Editor comment sparked by an observer friend.
The ALNAV uses the term "military defense counsel." And notation that this ALNAV controls. However, the Manual of the Judge Advocate General (JAGMAN) has different language. (The JAGMAN is similar to AR 27-1 or AFI 51-201.)
Para. 0109.a. and other paragraphs says
"There is no right for an accused to consult with a lawyer before nonjudicial punishment; however, commanding officers are encouraged to permit an accused to so consult subject to the immediate availability of counsel, the delay involved, and operational commitments or military exigencies." (The effect of the Sailor not being allowed to consult with a lawyer is that the record cannot be used in aggravation at a court-martial.)
"If the accused elects to consult a lawyer, such lawyer may be a military lawyer, or a civilian lawyer obtained by the accused at his or her personal expense."
"Such advice to an accused from a military lawyer should be limited to an explanation of the legal ramifications involved in the right to refuse nonjudicial punishment. These legal ramifications are limited to areas such as: the accused's substantive and procedural rights at a court-martial as opposed to nonjudicial punishment; the respective punishment limitations; the potential uses of courts-martial convictions and nonjudicial punishment records at any subsequent trial by court-martial, or other judicial or administrative proceeding; and that acceptance of nonjudicial punishment may not preclude conviction for the same offense in other civilian jurisdictions. Providing these technical explanations regarding basic principles of military law, while confidential, do not, per se, establish an attorney client relationship, nor do they constitute an assignment of such a military lawyer as the individual's defense counsel or personal representative for purposes of nonjudicial punishment. Military lawyers making such explanations will guard against the establishment of an attorney-client relationship unless detailed by proper authority to serve as defense counsel or personal representative of the accused."
The prescribed rights advice form has the following.
"In order to help you decide whether or not to refuse nonjudicial punishment or to exercise any of the rights explained above should you decide to accept nonjudicial punishment, you may obtain the advice of a lawyer before any decision. If you wish to talk to a lawyer, a military lawyer will be made available to you, either in person or by telephone, free of charge, or you may obtain advice from a civilian lawyer at your own expense."
Interesting. Does the Sailor assigned to USS UNDERWAY that is in drydock at Norfolk Naval Shipyard, Newport News, VA, have the same "right" as a Sailor performing shore duty at NNSY?
Does the ALNAV intentionally or unintentionally mean that a person "embarked or assigned," who now can refuse NJP under certain circumances, may only consult with a military lawyer or military defense counsel?
And for our Coastie friends, will the Secretary DHS take this new question up?
Disclaimer: Posts are the authors' personal opinions and do not reflect the position of any organization or government agency.
-Current Term Opinions
Joint R. App. Pro.
Army Crim. L. Deskbook