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ADC - Article 15
Nov. 17, 2006
AREA DEFENSE COUNSEL
NONJUDICIAL PUNISHMENT (ARTICLE 15)
1. WHAT IS AN ARTICLE 15? Nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) is the hearing or forum in which a commander will decide whether or not an offender has committed a specific offense or offenses under the UCMJ. It is governed by AFI 51-202. If the commander believes you have committed an offense, then the option of an Article 15 is offered instead of trial by court-martial. Article 15s are ordinarily offered for less serious violations of the UCMJ. Acceptance of the Article 15 is not an admission or a plea of guilt. It is merely a choice of forum. Again, by accepting the Article 15 you are merely requesting that the commander be the judge and jury rather than proceeding to trial by court-martial. It is not inconsistent to accept nonjudicial punishment proceedings under Article 15 and to "plead" not guilty to the offense alleged.
2. WHAT ARE MY RIGHTS? An Article 15 proceedings you have the following rights:
a. To be represented by military counsel, free of charge, or civilian counsel at your own expense;
b. To examine copies of all evidence supporting the allegation;
c. To present evidence on guilt or innocence, or to present any and all evidence in defense, extenuation or mitigation. This evidence may include items that show you are not guilty of the offense alleged or perhaps other information, such as a financial statement which the commander should consider in determining the appropriate level of punishment to be imposed should you be found guilty; and
d. To make a written and/or an oral presentation to the commander prior to his or her decision.
3. WHAT ABOUT TURNING DOWN THE ARTICLE 15 AND GOING TO TRIAL?
a. The most important decision you need to make is whether or not you should accept the Article 15 or demand a trial. Before deciding this, you must consider all of the evidence the government has against you. (Copies of which should be provided to you or your attorney.) To be successful at a trial by court-martial, the government must be able to prove all elements of the alleged offense beyond a reasonable doubt. Your attorney will assist you in making this determination, so it is imperative that you tell him or her everything concerning your case. All conversations between you and your attorney are protected by law under the attorney-client privilege.
b. Before you decide to refuse the Article 15 and demand a trial, you need to consider the fact that, if later convicted by court-martial, you will bear the stigma of a federal conviction for the rest of your life. A finding of guilty under Article 15, however, is a military matter and is not a conviction. It has certain consequences in the military environment, such as being placed in an Unfavorable Information File (UIF) or Selection Folder, and it will remain in your permanent personnel record at AFMPC, but this information need not be disclosed to those outside the military, as is the case in a court-martial conviction.
c. The government is not limited to the offense charged in the Article 15 when deciding what to charge you with at a court-martial. Thus, if there are other potential allegations out there against you, they can also be added for trial.
d. In almost all cases, potential punishments for an offense in a court-martial are usually much greater than that which can be imposed under Article 15.
4. WHAT PUNISHMENTS DO I FACE UNDER ARTICLE 15?
a. The maximum punishment which can be imposed by Article 15 depends on the rank of your commander and your rank. Table 1 of AFI 51-202 and the reverse side of AF Form 3070 list the maximum permissible punishments under Article 15. A chart is also attached. If your commander is a Colonel or Lieutenant Colonel and you are an E-1 through E-4, the maximum punishment is forfeiture of one-half your pay per month for two months, 60 days restriction, 45 days extra duties, 30 days correctional custody, a reprimand and reduction to E-1.
b. With the exception of reprimands, all or part of any punishment may be suspended for a probationary period not to exceed 6 calendar months. Once suspended, the punishment will not take effect unless another offense occurs during this time. If this happens, the suspended punishment can be "vacated" and then imposed. In fact, in addition to vacating a suspended punishment, the commander may also offer an Article 15 for the second offense.
c. If you are reduced, your date of rank will be affected. It will also be affected by vacation of a suspended reduction. Refer to AFI 51-202, paragraph 9.3 or to personnel for further information.
d. If you receive forfeitures as a punishment, in addition to a reduction in rank (suspended or not), the maximum forfeitures that can be taken is 1/2 of your pay at the lower grade. When you receive your punishment, verify that this information is correct and contact our office if you see a problem.
