If a soldier denies an article 15, does it automatically go to court martial or would the officiating officer decide that?

SGT Private RallyPoint Member — Sat, 30 Mar 2019 19:31:55 -0400

Response by MSG Private RallyPoint Member made Mar 30 at 2019 7:45 PM

MSG Private RallyPoint Member — Sat, 30 Mar 2019 19:45:40 -0400

If memory serves, the only options for an SM is to either accept the Article 15 or deny it and request trial by Courts Martial. But, before accepting or denying, the SM should have been given time to speak with Legal.

Response by LTC Jason Mackay made Mar 30 at 2019 9:14 PM

LTC Jason Mackay — Sat, 30 Mar 2019 21:14:22 -0400

SGT Private RallyPoint Member From the Manuals for Courts Martial, Article 15 Nonjudicial Punishement:
"a) Under such regulations as the President may prescribe, and under such additional regulations as may be prescribed by the Secretary concerned, limitations may be placed on the powers granted by this article with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this article to an accused who demands trial by court-martial, and the kinds of courts-martial to which the case may be referred upon such a demand. However, except in the case of a member attached to or embarked in a vessel, punishment may not be imposed upon any member of the armed forces under this article if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment. Under similar regulations, rules may be prescribed with respect to the suspension of punishments authorized hereunder. If authorized by regulations of the Secretary concerned, a commanding officer exercising general court-martial jurisdiction or an officer of general or flag rank in command may delegate his powers under this article to a principal assistant."

So the decision is which flavor of Courts martial to dispose of the charges with. Usually for a garden variety Article 15, it could be a Summary Court Martial.

Response by LtCol Robert Quinter made Mar 30 at 2019 9:49 PM

LtCol Robert Quinter — Sat, 30 Mar 2019 21:49:48 -0400

I'm not modern anything, but I did command one unit of 1600 people and one smaller unit as a field grade officer. In both units the Sgt Maj, my S-1/legal officer and the offender's OIC would bring me the case being considered. I would hear everything they all had to say about what kind of Marine the individual was. Then we would discuss the infraction and, based upon the seriousness of the problem and the individuals performance I would decide how we were going to handle the situation. If the individual was an habitual offender, had pushed everyone else to the point of exasperation and didn't seem to be the type of individual who had a desire to succeed, I would bring the individual in, explain what the complaint was and offer him or her the opportunity to offer any (I remember this like yesterday) information he had in "defence, mitigation, or extenuation". After hearing that information I would make the decision whether I wanted to continue the Art 15. If I thought the Art 15 would have an impact, I would confirm that he/she was willing to accept the Art 15. If I didn't think the Art 15 was going to make a difference in the serviceman's attitude, I wouldn't even ask if he would accept the 15, but advised him I felt the situation was not appropriate for an Art 15 and was going to start the process of referring him to court martial. My point is, most officers I knew felt the Art15 was an opportunity for someone to screw up without it being a career killer and it was my opportunity to catch a person's attention and demonstrate to the rest of the unit that such conduct would not be accepted without consequence. At the same time, I didn't feel all punishments or decisions had to be equal. The people who were good Marines whose OIC and the SgtMaj felt were worth working with walked out of my office feeling a lot more hope than the habitual offender.

Response by SGM Bill Frazer made Mar 30 at 2019 10:25 PM

SGM Bill Frazer — Sat, 30 Mar 2019 22:25:51 -0400

So instead of a slap on the wrist, lose maybe a stripe and or 7 days pay/restriction. You would turn down the Art 15- forcing the CO to decide what kind of Court Martial to ask for. Knowing that a Courts-martial can take ALL pay- entitlements/rank/discharge you and or put you in a Federal penitentiary? The CO can only offer the Art -15 or setup a courts-martial of vayring degrees.

Response by MAJ Javier Rivera made Mar 30 at 2019 10:38 PM

MAJ Javier Rivera — Sat, 30 Mar 2019 22:38:25 -0400

Succinct:

If a commander with UCMJ Authority issues an Article 15 to a subordinate, after proper legal advice a/he has the option of either take it or request a court martial; most likely a summary court martial. The assigned TDS lawyer will explain the pros and cons of both proceedings. Caution on selecting a court martial proceedings... it is a court proceedings with potentially and extremely detrimental results if found guilty. Again, assigned TDS lawyer explains the process.

Response by CW4 Craig Urban made Mar 31 at 2019 2:13 AM

CW4 Craig Urban — Sun, 31 Mar 2019 02:13:34 -0400

It goes to a special court. Had it happen in fort ord. sp/5 Mormon. Captain was assigned as the judge. Also a Mormon. He let him slide. The captain resigned. I do not like Mormons. Too dutch for me.

