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 - Navy

In the Navy, non- judicial punishment proceedings are known as 'Captain's Mast' or 'Mast'. The punishments are disciplinary in nature and they do not constitute a criminal conviction. Non- judicial punishment is authorized by Article 15 of the Uniform Code of Military Justice and its objective is to deter naval staff from/ punish them for committing minor offenses without impairing their service record. The general procedure to be followed in these situations is outlined in the Part V of the Manual for Court Martial. An important aspect to note is that the commanding officer may determine the accused naval staff's guilt based on a preponderance of evidence, using his discretion. Unlike court martial proceedings, it is not necessary for the offense to be proved beyond reasonable doubt.

The maximum punishment that can be imposed under non judicial punishment or NJP depends on various factors, including the rank of the accused naval staff and the officer who is in charge of the proceedings. NJP can take the form of pay forfeiture up to half a month's pay applicable over two months, a maximum of 60 days restriction to the vessel, confinement/ arrest to the quarters for a maximum of 30 days or reprimands. Extra duty, correctional custody, confinement on reduced rations are also punishments that can be imposed by the commanding officer if he is convinced that the accused is guilty of minor offense.

Who can impose non- judicial punishment in the navy?

Part V, para 2 of the MCM clearly defines the term 'commander' (interchangeably used with the terms 'commanding officer') as a commissioned officer exercising primary authority over a command- a specific territory or military unit. The commanding officer has the authority to impose non- judicial punishment upon the naval staff under his command. An Office in Charge (or OIC) or principal assistant who has been delegated the powers of a commanding officer or a joint commander also have the authority to impose non- judicial punishment upon the staff who are under their command jurisdiction.

However, the authority of any of these officers to impose NJP on subordinates may be restricted by his/ her superiors. Such restrictions cannot be imposed on a case to case basis although the restriction can be applied on certain categories of persons, certain types of cases and in certain types of punishment.

The rights of the accused

The accused naval staff has a right to be informed of the fact that non- judicial proceedings are being considered against him and also about the offense which he has allegedly committed. He also has the right to know about the evidence being used in the proceedings and to examine them when he makes a personal appearance before the commanding officer.

The accused should be notified of his right to refuse the NJP (provided he is not attached to or embarked on a vessel), in which case the case may be escalated to a court martial by the commanding officer. In some cases, the commanding officer may choose not to proceed with the case at court martial level in which case the proceedings are stopped.

The accused has the right to demand a trial through a court martial proceeding instead of the non- judicial punishment. However, this right is restricted in the case of naval staff who are on board a vessel or attached to a vessel. The commanding officer or OIC of all units attached to a vessel are restricted from imposing NJP as long as the unit is so attached.

When the accused accepts the non- judicial punishment proceedings, he or his representative can be present at the proceedings where he can hear the witnesses and present his side of the case. All of the information presented by the accused or his representative have to be heard by the commanding officer who is duty bound to make his final decision only after giving due consideration to all these facts. He has to be personally convinced that the accused did commit the offense before he can impose non- judicial punishment.

Appeal is permitted against the non- judicial punishment imposed if the naval staff believes that the punishment is unjust. He can also appeal against the punishment on the grounds that it is not proportionate to the offense committed or that the officer who imposed the punishment did not follow procedures correctly while imposing the non- judicial punishment. The appeal may result in the severity of the punishment being decreased, or the punishment being set aside entirely. The appeal may also be denied but under no circumstances can the punishment be increased.

If the accused does not have the opportunity to take legal counsel before the NJP is imposed, the record of the punishment cannot be used in aggravation if a court martial takes place at a later date in relation to other offenses. However, such record can be used in later court martial when the accused is attached to a vessel at the time of imposition of the NJP.

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