accused, regardless of whether that accused is “of the command” of the convening authority.
Party before a fact-finding body – A person who has been designated a party before a fact-finding body convened under this Manual (see Chapter II) remains thereafter "of the command" of the unit or organization to which assigned or attached at the time of such designation, even though for other purposes he may have been assigned or attached to another command. This status terminates automatically when all action on appeal has been completed.
Action when accused is no longer with command – If the accused is no longer assigned to or attached to the unit at the time nonjudicial punishment is to be imposed (except as provided in the general rule and when a party before a fact-finding body), the alleged offense should be referred for appropriate action to a competent authority in the chain-of-command over the individual concerned.
0108 limitations on initiation of article 15, ucmj, proceedings
Right to demand trial – A person who is not attached to or embarked in a vessel has the right to demand trial by court-martial in lieu of nonjudicial punishment. A person who is attached to or embarked in a vessel does not have the right to demand trial by court-martial.
The term “attached to or embarked in a vessel” means that the person is assigned or attached via written or oral orders, either permanent or temporary, to a vessel, is on board for passage, or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group, or other regular organized body. The orders may apply individually to the person, or they may apply to the unit of which the person is a member. Members of a vessel’s off-crew are considered attached to a vessel if they are ordered to the vessel, receiving sea pay, and are subject to recall to the vessel at all times. No one may be ordered to a vessel solely for the purpose of limiting the ability to demand trial by court-martial in lieu of nonjudicial punishment.
Units attached to ships – The CO or OIC of a unit attached to a ship for duty will, unless authorized under subsection (1) below, refrain from exercising his powers to impose nonjudicial punishment while the unit is embarked therein. All such matters will be referred to the CO of the ship for initial disposition.
(1) This policy is a necessary corollary to the ship CO's overall responsibility for the safety, well being, and efficiency of the ship. Nevertheless, the CO of a ship is authorized to determine whether, and under what circumstances, he may authorize a CO or OIC of a unit attached to that ship, while embarked therein, to exercise nonjudicial punishment authority.
(2) This policy shall not apply to Military Sealift Command vessels operating under a master, nor does it apply where an organized unit is embarked for transportation only. When an organized unit is embarked for transportation only in a ship, the officer in command of such organized unit shall ordinarily retain the authority possessed over such unit prior to embarkation, including disciplinary authority. Nothing in the foregoing shall be construed as impairing the paramount authority of the CO of the ship, including disciplinary authority, over all personnel of the Naval service embarked. In the case of units embarked for transportation only, however, the CO of the ship should take disciplinary action under the UCMJ over members of such embarked units only in unusual cases concerning incidents occurring on board the ship.
0109 advice to accused prior to initiation of article 15, ucmj, proceedings
Pre-NJP advice –
(1) Prior to the imposition of nonjudicial punishment, the CO or OIC shall ensure that the individual concerned is fully advised of all applicable legal rights and that other required action is taken prior to the hearing; see section 0110 if nonjudicial punishment is to be based on the report of a fact-finding body. There is no right for an accused to consult with counsel prior to nonjudicial punishment; however, COs are encouraged to permit an accused to so consult subject to the immediate availability of counsel, the delay involved, and operational commitments or military exigencies. Failure to provide the opportunity for an accused to consult with counsel prior to nonjudicial punishment does not preclude the imposition of nonjudicial punishment; it merely precludes the admissibility of the record of nonjudicial punishment in aggravation at a later court-martial, unless the accused was attached to or embarked in a vessel at the time of the imposition of nonjudicial punishment. The status of the accused (see subsection b) and the potential use of the record (see subsections c and d) should be considered in determining whether to utilize Appendix A-1-b, Appendix A-1-c, or Appendix A-1-d.
(2) A service member having obligated service arising from receiving advanced education assistance must be advised prior to electing nonjudicial punishment that, if subsequently separated for misconduct, he may be required to reimburse the United States for the cost of advanced education assistance not repaid by active duty service, as specified in the written agreement entered into with the Government prior to accepting advanced education assistance; see JAGMAN § 0171 and Appendix A-1-e.
Accused attached to or embarked in a vessel – Appendix A-1-b is the Accused's Notification of Rights for use only in circumstances when an accused is attached to or embarked in a vessel. The record of nonjudicial punishment can be used in aggravation in the event of a later court-martial conviction for other offenses.
Accused not attached to or embarked in a vessel – Article 15, UCMJ, and Part V, MCM, afford no right to consultation with a lawyer prior to imposition of nonjudicial punishment. However, when the accused is not afforded the opportunity to consult a lawyer prior to imposition of nonjudicial punishment, the record of nonjudicial punishment may not be used in aggravation at a later court-martial for other offenses. The only exception to this rule is where a lawyer serves as personal representative at the Article 15, UCMJ, hearing. Appendix A-1-c pertains.
