The End of the Non-Judicial Punishment Refusal

The Military Justice Act of 2016 is set to be fully operational by 2018.  One provision of the act is that Convening Authorities will have the option to send certain low level offenses to military judge alone trials.  This provision will effectively make refusing Non-Judicial Punishment (NJP) all but obsolete except for in the rarest of cases.

For years, the NJP refusal,subsequently referred to a court-martial, has been military defense counsels’ bread and butter.

The typical fact pattern was this:

(1) servicemember is alleged to have committed some kind of minor misconduct;

(2) the servicemember is offered NJP and is sent to meet with a defense counsel for an NJP counseling;

(3) the servicemember refuses the CO’s offer of NJP; and

(4) in response the Convening Authority sends the case to a special court-martial.

Many times, the reason the servicemember refuses the NJP is because he/she realizes that because of insufficiency of the evidence, or jury nullification, or both, the case will most likely fail to meet the burden of beyond a reasonable doubt at a special court-martial.  Additionally, the servicemember realizes that if he/she accepts NJP, then being administratively separated with an Other than Honorable discharge is a likely outcome.  So the servicemember refuses NJP and at this point, the Convening Authority is caught in a bind.  There is a cardinal rule to offering NJP which all Convening Authorities are briefed on by their Staff Judge Advocates (SJA): never offer NJP unless you are prepared to send the case to a court-martial in the event of refusal.  But Convening Authorities disregard this sage advice time and time again, and when they do, they paint themselves in a corner.  The Convening Authority can either realize the mistake and elect to address the misconduct by another means such as a formal counseling, or they can push forward and roll the dice at a court-martial, which will most likely result in an acquittal.  And this result is all the more likely because most of these NJP refusals are assigned to the most junior and inexperienced prosecutors.  This is not meant to be an insult towards the prosecutors.  The fact is that they need to make their bones on cases where the stakes are low and NJP refusals are great for that.  But all of this will soon change once the Military Justice Act of 2016 is operating.

The Military Justice Act of 2016 will bring about significant changes in various areas of military justice.  However, arguably the most significant change, and certainly the most significant for purposes of NJP, is the Convening Authority’s option to send disposition of certain minor offenses to a judge-alone special court-martial.  The maximum penalty at this special court-martial will be 6 months confinement and no punitive discharge (bad conduct discharge) will be authorized, which is significantly lower than the jurisdictional maximum penalty allowed at a standard special court-martial.  While this may not seem significant on its face, its effect on NJP refusals will be huge.  What makes most NJP refusals worth the risk at courts-martial are the members (jury), because they will often accept creative arguments from defense counsel and acquit.  For example, in a standard drug pop case, defense counsel will often bring out through cross-examination of the government’s drug lab expert that regardless of the presence of a particular drug metabolite in the accused’s urine, the test results can never show that the use was “wrongful” or “intentional.”  This alone will often be enough for an experienced defense counsel to effectively argue that the government cannot possibly prove their case beyond a reasonable doubt since they have offered no evidence of wrongful use or intent.  The members do receive an instruction from the military judge that they can presume wrongful use by the mere presence of the drug metabolite in the accused’s system, but the number of acquittals shows that they are reluctant to convict on this alone.  This is just one example, but the important fact is that it is the members who make refusing NJP a viable course of action. However, this will all change when the Military Justice Act of 2016 is implemented because nearly all of these cases will be referred to a judge alone special courts-martial, and a military judge with significant experience as a defense counsel and/or prosecutor, and experiences serving as a judge, will likely find far more of these accused guilty.  The fact is that they know the instructions and how to apply them, they know common defense strategies, and they will likely apply the burden of proof differently than non-lawyer military members.  This is not to say they applying an improper standard; they are just applying it differently based on their experience.  What is “reasonable” doubt to a Staff Sergeant with no legal experience will be a very different thing than what is “reasonable” doubt for a judge.

The Military Justice Act of 2016 will greatly impact the viability of refusing NJP.  The current state of affairs where a Marine in most cases has at least a fifty percent chance of acquittal by refusing and going to court-martial will soon be a thing of the past.  The common advice at NJP counselings will be that a military judge will likely convict at a court-martial and months of brig time is a very real consequence.  In rare circumstances, where the evidence is weak, refusing NJP and facing a military judge alone court-martial will still be practical, but those will be outliers.

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