We all desire control over our lives. That is why being accused of a crime is so terrifying: we lose control about what will happen to us and our military career. It’s stressful—we get it—which is why UCMJ Trial Lawyers pride ourselves on our ability to help the servicemembers we represent find ways to regain control. In this post, we discuss a tool we use: Article 15 Plea Agreements.
Article 15 proceedings have the potential for real, lasting consequences:
The imposing commander has complete discretion as to the punishment. Commanders should view an Article 15 as corrective action to get their subordinate back on track and, as such, absent extraordinary circumstances, should not impose maximum punishment or file an Article 15 in the performance section of the official military personnel file. Not all commanders, however, adhere to that approach. Therefore, to help regain control over what will happen in an Article 15 proceeding, we recommend using an Article 15 Plea Agreement.
An Article 15 Plea Agreement is an agreement between the servicemember and the imposing commander in which the servicemember uses their leverage to negotiate a favorable resolution. Many servicemembers (and their attorneys) do not realize that they have leverage in an Article 15 proceeding. But they do, and it is significant: servicemembers have the right to demand trial by court-martial instead of proceed with an Article 15.
Commanders are busy. They have an incredible amount of responsibility and their performance in command will make or break their career (so it is no surprise that a RAND Corporation study, a few years ago, found that commanders work an average of 12.5 hours a day). The last thing a commander wants is a servicemember who turns down an Article 15 and demands trial by court-martial, because two things happen (none of which the commander wants):
Scrutiny. Senior officers (often flag officers) serve as the convening authority for courts-martial. As such, when a servicemember turns down an Article 15, the senior officer and their team of lawyers will need to scrutinize the Article 15 charges and supporting evidence before deciding whether to convene a court-martial. If the convening authority decides to proceed with a court-martial, the charges and supporting evidence will then be scrutinized by prosecutors and the servicemember’s defense lawyers. And, at the court-martial, the charges and supporting evidence will be publicly scrutinized by a judge and/or jury.
Dissension. When a servicemember turns down an Article 15 and demands trial by court-martial, everyone in the formation hears about it. Naturally, some will support the commander and some will support the servicemember. A divided formation is not good for morale and hinders the commander’s ability to effectively lead their formation and accomplish their mission. An Article 15 turndown is an unneeded distraction with the potential for creating dissension in the formation that commanders would rather do without.
A servicemember’s right to demand trial by court-martial instead of proceed with an Article 15 is the leverage we recommend using in an Article 15 Plea Agreement to negotiate a favorable resolution. The servicemember can use their leverage to negotiate a number of different favorable outcomes. For example, a servicemember could agree to accept an Article 15 proceeding and not demand trial by court-martial, provided the imposing commander agrees to:
- dismiss a specific charge,
- suspend any punishment,
- not impose certain punishment, or
- not file the Article 15 in the performance section of the servicemember’s official military personnel file.
Here is an example of language we used in an Article 15 Plea Agreement:
I, SFC John Doe, the Accused in the pending Article 15 proceeding, have examined the charges and specifications against me as well as the underlying evidence. I understand that I have the right to refuse an Article 15 proceeding and demand trial by court-martial. Knowing this, and after consulting with my defense counsel, I offer to: accept the Article 15 proceeding and not demand trial by court-martial, provided the imposing commander agrees to not file the Article 15 in the performance section of my official military personnel file.
Keep in mind, the above language says nothing about the servicemember’s plea to the charges. With the above agreement, the servicemember could still plead not guilty and contest the charges. The imposing commander, however, would be prevented from filing the Article 15 in the performance section of the official military personnel file if they find the servicemember guilty.
To help servicemembers regain control over what will happen in an Article 15 proceeding, we recommend using Article 15 Plea Agreements. They are an effective tool that has worked for the servicemembers we have represented.
Keep fighting the good fight. And please reach out to us if we can be of help to you.