Posted on Jul 14, 2021
Is there any recourse if a commander finds a SM guilty of an offense under UCMJ totally without evidence?
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I have a friend who received a field grade article 15, and was found not guilty on counts 1 and 2, but guilty on counts 3 and 4. The commander flat out said if there were no count 4, he would not have gone to UCMJ for count 3. Count 4, however, was totally without evidence. The investigating officer didn't even speak to the individual to whom my friend was supposed to have made an inappropriate remark. The appeal was made, and denied. Is there any recourse?
Posted in these groups: 
UCMJ
UCMJ
Posted >1 y ago
Responses: 9
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Well, if I remember right an Art 15 is non judicial punishment which means he accepted the Art 15 foregoing a Courts Martial. When he accepted it he could appeal it to the next higher authority to overturn the Art 15 but that is not usually likely unless there is overwhelming evidence to the contrary because he accepted the punishment's. If he thought there wasn't enough evidence then he had the option to go to Courts martial and try it there. My rule of thumb as a Commander was if I am bringing an art 15 to you you can rest assured I have the evidence to go to courts martial...some Commanders bluff and get away with it but I wasn't willing to chance it. He needs to find a defense counsel and ask his options...probably should have done that prior to accepting the Art 15 but we are where we are now.
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CPT Lawrence Cable
MCPO Roger Collins - They don't let you change your mind after a Article 15, or on your side of the fence, a Captains Mast. If you make the decision not to ask for Court Martial, you can't change your mind because you didn't like the outcome.
https://home.army.mil/rucker/application/files/1715/4533/6193/Article_15_Appeal_Fact_Sheet.pdf
https://home.army.mil/rucker/application/files/1715/4533/6193/Article_15_Appeal_Fact_Sheet.pdf
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MSG Gary Eckert
CW3 (Join to see) This sounds like a SHARP complaint where Person Z overheard the conversation, and reported the conversation as violating SHARP. If that was the case the evidence was the statement from Person Z. It is not hearsay because Person Z is relaying some your friend (the accused) said and they heard personally. If would only be hearsay if person Z told someone and that person reported the incident. The Commander would then need confirm the conversation with Person Z. There is not requirement for the Investigating Officer to verify the conversation with Person Y or determine whether person Y was even offended by the remarks since the complainant was person Z. Therefore, complainant’s testimony of the conversation is the evidence.
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MCPO Roger Collins
CPT Lawrence Cable Poorly written response by me. What I meant was the next level of disciplinary punishment was a Summary CM. My first experience with the military judicial system as an E-2 in 1957. For smoking in an unauthorized area. Don’t recall being given a choice. As you can see, even the military understands how to forgive. Promoted to E-9 in 18 years.
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SSG Robert Perrotto
what did TDS say? every Art. 15 goes to TDS prior and after the reading. Something doesn't smell right with the OP's explanation.
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There really isn't an additional appeal process for Article 15 since it is non-judicial punishment. Once it is denied by higher, that's it. These cases should have been vetted by JAG before the Commander acted on it.
OK, I don't understand one thing. Your friend has the right to call witnesses, why didn't they call the person involved to testify if it would clear them?
OK, I don't understand one thing. Your friend has the right to call witnesses, why didn't they call the person involved to testify if it would clear them?
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An Article 15 is not a trial. Just like with a GOMOR or Censure the standard of evidence is different. In an Article 15 the Soldier chooses a non-judicial route with the Commander being the judge, prosecuter and jury but the worst sentence is a reduction, some pay and extra duty. The alternative is judicial and the Soldier has the opportunity to plead their case before a judge and impartial jury but the punishment can be much worse.
Unfortunately when the process is administrative or non-judicial the standard of evidence is lower and the command does not have to "prove" anything. If the UCMJ authority decides the Soldier is guilty and the appeal authority agrees, that is the end of the appeal process.
Unfortunately when the process is administrative or non-judicial the standard of evidence is lower and the command does not have to "prove" anything. If the UCMJ authority decides the Soldier is guilty and the appeal authority agrees, that is the end of the appeal process.
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