Non-judicial punishment has historically been used as a tool by commanding officers and generals to handle a range of misconduct, from order violations, DUI, fraternization, to even low-level sex crimes. It is rarely offered to resolve accusations of serious crimes, such as high-dollar fraud, rape, and aggravated assault.
As the accused or suspect, you have the right to know non-judicial punishment is being offered, be provided paperwork, which includes a description of your offense, and rights advisement. Unfortunately, many service members do not read or consider those rights being offered to them before they decide to accept. As the accused, you have the ultimate right to seek legal counsel before making the decision to accept or refuse NJP.
Should Accept or refuse?
There are many factors that go into this decision, such as how much time and grade does the service member have, the amount or quality of evidence, risk of courts-martial punishment, the severity of charges, whether there is more misconduct that has not been discovered by command, prior service, amount of deployments, EAS, collateral administrative consequences, is there mitigating or extenuating circumstances, pleading guilty or not.
However, the most important question you must first ask is: can I plead guilty to something I know I did not do? Whether you accept NJP or not is, largely, going to depending on this answer.
While NJP appears to often be a “safer” option for servicemen and women – and, it usually is – the fact is, it also strips away all of your Constitutional rights as the accused. For instance, the accused at NJP does not have a defense attorney, there are no Military Rules of Evidence, often the accused is not provided an opportunity to put on evidence in his defense. In these cases there is also a lower standard of proof—as guilt is determined by a preponderance of the evidence.
Bottom line is that, with few exceptions, the service member who accepts NJP will be found guilty of the charged misconduct regardless of what he states as his defense. Thus, the accused who accepts NJP, with the intent of later contesting the charges is usually a very bad strategy.
To combat this imbalance—which can result in forfeiture of pay and/or loss of liberty for up to sixty days—the accused may opt for a military lawyer who can help.
By abiding in the court-martial system, an accused party has the opportunity to gather the full amount of evidence through discovery, maintain his innocence, and have a professional legal voice behind them that can tell their side of the story. This gives you the opportunity to fight allegations and charges, that otherwise would be much more likely to be handed down by a commanding officer or general at NJP.