Ill. Admin. Code tit. 95 § 400.1215

Current through Register Vol. 48, No. 49, December 6, 2024

Section 400.1215 - Procedure

a) General. The authority to impose NJP charges a commander with the responsibility of exercising his or her authority in an absolutely fair and judicious manner. The commander's action must be temperate, just and conducive to good order and discipline.

b) Preliminary Inquiry. The commander of the alleged offender must ensure that the matter is promptly and adequately investigated. The preliminary investigation is usually informal and consists of interviews with witnesses and/or review of police/investigative reports, if available. The investigation should cover:

1) Whether an offense was committed;

2) The nature and circumstances of the offense; and

3) The age, maturity, experience and military record of the offender.

c) Initiation of Proceedings and Referral to Superior. A commander who, after a preliminary inquiry, determines that NJP proceedings may be appropriate, should consult with his or her Staff Judge Advocate for advice and assistance. NJP action should be initiated at the lowest level of command commensurate with the needs of discipline. If a commander determines his or her authority under NJP is insufficient to impose a proper punishment, the matter may be referred to a superior commander for initiation of proceedings (e.g., the offense may warrant reduction but the immediate commander does not have reduction authority). In such a case, all relevant documents shall be forwarded through command channels to the appropriate commander using NGIL Form 63-R (Request to Superior to Exercise Nonjudicial Punishment Authority). The superior commander shall either initiate the NJP action or refer the matter for other appropriate action.

d) Notification

1) The appropriate commander shall complete item 1 of NGIL Form 60-R (Record of Nonjudicial Punishment Proceedings) as follows:

A) State the allegation following the guidance provided by DMA and consult the appropriate Staff Judge Advocate for assistance. However, an NJP action remains valid even if the specification fails to include all the elements of an offense, provided that the member is reasonably informed of the nature of the alleged misconduct.

B) Inform the SMF member of his or her rights with respect to the NJP proceeding.

C) State the name, rank and duty title of the next superior commander.

D) Contact the appropriate Staff Judge Advocate or NGIL-JA for assignment of a military counsel to assist the member. At a minimum, the military counsel's name, rank and business telephone number shall be listed on the form, but his or her home addresses or telephone numbers shall not be included.

E) State the date and time at which the member must report to you to make his or her elections and presentation, if applicable. In this regard, the member shall be given a reasonable period of time to consult with counsel, to prepare his or her case, and to decide what rights noted under subsection (e) he or she shall exercise. The length of the decision period shall be determined by the notifying commander after considering such factors as the complexity of the case and the availability of counsel and witnesses. An NJP action may be initiated and completed within an inactive duty training (IDT) weekend if:

i) it is a noncomplex case, i.e., an uncontested case;

ii) the notifying commander ensures availability of counsel and witnesses; and

iii) the member is provided sufficient duty time to prepare his or her defense.

F) Sign in the commander's signature block. The signature of the commander is nondelegable.

2) The notifying commander shall personally notify the member of the initiation of NJP proceedings in accordance with DMA guidance. However, when circumstances prevent the commander from personally notifying and serving the NGIL Form 60-R on the member, or the notifying commander elects not to do so, the notifying commander may direct a subordinate who is senior in rank to the member to notify and serve the member. The commander or the subordinate, as appropriate, shall date and sign item 2 (proof of service) of the NGIL Form 60-R when the member is served. Regardless of who serves the member, a copy of the NGIL Form 60-R shall be given to the member at that time. If personal notification is impractical because of the member's unauthorized absence or other reason, the member may be notified by certified mail, and the commander shall document the reason for the service by mail in item 11 of the NGIL Form 60-R. The member also has the right to examine all statements and evidence upon which the commander intends to rely in arriving at a decision whether to impose punishment, and the type and amount of punishment to be imposed, unless those matters are privileged or restricted by law or regulation (e.g., Office of Special Investigation (OSI) or Criminal Investigation Command (CID) reports, classified information, etc.). In this case, NJP proceedings may proceed if the member's counsel has access to the records, or a summary of the information, for use in preparing a defense to the allegations.

3) The SMF member shall be informed of the maximum punishment that may be imposed under Appendix A if he or she is found guilty of the alleged offenses; however, the member is not entitled to be informed of the type or amount of punishment he or she will receive if NJP ultimately is imposed.

4) If a new commander takes command after NJP proceedings are initiated, but before the member presents his or her case to the imposing commander, a new NGIL Form 60-R shall be initiated by the new commander. Once again, the member shall be given a reasonable decision period in which to consult counsel.

5) When evidence of an additional offense or offenses arises following initiation of NJP proceedings, and before the member is notified of the punishment, a commander may:

A) Withdraw the initial NGIL Form 60-R and reinitiate NJP proceedings to include the additional offenses; or

B) Proceed with the initial NJP proceeding and create a second NGIL Form 60-R for the additional offenses.

e) Member's Election of Rights

1) The member has the following rights during NJP proceedings:

A) To remain silent and not make any statement concerning the allegations. However, if the member waives this right, any statements made may be used against him in the NJP proceedings or in any other proceedings.

