Deciding Whether to Turn Down or Accept an Article 15
If you’ve received an Article 15 in the military, the most important decision you have to make is whether to accept the Article 15 or turn it down and demand trial by court-martial. We have a number of prior articles on Article 15 that are a great additional resource.
Article 15 Process
An Article 15 in the military is a serious administrative action that can substantially hurt your career, result in a reduction in rank, significant financial fine, restriction to personal freedom, and extra duty. An Article 15 is supposed to be so serious as to amount to criminal conduct, but is not quite so serious as to require a court-martial.
The Article 15 process has two steps. First, the commander “offers” an Article 15. The Army calls this process the “first reading.” The offering of the Article 15 is a formal process and is documented on a specific form. The offering is a one-way conversation and should not prompt and statement or response from the accused service member without first consulting with an attorney.
After the offering, the member is given a number of days to prepare a response to the offer. There are a number of response options that should be made with the assistance of counsel.
Accepting an Article 15
First, you can “accept” the Article 15 forum, which means that you are agreeing to allow the commander to make the final decision regarding the Article 15. When “accepting” an Article 15, you can either advocate for the commander to find you not-guilty or you can accept responsibility and provide the commander with mitigating evidence to keep punishment as minimal as possible.
Many junior JAGs recommend accepting responsibility as the best path, but we rarely find this to be in the member’s best interest.
When accepting an Article 15, it is important to provide the commander with a thorough and effective response package. This package ordinarily includes a statement from the accused, additional evidentiary documents, witness statements, and/or an attorney memo. We are particularly well known for our expertly drafted attorney letters to commanders encouraging them to find our client not-guilty. We also think it is important for the lawyer to carefully assist in the client’s drafting of a personal statement.
Turning Down an Article 15
Where you are confident in your innocence and/or not trusting of your commander’s ability to be fair, it is very important to consider turning down the Article 15 and demanding trial by court-martial. This is a heavy decision to make that must be made with the advice of the counsel you most trust.
Benefits of Turning Down an Article 15
There are many benefits to demanding a trial by court-martial, but there are also risks. The most impactful difference is the burden of proof at a court-martial. At a court-martial, the finder of fact (jury or judge depending on your choice) must be convinced of guilt beyond a reasonable doubt. This is the highest evidentiary standard in the law, and actually the highest ever in the history of law in any country at any time in civilization. This high standard is extremely beneficial to an accused.
It may also be very helpful to have a judge and jurors decide your case instead of your commander. Commanders can often be very biased and use otherwise inadmissible factors to consider guilt. There is very little review of an Article 15, while a court-martial operates with very strict rules and has a thorough appellate process.
A court-martial also provides the ability to cross examine accusers and to compel witnesses to testify on your behalf. It may also permit the appointment of expert consultants at the Government’s expense. These are all very important benefits to a court-martial over an Article 15.
Just because you turn down an Article 15 and demand trial by court-martial does not mean they will actually take you to court-martial. You are basically calling their bluff. They may feel that a prosecution at court-martial is not worth the time, expense, or risk and instead give you lower level administrative paperwork, such as a reprimand.
Reasons to Accept Article 15
There are risks to demanding a trial by court-martial instead of accepting an Article 15.
First, a conviction at a court-martial is a conviction in a federal criminal court. In most Article 15 turn-downs, a conviction at court-martial would result in a misdemeanor federal conviction. This would be less serious that a felony conviction, but still can cause real consequences in future endeavors. On the same hand, a misdemeanor conviction may not be all that significant for many people.
A court-martial conviction will almost certainly carry a greater risk of punishment consequence, including confinement or a bad conduct discharge. These are important considerations.
Lawyers for Article 15
If you are offered an Article 15, you are entitled to a military lawyer at no expense. Military lawyers handle huge volumes of Article 15s and are noted to have very little time to review the files and conduct thorough investigations. In most cases, military attorneys do not have the time or inclination to write their own supporting legal memos, and hand off the responses of the client to low ranking enlisted personnel to edit grammar and punctuation.
If you’ve received an Article 15, time is limited and decisions have to be made fast. Contact us for an immediate free consultation.
