7 THINGS YOU MUST KNOW IF YOU ARE FACING AN ARTICLE 15 (Article 15, UCMJ)

This post was created to help you understand the DA Form 2627 (the “Article 15” form) and to prepare you for the briefing which you will receive from your local trial defense office. If for some reason following the briefing trial defense cannot answer your questions, feel free to contact our office at 803-386-7117 or stephen@foster.legal.

THE FIRST READING

Article 15 proceedings consist of two hearings, or “readings.” The first reading will typically be carried out by the NCO counterpart to your commander, though it is only required that an E-7 or above that senior to the individual receiving the Article 15 to conduct this hearing. This reading is to provide notice that your commander intends to pursue non-judicial punishment against you and notify you of your rights. The NCO should give you a copy of DA Form 2627 and any supporting documents. You will then be allowed a short period of time-likely 48 hours or so-to seek counsel from Trial Defense Services (TDS). At this point, you should strongly consider whether to seek civilian representation.

ELECTION OF YOUR RIGHTS

The next step in the process is arguably the most important because you must decide whether to accept the Article 15 or turn it down and demand a trial by court-martial. If you turn down the Article 15, you have no say as to the level of court-martial you will face. That is the decision of your command, who may take the charges to one of three levels of court-martial. In ascending order, they are summary, special, and general court-martial.

Accepting the Article 15 is not an admission of guilt. It means that you want your commander to be the person who decides whether you are guilty, rather than a judge or a jury.

In addition, there are other factors to consider before you make your decision: (1) The level of proof is the same for an Article 15 hearing and a court martial; those deciding your case must be convinced of your guilt “beyond a reasonable doubt.”; (2) An Article 15 is not considered a conviction and will not appear in your civilian record, but if you are convicted at a trial by court-martial, this will stay on your record even after you leave the Army; (3) TDS will not represent you at the Article 15 hearing, but there is no military prosecutor prosecuting the case, unlike at a court-martial. Under either an Article 15 or a court-martial, you have the right to hire civilian counsel to represent you; and (4) At a court-martial, the maximum punishment you may be facing would depend upon the charge(s) and the level of court-martial. If your command referred the case to a Bad Conduct Discharge level court-martial, the maximum punishment would probably be 12 months of confinement, reduction to the grade of E1 (regardless of your current pay grade), forfeiture of two-thirds of your pay each month for 12 months, and a Bad Conduct Discharge.

UNDERSTAND THE POSSIBLE OUTCOME (PUNISHMENTS)

The maximum punishments for Article 15’s are listed below:

COMPANY GRADE FIELD GRADE

Restriction 14 days 60 days

Extra Duty 14 days 45 days

Pay Forfeiture 7 days ½ month of pay for 2 months

Rank Reduction (E4 & below) 1 grade 1 or more grades

Rank Reduction (E5 & E6) none 1 grade (from BN CDR only)

Rank Reduction (E7 & above) none none

(Restriction and extra duty, if you receive both, they must be served at the same time. If, in a Field Grade Article 15, you get 45 days extra duty, you may only receive 45 days restriction.)

If you are considering fighting the charges through a court-martial, you are required to talk with a military (TDS) attorney before you make the decision.

PREPARE FOR THE FINAL HEARING

Gather as much evidence as possible to substantiate your version of the facts. Evidence, in your defense would be something related directly to the offense you have been charged with that shows you are not guilty of it. It is especially important for you to find any witness that can testify favorably, and secure the presence of that witness at your hearing. I cannot stress enough how important it is to get on top of this early and stay on top of it until the end. You may choose to have someone speak on your behalf if you wish and explain your side of the story to your commander. While you are not authorized a TDS attorney to represent you in an Article 15 hearing, you may hire a civilian lawyer to represent you. Often, TDS will sufficiently prepare you to represent yourself. If you feel unprepared after speaking to TDS, a civilian lawyer could also assist you in preparing for the Article 15 hearing.

MITIGATE YOUR PUNISHMENT (IF FOUND GUILTY)

You should definitely attempt to mitigate your punishment should you be found guilty. Mitigation refers to testimony or statements regarding to your character, performance of duty, or other positive aspect about you. This testimony can come from fellow soldiers, superiors, friends, family, and members of the community. However, the testimony should be relevant to the issue of demonstrating that you do not deserve a harsh punishment. Also, you can present evidence of an extenuating circumstance related to the offense which tends to make the offense less severe (like an reason or explanation of your actions). Other types of mitigation would be to show the detrimental effect the punishment will have on your family or finances.

ATTEMPT TO HAVE THE RESULT PLACED IN YOUR RESTRICTED FILE

The restricted fiche is generally not viewed by promotion or school boards. If you are an E-5 or above, and already had one Article 15 as an E-5 or above, this one will automatically be placed in your performance fiche. If you are an E-5 or above, and you are found guilty at Article 15 proceedings, one of the most important requests you can make it to have the Article 15 placed in your restricted fiche. Otherwise, it will almost surely have a detrimental impact on your military career.

YOU CAN APPEAL

If you feel you’ve been punished excessively or evidence on your behalf was not properly considered, you may appeal to the next level of command within 5 days. If you appeal, you should check Block 7c and provide written statements to support your position because you are not entitled to any personal appearance in front of the appeal authority (although you may request one). If you don’t submit these statements from yourself and the others who spoke for you at the original hearing, the appeal authority may never get your side of what happened. The appeal authority can take any action to lessen the punishment, but may not increase the punishment given by your commander. If you’ve been given restriction or extra duty as a punishment and you appeal, you should request that your restriction and extra duty be suspended if the appeal takes more than five days to come down. If you so request and the appeal is not decided within 5 days, the extra duty and restriction imposed must be suspended until the appeal is decided.

Stephen Foster