Military Law 101 – Courts-Martial

Posted by on Nov 23, 2015 in Uncategorized

The Uniform Code of Military Justice (UCMJ) provides for three different types of courts-martial: (i) summary; (ii) special; and (iii) general.  These forms of courts-martial differ in their make-up and in the punishments which may be imposed. The Military Rules of Evidence apply to all classifications of courts-martial.  And, like most criminal trials in State and Federal courts, the burden of proof that the Government must meet is guilt beyond a reasonable doubt. Summary Court-Martial A summary court-martial consists of only one commissioned officer, and may try only enlisted personnel for non-capital offenses.  The punishment which may be imposed depends upon the grade of the accused. In cases of enlisted members above the fourth (4th) pay grade, a summary court-martial may impose any punishment not forbidden by law, except: death, dismissal, dishonorable or bad conduct discharge, confinement for more than one (1) month, hard labor without confinement for more than forty-five (45) days, restriction to specified limits for more than two (2) months, or forfeiture of more than two-thirds (2/3) of one (1) month’s pay.  In the case of all other enlisted members, the court-martial may also impose confinement for not more than one (1) month and may reduce the accused to the lowest pay grade, E1. Similar to a NJP, the accused has the absolute right to refuse trial by summary court-martial.  The accused does not, however, have the right to representation by an attorney.  The accused does have the right to cross-examine witnesses, to call witnesses, to produce evidence, and to testify or to remain silent. Special Court-Martial A special court-martial consists of not less than three (3) members and a military judge, or an accused may be tried by a military judge alone upon request.  This type of court-martial is often characterized as a misdemeanor court, and may try all persons subject to the UCMJ, including officers, enlisted personnel, and, in some cases, civilian employees. A special court-martial may impose any punishment authorized under R.C.M. 1003 except death, dishonorable discharge, dismissal, confinement for more than one (1) year, hard labor without confinement for more than three (3) months, forfeiture of pay exceeding two-thirds (2/3) pay per month, or any forfeiture of pay for more than one (1) year. General Court-Martial A general court-martial consists of not less than five (5) members and a military judge, or an accused may be tried by a military judge alone upon request.  A general court-martial is often characterized as a felony court, and may try all persons subject to the UCMJ, including officers, enlisted personnel, and, in some cases, civilian employees.  A general court-martial may impose any punishment not prohibited by the UCMJ, including death, when specifically...

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Military Law 101: What is Non-Judicial Punishment (NJP)?

Posted by on Nov 12, 2015 in Uncategorized

Non-Judicial Punishment (NJP) is known by different terms among the services, e.g., “Article 15,” “Office Hours,” of “Captain’s Mast.”  In any case, the purpose of NJP is to discipline service members for minor offenses.  So the next question is: What is a “minor offense?”  Determining if an offense is “minor” is a matter of discretion for the commander imposing punishment.  Typical examples include: reporting late for duty, petty theft, destroying government property, sleeping on watch, providing false information, and disobeying standing orders. Although the actual punishments under an NJP offense are limited to confinement on diminished rations, restriction to certain specified limits, arrest in quarters, correctional custody, extra duties, forfeiture of pay, detention of pay and reduction in grade, the extent of these punishments depends on the grade of the officer imposing punishment, the grade of the accused, and whether the accused in attached to or embarked on a vessel. Prior to the imposition of NJP, an accused is entitled to notification of the following: (i) that the imposition of NJP is being considered; (ii) a description of the alleged offenses; (iii) a summary of the evidence upon which the allegations are based; (iv) that the accused has the right to refuse the imposition of punishment; and (v) any rights the accused has if NJP is accepted. Except for individuals attached to or embarked on a vessel, service members have the right to refuse the imposition of NJP.  However, refusal of NJP will normally not result in the dismissal of charges.  A commanding officer can still refer the charges to court-martial (stay tuned for an upcoming Blog about courts-martial). An accused has the right to a personal appearance before the officer imposing punishment.  During this appearance, the accused has the right against self-incrimination, the right to be accompanied by a spokesperson, the right to be informed of the evidence against him to present matters on his or her own behalf, and to have the proceedings open to the public. An accused may waive a personal appearance, if agreeable to the officer imposing punishment, and submit written materials for consideration by the imposition authority.  The Military Rules of Evidence, other than rules concerning privileges, do not apply to the imposition of NJP.  The officer imposing punishment may consider all relevant matters so long as the accused has been given proper notice and the opportunity to respond.  The burden of proof lies with the imposing officer and must be by a preponderance of the evidence. The accused may appeal the imposition of NJP on the grounds that it is unjust or disproportionate to the alleged offense.  The appeal must be in writing and forwarded to the next superior authority via the officer who imposed punishment.  The appeal must be referred to a judge advocate (JAG) for consideration and advice before the authority who is to act on it may make any...

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Dismissing Past Convictions (Expungement)

Posted by on May 19, 2015 in Uncategorized

Most people convicted of crimes in California are allowed to petition for dismissal of their convictions after their conviction or plea of guilty, pursuant to California Penal Code 1203.4 & 1203.4(a). In most circumstances, Cal. Pen. Code 1203.4 is used by individuals who obtained a probationary sentence for a felony or a misdemeanor.  Cal. Pen. Code 1203.4(a) applies mostly to those individuals who did not serve any probation for a misdemeanor or an infraction. However, some individuals are not eligible for a dismissal at all.  You are not eligible if your conviction was for one of a few sex crimes. You may not obtain a dismissal of old Vehicle Code infractions.  However, all misdemeanor Vehicle Code convictions, including driving under the influence cases, may be dismissed. Also, an individual sentenced to a term in State prison, even if that sentenced was suspended, may not obtain a dismissal.  Instead, former State prisoners should seek to vacate their conviction or seek a certificate of rehabilitation or a pardon. If an individual is eligible, they must first complete the entire term of probation along with all terms and conditions, or have been granted an early termination of the probationary period. Additionally, if restitution was ordered in your case, you must have paid the entire sum prior to obtaining relief.  However, the Court is required to grant a dismissal if the petitioner has fulfilled the conditions of his/her probation for the entire period. If you have a criminal conviction you think deserves to be dismissed, please call for a free consultation and protect your rights! 619-822-7332 @Pabstlaw #PabstLaw #esq4me #expungement #criminallawyer #criminalrecords #dismissal #conviction...

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