Agai 67 - Army Legal Services

Major Agai 67

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Disciplinary Action

Disciplinary action is action taken by the chain of command using their statutory powers to uphold good order and Service discipline.

Disciplinary action is taken where criminal or other service offences are thought to have been committed and where it is considered necessary to punish the individual or to deter others.

The Service Justice System (SJS) claims that it supports operational effectiveness and includes:

investigation;
charge;
trial;
review;
appeal.

Sentences range from admonition and restriction of privileges to, in the most serious cases, Service detention or imprisonment.

The Armed Forces Act 2006 and the Service Discipline Acts before it, create offences unique to the Services and makes any offence under the criminal law of England and Wales, wherever committed, an offence under Service law.

Disciplinary action is a distinct and formal process, which is officially recorded and may result in individuals receiving criminal records. Service courts, but not summary hearings, are open to the public.

Administrative Action

The MOD claim that Administrative Action is action taken to rehabilitate, censure or initiate sanctions to correct professional or personal failings. It is used by the chain of command to safeguard or restore the operational effectiveness and efficiency of the Service, using command authority. Any damage to operational effectiveness that may be caused by conduct and performance is assessed by applying the Service Test.

Sanctions to restore and safeguard operational effectiveness may be applied through administrative action. The administrative process involves investigation; reporting; determination; sanction and review.

Ultimately, if individuals considers themselves to have been wronged by any administrative action, they are entitled to submit a Service complaint seeking redress of individual grievance.

The Administrative Action process is self-regulatory, is entirely separate from the SJS and may result in a range of outcomes.

Major administrative action is taken in accordance with single Service procedures and Major Administrative Action should be taken in accordance with this JSP.

Distinction between Disciplinary and Administrative Action

The distinction between disciplinary and administrative action is important.

The MOD claim that as a general rule, disciplinary action should be used where an offence has been committed and where it is wholly deserving of the consequences of the application of Service law and where an individual should, if convicted, be punished.

On the other hand, administrative action, which is intended to set straight professional and personal shortcomings, and should not be used in clearly criminal matters.

Administrative action may not be appropriate for cases of repeated minor transgressions; for example, where a Service person has received a sanction for being late for duty on more than one occasion, disciplinary action and/or escalation to a major administrative sanction may be appropriate.

The MOD claim that the sanction imposed as a result of administrative action should fit the professional failing and be clearly designed to correct it rather than to punish the individual. However, whilst disciplinary and major administrative action are not mutually exclusive, disciplinary action and MAA are, so that a MAA sanction should not be awarded in conjunction with a disciplinary punishment; upholding good order and Service discipline and correcting personal or professional failings cover much of the same ground.

The chain of command must use powers and authority appropriately and effectively in the context of the offence or misconduct and the operational circumstances. The existence of an administrative action regime does not prevent proceeding directly to disciplinary action where it is more appropriate.

Similarly, good management practice may require that some professional failings will be more appropriately dealt with without recourse to either regime, such as minor transgressions that the chain of command should correct more informally and immediately.

Appeal, Review and Service Complaints

Both disciplinary and administrative action contain provisions for an individual to appeal.

Disciplinary action includes statutory rights to elect Court Martial trial and to appeal to the Summary Appeal Court or the Court Martial Appeal Court.

MAA includes review at a higher level than that at which it is initiated.

In addition, a Service person who considers himself or herself to have been wronged in a matter relating to his or her service has the right to submit a Service complaint, seeking redress of individual grievance.