This guide lays out what an Article 15 is and what your legal rights are as you go through the process.
What is an Article 15?
An Article 15 is one tool in the Commander's toolbox to respond to alleged service member misconduct. In the Navy, an Article 15 is commonly referred to as a Captain's Mast. Regardless of what you call it, it is governed by Article 15 of the Uniform Code of Military Justice. Contrary to popular belief, an Article 15 is NOT a guilty plea, but rather a forum choice. What I mean by that is an Article 15 is a great opportunity for a service member to keep his or her options open. When you accept an Article 15, you are not saying you committed the offense your Commander believes you did. Instead, by accepting an Article 15, you are in effect saying that you trust your Commander to make the right decision in your case, whether that is finding you not guilty, or giving you an appropriate punishment. Receiving an Article 15 should not be viewed as your Commander finding you guilty before you even get a chance to respond. What is important is that you must make a quick decision when offered an Article 15 because you often only have three duty days to respond. While you are afforded a free military attorney, the chances are you seldom get the opportunity to meet with that attorney in person. Military defense counsel are required to travel a lot in order to represent service members in court martials, so you are often relegated to dealing with a paralegal or speaking with a distracted lawyer over the phone and through email during breaks in a court martial. The decision to accept or turn down an Article 15 is important for your life and your career, and you deserve the full attention of a lawyer who is helping to assist you. Do not accept anything less.
Understanding your rights
You have to make a decision quickly on how you are going to respond. Effectively, you can decide 1) To tell your Commander you trust him or her to find you not guilty and then present evidence as to why they should; 2) To tell your Commander that you are guilty and you trust him or her to impose a fair punishment; or 3) Demand a trial by court martial. You need a realistic outlook when making this decision. Your Commander already believes you committed an offense or they would not have offered you an Article 15. Also, the legal office is usually going to be arguing against you behind the scenes and pushing the Commander to find you guilty. Accepting an Article 15 is an exercise in faith in your Commander, and not a decision to be taken lightly. You need an experienced attorney to help you make that decision. You have the right to a free military attorney. You also have the right to hire a civilian attorney at your own expense. This is an important decision, and no one can make that decision except for you. An Article 15 has a huge impact on your career and future, make sure you feel comfortable with your attorney and the advice they are giving you. You have the right to examine ALL the evidence available to the Commander in support of the alleged offense. When you are served with an Article 15, the evidence should accompany the form you are presented by the Commander. However, it is not uncommon for the government to withhold evidence they did not feel was important. For example, if you are accused of underage drinking and there is a video from the party, do not be surprised to see the video referenced in the evidence you are provided but not actually included. Your attorney needs to get a copy of that video so you can observe it yourself. Also, if there are reports that indicate you are innocent, you are entitled to those as well and your attorney should be fighting to obtain them. You have the right to make a written statement to your Commander. Most of the Article 15's I have seen are handled with a written statement. The biggest mistake I see is a service member accepting the Article 15 forum but not making any statement at all. That sends a clear message to your Commander that you do not care. If the government has you dead to rights, at a minimum you should produce a statement that expresses regret. You can attach whatever documentation to support you that you can get. For example, you can present evidence or character statements to support your position that you are either not guilty or that you should receive a light punishment. Commander's must review and consider all the evidence you present, but that does not mean they will reach the conclusion you want to. A bad Commander will look at everything you present and then do whatever he or she wants to do anyways. It is important when you are deciding whether to accept the Article 15 to consider whether you trust your