How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask P. Simmons Your Own Question

P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26484
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
11181181
Type Your Military Law Question Here...
P. Simmons is online now
A new question is answered every 9 seconds

I am currently pending a Field Grade Article 15 for drinking

Resolved Question:

I am currently pending a Field Grade Article 15 for drinking over the Battalion Commanders 2 drink (2 shots or 2 beers) limit while on QRF status. The cause of effect was I received a DUI charge which I am currently disputing in court. I never admitted to drinking over 2 drinks. It is also identified in the police report where I admitted to only drinking 2 mixed drinks. My Company Commander based that I was drinking over the limit because I received a .109 bac at the time of arrest. Even though I did not measure the shots, I only had two drinks. Also at the time I got in trouble, according to the Battalion FRAGO, we were not on QRF status. How could I fight this if I am taking the Article 15 and not pushing for a Court Marshall.
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.

Good question...can you tell me, is this Army or some other service...if so which?
Customer: replied 1 year ago.


Army. I am a Staff Sergeant with 9 years of service

Customer: replied 1 year ago.


Army. I am a Staff Sergeant with 9 years of service


Expert:  P. Simmons replied 1 year ago.
Thanks

So the Army rules on Art 15 require that the commander not find you guilty unless the evidence is "beyond a reasonable doubt"

That sounds great...the same standard you get at court martial.

The problem you have is that the commanders will not always apply such a rigorous standard.

In fact, in my experience, in all services, it is very rare for a soldier to be found not guilty at Art 15.

The main reason for this is, in my opinion, tied to the reasons that commanders use Art 15. Art 15 is use (again, in my opinion) by commanders for the good of the unit. They use it to send a message about what conduct will and what conduct will not be tolerated in a unit.

In my opinion, if a commander has a real concern over the guilt or innocence of a solder and want them to receive a fair trial, they send the case to court martial.


The rules of court martial, including the rules against hearsay and rights to confront evidence do not apply at art 15.

So they can convict you of the policy or order (the 2 drink rule) even if they do not have solid evidence of 2 drinks.

If your goal is to win this? I would take the court martial. Make them prove the case to a jury or a judge with all the rules of evidence in place, and a proper use of the beyond a reasonable doubt burden


On to your question....

How can you fight this?

Well...you can testify, testify you had only 2 drinks

And you can bring in an expert (you may have to some digging around for this one, perhaps TDS can help) that can talk about metabolism rates for alcohol in the body. Based on your body size and time of drinking, it may be that an expert can say that .109 is possible with two drinks. You need someone who understand metabolism to do this for you. BTW, if you go to court martial, I would expect the court to order the command to pay for such an expert. If you go to art 15, you will have to pay them yourself.

Finally, I would find someone at the command who can testify you were not at QRF...what you say that should be easy...and that is the reason I would refuse art 15 and take the court. If you can prove that you were not in violation of the order? I would not risk art 15.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26484
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

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • P. Simmons

    Military Lawyer

    Satisfied Customers:

    11441
    Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Military Lawyer

    Satisfied Customers:

    11441
    Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
  • http://ww2.justanswer.com/uploads/JA/jaccorpsesq/2011-11-13_21141_JAnewphoto.64x64.jpg Allen M., Esq.'s Avatar

    Allen M., Esq.

    Lawyer

    Satisfied Customers:

    4035
    Lawyer and current JAG officer.
  • http://ww2.justanswer.com/uploads/marshadjd/2009-6-1_194320_marshajd.jpg Marsha411JD's Avatar

    Marsha411JD

    Lawyer

    Satisfied Customers:

    1149
    Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
  • http://ww2.justanswer.com/uploads/OR/OregonLawyer/2012-6-20_82836_LarryMugShot16192012.64x64.jpg Lawrence D. Gorin's Avatar

    Lawrence D. Gorin

    Lawyer

    Satisfied Customers:

    488
    Military & Family Law. 30+ years experience. USFSPA pension division expertise.
  • http://ww2.justanswer.com/uploads/LA/LawInfoNow/2012-5-27_195417_JAprofilepicture.64x64.jpg LawHelpNow's Avatar

    LawHelpNow

    Attorney/Lawyer

    Satisfied Customers:

    221
    Relax. Let's work together. Practical solutions.
  • http://ww2.justanswer.com/uploads/rcampione/2009-01-16_181009_bar-rc.jpg rcampione's Avatar

    rcampione

    Military Lawyer

    Satisfied Customers:

    186
    Military lawyer - 5 years to the present
  • http://ww2.justanswer.com/uploads/JAGDefense/2010-02-16_041646_web_pix.jpg JAG Defense's Avatar

    JAG Defense

    Military Lawyer

    Satisfied Customers:

    124
    CAPT, JAGC, USN (Retired); Former Military Judge; Specializing in Security Clearance Adjudications