NONPUNITIVE MEASURES

0102 nonpunitive administrative measures generally

Definition of a commander – The JAGMAN uses the terms commander and commanding officer (CO) interchangeably. The term commander is defined in the Manual for Courts-Martial (MCM), Part V, paragraph 2, and in the U.S. Navy Regulations, Chapter 7. A commander includes the following officers: an officer empowered to convene general or special courts-martial; a commander of a joint command; an officer designated pursuant to U.S. Navy Regulation 0722; an officer designated as a commander of a separate and detached command pursuant to U.S. Navy Regulation 0723; and a commissioned or warrant officer exercising command.

Types of administrative measures – Commanders are authorized and expected to use administrative corrective measures to further the efficiency of their commands or units. See R.C.M. 306(c)(2), MCM (p. II-26). These measures are not to be imposed as punishment for any military offense(s). They may be administered either orally or in writing. They generally fall into three areas: extra military instruction, administrative withholding of privileges, and nonpunitive censure.

0103 extra military instruction

Definition – Extra military instruction (EMI) is defined as instruction in a phase of military duty in which an individual is deficient, and is intended for and directed towards the correction of that deficiency. It is a bona fide training technique to be used for improving the efficiency of an individual within a command or unit through the correction of some deficiency in that individual's performance of duty. It may be assigned only if genuinely intended to accomplish that result. It is not to be used as a substitute for judicial action (court-martial) or nonjudicial punishment (NJP), and must be logically related to the deficiency in performance for which it was assigned.

Limitations – EMI must be conducted within the following limitations:

(1) EMI normally will not be conducted for more than two hours per day.

(2) EMI conducted outside normal working hours should be conducted either immediately before or after the member’s workday. However, if the CO or OIC [as defined in JAGMAN § 0106(b) (p. 1-13)] determines military exigencies do not permit such an arrangement, they may direct EMI at a different reasonable time. Reserve component personnel on inactive duty training, however, may not be required to perform EMI outside normal periods of inactive duty training.

(3) EMI will not be conducted over a period that is longer than necessary to correct the performance deficiency for which it was assigned.

(4) EMI should not be conducted on the member's Sabbath.

(5) EMI will not be used for the purpose of depriving the member of normal liberty to which the member is otherwise entitled. A member who is otherwise entitled thereto may commence normal liberty upon completion of EMI.

(6) Authority to assign EMI that is to be performed during normal working hours is not limited to any particular grade or rate. It is an inherent part of officers' and non-commissioned officers' authority over their subordinates in connection with duties and responsibilities assigned to them. However, the authority to assign EMI to be performed during normal working hours may be withdrawn by any superior.

(7) Authority to assign EMI to be performed after normal working hours is vested in the CO or OIC. Such authority may be delegated, as appropriate, to officers and non-commissioned officers when authorized by regulations of the Chief of Naval Operations. See OPNAVINST 3120.32 (series).

0104 administrative withholding of privileges

Privilege – A privilege is a benefit, advantage, or favor provided for the convenience or enjoyment of an individual. Examples of privileges that may be temporarily withheld as administrative corrective measures are: special liberty; exchange of duty; special command programs; access to base or ship libraries, base or ship movies, or enlisted or officers' clubs; base parking; and base or ship special services events. It may also encompass the withholding of special pay, as well as commissary and exchange privileges, provided such withholding complies with applicable rules and regulations and is otherwise in accordance with law. In all instances, unless properly delegated, final authority to withhold a privilege, however temporary, must ultimately rest with the level of authority empowered to grant that privilege.

