Once again, the United States Coast Guard has decided to branch out into new territory with its administrative separation policy, and further reduce the due process rights and protections afforded to Coast Guard members. Even before this latest change, Coast Guard members facing administrative separation already found themselves lacking many of the substantive rights and protections which were provided to their DoD brethren. As older examples, DoD service members become entitled to an Administrative Separation Board (Adsep Board) once they obtained 6 years of service. Coast Guard policy set that number at 8 years. When DoD service members face an Adsep Board, if the Board determined that no misconduct occurred (also referred to as a “no basis” finding), that finding is largely binding on the separation authority and the service, and the member usually must be retained. Not so in the Coast Guard. All “findings” of a Coast Guard Adsep Board, even the determination of no misconduct/no basis is advisory only, and the separation authority is free to discharge the Coast Guard member for misconduct anyway.
Separation Authorities in general are another unique policy irregularity in the Coast Guard. Within the DoD, most senior flag and general officers serve as their own separation authority and have the authority to determine separations of enlisted members within their chain of command. This authority usually attaches at the general court-martial convening authority level within the chain of command. Across all the services we see 1, 2, 3, and 4 star admirals and generals exercising general court-martial convening authority and in all services except the Coast Guard we see those same positions able to exercise separation authority for enlisted members. Within the Coast Guard, however, all enlisted separations are vested entirely to the Personnel Service Command (PSC) a one-star command, which is further delegated down to epm-1, a division of PSC with an O-6 serving as its office chief. Within the Coast Guard, this policy has effectively created a situation where the O-6 division chief of epm-1 makes all decisions on enlisted members’ retention or separation across the entire Coast Guard. This remains true even when a multi-star admiral is involved with other disciplinary UCMJ decisions regarding a given Coast Guard member. In this situation, the wishes of the admiral regarding retention or separation become subservient to the decision of the O-6 at epm-1.
One could spend many pages writing about all of the policy-based procedures within the USCG which differ from DoD. Perhaps one more worth mentioning surrounds the administrative separation of members who have been found Not Guilty by a court-martial. In large part, within the DoD, when an enlisted person is found Not Guilty by a court-martial the DoD considers that to be the end of the matter. There is no option to find someone “innocent” at a court-martial or any other criminal proceeding, but for the most part the DoD usually considers that to be the equivalent of a finding of innocence and policy largely prohibits any further punitive action, including processing the member for involuntary admin separation. Like other policies which tend to give some protections to the service member, the Coast Guard does not follow this policy and as a result, can, will, and does process enlisted members for separation for the same very thing they just stood trial for and were found Not Guilty. And, due to the Coast Guard policies discussed above, if they do not have 8 years of service, they will not even be entitled to an Adsep Board unless the Coast Guard is seeking an Other Than Honorable characterization of service.
The newest addition in the stripping away of rights for members of the Coast Guard is the deprivation of all rights to an administrative board for drug related incidents. This includes occurrences as common as testing positive for anything on a random urinalysis test. Before this change, historically members of the Coast Guard were entitled to Adsep Boards for alleged drug incidents just as they were for nearly any basis for separation if they had over 8 years of service or if the service was seeking an Other Than Honorable characterization of service. Now, only the Other Than Honorable entitlement to an Adsep Board remains.
To state the worst case scenario, you could be an active duty Coast Guard member with ANY amount of years of service, test positive on a drug test for anything, and you can have your retirement taken away without your case being heard and decided by a board. One might say, what good was a Coast Guard board anyway if it was entirely advisory? And the answer is, at least it was something. At least there was some process to attempt to give the member some procedural rights.
So you could have 19.75 years of service, test positive, and be kicked out of the USCG with no board? Its actually worse than that. The Coast Guard has no 20 year retirement safe-haven, vesting, or protections for enlisted service members that have hit this milestone. Unlike DoD, retirement is not a right earned at 20 years within the Coast Guard, rather you must apply to retire, however, the service is free to separate you for other grounds even if you have over 20 years of service, provided those grounds arguably exist.
