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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26833
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am getting a summarized article 15 for a "pattern" of being

Customer Question

I am getting a summarized article 15 for a "pattern" of being late, failure to report which has never once happened. The Sergeant that has recommended me for the article 15 has been purposely trying to get me in trouble after I disagreed with him, and let him know I felt disrespected with what he had said, doing so in a respectful manner. I have received 5 counseling statements in a matter of 3 days shortly after the issue between my section sergeant and I. He has been treating me very poorly and I know I have limited options, for my chain of command fail to believe that one of their NCO's would act in such a manner. I generally understand the article 15 process, and my rights, but I would like to know what would be in my best interest, to appeal the article 15, or demand trial by court marshal. The commander will not listen to what I have to say, but I refuse to write a sworn statement because I know that will be used against me in a way that is beneficial to them. Another soldier in my shop told me he would testify in my defense, that I have been treated poorly by said sergeant if the case goes to court marshal.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Appeal of Art 15 is typically not productive. Since Art 15 is an administrative proceeding, the formal rules of evidence and procedure do not apply. So to appeal and win you have to show they did not follow the rules..and since the formal rules do not apply this can be very tough to do.

You an refuse Art 15 and demand trial by court martial.

However, you want to pursue this if you are actually not guilty of the charged offenses (or if they can not prove your guilt at court). So, for example, if you really were never late, but they are improperly claiming you were? That would be grounds to refuse the proceeding. If you refuse and are found guilty at court martial, it is a criminal proceeding and would impact your criminal record (inside and outside the Army)


BotXXXXX XXXXXne: if you are not guilty of the charged offense? That would be a good reason to refuse Art 15 and demand a court martial. Otherwise, you are much better off accepting Art 15


Let me know if you have more questions...happy to assist if I can
Customer: replied 1 year ago.


What would be the likely course of action the commander would take if I were to appeal the article 15?


 


Likewise, what would be the likely course of action if were to request court marshal? Would such a petty case be likely to go all the way to court, or would it be likely to be dropped?

Expert:  P. Simmons replied 1 year ago.
If you appeal they will process the appeal. The commander is not involved in the appeal...that goes up to the next commander in the chain of command. But understand that you can only appeal if you can show error in the process.

As for a court? If you request court, the case will be sent to the prosecutor (JAG) and they will review to see if there is sufficient evidence to prosecute. If there is? They will take you to court.
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26833
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.


If I opt for a court marshal, once the case goes to JAG, will I have a mandatory appointment with them to go over the information on the case, or will they just review the information presented to them and decide whether the case goes to court?


 


Also, if the case goes to court, what rights do I have when It comes to defending myself, for example, can I have a lawyer, and can I call on a witness?


 


Considering this is a summarized article 15, will the court marshal be held before just a judge, or a jury as well?


 


 

Expert:  P. Simmons replied 1 year ago.
There are two parts to JAG. Prosecution and defense. The command works with the prosecution, and the accused with the defense. If you refuse, the command will send the file to the prosecution and they will evaluate it. The will not talk to you. IF they believe there is a basis for criminal charges, they will draft charges and serve you...at that point you would be eligible for a JAG attorney to assist you with the case.

IF you go to court, you get to select if you want a jury or a judge. Normally a jury is the best bet, but you would want to discuss this with your attorney.

Customer: replied 1 year ago.


Considering that the article 15 is administered in this situation not under actually being caught in the process of committing a crime, but under the allegations of what somebody in my chain of command "said" I'm doing, how could they come up with evidence against me, other than "we know you did this because he said you did"?


 


They are trying to charge me for failure to report, when I did not fail to report, for I WAS NOT required to report for that certain situation due to my physical health. Also I did not report late to work that day, I actually showed up early.


 


How could they come up with evidence against me on that situation, and others similar?

Expert:  P. Simmons replied 1 year ago.
Just like with any case, the government must prove its case with competent evidence (evidence that is admissible)

If someone in your chain of command has personal knowledge about this, they can testify

If there is no one with personal knowledge? Then it may well be that they do not have competent evidence to present against you.
Customer: replied 1 year ago.


Considering the only person that has personal knowledge of this would be the one that recommended me for the article 15, due to the fact that he was the one that gave me orders not to report in the morning due to my condition, and to go about my physical therapy at home, could testify against me as the only witness when he was the one to recommend me for the charges in the first place?


 


Also, if he had given the chain of command false information, and lied about giving me orders to not report in the morning, purposefully to recommend me due to a personal vendetta, how can I prove that he had given false information, when the only two people that knew about this were the two of us?


 


Although this information should have been documented in a counseling, but the nature of my unit does not go by regular army formalities, so technically it was just a verbal agreement. Does that automatically mean that this could be used against me since there is no black and white statement telling me not to report, even though I did not have to report for a very long period of time. The sergeants in my platoon were fully aware of this, and they all knew I did not have to show up to formations in the morning.

Expert:  P. Simmons replied 1 year ago.
Yes. The accuser can testify in the case. There is no rule that prohibits this.

So it may well be a "you against him" case...if there is evidence he lied in the past about this or something that can help your case.

But if this person had authority to order you to report, and you did not report...and they can testify to that? That is enough to charge.

TO convict? If they believe him over you? Then yes.
Customer: replied 1 year ago.


He does have the authority to order me to report, but he did not order me to report, I was conducting business as I normally would that morning.


 


He had been looking for reasons to counsel me for an article 15 and had even told me he would be doing so. ALL but one of the negative counseling have information that disproves the cause of the counseling meaning a pointless statement that in a sense disproves itself. Would this be evidence in my favor?


 


So if he did not order me to report that morning, I was not disobeying a lawful order, but that falls back onto false allegations. If this is a case of him verse me, would his rank go into factor, or would only the evidence that can be presented from both side be a factor?

Expert:  P. Simmons replied 1 year ago.
What you describe is not a crime. If he never ordered you to report, then here is no violation of the order (since it never happened)
Customer: replied 1 year ago.

I know this would be correct, I did not commit a crime, and also in the article 15 it does not state that he ordered me to report that morning, but he is accusing me for failure to report anyways because there is not document stating I do not have to report, everyone in my shop knows I do not have to report in the morning, would this be strong evidence on my part?


 


This will be my last question, thank you for being so helpful.

Expert:  P. Simmons replied 1 year ago.
The government has the burden to prove the charge. So if the charge is failure to report? They have to prove

1. You had a duty to report at a particular time to a particular location

AND

2. You failed to do this.

They must prove both.

So if there was no standing order to report (at least as far as you were concerned) and he never ordered you to report? Then there is no crime.

If he lies and says otherwise? As I mention, this is a "he said/he said"...if you can impeach his credibility (show he is lying) I would not expect you to be convicted

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