Should demanding a Court Martial be used as a way of "Getting out of" an Art15?

2015-03-19T10:05:03-04:00

This came up because twice in my career I have seen SM's that were offered an Article 15 (NJP) and elected to be tried by Court Martial, which is their option. In both cases the SJA (JAG) declined to prosecute under Court Martial proceedings due to the higher level of evidence required for a Court Martial conviction. In the one case, the member ended up with a Letter of Reprimand from their Squadron Commander (O5) and in the other the member received a Letter of Reprimand from the next higher Commander (Group/O6).

While LOR's are bad, they have no where near the same effect on a SM as an Art15.

What are your thoughts?

Response by CPT Zachary Brooks made Mar 19 at 2015 10:06 AM

2015-03-19T10:06:06-04:00

Interesting way to game the system. Is it possible to fall back on the Ar15?

Note: I voted "No" because it should not be used that way, that is against the values of Integrity.

Response by Capt Richard I P. made Mar 19 at 2015 10:29 AM

2015-03-19T10:29:46-04:00

It is the right of every accused to be prosecuted in a court of law, NJP is a compromise to save the command the time and expense of a Court Martial, the compromise being reduced sentencing and reduced standards of evidence.

Being cited for misbehavior does not mean a SM is guilty of it, hence the requirement for a Court-Martial in which their misconduct can be proven. NJP is a convenient compromise. So, I dont agree that anyone is "Getting Out" of an Article 15, they are declining the compromise offered to them.

An SM that elects Court Martial is rolling the dice, penalties go up big time.

A great example of a good use of refusal of NJP and election to trial by Court-Martial is the case in which Captain Sobel accused Capt Dick Winters of failing to obey an order.

Response by Sgt Aaron Kennedy, MS made Mar 19 at 2015 10:35 AM

2015-03-19T10:35:02-04:00

Article 15 is Non-Judicial Punishment. A local commander depending on service & rank can take rank, pay, privileges, etc. Keep in mind that an NJP is "one man's opinion" and if you don't trust that one man, you're better to escalate it up.

"If" the service member thinks that the "crime" doesn't rate the the potential punishment that can be imposed by that commander, hell yes he should request Summary CM. That's why it's in the books.

Imagine if you are an Army SSG and they can take a couple stripes from you for what you believe is an infraction that doesn't rate it? How long does it take to recover from that? 3-4 years?

Response by Lt Col Private RallyPoint Member made Mar 19 at 2015 10:38 AM

2015-03-19T10:38:20-04:00

I don't see it as "getting out of an article 15". I see it as a service member exercising their right to a fair trial by a jury of their peers, or a judge, rather than allowing a single leader to ruin a career when it may or may not be warranted.

Remember folks: You never have to accept an article 15. You ALWAYS have the right to a court martial.

Response by SGT Private RallyPoint Member made Mar 19 at 2015 10:40 AM

2015-03-19T10:40:02-04:00

This is a slippery slope. However, with that being said, if a soldier were to elect a Court Martial, that Chain of Command better make sure that they have their ducks in a row, or they are going to get embarrassed. At the same time, the soldier better make sure that he is willing, ready , and able to accept the consequences of a Court Martial.

Response by CMSgt Private RallyPoint Member made Mar 19 at 2015 10:41 AM

2015-03-19T10:41:01-04:00

Absolutely not! It also begs the question, does this member who clearly has mastered the art of wangling the system belong in uniform? If they used their energy for the positive, perhaps the military would be a decidedly more enjoyable experience for him/her and those around him/her.

Response by SFC Michael Hasbun made Mar 19 at 2015 10:42 AM

2015-03-19T10:42:08-04:00

If the case against someone is so weak that you fear bringing them to Court Martial, you probably are trying NJP on weak or circumstantial evidence... If it dissuades you, you really shouldnt be NJP'ing them anyway..

It's not a "get out of jail free" card, it's a "you better have your stuff together" card..

Response by TSgt David Holman made Mar 19 at 2015 10:47 AM

2015-03-19T10:47:33-04:00

That is a very dangerous bluff to pull. If they come back and refer it for a court martial and it the SJA does decide to take it on, then there is no going back. If you know you did something, and believe it could be proved (not that it will be, but that it could be), you are better off taking the Art15...

