Is military justice going soft? Why courts-martial, NJPs have hit historic lows | Military Times | militarytimes.com

With all the concerns in Washington these days about misconduct in the ranks, one might think the military justice system is swamped with unruly troops and commanders looking to crack down on them.

In fact, it’s just the opposite.

Across the force, the military is meting out far less punishment today than just a few years ago. It’s a hard-to-explain trend that has many military justice experts wondering whether commanders have lowered expectations for keeping troops in line — or simply gone soft on some forms of misconduct.

Over the 10 years from 2004 to 2013, data from the service judge advocates show:

■ Courts-martial have dropped about 50 percent.

■ Nonjudicial punishments are down about 25 percent.

■ Bad-conduct discharges have fallen by more than 60 percent.

And according to the Justice Department, the number of troops convicted of crimes and incarcerated in military prisons has shrunk by 35 percent.

Many legal experts say the across-the-board drop in punishments coming at the tail end of two long wars reflects a philosophical change in the way the military handles misconduct in the ranks, especially low-level misconduct. As commanders have grown frustrated with the time and resources required to press a full-blown court-martial, they are now more likely to simply kick troops out of the service quickly and efficiently through administrative channels.

via Is military justice going soft? Why courts-martial, NJPs have hit historic lows | Military Times | militarytimes.com.

Here’s some food for thought. I’d love to hear from the active duty types what their thoughts are.

Back in my day, court martial was pretty dang rare, and only for egregious offenses.  We had a soldier in my company tried at General Court Martial for negligent discharge of a weapon, because it lead to two very serious injuries. As I recall, he received an 18 month sentence.  We had another that was sent to GCM for a DUI resulting in a fatality, and if memory serves, he made a plea deal that resulted in something like a 2 year sentence.

Troops that came up positive for marijuana when I was on my first enlistment would invariably receive non-judicial punishment (from the Brigade Commander, who withheld NJP authority for that from his subordinates) and sent to 30 days at the on-post correctional facility for “corrective training” plus loss of a stripe and loss of pay. But they weren’t automatically tagged for admin separation. A few years later, generally the punishment was 45 days restriction, 45 days extra duty, loss of a stripe, and loss of two months pay, and a virtual certainty of an admin separation.

In spite of what you might have been conditioned to think in movies and TV, I never saw anyone receive NJP or courtmartial for insubordination. That was usually a matter for “kinetic counseling.”

5 thoughts on “Is military justice going soft? Why courts-martial, NJPs have hit historic lows | Military Times | militarytimes.com”

  1. Going to court martial is insanely slow. I have a dud who has committed a series of offenses since at least January of 13. He has continued to commit additional offenses until we finally got him approved for pre trial confinement. I have given him two field grade AR15s while awaiting court martial. I’m leaving the job and he is still there, drawing a paycheck, and the trial isn’t even scheduled yet. On another note, I give a fair amount of article 15s. Mostly for drugs. We also chapter out a lot of people but those separations don’t happen without civil or military punishment first. It is easy to kick out people, I would say too easy, and now leaders don’t invest the time in saving the small percentage that is redeemable.
    Anecdotally, I would have guessed that UCMJ was less prevalent in the old days, as we had other ways of dealing with problems back then. I also know that my companies come in to see me for FG punishment far more often than I ever went to see my Bn CDR.

    1. My observation of the old days (when I was in that would be the early 70s) is we did do things that avoided the Article 15 proceeding. Every now and again, there would be some AH that would do something stupid, like a CPO over me, and you would end up with the Article 15 proceeding starting.

