The manual for Courts Martial Notice and the impact on the accused

The Manual for Courts-Martial’s notice provision is clearly intended to give the accused an adequate opportunity to assess available options, ultimately leading to a decision to demand trial by court-martial or proceed under the nonjudicial punishment authority.  Part V, MCM, para. 4, V-2 to V-3 (2012).  The notice provision’s importance is highlighted by the impact on available rights to an accused who must decide on trial by court-martial or NJP proceedings.  Choosing to be subject to NJP authority, an accused procedural rights are less extensive than they would he if he/she elects to be subject to court-martial in which additional constitutional safeguards attach.  See Middendorf v. Henry, 425 U.S. 25 (1976).  In accordance with having to make this decision, the accused, prior to the NJP hearing, has the right to inspect all physical or documentary evidence the NJP authority “examined in connection with the case and on which the nonjudicial punishment authority intends to rely on in deciding whether and how much nonjudicial punishment to impose.”  Part V, MCM, para. 4(a)(1)(D), V-3 (2012), see also Sobczak v. United States, No. 09-189C, (C.C. 2010). 

In order to be in compliance with the statute and the MCM, the accused’s Commanding Officer is required to provide to him/her all evidence in which he relied upon to make his decision to impose NJP.  Part V, MCM, para. 4a(3) and 4c(1)(D), V-3 (2012). This noncompliance is not only a violation of the accused’s rights, but also it creates doubt concerning the observance of the requirement that the accused, at his/her hearing, be afforded the full opportunity to “present matters in defense, extenuation, and mitigation orally, or in writing, or in both.”  Part V, MCM, para. 4(c)(1)(E), V-3 (2012).