Posted on Nov 29, 2018
Where can I turn for assistance with an improper 15-6 and unfair article 15 hearing?
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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?
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Military Justice NCO
Military Justice NCO
Posted 7 y ago
Responses: 5
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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?
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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.
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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.
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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.
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.
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SGT (Join to see)
MSG (Join to see) Thank you for your response back. Yes, divorces are very frustrating. Put child custody disputes into the mix and its a whole new level. I know several other members who feel that frustration right now.
Believe me I am upset with myself for accepting the article 15. My civilian attorney I have now told me that was a mistake; however, too late to fix that.
I do have to correct you on something though. The only reason I accepted the article 15 was because TDS verified and it states in the UCMJ under non judicial punishment that the standard of proof is the same as a court martial, beyond a reasonable doubt. Even with numerous letters from attorneys, including a very brilliant one from TDS that I could never write, the command team made up their own interpretation of law.
Prior to joining, I served as a county police officer so elements of a crime are not new to me. When I am told that elements of a crime don't have to be proven by my commander that is a complete lack of justice. For example: elements of burglary are 1- to enter or remain on a premise, business, etc (legal jargon) 2- with the intent to steal. If a homeless person came into my house and took a nap, he didn't commit burglary because the element of the crime wasn't met. Sorry if I rambled here.
Believe me I am upset with myself for accepting the article 15. My civilian attorney I have now told me that was a mistake; however, too late to fix that.
I do have to correct you on something though. The only reason I accepted the article 15 was because TDS verified and it states in the UCMJ under non judicial punishment that the standard of proof is the same as a court martial, beyond a reasonable doubt. Even with numerous letters from attorneys, including a very brilliant one from TDS that I could never write, the command team made up their own interpretation of law.
Prior to joining, I served as a county police officer so elements of a crime are not new to me. When I am told that elements of a crime don't have to be proven by my commander that is a complete lack of justice. For example: elements of burglary are 1- to enter or remain on a premise, business, etc (legal jargon) 2- with the intent to steal. If a homeless person came into my house and took a nap, he didn't commit burglary because the element of the crime wasn't met. Sorry if I rambled here.
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SGT (Join to see)
The frustration I feel with this situation comes from the fact that prior to even being read the article 15 my TDS attorney was told that my company commander wanted to chapter me out before I was even found guilty of anything. Non judicial punishment is supposed to be exactly that, punishment for something, do your time and carry on your mission. This has been one huge punishment for a year culminating in this chapter packet. If the punishment had been the end of this then fine, I did my time and worked hard on extra duty. Yet that was not the end, the punishment was the stepping stone to the chapter.
If this had been something like I tested positive for drugs or got a DUI I would take the punishment full on and embrace I made a big mistake. With this, I don't see how it should be a career ender alone.
If this had been something like I tested positive for drugs or got a DUI I would take the punishment full on and embrace I made a big mistake. With this, I don't see how it should be a career ender alone.
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MSG (Join to see)
SGT (Join to see) you are correct, let me rephrase. The commander isn't worried about burden of proof because his lawyer has already reviewed the case. Before the paperwork gets to the commanders desk it is typed up via paralegal and reviewed by the commanders lawyer. So that lawyer thinks you met all the criteria. If this goes anywhere else it will be the commanders lawyers interpretation vs your lawyers.
While the company commander may want to chapter and has told you such, claiming a bias Art 15 hearing and punishment wont get you far because your company commander didn't conduct the hearing. Who did the investigation is irrelevant. And be VERY careful submitting a your wife's recording of the IO if the recording was not consented to. If I was you in this situation I would first call DOD IG hotline, if they wont do anything then call your congressman. After all, the MCM is an executive order.
While the company commander may want to chapter and has told you such, claiming a bias Art 15 hearing and punishment wont get you far because your company commander didn't conduct the hearing. Who did the investigation is irrelevant. And be VERY careful submitting a your wife's recording of the IO if the recording was not consented to. If I was you in this situation I would first call DOD IG hotline, if they wont do anything then call your congressman. After all, the MCM is an executive order.
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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.
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.
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