How long can an Article 15 be pending?

Article 15 Process

This Article is meant to address the Article 15 process in the Army.  The Article 15 Process is governed by AR 27-10, specifically Chapter 3.  Appendix C also has a proposed script for Commanders to use, which further explains the Article 15 Process.

An Article 15 begins when a Soldier, NCO, or Officer is notified by the imposing Commander, or a delegee (sometimes a lower-level Commander or a CSM/1SG).  The Commander will read a notification that is very similar to this: "As your commander, I have disciplinary powers under Article 15 of the UCMJ. I have received a report that you violated the Uniform Code of Military Justice, and I am considering imposing nonjudicial punishment. This is not a formal trial like a court-martial.  As a record of these proceedings, I will use DA Form 2627.  I now hand you this form.  Read items 1 and 2.  Item 1 states the offense(s) you are reported to have committed and item 2 lists the rights you have in these proceedings.  Under these provisions of Article 31 of the UCMJ, you are not required to make any statement or provide any information concerning the alleged offense(s).  If you do, it may be used against you in these proceedings or in a trial by court-martial.  You have the right to consult with a lawyer as stated in item 2."

The imposing Commander, or his/her delegee, then gives the Soldier in question the opportunity to read over the Article 15 itself and asks if he/she has any questions and if he/she understands their rights.  The imposing Commander, or his/her delegee, then says something similar to this: "You have to decide whether you want to demand trial by court-martial.  If you demand a court-martial these proceedings will stop.  I then will have to decide whether to initiate court-martial proceedings against you.  If you were to be tried by court-martial for the offense(s) alleged against you, you could be tried by summary court-martial, special court-martial, or general court-martial.  If you were tried by special or general court-martial you would be able to be represented by a military lawyer appointed at no expense to you or by a civilian lawyer of your choosing at no expense to the government. If you do not demand trial by court-martial, you must then decide whether you want to present witnesses or submit other evidence in defense, extenuation, and/or mitigation.  Your decision not to demand trial by court-martial will not be considered as an admission that you committed the offense(s) stated in item 1; you can still submit evidence on your behalf. Evidence in defense is facts showing that you did not commit the offense(s) stated in item 1.  Even if you cannot present any evidence in defense, you can still present evidence in extenuation or mitigation. Evidence in extenuation is circumstances surrounding the offense showing that the offense was not very serious.  Evidence in mitigation is facts about you showing that you are a good Soldier and that you deserve light punishment.  You can make a statement and request to have a spokesperson appear with you and speak on your behalf.  I will interview any available witnesses and consider any evidence you think I should examine. Finally, you must decide whether you wish to request that the proceedings be open to the public. Do you understand the decisions you have to make."

The Soldier in question then is given the opportunity to talk to a lawyer before making the elections that were just explained. Every Soldier in this situation should exercise the opportunity to talk to a lawyer before even making any elections.  One of those elections, demanding a trial by court-martial, is further explained at this link.  The imposing Commander then reads a statement similar to the following: "You will have 48 hours to think about what you should do in this case. You may advise me of your decision at any time within the 48-hour period and waive the remainder of the time if you so desire.  If you do not make a timely demand for trial or if you refused to sign that part of DA Form 2627 indicating your decision on these matters, I (the commander) can continue with these Article 15 proceedings even without your consent. You are dismissed."

At that point, the proceedings are recessed to give the Soldier in question a chance to consult with a lawyer.  This entire process is typically called the "first reading." Typically, more than 48 hours will be provided, because TDS is so slow to meet with the Soldier in question. Furthermore, more time is needed to submit a complete Defense, in most cases.  A lawyer can help request a delay.

After the Soldier in question is given the chance to consult with a lawyer, the "second reading" of the Article 15 is scheduled.  The Soldier should be prepared to make the elections discussed above at the second reading, as well as present a full Defense, and/or matters in mitigation and extenuation.  This could consist of the testimony of the Soldier, written matters signed by the Soldier, live witnesses, sworn statements, memorandums for record, written statements of support, and/or other forms of evidence (text messages, videos, photos, emails, etc.).  What to present at a second reading of an Article 15 should be discussed in detail with an experienced Military Lawyer.

During the second reading, there is no set script for the Commander to follow.  However, typically, the Commander asks the Soldier if he/she has anything to present.  The Soldier then presents what he/she wants to. The Commander then either makes a decision on the spot, or recesses the proceedings to think about a decision.  The Commander sometimes consults the chain of command before making a decision.  He/she then calls the Soldier back in and informs him/her of the decision.  It is important to note that the standard of proof at an Article 15, in the Army, is beyond a reasonable doubt.  That means that a Soldier can only be found guilty if the allegations against them are proven beyond a reasonable doubt, the same legal standard for a Court-Martial and other criminal trials. The Soldier in question has to decide whether to appeal either the findings or the punishment, on the spot.  Article 15 appeals are discussed more at this link.

Article 15s can be career altering.  In addition to a Soldier losing rank, pay, and liberty, the filing of an Article 15 in a Soldier's OMPF currently triggers review under the Army QMP Process. Furthermore, the Command, or HRC in the case of Officers, will often follow up an Article 15 with an administrative separation action.  Click these links to learn more: Army Enlisted Separation Process and Army Officer Separation Process.