Commander or not. Examples of documentary evidence to accompany your statement include information concerning your job performance, letters of appreciation, character letters from supervisors, peers, and co-workers, performance reports, and financial statements you want the Commander to consider before potentially imposing a financial punishment. When you are getting letters, bear in mind that your Commander will likely put more stock in the word of supervisors than your friends. Talk with an attorney about what letters would be appropriate for your case. You have the right to make a personal appearance. When you decide to make a personal appearance, there are several things you should consider. First, your Commander is not always in his or her office, so schedule your personal appearance in advance. Secondly, while some cases are appropriate for you to go look your Commander in the eye and take personal responsibility or make your own plea, there are plenty of times that doing so can backfire. For example, if your Commander is really mad at you; and your personal appearance consists of you making weak excuses for your conduct; that is likely to have a detrimental effect. Your Commander will be required to write up a summary of what you presented to him or her, but it will be in the Commander's words, not yours. I have seen service members get themselves in more trouble in a personal appearance because they did not consult with an attorney about exactly what they wanted to say and why. You cannot go into your Commander's office and wing it. Have a plan and a strategy that you develop with your attorney. Finally, you have the right to appeal whatever decision your Commander makes. The Commander at the next level of Command will be the one to hear your appeal. There are lots of times that making an appeal is necessary. For example, if your Commander reaches a ridiculous conclusion that effectively ignores the evidence you presented, you need to appeal. If your Commander brings down the hammer on you, you need to appeal. However, if your Commander gave you the light sentence that you requested, what are you expecting from the next Commander? Also, if you have really bad facts in your case, do you really want to highlight how bad you screwed up to the higher chain of command? These are important considerations to think about with your attorney. You should come into your appeal with a realistic outlook, most Commanders are going to support the decisions of their subordinates, and it is unfortunately rare to see a successful appeal, but certainly it does happen.
Article 15 vs. Court Martial
You control what forum is appropriate once an Article 15 is offered, because you can always demand a trial by court martial. Every single legal office is going to view an Article 15 in light of a court martial, because they need to make sure they have the evidence against you to succeed in the courtroom should you decide you want one. It is frankly embarrassing for Commanders when you turn down an Article 15, demand a trial by court martial, and then they issue you a letter of reprimand instead. It runs counter to good order and discipline and sends a bad message to your unit. While that does happen sometimes, if you turn down an Article 15, you should expect a court martial. Usually the court martial you receive is a Special Court Martial. While the military does not have felonies and misdemeanors, a Special Court Martial is equivalent of a misdemeanor. A Special Court Martial has limits on the punishment that can be imposed. For example, you cannot serve more than one year in jail, and you cannot receive a Dishonorable Discharge, only a Bad Conduct Discharge. However, if you receive an Article 15 for a sexual offense, understand that the military is now limited in the options it has, so you are likely facing a General Court Martial if you go to court, and if found guilty you could face sex offender registration and a mandatory Dishonorable Discharge. Regardless of what offense you head to trial on, you need to understand that if you are found guilty, you face a Federal Conviction that will be on your record. Turning down an Article 15 is a huge roll of the dice, and is not a decision that you should make without talking to an attorney that you trust first. Also consider that the charges you see on the Article 15 will not necessarily be the same charges you see when Court Martial charges are preferred. When you turn down an Article 15, the legal office frankly gets excited because they think they have a great Court Martial, and they immediately start digging to find additional crimes and evidence. There are times to stand up and fight, and times to limit the damage to preserve your future.