Response by COL Brian Shea made Apr 1 at 2019 11:53 AM

COL Brian Shea — Mon, 01 Apr 2019 11:53:20 -0400

I'm stretching some memory cells here, but as I recall as a commander you "offered" the alleged offender the opportunity to resolve the issue under Art 15. They could decline to do so, in which case the commander had to decide if, and how, to pursue the matter. A commander was not obligated to offer Art 15 nor was the Soldier obligated to accept it. And there were "Formal" and "Informal" Art 15's. The former went into the Soldier's records, while the latter was discarded after a period of time. To answer the basic question posed above: No. It does not automatically go to courts-martial. The commander must pursue the process. But that doesn't mean the alleged offender gets off the hook by declining. A key thing to remember is that a commander offering to resolve an issue under Art 15 DOES NOT mean the Solider is automatically guilty. In fact, if I recall the wording right part of the reading is that the commander has not made a decision as to guilt or innocence when the Art 15 is offered. The Solider is simply consenting to having the commander hear evidence and make a judgement. As to punishment, as I recall a Soldier could receive worse from a Field Grade Art 15 than a Summary CM could impose. All that said, many infractions could be handled by a good "counseling" session by the appropriate leader in the Solider's chain of command (see: Ass Chewing). If you wanted some kind of documentation, there was always a counseling statement. Art 15 was for more serious or repeat incidents where you didn't want to end a career but needed strong corrective action - Non Judicial Punishment. And some things had to go to some level of CM. And of course, a higher level commander could always reserve jurisdiction on any specified offense(s). So if a BC did so on say, any drug related offenses they could not be resolved at company level but had to be reported to the BC for action. Realize I wrote a bit of a book here, but at least I did address your question somewhere in the middle of this reply. :)

Response by SSG Darrell Peters made Apr 1 at 2019 12:44 PM

SSG Darrell Peters — Mon, 01 Apr 2019 12:44:23 -0400

They are three types of Court Martials.
A summary court-martial is the lowest level of the military courts, and it does not have a direct civilian equivalent. However, it is essentially used to try enlisted members of the military for relatively minor misconduct. It uses a more simple and streamlined procedure to resolve the accused of charges.
Here is the thing Just because a commander wants to give an article 15 doesn't mean it will happen. If it goes to Summary Court Martial the presiding Judge could simply say this is nonsense or proceed. If he says this is nonsense that's it game over.
Also seen some GI's use Article 138 of the UCMJ to their advantage when Commanding officers particularly Company Commanding Officers got over zealous with Article 15's. Handing them out like candy. A lot of young soldiers don't understand their rights. A competent JAG attorney will advise weather to take an article 15 or not. Remember if anything goes to Court Martial it is a Federal Conviction if found Guilty. The old saying choose your fights wisely.

Response by MSgt Matt Hancock made Feb 3 at 2020 12:03 PM

MSgt Matt Hancock — Mon, 03 Feb 2020 12:03:50 -0500

Not a JAG nor did I ever play the role nor sleep in a fancy hotel. This is first hand experience. I was TDY and was arrested for "misuse of government vehicle." Upon my return to home base I met with the CO who offered the Art 15 and advised me of my right to consult with the local Area Defense Council. I went to the meeting with the ADC, discussed it and he stated "take the court martial" I told him he was out of his mind as I had done the deed and trusted my chain of command. I ended up with the Art 15, control roster and $100 fine ( I even offered to pay out of pocket but was advised, by a smiling LtCol it would be deducted from my pay). Some years later there was a young troop accused of "improper conduct" that was labeled "conduct unbecoming an NCO". He refused the offered Art 15 and many thought it would end with a simple letter of reprimand. Within a short time more information came forward and so a Court Martial was set up. He attempted to have the CO give him the Art 15 in lieu of court and rightly so the CO refused his offer. The guy was convicted and sentenced (don't recall the length of sentence. I escorted him to his future residence at Leavenworth. Lesson learned for me; many times the chain of command does understand what is going on and the Art 15 is a great tool However the alternative, the courts martial, is a large sledge hammer and one should consider it following up if one refuses the Art 15.