No one is advocating that the military should have a service culture which promotes or excuses drug use. It is well known that in general all uniformed services have a “zero-tolerance” policy on drug use. The question, however, is inside the details of each service’s policy which seeks to address the extent to which each service wants to accept the reality that mistakes do occur. What kind of mistakes? Mistakes in the urine specimen collection certainly occur. Mistakes within the drug laboratory testing facility have occurred. Anyone who has been around military drug testing for any length of time has seen the drug laboratories have to mandatorily report errors. They have seen specimen samples reported incorrectly, and they have seen collection procedures conducted improperly. Along the same lines, with the legalization of marijuana at the state level across many locations where active duty serve, the opportunity for unknowing innocent ingestion is significant. The Coast Guard specifically has been undertaking efforts for years to have the laboratories lower their drug detection cutoff levels to an unreliably low level—one prior commandant even tried unsuccessfully to lower certain drug cutoffs all the way down to zero. Fortunately, many of those changes have been opposed by the DoD controlled labs.
In all military services, a finding of “drug abuse” or a “drug incident” can be made by the command based upon nothing more than a positive urinalysis drug test. In most instances, the command does not do a thorough review of the collection procedures, testing procedures, or other facts surrounding the positive result before they make such a finding.
Making a finding of a “drug incident” requires a degree of permissive legal fiction. This is because “drug abuse” or a “drug incident” legally requires the use of a controlled or prohibited substance to have been done knowingly and intentionally. The saving grace for the Government in these cases has long been the so called “presumptive inference” doctrine. Under the presumptive inference doctrine, a positive drug test alone can be sufficient evidence of a knowing and intentional drug use absent evidence to the contrary. The question then becomes, what forum, process, or procedures does the particular service entitle to the member to present their “evidence to the contrary.”
In all services, a positive drug test or other evidence of a drug incident is grounds for processing a service member for administrative separation. By and large, service policies require the commanding officer to process the member for separation unless the commanding officer is willing to make a written finding explaining why the situation was not a drug incident.
When a commanding officer initiates administrative separation processing service members have certain rights within that process. These rights depend on the particular service but they generally are controlled by (1) how long the person has been in the military, and (2) what type of characterization of service the command is seeking.
The rights due to the particular service member then involve some combination of the ability to consult with an attorney, the ability to have an attorney detailed to actually represent them, the ability to submit a statement on their behalf, and the right to full administrative separation board hearing. Often times junior service members who are not facing an Other Than Honorable characterization of service are not offered an attorney or the right to an administrative separation board. Any administrative separation process, no matter the rights or procedures involved is meaningful to the service member because it will determine whether they are able to remain in the service, and equally as important it will impact their eligibility for veteran’s benefits, future government jobs, and even civilian employment opportunities.
The army handles its drug offenses under the guidance of AR 600-85 the Army Substance Abuse Program (ASAP). ASAP directs those found to be using drugs to be subjected to UCMJ action or to administrative separation procedures. Any soldier who tests positive for illegal drugs is to be screened for a substance abuse disorder, then subject to any disciplinary action and considered for separation (AR 600-85 Chapt. 4-2 (J)). When going through the administrative separation process soldiers are entitled to have counsel during the process.
The Air Force considers drug use to be misconduct and the consequences can include UCMJ prosecution or administrative separation under less than honorable conditions. AFI44-121 Chap. 3 3.2 When an Air Force commander obtains information that a member under their command has engaged in drug abuse (such as through a positive urinalysis test) they are required to promptly begin the administrative discharge process or request a waiver, considering the circumstances around the situation. DAFI36-3211 7.43.4.1. A waiver of discharge is available if the commander thinks that in light of the totality of circumstances the service member should be retained. DAFI36-3211 8.58. Somewhat uniquely, Air Force policy also contains certain “retention criteria” such that an airman can be retained notwithstanding a proven drug incident if they meet certain criteria and retention is in the best interest of the Air Force.