5. WHAT ARE THE PROCEDURES?
a. You will be served with an AF Form 3070 which will state the allegations against you, as well as a copy of all evidence in the government's possession that relates to this offense. Your unit will often have already called the defense counsel's office and set up an appointment for you. You have 3 duty days from the date of service to reply, although extensions are possible.
b. When you attend that second appointment with your commander, you must be prepared to complete Block 5 of the form, including your decision to accept Article 15 punishment instead of demanding a trial. You must also be prepared to make an oral and/or written presentation to the commander, if you desire to do so (see below). You will be asked whether you desire this Article 15 to be public (i.e. do you mind having your name in the base paper).
c. After you have made your elections in Block 5, the commander will review and consider any material that you have submitted and complete Block 6. The commander has three choices at this point: an Article 15 is not appropriate, you didn't commit the offense or you did commit at least one of the offenses. If the third option is selected, the commander notifies you of the punishment.
d. After being notified of the punishment, you have 5 calendar days to appeal this decision. The appellate authority is normally your commander's commander. You must make this decision in Block 9. Often members know whether or not they will appeal when they are given the punishment but if you're not sure, sign that you plan to appeal. You can always withdraw that decision later.
e. If you elect to appeal, you can submit additional matters to the appellate authority through your commander, stating that you didn't commit the offense or that the punishment is unjust and disproportionate to the offense (see attached example). Your commander will review this material. If the commander doesn't decide to grant your appeal, the package is forwarded to the appellate authority, along with a memorandum from your commander detailing his/her rationale for the imposed punishment.
f. After the appeal decision is made, your commander will inform you of his/her decision to file this Article 15 in an Unfavorable Information File. If the punishment cannot be completed within 30 days, it must go into a UIF. If it can be completed within 30 days, the decision to file it in a UIF is optional. See our handout on UIFs for more information. You must sign that you are aware of this UIF decision.
6. WHEN DO THE PUNISHMENTS TAKE EFFECT? Unless otherwise stated, punishment will be effective immediately upon completion of the processing of the Article 15. It may take a pay period for you to see the reduction in your pay but you should assume that it will happen immediately. The reduction in grade or pay will be retroactive to the day punishment was imposed.
7. WHAT CAN I DO AFTER THE ARTICLE 15 IS COMPLETED? If you have no further misconduct during the months that follow the Article 15, you can request clemency from your commander or his/her successor. They may grant clemency in the form of remission, mitigation, suspension, or set aside.. Barring unusual circumstances, all clemency actions should be completed within a 4 month period after imposition of punishment. Contact your defense counsel within 3 months of your Article 15 if you are interested in requesting these actions.
a. Remission allows the commander to excuse the unexecuted (uncompleted) portion of the punishment.
b. Mitigation allows the commander to change the unexecuted (uncompleted) punishment to a less severe form.
c. Suspension allows the commander to suspend any or all of the unexecuted punishment. Additionally, the commander may suspend a reduction or forfeiture which has been executed.
d. Set Aside. This action allows the commander to cancel the punishment in whole or in part if he or she feels the offender has suffered a clear injustice or, in those rare cases, where the interests of the Air Force would be best served by clearing your record. Set aside actions should be requested within a reasonable period of time and only for good cause. In the case of set aside actions, all rights, privileges, and property of which the offender was deprived of by the punishment will be restored.
8. WHAT SHOULD I SUBMIT TO THE COMMANDER?
a. Obviously, you need to bring factual matters to your commander's attention regarding the offense. This can include statements from others who witnessed the incident, etc. It is your responsibility to collect this information and you shouldn't rely on your unit's investigation, if this doesn't bring all the needed facts to your commander's attention. Address any issues raised by the evidence package that you think are relevant.
b. Often, your commander may not know much about you, other than the reason you are receiving an Article 15. Therefore, this is your opportunity to give your commander some positive information about you, including on duty and off duty activities, performance reports, atta boys from your PIF, etc. Some people include information on their career, why they joined the Air Force, what their plans are, etc. All this information is vital to letting your commander see the "whole person" before coming to a decision about punishment. An example is attached to this handout. You can also provide character letters from family, co-workers, supervisors, etc. Make sure that they know what you got in trouble for and that they state in their letter that they are aware of your misconduct.
c. We also recommend that you give your commander suggested punishments, if you are conceding that you committed the offense. If forfeitures or a reduction will destroy your financial health, tell the commander that and provide a budget to prove it. Request that your punishment be suspended to give you a chance to prove yourself during that time period.
