A prior NJP is not a criminal conviction, and the rules governing its use in a subsequent court-martial reflect that distinction. The Military Rules of Evidence limit the circumstances under which prior NJP can be introduced, particularly during the guilt-or-innocence phase of a trial. The government cannot simply point to an Article 15 record to argue that the accused has a propensity for the charged conduct and is therefore guilty.
The analysis changes in the sentencing phase, where the rules are more permissive and prior disciplinary history becomes relevant to the question of an appropriate punishment. Defense attorneys preparing for trial must understand this distinction and must file the appropriate pretrial motions to limit the use of NJP records where the law requires. Failing to do so can allow damaging history to reach the panel at a stage of the proceeding where it can do the most harm.
Military Rules of Evidence on Prior Non-Judicial Punishment
The Military Rules of Evidence treat prior NJP as a category of evidence subject to specific rules that differ from those governing prior court-martial convictions. A prior NJP is not a criminal conviction, and it cannot be introduced as proof of criminal conduct in the same way that a prior felony conviction might be used in certain circumstances. The rules limit the use of NJP records primarily to the sentencing phase of a court-martial proceeding.
The rationale for this limitation is that NJP proceedings do not carry the procedural protections of a court-martial. The service member who accepted NJP may have done so for reasons entirely unrelated to actual guilt, including the practical calculation that demanding trial would cause more career disruption than accepting the lesser proceeding. Using the NJP record to argue guilt in a subsequent criminal case would penalize the service member for having made a legally protected choice without the full procedural safeguards that would justify treating the outcome as reliable evidence of wrongdoing.
When Prior NJP Is Admissible in the Sentencing Phase
The sentencing phase of a court-martial is the primary context in which prior NJP is admissible against the accused. Once the panel has returned a finding of guilty on at least one charge, the proceedings move to sentencing, and the government may introduce evidence of the accused’s prior military disciplinary history, including Article 15 records, as part of its case for an appropriate punishment. The panel may consider this history in determining a sentence that is proportionate to both the conduct and the character of the person before them.
The admission of prior NJP at sentencing is not automatic. The government must properly authenticate the records, the records must be within the scope of what is permitted under the applicable sentencing rules, and defense counsel may challenge the foundation or the admissibility of specific documents. But the baseline rule is that NJP history is available to the government at sentencing, and the defense must prepare to address it rather than assuming it will be kept out.
Why Prior NJP Is Generally Excluded From the Findings Phase
The findings phase, in which the panel determines whether the accused is guilty of the charged offenses, operates under tighter evidentiary rules than the sentencing phase. Prior NJP is generally excluded from the findings phase because it is not substantive evidence of whether the accused committed the charged offense, and its use as propensity evidence is barred by Military Rule of Evidence 404(b) in most circumstances.
The exceptions to this exclusion are limited. Prior NJP may be admissible in the findings phase if it is offered for a permissible purpose other than propensity, such as to show knowledge, intent, identity, or absence of mistake. Defense counsel must file pretrial motions to limit the use of prior NJP and must be prepared to argue against specific government theories of admissibility that go beyond general propensity.
How Prosecutors Use NJP History to Build a Pattern Narrative
Prosecutors who are aware of a soldier’s prior NJP history may structure their case in ways that introduce that history through permissible channels. Expert witnesses who testify about an accused’s character or fitness may reference documented disciplinary history. Prior NJP for similar offenses may be introduced under MRE 404(b) exceptions if the purpose is properly articulated. Witnesses who observed the conduct underlying a prior NJP may testify about it as relevant background without explicitly referencing the Article 15 record.
Defense counsel who understand these strategies can file targeted pretrial motions that address specific avenues through which NJP history might reach the panel. A motion that anticipates the government’s theory, specifically identifies why the evidence is inadmissible under that theory, and provides the court with a clear analysis of the applicable rules is more effective than a general motion to exclude all prior bad act evidence.
Pre-Trial Motions to Limit the Use of Prior NJP at Trial
Motions in limine filed before trial are the primary tool for limiting the use of prior NJP evidence. These motions must be filed within the scheduling deadlines set by the military judge and must address each specific avenue through which the government might seek to introduce the NJP history. A motion that addresses only one theory of admissibility while leaving others open may obtain partial relief while allowing the most damaging use of the prior NJP to proceed unchallenged.
The defense that combines pretrial motions that limit the findings-phase use of NJP with a robust sentencing phase presentation of positive character evidence is positioned to manage the prior NJP’s impact at both stages. The goal is not to pretend the prior NJP did not happen but to ensure that it is considered only where the rules permit it and that the context the defense provides gives the panel a more complete picture than the document alone conveys.
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.