Is there any recourse if a commander finds a SM guilty of an offense under UCMJ totally without evidence?

2021-07-14T11:03:22-04:00

I have a friend who received a field grade article 15, and was found not guilty on counts 1 and 2, but guilty on counts 3 and 4. The commander flat out said if there were no count 4, he would not have gone to UCMJ for count 3. Count 4, however, was totally without evidence. The investigating officer didn't even speak to the individual to whom my friend was supposed to have made an inappropriate remark. The appeal was made, and denied. Is there any recourse?

Response by Lt Col Scott Shuttleworth made Jul 14 at 2021 11:11 AM

2021-07-14T11:11:13-04:00

Well, if I remember right an Art 15 is non judicial punishment which means he accepted the Art 15 foregoing a Courts Martial. When he accepted it he could appeal it to the next higher authority to overturn the Art 15 but that is not usually likely unless there is overwhelming evidence to the contrary because he accepted the punishment's. If he thought there wasn't enough evidence then he had the option to go to Courts martial and try it there. My rule of thumb as a Commander was if I am bringing an art 15 to you you can rest assured I have the evidence to go to courts martial...some Commanders bluff and get away with it but I wasn't willing to chance it. He needs to find a defense counsel and ask his options...probably should have done that prior to accepting the Art 15 but we are where we are now.

Response by CPT Lawrence Cable made Jul 14 at 2021 1:03 PM

2021-07-14T13:03:44-04:00

There really isn't an additional appeal process for Article 15 since it is non-judicial punishment. Once it is denied by higher, that's it. These cases should have been vetted by JAG before the Commander acted on it.
OK, I don't understand one thing. Your friend has the right to call witnesses, why didn't they call the person involved to testify if it would clear them?

Response by SGM Bill Frazer made Jul 14 at 2021 1:25 PM

2021-07-14T13:25:08-04:00

Might go to Bde CDR- But even being guilty of 1 out of 4 counts, is still guilty and punishable.

Response by SFC Private RallyPoint Member made Jul 14 at 2021 2:26 PM

2021-07-14T14:26:23-04:00

An Article 15 is not a trial. Just like with a GOMOR or Censure the standard of evidence is different. In an Article 15 the Soldier chooses a non-judicial route with the Commander being the judge, prosecuter and jury but the worst sentence is a reduction, some pay and extra duty. The alternative is judicial and the Soldier has the opportunity to plead their case before a judge and impartial jury but the punishment can be much worse.

Unfortunately when the process is administrative or non-judicial the standard of evidence is lower and the command does not have to "prove" anything. If the UCMJ authority decides the Soldier is guilty and the appeal authority agrees, that is the end of the appeal process.

Response by SPC Private RallyPoint Member made Jul 14 at 2021 4:30 PM

2021-07-14T16:30:29-04:00

The person can appeal to the next commander, and if they do so they should provide an additional written statement and reason for the appeal. They can even reference essentially hearsay as their argument for why the punishment should be reduced or dismissed all together based on the findings or content of the investigation.

Some people think appealing to the brigade commander after the battalion commander has ruled is pointless or a waste of time and that the brigade commander will always support their lower commanders. Not always so, I have seen higher commanders completely upend the decisions of their lower commanders based on the statements and additional supporting docs provided by the Soldier.

The reality is you never know what the next higher authority is willing to consider, so if you want to appeal do it. Just make sure you submit additional supporting documents for them to consider at the very least a written statement explaining the decision to appeal. The worst that commander will do is deny your appeal.

Response by CSM Darieus ZaGara made Jul 14 at 2021 4:36 PM

2021-07-14T16:36:41-04:00

The appellate authority would appear to be the BDE Co. what did the defense attorney say. Is your friend a fellow Warrant? JAG will not allow an unsubstantiated charge to be listed. In the event of an appeal. If an appeal was made and denied the only real option left would be to submit is to a Congressional.

Response by MSG Private RallyPoint Member made Jul 14 at 2021 7:27 PM

2021-07-14T19:27:14-04:00

As a member if a command team I can say the Art 15 paperwork would not have even been written unless the legal team said there was sufficient evidence. The commander still has the burden of proof. However, it is to a lesser degree then a civilian court, more like very likely to have occurred instead of beyond a reasonable doubt. While it is odd the IO didn't talk to whom the comment was made the findings/results/recommendations would have to have been reviewed by the legal team before being presented to commander. If the lack of evidence was that great he should have gone to court martial. Your buddy should take a copy of the investigation and art 15 paperwork to IG and see if they can do anything.

Response by CWO3 Private RallyPoint Member made Jul 15 at 2021 1:37 PM

2021-07-15T13:37:44-04:00

NJP with emphasis on non-judicial.

Response by CDR Philip Cave made Sep 26 at 2021 9:39 AM

2021-09-26T09:39:10-04:00

Appeal within 5 days of imposition of punishment.
If that fails, petition Board for Correction of Military Records.