Can a military service member refuse to accept NJP?
Yes. Except for individuals attached to or embarked on a vessel, service members have the right to refuse nonjudicial punishment. If NJP is refused, a commanding officer has a number of options, including sending the case to court-martial or initiating administrative separation proceedings.
Should I accept or refuse NJP?The decision to accept or refuse NJP depends on the circumstances and requires careful thought, preferably with the assistance of an experienced court-martial lawyer. On the one hand, a guilty finding at NJP is not a federal conviction and will not result in a punitive discharge from the military. But, experience informs us that, more often than not, accepting NJP will result in a guilty finding. Thus, if a service member is actually innocent of the alleged crime, accepting NJP carries with it a significant amount of risk. Further, in many instances—depending on the nature of the charged offenses—a guilty finding at NJP is followed by administrative separation processing, which could result in an other than honorable discharge (OTH). On the other hand, refusing NJP may result in (1) immediate administrative separation processing or (2) a court-martial, where a service member could be convicted of a crime that they did not do and, among other things, sentenced to prison time and a dishonorable or bad-conduct discharge.
If I accept NJP and am found guilty, can I appeal?Yes. NJP appeals generally must be filed in writing within 5 days of the NJP being imposed. There are two grounds for appealing an NJP: (1) the punishment is unjust and (2) the punishment is disproportionate to the offense. Unjust punishment exists when the evidence is insufficient to support a guilty finding. Disproportionate punishment exists when the punishment is too severe.
What are my chances with an NJP appeal?As with most matters regarding the law, it really depends on the facts and all of the surrounding circumstances. However, experience reveals that most NJP appeals are unsuccessful. As a result, it is imperative that all options, advantages and disadvantages, and the consequences are fully understood before a final decision is made on whether to accept or refuse NJP. Seeking advice from an experienced court-martial lawyer is therefore highly recommended.