Should I Accept an Article 15, Nonjudicial Punishment?

An Article 15 or “nonjudicial punishment” (NJP) is a type of administrative discipline that commanders may use to address alleged violations of the Uniform Code of Military Justice (UCMJ). When minor violations of the UCMJ are involved, commanders must make a decision about whether to offer an Article 15, or recommend that a case be taken to court-martial.  If you are offered an Article 15, you will be read the charges against you by your commander and you are then presented with the limited amount of evidence that the Government has against you at that time.  You will then have the opportunity to talk to an attorney before deciding how you want to proceed.  You will need to give your commander an answer within a certain number of duty days about whether you will “accept” the Article 15, usually only two or three days.

Within that same time, if you decide to accept the Article 15, you will also need to prepare your entire written defense for the commander.  Additionally, you will have the option to make a live personal appearance before the commander to present evidence and make a statement regarding the allegations. The commander will then (theoretically) take all of your responses and evidence into account, along with the evidence against you, as they decide whether you are guilty or not guilty.

What it Means to Accept an Article 15 or Nonjudicial Punishment

When faced with this situation, many service members  wonder whether they should accept an Article 15, and what they should consider before making their decision.  Often, people believe that “accepting” an Article 15 means that they are admitting to the allegations.  However, when you accept an Article 15, you are only accepting the forum — that is, you are saying that you will allow the issuing commander to be judge and jury and decide whether you are guilty or not guilty of the alleged offense(s).  If the commander finds you guilty, they alone will decide your punishment.

If the commander finds you guilty, they will decide your punishment.  You then have the opportunity to appeal your conviction and your punishment with the next higher ranking commander.

Should I Turn Down My Article 15?

Any person who is offered an Article 15, has the option of “turning it down” and demanding a trial by court-martial.  This is a big decision for many reasons.  First, while you may face punishment at an Article 15 if you are convicted, it does not constitute a criminal conviction.  On the other hand, an Article 15 is the most severe administrative paperwork that you can receive in the military and will almost certainly be filed in your Official Military Personnel File (OMPF) or Unfavorable Information File (UIF) for a significant period of time, if not indefinitely, depending upon your specific rank, the type of Article 15, and other factors.  Furthermore, depending upon the nature of the offense, being found guilty at an Article 15 could automatically require that discharge proceedings be initiated against you.  This is also true if you have prior disciplinary paperwork in your file, even minor things like counselings for being late or missing an appointment.  Finally, while it is not a true conviction, many law enforcement agencies and federal offices ask about Article 15s while in the military which may ultimately result in an inability to secure that type of employment.

When you accept an Article 15, the issuing commander is supposed to presume you are innocent until they determine that the evidence proves your guilt “beyond a reasonable doubt.”  This standard is explicitly required in the Army. In the Air Force, this standard is not explicitly stated, but as a matter of practice, commanders are advised that they should only find someone guilty if the charges would be able to be proved at a court-martial which requires proof beyond a reasonable doubt.  In practice, however, accepting an Article 15 often means you will most certainly be convicted.  It is very rare for a commander to offer an Article 15 and then find the member not guilty.  In our experience, the conviction rate at Article 15s is in excess of 95% of cases.  There are many reasons for this phenomenon.  First, commanders have a lot of pressure to maintain good order and discipline in their units.  This alone makes it difficult for them to find someone not guilty at an Article 15 because it may encourage anyone offered an Article 15 to “turn it down.”  Second, if you accept an Article 15, you have a limited amount of time to prepare your defense.  You don’t have time to interview witnesses against you, cross-examine them, and present your case to an impartial jury who knew nothing of the case beforehand.  Commanders are intimately involved with the investigation against you long before the Article 15 is offered.  Presenting a paper defense a few days after you are offered an Article 15 will almost never be enough to overcome the Government’s evidence against you that may have been gathered for weeks or even months.  This makes it very difficult to combat the allegations.

