Non-judicial sanctions may include the assignment of additional duties. 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. (Marine Photo by MCS 1st Class James R. Evans)
Tom Setser, Esq., for Tully Rinckey PLLC
Under Article 15 of the Uniform Code of Military Justice, a commanding officer or commanding officer may impose non-judicial sanctions on service members to maintain good order and discipline. Section 15 is known by different names depending on the branch of the service. In the US Navy and US Coast Guard, Section 15 is known as Captain’s Mast and US Marine Corps Section 15 is known as Office Hours. In the Army and Air Force, it is known as Section 15. Section 15 is a hearing held by the Commanding Officer or Commanding Officer to determine if there is sufficient evidence to conclude that the service member has committed a minor offense under the UCMJ. If the Commanding Officer determines that a minor infraction has been committed by the Service Member, the Commanding Officer may impose a non-judicial sanction on the Service Member.
According to Section 15, only minor offenses can be tried at a Section 15 hearing. The Commanding Officer or Commanding Officer has the discretion to determine whether the offense is minor. However, receiving a non-judicial sanction does not preclude referral of the same offense to a court martial.
So what are a serviceman’s rights in an Article 15 hearing?
A member of the service may consult an attorney.
Each branch interprets this provision differently. All Branches agree that a Service Member may speak to an attorney if an attorney is reasonably available to discuss the Service Member’s rights at a Section 15 hearing. However, whether a A service member can discuss the facts of his or her case will depend on the rules regarding Section 15 notice established by each branch of the military service, and then it may depend on each military legal office.
A service member has the right to request to appear personally before the Commanding Officer or the Commanding Officer conducting the hearing under Section 15.
A soldier has the right to know what offenses he has been charged with and who is charging him.
A member of the service has the right to examine evidence which the commanding officer or commanding officer will examine or examine at the hearing under section 15.
While there is no prohibition on a service member receiving photocopies of documents, there is also no right to a photocopy. Each legal office will determine whether it will provide the service member with copies of the documentation. A service member may be able to take notes on evidence or take photos of documents using a cell phone or smartphone. Note taking and/or photography will be done with the permission of the legal office or command equivalent. It is not a right.
A member of the service has the right to have witnesses to provide information in defense or in mitigation and mitigation.
Who can attend will depend on the branch of service. Normally, the service member’s immediate chain of command will be present at the hearing under Article 15. A service member may also require the accuser or witnesses against his or her interests to attend the hearing under Article 15. section 15. Witnesses must be reasonably available.
A service member has the right to submit written questions for consideration by the Commanding Officer or Commanding Officer.
The service member also has the right to remain silent as information the service member says or provides at the hearing under section 15 may be used against him in court martial.
A military member is not required to consult a military lawyer (judge advocate).
It is important to note that if a military member chooses to consult a civilian lawyer, it will cost the military nothing.
A service member generally has the right to demand a trial by court-martial until the commanding officer announces his decision on the infractions.
Although it is a right for most military personnel, a request for trial by court martial should be carefully considered before requesting, as a military member faces a much greater sentence at court martial. A commanding officer or commanding officer does not have to refer the offense or offenses to a court martial. A commander may decide not to proceed given the significant expense and resources that must all come from that command’s budget. He or she may dismiss the violation, give the service member a letter of reprimand (depending on the branch of the service), give the service member written counsel, and/or recommend that the service member be processed for administrative separation. Depending on the branch of the service, the commanding officer or commanding officer may comment on the misconduct on the service member’s annual evaluation or physical fitness report.
A service member has the right to appeal a non-judicial sanction received from his commanding officer or commanding officer to his superior’s superior officer.
Generally, the call is addressed to a general or a general officer. However, this may vary from branch to branch and whether appeal authority has been delegated. The appeal must also be filed within five days, excluding weekends and public holidays.
Either way, receiving a non-judicial sanction can have a major negative impact on the career of any service member. The significance of the effect on a service member’s career will depend on the rank, age, military occupational specialty, years of service, and branch of the service member. Furthermore, the evidence presented plays a crucial role in whether or not a service member will be punished, and if so, to what extent. For example, choosing a key witness who can testify about the character of the service member that he did not commit the offense charged, or if he did, show that he is actively seeking some sort of rehabilitation are two of the many ways a service member can alleviate their command’s concern. Ultimately, it is important that any service member facing an Article 15 hearing know what their rights are so they can have the best chance of salvaging their reputation and military career.
Thomas P. Setser, a senior partner in the Rochester office of Tully Rinckey PLLC, has extensive courtroom experience in all litigation matters, having served the past 19 years as a military defense attorney, attorney civilian and assistant district attorney. Thomas has reviewed and provided advice on countless investigations for referral to Section 15 (Captain’s Mast or Office Hours), Courts Martial and Administrative Separation cases. He can be reached at info@tulllegal.com or (585)-492-4700.
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