An explanation of Non Judicial Punishment, otherwise known as an Article 15. I will explain the legal authority and the pros and cons of accepting the Article 15 or declining it and demanding a Court Martial.
What is an Article 15- Non Judicial Punishment?
Article 15 is found in the Uniform Code of Military Justice under Part IV Section 815 and Part V - Non Judicial Punishment. It is a Commanders disciplinary tool used for swift and relatively light punishment for allegations of misconduct, as explained in the Articles of the Uniform Code of Military Justice. Generally speaking, Article 15s are appropriate for low level offenses and used to punish Company Grade officers and Junior Non Commissioned Officers and lower enlisted Service Members. The burden of guilt and the standard of proof to find guilt is the same as with a Court Martial - it rests with the prosecution and is "proof beyond a reasonable doubt" to convict an individual. What are the penalties? Depending on an individual's rank, the type of Article 15 and the rank of the individual administering the Article 15 (company or field grade, or General Officer), the an Enlisted Service member is generally looking at loss of some or all rank, up to 45 days of pay, and loss of 45 days of liberties, and a reprimand, whereas an Officer faces loss of half pay for two months and loss of liberties for a month (arrest in quarters).
Should I demand Trial by Court Martial?
Almost never! Consider that those facing Court Martial would love to only be receiving an Article 15 as evidence of their vast differences. In my view, you should almost never turn down Non Judicial Punishment. You may get different advice from different lawyers. But I am very experienced at this, and I can think of very few circumstances to turn down an Article 15. Rare, case-by-case, situations where it may be appropriate to turn down an Article 15: o Evidence suppression or other motions that might determine the outcome of a trial which might be considered at an Article 15 but not admissible at Court Martial. However, there are no guarantees with motions to suppress, so this rarely is the deciding factor. o Unable to get fair and impartial hearing. Perhaps the Commander will not give a fair hearing, in spite of the evidence being overwhelming in favor of the accused individual and an acquittal. However, here I would simply request a different Commander administer the Article 15. Generally speaking an Article 15 would always be better than a Court Martial. In fact, most people facing Court Martial would love to only be facing an Article 15! Consider this - The important protections and rights are effectively the same whether you receive an Article 15 or a Court Martial: o Same 'beyond a reasonable doubt' standard to prove guilt. o Same basic finder of fact and punishing authority - a company or field grade officer. o Same right to remain silent, present evidence, present witnesses and make a statement in writing or in person. o Same right to have someone speak on your behalf. o Same right to appeal the decision to the next highest authority within 5 days. o The Commanding General ultimately oversees and approves or disapproves Courts Martial, and has strong influence over all personnel on base including the Judge, Staff Judge Advocate, and Panel Members and even the Trial Defense lawyers! A Court Martial is referred by the Brigade Commander or Commanding General. The Military Judge is a Field Grade officer, the Panel Members are senior enlisted and officers. I fear high level of unlawful command influence upon ALL military members at a trial. And it only takes 2/3rds of the Panel members to convict. So, that means that if you have 6 panel members, only 4 have to believe you are guilty. Not very good odds, given that the panel members are vested in Good Order and Discipline, appointed by the Commanding General, and look down on misconduct. o Even the Trial Defense Counsel is an officer in the military, subject to the same UCMJ that the accused is, and ultimately is only in Trial Defense briefly in his or her career. A career minded Defense Judge Advocate will ultimately hold other jobs in the JAG Corps and is often hamstrung in his advocacy as a result of concerns about rocking the JAG boat and maintaining good relationships with other JAGs and Judges. A civilian attorney does not have the same chain of command.
What if I am found guilty?
