Nonjudicial Punishment: Burden of ProofMarch 8, 2021
The burden of proof is the degree of certainty which someone’s guilt must be proven before he/she can be found guilty. There are many different types of burdens of proof; however, the most common ones are the preponderance of the evidence (more likely than not/51 percent), clear and convincing evidence, and beyond a reasonable doubt. There are misconceptions about the burden of proof at nonjudicial punishment (article 15, office hours, mast, etc.). The UCMJ itself is silent on the matter, allowing each service to determine what the burden of proof is. I have heard many senior officers and noncommissioned officers get it wrong, and even say that there is no burden of proof.
For the Army, the burden of proof at nonjudicial punishment proceedings is beyond a reasonable doubt (See AR 27-10). This is the same burden of proof required for a Court Martial conviction. This means that the evidence presented at these proceedings must establish the guilt of a Soldier beyond a reasonable doubt. This is the highest standard of proof and it is difficult to achieve. Often times, just pointing this out to the imposing authority during nonjudicial punishment proceedings can result in an acquittal for the Soldier. It is my personal belief that many Soldiers are found guilty at nonjudicial punishment because the wrong standard of proof is being applied.
For the Air Force , AFI 51-202 states that there is no burden of proof at an Article 15 proceeding; however, that Commanders should be aware that the Airman could turn it down and demand a trial by Court-Martial, at which the standard of proof is beyond a reasonable doubt. This leaves the burden of proof somewhat undefined and up to the Commander's interpretation.
For the Navy and Marines, the burden of proof is the preponderance of the evidence (more likely than not/51 percent), explained more in detail at this link.
For the Coast Guard, the burden of proof is also the preponderance of the evidence (more likely than not/51 percent), defined by COMDTINST M5810.1G.
Due to the misconceptions about the burden of proof, any Servicemember facing nonjudicial punishment should consult with a military lawyer before agreeing to accept nonjudicial punishment. In some situations, turning down an article 15 and demanding a trial by Court-Martial is advisable. Other times, simply having a lawyer explain to the imposing Commander what the burden of proof is, and what it means, can be advantageous.
This article was written by Attorney Matthew Barry
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