Under Medical Peer Review from the Military or the Veterans Administration? Get Experienced Legal Representation Now

Author and Attorney HeadshotBy George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Military physicians, Veterans Administration (VA) physicians, and former military and VA physicians often consult our firm concerning matters involving peer reviews of their care. In the military, whether Army, Navy, or Air Force, peer review for all physicians is governed by one general Department of Defense (DOD) Regulation.  It is called the Defense Health Agency Procedures Manual (abbreviated DHA PM) 6025.13, which became effective October 1, 2019. VA physicians have different but somewhat similar regulations that apply to them.
We are often consulted by these physicians, who no longer even serve with those agencies after action has already been taken to report them to the National Practitioner Data Bank (NPDB) for allegedly substandard care. Such reports go into the NPDB for fifty (50) years and are reported to all state licensing boards and the Federation of State Medical Boards (FSMB).
They can haunt a physician’s career for life.

What to Do When Notified of a Claim, Investigation, Peer Review Action, or Quality Assurance Investigation (QAI)?

At your first notice that you are the subject of or named by a Federal Tort Claims Act (FTCA) claim or any inquiry or investigation related to your care, you should consult a healthcare attorney with experience in such matters. We are few and far between, but you can find us if you look for us.
You will have at least two opportunities for input into such matters, but you must take advantage of your earliest opportunity to influence the outcome.
1. You do need to obtain and review a copy of the medical record.
2. You do need to have an expert in your medical field review the case for you.
          3. You can request an extension of time if needed.

What Are Questions I Should Ask of an Attorney with Whom I Consult?

These are the questions that I suggest you ask any attorney you consult with:

1. What is your experience in dealing with the military or VA medical system?

2. How many similar matters of this nature have you handled?

3. Are you familiar with National Practitioner Data Bank (NPDB) reports, challenges, and appeals?

4. How many such NPDB matters have you handled?

5. How many cases have you handled in which you assisted in making statements for input into such investigations or inquiries?

6. Are you familiar with the Memorandum of Understanding (MOU) between the DOD and the Department of Health and Human Services (DHHS) taking DOD NPDB reports out from under the regular NPDB procedures?

7. How many military or VA quality assurance investigations have you represented physicians?

8. How many VA and military peer review/clinical privileges hearings have you done?

9. How familiar are you with hospitals and health systems?

10. How familiar are you with the military medical system, the roles of the Surgeons General, and the Department of Defense Division of Health Affairs (DOD HA)?

11. How familiar are you with DOD PM 6025.13?

12. How familiar are you with:  VHA Directive 1190 (Peer Review for Quality Managment), VHA Handbook 1050.01 (VHA National Patient Safety Improvement Handbook), VHA Handbook 1100.17 (National Practitioner Data Bank (NPDB) Reports), VHA Handbook 1100.19 (Credentialing and Privileging), VHA Directive 2008-077 (Quality Management (QM) and Patient Safety Activities . . . ), VHA Directive 1026 (VHA Enterprise Framework for Quality, Safety and Management), and VA Handbook 5120/14 (Employee/Management Relations)?

Don’t Wait until after the Decision to Report You Has Been Made.
Be sure to obtain experienced legal counsel to represent you in defending yourself against allegations of substandard care before the final decision has been made. Avail yourself all opportunities to provide your concise, objective, and well-reasoned medical rationale for your care at the earliest stage you can.
Click here to read a prior blog on how our firm can assist you in your legal matter.
For additional information on our representation of military physicians and where we represent them, click here.
For additional information on our representation of Veterans Administration (VA) physicians and where we represent them, click here.

Consult a Health Law Attorney Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA), the Indian Health Service (IHS) and the Public Health Service (PHS), nationwide in the U.S. and around the world. Representation includes assisting in making significantly involved provider (SIP) statements, Defense Health Agency (DHA) investigation representation, DHA-PM 6025.13 legal representation, hospital clinical privileges hearings, medical staff fair hearings, medical staff peer reviews, disciplinary actions, investigations, National Practitioner Data Bank (NPDB) actions, and appeals. Its attorneys include those who are board-certified by The Florida Bar in Health Law, as well as licensed health professionals who are also attorneys, and former military attorneys.
To contact The Health Law Firm, please call (407) 331-6620 or Toll-Free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

Attorney Positions with The Health Law Firm. The Health Law Firm always seeks qualified attorneys interested in health law practice. Its main office is in the Orlando, Florida, area. If you are a member of The Florida Bar and are interested, forward a cover letter and your resume to: [email protected] or fax to: (407) 331-3030.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2023 The Health Law Firm. All rights reserved.

