Soldier Decisions and Recourse during Article 15 proceedings

What hap­pens after the deci­sion has been made to pur­sue Article 15 action? The fol­low­ing gen­eral advice is writ­ten pri­mar­ily for Soldiers fac­ing Article 15 pun­ish­ment and lead­ers who have sub­or­di­nates under­go­ing an Article 15. The focus is on Soldiers, but the same prin­ci­ples apply to Sailors, Marines, Airmen, and Coast Guardsmen.

Soldier Decisions

Soldiers must decide if they will accept Article 15 pro­ceed­ings or elect for court-martial

Soldiers may accept or not accept Article 15 as a way to dis­pose of mis­con­duct charges (assum­ing they are not embarked in a ves­sel). If the Soldier accepts Article 15, that is not by itself ‘plead­ing guilty.’ There is still the choice to plead guilty or not guilty.

If the Soldier pleads not guilty then she can present evi­dence and wit­nesses on her behalf. Unlike the other Services, the Army com­man­der ulti­mately must find ‘guilt’ beyond rea­son­able doubt. Whether the com­man­der finds the Soldier guilty or she pleads guilty, the com­man­der then imposes a pun­ish­ment she deems appro­pri­ate con­sid­er­ing the cir­cum­stances of the mis­con­duct, the Soldier’s atti­tude, and the qual­ity of service.

Appeal of the pun­ish­ment action

Once a Soldier has been found guilty, there are ways the deci­sion can be mod­i­fied or reversed. An appeal of Article 15 pun­ish­ment alleges the impo­si­tion of pun­ish­ment was unjust and/or too severe.

If the Soldier plead not guilty: The Soldier’s appeal can chal­lenge both the just­ness of pun­ish­ment and the sever­ity of the pun­ish­ment. Punishment can be con­sid­ered “unjust” if there was not suf­fi­cient evi­dence of guilt and/or there was a sig­nif­i­cant fail­ure to fol­low the cor­rect procedures.

If the Soldier plead guilty: The Soldier is lim­ited to appeal­ing the pun­ish­ment itself.

What if the Soldier gets in trou­ble again?

If a Soldier faces pun­ish­ment under Article 15, a num­ber of things can hap­pen if they do not cor­rect their sub­stan­dard behav­ior. They can get another Article 15. They could be referred to court-martial. If the Soldier is sent to court-martial, the con­duct under­ly­ing the first Article 15 can be charged. That is not dou­ble jeopardy.

Article 15(f), UCMJ, states:

“The impo­si­tion and enforce­ment of dis­ci­pli­nary pun­ish­ment under this arti­cle for any act or omis­sion is not a bar to trial by court-martial for a seri­ous crime or offense grow­ing out of the same act or omis­sion, and not prop­erly pun­ish­able under this arti­cle; but the fact that a dis­ci­pli­nary pun­ish­ment has been enforced may be shown by the accuse upon trial, and when so shown shall be con­sid­ered in deter­min­ing the mea­sure of pun­ish­ment to be adjudged in the event of a find­ing of guilty.”

Keep in mind the case of United States v. Pierce, 27 M.J. 367 (C.M.A. 1989) which states that the Soldier must be cred­ited with any pun­ish­ment already served at the first Article 15.

The Soldier could also be admin­is­tra­tively dis­charged with or with­out a new Article 15 punishment.

References

• Article 15, UCMJ
• Part V., Manual for Courts-Martial
• Chap. 3., AR 27–10 (3 November 2011)