Up until now, a servicemembers could have expected their commanding officer to offer non-judicial punishment, or Article 15, if their commanding officer suspected them of UCMJ violations. However, starting in January 2019, the process will change. The 2017 National Defense Authorization Act created a new form of court martial for commanders to insure the good order of their ranks. The new tribunal cannot impose more than six months of confinement or award bad conduct discharge; cannot be refused by the servicemember; and, does not permit a jury trial. These changes have been made in the hope of trying misdemeanor-type offenses more efficiently. Because, of the lesser risk of punishment, and the potential for reducing administrative demands of the commands, this procedure is now being called a “short-martial.”
Previous Issue: Soldiers Refusing the NJP
When a servicemember’s misconduct was not considered serious enough to warrant a court martial in the opinion of his commanding officer, but did require harsher punishment than an administrative remark or reprimand, his superior could have offered him an Article 15, which he could then accept or refuse. In the past, many servicemembers were likely to refuse despite having committed the offense because it would likely force their commander to pursue alternatives like counseling rather than go through the hassle and overkill of an official court martial. If the commanding officer did decide to move forward with a court martial, the servicemember could always try to deal it back down to an Article 15, drawing the process out and wasting resources.
Current Solution: The Short Martial
The short martial saves the Government prosecutors hours of work by avoiding a jury, and reduces the amount of vagaries that can occur with a jury trial. Senior SNCOs and Officers will no longer need to be pulled from their regular duties to be part of a court martial, and trials will move along faster without breaks to argue what the jury should and shouldn’t hear. Also, having the trial decided by a military judge alone may provide more predictability and consistency of sentences for comparable offenses.
With no possibility of receiving a bad conduct discharge, and limitations on brig time, over-punishment is unlikely in a short martial, but a servicemember should know the resulting federal convictions are real and could have an impact on their future career in the military and beyond. Also, this additional tribunal for the commander may change the thought process of a servicemember when deciding on whether to refuse an Article 15, knowing there is no longer a guarantee they can have a jury of their peers to decide their guilt or innocence.
Military law is ever-changing and you need a court martial defence attorney who thrives on that change. Military Justice Attorneys are here to defend your rights in a court-martial or short-martial case. Give us a call at 844.334.5459 for a free consultation today.