Military Non-judicial Punishments or Article 15 Proceedings Are Not Criminal Convictions–Military Physicians, Dentists and Nurses Should Know This

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Our firm represents many military and former military health professionals. We are often asked how a non-judicial punishment or Article 15 proceeding will be treated for license applications, clinical privileges applications, and background screenings.

Article 15 Non-judicial Punishment Is Not the Same as a Court-martial or a Criminal Proceeding.

Under Article 15 of the Uniform Code of Military Justice (UCMJ), which is also codified in 10 U.S.C. § 815, a commanding officer may issue an administrative punishment to enlisted or officer personnel under her command. These are not considered criminal convictions for any purpose, hence their other name, “non-judicial punishment.” These are usually for minor offenses and may be considered similar to civilian non-criminal traffic offenses.

An Article 15 non-judicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more restrictive. The less serious Article 15 non-judicial proceeding cannot amount to a criminal prosecution or proceeding. What is most important is that there is no right to “due process of law” in a NJP as there would be in a judicial proceeding.

The NJP does not have to be reported as a “conviction” or “charge” and it should not come up on any background checks. If it does, you will need to seek assistance to have it removed from your record or explain it in sufficient detail. Always consult an experienced health lawyer with knowledge of the military if you have any questions about how to respond to questions on an application.

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

In Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976), even the dissenting opinion (which would have held that a summary court-martial is a criminal proceeding), agreed that the less serious Article 15 non-judicial punishment is not a criminal conviction for the purposes of the Fifth or Sixth Amendment. 425 U.S. at 58 (Marshall, J., dissenting). The dissenters noted that an Article 15 non-judicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. 425 U.S. at 58-59.

Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas v. United States, 223 Ct. Cl. 465, 620 F.2d 247, 253 (1980) (“Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the Fifth and Sixth] Amendments”); Bowes v. United States, 227 Ct. Cl. 166, 645 F.2d 961 (1981); Cole v. States, 228 Ct. Cl. 890 (1981); Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct. Cl. 162, 624 F.2d 976, 980 (1980).

Fewer Rights at a NJP Means Increased Authority to Commanders and, Therefore, Less Stigma Associated With the Discipline.

The legislative history accompanying 10 U.S.C. § 815 states that Article 15 non-judicial punishment is non-criminal in character. The legislative history explains the purpose of the 1962 amendments to Article 15:

“The purpose of the proposed legislation was to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose non-judicial punishment. Such increased authority [enables] them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.”

The Legislative History Supports this Interpretation.

“Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article, commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as ‘non-judicial’ punishment. Since the punishment is non-judicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system. . . . It has been acknowledged over a long period that military commanders should have the authority to impose non-judicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.”

The legislative history also emphasizes Congress’s intent to make Article 15 a non-criminal proceeding for the protection of service personnel:

“The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. . . . At the same time, the increased non-judicial authority should permit the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.”

One court noted: “In light of the foregoing, it is clear that an Article 15 military proceeding for non-judicial punishment does not amount to a “criminal prosecution.” . . . Article 15’s legislative history demonstrates that Congress did not consider non-judicial punishment to be a conviction of a crime. Furthermore, federal courts have construed such proceedings to be non-criminal in nature. Accordingly, state prosecution . . . for the same offense is not barred by our double jeopardy statutory scheme.”
State v. Myers, 100 Haw. 132, 135-36, 58 P.3d 643, 646-47 (2002)

Other Courts Have Held Similarly.

Other Courts have quoted Myers with approval or have come to the same conclusion.