Service record entries –
(1) In the event punishment is imposed at captain's mast, and Appendix A-1-d is utilized, or the accused is represented by a lawyer at the hearing, appropriate service-record entries should be made and signed by appropriate personnel, on page 13, or in such other manner as service directives may require. As an example, if the accused executed Appendix A-1-d, the service record entry should state, after appropriate verification, the following:
(Grade and name of accused) signed JAGMAN Appendix A-1-d, prior to (his)(her) captain's mast which was held on (date of captain's mast/office hours). The accused [talked to a lawyer prior to deciding whether to demand trial by court-martial in lieu of captain's mast [elected to give up (his)(her) right to talk with a lawyer prior to deciding whether to demand trial by court-martial in lieu of captain's mast. The accused was advised that acceptance of nonjudicial punishment does not preclude further administrative action against (him)(her). This may include being processed for an administrative discharge that could result in an other than honorable discharge. In completing the remainder of the form, the accused did not demand trial by court-martial in lieu of captain's mast.
(2) If the accused is represented by a military or civilian lawyer as a personal representative at captain's mast/office hours, the following example of a service-record entry may be made, after appropriate verification:
(Grade and name of accused) received nonjudicial punishment on (date). The accused was represented by a lawyer.
0110 procedures for initiation of article 15, ucmj, hearing
Article 15, UCMJ, hearing guide – Servicemembers are afforded the right to a personal appearance before the nonjudicial punishment authority except when appearance is prevented by the unavailability of the nonjudicial punishment authority or by extraordinary circumstances. See paragraph 4.c(1), Part V, MCM. Appendix A-1-f is a guide for a personal hearing at captain's mast.
Exception. Subject to the provisions of Article 15(a), UCMJ, paragraph 4 of Part V, MCM, and section 0108 regarding demand for trial, a punitive letter may be issued, or its issuance recommended to higher authority, on the basis of an investigation or court of inquiry for acts or omissions for which the individual was accorded the rights of a party or on the basis of nonjudicial punishment prescribed in paragraph 4 of Part V, MCM. When a hearing under Article 15, UCMJ, is conducted, the officer conducting the hearing shall prepare a report thereof. The report shall include a summary of the testimony of witnesses, statements, and affidavits submitted to the officer holding the hearing, and a description of items of information in the nature of physical or documentary evidence considered at the hearing.
Standard of proof – Captain's mast is not a criminal trial; it is a disciplinary proceeding. Its purpose is to determine whether an offense was committed by the member and, if appropriate, to provide punishment therefore. Such punishment is designed for minor misconduct in a nonjudicial forum, without a record of "federal conviction." As such, the standard of proof by which facts must be established at mast or office hours is a "preponderance of the evidence," rather than "beyond a reasonable doubt," as it is at courts-martial.
Observers at captain's mast – The presence of representative members of the command as observers during personal hearings under paragraph 4 of Part V, MCM, and Article 15, UCMJ, is authorized and encouraged to demonstrate integrity and fairness of the imposition of nonjudicial punishment. Nothing precludes the alleged offender from requesting to confer privately with the officer conducting the hearing to relate matters that, in the opinion of the alleged offender, are of a personal nature.
Alternatives to personal appearance – Ordinarily, before nonjudicial punishment may be imposed, the service member shall be entitled to appear personally before the authority imposing nonjudicial punishment. However, when personal appearance is prevented by the unavailability of the nonjudicial punishment authority, or by extraordinary circumstances, the nonjudicial punishment proceedings may be conducted telephonically, via video teleconference, or other similar remote means that provide for two-way voice communication. These alternatives are in addition to those already provided for in paragraph 4(c) of Part V, MCM. The service member shall be notified in writing prior to the imposition of nonjudicial punishment of the circumstances warranting an alternative to personal appearance.
Nonjudicial punishment based on report of a fact-finding body – If nonjudicial punishment is contemplated on the basis of the record of a court of inquiry or other fact-finding body, a preliminary examination shall be made of such record to determine whether the individual concerned was accorded the rights of a party before such fact-finding body and, if so, whether such rights were accorded with respect to the act or omission for which nonjudicial punishment is contemplated. If the individual does not exercise his right to demand trial by court-martial, or if he does not have that right, the individual may submit, in writing, any matter in defense, extenuation, or mitigation to the officer considering imposing the nonjudicial punishment. If the individual was accorded the rights of a party with respect to the act or omission for which nonjudicial punishment is contemplated, such punishment may be imposed without further proceedings. If the individual was not accorded the rights of a party with respect to the offense for which punishment is contemplated, the procedure prescribed in paragraph 4 of Part V, MCM, must be conducted. In the alternative, the record of the fact-finding body may be returned for additional proceedings during which the individual shall be accorded the rights of a party with respect to the act or omission for which nonjudicial punishment is contemplated.
Advice after imposition of nonjudicial punishment – The officer who imposes punishment under Article 15, UCMJ, shall again ensure that the offender is fully informed of his right to appeal. Appendix A-1-g is an Accused's Acknowledgment of Appeal Rights that should be signed and witnessed if punishment is imposed.
