The UCMJ establishes time limits within which charges must be preferred, and those limits are designed to protect accused persons from indefinite exposure to prosecution. When a service member declines NJP and demands trial by court-martial, the question of how that decision affects the limitations clock becomes significant. The government does not get unlimited additional time to build its case simply because the accused exercised the right to demand a formal proceeding.
A limitations defense is not available in every case, and the analysis of when the clock starts, what events can toll it, and whether the applicable limit has actually run requires careful legal review. But in cases where the conduct occurred a substantial time before charges are formally preferred, the limitations question is worth examining. Identifying this issue early allows the defense to preserve it properly for any subsequent challenge.
The UCMJ Statute of Limitations and How It Runs
The five-year statute of limitations established by Article 43 of the UCMJ begins running on the date the alleged offense was committed. The date of commission, not the date of discovery or the date an investigation is opened, is the triggering event. This is significant because in many cases the government does not open a formal investigation until well after the alleged offense occurred, and in some cases investigation is delayed by years. The limitations clock does not pause to accommodate the government’s investigative timeline.
Article 43 establishes exceptions and tolling provisions for specific circumstances. The period of limitation does not run when the accused is absent without leave, when the accused is fleeing from justice, or in certain other defined circumstances. These exceptions are narrow and specific. The general principle is that time runs against the government, and a service member who can demonstrate that the limitations period has expired is entitled to have the charges dismissed regardless of the underlying merits.
Whether the NJP Offer Tolls the Limitations Period
The offer of NJP does not toll the Article 43 limitations period. The clock continues to run while the NJP is pending, and if the soldier demands court-martial and the limitations period expires before charges are formally preferred, the limitations defense is available regardless of the NJP history. The government that waited until the NJP offer was refused to begin the formal charging process may find that it has less time than it expected to bring charges.
An NJP offer is an administrative action, not a formal charge, and it does not satisfy the requirement that charges be preferred within the limitations period. Defense counsel who identify cases where the limitations period may have run before formal charges were preferred must research the specific timeline carefully and file the appropriate motion promptly.
What Happens to the Clock When a Soldier Demands Court-Martial
When a soldier demands trial by court-martial after being offered NJP, the command must decide whether to proceed with formal charges or to drop the matter. If the command chooses to proceed, those charges must be preferred within the time remaining on the limitations clock. The refusal of NJP does not reset the clock or give the government a new limitations period. The same five-year period continues to run from the date of the alleged offense, regardless of the intervening NJP proceeding.
In cases where the alleged offense occurred several years before the NJP was offered, and where the refusal of NJP is followed by a period in which the command is deciding whether to pursue formal charges, the limitations clock can expire before charges are preferred. Defense counsel who track the timeline from the date of the alleged offense through every step of the process must ensure that the limitations issue is identified before trial and raised in a timely pretrial motion.
Cases Where Timing Became a Defense After NJP Refusal
There are documented military cases in which a soldier’s refusal of NJP led to the command’s attempt to prefer formal charges, and in which a limitations challenge succeeded because the charges were not preferred before the five-year period expired. These cases reflect the principle that the limitations statute exists to protect accused persons from indefinitely deferred prosecution and that the government cannot circumvent that protection by using the NJP process to extend the effective limitations period.
The success of limitations challenges in this context depends on the precise calculation of the limitations period, including any applicable tolling provisions, and on ensuring that the challenge is properly preserved and timely raised. Defense counsel who identify a potential limitations issue must act on it promptly, because procedural defaults can waive the defense even when the underlying legal argument is sound.
How to Monitor and Assert a Limitations Defense
A limitations defense in a court-martial is raised through a pretrial motion to dismiss the charge or specification as barred by the applicable statute of limitations. The motion must identify the alleged offense, the date on which it was committed, the date on which charges were preferred, and the calculation showing that the limitations period expired before charges were preferred. It must be filed within the deadline set by the military judge for pretrial motions and supported by any documentary evidence needed to establish the relevant dates.
The government will respond by asserting that the charges were timely, by identifying applicable tolling provisions, or by challenging the defense’s date calculations. Defense counsel must be prepared to address each of these responses and to provide the military judge with a complete and accurate analysis of the limitations question. A successful limitations motion results in dismissal of the affected charge and may end the case entirely if the limitations defense applies to all charges.
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.