For example, the U.S. District Court for the Eastern District of Virginia in United States v. Trogden, 476 F. Supp. 2d 564, 569 (E.D. Va. 2007), stated:

“‘Supreme Court, other federal court, and state court precedent support the finding that NJP is not criminal. The Supreme Court has expressly stated that “Article 15 punishment, conducted personally by an accused’s commanding officer, is an administrative method of dealing with the most minor offenses.’ Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976) (emphasis added); see United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999) (confirming this Supreme Court precedent in stating that ‘[m]ost punishments that may be imposed in a NJP proceeding affect the noncriminal field of military personnel administration’). Lower courts have further held that NJP is a non-adversarial proceeding that is regarded as noncriminal in nature. Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); see Wales v. United States, 14 Cl. Ct. 580, 587 (1988); Cochran, 1 Cl. Ct. at 764, 767; Dumas, 620 F.2d at 251; Gammons, 51 M.J. at 174; United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Dobzynski v. Green, 16 M.J. 84, 85-86 (C.A.A.F. 1983); Myers, 100 Haw. at 135, 58 P.3d at 646. Accordingly, in light of Article 15’s text, implementing manual, legislative history, and evaluation in case law, this court finds that Congress did not intend for NJP to be considered as criminal punishment for double jeopardy purposes, and this congressional intent is ‘entitled to considerable deference.’ SEC v. Palmisano, 135 F.3d 860, 864 (2d Cir. 1998).”

“Neither party has argued that the non-judicial punishment proceedings at issue were criminal in nature. See State v. Myers, 100 Haw. 132, 58 P.3d 643, 646-47 (Haw. 2002) (‘Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution.’). Quoted with approval in Sasen v. Mabus, Civil Action No. 16-cv-10416-ADB, 2017 U.S. Dist. LEXIS 44436, at *33-34 (D. Mass. Mar. 27, 2017).

The Ninth Circuit Court of Appelas in United States v. Reveles, 660 F.3d 1138, 1141-42 (9th Cir. 2011), stated:

“The Armed Forces Court of Appeals has stated that ‘the title of the [NJP] legislation—”Commanding officer’s non-judicial punishment”—underscores the legislative intent to separate NJP from the judicial procedures of the military’s criminal law forum, the court-martial.’ United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999). Similarly, the United States Court of Claims has held that ‘non-judicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature.’ Wales v. United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251-52, 223 Ct. Cl. 465 (Ct. Cl. 1980); United States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007); State v. Myers, 100 Haw. 132, 58 P.3d 643, 646 (Haw. 2002); but see United States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga, 49 M.J. at 12; Ivie, 961 P.2d at 945.”

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

Military Non-judicial Punishments or Article 15 Proceedings Are Not Criminal Convictions–Military Physicians, Dentists and Nurses Should Know This

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Our firm represents many military and former military health professionals. We are often asked how a non-judicial punishment or Article 15 proceeding will be treated for license applications, clinical privileges applications, and background screenings.

Article 15 Non-judicial Punishment Is Not the Same as a Court-martial or a Criminal Proceeding.

Under Article 15 of the Uniform Code of Military Justice (UCMJ), which is also codified in 10 U.S.C. § 815, a commanding officer may issue an administrative punishment to enlisted or officer personnel under her command. These are not considered criminal convictions for any purpose, hence their other name, “non-judicial punishment.” These are usually for minor offenses and may be considered similar to civilian non-criminal traffic offenses.

An Article 15 non-judicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more restrictive. The less serious Article 15 non-judicial proceeding cannot amount to a criminal prosecution or proceeding. What is most important is that there is no right to “due process of law” in a NJP as there would be in a judicial proceeding.

The NJP does not have to be reported as a “conviction” or “charge” and it should not come up on any background checks. If it does, you will need to seek assistance to have it removed from your record or explain it in sufficient detail. Always consult an experienced health lawyer with knowledge of the military if you have any questions about how to respond to questions on an application.

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

In Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976), even the dissenting opinion (which would have held that a summary court-martial is a criminal proceeding), agreed that the less serious Article 15 non-judicial punishment is not a criminal conviction for the purposes of the Fifth or Sixth Amendment. 425 U.S. at 58 (Marshall, J., dissenting). The dissenters noted that an Article 15 non-judicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. 425 U.S. at 58-59.

Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas v. United States, 223 Ct. Cl. 465, 620 F.2d 247, 253 (1980) (“Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the Fifth and Sixth] Amendments”); Bowes v. United States, 227 Ct. Cl. 166, 645 F.2d 961 (1981); Cole v. States, 228 Ct. Cl. 890 (1981); Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct. Cl. 162, 624 F.2d 976, 980 (1980).

Fewer Rights at a NJP Means Increased Authority to Commanders and, Therefore, Less Stigma Associated With the Discipline.

The legislative history accompanying 10 U.S.C. § 815 states that Article 15 non-judicial punishment is non-criminal in character. The legislative history explains the purpose of the 1962 amendments to Article 15:

“The purpose of the proposed legislation was to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose non-judicial punishment. Such increased authority [enables] them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.”

The Legislative History Supports this Interpretation.

“Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article, commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as ‘non-judicial’ punishment. Since the punishment is non-judicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system. . . . It has been acknowledged over a long period that military commanders should have the authority to impose non-judicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.”

The legislative history also emphasizes Congress’s intent to make Article 15 a non-criminal proceeding for the protection of service personnel:

“The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. . . . At the same time, the increased non-judicial authority should permit the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.”

One court noted: “In light of the foregoing, it is clear that an Article 15 military proceeding for non-judicial punishment does not amount to a “criminal prosecution.” . . . Article 15’s legislative history demonstrates that Congress did not consider non-judicial punishment to be a conviction of a crime. Furthermore, federal courts have construed such proceedings to be non-criminal in nature. Accordingly, state prosecution . . . for the same offense is not barred by our double jeopardy statutory scheme.”
State v. Myers, 100 Haw. 132, 135-36, 58 P.3d 643, 646-47 (2002)

Other Courts Have Held Similarly.

Other Courts have quoted Myers with approval or have come to the same conclusion.

For example, the U.S. District Court for the Eastern District of Virginia in United States v. Trogden, 476 F. Supp. 2d 564, 569 (E.D. Va. 2007), stated:

“‘Supreme Court, other federal court, and state court precedent support the finding that NJP is not criminal. The Supreme Court has expressly stated that “Article 15 punishment, conducted personally by an accused’s commanding officer, is an administrative method of dealing with the most minor offenses.’ Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976) (emphasis added); see United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999) (confirming this Supreme Court precedent in stating that ‘[m]ost punishments that may be imposed in a NJP proceeding affect the noncriminal field of military personnel administration’). Lower courts have further held that NJP is a non-adversarial proceeding that is regarded as noncriminal in nature. Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); see Wales v. United States, 14 Cl. Ct. 580, 587 (1988); Cochran, 1 Cl. Ct. at 764, 767; Dumas, 620 F.2d at 251; Gammons, 51 M.J. at 174; United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Dobzynski v. Green, 16 M.J. 84, 85-86 (C.A.A.F. 1983); Myers, 100 Haw. at 135, 58 P.3d at 646. Accordingly, in light of Article 15’s text, implementing manual, legislative history, and evaluation in case law, this court finds that Congress did not intend for NJP to be considered as criminal punishment for double jeopardy purposes, and this congressional intent is ‘entitled to considerable deference.’ SEC v. Palmisano, 135 F.3d 860, 864 (2d Cir. 1998).”

“Neither party has argued that the non-judicial punishment proceedings at issue were criminal in nature. See State v. Myers, 100 Haw. 132, 58 P.3d 643, 646-47 (Haw. 2002) (‘Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution.’). Quoted with approval in Sasen v. Mabus, Civil Action No. 16-cv-10416-ADB, 2017 U.S. Dist. LEXIS 44436, at *33-34 (D. Mass. Mar. 27, 2017).

The Ninth Circuit Court of Appelas in United States v. Reveles, 660 F.3d 1138, 1141-42 (9th Cir. 2011), stated:

“The Armed Forces Court of Appeals has stated that ‘the title of the [NJP] legislation—”Commanding officer’s non-judicial punishment”—underscores the legislative intent to separate NJP from the judicial procedures of the military’s criminal law forum, the court-martial.’ United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999). Similarly, the United States Court of Claims has held that ‘non-judicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature.’ Wales v. United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251-52, 223 Ct. Cl. 465 (Ct. Cl. 1980); United States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007); State v. Myers, 100 Haw. 132, 58 P.3d 643, 646 (Haw. 2002); but see United States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga, 49 M.J. at 12; Ivie, 961 P.2d at 945.”