0111 limitations on and nature of punishments
Restriction imposed upon officers and warrant officers – Restriction, with or without suspension from duty, imposed upon commissioned and warrant officers under paragraph 5b(1)(A) of Part V, MCM, may not exceed 15 consecutive days when imposed by a CO below the grade of major or lieutenant commander.
Confinement on bread and water or diminished rations – This punishment shall only be imposed on persons who are, (1) attached to or embarked in a vessel per section 0108a, and (2) in paygrade E-3 or below. This punishment is authorized when the punishment also includes an unsuspended reduction to paygrade E-3 or below. Calculating the release date by number of hours or meals served in confinement is not authorized. See DOD 1325-7M.
Extra duties– Subject to the limitations set forth in paragraph 5c(6) of Part V, MCM, this punishment shall be considered satisfied when the enlisted person shall have performed extra duties during available time in addition to performing his military duties. Normally the immediate CO of the accused will designate the amount and character of the extra duties to be performed. The daily performance of the extra duties, before or after routine duties are completed, constitutes the punishment whether the particular daily assignment requires 1, 2, or more hours, but normally extra duties should not extend to more than 2 hours per day. Except in cases of members of the Naval or Marine Corps Reserve performing inactive training or annual training for a period of less than 7 days, if reasonable accommodation can be made, extra duty shall not be performed on the member’s Sabbath, although the member’s Sabbath counts in the computation of the period for which such punishment is imposed.
Reduction in grade – Under no circumstances may the punishment of reduction in grade be imposed except to the next inferior paygrade. Navy personnel in the paygrade of E-7 or above and Marine Corps personnel in the paygrade of E-6 or above may not be reduced in paygrade. A CO or OIC serving in the grade of W-1 through CWO-5 may not reduce enlisted personnel under any circumstances.
Arrest in quarters – An officer or warrant officer undergoing this punishment shall not be permitted to perform duties involving the exercise of authority over any person who is otherwise subordinate to him.
No punishment – If no punishment is awarded at an Article 15, UCMJ, hearing, the effect is the same as if the charges were dismissed at the hearing. No record of nonjudicial punishment will be made in the member’s service record. The fact that the member went to an Article 15, UCMJ, hearing may not be referenced in the member’s record. However, there is no restriction on reference to or use of the facts or evidence underlying the offenses alleged at the Article 15, UCMJ, hearing for other authorized purposes. If no punishment is awarded or the charges were dismissed, a subsequent nonjudicial punishment may be held for the same offenses.
0113 effective date and execution of nonjudicial punishments
Forfeiture of pay and reduction in grade – These punishments, if unsuspended, take effect when imposed at the nonjudicial punishment proceedings. If suspended, and the suspension is later vacated, these punishments take effect for all purposes on the date the suspension is vacated. If, subsequent to the imposition of a punishment of forfeiture of pay and prior to the execution of this punishment, an accused absents himself without authority, such period of absence shall interrupt the service of this punishment and shall be excluded in computing the service of this punishment. If a forfeiture of pay is imposed, however, while a prior punishment of forfeiture of pay is still in effect, the prior punishment will be completed before the latter begins to run. A punishment to reduction in rate may be executed in the accused's absence.
Punishments involving restraint and extra duties –
(1) Generally. The punishments of arrest in quarters, correctional custody, confinement on bread and water or diminished rations, extra duties, and restriction, if unsuspended, take effect when imposed and are executed when served. See paragraph 7 of Part V, MCM, if an appeal is filed.
(2) Interruption by absence or later punishment. If subsequent to the imposition and prior to the execution of these punishments an accused absents himself without authority, the period of absence shall interrupt the service of the unexecuted portion of these punishments. The execution of any previously imposed nonjudicial punishment involving restraint will normally be interrupted by a subsequent nonjudicial punishment involving restraint. Upon execution of the later-imposed nonjudicial punishment involving restraint, the unexecuted portion of the earlier punishment will be executed. The officer imposing the later punishment may, however, order that the earlier punishment be completed prior to execution of the later punishment. A sentence imposed by a court-martial will also interrupt the service of any nonjudicial punishment involving restraint. When the judicially imposed punishment has been served, any unexecuted nonjudicial punishment will be completed.
(3) Deferment of execution. COs and OICs may, when adequate facilities are not available or when the exigencies of the service require, defer execution of restriction, correctional custody or confinement on bread and water or diminished rations, for a reasonable period of time, not to exceed 15 days. Also, COs and OICs may, if the accused is found to be medically unfit for the service of the punishments of correctional custody or confinement on bread and water or diminished rations, defer, for a period not to exceed 15 days, the execution of the punishment until the accused is determined to be medically fit to serve the punishment. If at the end of the deferment period the accused remains medically unfit to serve the punishment of correctional custody or confinement on bread and water or diminished rations, the CO or OIC who imposed the punishment may mitigate the punishment to one no more severe than the original punishment announced. Upon request of the accused, a commander may defer any punishment. Once the period of requested deferment is completed the individual shall complete the awarded punishment in its entirety.
