Article 15 ProcessNovember 1, 2021
Article 15 Process
This Article is meant to address the Article 15 process in the Army. The Article 15 Process is governed by AR 27-10, specifically Chapter 3. Appendix C also has a proposed script for Commanders to use, which further explains the Article 15 Process.
An Article 15 begins when a Soldier, NCO, or Officer is notified by the imposing Commander, or a delegee (sometimes a lower-level Commander or a CSM/1SG). The Commander will read a notification that is very similar to this: "As your commander, I have disciplinary powers under Article 15 of the UCMJ. I have received a report that you violated the Uniform Code of Military Justice, and I am considering imposing nonjudicial punishment. This is not a formal trial like a court-martial. As a record of these proceedings, I will use DA Form 2627. I now hand you this form. Read items 1 and 2. Item 1 states the offense(s) you are reported to have committed and item 2 lists the rights you have in these proceedings. Under these provisions of Article 31 of the UCMJ, you are not required to make any statement or provide any information concerning the alleged offense(s). If you do, it may be used against you in these proceedings or in a trial by court-martial. You have the right to consult with a lawyer as stated in item 2."
The imposing Commander, or his/her delegee, then gives the Soldier in question the opportunity to read over the Article 15 itself and asks if he/she has any questions and if he/she understands their rights. The imposing Commander, or his/her delegee, then says something similar to this: "You have to decide whether you want to demand trial by court-martial. If you demand a court-martial these proceedings will stop. I then will have to decide whether to initiate court-martial proceedings against you. If you were to be tried by court-martial for the offense(s) alleged against you, you could be tried by summary court-martial, special court-martial, or general court-martial. If you were tried by special or general court-martial you would be able to be represented by a military lawyer appointed at no expense to you or by a civilian lawyer of your choosing at no expense to the government. If you do not demand trial by court-martial, you must then decide whether you want to present witnesses or submit other evidence in defense, extenuation, and/or mitigation. Your decision not to demand trial by court-martial will not be considered as an admission that you committed the offense(s) stated in item 1; you can still submit evidence on your behalf. Evidence in defense is facts showing that you did not commit the offense(s) stated in item 1. Even if you cannot present any evidence in defense, you can still present evidence in extenuation or mitigation. Evidence in extenuation is circumstances surrounding the offense showing that the offense was not very serious. Evidence in mitigation is facts about you showing that you are a good Soldier and that you deserve light punishment. You can make a statement and request to have a spokesperson appear with you and speak on your behalf. I will interview any available witnesses and consider any evidence you think I should examine. Finally, you must decide whether you wish to request that the proceedings be open to the public. Do you understand the decisions you have to make."
The Soldier in question then is given the opportunity to talk to a lawyer before making the elections that were just explained. Every Soldier in this situation should exercise the opportunity to talk to a lawyer before even making any elections. One of those elections, demanding a trial by court-martial, is further explained at this link. The imposing Commander then reads a statement similar to the following: "You will have 48 hours to think about what you should do in this case. You may advise me of your decision at any time within the 48-hour period and waive the remainder of the time if you so desire. If you do not make a timely demand for trial or if you refused to sign that part of DA Form 2627 indicating your decision on these matters, I (the commander) can continue with these Article 15 proceedings even without your consent. You are dismissed."
At that point, the proceedings are recessed to give the Soldier in question a chance to consult with a lawyer. This entire process is typically called the "first reading." Typically, more than 48 hours will be provided, because TDS is so slow to meet with the Soldier in question. Furthermore, more time is needed to submit a complete Defense, in most cases. A lawyer can help request a delay.
After the Soldier in question is given the chance to consult with a lawyer, the "second reading" of the Article 15 is scheduled. The Soldier should be prepared to make the elections discussed above at the second reading, as well as present a full Defense, and/or matters in mitigation and extenuation. This could consist of the testimony of the Soldier, written matters signed by the Soldier, live witnesses, sworn statements, memorandums for record, written statements of support, and/or other forms of evidence (text messages, videos, photos, emails, etc.). What to present at a second reading of an Article 15 should be discussed in detail with an experienced Military Lawyer.
During the second reading, there is no set script for the Commander to follow. However, typically, the Commander asks the Soldier if he/she has anything to present. The Soldier then presents what he/she wants to. The Commander then either makes a decision on the spot, or recesses the proceedings to think about a decision. The Commander sometimes consults the chain of command before making a decision. He/she then calls the Soldier back in and informs him/her of the decision. It is important to note that the standard of proof at an Article 15, in the Army, is "more likely than not" or the preponderance of the evidence. That means that a Soldier can only be found guilty if the allegations against them are proven to be true, more likely than not. This is a lower burden of proof then at a Court-Martial and other criminal trials, which requires proof beyond a reasonable doubt. The Soldier in question has to decide whether to appeal either the findings or the punishment, on the spot. Article 15 appeals are discussed more at this link.
Article 15s can be career altering. In addition to a Soldier losing rank, pay, and liberty, the filing of an Article 15 in a Soldier's OMPF currently triggers review under the Army QMP Process. Furthermore, the Command, or HRC in the case of Officers, will often follow up an Article 15 with an administrative separation action. Click these links to learn more: Army Enlisted Separation Process and Army Officer Separation Process.
Any Soldier facing the Article 15 process will be able to meet with a JAG assigned to Trial Defense Services (TDS). These JAGs typically have little time to apply to Article 15 clients, because of their otherwise heavy Court-Martial caseload. Typically, a Soldier is left to prepare their own Defense, with TDS offering to review whatever they come up with. For many reasons, this is usually ill-advised. Soldiers facing an Article 15 have the option to hire a Civilian Attorney to assist in their decisions and response.
This Article was written by Attorney Matthew Barry.