Despite What Your Lawyer Said, It Follows You

In the military, there is a misconduct adjudication process called Nonjudicial Punishment (NJP, also called an Article 15 after the corresponding section of the UCMJ). Typically for lower-level misconduct, it is a way for a military commander to adjudicate and punish misconduct in an expeditious manner, short of court-martial. Possible punishments include a loss of rank, loss of pay, freedom restrictions, and extra duties. The paperwork from the proceeding can also be filed in a way that prevents further advancement in the military.

It is not a conviction.

The servicemember’s commander acts as judge and jury.

Here’s the process, in a nutshell:

  1. Evidence of misconduct surfaces.
  2. The servicemember’s commanding officer reviews the evidence and consults with his/her JAG prosecutor. A decision is made to offer NJP.
  3. Servicemember (SM) is presented with the proposed NJP and all evidence that will be considered.
  4. SM consults with counsel (usually)(or a non-lawyer representative sometimes in the Navy or Marines).
  5. SM decides whether to accept NJP or demand trial by court-martial (unless in the Navy or Marine Corps and assigned to a vessel, in which case you’re just stuck with the NJP). For our purposes today, we’ll assume they decided to accept NJP.
  6. Commander reviews all relevant evidence (no rules of evidence apply to this proceeding) during a hearing at which the SM is usually present.
  7. SM presents evidence in defense, mitigation, and extenuation.
  8. Commander makes a decision as to guilt and punishment.
  9. SM can appeal the decision to the next-higher commander.

That’s it. It can take as little as a few days from beginning to end, or a few weeks if particularly complex.

For years, the boilerplate advice given to clients is that, if the evidence is decidedly against them, they should take the NJP because it will not follow them outside the military or result in a criminal record. After all, it is not a conviction (misdemeanor or felony) and is a purely military action.

Unfortunately, this is not entirely true. Department of Defense Instruction 5505.11 specifies that criminal information may be recorded for anyone who is investigated by military police/investigative entities and later adjudicated using nonjudicial punishment. In the military database, it is recorded as nonjudicial punishment with a listing of the specific punishment imposed.

This type of record is generated one of two ways:

  1. Individual is investigated by military police/investigators and titled in their database as a suspect.
  2. The servicemember’s commander chooses to impose NJP. Guilty. Punished.
  3. Results are reported back to military police/investigators who update their database accordingly.

or

  1. Command discovers misconduct. They are angry, very angry.
  2. They arrest the servicemember in question. (Yes, commanders and certain others have this authority by virtue of their military rank/position.)
  3. They take the accused to the military police station to be processed, fingerprinted, etc.
  4. Command later imposes NJP. Guilty. Punish.
  5. Command reports the result back to the military police who update their database accordingly.

While military folks understand the system and nature of punishment, databases are usually lacking in specificity. Something gets lost in translation when the military database synchronizes with NCIC (the National Crime Information Center (the big, national, FBI database in the sky)). See for yourself. In this case, the individual was caught using cocaine and given NJP (FYI, E-1 is the lowest enlisted pay-grade.

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This is precisely the type of information that is returned in a routine civilian background check by a potential employer. What would it tell someone who didn’t know or understand NJP?

Arrested. Court. Charge: Cocaine. Sentence (people are only sentenced when they are convicted, right?). No need to go further, this guy has a conviction for cocaine. Throw his job application into the trash.

Compare this with the records of someone who is actually convicted.

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To a person without specific knowledge of NJP, these two examples look the same. They both appear to memorialize conviction history. Yet, only one was an actual conviction.

While I often have problems with the punishment imposed on certain individuals, my gripe here is, first and foremost, about process. Right now, it is lacking. Badly.

The vast majority of uniformed defense attorneys advise that NJP does not follow a servicemember once they leave the military. This makes accepting NJP much more palatable. The servicemember relies upon this advice, accepts NJP, and moves forward to civilian employment and acquiescing to a background check with confidence.

As lawyers, we have a duty to give correct advice. Why? It allows our clients to make a fully informed decision, and the ability to do so is the foundation of the best possible defense. Yet, advice is given concerning NJP records again and again, year after year. And, it is dead wrong.

