We recently assisted a Sailor in response to proceedings under Article 15 of the UCMJ. The Sailor was accused of Article 112a, ingestion of an illegal substance. The command dismissed the non-judicial punishment after reading through the response and speaking with the Sailor. This is a good news story. In most cases, there is very little that can be done to assist a service member facing non-judicial punishment because there is no role a defense attorney can play in the response to Captain’s Mast proceeding itself. The attorney cannot stand in for the military member as the commander grills them about the misconduct and issues the punishment. It is just a personnel action that allows commanders to punish a service member for misconduct, often a career-ending experience. The Navy specifically has zero tolerance even for accidental ingestion under article 112a.

Increased risk of positive UA

In this case, the Sailor tested positive for a low level of THC at a random urinalysis. He wasn’t suspected of using drugs and was a career Sailor making promotion at an appropriate pace. The theory of the case was an accidental ingestion Article 112a. He had a family and everything to lose. It was highly improbable this Sailor would have knowingly ingested an illegal substance. However, marijuana is rapidly being legalized across the United States. Vaping is an enormously popular alternative to smoking. THC edibles are legal in many states. This is creating a risky environment for military members. The probability of inadvertently ingesting THC is on the rise.

How to craft a response to Captain’s Mast

Although Article 15 proceedings provide very little recourse for the service member, they are allowed to craft a response, an opportunity to defend themselves in writing, and possibly convince the commander to dismiss the charges or lessen the punishment. The Sailor in this case included character witnesses who could vouch for him in response to Captain’s Mast, establishing the improbability of his ingesting THC purposefully. He also had at least 15 letters from career service members who knew him personally. His good service was also on display in the response along with the legal justification for dismissing punishment: “The accused may not be convicted of the use of a controlled substance if the accused did not know (he) (she) was actually using the substance. The accused’s use of the controlled substance must be knowing and conscious.” Essentially the response had to be crafted in a way to communicate that this Sailor’s case fell under this provision and the commander had to believe the Sailor was telling the truth.

Crafting this response to Captain’s Mast is the very narrow lane that an attorney can play in response to proceedings under Article 15 of the UCMJ. In this case, we facilitated the Sailor in gathering character witnesses and helping them communicate the Sailor’s good character in the most effective way possible. Additionally, we collected and formatted his good service into an 87-page response. Most importantly, we provided counsel to the Sailor on how to make a personal statement that didn’t implicate him in misconduct. This preserved the Sailor’s options in case the punishment was not dismissed and led to an Administrative Separation Board. Any statements made in writing can be used against the accused in follow-on administrative action.

Odds of a good outcome

This case is special. It was a career service member with many years of service which would afford him the opportunity to defend himself at a separation board should the Article 15 response effort fail. As well, his years of good service and those who vouched for him reinforced the credibility of his case. Young service members with very little work or life experience would have a hard time mounting a similar defense. Also, commanders don’t have any obligation to dismiss punishment and, in today’s zero-tolerance environment, it’s unlikely that they will. However, in some cases, a well-crafted response to Captain’s Mast can make the difference.

When it comes to career preservation, a robust response to Captain’s Mast, an Article 15, or a General Officer Memorandum of Reprimand can increase the odds of protecting what you’ve earned. If you are facing adverse administrative action, contact our office or call us at (757) 504-2815