Deprivation of liberty – Deprivation of normal liberty as a punishment, except as specifically authorized under the UCMJ, is illegal. Therefore, except as the specific result of punishment imposed under Article 15, UCMJ, or as the result of the sentence of a court-martial, it is illegal to deny to any subordinate normal liberty, or privileges incident thereto, as punishment for any offense, or to take action which has the effect of denying a subordinate normal liberty (e.g. seizing an individual’s military ID card, except when taken temporarily to determine the appropriateness of taking lawful measures to deny liberty). Lawful deprivation of normal liberty, however, may result from other lawful actions such as authorized pretrial restraint, or deprivation of normal liberty in a foreign country or in foreign territorial waters, when such action is deemed essential for the protection of the foreign relations of the United States, or as a result of international legal hold restriction. Moreover, it is necessary to the efficiency of the Naval service that official functions be performed and that certain work be accomplished in a timely manner. It is, therefore, not a punishment when persons in the Naval service are required to remain on board and be physically present outside of normal working hours for work assignments that should have been completed during normal working hours, for the accomplishment of additional essential work, or for the achievement of the currently required level of operational readiness.

0105 nonpunitive censure - nonpunitive letter of caution

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 JAGMAN § 0114 (p. 1-23) regarding punitive censure. Censure does not include adverse comments in reports of fitness or performance evaluations, letters of instruction, or administrative remarks entries documenting factual matters such as counseling. Proper use of adverse matter that is not censure is governed by Department of the Navy (DON) regulations and applicable service directives, such as the Naval Military Personnel Manual.

Nonpunitive censure – Nonpunitive censure is provided for in R.C.M. 306(c)(2), MCM. Nonpunitive censure may be issued by any superior in the member's chain-of-command, and may be either oral or in writing. A sample nonpunitive letter is at Appendix A-1-a.

(1) A nonpunitive letter is not considered punishment; rather, the letter is issued to remedy a noted deficiency in conduct or performance of duty. The contents of a nonpunitive letter are not limited to, but may include the following: identification of conduct or performance of duty deficiencies, direction for improvement, language of admonishment, identification of sources of assistance, outline of corrective action, and the consequences of failing to correct the deficiencies.

(2) A nonpunitive letter will be kept a personal matter between the member and the superior issuing the nonpunitive letter. Other than Secretarial letters of censure (see section 0114a), the letter may not be forwarded to the Chief of Naval Personnel or the Commandant of the Marine Corps, quoted in or appended to fitness reports, included as enclosures to investigations pursuant to this Manual or to other investigations, or otherwise included in official departmental records of the recipient.

(3) The facts underlying a nonpunitive letter may be used to support a detachment for cause proceeding, for relief of command, or to support a negative endorsement. If the member submits a rebuttal to those facts alleging inadequate counseling or a failure to warn of deficiencies, a copy of the nonpunitive letter may be included in the correspondence forwarding the member's rebuttal. Under such circumstances, a nonpunitive letter may properly be included in the official service record of the member upon filing of the complete correspondence under the provisions of applicable service regulations. The fact of issuance of a nonpunitive letter may not be mentioned in a fitness report but the underlying facts may be included.

(4) The Department of the Navy has an obligation to ensure senior officials properly discharge the duties and responsibilities of government service. Public disclosure of significant departures by senior officials from expected standards of performance and conduct and the DON holding them accountable for such behavior instills public confidence in the institution and is consistent with principles of open governance. Proven wrongdoing of a serious and intentional nature by a high-level government official is of sufficient public interest to outweigh the privacy interest of the official. Less serious misconduct by lower-level agency employees generally is not considered of sufficient public interest to outweigh the privacy interest of the employee. In general, DON finds the public interest warrants disclosure of accountability action taken in cases of misconduct involving 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. The determination to identify an individual with specific wrongdoing meriting the more extensive release of information 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. Accordingly, in appropriate cases the fact of the issuance of the nonpunitive letter may be disclosed to the public/media. The actual letter may not be disclosed without the consent of the individual receiving the nonpunitive letter; however, the facts and circumstances underlying the letter may be disclosed. Similarly, the fact of counseling under the same facts and circumstances that is not documented with a nonpunitive letter may also be disclosed. Commands considering public disclosure should consult their staff judge advocate and public affairs officer in their chain of command.