You may have heard about Article 15 of the Uniform Code of Military Justice (“UCMJ”). Servicemembers experienced in the realm of military justice may reference Article 15 punishment under numerous terms: punishment by the commander, non-judicial punishment (“NJP”), getting ninja punched, captain’s mast, or admiral’s mast. Essentially an Article 15 proceeding is where a commanding officer determines if a military member has committed a relatively minor infraction of the rules governing military servicemembers. In my Army service I have witnessed Article 15s for many different circumstances, including soldiers being repeatedly late to formation, a soldier being absent without leave (“AWOL”) for a short period of time, a soldier reporting drunk to duty, a soldier involved in a bar fight, a soldier that got a DUI, a soldier breaking curfew, insubordination, and a soldier falling asleep while on guard duty. More serious crimes under the UCMJ will go straight to a court-martial and not be adjudicated under Article 15. Article 15 proceedings are much more common than courts-martial.

The Uniform Code of Military Justice is the law that applies to U.S. military servicemembers.¹ This includes all branches of the uniformed services in the United States: Army, Navy, Marine Corps, Air Force, and the Coast Guard. However, the UCMJ does not apply in all circumstances. For example, National Guard and Air Guard Soldiers are only subject to the UCMJ when activated in a federal capacity. Military reserve components, servicemembers, and service academy cadets are governed by the UCMJ. ROTC cadets are exempted from the UCMJ even while on active duty for training.²

Article 15 is titled “Commanding Officer’s non-judicial punishment.”³ It authorizes commanders to impose disciplinary punishments for minor offenses without the intervention of a court-martial. Article 15 lists and limits the punishment a commander may impose on members of his command. It also authorizes the commander to suspend, remit, or mitigate the punishment imposed. Subsection (e) grants appellate rights to the next superior commander if the person punished considers his punishment unjust or disproportionate to the offense. 

Part V of the Manual for Courts-Martial further delineates NJP procedure. The full text of the 2016 edition of the Manual for Courts-Martial is available online here.⁴ The general provisions of Part V describe the nature of NJP as being more serious than corrective measures and less serious than trial by court-martial. That provision further describes the purpose of NJP as to allow the commander “essential and prompt means of maintaining good order and discipline.”⁵ Commanders are responsible with, among other things, “maintaining good order and discipline in their commands.” Commanders are charged to consider NJP on an individualized basis. Commanders “should consider the nature of the offense, the record of the servicemember, the necessity for good order and discipline, and the effect of NJP on the servicemember and the servicemember’s record.”⁶ In most circumstances, any member of the armed forces may demand a trial by court-martial instead of NJP.

In practice, military commanders often take their responsibility to administer NJP to maintain good order and discipline quite seriously. They often discuss with other senior leaders in their organization, such as their senior enlisted advisor, whether and how to punish infractions before beginning the NJP process. Commanders also may consult with military attorneys known as judge advocates to receive advice on NJP and other legal issues. Commanders that effectively utilize NJP often seek buy-in to the process through a formalized Article 15 process. In my experience, this includes requiring the offending soldier to report with his or her chain of command for NJP consideration. Servicemembers sometimes refer to this as being called to the carpet. Commanders will then use a checklist form developed by the judge advocate’s office to ensure that all the requirements of the UCMJ for NJP are properly followed and documented in the process.

For example, as a junior officer, a soldier in my chain of command failed to follow a lawful restriction from his last Article 15 punishment and was caught in violation. As the first officer in his chain of command, I counseled him on this violation. Then I went with the offending soldier, his squad leader, and platoon sergeant to see the first sergeant and company commander. The company commander asked the soldier what happened, and we discussed. Then the commander asked for any mitigating facts. Each soldier in the chain of command was then requested to give his recommended punishment. After recommendations by the squad leader, platoon sergeant, the first sergeant, and me, the commander made his decision and imposed NJP on the soldier. The soldier and the commander then filled in and signed the appropriate portions of the form and a copy was placed in the soldier’s local military record file.

As a soldier confronted with UCMJ punishment, you have the absolute right to an attorney. The reality is that servicemembers on active duty are only provided with free legal counsel in limited circumstances. However servicemembers are always free to consult with and/or retain private attorneys at their own expense.

In practice, servicemembers confronted with Article 15 punishment are often better off agreeing to the Article 15 punishment imposed by the commander than appealing to a court-martial. If the evidence clearly establishes the servicemember committed the infraction, then it is unlikely the servicemember would be found not guilty at the court-martial. Additionally, the punishment from a court-martial conviction is often substantially more damaging to the servicemember than the punishment that would be imposed in an Article 15. An Article 15 is not seen as a conviction because it is non-judicial. Thus, an Article 15 sentence should not be damaging to future life outside the military in most circumstances. A conviction by court-martial often results in a less than honorable discharge with consequences that may follow the servicemember for the rest of his or her life, including loss of veterans’ benefits, loss of the right to vote, loss of the right to possess a firearm, etc. Therefore, servicemembers should not appeal an Article 15 hearing to a court-martial without exceptional reasons.

I have personally known several senior leaders in the Army that have been subjected to minor military punishment such as an Article 15 or Reprimand who were able to overcome that punishment and have highly successful military careers. As a military commander myself I understand the Article 15 process and am able to leverage that understanding in representing Cole Law Group’s military clients.