Response by SPC Brad Pratt made Feb 3 at 2020 12:15 PM

SPC Brad Pratt — Mon, 03 Feb 2020 12:15:12 -0500

Take it for what it’s worth- aging memory & second hand information.
Barracks was having a party: playful bantering between an artillery unit & a Mech inf unit. Got out of control. Solider comes back from the PX. Finds the company parking lot filled with MP cars. See his NCO (squad leader) pull in (from family housing [called in]) to the parking lot right in front of him. Address’ his SGT “What’s going on?” SGT replies fight in the big barracks.
Even though the SGT witness that the solider wasn’t in the barracks at the time & stated as much. The C/O insisted that all soldiers who lived in the barracks where to receive company grade article 15’s.

Response by COL Ralph Bryan Hanes made Feb 3 at 2020 2:43 PM

COL Ralph Bryan Hanes — Mon, 03 Feb 2020 14:43:35 -0500

Does it automatically go to Courts Martial? No. The commander has the option to refer it to the convening authority for Courts Martial or as is rarely the case, decide to not prefer charges. The Convening Authority further considers what is sent to him and presented by his SJA. The case may not be viable. Today that should be a rare occasion because if a Company Commander sent him a marginal or impossible case, the CC would (likely) be in serious trouble for not enlisting the aid of the SJA in reviewing the case prior to making the case to the Soldier to offer the Article 15.
The soldier/sailor/marine has the unilateral right to decline the Article 15. S/He has the right to demand trial by Courts Martial. This choice is not to be invoked lightly. The consequences are generally the difference between a misdemeanor and felony, assuming conviction. The long term consequences for Article 15's were once minimal... for non-officers. Today, I understand it can be a career killer or at least a serious braking action. A felony goes out with the service member and the frequently assessed other than honorable discharge, along with time in Ft. Leavenworth. The military provides free JAG assistance for the benefit of the service member. Anyone who accepts any formal discipline without consulting the JAG is almost always demonstrating a lack of judgement requisite for any assignment E3 or above. There are times that the Art 15 is a "Gift from on High" and should be accepted before it might be withdrawn. In general, competent commanders do not offer Art 15 frivolously. There are Senior NCO's and Junior officers who I have seen carry a form into the CO's office and needing a diaper sized bandaid when they left. UCMJ is not the forum for redressing bruised ego's wherein the junior involved was legally within his/her rights and the leader was just plain wrong/mistaken. Some days it sucks to be you/me/her/him, etc. Do what you must do, but don't do it without some un-distracted consideration AFTER RECEIVING COUNSEL!

Response by Lt Col Scott Shuttleworth made Feb 3 at 2020 5:13 PM

Lt Col Scott Shuttleworth — Mon, 03 Feb 2020 17:13:17 -0500

If the member denies the Art 15 it will move forward on the Commanders direction. Now with that being said most Commanders will not offer an art 15 unless they have enough evidence or information to take it to a Court Martial and win. I never gave a Art 15 if I wasn't prepared to take it to CM. If a member wants to roll the dice then that is them for it but they are rolling the dice.

Response by CPT William Jones made Aug 21 at 2020 11:39 PM

CPT William Jones — Fri, 21 Aug 2020 23:39:21 -0400

The commander deciders if he will offer an art 15 after his investigation and then explains
To SM what’s going on. If the Sm wants he signs and excepts. Or he may refuse. If that happens the Commander decides if he wants to pursue the court martial. Service only chooses to accept or reject the art 15

Response by SFC David Johnson made Oct 31 at 2020 3:19 PM

SFC David Johnson — Sat, 31 Oct 2020 15:19:18 -0400

I was once recommended for an Article 15 while deployed. After being sent to JAG, I demanded trial by court-martial. The whole case was tossed after the circumstances were brought forward. IMO, the risk was worth it because it showed that often a soldier will take an Article 15 and could be innocent.

Response by SGT Randall Smith made Jun 13 at 2021 7:03 PM

SGT Randall Smith — Sun, 13 Jun 2021 19:03:27 -0400

In 1966 in Germany our 1SGT gave me an option, his punishment for fighting with a spc5 or going to the CO a 1LT for a article 15. I painted latrines and rocks for 4 weekends to make the TOP happy. The Spc5 refused the 1SGT's offer and was busted down to SP4. In Viet Nam I was offered an article 15 or Courts Martial. The CO and TOP explained to me what would happen in each case and recommended the article 15. I was the senior person in a truck that hit a person so I was responsible. I paid $35.00 to her father and that was the end of it. The kid driving was sent home in a straight jacket. He never stopped crying. There was a later courts martial but the CO and 1SG told me to plead not guilty and ask for half NCO's on the board. They knew I was guilty The person who brought charges was tried that afternoon after my trial. He was sent to LBJ for 6 months.