The Navy and Marine Corps drug policy is provided in SECNAVINST 5300 28E. In the Navy and Marine Corps, any member found to be using illegal drugs will be subject to disciplinary actions and must be processed for administrative separation. SECNAVINST 5300 28E 4 (d). When sailors and marines are facing administrative separation, they may consult with legal counsel. If they have more than six years of service, they may request a hearing before an administrative separation board. In the Department of the Navy, when the CO believes that the circumstances of the situation warrant a classification of service as other than honorable administrative board procedures must be followed. MILPERSMAN 1910-146 (3)(a). The Navy policy thus entitled all sailors with 6 years or more of service to a board hearing, and all sailors with any amount of service to a board hearing when an other than honorable is a possibility.
The Coast Guard handles their separations through their separations manual COMDTINST 1000.4B. The policy manual lists drug incidents as a basis for separation. It states that members accused of drug incidents will face separation with a characterization of service no higher than a general discharge. A general discharge is considered to be an unfavorable characterization of service and in many circumstances will cause a loss of certain Veteran’s benefits. More troubling, however, under the newest policy change no Coast Guard member is entitled to a board hearing for an alleged drug incident unless they are facing a separation under other than honorable conditions. COMDTINST 1000.4B Q 2. D. (1). This newest policy change only compounds the already service friendly policy which did not entitle Coast Guard members to boards until they had eight years of service.
There are certain legal processes and challenges that can be made to the Coast Guard’s new policy. If you are in the Coast Guard and facing potential administrative separation for an alleged drug incident you may be a good candidate to challenge this new policy.
Contact our office today for a free consultation.
The Navy and the U.S. Coast Guard have traditionally fallen under the so called “vessel exception” to Article 15, UCMJ, Non-Judicial Punishment, colloquially called Captain’s Mast in the sea services.
When invoked, the vessel exception acts to deprive a servicemember facing Captain’s Mast of significant procedural rights—rights to which they would have otherwise been entitled. Most significant amongst those is the right to decline the Article 15 forum altogether, and to have the advice and counsel of an attorney to make that decision.
The declination of Article 15 is officially referred to as refusing or declining the Article 15 and demanding trial by court-martial. While most services’ paperwork uses that or similar terminology, the wording is misleading. One might infer from “demanding” trial by court-martial that the servicemember’s demand is binding on the service and the service must then oblige him or her with a court-martial. It is not. Ultimately, the “demand” of trial by court-martial operates as nothing more than a declination of Non-Judicial Punishment.
After a servicemember declines an Article 15, the Command retains all of the disciplinary and administrative options that they had before the declination, except for proceeding with the Article 15.
Throughout the history of Article 15, the limits of the so called vessel exception lacked any meaningful limitations. Because Article 15 proceedings are not directly reviewable by any court of law, military or civilian, this broad exception existed virtually unchecked.
By large measure, the only cases in which a prior Article 15 proceedings would gather attention by a military court would be when a military prosecutor would attempt to utilize a prior Article 15 record against a servicemember during a sentencing proceeding at a court-martial. In that situation, if the Defense objected to its admission, the military judge would have to ensure that the prior Article 15 was properly administered.
A few military cases existed on this issue. In 1992, the military’s highest court held that the Navy violated Article 15 when the USS KITTY HAWK was undergoing a long-term overhaul and was not in an operational status and yet the Navy utilized a provision of Article 15 which was only authorized for persons “attached to or embarked in a vessel.” The Court found that the statutory language in Article 15, UCMJ “attached to or embarked in a vessel” had a certain intent by Congress such that these limited exceptions were meant to apply to situations where a person was “at sea or about to go to sea” and not situations where a person is assigned to a vessel that is not remotely close to deploying or going to sea.
In 1997, the Court of Appeals for the Armed Forces reversed the Navy-Marine Corps Court of Criminal Appeals decision by holding that simple assignment to a ship did not make a person attached to a vessel such that they had no right to refuse NJP. In that case, the court alluded that a vessel undergoing long-term overhauls in the shipyard was not likely an operational vessel. The case was reversed and the trial judge was instructed to make additional essential findings of fact on the operational status of the vessel at the time in question.