      I was due to get off the ship at 1200 and in the rush I forgot to wind the clocks in the various ship spaces. Over the weekend a couple of them stopped and one man complained the QMC and he decided it would be a good time to make an example of one of us, for some reason or t’other. We got in front of the XO, the last step before the Captain and he thumbed through my record while I was braced in front of him (quite a good record too, I might add). He looked up and asked the Division Officer why he had me up for “Mast.” The DivO said the Chief ordered me written up, but that he thought it should have been handled int eh Division. He then turned to the PO2 and asked why I had been written up. He said he was ordered to do it by the Chief and that he thought it should have been handled in the Division. I was asked by the XO if I was going to do it again. I said that it was an oversight while I was in a rush, that I did what I was charged with and that I have every intention of not repeating the offense. The XO seemed taken aback and closed my service jacket with a soft slap and handed my record to the Personnelman in attendance and looked at the Division Officer and told him to take care of it in the Division. I was put through the drill and as I was leaving the XO’s stateroom, I heard him ask the Chief and Division Officer stay. I heard later the Chief got the roto-rooter treatment from the XO. That week the Chief put in for transfer to the Fleet Reserve. The XO was a Commander and gave the Chief the equivalent of a Field Grade reaming for the stupidity of wasting the XO’s, and potentially the CO’s time, for something so minor. I guess it helped that I said what I did, and that was a rarity among the people that end up on that path.

      Back then, if it could be taken care of without going to XO or CO, you did so. If you didn’t, then you suffered for it.

      I think I got 2 hours extra duty out of it and the DivO told me I was a bad boy and not to do that again. To have “chaptered” me for something like would have been regarded as a stupid waste. They had plenty of guys that could have been chaptered, but they tried to rescue them. If it got to the point of placing the guy in front of any level of Court Martial, then he was regarded as a loss and they would cut his throat, depending on what he did. There was one Special Court on Sylvania while I was aboard. Even then, such things were rare.

      I have to wonder if things are so bad in the services now that simply don’t want to expend the effort on anyone that skirts the edge. OTOH, some of the best people skirted the edge when I was young. When I was a dependent in Germany, the troops didn’t have a very high opinion of those that wouldn’t skirt the edge. It was almost a game, in fact, as one First shirt explained it to me.

  2. 1. On the Navy side, NJP has become a lethal instrument. What was once a very useful instrument in the CO’s toolbox– administering punishment to correct bad behavior of an otherwise useful and promising sailor is now fatal to that individual. NJP = no reenlistment. I watched my #2 of 12 PO1’s get ERB’d. My #1 shore sailor was denied reenlistment under Perform To Serve. Also, if you’re shore-side, sailor can refuse the NJP. If you don’t have enough for SpCM, you’ve got to go the admin proceeding route to get the cancer out.

    2. Courts Martial are a long slow, tortuous road that will consume your entire command tour. If NCIS or a doofus lawyer is on your side, you can watch them lose the case for you. Admin hearings are more likely to get the guy gone– you just have to swallow your pride and watch him walk with an honorable.

    3. Finally, if you look at the MCM (Appendix 3), there are provisions for crimes like fraud where the command can just chuck it over the fence to a federal prosecutor and it gets tried outside of the UCMJ. (e.g. sailor gooned up his travel claim). Clean and sanitary for the command because it gets the issue out of their hair, but destroys a fair hearing for a soldier/sailor who understood rule set “A” but gets prosecuted and sentenced under a completely foreign rule set “B”. I think it’s a complete cop-out by the commander to do this, but it sure is convenient; especially if you don’t want people poking around your command climate. Oh by the way, the sailor gets to pay for their own lawyer, pay all travel costs, etc. It’ll get a conviction if for no other reason it will financially break the defendant, guilty or not. They’ll have to plea out just to survive the ordeal. Standby all ye who are accused of sexual assault– you’ll be indefensible when Sen G. gets her way and those crimes end up in this chapter.

    So, recap my thoughts:
    a) NJP is fatal so no longer usable as a corrective tool,
    b) CMs are too torturous to pursue,
    c) You don’t have to use the UCMJ, you can punt it to the DA

  3. I actually DID receive NJP for “insubordination” technically Disrespect. I got it because the Gunny was neither large enough not confident in his abilities to administer a “kinetic counseling” . If he had attempted to do so I probably would have also been charged with assault!

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