Navigating post-nonjudicial punishment (NJP) actions is understandably confusing. It is important to handle modifications to punishment correctly at the command level to ensure compliance with servicemembers’ due process rights. Keep in mind that, for many actions, a command must have an articulated reason for changing the punishment, such as a demonstrated conduct improvement or a determination that the punishment resulted in clear injustice. If a valid reason exists, there are four courses of action that NJP authorities or their successors in command can take under the Uniform Code of Military Justice (UCMJ) Article 15, paragraph 6: suspension, mitigation, remission, and a set aside.
Suspension is delaying the execution of punishment for up to 6 months, on the condition that the servicemember not commit further violations of any punitive article of the UCMJ during the specified period. If the servicemember satisfies the condition, the punishment is never executed. Under UCMJ Article 15, paragraph 6(a), the NJP authority who imposed the punishment (or their successor) can unilaterally decide to suspend punishment. This can be confusing, because MILPERSMAN 1430-020 provides another mechanism for reinstatement or restoration in rate after being reduced by one pay grade at NJP. This MILPERSMAN section is sometimes interpreted as setting the additional requirement that a servicemember must initiate a suspension request, but this is not the case. Under the UCMJ, the NJP authority can initiate a suspension on their own without needing approval from the Bureau of Naval Personnel (BUPERS) or Personnel Support Detachment (PSD), and without receiving a servicemember request for reinstatement or restoration in rate. The main difference between Article 15 and MILPERSMAN authorities for reduction in rate is that Article 15 authority may only be used within 4 months after punishment, whereas MILPERSMAN authority may not be effected earlier than 6 months from imposition of NJP for rates E-2 through E-4, and 12 months for E-5 through E-6.
Mitigation means reducing the quantity or quality of a punishment. If a servicemember’s later good conduct or marked improvement merits reduction of punishment (or if punishment is deemed disproportionate), the NJP authority can mitigate at any point during the course of the punishment. The one exception involves reduction in grade, which must be mitigated to reduction in pay within 4 months after the date of execution. Also, keep in mind that punishment cannot be mitigated for a longer period than the punishment being mitigated. For example, 5 days of arrest in quarters cannot be mitigated to 10 days of restriction. Reductions can be mitigated to forfeiture of pay, but the combined forfeitures from the NJP and the mitigation cannot exceed the NJP authority’s maximum forfeiture amount.
Remission is the cancellation of any portion of unexecuted punishment. It is not as common as mitigation, but it applies in the same situations in which mitigation would be appropriate – good conduct or disproportionate punishment. The NJP authority or successor in command may remit punishment at any time, although the expiration of a current enlistment or term of service automatically remits any unexecuted punishment awarded at NJP.
Put simply, setting aside means acting as if the NJP never happened. It can be applied to the entire NJP, or just a portion of the punishment. The action is retroactive, meaning the servicemember is entitled to backpay. This rare course of action only occurs in cases in which the punishment has resulted in “clear injustice.” Often this occurs when newly-discovered evidence shows that the guilty finding was in error. The action of setting aside an NJP is governed by the UCMJ and MILPERSMAN 5812-010. An NJP set aside is initiated at the command level but a letter of notification must be routed to BUPERS. BUPERS then removes the NJP and all associated punishments from the servicemember’s record, and the servicemember is restored all property, privileges, and rights lost as a result of the NJP.
This brief rundown of post-NJP punishment adjustment options is just a starting point. If your command is considering action of this nature, consult your SJA for further guidance and clarification.
LT Kelley served as the U.S. Navy Support Facility Diego Garcia Staff Judge Advocate. He currently serves as the Deputy Judge Advocate General onboard USS DWIGHT D. EISENHOWER (CVN 69). He holds a BA from the University of Notre Dame and a JD from Notre Dame Law School