o There are significant differences in sentencing maximums and automatics between an Article 15 and a Court Martial. o Article 15 is completed within days, and any sentence is over relatively quickly, taking away the stress of the anticipation. This results in less uncertainty, less stress, and less complications over the long term. A service member can lose rank and pay and privileges, which are certainly painful in the short term. And that service member may also face involuntary separation from the service. But common sense says that any severe punishment in an Article 15 by an officer would have similar or worse results at a Court Martial. And this makes sense if you think about it. If there was evidence of crime (theft, adultery, drug use, etc.) sufficient to convict at an Article 15, it would also result in a Court Martial conviction. ? Outside of the military, under nearly all circumstances, an Article 15 conviction will be meaningless in the civilian world. Frankly, nobody will care because it was administrative in nature. ? And locally filed Article 15s may have some impact on a career in the short term, but probably not much in the long term. Permanently filed Article 15s aren't ideal, and can be petitioned to be sealed. ? Involuntary Separation may result from an Article 15 conviction. Under some circumstances (an Other Than Honorable Discharge recommendation, or if he or she has more than 6 years in service) a Service Member can fight to stay in the military. But again, if a person were administratively kicked out, there is a good chance that a Court Martial would have resulted in a conviction and a punitive discharge - both of which are worse than an Article 15 and an administrative involuntary separation. And this also makes sense. If the Service Member were convicted of offense(s) (for instance drugs, theft, assault, AWOL, assault, etc.), then he or she would likely face punitive discharge at a Court Martial, and will likely face administrative discharge after an Article 15. If it's a relatively light Article 15, the odds of actually being separated are not very high, and a person could beat a Separation hearing if they are entitled to one. o A Summary Court Martial is a low level Court Martial, and effectively the same or slightly more harsh than an Article 15, with up to 30 days in jail as part of the sentence. The main advantage is having a non-commander as the Judge (called a Summary Court Martial Officer). Understand that he is appointed by the unit Battalion or Brigade Commander so there is the risk of Unlawful Command Influence. o Conversely, a General or Special Court Martial conviction is a lifetime Federal conviction that will absolutely interfere with future job, credit checks, school applications, and life in general. In may be equivalent to a felony conviction, prohibiting gun ownership and voting rights. If convicted, you could easily spend a month or a few months or even a few years in jail, lose rank and pay, etc. A conviction can put Veterans Benefits in jeopardy, and place a permanent smear on your veteran's status. But the big practical risk is the automatic lifetime conviction. There is also significant stress involved in anticipation of a Court Martial. ? Trials are unpredictable. Courts Martial are trials, and every lawyer will tell you they are completely unpredictable. No lawyer will ever give a guarantee about any trial result, because of their compete unpredictability. ? I'm a fighter, but generally wish to shield my clients for unnecessary risk exposure. You can still fight at an Article 15. But at a Court Martial, in a best case scenario, even a full acquittal at a Court Martial, there are months of sleepless nights and if you hire a private lawyer the expense of fighting the Court Martial, which will be many thousands of dollars. Also consider that the odds are stacked greatly against a full acquittal. I believe that the conviction rate at Court Martial is in the high 90%. Not a good idea to roll those dice when those are the overall odds, with so much at stake. Odds are a conviction, and a sentence what will likely make a person regret their turning down the Article 15.
I want my day in court!
No, you really don't. You aren't going to prove any points, embarrass your chain of command, or hold the floor to protest your unit. You aren't going to get any apology from the unit or Army for wronging you. The Military Judge isn't going to have any sympathy for you, or scold your commander. The media doesn't care about the fact that you feel that your leadership are mean or wrong. Your case won't end up on the news nor will there be cameras following you into the courtroom. This isn't like in the movies, where you call your Commanders bluff by demanding trial. In reality, you will quietly demand your trial, and get a trial, and probably get convicted. The Army won't notice or care, your unit won't care, and you'll become a bitter individual and in a decade regret your actions, and bad decisions in demanding a trial. You'll disappear into obscurity as that Soldier that got convicted for his misconduct and kicked out, and become a statistic. Let's be honest. You probably made some bad decisions, which led to the Article 15. Now it's time to start making good decisions by consulting with a lawyer, and following sound legal advice. That advice is probably to accept the Article 15, and fight it on those terms.
What should I do?
You need a strong, experienced defense legal team. As one of my former clients once said, "...your life story is that important." Don't settle for a detailed attorney. While most are good, they are also overworked and spread thin. With a hired lawyer, you can keep your detailed lawyer, and two lawyers are always better than one. The difference in results can be significant. Hire a lawyer that will make you his number one priority and focus on the needs of your defense. I worked as a Judge Advocate Trial Defense lawyer and as a Judge Advocate for several years. The hours and work load make it nearly impossible to give the individual attention you should give to individual cases. As the owner of Law Firm of Ryan Sweet, PLLC, I hand pick my clients and take less cases so I can give my clients the personal attention they need. I have successfully gotten Article 15s dismissed and also had clients who I helped defeat Article 15s. I have also earned great results at Court Martial by getting cases and charges dismissed before trial and otherwise excellent trial results. That is the type of dedication and determination I give to my clients. Bottom line, if it's a weak Article 15, then simply beat it while the stakes are low. I'd personally rather fight a weak Article 15 with low stakes gamble with the potential for loss than fight a weak Court Martial with high stakes gamble with the potential for loss. If it's a strong Article 15, then it generally would be a strong Court Martial. Clearly the potential and automatic penalties are much, much worse at a Court Martial if you lose, without exception.
What can Law Firm of Ryan Sweet, PLLC, do for you?
First, you will get a free no-obligation consultation. I will review your case and facts with fine detail and listen to your side with an open mind. I will give you my advice and give you an honest, no bull, appraisal of the situation. If you hire my firm, I will interview key witnesses and review evidence. I will attempt to get the Article 15 dismissed by negotiating with the prosecutor and/or Commander. If you decide to accept the Article 15, I will help you prepare the best defense available and/or mitigation of the sentence if necessary. It is ultimately your decision whether to turn down the Article 15, and if you do, I will represent you with total zealous representation at your Court Martial.
Additional resources provided by the author
Manual for Courts Martial, UCMJ, Part IV, Section 815, and Part V, Non Judicial Punishment and Article 15.
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