LEARNING OBJECTIVES: Explain the procedure and the time limitations for NJP appeal. Identify and explain the contents of the NJP appeal package,
A member who is awarded NJP and who believes the punishment unjust or disproportionate to the offense has the right to appeal to higher authority.
The commanding officer is required to make sure the accused is fully advised of his or her right to appeal. Refer to part V, par. 4c, MCM, 1984, and JAGMAN, sec. 0110e. Figure 6-9 is an accused's acknowledgement of appeal rights that should be signed by the accused and witnessed in order to prove that the accused was informed of appeal rights. File this form with all the other papers in the accused's case file in the UPB.
A person punished under Article 15 may appeal the imposition of such punishment through proper channels to the appropriate appeal authority. If an offender is transferred before filing the appeal, the new CO should send the appeal directly to the officer who imposed punishment.
When the officer who imposed the punishment is in the Navy chain of command, the appeal will normally be sent to the area coordinator authorized to convene GCMs. A GCM authority superior to the officer imposing punishment may, however, set up an alternate route for appeals. Refer to the JAGMAN for more information on NJP appeals.
Appeals must be submitted in writing within 5 days of the imposition of NJP or the right to appeal is waived in the absence of good cause. The appeal period runs from the date the accused is informed of his or her appeal rights. Normally, this is the day NJP is imposed. When an appeal is submitted more than 5 days after the imposition of NJP (less mailing delay), the officer acting on the appeal determines whether "good cause" was shown for the delay.
If the accused can show that it would be impossible or extremely difficult to submit the appeal within the 5-day period, the accused should immediately request an extension of time from the officer who imposed the punishment. The officer imposing NJP determines whether good cause was shown and advises the accused whether an extension of time is permitted.
Request for Stay of Restraint or Extra Duty
A service member who has appealed may be required to undergo any restraint punishment or extra duties imposed while the appeal is pending. If action is not taken on the appeal by the appeal authority within 5 days after the written appeal has been submitted and if the accused has so requested, any remaining restraint or extra duties will be stayed until action on the appeal is taken. The accused should include in his or her written appeal a request for stay of restraint punishment or extra duties; however, a written request for a stay is not specifically required.
CONTENTS OF APPEAL PACKAGE
The appeal package will consist of the appellant's letter of appeal, the endorsement of the officer who imposed the NJP, and the response of the supervising authority.
The appellant's letter should be addressed to the appropriate authority via the commander who imposed the punishment and other appropriate officers in the chain of command. The letter should set forth the obvious features of the nonjudicial punishment (date, offense, who imposed it, and punishment imposed), and detail the specific grounds for relief.
There are only two grounds for appeal: the punishment was unjust, or the punishment was disproportionate to the offense committed. The grounds for appeal are broad enough to cover all reasons for appeal.
UNJUST PUNISHMENT.- Unjust punishment exists when the evidence is not sufficient to prove the charges; when the statute of limitations prohibits lawful punishment; or when any other fact, including a denial of substantial rights, calls in question the validity of the punishment.
DISPROPORTIONATE PUNISHMENT.- Disproportionate punishment is when, in the judgment of the reviewer, the penalty is too severe for the offense committed. When an offender believes the
ACCUSED'S ACKNOWLEDGEMENT OF APPEAL RIGHTS I, , SSN . (Name and grade of accused) assigned or attached to , have been informed of the following facts concerning my rights of appeal as a result of captain's mast held on a. I have the right to appeal to (specify to whom the appeal should be addressed). b. My appeal must be submitted within a reasonable time. Five days after the punishment is imposed is normally considered a reasonable time, in the absence of unusual circumstances. Any appeal submitted thereafter may be rejected as not timely. If there are unusual circumstances which I believe will make it extremely difficult or not practical to submit an appeal within the 5-day period, I should immediately advise the officer imposing punishment of such circumstances and request an appropriate extension of time in which to file my appeal. c. The appeal must be in writing. d. There are only two grounds for appeal; that is: (1) The punishment was unjust, or (2) The punishment was disproportionate to the offense(s) for which it was imposed. e. If the punishment imposed included reduction from the paygrade of E-4 or above, or was in excess of arrest in quarters for 7 days, correctional custody for 7 days, forfeiture of 7 days' pay, extra duties for 14 days, restriction for 14 days, or detention of 14 days' pay, then the appeal must be referred to a military lawyer for consideration and advice before action is taken on my appeal. (Signature of Accused/Date (Signature of Witness/Date)
Figure 6-9.-Accused's acknowledgement of appeal rights.
punishment is too severe, an appeal is made on the grounds of disproportionate punishment. A punishment may be legal but excessive or unfair considering circumstances such as the nature of the offense; the absence of aggravating circumstances; the prior record of the offender; and other circumstances in extenuation and mitigation.
