Posted on Nov 29, 2018
Where can I turn for assistance with an improper 15-6 and unfair article 15 hearing?
10.5K
32
29
0
0
0
So to make a long story short, came into the Army already legally separated through the court system. Stayed that way for about 5 years while I served. We both lived separate lives and lived in separate states and had relationships with other people since we were living in a divorced state. Began a relationship with a young lady while I was stationed in Texas and we ended up having a child together. Had a PCS to Hawaii where I finally had my divorce come through and got remarried.
My new commander found out I had a child with someone while I was legally separated. He appointed an IO within the company, within the platoon and someone that he rates. This IO then proceeded to commit perjury and withhold evidence that I gave him. I never got to see the 15-6 results until I was brought up on article 15 for adultery. The adultery was from the 15-6 investigation which stated that because I had a child with another woman while in San Antonio, I committed adultery. Regardless of the fact that no complaint had ever been received from the previous command and no complaint/communication ever happened between command and my ex wife.
This commander made it clear he wanted me to burn and said he personally understands this situation. He referred it up to be a field grade article 15. Every bit of evidence I brought to the article 15 hearing was ignored and pushed to the side. When I showed that this situation does not meet the third element of adultery, I was told that they did not have to meet the elements of the crime and could just say that it was included. Got hit with the maximum punishment of 45 days extra duty, reduction in rank, etc. Now this article 15 is being used as the basis for a serious offense chapter. My commander made sure he recommended general discharge so I couldn't get a discharge review board since I don't have 6 years until Feb. All complaints I have made have fallen on deaf ears or people who just support command because of his rank. Any help someone can provide would be very beneficial. I feel like I have tried everything and am at the end of finding any hope of justice here in the Army. Any information?
My new commander found out I had a child with someone while I was legally separated. He appointed an IO within the company, within the platoon and someone that he rates. This IO then proceeded to commit perjury and withhold evidence that I gave him. I never got to see the 15-6 results until I was brought up on article 15 for adultery. The adultery was from the 15-6 investigation which stated that because I had a child with another woman while in San Antonio, I committed adultery. Regardless of the fact that no complaint had ever been received from the previous command and no complaint/communication ever happened between command and my ex wife.
This commander made it clear he wanted me to burn and said he personally understands this situation. He referred it up to be a field grade article 15. Every bit of evidence I brought to the article 15 hearing was ignored and pushed to the side. When I showed that this situation does not meet the third element of adultery, I was told that they did not have to meet the elements of the crime and could just say that it was included. Got hit with the maximum punishment of 45 days extra duty, reduction in rank, etc. Now this article 15 is being used as the basis for a serious offense chapter. My commander made sure he recommended general discharge so I couldn't get a discharge review board since I don't have 6 years until Feb. All complaints I have made have fallen on deaf ears or people who just support command because of his rank. Any help someone can provide would be very beneficial. I feel like I have tried everything and am at the end of finding any hope of justice here in the Army. Any information?
Posted in these groups: 
Military Justice NCO
Military Justice NCO
Posted 6 y ago
Responses: 5
4
4
0
Own up to it. 1. You are not in a divorced state until you have a divorce, so in the eyes of any court, you were committing Adultery while separated from your wife. 2. If you were supporting the girlfriend instead of the wife, then you were illegally using your spouses funds. 3. Since when are you a qualified lawyer?, then IO works only for the CO since he is the CO's Investigative Officer, and is merely ascertained what facts are there to present with his conclusions. 4. Any anytime you could have requested a Courts-Martial in lieu of the AR 15. 5, This whole thing has been reviewed JAG at least at 2 command levels, and found nothing to stop the Commanders from moving forward. Lastly barracks lawyer- JAG reviews all Non-judicial and judicial punishment actions (ART 15 to CM) every day and again evidently found NOTHING wrong, or improper with the charges and or punishment. You screwed yourself, and the Military made you pay for it. Suggest you learn from it and move on.
(4)
(0)
SGT (Join to see)
Good evening,
Thank you for your response, regardless that it wasn't very constructive at all. I would like to again point out that I asked for advice, preferably from someone with legal experience.
As for the rest of your response, I have never said I am a lawyer at all, I have consulted with several actual lawyers though and two separate TDS attorneys. IG has stated that there are numerous things wrong with this but they cannot act on an article 15. Division EO used the words "petty" so I am not alone on my view point.
I came here asking for guidance on where else I could go to seek help. If that is not something you can provide then thank you for your time.
Thank you for your response, regardless that it wasn't very constructive at all. I would like to again point out that I asked for advice, preferably from someone with legal experience.
As for the rest of your response, I have never said I am a lawyer at all, I have consulted with several actual lawyers though and two separate TDS attorneys. IG has stated that there are numerous things wrong with this but they cannot act on an article 15. Division EO used the words "petty" so I am not alone on my view point.
I came here asking for guidance on where else I could go to seek help. If that is not something you can provide then thank you for your time.
(0)
(0)
SFC Ralph E Kelley
I said you, "I would like to again point out that I asked for advice, preferably from someone with legal experience." Did you go to JAG before signing the Art 15?