Response by SSG Private RallyPoint Member made Mar 19 at 2015 10:56 AM

2015-03-19T10:56:05-04:00

I don't think its a way to get out of the AR15, especially if the individual is innocent or trying to avoid a one way street.

I been through a Ar15 at my own fault that I won't get into but the commanding officer asked if I was calling him I liar. I responded no sir, Im just repeating what you said to me the other day, I had two AR15 in 2 days. he then responded with I think your calling me a liar and gave me 3 days bread and water in the brig. At the end of it all the legal officer asked me if I wanted to do a repeal after going through the paper work she saw that I was the correct one and the commanding officer was in the wrong .

Response by SSgt Private RallyPoint Member made Mar 19 at 2015 11:17 AM

2015-03-19T11:17:02-04:00

Just because a recourse can be abused, doesn't mean it should be eliminated. Commanders do on occasion attempt to shovel out undeserved discipline. I've seen it. Buddy of mine was referred for Art 15, for a ridiculous reason in Af. Fortunately, he didn't have to even ask for Court Martial, as he was an NCO and so the Art 15 went to batt. automatically. CSM called him into his office, talked to him, heard his side of the story and took the paperwork, held it over the waste basket and ripped it into pieces.

Response by MAJ Private RallyPoint Member made Mar 19 at 2015 11:53 AM

2015-03-19T11:53:09-04:00

Excellent learning point here. Evidence shouldn't be just enough to get an Article 15, it should be enough to make a case for a Court Martial. I have heard a number of leaders lecture about the Article 15 but some get it and know you have to plan deeper.

Capt Richard I P. is spot on.

I recommend using your unit legal guy early and often.
Consider that consider that you're building a case file to meet the needs of the SJA to take it to trial. Therefore do not jump into an Article 15 (you can counsel and correct as needed). Also I think it is right and proper to not only tell an SM they may seek legal advice but also encourage them to. If you have built a case you are not afraid to do so, if you are trying to bluff them you weaken the perception of your own legal authority and other SMs will see you as less of a leader and more of an executioner.

Response by COL Charles Williams made Mar 19 at 2015 11:58 AM

2015-03-19T11:58:14-04:00

This actually depends on the circumstances. I would not say demanding trial by Courts Martial should be used to avoid NJP - Article 15, but it is also your right as the accused service member. I probably have a unique perspective on this, as I have literally been on both sides of the proverbial desk...

1. I was offered an Article 15 (as an E-3) by my Company Commander at the the 472nd MP Company, Fort Wainwright, Alaska, circa 1982/83; I requested trial by Courts Martial, after consulting with my supervisors, and SJA (Trial Defense Service), because the charges were simply B.S. Within 24 hours, the Article 15 was dropped.

2. I have been a Company Commander (32 months), Battalion Commander (25 months), and Brigade Commander (37 Months), so have done both NJP - Art 15 at each level, as well as preferred charges for trial by courts martial for things that were above and beyond NJP.

My perspective is an Army perspective, and in the Army Letters of Reprimand only end up in your official file, if they are signed by a General Officer; General Officer Memorandum of Reprimand (GOMOR). A letter from me (CPT/LTC/COL), would only be locally filed, but of course they could impact NCOERs or OERs (evaluations).

* My approach to Article 15s, based on my experience as a young PFC on the other side of the desk, was simple. I would never offer an Article 15, if my SJA (Staff Judge Advocate) did not agree in advance that he/she could and would prosecute the charges if the SM refused the Article 15. With that knowledge in hand, I never had a SM refuse and ART 15, because the CM would be more painful. An ART 15 should never be offered, if SJA is not willing to take the case to courts martial, if the SM refuses. That is not the purpose of NJP. Art 15 is to handle solid cases quickly, and avoid a Courts Martial. Courts Martial (all three types) carry much bigger penalties.

That said, I have seen many Commanders offer ART 15 for cases/charges a Trial Counsel (Prosecutor) would not touch. That is not the way the system is supposed to work.

Response by SMSgt Private RallyPoint Member made Mar 19 at 2015 12:13 PM

2015-03-19T12:13:57-04:00

This sounds like clear cases on not enough evidence to offer the Art 15 to begin with and bad legal advice. When an Art 15 is offered court martial is always an option for the accused. If the commander offers an Art 15 but doesn't have sufficient evidence to go to court martial then the "act" was not one that warranted a court martial.

