Generally, no. Paragraph 3-10, AR 27-10 (Military Justice) states,
When nonjudicial punishment has been imposed for an offense, punishment may not again be imposed for the same offense under UCMJ, Art. 15. Once nonjudicial punishment has been imposed, it may not be increased, upon appeal or otherwise. When a commander determines that nonjudicial punishment is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be considered at that time, including all offenses arising from a single incident or course of conduct, will ordinarily be considered together and not made the basis for multiple punishments. This provision does not restrict the commander’s right to prefer court-martial charges for a non-minor offense previously punished under the provisions of UCMJ, Art. 15.
The key part of this paragraph you want to pay attention to is highlighted. Basically, all known charges should be brought forward at the same time on one Article 15. If you are receiving multiple Company or Field Grade (or a combination of the two) Article 15’s at the same time, then you need to let your Defense Counsel know when you speak with them. You must be provided the opportunity to speak to legal counsel at Trial Defense Services when receiving a Company or Field Grade Article 15. Do not waive this right and speak to an attorney.
Common misconceptions
Now, there are a couple situations when a Soldier may appear to be receiving multiple Article 15’s at the same time, but they actually are not. I will cover those next.
Situation 1:
Soldier received a Field Grade Article 15 and the process was complete. The punishment imposed was reduction to PFC, extra duty, and restriction for 45 days. At some point during the extra duty, the Soldier was late to extra duty on two occasions (violation of Art. 86, Failure to Report to place of duty). While the Soldier is completing the 45 days extra duty from the initial Article 15, he receives a 2nd Article 15 for the two times he was late to extra duty. The punishment from the 2nd Article 15 was reduction to PV2 and 45 days extra duty and restriction. As long as he states his intent when the punishment is being imposed for the second Article 15, he may direct that the 45 days extra duty and restriction not begin until after the extra duty and restriction from the first Article 15 has been completed. The Soldier ends up performing 90 consecutive days of extra duty and 90 consecutive days of restriction. This is legally sound.
Situation 2:
Soldier received a Field Grade Article 15 for being AWOL and the process was complete. The punishment imposed was reduction to PFC, suspended for 180 days, forfeiture of 1/2 months pay for 2 months, suspended for 180 days, 45 days extra duty, and 45 days restriction. As long as the Soldier has no misconduct for 180 days after imposition, the Soldier will not be reduced to PFC and will not have monies taken from his pay.
90 days after imposition of the first Article 15 (before the 180 suspension is up) the Soldier participates in a unit urinalysis and pops hot for marijuana. Due to the marijuana misconduct the imposing commander of the first Article 15 vacates the suspension of the reduction and forfeiture of pay. The Soldier is then reduced to PFC and has the 1/2 months pay for two months taken from his pay as imposed on the first Article 15. The Soldier also receives a 2nd Article 15 for the positive UA in which he is reduced to PV1, forfeiture of 1/2 months pay for 2 months, 45 days extra duty and 45 days restriction.
This is not double jeopardy and the Soldier is not receiving 2 Article 15’s at the same time. The suspended reduction to PFC and first forfeiture was implemented because the Soldier failed to stay out of trouble for 180 days. The reduction to PV1 and 2nd forfeiture was due to the positive UA.
These situations can be confusing. Be sure to speak with legal counsel at Trial Defense Services if you have any concerns.
I hope you found this helpful.
Disclaimer: I am not an attorney and any views presented are my own and are not to be
interpreted as legal advice. Furthermore, my views do not necessarily
represent the views of DoD or its Components.
Comments
Sharde
During tech school, an airman basic broke curfew twice on two separate occasions (about 3 weeks apart). The commander issued 2 article 15’s at the same time for each incident then recommended discharge. Did the commander tactfully issue two Article 15’s instead of one to initiate discharge? Is this correct protocol?
Mark Gerecht
Sharde,
Here’s what I heard from one of our SME’s. Hope this helps:
While the wording is different, the same rules apply in that all known offenses should be brought at the same time.
Army – AR 27-10, para 3-10 excerpt, “…When a commander determines that nonjudicial punishment is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be considered at that time, including all offenses arising from a single incident or course of conduct, will ordinarily be considered together and not made the basis for multiple punishments…”
A little research into the Air Force regulations found the following:
Air Force Instruction (AFI) 51-202, Nonjudicial Punishment, dated 7 November 2003 (Change 3, dtd 11Aug2011):
Para 3.11. Discovery of Additional Offenses.
