Incomplete justice: unintended consequences of military nonjudicial punishment.

• Author: Wilde, Marshall L.

1. INTRODUCTION II. ARTICLE 15 AS AN ALTERNATIVE FORUM TO COURT-MARTIAL III. SPECIFIC OFFENSES A. Domestic Violence 1. Protective Orders and Gun Possession 2. Lautenberg Amendment: Military Disposition versus Civilian Disposition 3. Repeat Offender Statutes 4. Domestic Violence Convictions in Civil Court 5. Two Practical Examples B. Driving While Intoxicated 1. Background: Driving While Intoxicated 2. License Suspensions 3. Recidivism Statutes 4. Civil Court Consequences C. Drug Offenses 1. Suspension of Driver's License 2. Federal Educational Financial Aid a. Benefits Administered by the Department of Education b. Benefits Administered by the Department of Veterans Affairs 3. Federal Housing Benefits 4. Temporary Assistance for Needy Families (TANF) and Food Stamps 5. Conclusion IV. RELUCTANCE TO PURSUE COURT-MARTIAL V. ARTICLE 15 AND CIVILIAN PROSECUTION: MUTUALLY EXCLUSIVE? VI. CONSIDERATION OF THE IMPACT OF DISPOSITION ON VICTIMS AND SOCIETY VII. LIMITATION OF ARTICLE 15 TO MINOR OFFENSES VIII. MITIGATION OF THE COLLATERAL EFFECTS OF NON JUDICIAL PUNISHMENT IX. CONCLUSION I. INTRODUCTION

   Commanders and judge advocates have long preferred resolution of misdemeanor-level misconduct (1) cases through the use of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) (2) over the more formal procedures of a court-martial or civilian criminal trial. However, since the passage of the UCMJ in 1950, Congress and state legislatures have created significant collateral consequences for convictions for misdemeanor offenses to better protect victims, the treasury, and society from the offender. (3) A military commander's decision to dispose of misconduct in an Article 15, rather than a formal proceeding, undermines the effectiveness of these consequences. Family violence assault, driving while intoxicated, and minor drug use or possession convictions in a civilian or military court all carry important collateral consequences for victims and society, reflecting the legislative interest in a more complete form of justice.

   This article first considers the nature of nonjudicial punishment as an appropriate forum and the problems attending disposition of particular offenses through Article 15. (4) We next explore the balance Congress struck in allowing nonjudicial punishment in the UCMJ, how that balance has changed over time, why commanders choose nonjudicial punishment over courts-martial, and why civilian, federal, and military courts do not generally prosecute members who have received nonjudicial punishment. (5) Finally, the article discusses commanders' considerations in deciding to offer non judicial punishment, including the authority for considering third parties and the nature of the misconduct, as well as steps commanders may take to ensure more complete justice in Article 15 proceedings.

2. ARTICLE 15 AS AN ALTERNATIVE FORUM TO COURT-MARTIAL

   Article 15 provides military commanders an alternative to court-martial for addressing "minor offenses." (6) Military legal scholars usually refer to the decision to proceed under Article 15 as a forum choice by the commander, but the subject of the Article 15 may object and demand trial by court-martial. (7) In essence, the decision by the commander and accused to proceed under Article 15 represents a form of alternative dispute resolution. The commander agrees to lower limits on punishment, and the accused agrees to summary proceedings in which the commander will ultimately decide his responsibility for the misconduct and punishment.

   While Article 15 proceedings dispose of the charges entirely in the overwhelming majority of cases, (8) the forum choice does not equally bind the commander and accused. In most cases, the initiating commander or a superior commander may set aside Article 15 proceedings in favor of court-martial proceedings or proceed to court-martial after completing the Article 15, (9) while the accused must accept the result of the proceedings, but for a limited right of appeal to the next higher commander. (10) The hearing itself occurs between the commander and the accused, sometimes in person and sometimes through the exchange of paperwork. (11) The accused may request, and the commander may opt, to make the proceedings semi-public by opening the Article 15 hearing to other individuals. (12) While the UCMJ does not specify a burden of proof in the Article 15 hearing, a broad consensus exists in the military legal community that the commander should apply the criminal "beyond a reasonable doubt" standard when reviewing the evidence to determine responsibility for the alleged conduct, since, in most cases, the accused could request a trial by court-martial where this standard would apply. (13)