(4) Stay of punishment. In rare instances (e.g., medical emergency), and only upon request of the accused, a Commander may grant a stay of nonjudicial punishment. A stay of punishment occurs when the accused has begun serving the punishment awarded and the Commander exercises his or her discretion to interrupt the punishment for a period that will normally not exceed 15 days. This is done with the intent that the remainder of the punishment will be served beginning at a later date. If the Commander stays the punishment, such a stay should be noted in the accused’s service record with a Page 13 signed by the accused acknowledging the remainder of the unexecuted punishment will be completed upon the end of the stay. For the purpose of computing the amount of punishment already served, any portion of the 24-hour day served before the stay is issued or after the accused returns from the stay will count as one full day.
Punitive letters – These punishments, if unsuspended, take effect when imposed at the nonjudicial punishment proceedings. If suspended, and the suspension is later vacated, these punishments take effect for all purposes on the date the suspension is vacated. If, subsequent to the imposition of a punishment of forfeiture of pay and prior to the execution of this punishment, an accused absents himself without authority,
0114 punitive censure
General – "Censure" is a statement of adverse opinion or criticism of an individual's conduct or performance of duty expressed by a superior in the member's chain-of-command. Censure may be punitive or nonpunitive. See section 0105 regarding nonpunitive censure. The issuance of punitive censure resulting from nonjudicial punishment may be disclosed to the command in accordance with section 0115. Commands considering public disclosure should consult the legal advisor and public affairs officer in their chain of command. See section 0105(b)(4) for full discussion of senior official and public disclosure.
Admonition – Admonition is a form of censure intended to express adverse reflection upon or criticism of a person’s conduct. Admonition imposed as nonjudicial punishment is considered punitive. Punitive admonition imposed on enlisted persons may be either written or oral. For officers, punitive admonition must be in writing.
Reprimand – Reprimand is a more severe form of censure than admonition. A reprimand issued as nonjudicial punishment or awarded at court-martial is punitive. Punitive reprimand imposed on enlisted persons as nonjudicial punishment may be either written or oral. For officers, any punitive reprimand must be in writing. See R.C.M. 1003 for reprimands awarded at court-martial.
Issuing authority. When an officer has committed an offense that warrants a punitive letter of admonition or reprimand, the officer who imposed nonjudicial punishment may issue the letter or refer the matter through the chain-of-command, normally to the superior GCMCA over the prospective addressee. The degree of severity and effect of a punitive letter increases with the grade of the officer who issues the letter.
Official records of admonition or reprimand – Unless withdrawn or set aside by higher authority upon appeal, punitive letters become part of the official service record of the member to whom they are addressed. The issuance of a punitive letter and the facts of the underlying offenses may be mentioned in the member's fitness report or enlisted evaluation and used to support a detachment for cause proceeding, relief of command, or any other administrative action on the part of the service concerned.
Internal departmental responsibility– Correspondence, records, and files in the DON that relate to punitive censure are personnel matters under the primary cognizance of the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate.
Content of letter of admonition or reprimand –
(1) General. A punitive letter issued pursuant to Article 15, UCMJ, may be imposed only for acts or omissions constituting minor offenses under the UCMJ, see paragraph 1e of Part V, MCM. The letter must set forth the facts constituting the offense but need not refer to any specific punitive UCMJ article, nor satisfy the drafting requirements of court-martial specifications. The letter should contain sufficient specific facts, without reference to other documents, to apprise a reader of all relevant facts and circumstances of the offense. General conclusions, such as "gross negligence," "unofficer-like conduct," or "dereliction of duty," are valueless unless accompanied by specific facts upon which they are based. A sample punitive letter is set forth for guidance in Appendix A-1-h.
(2) References. All punitive letters should refer to all prior proceedings and correspondence upon which they are based, applicable laws and regulations, including the MCM, and this section. Particular reference should be made to the hearing afforded the offender. Where applicable, the letter shall include a statement that the recipient was advised of the right to demand trial by court-martial in lieu of nonjudicial punishment and that such trial was not demanded. See Article 15(a), UCMJ.
(3) Classification. Specific details requiring security classification must be omitted from punitive letters. A letter issued as nonjudicial punishment shall be designated "For Official Use Only."
(4) Notification of right to appeal and right to submit statement. Punitive letters, except letters issued in execution of a court-martial sentence as described in section 0152, shall contain the following:
You may appeal this action to the next superior authority, the __________________ via [insert the official designation of the CO issuing the letter or, if the officer is the immediate CO of the offender, the official designations of the immediate CO of the offender and the officer issuing the letter] under the provisions of Article 15(e) of the Uniform Code of Military Justice, paragraph 7 of Part V, Manual for Courts-Martial, and section 0114 of the Manual of the Judge Advocate General. If you do not desire to appeal this action, you are directed to so inform the issuing authority in writing within 5 days after the receipt of this letter.
If you do desire to appeal this action, you are advised that an appeal must be made within a reasonable time and that, in the absence of unusual circumstances, an appeal made more than 5 days after the receipt of this letter may be considered as not having been made within a reasonable time. If, in your opinion, unusual circumstances make it impracticable or extremely difficult for you to prepare and submit your appeal within the 5 days, you shall immediately advise the officer issuing this letter of such circumstances and request an appropriate extension of time to submit your appeal. Failure to receive a reply to such request will not, however, constitute a grant of such extension of time to submit your appeal.