On the other hand, we recently had two clients accept an Article 15 (Army E-5 and Army O-4), and both clients were found NOT GUILTY of the allegations by their issuing commander.  Their circumstances were unique, and it is important that you review the individual facts of your case with an attorney before making a decision to accept an Article 15.  However, you should know that it is possible to have success at the Article 15 forum if you have the right case and the right lawyers fighting for you.

Effects of an Article 15

Accepting an Article 15 is a risk management decision for many people.  When you accept an Article 15, you have limited risk in many respects.  In the worst case scenario, you will be convicted, punished, and discharged from the military, but you will not risk going to jail, receiving a punitive discharge such as a Bad Conduct Discharge (BCD) or Dishonorable Discharge (DD), or having a federal conviction on your record, all of which are only possible via court-martial.  Although you may be avoiding the criminal aspects associated with a potential conviction in a court-martial, the Article 15 punishment is sure to cause tremendous financial impact.  Lose of a single rank can easily cost you over $3,000 per year.  Forfeiture of pay for two months may also cost you thousands of dollars.  Restriction to barracks and forced extra duty are almost guaranteed punishments that can have a huge impact on your daily routines.

Demanding a Court-Martial

Turning down an Article 15 and going to court-martial often represents your best chance at beating all of the allegations, statistically speaking.  By demanding a court-martial, you will have ample time to prepare your defense, present your case to an impartial panel of members, and review all of the Government’s evidence against you. This decision comes at the risk of receiving confinement time, a punitive discharge, and other punishments as well as having a conviction on your permanent record.  However, even if you are convicted at a court-martial, you will be able to present evidence that the Government initially offered you an Article 15 for the offense.  This typically results in jurors not punishing you more than you would have received at the Article 15 level. (US v. Grill, 48 MJ 131 (CAAF 1998)).  In fact, many military judges will actually instruct the jurors that they are not to punish you solely for deciding to demand trial by court-martial.  Furthermore, if you want to save your military career and clear your name entirely, a court-martial is often the more likely avenue for success.

In a recent case, we represented an outstanding E-4 accused of poor behavior at a local bar.  Command had decided they just didn’t like this young man, and explicitly stated they would do whatever they could to destroy this individual.  He turned down his Article 15 and demanded trial by court-martial.  At trial, he was acquitted of the most serious allegations, and convicted of only military specific offenses.  His punishment was only a single reduction in rank.  Had he accepted the Article 15, he had been told he would have received maximum punishment which could have been a reduction by several ranks, forfeitures, restriction and extra duty.  Command was furious over how light punishment was.  Even more satisfying, we were able to publicly decry the abuses this individual suffered by his command.  This soldier remains in the military to this day because at least one of the members of his jury (a LTC commander) has lobbied on his behalf to retain him in the Army.  The fee for our services in this case has more than paid for itself in under six months.

Article 15, Non-judicial Punishment Lawyers

Whether you decide to accept your Article 15, or turn it down, we are here to fight for you throughout the entire process.  If you accept the Article 15, it’s important that you get in touch with us as soon as possible so that we can maximize our limited time to pull together the best defense possible.  We’ll immediately interview witnesses, collect favorable statements, and analyze all of the legal issues surrounding the Government’s case against you so that we can explain everything to your commander in a concise manner.

If you decide to turn down your Article 15 and demand a court-martial, we will bring all of the fight that we have.  We will waste no time in preparing for the trial, even if the Government delays in formally bringing charges against you.

Here’s the bottom line — your career is on the line.  If you’re the type of person that doesn’t want to leave anything on the table — if you’ll never forgive yourself for not fighting as hard as you can — then call us to discuss what we can do to fight for you.

Every case is different, and there are certainly situations in which accepting an Article 15 would be the advisable path, depending upon your objectives.  Prior case results should not be used as an indication of how yours will turn out, but it is important to discuss your case with an experienced attorney before you make your final decision.  Remember – you only have a couple of days when served this paperwork, so don’t wait – give us a call.