B) To consult with appointed military counsel. The member is not entitled to request military counsel of his or her choice, but the member may consult with civilian counsel retained at the member's own expense.

C) To make a personal presentation before the next superior commander in lieu of presenting his or her case before the notifying commander. To fully present his or her case before the imposing commander in writing or in person, or both (subject to subsection (f)). This includes the right to call witnesses if determined reasonably available by the imposing commander, the right to present evidence, to be represented by a spokesperson (if reasonably available), and to examine available evidence.

2) The member has the right to consult with appointed military counsel (in person or by telephone) prior to making his or her elections under subsection (e)(1)(C). If necessary, the member or his or her counsel may request an extension of the time period stated in item 1 of the NGIL Form 60-R. Such a request should be in writing, stating the reasons for the request. The commander may grant an extension for good cause shown by the member or his or her counsel.

3) A member requesting a personal presentation before the notifying commander shall indicate that request in item 3 of the NGIL Form 60-R. The presentation shall be made at that time or at such time as the commander directs.

4) If the member requests a personal presentation before the next superior commander, the member shall so indicate in item 3 of the NGIL Form 60-R. The notifying commander shall forward all documents, statements and evidence to that commander. The next superior commander shall then review the information, collect any additional information he or she feels is necessary, and notify the member and his or her counsel of the date and time of the presentation.

5) If the member does not notify the commander of his or her decision within the specified time and does not request a delay, or if the member refuses to complete or sign item 3 of the NGIL Form 60-R, the notifying commander may continue the proceedings based on available information. If punishment is imposed, that information shall be recorded in item 4 (commander's decision) of the NGIL Form 60-R, along with the following entry: "Advised of his/her rights and (member failed to respond within the specified time) (member refused to complete and sign item 3)".

f) Member's Presentation

1) Following DMA guidance, the member shall be allowed to personally present matters in defense, extenuation or mitigation to the imposing commander, except when a personal appearance is prevented by unavailability of the commander or by extraordinary circumstances (e.g., the member is stationed at a geographic location remote from that of the imposing commander and cannot be readily brought before the commander). When a personal appearance is requested, but is not granted, the imposing commander shall appoint a commissioned officer who is superior to the member to conduct the presentation, and the member shall be entitled to make a personal presentation before that designated officer. The designated officer shall then prepare a memorandum summarizing the member's presentation and shall forward it to the imposing commander, along with all written matters submitted by the member.

2) The purpose of the personal presentation is to allow the member to present information to the commander in a manner that may be more effective or more persuasive than a written presentation. Formal rules of evidence are not applicable. The commander may consider any matter, including unsworn statements, that he or she believes to be relevant to the offense. The commander may ask questions to clarify facts or issues; however, the member's presentation is not an adversarial proceeding. The commander shall not present "government" witnesses or evidence, and neither the member nor a spokesperson (including any attorney present on behalf of the member) may examine or cross-examine witnesses, unless permitted by the imposing commander.

3) NJP presentations may be open or closed to members of the public at the discretion of the imposing commander. However, even when closed, the commander may have a member of his or her staff (e.g., the First Sergeant) attend the proceedings as he or she determines appropriate.

4) At the presentation, the member shall be entitled to:

A) Examine any relevant documents or physical objects on which the commander intends to rely in deciding whether to impose punishment or how much punishment to impose (subject to the limitations of subsection (d)(2)).

B) Be accompanied by a spokesperson provided or arranged for by the member. The member's spokesperson may be his or her appointed military counsel or civilian counsel retained at his or her own expense. However, the member has no right to legal counsel at the presentation, and the commander need not grant a delay for the appearance of any spokesperson if that person is not reasonably available, as determined by the commander.

C) Present relevant witnesses in defense, extenuation or mitigation who are reasonably available, as determined by the commander, and can be presented without legal process. To determine whether a witness is reasonably available, the imposing commander shall consider the fact that written statements are acceptable. Neither witness nor transportation fees are authorized to be paid. Reasonably available witnesses will normally include only personnel at the installation concerned, and those personnel whose attendance shall not unnecessarily delay the proceedings.

5) The imposing commander must carefully consider all matters submitted by the member in defense, extenuation or mitigation. If, after evaluation of all pertinent matters, the imposing commander determines that NJP is not warranted, the commander shall so indicate in item 4 of the NGIL Form 60-R, the member shall be notified, and the proceedings shall be terminated.

6) If, after evaluation of all pertinent matters, the imposing commander determines that NJP is warranted, the commander shall line out and initial the allegations, if any, that he or she determines the member did not commit. The commander shall then determine an appropriate punishment and complete item 4 of the NGIL Form 60-R, using the model punishment formats established by DMA. Whenever possible, the commander should impose NJP on the member in person. The commander may also counsel the member at this time concerning the misconduct. If appropriate, the commander shall refer the member to military or civilian agencies that can assist in resolving any personal problems that may have contributed to the misconduct. The commander shall then explain appellate rights and procedures to the member, following DMA guidance. The member shall complete item 5 (member's appeal decision) of the NGIL Form 60-R.

g) Appeals of Nonjudicial Punishment

1) General. A member may appeal an NJP action if he or she considers the punishment to be unjust or disproportionate to the offense. The member may appeal either the findings, the punishment or both. The member shall appeal through the imposing commander to the next superior commander, or to such other authority designated by the Adjutant General for NJP purposes. If the appellate authority is the Adjutant General, he or she shall act on the appeal in the cases of officers, warrant officers or enlisted personnel in the grades of E-8 or E-9. In all other cases, he or she may delegate the power to act on the appeal to the Assistant Adjutant General (Army) or to the Assistant Adjutant General (Air). All matters to be considered on appeal must be submitted by the member in writing, the member has no right to an oral presentation on appeal, and only one appeal is permissible under NJP proceedings.

