Posted on Mar 19, 2015
Should demanding a Court Martial be used as a way of "Getting out of" an Art15?
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This came up because twice in my career I have seen SM's that were offered an Article 15 (NJP) and elected to be tried by Court Martial, which is their option. In both cases the SJA (JAG) declined to prosecute under Court Martial proceedings due to the higher level of evidence required for a Court Martial conviction. In the one case, the member ended up with a Letter of Reprimand from their Squadron Commander (O5) and in the other the member received a Letter of Reprimand from the next higher Commander (Group/O6).
While LOR's are bad, they have no where near the same effect on a SM as an Art15.
What are your thoughts?
While LOR's are bad, they have no where near the same effect on a SM as an Art15.
What are your thoughts?
Posted in these groups: 
Court Martial
Discipline
Court Martial Discipline
Posted >1 y ago
Responses: 57
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It is the right of every accused to be prosecuted in a court of law, NJP is a compromise to save the command the time and expense of a Court Martial, the compromise being reduced sentencing and reduced standards of evidence.
Being cited for misbehavior does not mean a SM is guilty of it, hence the requirement for a Court-Martial in which their misconduct can be proven. NJP is a convenient compromise. So, I dont agree that anyone is "Getting Out" of an Article 15, they are declining the compromise offered to them.
An SM that elects Court Martial is rolling the dice, penalties go up big time.
A great example of a good use of refusal of NJP and election to trial by Court-Martial is the case in which Captain Sobel accused Capt Dick Winters of failing to obey an order.
Being cited for misbehavior does not mean a SM is guilty of it, hence the requirement for a Court-Martial in which their misconduct can be proven. NJP is a convenient compromise. So, I dont agree that anyone is "Getting Out" of an Article 15, they are declining the compromise offered to them.
An SM that elects Court Martial is rolling the dice, penalties go up big time.
A great example of a good use of refusal of NJP and election to trial by Court-Martial is the case in which Captain Sobel accused Capt Dick Winters of failing to obey an order.
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Capt Richard I P. You are not 100% accurate. There is a time when one does not have the right to request a Court Martial.
On a Navy/CG ship at sea, the Captain is the final authority. You will go to Mast (The Navy term for Art 15). The Captain (keep in mind that this is the Navy/CG term for Commanding Officer, not rank - could be an O6, could be an O2, it just depends on the ship) can assign the case to a Court Martial, but Mast is mandatory.
On a Navy/CG ship at sea, the Captain is the final authority. You will go to Mast (The Navy term for Art 15). The Captain (keep in mind that this is the Navy/CG term for Commanding Officer, not rank - could be an O6, could be an O2, it just depends on the ship) can assign the case to a Court Martial, but Mast is mandatory.
Capt Richard I P.
LCDR Jaron Matlow, exceptions to every rule it seems. Do you think that provision will remain? Given its historical legacy being that a ship at sea was its own world and incapable of reliable comms or offloading of Pax for matters of justice, and that isn't really the case anymore? At this point a ship at sea doesn't really seem any different than a Battalion in a combat zone, so why retain the distinction?
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It will take wiser officers than me to determine whether to change that system. There are still times when Navy ships are operating out of comms - in EMCON, and don't forget that submarines are isolated when underway...
SSG Bill McCoy
LCDR Rabbah Rona Matlow - Respectfully sir, yes, both Mast and Art 15 NJP is necessary as a step TO a Court Martial. It does not mean a serivce member has to ACCEPT punishment under NJP and CAN "demand a trial by Court Martial."
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TSgt Joshua Copeland Capt Richard I P. MAJ (Join to see) CSM Michael J. Uhlig CMSgt (Join to see)
This actually depends on the circumstances. I would not say demanding trial by Courts Martial should be used to avoid NJP - Article 15, but it is also your right as the accused service member. I probably have a unique perspective on this, as I have literally been on both sides of the proverbial desk...
1. I was offered an Article 15 (as an E-3) by my Company Commander at the the 472nd MP Company, Fort Wainwright, Alaska, circa 1982/83; I requested trial by Courts Martial, after consulting with my supervisors, and SJA (Trial Defense Service), because the charges were simply B.S. Within 24 hours, the Article 15 was dropped.
2. I have been a Company Commander (32 months), Battalion Commander (25 months), and Brigade Commander (37 Months), so have done both NJP - Art 15 at each level, as well as preferred charges for trial by courts martial for things that were above and beyond NJP.
My perspective is an Army perspective, and in the Army Letters of Reprimand only end up in your official file, if they are signed by a General Officer; General Officer Memorandum of Reprimand (GOMOR). A letter from me (CPT/LTC/COL), would only be locally filed, but of course they could impact NCOERs or OERs (evaluations).
