This depends on what the Commander is wanting to charge them with. If it’s anything related to the theft, then I would strongly suggest the Soldiers speak with TDS and provide a copy of the MP Report. They can request this from the MP station. If the Commander is using it as evidence, then it will be in the Article 15 packet when they are given their first reading. The Commander may be considering other lesser charges under Article 134.
If the Soldiers were cleared by the MP Report/Investigation, then the Soldiers needs to speak with TDS and get legal advice from the defense attorney. This may be one of those cases in which the Soldier migh want to consider turning down the Article 15 and proceed to court-martial. However, that is a decision the Soldier has to make
To Counsel or Not to Counsel
I would recommend the two Soldiers receive a counseling statement discussing the situation and the potential trouble they could have been in. I find it difficult, if the Soldiers were hanging out together while at the bar, that one or the other did not know about their buddy’s intention to take the mug. Keep in mind the Soldiers have a duty and obligation to report violations of law and wrongdoing.
The situation, based on the information provided does not sound like a strong case. Having said that, it is the Commander’s discretion whether to pursue UCMJ or not. If the Commander decides on a summarized article 15, then the Soldiers are not entitled to TDS consultation, but they can appeal it to the next higher Commander if found guilty by the imposing commander