In the United States, you are innocent until proven guilty.
Lets say you are arrested for DUI and you go to court and after all is said and done, you are not found guilty, and the charges are dismissed. Should you still receive an alcohol incident as a Coast Guard member? What if that makes it your second alcohol incident, do you think that it would be fair to process you for discharge?
I guess one of the factors would be if you were found not guilty by a technicality or you actually did not consume ANY alcohol and it was possibly an actual medical emergency, in which case the person wouldn't have been charged to begin with.
I think you may be confusing an alcohol conviction in a court of law versus an alcohol incident. Any alcohol incident which brings discredit or embarrassment to the CG is just that, an incident. If that's the case then yes, it's fair.
A conviction is irrelevant. Only two questions remain: 1.) Was alcohol consumed? And 2.) Did it bring discredit upon the service?
If you check both of those blocks, then you have an alcohol incident. Has little bearing on the what the court decided to do.
|"Does anyone know where the love of God goes when the waves turn the minutes to hours?" - Gordon Lightfoot|
I am not postitive on this but I highly doubt the military with the UCMJ has to meet the same level of burden of proof that a state court is required to meet for a prosecution.
What's that old joke...
Seaman: I wasn't drinking but I ran into a beer truck!
Captain: Well...alcohol was involved.
UCMJ violations have the same burden of proof, but an alcohol incident isn't a criminal matter, it's an administrative process.
Brian, I know you were joking, but for those who may not know... For an AI to occur, alcohol must have been CONSUMED by the party in question. And that alcohol consuption must have played some role the discredit on the service.
And, no.... AI is strictly an administrative process. Has nothing to do with the UCMJ, state court, or burden of proof.
Assuming that the reason that the person was found "not guilty" is that they in fact did not drive under the influence just how would they be bringing "discredit" or "embarrassment" to the CG? Just because a police officer charges a person does not mean that the person actually did what he/she was charged with. Are we really looking to give an "incident" to a member that did nothing wrong?
|"I love that dirty water..."|
Just because the DUI was thrown out doesn't mean that alcohol wasn't a significant or causative factor for the traffic stop. The CO has that discretion to make that final call. By simply being in court for a DUI, you are bringing some level of discredit upon the service. I'm not saying it's right or wrong, but it is what it is.
Mark I think that the quoted section above your remarks answers your question. The legal system can give way to any number of "technicalities" that our administrative system doesn't.
Red is correct... I learned (the hard way!) a long time ago to be careful in engaging in long-distance hypothetical situations. You NEVER have all of the story. But only two elements have to be met. 1.) Was alcohol consumed by the individual in question? And, 2.) Did the incident bring discredit upon the service?
The CO has VERY wide discretion in making this determination. And really... It is a decision not readily reviewable by anyone else.
It's the CO's call. About the only time the CO can't use his discretion is in situations where the member is convicted. The PERSMAN is VERY clear in these cases.
Yes and no. If a Court Martial is convened it becomes The United States VS. SN Joe Coastie, and the government must prove beyond a reasonable doubt that the violation of the UCMJ occured. The "burden of proof" is upon the government, and must proved "beyond a reasonasble doubt" that the violation occured.
In NJP, however, this is not the case. At mast, the masting official only has to believe that "MORE LIKELY THAN NOT" a violation occurred.
I'm about 97% sure that this is accurate, as-per the CG Military Justice Manual.
|Highly Experienced Member|
Can a member request a court martial if the member feels the NJP was not correct?
That is true... Courts Martial burden of proof is Beyond a Reasonable Doubt. NJP is a Preponderence of the Evidence (is it more than likely...)
AI isn't even a Preponderence of the Evidence. Is is singularly the CO's decision. As long as those two conditions mentioned before are met, you can have an AI. I'm not saying it's right or defending it.
Not if they are assigned to a cutter. If they are assigned ashore they could turn down a mast and request CM. At least that was the rules before I retired.
As I said in my original post I was stating that there was an assumption that the person was found not guilty because he/she did not actually drive under the influence NOT because of some technicality. In the past I have had some Alcohol Reps try and make the case that just being charged with DUI is an "incident" then if the person was convicted that was a second "incident". Fortunately were not able to actually get their bizarre interpretation enforced.
If you are saying that the court found that the member did not consume alcohol, then an alcohol incident is not appropriate.
We had a situation a one of my units when a member went to medical one morning because he had the flu. He was pulled over and charged with DUI. He told the officer he had not been drinking, but the officer said he didn't care, and arrested him anyway. Maybe it was the cold meds he was taking, maybe it was the fact that he was sick as dog and could barely stand up, but the officer thought he was drinking.
The charges were dropped and the member received a p-7 for not having enough common sense to ask for a ride when he was too sick to drive, but did not receive an AI. I’m not sure who picked up the tab to clean out the back of the patrol car
At another unit, a member received a ticket for drinking in public (not public intoxication). His only offense was walking in the wrong place with a cup of beer, yes that happens in VA. He received an AI.
The point is this: No alcohol, no alcohol incident. If alcohol is consumed, and the member is arrested, then an alcohol incident is appropriate. The outcome of the criminal case is not relevant to an AI determination. The CO makes the determination.
A member should not be given two alcohol incidents for the same event. For example a member is arrested for DUI and is late for work the next day because he was in jail. Even though there are two offences (DUI and AWOL), it is still one AI. He can however be taken to mast or CM and punished for the AWOL.
|Highly Experienced Member|
Man, the Coast Guard would have been empty when I was in. They'd need a xerox machine for the BCDs.
|There Ain't No Such Thing As A Free Lunch|
I agree. Most of the ships I was on wouldn't have had enough crew left to get underway.
I think what you're asking - if you don't like the NJP received, can you then request court martial - the answer is "no" in all circumstances. You can appeal the NJP to the next officer up, but that's all.
If assigned ashore, you can refuse going to NJP (before going to mast, or as soon as it starts) and opt for court martial. The reason to do this is because the burden of proof is higher (beyond a reasonable doubt) and evidentiary rules apply. However, should you roll the dice and lose - consequences are much greater in terms of punishment and getting an actual conviction. NJP is only administrative, "more likely than not" standard of guilt, no evidentiary rules, but no conviction either. Very rarely would it make sense to decline NJP and opt for court martial.
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