Where can I turn for assistance with an improper 15-6 and unfair article 15 hearing?

SGT Private RallyPoint Member — Thu, 29 Nov 2018 21:23:06 -0500

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?

Response by SFC Private RallyPoint Member made Nov 29 at 2018 10:22 PM

SFC Private RallyPoint Member — Thu, 29 Nov 2018 22:22:20 -0500

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.

Response by MSG Private RallyPoint Member made Nov 30 at 2018 12:14 AM

MSG Private RallyPoint Member — Fri, 30 Nov 2018 00:14:59 -0500

I read the thread that started with SFC Jason Boyd's comments, and he is correct. But what stuck out to me is now you still do not want to take responsibility. You took an oath that said you would abide by the Uniform Code of Military Justice. You broke part if that code, whether intentional.or not is inconsequential. Then when you are called out for breaking the code you fight the system with some barracks lawyer bullshit instead of realizing you screwed the pooch. Even when the BDE Commander concurs with the findings you continue to fight the system instead of taking responsibility.
Initially I wasn't going to comment because everything already said is true, but the lack of ownership makes me wonder how you became an NCO in the first place and makes me think your chain of command has the right idea. If you continue this pattern outside the military you arent going to get very far, but good luck to you.

Response by SGM Bill Frazer made Nov 30 at 2018 1:24 AM

SGM Bill Frazer — Fri, 30 Nov 2018 01:24:45 -0500

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.

Response by GySgt Private RallyPoint Member made Nov 30 at 2018 11:44 AM

GySgt Private RallyPoint Member — Fri, 30 Nov 2018 11:44:06 -0500

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

Section4PunitiveArticles.pdf

Response by SSG Bill McCoy made Dec 22 at 2020 4:42 PM

SSG Bill McCoy — Tue, 22 Dec 2020 16:42:48 -0500

Sarge - It would be easy to question why you accepted an Art 15 for such an alleged offense. In the eyes of most civil courts, legally separated persons cannot be considered having adulterous relationships. You're dealing with the Army however, and apparently with a CO who either has some bias against you, OR who is a person whose moral compass is perhaps too judgmental. I say, "perhaps," because obviously I nor anyone here a privy to all the facts.
Some unknown issues in your comments -
1. Were you drawing any monetary allowances due to your previous marriage while separated?
2. Were you "legally separated," with FORMAL documentation? (Usually drawn up by an attorney.)
3. Did you consult with SJA before accepting the Art 15?
4. Were you ever made aware of, or already know, that you could have "demanded a trial by Courts Martial?
Most important & related to the "3rd Element" for Adultery --- was the woman you had the child with a member of the Armed Forces? THAT's where the command's concerns would be rooted in the, "good order and discipline" issues, or if it involved duty time or government property.
Generally speaking though, if you CO was thorough, and the IO did his/her due diligence and determined RELEVANT FACTS ... well, hard to fight that. Further, Art 15's (Company or Field Grade) are NON-JUDICIAL and thus isn't viewed as something worth trying to appeal. It's not a criminal record in other words. What you should do though, is consult with SJA about help not getting administratively discharged and frankly, I don't know if that even doable; if so, that will depend on your Evaluation Reports and reputation as a soldier and NCO.