Despite the existence of the above referenced military appellate cases where the misuse of Article 15 found its way into a few opinions, there was no binding authority to constrain the use of this broad exception. The only guidance on the issue was found in JAGINST 5800.7G, which advised commanders to consider the totality of the circumstances when considering whether a servicemember is attached to or embarked on a vessel. In practice, this general advice offered very little discouragement for commanders who sought to exercise the broadest authority possible.
It became quite common for any seagoing servicemembers who were simply by name or billet attached a vessel to fall under the “vessel exception.” This included those attached to vessels who were far from in an operational or deployable status. One often seen example was those who were assigned to a Navy vessel but that vessel was in the shipyard for major repairs or overhauls.
Our firm recently represented a client where the abuse of this process reached critical mass. Our client was forced to face Captain Mast without the right to decline the Article 15 due to the ancient vessel exception. In this particular situation, our client was attached to a vessel which had been in shipyard drydock already for 2 years for repairs, and was anticipated to remain in the shipyard for another 4 years before becoming operational again.
Our firm attempted to prevent the injustice before it happened by raising the legal issues to the command’s JAGs and providing the limited relevant military case law to them before the Captain’s Mast took place. Nonetheless, the command opted to press ahead with the Captain’s Mast without entitling our client to the rights he would normally have without invoking the vessel exception.
As is quite common at Commander’s Non-Judicial Punishment, our client was found to have committed the offenses and given punishment. We followed the prescribed NJP Appeal procedures and appealed the Commander’s decision to the NJP Appeal Authority. We also made notifications to other influential Navy decision makers advocating that the abuse of this exception needed to be curtailed.
After review our Appeal was granted and the servicemember’s Captain’s Mast was set aside. Alongside the granting of our appeal, the Secretary of the Navy also issued ALNAV 091/23 which as of 8 November 2023 now prohibits Navy commanding officers from invoking the vessel exception to NJP anytime their vessel is not in an operational status—including amongst other situations—when their vessel is undergoing shipyard repairs.
This was a historical win and a long needed policy change which will now give similarly situated servicemembers more a meaningful opportunity to exercise their full rights.
Whether the U.S. Coast Guard will follow suit and adopt a similar policy change is yet to be determined.
If you are facing a Captain’s Mast and your ship is not currently in a deployable operational status it is important that you consult with an attorney to fully understand your rights.
An Introduction to the Uniform Code of Military Justice
The Uniform Code of Military Justice (UCMJ) is a comprehensive legal framework that governs the conduct of members of the United States Armed Forces. Established in 1950, its primary purpose is to maintain good order and discipline within the military by providing guidelines for acceptable behavior and prescribing punishments for those who violate its provisions. The UCMJ operates within the Military Justice System, which is a separate entity from the civilian justice system, and has its own unique procedures, rules of evidence, and appellate structure.
The key difference between the UCMJ and civilian law is that the former addresses offenses committed by military personnel, considering the unique nature of military service and the need for strict adherence to rules and regulations. Some offenses under the UCMJ, such as insubordination, desertion, and failure to obey orders, have no direct civilian equivalent, while other offenses, like theft or assault, are common to both systems but may be treated differently due to the military context.
Punishments under the UCMJ can range from reprimands and fines to imprisonment, depending on the severity of the offense and the circumstances surrounding it. The system ensures military justice and discipline through a tiered structure of courts-martial, including Summary, Special, and General Courts-Martial, each with varying levels of authority and jurisdiction. Additionally, service members have the right to appeal their cases to higher military appellate courts, and ultimately to the United States Supreme Court, safeguarding their due process rights and ensuring a fair and just application of the UCMJ.
Changes in the Uniform Code of Military Justice
The world of military criminal law under the UCMJ is currently amid the most dramatic and significant changes in the history of military criminal justice. In the approximately 70-year history of the UCMJ, never has there been such dynamic and major statutory changes to the military justice system.
