ALNAV 091/23

11/16/2023

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?

Cloudesley Shovell

11/15/2023 09:32:58

The biggest part of this order is the pre- and post-NJP consultation requirement.

Is a destroyer CO embarked with a carrier group going to have to wait to impose discipline until he can squeeze in a helo cross-deck for the carrier-embarked JAG to consult with some accused? Or wait until the next in-port period on deployment? Or are such measures not "operationally feasible"?

Swift disciplinary action using NJP and the vessel exception is an incredibly effective tool. I've personally seen it used on more than one occasion to punish offenses in less than one hour following the commission of the offense. It works really well. Chipping away at this effective tool seems unwise.

Kind regards,
CS

Philip D. Cave link

11/15/2023 09:42:13

"Admiral," as I read this change, the underway CO will not be affected by this change, nor do I think the pier side CO.

I think it is primarily directed toward COs with their vessel at places such as NNSY.

And I do agree that having to do a helo lift to an accompanying vessel to help that CO through a particularly thorny case can be time-consuming, but an interesting break from normal legal office operations--gives a different meaning to a VERT-REP (for Sailors, the pun is intended).

Cheers.

Cloudesley Shovell

11/15/2023 15:52:55

Mr. Cave,

Para. 3.b. of the ALNAV seems pretty straightforward. "Consultation Requirements. These apply to all Article 15 NJP proceedings including those in which the vessel exception applies." The follow-on commentary on not disturbing the military mission or safety would appear to create a pretty large loophole though for the underway vessel. (Nice pun, too!)

That being said, and on an entirely different note, I encourage one and all to visit the Royal Observatory in Greenwich, as I did last week. Wonderful museum with a great explanation of the finding of longitude by time, including all four of John Harrison's wonderful marine chronometers. They even have a portrait of me, explaining how those damn Scilly Islands and my unfortunate incident there led directly to the creation of the Longitude Act of 1714. They also note that those thieving locals stole my emerald ring!

Kind regards,
CS

Trial Counsel

11/16/2023 18:32:46

The Supreme Court long ago settled that there is no right to counsel at a summary court-martial. See Middendorf v. Henry, 425 U.S. 25 (1976). Granted, part of the Court's rationale rested on the notion that an accused can refuse a summary court-martial, whereas here, the NJP is forced on him. Regardless, that didn't seem to be key to the Court's analysis, which focused mainly on the fact that a summar court-martial is not a criminal proceeding.

Long and short, I see no legal problem with not allowing an accused to have access to a civilian lawyer *in addition to* a military defense counsel, especially where the military is now making it *harder* to NJP servicemembers at sea.

J.C.

12/4/2023 14:15:27

Interestingly, the proposed amendments to the MCM (https://www.federalregister.gov/documents/2023/10/19/2023-23115/manual-for-courts-martial-proposed-amendments) introduce a right to counsel at a SCM.

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ALNAV 091/23

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