In all communications concerning an appeal of this action, you are directed to state the date of your receipt of this letter. Unless withdrawn or set aside by higher authority, a copy of this letter will be placed in your official record at Navy Personnel Command. You may forward within 15 days after receipt of final denial of your appeal or after the date of your notification of your decision not to appeal, whichever may be applicable, a statement concerning this letter for inclusion in your record. If you do not desire to submit a statement, you shall so state in writing within 5 days.
You are advised that any statement submitted must be couched in temperate language and shall be confined to pertinent facts. Opinions shall not be expressed nor the motives of others impugned. Your statement may not contain countercharges. Your reporting senior may note this letter in your next [fitness report] [performance evalu ation] submitted aft er this letter becomes final, either by decision of higher authority upon appeal or by your decision not to appeal.
Appeals – The following rules apply to appeals of punitive letters, in addition to those rules contained in paragraph 7 of Part V, MCM, and sections 0116 and 0117:
(1) A copy of the report of nonjudicial punishment shall be provided to the individual upon request except where the interests of national security may be adversely affected. A copy shall be made available to the individual for use in preparation of a defense or appeal. See section 0116 for similar rules concerning a copy of the record of an investigation or court of inquiry.
(2) In forwarding an appeal from a punitive letter, see section 0116, the officer who issued the letter shall attach to the appeal a copy of the punitive letter and the record of investigation or court of inquiry or report of hearing on which the letter is based. The appeal shall be forwarded via the chain-of-command to the superior authority to whom the appeal is made. The superior authority to whom the appeal is made may direct additional inquiry or investigation into matters raised by the appeal if such action is deemed necessary in the interests of justice.
(3) Appeals from a punitive letter imposed as nonjudicial punishment shall be forwarded as specified in section 0117.
(4) The standard of review for a punitive letter of censure will be that the language in the letter is "accurate and relevant to the offenses committed and the punishment imposed." The contents of the appeal must be couched in terms that are temperate and factual.
(5) Upon determination of the appeal, the superior authority acting on the appeal shall advise the appellant of the action taken via the immediate CO, with copies of the action to officers in the chain-of-command through whom the appeal was forwarded. The superior authority shall also return all papers to the commander who issued the letter.
Forwarding letter – Upon denial of any appeal, the lapse of a reasonable time after issuance, see section 0116, or upon receipt of the addressee's statement that an appeal is not desired, a copy of the punitive letter and other documents required by the Navy Personnel Command, together with the addressee's statement, a written declaration that he does not desire to make a statement, or a written declaration that a reasonable time after issuance has elapsed shall be forwarded to Navy Personnel Command (PERS-834 for officers or PERS-832 for enlisted). If the punitive letter is not sustained on appeal, a copy of the letter shall not be filed in the official record of the member concerned. The command issuing a punitive letter has the responsibility of assembling and forwarding at one time all the foregoing documents and of providing a copy of the forwarding letter for each via addressee.
Removal and set aside – Material properly placed in an officer's or enlisted member's official record may not normally be removed or destroyed.
(1) If a factual error or other reasons indicate that a punitive letter issued under Article 15, UCMJ, and filed in the addressee's official record, results in a clear injustice, the officer referred to in paragraph 6 of Part V, MCM, and section 0118, may set aside or remove or direct the set aside or removal of the punitive letter. Removal or set aside occurs by issuing a second letter to the officer or enlisted member concerned announcing the cancellation of the punitive letter and setting forth in detail the reason for cancellation.
(2) If a punitive letter is removed or set aside by a superior authority before a copy of the original of such letter is forwarded to the Navy Personnel Command or the Commandant of the Marine Corps, the punitive letter will not be forwarded and copies of the punitive letter will be removed from all files relating to the member and destroyed.
(3) If the removal or set aside occurs after a copy of the punitive letter has been forwarded, a copy of the letter of cancellation must be forwarded to Navy Personnel Command, as well as to any other addressees to whom copies of the punitive letter were forwarded. Upon receipt of the copy of the letter of removal or set aside, addressees will ensure that copies of the punitive letter are not be filed in or, if already filed, will be removed from the member's official record and destroyed. The order or letter of removal or set aside or a copy thereof must not be filed in the member's official records.
(4) If a punitive letter is filed inadvertently or by mistake of fact, such document may be removed only by Navy Personnel Command. In other cases, only the Secretary of the Navy acting through the Board for Correction of Naval Records may order removal of punitive letters and other documents in official records.
0115 announcement of disposition of nonjudicial punishment
Publication – Publication of nonjudicial punishment results is rooted in the reasonable belief that it serves to deter other members of the organization from committing similar offenses and that it has salutary effects upon the morale of the organization. Accordingly, COs may, if the interests of rehabilitation of the offender, good order and discipline, high morale, and perceptions of fairness so warrant, establish a policy whereby the disposition of nonjudicial punishment cases are announced. Announcement may be, for example, by any or all of the methods below.
