NON-JUDICIAL PUNISHMENT - ARMY
The Uniform Code of Military Justice or UCMJ has provisions for punishments like court martial as well as non- judicial punishments. The latter are typically invoked under Article 15 when the objective is to maintain discipline in the army. Commanders are authorized to punish minor infractions using the UCMJ's non-judicial punishment provisions as the basis.
The kind of punishment imposed, its degree/ severity and the duration vary depending on several factors. Confinement on reduced rations, extra duty, pay forfeitures, correctional custody, pay detention and grade reduction may be meted out as non- judicial punishment if the commanding officer is satisfied that the accused is guilty of the alleged minor offense.
WHAT CONSTITUTES A 'MINOR OFFENSE'?
It is up to the commanding officer of the accused to make the final decision about whether or not the offense can be deemed to be 'minor'. Offenses that typically fall under this description are petty theft, destruction of government property, reporting late to the post, giving false information, falling asleep when on sentry duty or disobedience with respect to standard orders.
In accordance with para 1d(1), part V, MCM, 2008, use of non-judicial punishment is justified only when non- punitive measures are inadequate to address the offense committed by the accused army member. Immediate action is necessary when non- judicial punishment is being imposed to ensure that it is effective. In effect, the commander may resort to this kind of punishment when he has enough cause to believe that non- punitive measures will not have the desired deterrent, corrective effect on the soldier. He may also use non- judicial punishment as a form of correcting the soldier without damaging his record of service, which is inevitable if a court martial is conducted.
An important point to note here is that the imposition of such punishment does not bar a court martial from being conducted for the same offense since the commanding officer uses his discretion to term the offense 'minor'.
Any commander may impose non- judicial punishment unless:
- The regulation specifies otherwise
- A superior of the commander has restricted his/ her authority to do so
WHO CAN BE PUNISHED WITH NON- JUDICIAL PUNISHMENT?
All military personnel who are assigned to the organization under the command of a specific commanding officer, or affiliated in any way to such a command or who fall within the territorial command responsibility of the officer can be given non- judicial punishment under the UCMJ Article 15 provisions. The commander has to verify that the accused has actually committed the alleged act and that it violated a rule that the soldier was duty bound to obey, or it was against the UCMJ, Army Policy, Army Regulations, local law or any other lawful order.
THE PROCEDURE FOR IMPOSING NON-JUDICIAL PUNISHMENT
The soldier has to be notified about the imposition of the non- judicial punishment before it comes into force, right at the stage when it is being considered. He has a right to know what his alleged offenses are and also be given a summary of the evidence that indicates that he has committed the offense. He also has the right to be informed of all his rights in this respect before the proceedings start. The soldier has the right to refuse the non- judicial punishment, but this does not mean that the charges against him have been dismissed.
The soldier can enforce his right to be present when the commanding officer imposes the punishment. He can examine the evidence that is the basis of the accusation made against him and also present his side of the situation either on his own or through a spokesperson. If he so wishes, the soldier can also ask for the proceedings to be made public. For those who cannot or prefer not to make a personal appearance at the proceedings, a written representation can be made if the commanding officer agrees.
The procedure for appeal is outlined in para 3- 29 of the manual which allocates a time period of five calendar days for the soldier to protest against the punishment on the grounds that it is either unjust or disproportionate to the offensive act.
STATUTE OF LIMITATIONS
The accused army member must take note that a statute of limitations applies on non- judicial punishments. If a period of two years has already passed from the date of the alleged offense non- judicial punishment cannot be imposed. The UCMJ articles 43 (c) and (d) outline how this two year period is calculated. One aspect to keep in mind here is that there are some situations where the 2 year time limit may not apply. For example, when the soldier accused of the offense is absent from duty without the permission of his superiors, when he has been apprehended by civil authorities or when he is on the run from the law.