9. The following information explains other possible effects of an Article 15:
a. UIFs. A UIF entry is automatic when punishment is not finalized within one month. (EXAMPLE: A six month suspended punishment, two months of forfeitures, and more than 30 days of extra duty and/or restriction.) A UIF entry, however, does not in and of itself affect such things as promotions, assignments, etc.
b. Airman Promotion (AFI 36-2502). Receipt of Article 15 does not automatically make an airman ineligible for promotion. Promotion is withheld while the offender is undergoing suspended reductions only. No other suspended punishment affects promotion. Check with promotions about your specific situation.
c. Officer Promotion (AFI 36-2504; AFI 36-2501). Again, Article 15 punishment will not automatically affect promotion, however, the facts which form the basis for the Article 15 may be the basis for a delay or removal from the selection list by separate administrative action. Check with promotions about your specific situation.
d. Airman (AFI 36-2110) and Officer (AFI 36-2110) Assignments. The offender is ineligible for PCS until Article 15 punishment, including period of suspension, is completed, except for mandatory (DEROS) moves. Check with assignments about your specific situation.
e. EPRs (AFI 36-2403) and OERs (AFI 36-2402). Article 15 action may not be mentioned in an EPR/OER, but conduct which warranted the punishment may be described or discussed in relation to a certain EPR rating such as bearing and behavior or a certain OER rating such as judgment, leadership or professional qualities. Check with personnel about your specific situation.
f. Reenlistment (AFI 36-2606). An airman is ineligible for immediate reenlistment while undergoing punishment (suspended or unsuspended). However, those undergoing Article 15 punishment are generally allowed to extend an enlistment to complete prescribed punishment. In extraordinary cases, a commander may remit, or terminate, any punishment left to serve to permit reenlistment. Check with personnel about your specific situation.
g. NCO Selection Records for E-7s - E-9s and Officers (AFI 36-2608). Filing of an Article 15 in a selection folder is not mandatory. If the commander who imposed the punishment decides to file the Article 15 in the offender's selection record, then the review authority (next senior commander in command to which recipient is assigned) makes the final decision. No review is necessary if commander who imposed punishment is a numbered Air Force commander or higher.
h. Retirement Grade and Pay (AFI 36-3203). If a reduction in grade is effective prior to retirement eligibility, it is effective for both retired pay and retired grade purposes subject to 10 U.S.C. 8914, which entitles enlisted members of the Regular Air Force, whose active service plus retired service equals 30 years, to be advanced on the retired list to the grade equal to the highest temporary grade in which the member satisfactorily served on active duty. (The Secretary of Air Force determines what is "satisfactory".) However, if the reduction was effective after retirement eligibility, the member receives retirement pay at the highest grade held after becoming eligible to retire. This save-grade for pay purposes rule is based upon 10 U.S.C. 1401a(f) and 56 Comp. Gen. 740.
i. Airman (AFI 36-3208) and Officer (AFI 36-3206; AFI 36-3207) Administrative Discharges. Commanders have no authority to discharge a member as part of an Article 15 punishment. However, depending upon the offense and the offender's military record, the Article 15 may be used alone or together with other adverse actions (Article 15s, letters of reprimand, etc...) to form the basis for administrative discharge for misconduct under AFI 36-3208 for airman, and under AFI 36-3207 for officers.
j. High Year of Tenure Issues. In certain situations, reduction in grade may result in a mandatory separation under High Year of Tenure. Consult with personnel about specifics for your case. If you have over 16 years service, you will receive lengthy service consideration, even if reduced to E-4, and will not be separated under this program until your 20 year point. However, your commander could then initiate a discharge case against you under AFI 36-3208.
SAMPLE ARTICLE 15 PRESENTATION
MEMORANDUM FOR (Commander)
FROM: (Your rank and name)
SUBJECT: Written Presentation in Response to Article 15 Action
1. I have consulted with my appointed defense counsel, Capt ____________, concerning your offer of Non-Judicial Punishment under Article 15 of the UCMJ. I have decided to accept this forum and would like to submit this written presentation for your consideration.
2. (Facts and circumstances surrounding the incident-- what happened, how it happened, why it happened. Discuss all the relevant facts and be as detailed as possible).
3. (Explanation of your guilt or innocence-- if you're guilty, explain why you did it and apologize for your mistake. If you're innocent, explain why there's a misunderstanding).
4. (Duty performance-- summarize your contributions to the unit and the Air Force. If you've received any awards or outstanding evaluations, discuss and attach them for the commander's review. If you have any character statements from fellow employees or supervisors, attach them also. Review your PIF and personal files for any positive information and include it.)
5. (Appropriate punishment-- the possible punishments are listed on page 2 of the AF Form 3070. Suggest a reasonable punishment and explain why it's appropriate in your case)