Charged w/ 134-18 of UCMJ, do I still have the right to appeal?

Question

Back in June, I showed up late for formation after drinking the night before. My NCO said he smelled alcohol on my breath and put me through the ringer - I had to go and get breathalyzed at the MP station. I blew a .034, and the MP said "He's good" to the NCO escorting me.

Last week, I went to Trial Defense Services, and asked them about the article, because I had read that so long as I was under the legal limit for DUI/DWI, then I wasn't "incapacitated for performance of duties through prior wrongful indulgence in intoxicating liquor or any drug." The clerk there said that it didn't matter, and then went on to tell me to go ahead and get my financial data sheet done, and get people to speak for my character at the article 15 hearing.

I got read on Wednesday, 7 days extra duty and 3 days forfeiture of pay (Which I can't afford - I told my CO this, and he said the typical "Should have thought of that before you started drinking" BS).

Today, we had a class from the ASAP people -- And the numbers that they gave us for "Impaired for duty" were .050.

Now, my question: I already signed the Article 15 and checked the "Do not want to appeal block" on it. I could care less about the extra duty, but I can't afford to lose $210. Is there any way that I can fight this to keep it out of my records, and get my money back? Or did I just get fleeced by my CO?

Answer 1

You are out of luck.

The fact of the matter is that the .050 is not the strict guideline for determining if you are unfit for duty.  Nor is it the only factor.  If you were impaired in the judgment of the witnesses - you can be considered to be impaired no matter what your BAC is.

Instead of complaining you should 'man up' and learn your lesson.

Answer 2

In the Air Force, once you elect not to appeal, that's it for your participation in the Article 15 process.  It closes once a legal review is complete, typically very soon after the appeal election is made.  Cant "appeal" the 15 - you elected not to.

As for your comment "but I'm not about to take being charged with something that I'm not guilty of" - well, you did take it.  You accepted the Article 15 Forum (you could have elected trial by court-martial) and you elected not to appeal.  You did all of this with advice of counsel.

"Drunk" is independent from the legal limit of intoxication to drive.  That's were you are mistaken.  Go to link below, check page IV-53.

As for the "typical "Should have thought of that before you started drinking" BS" you made reference to - How is your CO not right about that?

Answer 3

I think you can appeal it. But do so in a timely manner. And get a lawyer. Be warned the article 15 might be a lot lighter and you might consider sucking it up...They can still go with a Courts Martial if you fight it too hard and then you would get a stiffer punishment. (I've seen it happen.)

They can come back and rightfully argue that you would not have been AWOL (late) if you were not impaired. Even though it was a low BAC it impaired you enough to be late for duty.

Sometimes fighting it will make it worse. But if you feel that it is unjust, then you have to do what you have to do. Just be forewarned that it could be in your best interest to accept the punishment and move on.

But talk to someone with actual military law experience. Like a lawyer.