(1)
(0)
SSG Robert Perrotto
Not to piss anyone off, but I am going to call a spade a spade - if this kid is getting railroaded for adultery, then there is a ton of senior NCO's and Officers who also need to be railroaded, common sense should be the rule here, the Kid was legally separated, which is a lot more then I can say for quite a few officers and NCO's who have committed adultery, and have openly talked about it. Bullshit is bullshit, and this smells like bullshit of the highest quality. I cannot stand hypocracy, and If I were this Kids NCO, I would be kicking down doors, and naming names.
(2)
(0)
4
4
0
You can appeal the Article 15. If you thought you weren't guilty you could have requested a court martial.
However, I see several glaring issues you'll face. First, you were married, had a child with someone else, that is adultery. Sexual intercourse between someone who is married, and someone other than their spouse. Second, what described was not perjury by the IO. Perjury is lying under oath. Third, your IO is not required to provide you with anything. The IO reports to the commander. On top of that, I am going to assume you were drawing BAH while you two were separated, while you would have otherwise not been entitled to BAH. While they prosecute you for fraud, it certainly looks like you failed to process your divorce in order to draw BAH.
Since the Brigade commander is the one who reviews and approves most of the chapters, you could have an open door discussion with him. If your approach is that you're innocent, I don't think you'll be very successful. A better approach may be to admit that you intended no malice, you accept your mistakes, they happened a long time ago, and you still have a lot to offer the Army.
As an objective observer, I have no reason to support your command. While it may seem excessive for them to prosecute this so severely, nothing you've said shows me that they were wrong. It is still adultery and your complaints don't seem to warrant a legitimate objection. Good luck.
However, I see several glaring issues you'll face. First, you were married, had a child with someone else, that is adultery. Sexual intercourse between someone who is married, and someone other than their spouse. Second, what described was not perjury by the IO. Perjury is lying under oath. Third, your IO is not required to provide you with anything. The IO reports to the commander. On top of that, I am going to assume you were drawing BAH while you two were separated, while you would have otherwise not been entitled to BAH. While they prosecute you for fraud, it certainly looks like you failed to process your divorce in order to draw BAH.
Since the Brigade commander is the one who reviews and approves most of the chapters, you could have an open door discussion with him. If your approach is that you're innocent, I don't think you'll be very successful. A better approach may be to admit that you intended no malice, you accept your mistakes, they happened a long time ago, and you still have a lot to offer the Army.
As an objective observer, I have no reason to support your command. While it may seem excessive for them to prosecute this so severely, nothing you've said shows me that they were wrong. It is still adultery and your complaints don't seem to warrant a legitimate objection. Good luck.
(4)
(0)
SFC (Join to see)
SGT (Join to see) you're referencing case law, but you didn't bring your case to court. There's no perjury or any prosecutor, there's no case, and no requirement for the commander to accept that adultery needed to be prejudicial to good order and discipline. Had you taken your case to court, these could be valid points. Your situation may not warrant prosecuting because there was no damage to the unit, but that does not change the fact that you did - by definition - commit adultery. If your strategy is to prove them wrong, you will not be successful. That's why IG wouldn't be able to help you, everything was conducted within policy. The Commander was within his right to administer the judgment he did. You can appeal higher, but focus on the fact that this is an over reaction to something that happened long ago.
(1)
(0)
SGT (Join to see)
SFC (Join to see) Thank you for responding. I understand what you are saying and I appreciate it.
I want to clarify though for others reading this that an article 15 hearing is bound to the same level of proof as a court martial. That is the reason I accepted it. TDS was astounded to hear that the battalion commander said he is not bound by case law. TDS attorneys verified that an article 15 hearing is bound by case law as well.
I want to clarify though for others reading this that an article 15 hearing is bound to the same level of proof as a court martial. That is the reason I accepted it. TDS was astounded to hear that the battalion commander said he is not bound by case law. TDS attorneys verified that an article 15 hearing is bound by case law as well.
(1)
(0)
SFC (Join to see)
SGT (Join to see) that's what they say, however in practice I have seen people get steam rolled. By accepting an article 15 you're accepting the commanders judgment. Much the same as accepting arbitration. While TDS can tell you that it "should be" different, they are unable to protect you.
Your only resolution is to bring it to a higher authority and ask for sanity and clemency.
Your only resolution is to bring it to a higher authority and ask for sanity and clemency.
(2)
(0)
SGT (Join to see)
SFC (Join to see) Sadly a truth I have learned first hand. Thank you for the advice and have a good evening.
(0)
(0)
2
2
0
I would start with if they are using the current 2017 or later edition of the MCM. Article 134 (Adultery) is no longer a punishable article in the MCM. The current Article 134 (Extramarital sexual conduct) is very specific on what is and is not covered. As long as you were legally separated, by a court order, from your now ex-wife and your current wife was 1. legally separated, by court order or 2. unmarried no violation of the article happened.
(4) Legal Separation. It is an affirmative defense to the offense of Extramarital sexual conduct that the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction. The affirmative defense does not apply unless all parties to the conduct are either legally separated or unmarried at the time of the conduct.
