UCMJ jurisdiction attaches to service members based on their status, not the identity of the commander who happens to be overseeing them at a given moment. When a soldier is transferred to a new unit, the question of which commander has authority to impose non-judicial punishment for conduct that occurred at the previous assignment is not always settled in the way the accused might expect. The answer turns on the timing of the offense, the timing of the transfer, and the specific NJP authority of each commander involved.
A service member who is offered NJP for events that took place before a transfer should not assume that the receiving commander lacks the authority to proceed. But the circumstances warrant careful examination, because there are procedural and jurisdictional arguments that may be available depending on exactly when and where the alleged conduct occurred and what the chain of command relationship was at the time.
How Transfer Between Units Affects Which Commander Can Impose NJP
The commander who holds NJP authority over a service member is the commander within whose jurisdiction the service member falls at the time the NJP is offered. When a service member is transferred to a new unit, the new commanding officer acquires NJP authority over that person from the moment the transfer is complete. The question that arises in pre-transfer offense cases is whether the receiving commander has the authority to impose NJP for conduct that occurred before the transfer, when the soldier was under the authority of a different commander in a different unit.
Military regulations permit commanders to impose NJP for offenses that occurred before a transfer, provided the offense is otherwise within the limitations period and no NJP or court-martial action has already been taken. The receiving commander’s authority is not limited to offenses that happened on their watch. However, the specific procedural requirements for NJP must be met regardless of which commander acts, and any jurisdictional or procedural argument that challenges the authority of the receiving commander to address conduct from a prior assignment is worth examining carefully in consultation with defense counsel.
Cases Where Jurisdiction Over Pre-Transfer Conduct Was Contested
Military courts and commanders have addressed NJP jurisdiction over pre-transfer conduct in cases that reveal a consistent principle: the receiving commander has general authority to impose NJP for conduct that occurred before the transfer when that conduct violated the UCMJ and the statute of limitations has not run. The authority to impose NJP is not limited to conduct that occurred while the soldier was under the specific commander’s authority.
Cases where jurisdiction has been contested successfully are those where procedural irregularities accompanied the NJP offer, where the delay between the conduct and the NJP offer raised fairness concerns that the reviewing authority credited, or where the conduct was intertwined with unit-specific dynamics that only the original unit’s commander could fully evaluate. These are not universal outcomes, but they reflect the fact that the receiving commander’s NJP authority, while real, can be challenged in specific circumstances.
Whether the Receiving Commander Can Investigate the Prior Unit’s Conduct
The receiving commander who is contemplating NJP for pre-transfer conduct may initiate their own investigation into what occurred, may review investigation reports completed by the prior unit, or may rely on documentation provided through the personnel transfer process. The commander is not limited to the prior unit’s conclusions and may form their own assessment of the conduct based on whatever evidence is available.
What the receiving commander cannot do is compel cooperation from individuals who are no longer under their authority, access records maintained exclusively by the prior unit without appropriate process, or ignore procedural requirements that apply to any NJP action. A soldier who believes the receiving commander’s investigation is proceeding on incomplete or inaccurate information has the right to provide their own account and documentation through the Article 15 process.
How to Respond to NJP for Pre-Transfer Conduct
A soldier offered NJP for conduct that occurred at a prior unit has the same procedural options available as in any NJP case: accept NJP and make a statement, request a personal appearance before the commander, submit written matters, or demand a court-martial. The choice among these options depends on the strength of the evidence the command has, the realistic range of NJP punishments available, and the relative risk of a court-martial on the same charge.
The pre-transfer context adds a dimension to this analysis. Evidence from the prior unit may be less accessible to both sides. Witnesses who are relevant to the defense may have transferred or separated. The passage of time between the conduct and the NJP offer may affect the reliability of the evidence the command is relying on. Defense counsel who understand how these factors bear on the strength of the command’s case can advise on which procedural option best serves the soldier’s interests.
Whether to Demand Court-Martial When the Command’s Evidence Is Stale
In cases where the pre-transfer conduct occurred more than several months before the NJP offer, the command’s evidence may have aged in ways that favor the defense. Witness recollections fade, documentary records may have been archived, and the unit members most familiar with the events may no longer be present. A soldier who demands court-martial in this situation is betting that the government’s ability to prove the offense beyond a reasonable doubt has been weakened by time.
That bet is not always correct. Some evidence does not degrade, and some witnesses retain clear memories for years. Defense counsel must assess the quality and availability of the specific evidence the government has before advising on whether to demand court-martial or accept NJP. A well-documented offense with preserved records and available witnesses is not made weaker simply by the passage of time, and demanding court-martial in that situation exposes the soldier to greater punishment risk than NJP. The analysis must be case-specific.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.