When evidence of an additional offense or offenses arises following initiation of NJP proceedings, (embut before the member is notified of the punishment, a commander may:
3.11.1. Withdraw the initial AF Form 3070 and reinitiate NJP to include all offenses. If the form has been sent to a superior commander, do so only with the superior’s agreement; or
3.11.2. Proceed with the initial NJP proceeding and offer a second NJP for the additional offense or offenses.
This paragraph allows a commander to either withdraw the initial Article 15 and combine the offenses into one Article 15 or conduct separate Article 15s for each offense. This only appears to apply when additional misconduct has been discovered AFTER the first Article 15 was already initially read to the Soldier. In the case presented in the question, it appears the command knew of both offenses and did seperate Article 15s, even though the first offense was not initiated yet. This would appear to be in violation of AFI 51-202, but I am by far not an expert on Air Force NJP. I would assume, if the Soldier sought legal counsel, the defense attorney would have caught any wrong doing. However, if this was the case, and the Airman was separated based on the two NJP actions, that Airman could potentially win a case presented to the Board for Correction of Military Records by submitting a DD Form 149. (See this link: http://www.dfas.mil/correctmilitaryrecords.html) This may be more difficult if the Airman was in an entry level status. The rules are different when in entry level status.
My limited interpretation of the differences between Army and Air Force NJP, is that there really is not a difference in when/how UCMJ is supposed to be imposed. All known violations should be brought at the same time when the offenses are known before any UCMJ action is initiated against a Soldier/Airman.
In the Army, my experience has been that even after the Soldier has had an Article 15 initiated, as long as punishment wasn’t imposed (2nd reading/hearing phase conducted), the commander would withdrawal the initial Article 15 and present a new Article 15 showing all misconduct when new misconduct was discovered.
NOTE: The Army does not prevent issuing a second Article 15 if the new misconduct was discovered after the initial Article 15 was presented to the Soldier, but generally does not take this route. It gives an impression of trying to “hammer/get” the Soldier and provides fodder for TDS to argue the command was “after” the Soldier if the charges were referred to court-martial. Judges do not look kindly on this.
Now, I will also point out that in the Army, when a Soldier is in basic training or AIT phase and has misconduct, the rules are more lenient to discharge them. I would assume this was the same in the Air Force. If a young Soldier/Airman demonstrates they cannot keep themselves out of trouble and follow the rules while in a structured and controlled environment such as basic/tech school, it makes the decision easy for a commander to recommend separation before the military has any additional training and money invested. This is especially true during this period of downsizing. The services are only looking to keep the best and strongest performers.
I hope you found this useful.
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SGT Williams
Just to verify: If I have a Soldier/NCO who received an AR-15 and was under a 60 day suspension and got in trouble (showing up late/not at all to formations on 3 separate occasions within that suspension window, he may receive another AR-15 for the new offenses? Or is he still going to be punished (ie. loss in rank) for the AR-15 he had already received or both depending on the Commander?
Mark Gerecht
In the scenario described the Commander can do the following:
1) Based on the Failure to Report (FTR) incidents during the suspension period, the Commander can vacate (cancel) the suspension and impose any punishment that was suspended. This is not punishing the Soldier for the FTRs, but imposing the full punishment handed out for whatever the original misconduct was. (This would be the first thing the Commander does.)
2) The Commander can then elect to give the Soldier a second Article 15 for the FTRs. Any punishment imposed during the second Article 15 will be in addition to the punishment (suspended or not) from the first Article 15.
The Commander may elect to do only the first option or both. However, the vacation of the suspended punishment should be completed before the Soldier receives the second Article 15. That is not to say the suspended punishment has to be completed before the second Article 15 is done, only that that the suspension be vacated first.
This is a normal scenario: Soldier had extra duty suspended from an Article 15; Commander vacates the suspension based on additional misconduct and the Soldier begins serving the previously suspended extra duty; while serving the previously suspended extra duty, the Soldier is given a second Article 15 for the misconduct that prompted the Commander to vacate the previously suspended punishment. Any extra duty/restriction imposed from the 2nd Article 15 will be added to and begin after the previously suspended punishment.