Plan of the Day publication – The name, rate, offense(s), and disposition of the offender may be published in the plan of the day within one month of the imposition of nonjudicial punishment or, if the punishment is appealed, within one month of the date the appeal is denied, provided that the plan of the day is disseminated to military personnel only. If the plan of the day is disseminated to other than military personnel, nonjudicial punishment results may be published without the name of the accused.
Bulletin boards– The name, rate, offense(s), and disposition of the individual case may be posted within one month of the imposition of nonjudicial punishment or, if the punishment is appealed, within one month of the date the appeal is denied, on command bulletin boards for military personnel only. If command bulletin boards are accessible to other than military personnel, nonjudicial punishment results may be published without the name of the accused.
Daily formation or morning quarters – The name, rate, offense(s), and disposition of nonjudicial punishment cases may be announced at daily formations or morning quarters within one month of the imposition of nonjudicial punishment or, if the punishment is appealed, within one month of the date the appeal is denied.
Public censures – COs shall not issue public censures. Oral censures during Article 15, UCMJ hearings do not violate this provision.
Release to the public or media – Information on NJP will not normally be disclosed to the public under the Freedom of Information Act. This is because the public interest in the routine administrative disposition of employee misconduct rarely outweighs the individual's privacy interest in the matter. See SECNAVINST 5720.42 (series). In order to protect the personal privacy of individuals receiving NJP, commands receiving requests for individual NJP records should forward the request to their cognizant IDA with the recommendation that the existence of the records be neither confirmed nor denied, except when the requester is the individual upon whom NJP was imposed. In that situation, the request is processed under the Privacy Act. Otherwise, disclosure should only be considered when the events leading to the NJP are particularly newsworthy or the case involves a senior official. See section 0105b(4) for discussion of senior officials. In general, DON finds the public interest warrants disclosure of flag and general officers and senior executive service personnel in order to retain the public's confidence and trust in the integrity of the Department, the Navy and the Marine Corps. Similarly, resolution of misconduct involving commanding officers, executive officers, officers—in-charge, senior enlisted advisors and other personnel of lower rank or grade may also warrant release of information depending on their official position and the nature of the misconduct. In such cases, the fact of the award of the NJP, including a recitation of the charges, findings, and resulting punishment, may be disclosed to the public/media. If the award includes a punitive letter, the actual letter may not be disclosed without the consent of the individual receiving the NJP; however, the facts and circumstances underlying the letter may be disclosed. The determination to release information of NJP to the public must be made on a case-by-case basis by a flag or general officer in the chain of command upon balancing the public interest against the privacy interest of the individual. In these circumstances, commanders should consult with their staff judge advocate and public affairs officer. Publication of the results of NJP under this section are not considered to be a public censure.
0116 command action on nonjudicial punishment appeals
Time limit –
(1) In accordance with paragraph 7d of Part V, MCM, an appeal of nonjudicial punishment shall be submitted within 5 working days, excluding weekends and holidays, of the imposition of nonjudicial punishment, or the right to appeal shall be waived in the absence of good cause shown. In computing this appeal period, allowance shall be made for the time required to mail communications pertaining to the imposition and appeal of nonjudicial punishment. The appeal period commences to run from the date of the imposition of the punishment, even though all or any part of the punishment imposed is suspended. When a punitive letter is imposed, an appeal of nonjudicial punishment shall be submitted within 5 working days after the accused receives the letter.
(2) If it appears that good cause may exist which would make it impracticable or extremely difficult for the accused to prepare and submit the appeal within the 5-day period, the accused should immediately advise the officer who imposed the punishment why good cause exists and request an appropriate extension of time within which to submit the appeal. Upon receipt of such a request, the officer who imposed the nonjudicial punishment shall determine whether good cause was shown and shall advise the offender that an extension of time is or is not granted. Absent such a request for extension, the officer acting on the appeal shall determine whether good cause was shown in an appeal submitted more than 5 days after the imposition of the nonjudicial punishment.
(1) When the officer who imposed the punishment is not the accused's immediate CO, the latter may forward the appeal directly to the officer who imposed the punishment for forwarding under section 0117. Similarly, the action of the superior authority on appeal may be forwarded by the officer who imposed the punishment directly to the offender's CO for delivery. Copies of the correspondence should be provided for intermediate authorities in the chain-of-command.
(2) In any case where nonjudicial punishment is imposed on the basis of information contained in the record of a court of inquiry or fact-finding body, a copy of the record, including the findings, opinions, and recommendations, together with copies of endorsements thereon, shall, except where the interests of national security may be adversely affected, be made available to the accused for examination in connection with the preparation of an appeal. In case of doubt as to whether a national security interest would be adversely affected, the matter shall be referred to the Office of the Judge Advocate General (OJAG) (Code 30) for advice.
Contents of forwarding endorsement – The contents of the forwarding endorsement of the officer who imposed the punishment should normally include:
(1) Comment on any assertions of fact contained in the letter of appeal that the officer who imposed the punishment considers to be inaccurate or erroneous.
