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Staff Judge Advocate to the Commandant

 

Staff Judge Advocate to the Commandant

Headquarters, U.S. Marine Corps

Overview

JPL routinely receives questions regarding whether a Marine held past his EAS in a disciplinary status may be administratively separated in lieu of trial, or negotiate a pretrial agreement to accept NJP, despite provisions that state that a Marine may not be involuntarily extended beyond EAS for the purposes of NJP or administrative separation.  We have routinely opined that these are permissible alternative dispositions as long as the Marine was initially involuntarily extended for a proper purpose.  In order to avoid later claims of foul in front of BCNR or other forums, it is advisable to memorialize these agreements in a written pretrial agreement wherein the accused specifically articulates his consent and understanding to the consequences of the bargain.  For example, that he consents to the imposition of NJP (and agrees to serve out the punishment) and/or agrees to submit a board waiver thereafter in exchange for charges being withdrawn and dismissed from a court-martial.  The point here is to have the accused consent and agree to being extended for the purposes of receiving the benefit of the bargain.  He will be hard-pressed to claim foul later on.

Mandatory Processing in Sexual Harassment Cases

Many are familiar with the mandatory processing requirements in sexual harassment cases imposed by MARCORSEPMAN 6210.8 as it applies to enlisted cases, but some have asked whether the same applies in officer cases?  The answer is yes.  The mandatory processing requirements come from SECNAVINST 5300.26D and apply equally to officers and enlisted.

For some reason, unknown to JPL, these provisions were not included in SECNAVINST 1910.6C that addresses separation of officers. 

SECNAVINST 5300.26D states: 

Military personnel of the Navy and Marine Corps shall be processed for administrative separation on the first substantiated incident of sexual harassment involving any of the following circumstances (for the purposes of this subparagraph, an incident is substantiated if there has been a court-martial conviction or if the commanding officer determines that sexual harassment has occurred): (1) Action, threats, or attempts to influence another's career or job in exchange for sexual favors; or (2) Rewards in exchange for sexual favors; or (3) Physical contact of a sexual nature which, if charged as a violation of the UCMJ, could result in punitive discharge.