Analysis
(4) Legal separation. This is a new affirmative defense. In order for the affirmative defense to apply, both parties to the conduct must either be legally separated or unmarried. That is, it is not an affirmative defense if the accused is legally separated but the co-actor is still married. By the same token, it is an affirmative defense if the accused is legally separated and the co-actor is unmarried.
This information was pulled from the Joint Service Committee on Military Justice.
https://jsc.defense.gov/Portals/99/Documents/Section4PunitiveArticles.pdf?ver=2017-07-19-103116-810
(4) Legal Separation. It is an affirmative defense to the offense of Extramarital sexual conduct that the accused, co-actor, or both were legally separated by order of a court of competent jurisdiction. The affirmative defense does not apply unless all parties to the conduct are either legally separated or unmarried at the time of the conduct.
Analysis
(4) Legal separation. This is a new affirmative defense. In order for the affirmative defense to apply, both parties to the conduct must either be legally separated or unmarried. That is, it is not an affirmative defense if the accused is legally separated but the co-actor is still married. By the same token, it is an affirmative defense if the accused is legally separated and the co-actor is unmarried.
This information was pulled from the Joint Service Committee on Military Justice.
https://jsc.defense.gov/Portals/99/Documents/Section4PunitiveArticles.pdf?ver=2017-07-19-103116-810
(2)
(0)
GySgt (Join to see)
Sorry, they are amendments to the MCM and not a new edition. The are effective March 1, 2018 with the issuing of Executive Order 13825. As long as your Article 15 happened after that and you meet all the requirements for legal separation, you should have a successful appeal. Remember these are relatively new ammendments so commands and lawyers, even JAGS, are use to picking up the MCM and going from there. This was an extensive revision to the MCM that probably should have warranted the publication of a new edition.
Good luck to you and I hope this information helps.
Good luck to you and I hope this information helps.
(1)
(0)
SGT (Join to see)
GySgt (Join to see) Good morning. This was great advice but my TDS attorney is saying that it wouldn't work because the changes go into effect Jan 1 19. I showed him that the order states March but then he said since the adultery occurred in 2017 I'm not protected. Any idea on if that is true if my article 15 didn't happen until June of 2018?
(1)
(0)
GySgt (Join to see)
Unfortunately, he is correct I was working off my phone earlier and didn't see the annex 2 portion of the E.O. that does take effect Jan 1, 2019. Annex 1 took effect the day it was signed.
The other unfortunate thing is you did not take this to Courts Martial. Most JAGs would not pursue this case at CM unless one of the three below listed elements were also present:
(e) The misuse, if any, of government time and resources to facilitate the commission of the conduct; (i.e. the Air Guard commander that flew his F-16 to Washington D.C. while having an affair with an Army officer at the pentagon)
(f) Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ; (i.e. told to stop and didn't, forcible sodomy)
(g) The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency; (i.e. sleeping with another unit members spouse.)
and finally most would have taken the fact that you had been legally separated for 5 years into account and not pursued charges.
(h) Whether the accused or co-actor was legally separated.
Prosecutorial discretion is a thing even in the military. Just because someone commits a violation of the UCMJ does not mean it has to be taken to the max. Some commanders are old fashion and married is married, but with the new E.O. this wont happen to other service members stuck in your possession, as long as they wait until after the new year to start their relationship.
The other unfortunate thing is you did not take this to Courts Martial. Most JAGs would not pursue this case at CM unless one of the three below listed elements were also present:
(e) The misuse, if any, of government time and resources to facilitate the commission of the conduct; (i.e. the Air Guard commander that flew his F-16 to Washington D.C. while having an affair with an Army officer at the pentagon)
(f) Whether the conduct persisted despite counseling or orders to desist; the flagrancy of the conduct, such as whether any notoriety ensued; and whether the adulterous act was accompanied by other violations of the UCMJ; (i.e. told to stop and didn't, forcible sodomy)
(g) The negative impact of the conduct on the units or organizations of the accused, the co-actor or the spouse of either of them, such as a detrimental effect on unit or organization morale, teamwork, and efficiency; (i.e. sleeping with another unit members spouse.)
and finally most would have taken the fact that you had been legally separated for 5 years into account and not pursued charges.
(h) Whether the accused or co-actor was legally separated.
Prosecutorial discretion is a thing even in the military. Just because someone commits a violation of the UCMJ does not mean it has to be taken to the max. Some commanders are old fashion and married is married, but with the new E.O. this wont happen to other service members stuck in your possession, as long as they wait until after the new year to start their relationship.
(1)
(0)
SSG Bill McCoy
SGT (Join to see) - Regarding 2017 as the time of the adultery ... ask about any Statute of Limitations, not ONLY military wise, but in civilian courts. While civilian courts are NOT generally relevant to military law, and precedent set by them MIGHT provide some viable or convincing argument. As to the newer amendments about how adultery is viewed, even though those occurred AFTER the alleged offense date, they should still be considered relevant at least in terms of arguing your case.
(0)
(0)
Read This Next
Continue with Facebook 
Continue with Google