2) Procedure for Submitting an Appeal

A) At the time the punishment is announced to the member, he or she shall be informed of his or her right to appeal and shall be directed to state whether he or she is appealing the commander's action. The member shall indicate his or her appeal decision in item 5 (appeal decision) of the NGIL Form 60-R. If the member elects to appeal, the member may request 10 calendar days to submit any additional written matters in support of the appeal. The commander may grant an extension of the 10-day period for good cause shown by the member or his or her counsel. If written matters are not presented to the imposing commander within the prescribed time, the appeal shall be sent to the appellate authority for his or her decision with a statement to that effect.

B) The member is not required to state the reasons for his or her appeal or to submit any written matters. However, if the member elects to submit written matters in support of the appeal, these matters must be presented initially to the imposing commander. They may not be presented directly to the appellate authority.

C) Punishments are not stayed pending final decision on an appeal unless no action is taken within 10 calendar days after the appeal was submitted. In that case, if the member requests, any unexecuted punishment involving restriction or extra duty shall be stayed until action is taken on the appeal.

D) If the member refuses to complete or sign item 5 of the NGIL Form 60-R, that refusal shall not be treated as an appeal. The commander shall process the NGIL Form 60-R as if the member declined to appeal and shall make the following entry in item 5: "Advised of punishment and appellate rights and member refused to (complete) (sign)."

3) Action by Imposing Commander. The imposing commander may take any action on the appeal that he or she deems appropriate, except that punishments may not be increased on appeal. The commander's action shall be indicated in item 6 (action on appeal) of the NGIL Form 60-R. The commander may suspend, mitigate, remit or set aside any part of the punishment. If the imposing commander grants the full relief requested by the member, the appeal is not forwarded to the appellate authority. In all other cases, the commander shall forward the appeal to the appellate authority, through the Staff Judge Advocate, along with all written materials considered in imposing the punishment. The commander may also forward appropriate comments addressing any matters raised by the member in his or her appeal, a statement of the commander's rationale for imposing the punishment, and a recommendation for action on the appeal.

4) Action by Staff Judge Advocate. The Staff Judge Advocate, or designee, shall advise the appellate authority as to the appropriateness of the punishment and whether the proceedings were conducted in accordance with the Illinois Code of Military Justice and this Subpart. The legal opinion may be either oral or written, and shall be documented in item 7 (review of appeal) of the NGIL Form 60-R.

5) Action by Appellate Authority. Action by the appellate authority shall be entered in item 8 of the NGIL Form 60-R. The appellate authority shall take action expeditiously, normally within 10 calendar days after the appeal was submitted. The appellate authority may conduct an independent inquiry into the case, if the appellate authority so desires, and the appellate authority may exercise the same powers with respect to the punishment as may be exercised by the imposing commander. After the appellate authority takes action, the member shall be promptly notified of the results and shall complete item 9 (member acknowledgment of appeal action) of the NGIL Form 60-R. However, if all punishment is disapproved, the entire action must be set aside and removed from the member's record. A final NJP action cannot consist of "no punishment".

h) Notification by Certified Mail

1) All NJP proceedings shall be conducted in person with the member, whenever possible, to ensure the member understands the proceedings and has a full opportunity to exercise all rights granted under this Subpart. However, if the commander determines the member is not reasonably available to conduct any portion of the proceedings in person, the member may be notified by certified mail of the following matters:

A) Initiation of NJP proceedings, if the commander or his or her designee determines that personal notification is impractical, and the commander documents the reason for service by mail in item 11 of the NGIL Form 60-R.

B) Additional NJP matters, such as date and time of the personal presentation, the member's punishment, the member's right to appeal, and action taken on the appeal.

C) Supplementary NJP actions under Section 400.2040. However, vacation of suspension proceedings shall be initiated in person unless the commander or his or her designee determines that personal notification is impractical, and the commander documents the reason for service by mail in item 7 of the NGIL Form 62-R (Record of Vacation of Suspended Nonjudicial Punishment).

2) In all of the situations described in subsection (h)(1), the commander shall annotate the appropriate items on the NGIL Forms 60-R, 61-R (Record of Supplementary Nonjudicial Punishment Action) or 62-R showing notification by certified mail. The certified mail receipts shall be forwarded with the applicable form.

Ill. Admin. Code tit. 95, § 400.1215

Adopted at 41 Ill. Reg. 11931, effective 9/14/2017.