Non-judicial punishments may include the assignment of extra duty. Here, air department Sailors aboard the San Antonio-class amphibious transport dock ship USS Anchorage (LPD 23) are seen scrubbing the flight deck as part of their regular duties. (Navy photo by MCS 1st Class James R. Evans)
By: Tom Setser, Esq., for Tully Rinckey PLLCUnder the Uniform Code of Military Justice Article 15, a Commander or Commanding Officer may give Non-Judicial Punishment to service members to maintain good order and discipline. Article 15 is known by different names depending on the branch of the service. In the U.S. Navy and U.S. Coast Guard, Article 15 is known as Captain’s Mast and the U.S. Marine Corps Article 15 is known as Office Hours. In the Army and the Air Force, it is known as Article 15. Article 15 is a hearing held by the Commander or Commanding Officer to determine if there is sufficient evidence to conclude that the service member committed a minor offense under the UCMJ. If the Commanding Officer determines that a minor offense was committed by the service member, the Commanding Officer may give the service member non-judicial punishment.
According to Article 15, only minor offenses may be disposed of at an Article 15 hearing. The Commander or Commanding Officer has discretion to determine if the offense is minor. However, receipt of non-judicial punishment is not a bar to referral of the same offense to a Court-Martial.
So what are a service member’s rights at an Article 15 Hearing?
A service member may consult with an attorney.
Each branch interprets this provision differently. All branches agree a service member may speak to an attorney if an attorney is reasonably available to discuss the service member’s rights at an Article 15 hearing. However, whether a service member may discuss the facts of his/her case will depend on the rules concerning Article 15 advice established by each military service branch and then it may depend on each military legal office.
A service member has the right to request a personal appearance before the Commanding Officer or Commander conducting the Article 15 hearing.
A service member has a right to know what offenses he has been accused of and who is accusing him of the offense.
A service member has the right to review the evidence the Commander or Commanding Officer will review or consider at the Article 15 hearing.
Although there is no prohibition for a service member from receiving photo-copies of the documents, there is no right to a photo-copy either. Each legal office will determine whether it will give the service member copies of the documentation. A service member may be able to take notes on the evidence or take pictures of the documents using a mobile phone or smart phone. Taking notes and/or pictures will be at the permission of the legal office or the Command’s equivalent. It is not a right.
A service member has right to have witnesses to provide information in defense or in mitigation and extenuation.
Who may attend will depend on the branch of service. Normally, the service member’s immediate chain of command will be present at the Article 15 hearing. A service member may also demand to have the accuser/s or witnesses against his/her interest attend the Article 15 hearing. The witnesses must be reasonably available.
A service member has the right to submit written matters to be considered by the Commanding Officer or Commander.
The service member also has the right to remain silent as the information the service member says or provides at the Article 15 hearing may be used against him/her at Court-Martial.
A service member is not required to consult with a military counsel (Judge Advocate).
It is important to note that should a service member choose to consult with a civilian counsel, it will be at no cost to the Military.
A service member usually has the right to demand a trial by court-martial up until the Commander announces his/her decision upon the offenses.
While this is a right for most service members, a demand for a trial by Court-Martial should be deeply thought over before requesting as a service member is exposed to a much greater punishment at a Court-Martial. A Commander or Commanding Officer does not have to refer the offense/s to a Court-Martial. A Commander might decide not to proceed given the large expense and the resources that all must come from that Command’s budget. He or she may dismiss the offense, give the service member a letter of reprimand (depends on the branch of the service), give the service member a written counseling, and/or recommend the service member be processed for administrative separation. Depending on the branch of the service, the Commanding Officer or Commander may comment on the misconduct on service member’s annual evaluation or fitness report.
A Service Member has the right to appeal a Non-Judicial Punishment received from their Commander or Commanding Officer to their superior’s commissioned officer.
Generally, the appeal is to a General or Flag Officer. However, this can vary from branch to branch and whether the appeal authority has been delegated. The appeal must also be made within five days, excluding weekends and holidays.
In any case, receipt of Non-Judicial punishment can have a major negative impact on any service member’s career. The significance of the effect on a service member’s career will depend on the service member’s rank, age, Military Occupational Specialty, years of service, and branch. Also, what evidence is presented plays a crucial role in whether or not a service member will face punishment, and if so, to what extent. For example, choosing a key witness who can testify on the service member’s character that they did not commit the charged offense, or if they did, showing they are actively seeking some sort of rehabilitation are two of the many different ways a service member can mitigate their Command’s concern. In the end, it is important that any service member facing an Article 15 hearing know what their rights are so they can have the best shot at saving their reputation and military career.
Thomas P. Setser, a Senior Associate in Tully Rinckey PLLC’s Rochester office, possesses extensive courtroom experience in all matters of litigation, having served the last 19 years as a military defense counsel, civilian counsel and Assistant District Attorney. Thomas has reviewed and provided advice on countless investigations for referral to Article 15 (Captain’s Mast or Office Hours), Courts-Martial, and administrative separation matters. He can be reached at info@tullylegal.com or at (585)-492-4700.
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