NJP is the business of paralegals, trial counsel, and defense counsel. Chiefs of Justice and Staff Judge Advocates rarely get involved other than for general officer Article 15s. Watch for practices that might damage the system like having commanders offer waiver of counsel forms to Soldiers during the first reading.
- Trial counsel should review formal Article 15s. For example, look for limited use urinalysis serving as the basis for an Article 15. Remember, if the Soldier turns down the Article 15, you will own the problem. A few minutes up front can save days of trial preparation later.
- Soldiers turn down Article 15s for lots of reasons. The key for defense counsel is to communicate with the trial counsel right away. Hold on to the file and call the trial counsel to avoid the natural response by the commander to what might seem like a challenge to his or her authority. A few minutes up front can save days of trial preparation later and prevent the parties from becoming entrenched in their positions.
- One of the major reasons that Soldiers turn down Article 15s is that they do not trust this particular commander to fairly hear their case. Often, the Soldier will be facing issues that arose out of a conflict with the commander that now wants to impose an Article 15, and he or she may understandably feel that the commander will not give them a fair shake. If this is the case, the defense counsel should hold the file and call the trial counsel to see if the next higher commander could handle the Article 15 or if the case could go to a summary court referred by the brigade commander to an officer outside of the Soldier’s battalion (if the Soldier is an E5 or above).
- As a general matter, trial counsel should not charge offenses that were the subject of an earlier NJP – the Soldier gets a huge sentencing credit if you do. Likewise, defense counsel should normally seek Pierce credit for previous Art. 15s rather than seeking dismissal under R.C.M. 907(b)(2)(D)(iv).
- If trial counsel ensure that the record is properly completed and your office performs proper records maintenance, you should be able to admit the record of a previous Art. 15 (not related to current offenses) under R.C.M. 1001(a)(2). Defense counsel should nit- Nonjudicial Punishment (NJP) pick prior Art. 15s – pretty much any mistake in the record or in the maintenance of the record will keep it out of evidence.
- If the SJA is present during the Article 15 hearing given by the commanding general, should the Soldier’s trial defense counsel be present, too? It the trial defense counsel is not there, could there be a violation of U.S. Dep’t of Army, Reg. 27-26, Rules of Professional Conduct for Lawyers para. 4.2 (1 June 1992)? Or does the attorney-client relationship end after the Article 15 counseling? See generally , United States v. Kendig , 36 M.J. 291 (C.M.A. 1993); United States v. Mack , 9 M.J. 300 (C.M.A. 1980).