Any Soldier facing the Article 15 process will be able to meet with a JAG assigned to Trial Defense Services (TDS).  These JAGs typically have little time to apply to Article 15 clients, because of their otherwise heavy Court-Martial caseload.  Typically, a Soldier is left to prepare their own Defense, with TDS offering to review whatever they come up with. For many reasons, this is usually ill-advised. Soldiers facing an Article 15 have the option to hire a Civilian Attorney to assist in their decisions and response.

This Article was written by Attorney Matthew Barry.

Contact us today for a free consultation.

“He is clearly the best trial or defense counsel that I have observed in the courtroom” – Senior Defense Counsel, Marine Corps

Military commanders may impose nonjudicial punishment to handle certain violations of the Uniform Code of Military Justice (UCMJ). These minor violations are typically dealt with through administrative means rather than judicial ones, but they can still negatively impact one’s military career. If you are a military member facing a nonjudicial punishment, Aaron Meyer Law has the experience to explain your options and assist in your defense.

What Does Article 15 Mean?

The authorizing statute from which nonjudicial punishment draws its name is Article 15, UCMJ. Some refer to this statute as “Captain’s Mast” or “NJP,” but all these names refer to the same action. When a commander “offers” Article 15 to a military member, they inform the individual that they are accused of committing an offense or offenses under the UCMJ.

This offer from the commander allows the military member to choose whether to accept the Article 15 nonjudicial punishment. If the individual decides to refuse the offer, they are opting for a trial by court-martial. They have the right to consult legal counsel before they make this decision in most circumstances.

What If You Accept Article 15?

When a military member chooses to accept nonjudicial punishment, they forfeit their right to a court-martial trial, but they are not admitting guilt. Instead, accepting Article 15 allows the commander to decide whether the individual is guilty of the alleged offenses. By doing so, the individual grants the commander the right to act as judge and jury in the case. The commander will then listen to the individual’s side and review any evidence or witnesses they present on their behalf.

The military member facing nonjudicial punishment can speak on why they are not guilty, why they should not be punished, or why they should receive a light punishment. They also have the right to remain silent on the matter or to have someone act as a spokesperson on their behalf. The right to have a military attorney present is service-dependent.

The individual facing punishment may have witnesses testify on their behalf. These may be character witnesses who testify to the individual’s good military standing, that they are unlikely to have committed the offenses, or that they are able to be rehabilitated if they did. Another type of witness is a “fact” or defense witness. These individuals offer evidence or testify as to why the military member is not guilty. There are various ways that evidence can be presented to the commander, including witnesses and the presentation of documents and written statements.

Once the military member has presented all the evidence, the commander decides whether they committed the offenses. If the individual is found not guilty, the commander destroys the Article 15. However, if they determine that the military member committed the offenses, they also decide the punishment that will be imposed. This punishment is then written on the Article 15 form, and the individual is notified of the punishment.

If the commander finds the individual guilty, they may offer evidence to affect what punishment is appropriate. This evidence is known as “matters in extenuation,” which explain the circumstances around the offense, and “matters in mitigation.” The latter seeks to make the punishment lighter due to the military member’s reputation, acts of bravery, service record, personal situation, and other factors.

What Are the Maximum Punishments Under Article 15?

Punishments given by a lieutenant or captain (0-3) are known as company grade and may include:

• Forfeiture of seven days basic pay
• Fourteen days of extra duty
• Restriction for 14 days
• Reduction in grade by one grade for E-4 or below, no reduction for E-5 or above

Punishments imposed by a major/lieutenant commander or higher are known as field grade and may include:

• Reduction in grade for E-4 or below to E-1, or one pay grade reduction for E-5 and E-6 if the commander has such authority. E-7 and higher grade reductions are service-dependent.
• Forfeiture of half of basic pay for two months
• Forty-five days of extra duty
• Restriction for 60 days, or 45 days if combined with extra duty

Is Nonjudicial Punishment Always Enforced?

There are situations in which a commander may choose to suspend an Article 15 punishment or a portion thereof. In these circumstances, the imposing officer decides on an appropriate punishment for the military member’s offenses but does not impose it. Instead, the commander may assign a set time to the individual to prove that they will not engage in further misconduct. If the military member can fulfill this requirement, their sentence will be dismissed. If any misconduct occurs during this period, suspension of the punishment will be lifted immediately, and the whole punishment will be imposed.

Important Article 15 Facts

• An Article 15 decision may be appealed to a higher commanding officer within five days after the commander has announced the punishment. Restriction and extra duty punishments typically begin the day they are imposed, while forfeitures and rank reductions are often postponed pending the appeal.
• After Article 15 action is imposed, several service-specific follow-on administrative actions can or will be started. This may include Performance/Fitness Report annotation, Officer Selection Record Filing, Performance/Restricted OMPF Section Filing, and the establishment of an Unfavorable Information File, among other things.
• Military members who refuse the offer for Article 15 action must wait for the chain of command to decide whether the case will go to court-martial or be dropped. Before making this decision, the individual should always seek the counsel of a military attorney who can advise them on the dangers and benefits of their decision.
• Court-martial trials are typically referred to as a general court-martial, a special court-martial, or a summary court-martial. This is important to note, as the severity of the punishment depends on the level of the court. Some may result in federal convictions that preclude the individual from certain employment opportunities and benefits.

Choose the Team That You Can Trust

If you are faced with nonjudicial punishment through Article 15 action and need to decide whether to accept the punishment, it is vital to have an experienced attorney on your side. At Aaron Meyer Law, we can advise you on the risks and benefits of every option and help you make the decision that will have the most negligible negative impact on your current situation and your future. Reach out to us today to see how we can help.