These changes in the UCMJ are the result of the Executive Order that President Biden signed in January 2022. The U.S. Congress, which creates and passes changes to the UCMJ via Title 10 of the United States Code, has passed comprehensive statutory changes which completely alter and reorganize how military justice in all the uniformed services will operate. There is only one goal behind these fundamental changes—to create more prosecutions and increase the conviction rates of those facing military court-martial.
It is no secret that Congress is making these changes to the UCMJ to increase the conviction rates in sexual assault and domestic violence cases, as well as other victim-centric offenses. In an effort to achieve these goals, Congress has altered the entire framework of military prosecutions.
Instead of the traditional command-centric, good order and discipline-focused system that has underpinned the military justice system since the 1950s, Congress has taken the decision-making authority away from military commanders for a vast majority of victim crimes and has provided the decision-making authority to appointed senior prosecuting attorneys from each service.
In conjunction with these major changes, other landmark changes are taking place. In the near future, if a service member is convicted at court-martial, instead of their sentence being decided by court members (a military jury), their sentence will be decided by a military judge alone. The intended effect of this major change is to increase the severity of sentences adjudged at court-martial.
Additionally, instead of the traditional framework where senior military commanders were the deciders for plea agreements, plea agreements will be determined by senior prosecutors. The anticipated result of this plea agreement authority change will be significant, as military accused persons can expect to have little to no consideration given by prosecutors for the quality and nature of their prior service.
Perhaps the most meaningful collateral effect of these dramatic changes to the UCMJ is taking place within each service surrounding how these new special prosecutor offices will be staffed. To meet Congress’s demands, each service is pulling many of their best and brightest trial attorneys to serve as “special trial counsel.” This includes removing many of each services’ most talented defense attorneys and converting them to serve as prosecutors.
Each service is beginning to staff these new special prosecutor offices during the Spring and into the Summer of 2023, with the system officially transitioning into the new special trial counsel model in January 2024. In contrast, the services are doing extraordinarily little in comparison to increase the effectiveness and resources of their military defense counsel.
With these vast prosecution-friendly measures that are being put into place, there has never been a more important time to be sure that you are represented by a competent and experienced defense attorney—one who is prepared to match the resource augmentation that is occurring in prosecution offices across the entire military.
Consult with Our Military Criminal Defense Attorneys
The attorneys at McCormack & McCormack have been providing military clients with personalized, aggressive, and results-driven legal representation since 1982. If you or a loved one in the service are facing criminal charges, our military criminal defense attorneys are here and prepared to help you achieve the best possible case results.
Contact our firm online or via phone at (757) 463-7224 to request a free consultation today.
On 29 June 2022, the Department of the Navy implemented a Safe-to-Report Policy for victims of sexual assault. [1] According to the press release, the new policy was implemented for the purpose of “eliminating a critical barrier to service member reporting of sexual assault.” [2]
Under the policy, a sailor, Marine, cadet, or midshipman who makes an unrestricted report of sexual assault through the Sexual Assault Prevention and Response Office or the Family Advocacy Program will not be disciplined for minor collateral misconduct. The Secretary of the Navy proclaimed that “Choosing to report a sexual assault is already a major decision for a survivor … It is a first step to accessing the services they need and the justice they deserve. Removing this barrier empowers victims and survivors — they should not have to choose whether to implicate themselves by reporting a crime committed against them.”
“Collateral misconduct” refers to victim misconduct associated with the time, place, or circumstance surrounding a sexual assault and is often discovered as a result of the report, investigation or prosecution of the sexual assault. Examples include:
- Underage drinking at or near the time of the sexual assault;
- An unprofessional relationship with the accused, i.e., a relationship that violated law, regulation, policy or custom, at the time of the sexual assault; and
- A violation of lawful orders establishing curfews, off-limit locations, school standards, barracks/dormitory/berthing policies, or similar matters at the time of the sexual assault.