Effects of an Article 15
The imposition of an Article 15 can impact your career in many ways. Your Commander has several options if you accept the Article 15 and he or she finds you guilty. Punishment: The punishment imposed can differ depending on the person who is administering an Article 15. So if your Commander is lower in rank, his or her options may be limited. Of course the easy way to remedy that for the government is to have someone higher ranking in the chain of command issue you an Article 15. The primary punishments you could be facing include reduction in rank (for enlisted only), extra duties, restriction to base, and forfeiture of pay (up to half your pay for two months). You might be asking yourself why Officers do not face a reduction in rank, and the answer is because of the way they are commissioned. They receive a commission from Congress, and reducing an Officer in rank is a very long process. Your Commander also has the ability to suspend any punishment. What that means is if he or she reduces you in rank, but suspends that punishment, you are essentially on a very short leash. If you commit any infraction, your Commander can vacate the suspension and impose that punishment. For example, I had a client who had a stripe suspended, and he was caught going 4 mph over the speed limit on his way to work. His Commander vacated that suspension and reduced my client in rank. If you get a suspended sentence, you really need to be on your very best behavior. Unfavorable Information File (UIF): A UIF is automatic in some situations. When punishment is not finalized within one month, a UIF will be created. For example, if you have a suspended punishment, a two month forfeiture of pay, or more than 30 days of extra duties, you will have a UIF created. A UIF can impact your immediate future as it makes you ineligible for some opportunities like a PCS or promotion. Promotion: Receiving an Article 15 does not prevent you from promoting, but it does serve as a sufficient basis for your Commander to delay or remove your promotion. Officers as well as E-7's and above potentially face an entry in their Officer Selection Record, which would serve as a basis to effectively prevent you from promoting. Assignments: A military member who received an Article 15 is ineligible for a PCS move until the Article 15 punishment or period of suspension is completed except for mandatory DEROS moves. Performance Reports: An Article 15 action usually serves as a basis for a referral performance report although it is not automatic. Although the Article 15 should not be referenced, the underlying conduct will serve as one bullet on your performance report. Reenlistment: You are ineligible for reenlistment while undergoing punishment (whether suspended or unsuspended). Your Commander has a lot of options to set aside or remit your punishment in order to make you eligible. Retirement Grade and Pay: When you retire, you retire in the grade held at the time of your retirement. So if you receive an Article 15 right as you are retiring, and your Commander takes a stripe, you will not retire at your previous rank. For Officers, if you receive an Article 15 within two years of your retirement, an Officer Grade Determination will be made. That determination retires you in the grade in which you last served honorably. Administrative Discharge: You cannot be discharged during the Article 15 process. However, if you have other offenses, or based on the nature of the Article 15 offense, you could face an administrative discharge. This administrative discharge could be a General Discharge or an Under Other than Honorable Conditions Discharge (UOTHC). If you are notified that your Commander intends to discharge you with a General Discharge, depending on how long you have served your only recourse is to make a written response asking them not to. This has huge impacts on your entitlement to educational benefits. High Year Tenure: Especially in the force shaping environment we see ourselves in, an Article 15 can sometimes spell the end of your career because of High Year Tenure. Usually service members will be given at least one opportunity to test to re-earn their rank before facing High Year Tenure, but every case is going to be different.
Article 15 response
The majority of Article 15's are accepted because going to a court martial has exceptional risk, and an Article 15 is a good way to limit the damage. When you visit your free defense counsel, you will likely receive a template to write a response to your Commander. These templates unfortunately cause problems though. Everyone typically follows the response, and because of the cookie cutter nature of the templates, your response does not sounds genuine. Most templates have a section where they advise you to talk about your background. The thinking behind this is that it is important for your Commander to see you as a person rather than the knucklehead who got caught asleep on duty or got into a bar fight. However, when every response you see begins "I was born in Skokie Illinois and I have five brothers who are all still in school..." Your Commander frankly does not care what your hometown is or the fact that your younger brother looks up to you. He or she wants to see how you will respond to the allegation. I am a big believer in service members writing their own responses for the first draft for the simple fact that your Commander does not want to hear from your attorney. However, most service members need a lot of editing to make their case well. For example, I have seen a remarkable amount of Article 15 responses that contain grammatical and formatting errors. Those are easily preventable, and failing to give your Commander a professional looking response when your career is on the line tells him or her that you do not care. I also require all of my clients to explain why they are accepting the Article 15 in the opening paragraph. The reason I do this is because by making it a clear offer to settle, I have successfully prevented member responses from being used in a court martial. I also refuse to allow my clients to say the phrase "nothing like this will ever happen again", because it limits your options when you are accused again. Your response, or your presentation needs to be well thought out with a well-developed strategy. If you care about your career, you should not wing it, or place your fate in a free lawyer who often does not have time to meet with you personally. While there are many fantastic military defense counsel, it is important that you are confident with your attorney and receive the personal attention you deserve.
Additional resources provided by the author
For a PDF version of this legal guide with formatting that is easier to read, feel free to download a free copy from my website at www.taylordefensefirm.com
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