(2) Recitation of any facts concerning the offenses that are not otherwise included in the appeal papers. If such factual information was brought out at the captain's mast/office hours, the endorsement should so state and include any relevant comment(s) made by appellant at the hearing. Any other adverse factual information set forth in the endorsement, unless it recites matters already set forth in official service record entries, shall be referred to the appellant for comment, and he shall be given an opportunity to submit a statement in regard thereto or state that he does not wish to make any statement.
(3) As an enclosure, a copy of the completed mast report form (NAVPERS 1626/7).
(4) As enclosures, copies of all documents and signed statements that were considered as evidence at the nonjudicial punishment hearing or, if the nonjudicial punishment was imposed on the basis of the record of a court of inquiry or other fact-finding body, a copy of that record, including the findings of fact, opinions and recommendations, together with copies of any endorsements thereon.
(5) As an enclosure, a copy of the appellant's record of performance as set forth on service record page 9 (Navy).
0117 authority to act on nonjudicial punishment appeals
When the officer who imposed punishment is in a Navy chain-of-command – Any appeal from nonjudicial punishment in accordance with paragraph 7 of Part V, MCM shall, in the absence of specific direction to the contrary by an officer authorized to convene general courts-martial and superior in the chain-of-command to the officer who imposed the punishment, be forwarded to the Region Commander or to a subordinate commander authorized to convene general courts-martial and designated by the Region Commander for this purpose. When the cognizant Region Commander or a designated subordinate commander is not superior in rank or command to the officer who imposed the punishment or when the punishment is imposed by a CO who is a Region Commander or a designated subordinate commander, the appeal shall be forwarded to the officer authorized to convene general courts-martial and next superior in the chain-of-command to the officer who imposed the punishment. For mobile units, the Region Commander or designated subordinate commander for the above purpose is the Region Commander or designated subordinate commander most accessible to the unit at the time of the forwarding of the appeal.
When punishment is imposed within a joint command or unit –
(1) An appeal from nonjudicial punishment imposed by a joint commander shall, in the case of Navy personnel, be made to the nearest Navy Region Commander or to a subordinate GCMCA designated by the Region Commander for this purpose. However, when such Region Commander or designated subordinate commander is not superior in rank to the officer who imposed the punishment, the appeal shall, in the absence of specific direction to the contrary by the Chief of Naval Operations, be made to the Naval officer exercising GCMCA geographically nearest and superior in rank to the officer who imposed the punishment. If directed, or in the event that an officer cannot be found who is superior in rank to the officer who imposed the punishment, the appeal shall be made to the Chief of Naval Operations.
(2) In the case of Marine Corps personnel, an appeal from nonjudicial punishment shall, in the absence of specific direction to the contrary by the Commandant, be made to the Marine Corps general officer in command geographically nearest and superior in rank to the officer who imposed the punishment. If directed, or in the event that an officer cannot be found who is superior in rank to the officer who imposed the punishment, the appeal shall be made to the Commandant.
(3) In those cases in which both the officer who imposed the nonjudicial punishment and that officer’s immediate superior in command (ISIC) are from the Naval service, and that immediate superior commander has GCMCA, the appeal authority shall be that ISIC.
(4) An appeal from nonjudicial punishment imposed by an officer of the Marine Corps or Navy designated as a CO pursuant to section 0106 shall be made to the commander of the joint command who made the designation if such commander specifically so directs. In the absence of such direction, an appeal from nonjudicial punishment imposed by an officer of the Marine Corps shall be made to the Marine Corps general officer in command geographically nearest and superior in rank to the officer who imposed the punishment unless otherwise directed by the Commandant of the Marine Corps. Absent direction to the contrary from the joint commander, an appeal from nonjudicial punishment imposed by an officer of the Navy shall be made to the nearest Navy Region Commander or to a subordinate GCMCA designated by the Region Commander for this purpose. However, when such Region Commander or designated subordinate commander is not superior in rank to the officer who imposed the punishment, the appeal shall be to the Naval GCMCA geographically nearest and superior in rank to the officer who imposed the punishment.
Delegation of authority to act on appeals – Such authority may be delegated in accordance with the provisions of section 0106. An officer who has delegated his nonjudicial punishment powers to a principal assistant under section 0106 may not act on an appeal from punishment imposed by such principal assistant. In such cases and in other cases where it may be inappropriate for the officer designated by subsection a or b to act on the appeal, such fact should be noted in forwarding the appeal to the appropriate authority who may act on the appeal.
