Article 15 Appeal in the ArmyNovember 9, 2020
Soldiers often wonder how to file an Article 15 appeal in the Army.
The Article 15 process starts with a "first reading." This is when the imposing Commander, or his enlisted advisor (1SG/CSM), informs the Soldier that they are being considered for nonjudicial punishment. After this first reading, the Soldier should get the Article 15 itself (DA Form 2627) as well as the evidence against him/her. The Soldier then has a period of time, typically 48 hours or more, to meet with a lawyer and prepare a response. There are several ways to respond to an Article 15 and the details of such are beyond the scope of this article.
After the Soldier is given enough time to meet with Counsel, the imposing Commander schedules the "second reading." The second reading is when the Soldier meets in person with the imposing Commander, often with his/her chain of Command present as well. At the second reading, the Soldier is allowed to present their defense/response to the Article 15. This could include no response, a written response, a verbal statement, character witnesses, additional evidence, etc. Once the Soldier has presented their response, the Commander deliberates and determines if he/she is Guilty, where to file the Article 15 (performance/restricted section of OMPF), and what punishment to impose.
A Soldier can appeal ANY of those decisions. What most Soldiers do not know is that, typically, they are going to have to decide whether they appeal the Article 15 verdict and/or sentence on the spot at the second reading. The regulations state that this decision is binding and can only be changed if the Commander allows it. The Soldier can decide to not appeal, appeal and submit no additional matters, or appeal and submit additional matters.
If a Soldier desires to submit an appeal with additional matters, he/she will typically have 5 days to do so. Therefore, it is imperative that the Soldier in question meet with Counsel immediately to prepare their appeal. An appeal could be about the lack of the evidence, the legality of the charges, or that the punishment imposed was disproportionate.
An Article 15 appeal in the Army is heard by the imposing Commander's "next superior authority." Typically, this means the imposing Commander's Commander. After a Soldier decides to appeal, and submits any additional matters, the appellate authority's JAG Officer, typically, reviews the entire packet and makes a recommendation. This often times results in relief, as it is common for lower Commanders to make legal errors on Article 15s. A Soldier will be notified of the result of their appeal.
A Soldier is not entitled to appeal the Article 15 decision further up the chain of Command; however, "any superior authority" can exercise the same appellate powers.
If an Article 15 is filed in a Soldier's (E5 or above) OMPF, there are two subsequent appeals available. First, an NCO in this position can apply to the Department of the Army Suitability Evaluation Board (DASEB) to request that the Article 15 be transferred from the performance section of his/her OMPF to the restricted section. An NCO applying under this provision needs to provide sufficient evidence and argument that "the record of nonjudicial punishment has served its purpose, and that removal is in the best interest of the Army."
The second appeal available is to the Army Board of Corrections for Military Records (ABCMR). The ABCMR has the ability to transfer the Article 15, as discussed above, or throw out the Article 15 all together. A Soldier applying under this provision needs to provide sufficient evidence and argument that "evidence exists which demonstrates error or injustice to a degree justifying removal."
In addition to the punishment imposed at an Article 15 (loss of rank, pay, etc.), an Article 15 in a Soldier's OMPF can greatly affect his/her career. An Article 15 in a Soldier's OMPF will likely stunt promotion as well as subject him/her to the Army QMP Process.
Additional details regarding an Article 15 appeal in the Army can be found in AR 27-10, chapter 3.
This Article was written by Attorney Matthew Barry.