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Eck
Hi Tameka,
While your case does not seem to follow a “normal” pattern for a chapter, it does not appear to violate any regulations or the UCMJ that I can see.
You mentioned that you had a positive UA. AR 635-200, Enlisted Separations, para 10-6c(1), states, “All Soldiers, to include USAR Soldiers, identified as illegally abusing drugs will be processed for administrative separation in accordance with appropriate enlisted or officer separation regulations.”
Basically, neither your BC or CSM has the authority not to process you for separation for a positive UA. By regulation, you must undergo separation proceedings. That does not mean that you have to be separated, only that your chapter proceedings must go to the separation authority (normally would be the Brigade Commander) and he/she will decide whether to separate or retain the Soldier.
I hope this better helps you understand your position.
Eck
“The views presented by the author are his own and do not necessarily represent the views of the DoD or its Components.”
Disclaimer: I am not an attorney and any views presented are my own and are not to be interpreted as legal advice. Furthermore, my views do not necessarily represent the views of DoD or its Components.
Tameka
I went thru a article 15 in july 2011 and got a reading from my company cpt and firat sgt. My cpt wrote my article for a company grade and one rank taken, the sgt major said no and I was given a field grade I went from a a e4 to e2. They didnt take all my rank because i had never been in trouble and was going to re enlist. I was given 45 extra duty and pay taken, I was told by the BC and sgt major I was not being chpt. Out. IN Sept of that yr. (2011) we got a new cpt. In oct our first sgt also left and we had a new one, my cpt waited til my first left and in jan 2012 he told me he was chaptering me for my positive UA. Six months after my reading and punishment was over. They kept a flag on my erb for those six months so i couldnt re enlist or get prompted. My cpt didnt re start my chpt, instead moved me another unit and a third commander chapter me. I was told that none of this was by the UCMJ CODE is this true?
STERLING PARKER
I HAD AN INCIDENT IN OCTOBER WHERE I WAS AFTERWARDS PLACED IN ASAP AND HAVE A NO DRINKING POLICY THAT WAS SUPPOSED TO BE REVIEWED EVERY WEEK HAS NOT YET AND REQUIRED TO GO TO MARITAL COUNCELING AND BEHAVIORAL HEALTH I WALKED INTO THE OFFICE TODAY AND WAS TOLD I WOULD BE GETTING A ARTICLE 15 AS WELL I BELIVE ITS WRONG BUT PLEASE EMAIL ME BACK ASAP THANK YOU
Mark Gerecht
Your command can process an Article 15, if the conduct that led to your enrollment in ASAP and martial counseling violated an aspect of the UCMJ. You should seek guidance from your local JAG. The Army has up to 2 years to process a UCMJ offense.
ECK
Generally speaking, No, a Soldier will not be subjected to Article 15 proceedings while being court-martialed.
However, the phrase “pending a courts-martial” can be interpreted in different ways.
A Soldier may believe they are pending a courts-martial if their command told them they are considering courts-martial or even said they are taking the Soldier to courts-martial.
While the command may intend to take a Soldier to courts-martial, a courts-martial is not official until charges are actually preferred and the Soldier is notified of the charges. Sometimes, a command will consider pursuing a courts-martial, but then decide an Article 15 would be more appropriate.
That being said, all known charges should be brought at the same time whether it be at courts-martial or Article 15 action. An Article 15 for say, being late to formation, should not be processed while the same Soldier is being considered for courts-martial for say, drugs or some other misconduct. In any event, a Soldier should not processed for an Article 15 and a courts-martial at the same time.
If this seems to be occurring, ensure the Soldier utilizes their right to speak with an attorney at Trial Defense Services. That attorney will ensure the Soldier’s rights are protected.
Disclaimer: I am not an attorney and any views presented are my own and are not to be interpreted as legal advice. Furthermore, my views do not necessarily represent the views of DoD or its Components.
JEREMY
CAN YOU GET A ARTICLE 15 WHILE PENDING A COURTS MARTIAL???
SGT NICK
Your are very right sir, I remember there was a big fuss in my unit when a soldier did the 90 days extra duty with some saying it was cruel, he just kept popping hot on the UA.