Response by SFC Michael Jackson, MBA made Mar 19 at 2015 12:52 PM

2015-03-19T12:52:59-04:00

A service member should demand a court martial only if he or she is legitimately innocent and unable to resolve the matter with the UMCJ authority.

Response by SSG Trevor S. made Mar 19 at 2015 1:33 PM

2015-03-19T13:33:51-04:00

Did JAG (SJA) allow the Letters of Reprimand? While I think those are technically an administrative action, and not considered double jeopardy, I personally find it a bit underhanded to issue a LOR after being rebuffed for Courts Martial by SJA.
*edit
Sometimes as a leader, you need to learn from your loss, regroup, and try a different approach in the next battle.

Response by COL Jean (John) F. B. made Mar 19 at 2015 1:36 PM

2015-03-19T13:36:26-04:00

As others have mentioned, the best way to ensure this does not happen is for the commander to never offer an Art 15 unless he/she is prepared to take it to a court-martial. If it will not stand up to the requirements of a court-martial, the better option is a counseling, letter of reprimand, etc.

Having said that, I have to say that I have never experienced or heard of the SJA refusing to take a case to a court-martial, if a soldier refuses an Art 15. If I was a commander and the SJA said that, I would die on my sword over it. The commander decides whether punishment is deserved and the type that it will be. If he/she decides to give an Art 15 and the soldier declines to accept it, it should automatically go to a court-martial. It is not the SJA's place to refuse to prosecute it nor that of the higher chain of command. That smacks of unlawful command influence to me.

I had one case, when I was a brigade commander in Korea, where I preferred General Court-Martial charges against a Military Police Staff Sergeant (E-6) for engaging in black-marketing activities (when his duty position was to suppress such activity). An Art 32 Investigation recommended against a General Court-Martial, but I persisted anyway. The accused defense counsel called me and questioned whether or not I had noted the Art 32 recommendation, to which I replied that I had. He stated that he had never seen anybody not follow the recommendation of the Art 32, to which I replied " Look up the word 'recommended', Captain." and "In the future you will not be able to say you have never seen it done before." The SSG was convicted and received several years in Leavenworth and a Bad Conduct Discharge.

In a bizarre case that I will never forget, a young soldier refused an Art 15, demanded a trial by court-martial, and then pled guilty at the court-martial. Simply crazy...

Response by PO3 Private RallyPoint Member made Mar 19 at 2015 1:53 PM

2015-03-19T13:53:32-04:00

In answer to your question "should it?" NO, because the NJP shouldn't have been offered unless they could back it up with a court martial. If your innocent and think they cannot prove you are guilty then you shouldn't accept the NJP. It shouldn't be assumed that it will be dropped though. Bad idea.

Honestly, the CO that offered NJP, has it refused, and then doesn't insist it go to a court martial should be facing some sort of reprimand themselves. They've obviously failed at their job somehow.

Response by SGT Bryon Sergent made Mar 19 at 2015 2:32 PM

2015-03-19T14:32:27-04:00

Depends on the leadership. If I would have been advised that I could have done that I would have in all 5 of mine. I had a toxic leader and only deserved two of the 5. No matter what I did it wasn't good enough and the commander bought into it. So if it is toxic then yes. If it is Joe is trying to get out of the situation that he was in NO!

Response by MSG David Chappell made Mar 19 at 2015 3:45 PM

2015-03-19T15:45:27-04:00

I have been in commands where the commander decided to make an example of the next soldier to screw up by doing Art 15. I have also dealt with 1SG's who didn't like a soldier and pushed the officer to go Art 15. In these cases I advised the soldier, even stood beside him as the NCO's were worried about repercussions from the 1sg my advice was always take the court. On a funny note while in a rack the commander decided to article 15 a soldier and gave the packet for the disciplinary action to the soldier to take to trial defense services. Yes that's correct the original folder with all the original write ups etc. The soldier when they went into tedious simply sat at the table and shredded everything throwing it all in the trash cans throughout the building. The soldier then handed the empty file to tedious who smiled understanding what it happened and contacted the Commander stating that the case was done there were no documents that could be used as proof on the soldiers miss behavior.

Response by CPL Jesse Vasconcelos made Mar 19 at 2015 4:28 PM

2015-03-19T16:28:26-04:00

Everyone is presumed innocent until proven guilty. If we have them complete their punishment of the article15 then they are found to be innocent they won't get the time back but maybe their loss of pay.