An experienced military law attorney can help you understand your rights, determine whether you should agree to NJP or decide to request a trial by court-martial, advise you on the applicable military rules, and brainstorm your best arguments. If you are a military servicemember facing non-judicial punishment, call today at 615-490-6020 to speak with Military Law Attorney Paul E. Tennison about your case.

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¹ http://www.ucmj.us/about-the-ucmj

² Id.

³ 10 USC §815 Art. 15; available at https://www.law.cornell.edu/uscode/text/10/815

⁴ MCM 2016; available at https://jsc.defense.gov/Portals/99/Documents/MCM2016.pdf

⁵ Id.

⁶ Id.

The Physical Disability Review Board was created by federal law with the passage of the Dignified Treatment of Wounded Warriors Act in 2008. The DTWWA made several significant changes to the care of wounded veterans. First, the law required the military branches to use the same disability determination rating scale as that used by the VA. Second, the law expanded the care available to injured service members after their military service. This included changes in treatment in military and civilian facilities for a variety of conditions, including Traumatic Brain Injury (TBI) and Post-Traumatic Stress Disorder (PTSD). Third, the new law required comprehensive plans to address TBI and PTSD. Fourth, the law directed the Secretary of the Department of Defense (DoD) to establish physical disability review boards to review disability determinations meeting certain criteria and timeline requirements. The law also addressed the quality of housing provided to patients by requiring improved standards.¹

After the law passed, the DoD issued instruction 6040.44 which “establish[ed] policies, assign[ed] responsibilities, and provide[d] procedures for PDBR operation and management as required by section 1554a of Title 10, United States Code.”² The PDBR’s mandate is to: “reassess the accuracy and fairness of the combined disability ratings assigned former service members” who meet certain criteria.³ Those criteria are summarized here:

1. Service member was separated with an original combined disability rating of 20% or less.
2. Service member separated between September 11, 2001, and December 31, 2009, due to unfitness for continued military service.
3. Service member was not originally found eligible for retirement. This includes Reserve component service members.⁴

The PDBR will review the disability determination to determine if the veteran should have been awarded a higher combined disability rating. The PDBR will look at evidence such as medical records from the veteran’s military record, medical records from civilian life before joining the military, a statement of the veteran, letters from the veteran’s military colleagues or family members discussing the veteran’s injury or illness, and a recent health screening of the veteran.

DoD Instruction 6040.44 contains several definitions which are useful for veterans considering applying to the PDBR.⁵ The section defines: “combined disability ratings; consistency reviews; construed cases; DES; PEB; physical disability; QAP; and VASRD.”

The benefits for a successful PDBR application can be substantial for qualified veterans. This includes:

1. Monthly disability retirement pay, retroactive to the date of the veteran’s discharge. The retroactive payment should be in a calculated lump sum. Then monthly pay will go forward. Please note that by law, veterans may not receive both VA disability pay and military medical retirement pay. There is a $1 for $1 trade amount by which the retirement pay is not actually collected by the veteran, but the VA disability pay is. This is still a good deal for the veteran in that VA disability pay is tax free while military retirement pay is taxable.
2. The veteran and her/his family will be eligible for DoD Tricare healthcare coverage, retroactive included. This also gives healthcare coverage to eligible dependents.
3. The veteran may choose to purchase the survivor benefits plan. This would require the veteran to pay retroactive amount to make coverage current.
4. The veteran would also have all the rights and privileges of a retired veteran, including space available travel, exchanges, commissaries, and whatever is recognized by states and private companies.

Hypothetical case A: John Doe separated from the Army in 2010 with a 20% disability rating. John was not originally eligible for military retirement. Can John apply to the PDBR? No. John may not apply because his discharge date of 2010 is after the limited timeframe of the PDBR. Note, John may be able to secure relief through other avenues such as an application to the VA for disability or a different Army review board.

Hypothetical case B: Jane Smith separated from the Navy in 2008 with a 40% disability rating. Jane was given a military medical retirement, yet she thinks it was not a high enough rating. Can Jane apply to the PDBR? No, Jane cannot apply because she was already given a military retirement. In order to dispute the rating given, Jane would have to apply to a different Navy review board. Jane also might want to apply to the VA for disability if she has not already done so. Also, even if Jane already receives VA disability, she may want to apply for other conditions if her disabilities have become worse.

Hypothetical case C: Steve Sergeant separated from the Marine Corps in 2005 with a 10% disability rating. Steve was not given a medical retirement. Can Steve apply to the PDBR? Yes, if Steve has not previously applied. The DoD interpretation of the DTWWA determined that each eligible veteran may apply to the PDBR only once. After that application, the Veteran may be able to apply to other service review boards or appeal the case to certain courts. The PDBR is required to provide a final determination letter at the end of the PDBR process that explains what recourse a dissatisfied veteran may have.

According to the PDBR fact sheet, there are an estimated 77,000 veterans that fit the PDBR eligibility criteria.⁶

See also: https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review

If you think you may be an eligible veteran, I encourage you to contact me at 615-490-6020 or submit a question through our website to determine how you can get the benefits that you deserve.

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¹ https://www.congress.gov/bill/110th-congress/senate-bill/1606

² https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/604044p.pdf

³ Id.

⁴ Id.

⁵ Id.

⁶ https://health.mil/Military-Health-Topics/Conditions-and-Treatments/Physical-Disability/Disability-Evaluation/Physical-Disability-Board-of-Review