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How is the Navy's "preponderance of the evidence" standard for NJP supportable in light of the Army's "beyond a reasonable doubt"?
I would think that would be the more productive ground for challenge, vice any perceptions that Navy counsel are giving inadequate advice.
A few years ago, the Army Lawyer published this interesting piece: Captain Shane Reeves, The Burden of Proof in Nonjudicial Punishment: Why Beyond a Reasonable Doubt Makes Sense, Arm. Law., Nov. 2005, at 28. Here's a link. The article included this helpful guidance:
Commanders in the U.S. Army must find guilt beyond a reasonable doubt. U.S. DEP'T OF ARMY, REG. 27-10, LEGAL SERVICES: MILITARY JUSTICE para. 3-16(d)(4) (27 Apr. 2005) [hereinafter AR 27-10]. Navy, Marine, and Coast Guard commanders must find guilt by no less than a preponderance of the evidence. U.S. DEP'T OF NAVY, NAVY JAG MANUAL para. 0110(b) (1990) [hereinafter NAVY JAG MANUAL]; U.S. COAST GUARD, COMMANDANT INSTR. M5810.1, MILITARY JUSTICE MANUAL para. 1.D.1.f (17 Aug. 2000) [hereinafter MJM]. In the Air Force, no specific standard of proof applies to NJP proceedings; however, because beyond a reasonable doubt is used in courts--martial, which an accused may elect, commanders are urged to consider this standard before initiating NJP proceedings. U.S. DEP'T OF AIR FORCE, INSTR. 51-202, NONJUDICIAL PUNISHMENT para. 3.4 (3 Nov. 2003)[hereinafter AFI 51-202].
Id. at 29 n.7.
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To me, it seems odd that one could lose his or her job entirely as a result of misconduct that was proved by a preponderance of the evidence standard. Yet, at a disciplinary hearing (where one can't lose his or her job) misconduct must be proved beyond a reasonable doubt.
In which instance is the service member's property and liberty right greater?
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