"Ei Incumbit Probation Qui Dicit."

Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Non-Judicial Punishment - Marines

Non- judicial punishment, also known as Office Hours in the Marines, is a disciplinary action authorized by Article 15 of the UCMJ (Uniform Code of Military Justice). While this does not constitute a criminal conviction, a permanent record may be left on the service record of the marine, depending on the level at which punishment is authorized and imposed. In addition to Part V of the Manual for Courts Martial, these non- judicial punishments for Marines are covered by the service branch's regulations. One important aspect to note with NJP is that the accused is protected legally to a far greater extent than when he is facing non- punitive measures.

Who can impose non- judicial punishment in the Marine Corps?

In the Marine Corps (as well as the Navy), non- judicial punishments can be imposed by an Officer in Charge (OIC). This term refers to the officer who has been designated as such by the flag officer who also wields the authority to carry out court martial procedures at that specific command. It is noteworthy that it is not the mere designation of Officer in Charge that authorizes NJP imposing powers.

When can non- judicial punishment be imposed?

Non- judicial punishment is a tool that higher officials wield to ensure that discipline and order are maintained in their command unit. Typically, minor offenses such as failure to follow traffic laws, sleeping while on duty or minor deviation from established regulations, are addressed through the imposition of such punishment. Part IV of the Manual for Court Martial outlines what offenses may be described in this way.

However, one must understand that the OIC may resort to NJP only if he believes that non -punitive measures will not suffice to make the accused understand the gravity of his offense or prevent the recurrence of such an offense. The commanding officer or OIC who is authorized to impose NJP takes a discretionary call on whether the accused has committed the offense and what kind of punishment he should be given.

Several factors are taken into consideration when determining if the offense is minor:

  • What is the nature of the offense
  • What are the prevailing circumstances at the time the offense was committed
  • The age, experience, rank, record and designation of the accused

Before imposing NJP, the OIC will also consider the consequences if the same offense is taken up at a court martial proceeding. In general, when the OIC believes that the offense does not warrant the permanent blemish on the record that a court martial will result in, he may opt for NJP instead provided the offense is minor enough.

What are the rights of the accused facing NJP?

To ensure that unjust and unfair imposition of non- judicial punishment is not condoned, the UCMJ also outlines the rights of the accused who is facing such action. The OIC has to ensure that the Marine is informed of the intent to initiate NJP proceedings against him, explain the reasons and also inform him of the evidence that indicates he has committed an offense.

The accused Marine has the right to refuse the punishment (although this does not mean that the accusation is dropped) and opt for a court martial procedure. He can opt to be present before the OIC determining the NJP and ask to examine the evidence that is being used to establish that he committed the offense. If any witnesses are being called to prove the offense, he can confront them as well. He can have witnesses called in his defense as well.

A spokesperson can accompany him and speak on his behalf to present his defense. The Marine can also explain why he committed the offense, if extenuating circumstances forced him to commit the act. He can also present facts to show why the punishment should be nullified or reduced owing to special circumstances. The OIC is duty bound to consider any and all information given by the accused and base his final decision on all of these facts.

What punishments can be given under Article 15 of UCMJ?

The OIC can impose different kinds of non- judicial punishment on the Marine depending on the nature and severity of the offense. It can range from confinement to quarters (max 30 days), restriction to specific limits (max 60 days), forfeiture of pay, extra duty, correctional custody, pay grade reduction or official reprimands.

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