Response by SGT William Howell made Mar 19 at 2015 4:31 PM

2015-03-19T16:31:36-04:00

As a Military Police Investigator we had commanders calling in to request that sworn statements be taken for CM proceedings. They did not realize that they can administer the sworn statements themselves. We would go out and show them how to correctly administer them and then turn them loose to do their own investigations. Once they realized the amount of work that was going to go into the getting ready to trial they would drop the charges. Now if they did go to trial they usually lost because JAG would not take the case unless it could be won.

Response by TSgt Private RallyPoint Member made Mar 19 at 2015 4:47 PM

2015-03-19T16:47:43-04:00

Honestly I don't think you are "getting out" of the Art. 15, face it if evidence is lacking for Court Marshal then why should any member take NJP that will likely get them booted for something that could not be proven d2 lack of evidence. Though you will have those that should be booted that could get away with this, you just have to have faith in the system that they will correct their behavior from then on, or get what's coming to them when warranted.

Response by 1SG Private RallyPoint Member made Mar 19 at 2015 6:55 PM

2015-03-19T18:55:02-04:00

The Soldier has a right to ask to be tried by Court Marshall, and if the command lacks evidence, might blink and drop charges.
Like all things, there is a due process. The commander should be reasonably certain a crime has been committed and that he has the correct culprit prior to referring charges.

Having said that, the SM in question erred by putting himself in that situation in the first place. He might be innocent, or "Not guilty enough", but if he did it and they just didn't have their ducks in a row, a LOR is the least of his worries. He will be forever under scrutiny, and when he screws up in the future, the hammer will fall.

Response by SP5 Michael Rathbun made Mar 19 at 2015 8:40 PM

2015-03-19T20:40:36-04:00

There are times and circumstances when an Article 15 will proceed to an unfortunate conclusion due to local politics or other not-very-relevant factors.

Had the Field Grade Max that my shop OIC put me in for not been discarded immediately due to this inconvenient letter of commendation from Corps (for the exact same behavior that the charges in the Art15 cited) I would no doubt have had to opt for a CM.

Response by CW2 Joseph Evans made Mar 19 at 2015 9:00 PM

2015-03-19T21:00:38-04:00

I think this largely depends on the situation. To me, an Art 15 (company vs field grade) is usually a non-issue and less damaging than an LOR/GOLOR, depending.

Of course, if the issue is that the Soldier feels as if there is an injustice being perpetrated by the use of NJP and they feel the only way to deal with it is elevating it to a level requiring General level oversight, that is their prerogative.

I see this more as a whistleblower maneuver rather than an "escape from justice" clause.

Response by Capt Private RallyPoint Member made Mar 19 at 2015 9:11 PM

2015-03-19T21:11:00-04:00

Talk to a lawyer.

Response by COL Vincent Stoneking made Mar 19 at 2015 9:45 PM

2015-03-19T21:45:56-04:00

Other, it is the right of the member to demand trial by court. I would only recommend it if the evidence was REALLY weak. (Ie. the Art 15 was an attempt to railroad.)

Response by SSG Robert Burns made Mar 19 at 2015 10:51 PM

2015-03-19T22:51:07-04:00

If a prosecutor can't prosecute, then you probably shouldn't be in trouble at all.

Response by CPT Private RallyPoint Member made Mar 20 at 2015 9:29 AM

2015-03-20T09:29:51-04:00

If don't have enough to charge them with a ART 15 you should go that route. This reminds me of the "Band of Brothers" when CPT Soble tried to ART 15 1LT Winters for failing to report. When Winters called him on it CPT Soble liked foolish. I think the soldiers did the right thing. If you aren't 100% sure about it you shouldn't try it. I would query are if the Commanders are using them without the burden of proof really being there.

Response by SGM Erik Marquez made Mar 20 at 2015 2:16 PM

2015-03-20T14:16:31-04:00

For all the barracks lawyers coming out of the woodwork, with claims of "Ya, if they don't take it to CM after offering NJP, you were just getting messed over and you're innocent"

Sorry no.. There are times when the chain of command offers you NJP because they think the infraction is not serious and a wake up call is needed as reinforcement additional training or performance counseling has not worked.

Your third time being late for 1st formation, because you were drunk, out partying, or just did not set your alarm. This time you were late for an important tasking, as well not just missing PT.