Rehearing after appeal – A superior authority, when acting on an appeal, may set aside a nonjudicial punishment due to procedural error that materially prejudiced a substantial right of the member on whom punishment was imposed, not amounting to a finding of insufficient evidence. The superior authority acting on the appeal may authorize additional proceedings under Article 15, UCMJ, to be conducted by the officer who imposed the original nonjudicial punishment, or his successor in command, with regard to those offenses for which the appellant received nonjudicial punishment in the original proceeding. Any punishment imposed during such additional proceedings may be no more severe than that awarded during the original proceedings, unless other offenses that occurred subsequent to the date of the original nonjudicial punishment hearing are included in the offenses for which punishment is imposed. An individual, whether or not attached to or embarked in a vessel, has no right to demand trial by court-martial for those offenses for which the rehearing was authorized, unless the appeal was granted on a claim pertaining to the validity of the accused's prior waiver of the right to demand trial by court-martial, but an individual who is not attached to or embarked in a vessel retains the right to demand trial by court-martial for any added offense that occurred subsequent to the date the nonjudicial punishment was set aside.
0118 suspension, mitigation, remission, setting aside, and vacation of suspension
Definition of "successor in command" – For purposes of Article 15, UCMJ, the term "successor in command" refers to an officer succeeding to command by being detailed or succeeding thereto as described in U.S. Navy Regulations (1990). The term is not limited to the officer next succeeding.
Authority to suspend, mitigate, remit, set aside – The nonjudicial punishment authority who imposes nonjudicial punishment, the commander who imposes nonjudicial punishment (unless no longer on active duty), or his or her successor in command may, under Article l5(d), UCMJ, and paragraph 6 of Part V, MCM, exercise the same powers with respect to the punishment imposed as may be exercised by the officer who imposed the punishment, provided that the punishment so affected and, in the case of mitigation, the punishment to which such punishment is mitigated, is one within the authority of such new commander to impose.
Interruption of probationary period – The running of the period of suspension of the punishment is interrupted by the unauthorized absence of the probationer or by commencement of proceedings to vacate suspension of the punishment.
Vacation of suspension – A commander or OIC may only vacate a suspension of punishment if a violation of the conditions of suspension occurs within the period of suspension. Before vacating a suspension, a commander or OIC ordinarily shall notify the service member and give that member the opportunity to respond. Although a hearing is not required to vacate a suspension, if the punishment is of the kind set forth in Article 15(e)(1)-(7), MCM, the service member should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate suspension of the punishment to present any matters in defense, extenuation, or mitigation of the violations on which the vacation action is to be based. The order vacating a suspension must be issued within 10 working days of the commencement of the vacation proceedings. The decision to vacate suspension of nonjudicial punishment is not appealable under paragraph 7 of Part V, MCM, but is a proper subject of an Article 138, UCMJ, complaint, see Chapter III of this Manual. If the reason for vacation involves additional misconduct punishable under the UCMJ, Article 31(b) rights should be read to the accused before the commander asks if the accused wishes to make a statement on his own behalf at the vacation hearing.
0119 RECORDS OF NONJUDICIAL PUNISHMENT
Records – The records of nonjudicial punishment shall be maintained and disposed of in accordance with the implementing regulations issued by Navy Personnel Command (PERS-4834). The form used for the Unit Punishment Book is NAVPERS 1626/7, S/N 0106-LF-016- 2636.
Report of officer misconduct –
(1) Report of misconduct prior to nonjudicial punishment – Navy officers. Navy officer misconduct must be reported to Navy Personnel Command (PERS-834). Navy officer misconduct shall be reported if:
(a) the suspect is in the grade of captain O-6 or above;
(b) the suspect is a commander in the grade O-5 with special court-martial convening authority; or
(c) in the judgment of the superior commander:
1. the incident in question may generate significant adverse publicity;
2. formal disciplinary action or a recommendation for administrative separation processing may result; or
3. other special circumstances warrant notification.
(2) Report of misconduct after nonjudicial punishment – Navy officers. Once the results of the nonjudicial punishment are final (i.e., the appeal process is completed or waived), a final report will be sent to Navy Personnel Command (PERS-4834). See SECNAVINST 1920.6 (series) and the Military Personnel Manual. If the officer imposing the nonjudicial punishment is not a general or flag officer, the letter report will be submitted via the first general or flag officer in the administrative chain-of-command. Fleet or Type commanders may require the letter report be forwarded through command channels. These required reports are separate and distinct from any reported nonjudicial punishment that may be contained in investigations or other correspondence. See the Military Personnel Manual section 1611-010 for the letter report requirements.
Report of enlisted misconduct –
1) Report of misconduct prior to nonjudicial punishment - Navy enlisted in paygrades E-6 through E-9. Consistent with MILPERSMAN 1616-040, report E-6 through E-9 misconduct prior to nonjudicial punishment if:
(a) the suspect is a Command Master Chief or Senior Enlisted Advisor; or,
(b) in the judgment of the superior commander:
1. the incident in question may generate significant adverse publicity; or,
2. other circumstances which require action by NAVPERSCOM concerning the member's status.
(2) Report of misconduct after nonjudicial punishment - Navy enlisted in paygrades E-6 through E-9. Once the results of the nonjudicial punishment are final (i.e., the appeal process is completed or waived), a final report will be sent to Navy Personnel Command (PERS-832) for all E-6 through E-9 cases, regardless of whether a pre-nonjudicial punishment report was previously submitted. See MILPERSMAN 1616-040 for the letter report requirements.