STYLE OF LETTER.- The grounds for appeal need not be stated artfully in the accused's appeal letter, and the reviewer may have to deduce the appropriate grounds implied. Unartful draftsman ship or improper addressees or other administrative irregularities are not grounds for refusing to send the appeal to the reviewing authority. If you note any serious administrative mistakes, correct them in the
Figure 6-10.-SampIe NJP letter of appeal.
Figure 6-11.-Sample first endorsement to NJP appeal.
forwarding endorsement. Do not send the appeal back to the accused for redrafting; the appeal should be sent promptly to the reviewing authority. See article 1108, U.S. Navy Regulations, 1990, for more information on appeals. Refer to figure 6-10 for a sample of an accused's letter of appeal.
Contents of Forwarding Endorsements
All via addressees should use a simple forwarding endorsement and should not comment on the validity of the appeal. However, the exception to this rule is the endorsement of the officer who imposed the punishment. Section 0116c of the JAG Manual requires that this endorsement, shown in figure 6-11, should include the following information: . A comment on any matters of fact contained in the letter of appeal that the officer who imposed punishment considers inaccurate.
. Include also an account of any facts not otherwise included in the appeal papers. If such factual information was brought out at the mast, the endorsement should so state and include any comment made by the appellant. Any other adverse factual information stated in the endorsement that was not previously documented should be referred to the appellant for comment. . As an enclosure, a copy of the completed mast
report form (NAVPERS 1626/7). . As enclosures, copies of all documents and
signed statements that were considered as evidence at the mast or, if the NJP was imposed on the basis of the record of a court of inquiry or other fact-finding body,
a copy of that record, including the findings of fact, opinions, and recommendations, together with copies of any endorsements. . As enclosures, copies of the appellant's record of
performance as set forth on service record page 9, administrative remarks set forth on page 13, and disciplinary records set forth on page 7.
The officer who imposed the punishment should not, by endorsement, seek to "defend" against the allegations of the appeal but should, where appropriate, explain the rationalization of the evidence. For example, the officer may have chosen to believe one witness while disbelieving another witness. This should be included in the endorsement. The officer who imposed punishment may properly include any facts relevant to the case as an aid to the reviewing authority but should avoid irrelevant character assassination of the accused. Finally, any errors made in the decision to impose nonjudicial punishment or in the amount of punishment imposed should be corrected and the corrective action noted in the forwarding endorsement. Even though corrective action is taken, the appeal must still be sent to the reviewer.
Endorsement of the Reviewing Authority
There are no particular legal requirements on the content of the reviewer's endorsement except to inform the offender of his or her decision. Figure 6-12, section A, shows a sample response by a supervisory authority on an NJP appeal. A legally sound endorsement will include the reviewer's specific decision on each ground of appeal, the basic reasons for the decision, a statement that a lawyer has reviewed the appeal, if such review is required, and instructions for the disposition of the appeal package after the offender receives it.
The endorsement should be addressed to the accused via the appropriate chain of command. Where persons not in the direct chain of command (such as finance officers) are directed to take some corrective action, copies of the reviewer's endorsement should be sent to them. Words of warning or caution, if temperate in tone, are suitable for inclusion in the return endorsement of the reviewer.
Return Endorsement of Via Addressees
If any via addressee has been directed by the reviewer to take corrective action, the accomplishment of that action should be noted in that commander's endorsement. This endorsement should reiterate the steps the reviewer directed the accused to follow in disposing of the appeal package. These instructions should always be to return the appeal to the appropriate commander for filing with the records of his or her case. See figure 6-12, section B, for an example of this endorsement.
The last endorsement should be from the accused to the CO holding the records of the nonjudicial punishment. See figure 6-12, section C. The endorsement acknowledges receipt of the appeal decision and sends the package back for filing.