   Nonjudicial punishment under Article 15 does not result in a conviction for the accused. (14) The Article 15 remains in the member's personnel file and later commanders or courts-martial may consider it. (15) For the purposes of civil consequences of a conviction, none of the military, federal, or state authorities consider an Article 15 equivalent to a criminal conviction. (16)

   Nonjudicial punishment came to exist as an alternative to formal court proceedings, with some safeguards analogous to those in court proceedings to ensure fairness. (17) Military practitioners and legal scholars have extensively debated the constitutionality of Article 15 and largely concluded that it represents a permissible balancing of the interests between the commander and the accused. (18) However, these decisions do not address whether nonjudicial punishment deprives the public and third parties of substantial justice, since legislatures had yet to enact most of the collateral consequences of convictions in the early years of the UCMJ. Critics of alternative dispute resolution fairly point out that the overuse of ADR can result in social injustice, since ADR focuses on private justice over public. (19) In particular, Article 15, as a compromise between commander and accused, can ignore the substantial interests of victims and the public in facilitating a negotiated settlement of the case.

   Commanders often have substantial interests in competition with those of justice and crime victims. Military members accepting nonjudicial punishment often remain in the military, giving commanders an interest in preserving their utility to the military. What happens when this interest conflicts with the interests of justice or the victim? Victims do not have a seat at the table in Article 15 proceedings. (20) Military policy does require that law enforcement personnel provide victims with certain information about the prosecution of a military member, but those rights do not extend to the right to provide input regarding the imposition of nonjudicial punishment nor notification of the results of a nonjudicial punishment proceeding. (21) In fact, as a nonpublic personnel matter, the Freedom of Information Act exempts records of nonjudicial punishment from public disclosure and the Privacy Act affirmatively prevents disclosure of certain information. (22) Current Department of Justice policy, espoused in the "Ashcrott Memo," discourages discretionary disclosures. (23) This policy overturned earlier Clinton Administration policy that promoted open government. (24) Further, Article 15 does not provide for restitution. (25) While victims enjoy substantial rights in court-martial proceedings, they have virtually no rights when a commander and accused have agreed to nonjudicial punishment proceedings. (26)

   Crime victims and society as a whole often gain substantial justice from the collateral effects of a conviction. (27) Most obviously, they may recover restitution or civil damages directly or indirectly from the criminal judgment. (28) In a domestic violence case, this judgment may serve as an important factor in determining child custody, and the judgment will prevent the assailant from possessing firearms. (29) In a drunk driving case, society may gain security from having a license suspension adjudged, or, in the case of an injury accident, the victim may obtain restitution through the criminal case. (30) Society as a whole may also benefit from these, as well as from the denial of certain civil rights and privileges to convicts. In particular, recipients of a bad conduct discharge, dismissal or dishonorable discharge will not receive substantial financial benefits from the Department of Veterans Affairs, preserving these funds in the Treasury. (31) Further, some drug convictions prevent the collection of financial assistance from the Department of Education and the receipt of certain other benefits administered by the federal government. (32) This article seeks to explore the ways the interests of victims and society suffer from the resolution of domestic violence, driving while intoxicated, and drug charges through nonjudicial punishment, as well as possible ways to remedy or mitigate these damages.

3. SPECIFIC OFFENSES

   The decision to dispose of misconduct through nonjudicial punishment has greater practical effects in certain categories of cases. Few people would argue that society suffers greatly from resolving chronic lateness or an AWOL incident through nonjudicial punishment, nor is a rational commander likely to attempt to dispose of a rape or murder case through nonjudicial punishment. However, in domestic violence, driving while intoxicated, and drug cases, nonjudicial punishment results in significantly different outcomes for victims, society and the Treasury than civilian prosecution or court-martial.

   1. Domestic Violence

      Resolution of domestic violence assaults through nonjudicial punishment fails to protect military family members from the future use of firearms by the offender and deprives them of the substantial advantages that a criminal judgment gives them in family court proceedings. While the military has made substantial progress in...