But, uniformed defense counsel are not the only culprits. Consider a purported retired Sergeant First Class from the Army who has the #1 Yahoo Answer to the question of whether NJP results in a criminal record:

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How about this military defense counsel who has been practicing law much longer than me? He proudly publishes his expertise on Avvo Answers (as a level 9 contributor, no less):

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At least partially in his defense, he is one of a handful of lawyers on Avvo who answered this question in the same manner. Wrong. Consistently wrong.

Of all the potential clients and clients who call me regarding an unexpected and shocking entry in their NCIC background results, 100% of them tell me they were advised that the NJP would not result in a criminal record. Their lawyer told them so.

Exacerbating their misery is the fact that the entry in NCIC is horribly misleading. Sure, the former service member can attempt to explain, but the damage has already been done. In an understatement of major proportions, the database system and link with military records is horribly flawed. Its purpose is to be a source of absolutely correct information, and it fails miserably.

My beginning response to clients is to paraphrase George Carlin.

“It’s all bullshit, and it’s bad for ya.”

Sadly, that’s the truth.

 

UPDATE

One thing I didn’t mention is that changing, correcting, or deleting NCIC records is an insanely difficult (and occasionally impossible) process. Today, over at Simple Justice, SHG discusses the difficulties faced by those who seek to correct and/or expunge their criminal records. It is further proof that, from the moment a person is arrested, it is not about whether they can win. It is about damage control.

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4 thoughts on “Despite What Your Lawyer Said, It Follows You

  1. Just a couple of points.

    • Navy, Marines, and Coast Guard assigned to a vessel are only required to accept NJP in lieu of a Court Martial if the vessel is underway or in a non US port away from homeport.

    •If the commander of the vessel is not an officer, but has had NJP authority delegated to him by his officer commander (common only in the Coast Guard), any NJP imposed while underway will not be held in a record unless it is confirmed by the officer commander on return to homeport. However, most enlisted Officer in Charge will use their discretion and wait until the vessel returns to homeport.

    • In the Army and Coast Guard, if the officer conducting the NJP is an O-3 or less, AND the service member is E-6 or less, AND the incident is not referred to the MPs, the incident will not follow you after reassignment.

    • As far as I know, there is no limitation to the time after the incident before the commander can initiate NJP, but it is highly unusual after the service member has transferred to another unit.

    • If the service member has a security clearance of any kind, the Defense Security Service will maintain a full record for 80 years. This record is available during the discovery phase of a court case, but only with a subpoena and only if the prosecution thinks to ask for it. Certain details of the offense may be redacted at the discretion of the DSS if they believe those facts may affect national security.

    •The last one is the real kicker, but few prosecutors ever think to ask, and the DSS never offers information without a subpoena.

    • Your points, in order:

      1. No. See Navy JAGMAN para 0108. It states:

      Right to demand trial. A person in the Navy or Marine Corps 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 in the armed forces
      who is attached to or embarked in a vessel does not have the right to demand
      trial by court-martial.

      It further explains:

      For purposes of this section, 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 courtmartial
      in lieu of nonjudicial punishment.

      In short, these three groups of people cannot demand trial by court-martial in lieu of NJP:

      A. Persons assigned or attached to a vessel via orders.
      B. Those aboard for passage.
      C. Those assigned or attached to an embarked staff or element.

      The vast majority fall under “A,” regardless of where the vessel is, as long as they are assigned or attached.

      2. I understand what you are saying, but I’m not seeing an authorization for NCO-imposed NJP in COMDTINST M5810.1E para 1.A.3. or the Manual for Courts-Martial.

      3. True, as far as military records are concerned. However, my post is about criminal records databases. They are two very separate, very different things.

      4. Was this a point of contention in my original post? Even so, the statute of limitations on NJP is 2 years from the time of the offense (excluding any time in which the accused is absent without authority). Subsequent commands, as with all commands, may decide to punish at their discretion.

      5. I’m not concerned with DSS in this post. That’s a whole different can of worms.

      6. Again, DSS isn’t something that has bearing on this post. Instead, my intent was to show how certain things that were briefed as not having a bearing on activities outside the military can have a huge impact.

      • Thanks for the correction. I’d never learn anything if I didn’t listen to people, like you, that know better. Now at least I know what not to tell someone who asks my opinion or advice.

        Great blog, love reading it.

      • As long as a retired NCO is reading this blog, I know I’m doing something right. If it weren’t for a particular now-retired Sergeant First Class, I wouldn’t even be a lawyer right now (and a few other things).

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