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

Military Non-judicial Punishments or Article 15 Proceedings Are Not Criminal Convictions–Military Physicians, Dentists and Nurses Should Know This

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Our firm represents many military and former military health professionals. We are often asked how a non-judicial punishment or Article 15 proceeding will be treated for license applications, clinical privileges applications, and background screenings.

Article 15 Non-judicial Punishment Is Not the Same as a Court-martial or a Criminal Proceeding.

Under Article 15 of the Uniform Code of Military Justice (UCMJ), which is also codified in 10 U.S.C. § 815, a commanding officer may issue an administrative punishment to enlisted or officer personnel under her command. These are not considered criminal convictions for any purpose, hence their other name, “non-judicial punishment.” These are usually for minor offenses and may be considered similar to civilian non-criminal traffic offenses.

An Article 15 non-judicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more restrictive. The less serious Article 15 non-judicial proceeding cannot amount to a criminal prosecution or proceeding. What is most important is that there is no right to “due process of law” in a NJP as there would be in a judicial proceeding.

The NJP does not have to be reported as a “conviction” or “charge” and it should not come up on any background checks. If it does, you will need to seek assistance to have it removed from your record or explain it in sufficient detail. Always consult an experienced health lawyer with knowledge of the military if you have any questions about how to respond to questions on an application.

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

In Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976), even the dissenting opinion (which would have held that a summary court-martial is a criminal proceeding), agreed that the less serious Article 15 non-judicial punishment is not a criminal conviction for the purposes of the Fifth or Sixth Amendment. 425 U.S. at 58 (Marshall, J., dissenting). The dissenters noted that an Article 15 non-judicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. 425 U.S. at 58-59.

Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas v. United States, 223 Ct. Cl. 465, 620 F.2d 247, 253 (1980) (“Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the Fifth and Sixth] Amendments”); Bowes v. United States, 227 Ct. Cl. 166, 645 F.2d 961 (1981); Cole v. States, 228 Ct. Cl. 890 (1981); Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct. Cl. 162, 624 F.2d 976, 980 (1980).

Fewer Rights at a NJP Means Increased Authority to Commanders and, Therefore, Less Stigma Associated With the Discipline.

The legislative history accompanying 10 U.S.C. § 815 states that Article 15 non-judicial punishment is non-criminal in character. The legislative history explains the purpose of the 1962 amendments to Article 15:

“The purpose of the proposed legislation was to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose non-judicial punishment. Such increased authority [enables] them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.”

The Legislative History Supports this Interpretation.

“Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article, commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as ‘non-judicial’ punishment. Since the punishment is non-judicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system. . . . It has been acknowledged over a long period that military commanders should have the authority to impose non-judicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.”

The legislative history also emphasizes Congress’s intent to make Article 15 a non-criminal proceeding for the protection of service personnel:

“The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. . . . At the same time, the increased non-judicial authority should permit the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.”

One court noted: “In light of the foregoing, it is clear that an Article 15 military proceeding for non-judicial punishment does not amount to a “criminal prosecution.” . . . Article 15’s legislative history demonstrates that Congress did not consider non-judicial punishment to be a conviction of a crime. Furthermore, federal courts have construed such proceedings to be non-criminal in nature. Accordingly, state prosecution . . . for the same offense is not barred by our double jeopardy statutory scheme.”
State v. Myers, 100 Haw. 132, 135-36, 58 P.3d 643, 646-47 (2002)

Other Courts Have Held Similarly.

Other Courts have quoted Myers with approval or have come to the same conclusion.

