Turning Down Article 15/Mast/Office HoursSeptember 24, 2019
Considering turning down an article 15? Read this article for a good overview of the factors to consider.
What is Nonjudicial Punishment?
Each service refers to nonjudicial punishment in a slightly different way (Article 15s, Office Hours, Mast, etc.); however, all these terms refer to the same process. Nonjudicial punishment is a Commander’s tool to swiftly impose punishment on Servicemembers for the purposes of maintaining good order and discipline in his/her unit. The Commander acts as the judge and jury. Servicemembers have the right to refuse nonjudicial punishment and demand a trial by Court-Martial. If a Servicemember accepts nonjudicial punishment instead of demanding a trial by Court-Martial, the punishments are not that severe; however, they can still greatly impact a Servicemember’s career.
Career Altering Punishment from Nonjudicial Punishment
Punishment from nonjudicial punishment is generally fairly light; however, the two punishments that are most career altering are the loss of rank and the filing of the nonjudicial punishment in a Servicemember’s permanent record.
If a Servicemember’s rank is taken away it can put them in a category where they will be mandatorily separated (high year tenure, retention control point, failure to progress, etc.). Often times a Commander knows this and uses nonjudicial punishment to force a Servicemember out. Servicemembers in this situation should be very careful when making any nonjudicial punishment decisions.
Additionally, nonjudicial punishment can be filed in a Servicemember’s permanent record (Official Military Personnel File). The filing of nonjudicial punishment in a Servicemember’s permanent record will likely prevent any sort of promotion in the future. Furthermore, it could trigger separation (i.e. Qualitative Management Program, Reduction in Force Boards). Many military lawyers do not think of this consequence to nonjudicial punishment; however, it is arguably the most devastating to a Servicemember’s career.
Other punishment that can be received from nonjudicial proceedings can still greatly impact a Servicemember (i.e. loss of pay, restriction, extra duty). These punishments, however, have no long-term impact on a Servicemember’s career progression. Regardless, they still should be factored in if a Servicemember is considering turning down an article 15.
Accepting Nonjudicial Punishment
A common misconception amongst Servicemembers is that if they accept nonjudicial punishment (instead of demanding trial by Court-Martial) they are admitting guilt. This is not true at all. By not demanding a trial by Court-Martial, a Servicemember is only accepting a process. A Servicemember can accept the process and plead their innocence. With the right Command and an experienced military lawyer’s assistance, Servicemembers can be completely exonerated at nonjudicial punishment proceedings.
What Happens if a Servicemember Demands Trial by Court-Martial?
Several things can happen if a Servicemember demands trial by Court-Martial. The first, and perhaps most obviously, is that the Command prefers charges and convenes a Court-Martial. For an overview of the Court-Martial process, see Attorney Barry’s Article.
However, this does not always happen. Despite a Servicemember's demand, the Command does not have to proceed with a Court-Martial. Often times they will not want to put in the time and effort.
Furthermore, they might realize they don’t have enough evidence to convict the Servicemember at a trial. If the Command does not proceed with a Court-Martial, they have several options at their disposal. They can do nothing and unflag the Servicemember or take one of several administrative actions less than a Court-Martial (i.e. letter of reprimand, administrative separation, negative evaluation report).
Reasons to Demand a Trial by Court-Martial
Servicemembers often consider turning down an article 15 for the wrong reasons. There are, however, many legitimate reasons for Servicemembers to do so.
The first reason would be that a Servicemember is innocent of what he/she is being accused of and doesn't trust their Commander. The charges against a Servicemember have to be proven at any nonjudicial punishment proceeding (click here for a discussion about the burden of proof required); however, the Commander is the judge and jury. If a Commander does not personally like the Servicemember in question he/she may completely disregard the evidence and simply punish the Servicemember. There is not much oversight in the nonjudicial punishment process to protect against this (only one appeal to the higher Commander). Therefore, after consultation with a lawyer, if a Servicemember is in this situation, they should consider demanding a trial by Court-Martial.
The second reason would be that there are legal issues with the charges and/or the evidence. Nonjudicial punishment is sometimes not even reviewed by a lawyer before being administered to a Servicemember. Furthermore, the rules of evidence don’t apply at nonjudicial punishment proceedings. They do at a Court-Martial. Therefore, sometimes charges can be proven at nonjudicial punishment but not at a Court-Martial. A military attorney should carefully review all evidence before advising a Servicemember to demand a Court-Martial for legal reasons.
There are, of course, other reasons to demand a trial by Court-Martial. However, the two reasons above are the most common.
Things to Think About Before Turning Down an Article 15
When a Servicemember demands a trial by Court-Martial they should always assume they will get one. If they don’t do this, they are gambling with their future.
Servicemembers often don’t understand that if they are convicted of anything at a Court-Martial, they will have a federal conviction on their record for the rest of their life. Even if they get no punishment (which is a big IF), convictions follow Servicemembers forever and can greatly impact their ability to get employment, housing, etc. Therefore, if there is potential for a Servicemember to be convicted at a Court-Martial, they should be very careful before demanding one.
Additionally, if a Servicemember is convicted at a Court-Martial, they are facing severe punishment. This includes jail time, reduction in rank, forfeitures of pay, and punitive (bad conduct and dishonorable) discharges. Even the most minor crimes under the UCMJ have jail time as a possible punishment.
Finally, if a Command decides to Court-Martial a Servicemember after they demand it, they can look at a Servicemember’s entire record and bring whatever charges are warranted. The Command is not stuck with the charges that were listed on the original nonjudicial punishment. For example, if a Servicemember was late to formation a year ago, and the Command can prove that (i.e. with squad leader testimony), they could add this to the Court-Martial charge sheet. Likely, a Servicemember would get convicted of this, as it is easy to prove. Even if the Servicemember beats the gravamen of what was on the original nonjudicial punishment, they will still have a federal conviction. They likely won’t get jail time in this situation, but the conviction alone is a major punishment. The point is that a Servicemember should look at their entire record and consult with an attorney about it before demanding a trial by Court-Martial.
Nonjudicial punishment is more complicated than it appears. Many military lawyers will be quick to tell a Servicemember to demand a Court-Martial because they want to be paid to go to trial. Others will be too quick to tell a Servicemember to accept the process because they don’t want to work too hard. Proper analysis from a military attorney is important to protect the rights of a Servicemember.
This Article was written by Attorney Matthew Barry