When a service member is offered nonjudicial punishment under Article 15, the most important decision often comes before any hearing: whether to accept the NJP or turn it down. That single choice shapes everything, and helping a client make it wisely, then handling the proceeding, is the core of the attorney’s role.
The pivotal right: refuse and demand court-martial
In almost all cases, a service member has the right to refuse an Article 15 and instead demand trial by court-martial. The one major exception is a member attached to or embarked on a vessel, who generally cannot refuse.
This right is consequential because it changes the standard. At NJP, the commander decides the matter under a lower standard; by refusing, the member forces the government to prove its case beyond a reasonable doubt in a court-martial. That is a genuine strategic fork: NJP usually means lower stakes and a quieter resolution, while a court-martial carries higher risk but also the full protections of a criminal trial. Weighing that tradeoff for the specific facts is exactly where an attorney’s counsel matters most.
The right to consult counsel
Before deciding, the member generally has the right to consult counsel, though the details vary by service. Air Force and Army members generally have a right to consult a defense lawyer (including a civilian attorney at their own expense) before deciding whether to accept or refuse, with limited exceptions such as summarized proceedings; Navy, Marine Corps, and Coast Guard members may not have a formal right to consult but are often encouraged to. This consultation is the moment to get advice on the accept-or-refuse decision.
The proceeding and the appeal
If the member accepts NJP, the proceeding itself carries real rights, though it is non-judicial:
- The right to present evidence and call witnesses in defense.
- Note that because NJP is non-judicial, there is generally no right to have counsel present at the proceeding itself, even though the member could consult counsel beforehand.
- The right to appeal an Article 15 up the chain of command if the member believes the punishment was unfair or disproportionate.
Picture a member offered nonjudicial punishment on weak evidence: the attorney weighs whether to refuse it and demand a court-martial, which forces the government to prove the case beyond a reasonable doubt.
The key point is that Article 15 turns on a strategic choice. The member can usually refuse and demand a court-martial with its higher standard of proof, the right to consult counsel exists to inform that choice, and if NJP proceeds, the member can present a defense and appeal, which is the framework an attorney uses to protect the client.
Frequently Asked Questions
Can a service member refuse an Article 15?
In almost all cases yes, by demanding trial by court-martial instead; the major exception is a member attached to or embarked on a vessel. Refusing forces the government to prove its case beyond a reasonable doubt.
Is there a right to a lawyer at an Article 15?
There is generally a right to consult counsel before deciding whether to accept or refuse (details vary by service), but because NJP is non-judicial, there is usually no right to have counsel present at the proceeding itself.
Can NJP be appealed?
Yes. A service member who believes an Article 15 punishment was unfair or disproportionate may appeal it up the chain of command.
This article is general information about nonjudicial punishment. It is not legal advice and does not create an attorney-client relationship. Procedures vary by service and can change. A service member offered an Article 15 should consult a military defense attorney before deciding.
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