A military member, except under one circumstance, has the right to either accept NJP, or refuse NJP and demand trial by court-martial. The exception is for Navy and Coast Guard personnel assigned to a sea going command – they have no right to refuse NJP.
The decision to refuse NJP and demand trial by court-martial is one that must be well thought out, and preferably under the advice of an experienced military criminal defense attorney. If a misconduct allegation is resolved at NJP, the member will be subjected to punishment as authorized under Art. 15 of the UCMJ. A significant benefit of resolving a matter through NJP, if advisable to do so, is that a finding of Guilty at NJP is not a federal conviction and cannot result in a punitive discharge. However, if the individual did not in fact commit the misconduct as alleged, he must be prepared to be found guilty and be punished at the NJP – it is rare that the commanding officer will find the individual not guilty at NJP. If the individual is found guilty at NJP, there is also a strong likelihood, depending upon the subject offense(s), that the commander will order that the individual be thereafter processed for administrative separation, which could result in a discharge characterized as OTH (Other than Honorable).
By refusing NJP, and having the case referred to trial by court-martial, the service member takes the final disposition of the case out of the hands of the commander. Once charges are referred to either a Special or General Court-Martial, the disposition of the case is placed in the hands of a Military Judge, or court-martial members (jury). The accused will be protected at a court-martial by the procedural rights of due process of law and will have the benefit of the judge determining legal issues, such as what evidence is or is not admissible. If all goes well and the service member is acquitted of all charges, then he/she obviously made the right decision by refusing NJP and demanding trial by court-martial. However, the lawyer who provides legal advice as to the issue of accepting or refusing NJP, needs to ensure that the service member is fully aware that the military criminal justice system is far from being perfect – it is a fact that an individual who committed absolutely no misconduct can be convicted at a court-martial, be sentenced to confinement and be punitively discharged. That is a reality that is not unique to the military, we hear of false convictions happening frequently in the civilian criminal court system.
As a military defense attorney with many years of criminal law experience, I will always consider and address with my client another possible disposition if NJP is refused. On numerous occasions, I will advise my client to refuse NJP with the anticipation that the commander will be advised by his/her legal office that it would be prudent not to take the case to a court-martial, but to instead handle the case through administrative separation action. The basis of the advice of the legal office will likely be the fact that a court-martial will be a complicated process, take months to work its way through the process, as well as necessitating a significant expenditure of manpower and funding. It is rare that a court-martial can be completed in one day, and routinely takes several days to complete. If the case is handled at an administrative separation board, it will involve limited manpower, minimal if any funding, and be over in a day. For example – if I have a Navy Chief (E-7) who has popped on a urinalysis for cocaine, the command will routinely handle the case to NJP. If my client accepts NJP, he almost certainly will be found guilty, be punished and then be processed for administrative separation. Although my client can contest the subsequent administrative separation action, he would have already been found guilty at NJP, a fact that the board members would be made aware of. His/her board members will likely be from the same command, so the commander who found the Chief guilty at NJP is also the commander of the board members. I think you can see how that may be a tad bit difficult to negotiate – for the board members to find that the individual did not commit the offense of wrongful use of cocaine, they effectively are concluding that the commander, who is also their commander, made the wrong decision at NJP, and effectively undercutting the command’s urinalysis program. As you might expect, that may not work out too well.
However, if the command does as I anticipate by handling the case administratively rather than through a court-martial, my client walks into the board with no prior command decision of guilt and punishment. I can also stand before the board and assert that my client has protested his innocence since day one, and was willing to risk a court-martial conviction and the repercussion from the conviction to prove his innocence. The vast majority of administrative separation boards I have handled result in a finding of No Misconduct and my client is able to continue with his/her career.
As discussed, the decision to accept or refuse NJP, and demand trial by court-martial is one that requires the advice of a skilled defense attorney who has previously represented numerous clients in that situation.