Evidence clearly exists to CM the SM, but an ART 15 is offered. SM listens to the barracks lawyers , demands CM. Commander and 1SG discuss it, and decide it is not worth ruining the SM's life over (likely what a CM convection would do) and they elect to drop the charges, counsel and add it to the administrative separation packet they have already started to build in the event the SM does not change, adapt, respond to counseling, mentoring.

Think that is a fantasy? Unreal situation? Not at all, I was party to just that type of event three times. Twice the SM involved proved themselves unworthy and backed themselves into a CM and separation at a later point for different charges. Once the SM understood what we were trying to do.. She is a successful MAJ now, promotable to LTC.

Just because the turned down ART15 is not pushed to CM, does not mean the command did not have the evidence it needed..it might be because they think you can be saved and value added...or it just means the command may have decided you're not worth it. ..Think about that

Response by GySgt Wayne A. Ekblad made Mar 20 at 2015 2:21 PM

2015-03-20T14:21:55-04:00

Not if you have any common sense.

Response by SSgt Randy Saulsberry made Mar 20 at 2015 10:17 PM

2015-03-20T22:17:36-04:00

Court Martial is the law. NJP is the except acne to the law. So any person charged with anything is entitled to a courts martial but to save money and time an NJP can be used. But unlike a courts martial you don't get to defend yourself, which if someone feels they are mistreated by the unit or the unit is corrupt, why would you leave your career in the hands of those individuals

Response by COL Steph Browne made Mar 20 at 2015 10:18 PM

2015-03-20T22:18:23-04:00

During my 30 years as an Army JAG, my advice to commanders was never to offer an Art. 15 NJP unless there was enough evidence to go to trial. Once the command fails to go forward after a soldier has turned down the Art. 15, you have lost the respect of the unit and are likely to generate more turndowns.

Response by SSgt Gregory Guina made Mar 21 at 2015 12:04 AM

2015-03-21T00:04:23-04:00

I wouldn't consider it getting out of an NJP. If you know you are innocent (or it can't be proved you are guilty) then you request the CM. I have seen quite a few folks request a CM and be found not guilty. I have also seen people "scared" into NJP that if they had taken it to CM would probably not have been found guilty.

Response by SFC Terry Murphy made Mar 21 at 2015 12:56 PM

2015-03-21T12:56:39-04:00

In my career, I have seen both sides. In my own case, I had a CO that tried to give me a Summary Art15 for failing to report for Staff duty. I had proof that the duty roster had a misprint (Sgt Murray, not Sgt Murphy). The 1SG that had posted the roster told the CO he had made the mistake, but the CO was adamant. I had the option of taking it to JAG, but they said if it wasn't a company grade or higher, they couldn't' help me. So I had the option of taking it higher, company grade or Summary CM . I finally talked to our new CSM and he straightened out the CO. (He was an NCO's NCO), great guy!
The other side of this, I have seen enlisted be given the option of a Field Grade Art 15 or a CM. As soon as they take the CM on the charges they and their lawyer are pretty sure they can beat, the CM comes out with additional charges. One example was a soldier got a DUI, he was offered an Art 15 for that but had beaten the DUI in civilian court. He refused the Art 15 and it was taken to a CM with the addition charges of being absent without leave because he spent a night in jail when he was charged with DUI and missed formation in the morning.

Response by SFC Melker Johansson made Mar 21 at 2015 5:46 PM

2015-03-21T17:46:14-04:00

IMHO, if you feel that you are innocent and don't think that the government can prove that you are guilty, then you should request a court-martial. Make the government prove its case.

Response by SFC Collin McMillion made Mar 21 at 2015 6:34 PM

2015-03-21T18:34:26-04:00

If you know you are guilty of something that your commander feels punishable by an AR-15, take it and strive to never let this occur again, though if you really want want a hell of a lot of problems, go ahead ask for a court martial! Good Luck!

Response by SFC Collin McMillion made Mar 21 at 2015 6:43 PM

2015-03-21T18:43:48-04:00

Saw this happen a couple of times in my career, where the individual thought that by requesting court martial the higher ups would just consider it too much trouble and hassle and dismiss the charge, well they were wrong, it did not work to their advantage at all!

