The Effect of Non-Judicial Punishment

Written by Matt Silverstein (’17) – Wake Forest School of Law Veterans Legal Clinic Student Practitioner 

An integral part of the military judicial system is its utilization of Non-judicial punishment to resolve many disciplinary issues.  This blog post will discuss how non-judicial punishment operates and why it should be taken seriously by members of the armed forces.

Non-judicial punishment is codified in Article 15 of the Uniform  Code of Military Justice (“UCMJ”).                           (https://www.law.cornell.edu/uscode/text/10/815)   Article 15 allows an officer to impose a variety of sanctions upon a service member under their command after the commanding officer has determined their guilt in the alleged offense.  (http://www.wood.army.mil/sja/TDS/article_15_fact_sheet.htm)   These sanctions can vary widely but usually involve the forfeiture of a certain percentage of pay for a period of time or confinement to quarters for a set number of days.  Non-judicial punishment is most often utilized to discipline soldiers for misbehavior that is relatively minor in scale.  Many of the behaviors that can be punished through non-judicial punishment can be prosecuted through court martial, but often a commanding officer has the discretion to offer non-judicial punishment in lieu of harsher sanctions.  In general, non-judicial punishments tend to be less harsh than punishments handed out by way of court martial, but in the setting of a non-judicial punishment a service member lacks the procedural protections that a court martial proceeding contains, as one is allowing your commanding officer, and not a jury, determine your guilt.

When a member of the military is offered non-judicial punishment in a disciplinary action, they can decide for themselves whether or not to accept this form of punishment.  They are fully able to reject it, which then can result in facing a court martial.  If you accept the non-judicial punishment, the record of the punishment can remain in your military file for up to two years, or permanently depending on your rank.  If the record is permanent, it can only be removed through an action to correct military records, which is often an expensive and time-consuming process.  Additionally, a record of non-judicial punishment may also subject you to being removed from the military itself.  As a result of its desire to downsize in recent years, the Army has instituted a Qualitative Management Program (“QMP”) to identify soldiers that it wishes to retain. (https://www.army.mil/article/153650/what_soldiers_should_know_about_the_qualitative_management_program)  The QMP program utilizes review boards that evaluate certain classes of non-commissioned officers to determine if they should be retained for future service in the Army.  Those with Article 15 non-judicial punishments are among those most vulnerable to being involuntarily separated from service.  If a service member is separated under these circumstances, they would receive an honorable discharge, but would lose the opportunity to continue their military service.

All of this simply serves as a warning to those who currently serve or are considering joining the armed services.  Non-judicial punishment is a fact of life in the armed services and, in many ways, may have a less severe impact in the immediate term in comparison to a court martial.  However, non-judicial punishments remain in service member’s military records and can adversely affect their ability to remain in the service.  Thus, service members should always be mindful of their behavior and be aware of the potential repercussions of certain kinds of decisions they make in the service that can expose them to this sort of discipline.