Ask the Lawyer: Commander can set aside Article 15 - Marine Corps Community, discussions, blogs, photos & video - Marine Corps Times

Ask the Lawyer: Commander can set aside Article 15

Q. Can I have an Article 15 removed from my record without going to a service records correction board?

A. Yes. Military law allows commanders to set aside an Article 15 within a reasonable amount of time after the punishment has been executed. The commander who issued the punishment has complete authority to set it aside, but the Manual for Courts-Martial also allows a subsequent commander to set aside a nonjudicial punishment that has become a “clear injustice.”

This language gives the commander tremendous discretion to resolve the matter in favor of the service member.

The MCM also allows the commander to reduce the punishment’s severity when appropriate. According to the MCM, a commander should consider a service member’s good conduct and whether the punishment seems disproportionate. This supports the argument to set aside an Article 15, or it can lead to an alternate punishment that will not be reflected in a service member’s record.

Even though there has been a push against zero-tolerance policies, I have found that the services have moved toward that exact standard. I have seen alternative leadership methods and creative leadership solutions give way to “paper leadership.” As a result, members who are accused of something typically wind up with a judgment that remains in their records forever. It can even hurt a member after his service — when he needs a security clearance for employment, for example.

The far-reaching consequences of an Article 15 are especially troubling given the lack of training commanders receive in adjudicating this punishment and the fact that no rules of evidence apply. A service member’s ability to challenge the system is severely prejudiced by misinformation and the pressure on command representatives to resolve the matter as quickly as possible.

The power of successors in command to provide relief for service members exists because the drafters of the MCM were seemingly aware of the dangers of letting an Article 15 go without further scrutiny. The drafters just as easily could have left this to the service review boards or restricted their power to act by narrowing the definition of a successor in command.

This is all the more reason commanders should recognize their responsibility to act in the event that they determine an injustice has been suffered.

If you believe your Article 15 has resulted in an injustice or may have been an error, an attorney experienced in such matters can assist you in documenting and preparing your case to take to the commander.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.