Response by Cpl Mark McMiller made Mar 22 at 2015 1:43 AM

2015-03-22T01:43:38-04:00

This actually happened to me when I was working as a court reporter at the law center at MCAS, Cherry Point. Now, the legal field in the Marine Corps is very small and each law center is even smaller, with everyone looking out for each other. Another thing that most people don't know is that at that time in the Marine Corps -- I don't know if it is still like this -- the trial counsels (prosecutors) were the most experienced attorneys; the less experienced attorneys being assigned as defense counsels. The sergeant major of headquarters & headquarters squadron, which the law center fell under, sent word to the SJA, who I worked for, that a couple corporals in my barracks had accused me of threatening them and he wanted to question me about that. The accusations were total BS. Being a court reporter, I was well versed in the UCMJ and knew my rights. For instance, I knew I had a right to legal counsel of my choosing. So I chose the chief trial counsel to be my legal counsel and he accompanied me to see the sergeant major for questioning. After I told my side of story, the sergeant major called me a liar and said he was going to send me to "office hours" (Marine Corps jargon for Article 15 NJP). I then informed the sergeant major that I am not a liar and that I refuse office hours and request trial by court-martial. The sergeant major went ballistic and started yelling at me to get the $&% out of his sight. I thanked the sergeant major for his time and got up and walked out with the captain who was my legal counsel. When we got outside, the captain agreed with me that the charges were BS and that I did the right thing because there was no way any military judge or jury would consider what I had said to the two corporals as a threat, and he told me he would explain it to the SJA and he was sure it would go no further. He was correct. Requesting court-martial is a good way to weed out the BS.

The standards of proof for NJP are much lower than a court-martial. NJP is decided based on a preponderance of the evidence whereas court-martial is beyond a reasonable doubt. With NJP, there are not even rules of evidence, so you have no protection from illegal search and seizure. With court-martial, a Article 32 investigation is performed to determine whether a court-martial is warranted. So if you know the evidence is in your favor, requesting court-martial is the way to go.

BTW, if you are on a ship at sea, you may not have the right to court-martial in lieu of NJP.

Response by SSG Leonard Johnson made Mar 22 at 2015 1:50 AM

2015-03-22T01:50:49-04:00

couple years ago I came very close to demanding a court martial cuz a commander refused to do her job and protect Joe.....hahahahhaa still got the argument on tape....this POS tried to kick me out of army with 23 years of service, I was injured beyond belief..had 8 screws put in my neck and walking around with a neck brace on for about 10 months.....well...she tried me....I'm from the ol skool (that is how u spell it when u ol skool)......I lit off in her ass....of course I received chapter paperwork....didn't even right away take to jag....I was like Ma'am court martial please...Man it got quit after that....that POS commader never tried me agan

Response by MAJ Private RallyPoint Member made Mar 22 at 2015 2:20 AM

2015-03-22T02:20:23-04:00

It's a right. But if the person wants to roll the dice and try to beat a justified charge though? Good luck and no hard feelings if they win.

Response by PO1 Rick Serviss made Mar 22 at 2015 1:12 PM

2015-03-22T13:12:59-04:00

Yes if you're innocent. Art. 15 is a kangaroo court.

Response by MSgt Private RallyPoint Member made May 27 at 2015 10:14 PM

2015-05-27T22:14:17-04:00

I was told by a commander and also by JAG long time ago, "Never offer an Article 15 unless you are willing to go to a Court Martial".

Response by SSG Brian Lovins made Oct 28 at 2015 10:33 PM

2015-10-28T22:33:49-04:00

If it were me and I didn't think they had enough evidence to actually win a trial I would definitely request trial by court martial. I compare an Article 15 to getting a ticket, you know you probably wont win so you pay the fine but if there is a good chance to win you take the ticket to trial.

We had a 1SG and Commander at Ft Stewart trying to give article 15's for being late to PT formation regardless of why you were late, the Article 15's stopped abruptly but never heard why, I can only assume the numbers of article 15's raised a red flag somewhere.

Young Soldiers often do not know their rights and get take a punishment that is at times more severe than the offense would allow, even good Soldiers make mistakes and I have seen Senior NCO's tell Soldiers to NOT talk to JAG and just take the punishment even when it included reduction in rank. As an NCO regardless if I was the one recommending the punishment I always recommended they talk to legal before accepting any punishment.

Response by MSgt John Taylor made Oct 29 at 2015 9:31 AM

2015-10-29T09:31:28-04:00

The JAG in supposed to review all Article 15's before they're given. They advise the commander on whether they can win the case at trial (NJP in lieu of trial) That is supposed to be the benchmark for giving an article 15.