As a civilian defense attorney who has defended numerous service members accused of sexual assaults, I am gravely concerned that this new policy may serve as a motive to submit false complaints of sexual assault. Throughout my career, I have encountered many cases where the alleged victim, for one reason or another, falsely claimed he or she was sexually assaulted. A sex assault case can be very difficult to defend and frequently involves an uncorroborated claim of sexual assault – no injuries, no DNA, no witnesses – nothing, but the accusation itself. The defense attorney needs to search for a motive for a false complaint – for example, the alleged victim is married and engages in a one-night sexual relationship with a sailor. If his or her spouse finds out, it becomes a question if the sex assault complaint is an effort to dodge the spouse’s accusation of adultery.
So now with the new policy – let’s look at an officer who has wrongfully engaged in a sexual relationship with an enlisted sailor under his/her supervision. If the sexual contact was consensual, it is a classic case of fraternization. Both the officer and the enlisted sailor have committed a violation of Article 92, Uniform Code of Military Justice, to wit: OPNAVINST 5370.2E, Navy Fraternization Policy. I would expect both individuals to face disciplinary and/or administrative action. However, under the new Safe-to-Report Policy, if the enlisted sailor falsely reports being sexually assaulted by the officer, the enlisted sailor is likely to be protected for his/her “collateral misconduct” of fraternization.
As noted in the press release, the commanding officers, in consultation with their servicing staff judge advocate, must assess whether misconduct was collateral to a report of sexual assault and if mitigating and aggravating circumstances exist. If after considering the circumstances, they determine that the collateral misconduct is minor, the victim shall not be disciplined.
If you are facing military sexual assault charges, the military criminal defense attorneys from McCormack & McCormack can defend your freedom and maximize your chances of securing a desirable outcome for your situation. To find out more about how we can help, contact our firm online or request a free consultation today.
In 2019, a significant change went into effect as to the procedures for Court-Martial trials by members (commonly referred to as a jury trial). Prior to 2019, a General Court-Martial trial by a panel of members consisted of no less than five officer (5) members, and a 2/3 vote of the members was required for conviction of any charge. Upon request of an enlisted accused, 1/3 of the court-martial members panel would be enlisted members, senior to the accused. As a result of the amendments to Articles 16 and 52 of the Uniform Code of Military Justice, a General Court-Martial trial by a panel of members now consists of eight (8) members, with the authorization to be reduced to seven (7) or six (6) members, if after empanelment, there are challenges or excusals. As before, upon request of an enlisted accused, 1/3 of the court-martial members panel must be enlisted members, senior to the accused. A 3/4 vote is required for a finding of Guilty.
Prior to 2019, if the accused elected to be tried by a court-martial consisting of a panel of members, the members would be required to determine the sentence if the accused was convicted and 2/3 of the members would have to agree on the sentence to be imposed (unless the sentence was for 10 years or more, at which time a 3/4 vote was required). After the 2019 change in procedures, the military judge imposes the sentence, however if members determined the issue of innocence or guilt, the accused has the right to have court-members determine the sentence. As before, the accused also has the right to request trial and sentencing by military judge alone.
MORE CHANGES COMING
Pursuant to the National Defense Authorization Act (NDAA-22), recently signed into law by the President, with the exception for capital (death penalty) cases, Court-Martial members will no longer impose sentences at a Court-Martial upon conviction for any offenses occurring on or after 27 December 2023. In addition, Military Sentencing Guidelines, similar to Federal Sentencing Guidelines currently in use in Federal District Court, will be implemented. As in Federal District Courts, the sentencing guidelines will be advisory, and not mandatory. If the military judge chooses to impose a sentence in excess of the range recommend in the applicable guidelines, or a sentence less than the sentencing guidelines, the military judge will be required to provide written basis for his exception to the advisory guidelines. If the accused and Government have come to terms on a Pre-Trial Agreement, the military judge will have the ability to reject the plea agreement if the agreed upon sentence is outside of the parameters set by the sentencing guidelines.
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.
For more information contact us today at McCormack & McCormack.