For example, the U.S. District Court for the Eastern District of Virginia in United States v. Trogden, 476 F. Supp. 2d 564, 569 (E.D. Va. 2007), stated:

“‘Supreme Court, other federal court, and state court precedent support the finding that NJP is not criminal. The Supreme Court has expressly stated that “Article 15 punishment, conducted personally by an accused’s commanding officer, is an administrative method of dealing with the most minor offenses.’ Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976) (emphasis added); see United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999) (confirming this Supreme Court precedent in stating that ‘[m]ost punishments that may be imposed in a NJP proceeding affect the noncriminal field of military personnel administration’). Lower courts have further held that NJP is a non-adversarial proceeding that is regarded as noncriminal in nature. Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); see Wales v. United States, 14 Cl. Ct. 580, 587 (1988); Cochran, 1 Cl. Ct. at 764, 767; Dumas, 620 F.2d at 251; Gammons, 51 M.J. at 174; United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Dobzynski v. Green, 16 M.J. 84, 85-86 (C.A.A.F. 1983); Myers, 100 Haw. at 135, 58 P.3d at 646. Accordingly, in light of Article 15’s text, implementing manual, legislative history, and evaluation in case law, this court finds that Congress did not intend for NJP to be considered as criminal punishment for double jeopardy purposes, and this congressional intent is ‘entitled to considerable deference.’ SEC v. Palmisano, 135 F.3d 860, 864 (2d Cir. 1998).”

“Neither party has argued that the non-judicial punishment proceedings at issue were criminal in nature. See State v. Myers, 100 Haw. 132, 58 P.3d 643, 646-47 (Haw. 2002) (‘Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution.’). Quoted with approval in Sasen v. Mabus, Civil Action No. 16-cv-10416-ADB, 2017 U.S. Dist. LEXIS 44436, at *33-34 (D. Mass. Mar. 27, 2017).

The Ninth Circuit Court of Appelas in United States v. Reveles, 660 F.3d 1138, 1141-42 (9th Cir. 2011), stated:

“The Armed Forces Court of Appeals has stated that ‘the title of the [NJP] legislation—”Commanding officer’s non-judicial punishment”—underscores the legislative intent to separate NJP from the judicial procedures of the military’s criminal law forum, the court-martial.’ United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999). Similarly, the United States Court of Claims has held that ‘non-judicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature.’ Wales v. United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251-52, 223 Ct. Cl. 465 (Ct. Cl. 1980); United States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007); State v. Myers, 100 Haw. 132, 58 P.3d 643, 646 (Haw. 2002); but see United States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga, 49 M.J. at 12; Ivie, 961 P.2d at 945.”

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

Military Non-judicial Punishments or Article 15 Proceedings Are Not Criminal Convictions–Military Physicians, Dentists and Nurses Should Know This

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Our firm represents many military and former military health professionals. We are often asked how a non-judicial punishment or Article 15 proceeding will be treated for license applications, clinical privileges applications, and background screenings.

Article 15 Non-judicial Punishment Is Not the Same as a Court-martial or a Criminal Proceeding.

Under Article 15 of the Uniform Code of Military Justice (UCMJ), which is also codified in 10 U.S.C. § 815, a commanding officer may issue an administrative punishment to enlisted or officer personnel under her command. These are not considered criminal convictions for any purpose, hence their other name, “non-judicial punishment.” These are usually for minor offenses and may be considered similar to civilian non-criminal traffic offenses.

An Article 15 non-judicial proceeding is less judicial in nature than a summary court-martial. In addition, the permissible range of punishments resulting from an Article 15 proceeding is more restrictive. The less serious Article 15 non-judicial proceeding cannot amount to a criminal prosecution or proceeding. What is most important is that there is no right to “due process of law” in a NJP as there would be in a judicial proceeding.

The NJP does not have to be reported as a “conviction” or “charge” and it should not come up on any background checks. If it does, you will need to seek assistance to have it removed from your record or explain it in sufficient detail. Always consult an experienced health lawyer with knowledge of the military if you have any questions about how to respond to questions on an application.

Cases That Have Ruled That NJPs Are Noncriminal Proceedings.

In Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976), even the dissenting opinion (which would have held that a summary court-martial is a criminal proceeding), agreed that the less serious Article 15 non-judicial punishment is not a criminal conviction for the purposes of the Fifth or Sixth Amendment. 425 U.S. at 58 (Marshall, J., dissenting). The dissenters noted that an Article 15 non-judicial punishment can be speedily imposed by a commander and does not carry with it the stigma of a criminal conviction. 425 U.S. at 58-59.

Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution. See e.g., United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Varn v. United States, 13 Cl. Ct. 391, 396 (1987); Dumas v. United States, 223 Ct. Cl. 465, 620 F.2d 247, 253 (1980) (“Article 15 proceedings clearly are not criminal prosecutions within the meaning of the rights plaintiffs claim under [the Fifth and Sixth] Amendments”); Bowes v. United States, 227 Ct. Cl. 166, 645 F.2d 961 (1981); Cole v. States, 228 Ct. Cl. 890 (1981); Cochran v. United States, 1 Cl. Ct. 759, 764 (1983), aff’d, 732 F.2d 168 (1984); Cappella v. United States, 224 Ct. Cl. 162, 624 F.2d 976, 980 (1980).

Fewer Rights at a NJP Means Increased Authority to Commanders and, Therefore, Less Stigma Associated With the Discipline.

The legislative history accompanying 10 U.S.C. § 815 states that Article 15 non-judicial punishment is non-criminal in character. The legislative history explains the purpose of the 1962 amendments to Article 15:

“The purpose of the proposed legislation was to amend article 15 of the Uniform Code of Military Justice to give increased authority to designated commanders in the Armed Forces to impose non-judicial punishment. Such increased authority [enables] them to deal with minor disciplinary problems and offenses without resort to trial by court-martial.”

The Legislative History Supports this Interpretation.

“Under existing law, article 15 of the Uniform Code of Military Justice provides a means whereby military commanders deal with minor infractions of discipline without resorting to criminal law processes. Under this article, commanding officers can impose specified limited punishments for minor offenses and infractions of discipline. This punishment is referred to as ‘non-judicial’ punishment. Since the punishment is non-judicial, it is not considered as a conviction of a crime and in this sense has no connection with the military court-martial system. . . . It has been acknowledged over a long period that military commanders should have the authority to impose non-judicial punishment as an essential part of their responsibilities to preserve discipline and maintain an effective armed force.”

The legislative history also emphasizes Congress’s intent to make Article 15 a non-criminal proceeding for the protection of service personnel:

“The Department of Defense has stated that problems adversely affecting morale and discipline have been created in the Armed Forces because of the inadequate powers of commanding officers to deal with minor behavioral infractions without resorting to the processes of the military court-martial system. . . . At the same time, the increased non-judicial authority should permit the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned.”

One court noted: “In light of the foregoing, it is clear that an Article 15 military proceeding for non-judicial punishment does not amount to a “criminal prosecution.” . . . Article 15’s legislative history demonstrates that Congress did not consider non-judicial punishment to be a conviction of a crime. Furthermore, federal courts have construed such proceedings to be non-criminal in nature. Accordingly, state prosecution . . . for the same offense is not barred by our double jeopardy statutory scheme.”
State v. Myers, 100 Haw. 132, 135-36, 58 P.3d 643, 646-47 (2002)

Other Courts Have Held Similarly.

Other Courts have quoted Myers with approval or have come to the same conclusion.

For example, the U.S. District Court for the Eastern District of Virginia in United States v. Trogden, 476 F. Supp. 2d 564, 569 (E.D. Va. 2007), stated:

“‘Supreme Court, other federal court, and state court precedent support the finding that NJP is not criminal. The Supreme Court has expressly stated that “Article 15 punishment, conducted personally by an accused’s commanding officer, is an administrative method of dealing with the most minor offenses.’ Middendorf v. Henry, 425 U.S. 25, 31-32, 96 S. Ct. 1281, 47 L. Ed. 2d 556 (1976) (emphasis added); see United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999) (confirming this Supreme Court precedent in stating that ‘[m]ost punishments that may be imposed in a NJP proceeding affect the noncriminal field of military personnel administration’). Lower courts have further held that NJP is a non-adversarial proceeding that is regarded as noncriminal in nature. Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987); see Wales v. United States, 14 Cl. Ct. 580, 587 (1988); Cochran, 1 Cl. