A commander’s discretion to modify a Non-Judicial Punishment (NJP) or Article 15 after the punishment has been executed is very limited and is almost exclusively for the benefit of the service member. A commander has the authority at any time to “set aside,” “remit,” or “mitigate” any unexecuted portion of an NJP punishment. For example, they can decide to suspend a reduction in rank or to cancel the remaining days of extra duty.
However, once a punishment has been fully “executed”—for example, a forfeiture of pay has been taken from the soldier’s paycheck, or a period of restriction has been completed—the commander’s authority changes. They generally cannot take action that would increase the punishment. The key principle is that a soldier cannot be punished twice for the same offense. The commander does retain the power to “set aside” the entire NJP, even after it has been executed. This is a powerful act of clemency that legally nullifies the entire action as if it never happened.
A military defense attorney may petition a commander to exercise this discretion. If new, favorable evidence comes to light after the NJP, the attorney can ask the commander to set aside the findings and punishment. This is a request for the commander to correct an injustice. But the commander’s discretion after execution is almost entirely a one-way street: they can grant relief and lessen the punishment’s impact, but they cannot go back and make it worse.