* My approach to Article 15s, based on my experience as a young PFC on the other side of the desk, was simple. I would never offer an Article 15, if my SJA (Staff Judge Advocate) did not agree in advance that he/she could and would prosecute the charges if the SM refused the Article 15. With that knowledge in hand, I never had a SM refuse and ART 15, because the CM would be more painful. An ART 15 should never be offered, if SJA is not willing to take the case to courts martial, if the SM refuses. That is not the purpose of NJP. Art 15 is to handle solid cases quickly, and avoid a Courts Martial. Courts Martial (all three types) carry much bigger penalties.
That said, I have seen many Commanders offer ART 15 for cases/charges a Trial Counsel (Prosecutor) would not touch. That is not the way the system is supposed to work.
This actually depends on the circumstances. I would not say demanding trial by Courts Martial should be used to avoid NJP - Article 15, but it is also your right as the accused service member. I probably have a unique perspective on this, as I have literally been on both sides of the proverbial desk...
1. I was offered an Article 15 (as an E-3) by my Company Commander at the the 472nd MP Company, Fort Wainwright, Alaska, circa 1982/83; I requested trial by Courts Martial, after consulting with my supervisors, and SJA (Trial Defense Service), because the charges were simply B.S. Within 24 hours, the Article 15 was dropped.
2. I have been a Company Commander (32 months), Battalion Commander (25 months), and Brigade Commander (37 Months), so have done both NJP - Art 15 at each level, as well as preferred charges for trial by courts martial for things that were above and beyond NJP.
My perspective is an Army perspective, and in the Army Letters of Reprimand only end up in your official file, if they are signed by a General Officer; General Officer Memorandum of Reprimand (GOMOR). A letter from me (CPT/LTC/COL), would only be locally filed, but of course they could impact NCOERs or OERs (evaluations).
* My approach to Article 15s, based on my experience as a young PFC on the other side of the desk, was simple. I would never offer an Article 15, if my SJA (Staff Judge Advocate) did not agree in advance that he/she could and would prosecute the charges if the SM refused the Article 15. With that knowledge in hand, I never had a SM refuse and ART 15, because the CM would be more painful. An ART 15 should never be offered, if SJA is not willing to take the case to courts martial, if the SM refuses. That is not the purpose of NJP. Art 15 is to handle solid cases quickly, and avoid a Courts Martial. Courts Martial (all three types) carry much bigger penalties.
That said, I have seen many Commanders offer ART 15 for cases/charges a Trial Counsel (Prosecutor) would not touch. That is not the way the system is supposed to work.
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COL Charles Williams
SFC Andy Swanston It is a really good system, so long as we understand it and use it correctly. Luckily, I was well trained as a 2LT...
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MAJ Ronnie Reams
Interesting, I always thought that a CM was at the discretion of the convening authority, not JAG Trial counsel. If CM was ordered, it was up to the Trial Counsel to put on his/her best case.
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SSG Bill McCoy
MAJ Ronnie Reams - Sir, you are correct in a ltieral sense ... but the "commanding authority," will most always defer to SJA/JAG recommendations whether to proceed or not.
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If the case against someone is so weak that you fear bringing them to Court Martial, you probably are trying NJP on weak or circumstantial evidence... If it dissuades you, you really shouldnt be NJP'ing them anyway..
It's not a "get out of jail free" card, it's a "you better have your stuff together" card..
It's not a "get out of jail free" card, it's a "you better have your stuff together" card..
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SSG (Join to see)
I concur but am going to get off on a semi-tagent. NJP is a tool used to correct a behaviour or conduct. It is a useful tool in the tool-kit for leaders.
However, individuals fail to correct the issue at the lowest level. It is beyond easy to set a pattern of conduct with 4856s or other developmental counseling forms. Yet, leaders tend to not want to correct the problem as it manifests itself over time.
So, now that leader's leadership has been made aware of the issue, or has gotten to the point that it can no longer be permitted and (dont want to say focrced) but forces NJP.
If the subordinate leader had taken the time to correct behaviour deterimental to the readiness thereof, then the proof is in the pudding.
However, individuals fail to correct the issue at the lowest level. It is beyond easy to set a pattern of conduct with 4856s or other developmental counseling forms. Yet, leaders tend to not want to correct the problem as it manifests itself over time.
So, now that leader's leadership has been made aware of the issue, or has gotten to the point that it can no longer be permitted and (dont want to say focrced) but forces NJP.
If the subordinate leader had taken the time to correct behaviour deterimental to the readiness thereof, then the proof is in the pudding.
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MSG Thomas Currie
Any commander who offers a service member NJP under Art 15 who isn't prepared to take the matter to court martial and reasonably sure of getting a conviction is either an ass or incompetent.
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SFC Michael Hasbun
MSG Thomas Currie - Honestly, I'd say 40-50% of all NJP I've seen over the last few decades had almost nothing solid in the way of evidence. The standards for evidence are MUCH higher in Courts martial, and most things just don't have a "Criminal Minds" style forensic trail. Most things in the Army boil down to circumstantial evidence and hearsay.
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