Response by MCPO Roger Collins made Oct 29 at 2015 2:21 PM

2015-10-29T14:21:21-04:00

Depending on the situation. I backed down the CO, XO, and Ops, when they tried to give me extra duty as an E-9. I requested NJP at what the Navy calls Captain's Mast, they knew exactly where I was going with the request. With an exemplary career and extra curricular duties of over a dozen officer roles, I did feel I would win if it were taken up the chain of command. Shortly after, I went on temporary duty for an injury to be returned to the same command. I passed and took retirement on 21.

Response by MAJ Ken Landgren made Oct 29 at 2015 2:57 PM

2015-10-29T14:57:22-04:00

I suppose a letter could be detrimental if it is filed in the official file.

Response by SGM Private RallyPoint Member made Nov 12 at 2015 7:24 PM

2015-11-12T19:24:25-05:00

Commanders need to consider that likelihood before offering an Article 15. Just because the paperwork and resulting punishments are less, doesn't mean that the servicemember is required to see that as a good deal. In effect, you are pleading guilty, in exchange for a lesser sentence.

It goes without saying that the defendant should consider whether the commander is bluffing or not, as well as considering whether he wants a felony conviction on his record for the rest of his life, and certainly whether he thinks he is guilty or not.

I was assigned as driver of the post trash detail and given the absolutely ricketiest jeep in the whole company to use. On the way back from dumping the final load, the transmission blew. There is no doubt that I was at least partially responsible - we were done and everyone wanted to get back to the barracks. I was probably going faster than necessary.

I was told I would get an Article 15 to pay for the new transmission, but that no other action would be taken. I asked for a Court Martial. (I did not consider that the commander was bluffing, but from the look on his face when I said that, you'd have thought I'd hit him with a sledgehammer.) I explained what I wrote above, and the following day the issue was dropped. (No LOR, nothing.)

Did I "get away with it?" Well, I've had a pretty successful career, so perhaps it was good for the Army that I did.

Enlisted people have rights, even if some use those rights to get away with what they really are guilty of. Commander MUST consider this when considering an Article 15. I'm not saying anyone is bluffing, but if you aren't willing to go the distance, then an LOR might be the better solution in the first place.

Response by CW3 Private RallyPoint Member made Jul 26 at 2016 4:58 PM

2016-07-26T16:58:25-04:00

If, as the service member, you're being offered an Article 15/NJP...and you know you're not guilty, it depends on whether you trust the commander to make a fair and impartial decision. If you do, then take a chance and accept it, but if you don't, then it's your right to demand trial by court-martial. Anyone holding it against you is being stupid.

If, as the commander, you're considering offering a soldier an Article 15, you better have your ducks in a row.

Response by SGT Private RallyPoint Member made Oct 7 at 2016 3:56 PM

2016-10-07T15:56:09-04:00

It should be used when the accused is innocent and the unit is inexperienced or biased. It is unfortunate that human nature is quick to ignore facts but base beliefs on social and political systems. If the truth is sought most situations could be resolved through counsel/mentorship or corrective action/training. If you are innocent and have evidence or they lack proof then go for it. It's your career, take control of it or someone else will. -You can shine a POS and many will pick it up and put it on the mantle, but a pile of crap can have all the character in the world, if it smells, makes a lot of noise, has a few rough edges, its going to get flushed.

Response by SGM Erik Marquez made Jan 13 at 2018 12:32 PM

2018-01-13T12:32:57-05:00

I always snickered when the Sm barracks lawyer stated with feeling he was refusing the NJP and DEMANDING trial by CM.
Not that they were asserting their rights, thats fine...but that I was sure when they got back from speaking to TDS, they were going to be sheepishly be "asking" to accept the NJP.
My commander and I did not abuse the NJP process, nor do so when not appropriate.. So a SM demanding a CM was only getting them self in deeper then what we were offering and was justified. NJP we offered was always justified and supportable so..... if they wanted a CM, okiedokie....

Response by CW3 Kevin Storm made Jan 13 at 2018 2:17 PM

2018-01-13T14:17:46-05:00

The LOR can have the same affect if not worse. I know from my time in active duty an Article 15 at that time could be place in the "restricted fiche." As an LOR may not ( I have no idea if this is still the case). They can in effect be just as devastating if not worse for future promotions.

Response by COL Rich McKinney made Apr 20 at 2018 7:42 AM

2018-04-20T07:42:18-04:00

I used to have the soldier read each of the Elements Of The Offense and then ask him if each was true or false. If one was false we would discuss why. If he said each was true, then I would say if it went to Court Martial you are guilty. Now let's discuss Article 15.

Response by SSG Bill McCoy made Sep 7 at 2021 12:29 PM

2021-09-07T12:29:08-04:00

I've dont that twice ... once in the Navy, and once in the Army. Both times were for frivolous efforts to punish me. The Navy issue was when a vindictive, male-hating (honestly) LTjg wrote me up for not giving a patient his meds at 0400 hrs. The patient didn't remember getting his meds and the nurse ran to the Master-At-Arms to file her complaint. Two weeks prior, she had conducted an illegal search of another Corpsman's locker and wrote him upt for possession of medication that she thought was not prescribed. It wasn't ... it was OVER-THE-COUNTER cold medicine. When I went to Captain's Mast (like a Field Grate Art 15), the patient simply siad he didn't remember, but "could have" gotten his meds. The nurse stuttered her reasoning and the Captain (an 0-6) dismissed the charges of derilection and kept the nurse behind. We could hear him loudly chastising her for "another boondoggle," and told her that her job was "nursing ... NOT harrassment!"
The Army one invovled an "accidental" discharge - actually, an "accidental ON PURPOSE" discharge while TDY to Indiantown Gap, PA for the Vietnamese refugees there. Two MP Companies - ours was on "law & order" detail, the other in guard shacks around the contonement area housing the refugees.
Our Battalion XO was OIC of the MP Companies - he was out of Ft. Meade, MD and our Company was permanently DETACHED from Meade to Ft. Belvoir, but still subject to deployment. For several weeks, we worked permanent 12 hour, 7 day shifts - 1730 to 0600 (khaki uniform). After shift, the XO had us doing daily "Motor Stables," (routine preventive maintenance on our M151-A2 Jeeps). After that, we were required to put on clean, STARCHED fatiques to stand a formal, daily Personnel Inspection at 0800. We could make breakfast, SOMETIMES! Then, he had us do a GI Party (Field Day for navy types) and would do a "white glove" inpection of the barracks, often failing for trivial things like dust on window ledges. Windows were open 24/7 - no A/C and no heat in the old T-Buildings so dust was prevalent! Typically, after his idiotic daily BS, we'd be released for lunch which most of us skipped because we all still had to prepare a new set of khakis, spit-shined boots, etc for the 1730 Guard Mount (Briefing on previous shift's events). Both the Desk Sgt, and myself (Patrol Supervisor) ended up with three, maybe four hours of rack time.
Hence ... "BANG" dead center in the clearing barrel. WHY ON PURPOSE? So I could demand a trial by Court Martial because I had repeatedly advised my COC, including the Major that we were being endangered, i.e., guys falling asleep at the wheel, and not being alert enough to perform law enforcement duties. So, knowing that, generally, after 10 hours of continuous duty drivers could not be charged for traffic accidents that weren't due to reckless driving, the same would apply to handling firearms. SJA felt that way and the CM never happened even after an Art 32 Investigation where I stated all of the above in a formal Q&A Statement. It was a crappy (even risky) way to solve the problems, but necessary to protect my guys from accidents or injuries for lack of sleep.
Afterwards, the XO (MP Major) was summoned back to Ft. Meade, and we immediately began a rotation of days off scheduled by both shift's Patrol Supervisors.

Response by CW3 Kevin Storm made Sep 7 at 2021 1:34 PM

2021-09-07T13:34:46-04:00

No, I have seen this used twice in my 34 years of service. Once the person won, once they were rolled under a bud to never be seen again. If the case is weak go for it, if it is stacked against you, take the NJP.

Response by SSG Edward Tilton made Sep 7 at 2021 1:55 PM

2021-09-07T13:55:55-04:00

That tells you that the Commander bringing the Article 15 did not have a Prima Face Case. It is not the Enlisted Mans fault

Response by CSM Darieus ZaGara made Sep 7 at 2021 4:16 PM

2021-09-07T16:16:54-04:00

Real deal, the punishment possible is much greater than the AR15. It’s a risk.