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Rear Provisional Commanders
Can Have NJP Authority
By Major A. Jason Nef
Buried deep in Army Regulation (AR) 27-10, Military Justice, Table 3-1, footnote 4, is this sentence: “Only if imposed by a field grade commander of a unit authorized a commander in the grade of O-5 or higher.”1 This sentence refers specifically to a field grade commander’s ability to punish noncommissioned officers (NCOs) in the grades of E-5 and E-6 by reducing them one grade through nonjudicial punishment (NJP) proceedings.2 This sentence is often misunderstood to mean that only commanders in the grade of O-5 may reduce NCOs at NJP proceedings. The ability to reduce NCOs in the grade of E-5 and E-6 is tied to a field grade commander’s “promotion authority” and not necessarily the grade of O-5.
Although battalion and squadron commanders are normally in the grade of O-5, if an O-4 is given command of a unit that is authorized an O-5 commander, that O-4 can exercise full field grade NJP authority over NCOs.3 Furthermore, there is a separate and distinct authority for O-4 commanders of rear provisional battalions, squadrons, and brigades to exercise full field grade NJP authority over NCOs.4 The practice of establishing rear provisional units is commonplace in this era of near-constant deployments.5 Due to the lack of non-deploying personnel, it is not uncommon for an O-4 to be placed in command of a rear provisional battalion, squadron, or brigade, at home station. However, because of the footnote discussed above, many military justice leaders presume that those rear provisional commanders in the grade of O-4 are unable to exercise full NJP authority over noncommissioned officers.
The underlying restriction on a commander’s ability to reduce a Soldier during NJP proceedings is found in AR 27-10, para. 3-19b(6)(a), which states:
The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of UCMJ, Art. 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade (see AR 600–8–19).
The rules governing promotion authority for NCOs in the grades of E-5 and E-6 are found in AR 600-8-19, Enlisted Promotions and Reductions. Specifically, AR 600-8-19, para. 3-1b states that “[f]ield grade CDRs of any unit authorized a CDR in the rank of LTC or higher . . . [s]erve as the promotion authority to the rank of SGT and SSG for Soldiers assigned to units attached . . . or assigned to their command.”6 Although it is uncommon for an O-4 to be given command of a unit that is authorized an O-5 commander, AR 27-10 and AR 600-8-19 clarify that an O-4 commander has the same authority to reduce NCOs during NJP proceedings as an O-5 or higher commander. However, the rule governing promotion authority for an O-4 commander of a provisional battalion or brigade is separate and distinct from this.
When an O-4 is given command of a rear provisional unit, the source of authority changes. Instead of AR 600-8-19, para. 3-1b, the operative rule now is now listed in para. 1-9f(2), which states that “BN and BDE CDRs of provisional units in the rank of major or above have promotion authority to the ranks of SGT and SSG.” This rule gives effect to the discretionary policy found in AR 220-5, Designation, Classification, and Change in Status of Units, para. 2-5b, which states that “[c]ommanders of provisional units created as rear or home elements of deployed units may have promotion or reduction authority.”7
It is important to remember that the NJP authority may be exercised by commanders only. Therefore, an O-4 who is serving as an officer-in-charge (or some similar leadership role), but not as the actual commander, is prohibited from exercising any NJP authority whatsoever.
In conclusion, when an O-4 is in command of a rear provisional unit, or a unit that is authorized a commander in the grade of O-5 or higher, they may exercise full field grade NJP authority over NCOs under their command. The authority for each derives from different provisions of AR 600-8-19, but the end result is the same. TAL
MAJ Nef is currently a student at the Command and General Staff College in Leavenworth, Kansas. He would like to thank LTC Keirsten Kennedy and MAJ Jason Marquez for their help with this note.
Notes
1. U.S. Dep’t of Army, Reg. 27-10, Military Justice ch. 3, Table 3-1 (11 May 2016).
2. Id.
3. See U.S. Dep’t of Army, Reg. 600-8-19. Enlisted Promotions and Reductions para. 3-1b(1) (25 Apr 2017) [hereinafter AR 600-8-19].
4. AR 600-8-19 para. 1-9f(2).
5. See, generally, Deploying Justice, A Handbook for the Chief of Military Justice (June 2008).
6. Emphasis added.
7. U.S. Dep’t of Army Reg. 220-5, Designation, Classification, and Change in Status of Units para. 2-5b (15 Apr. 2003).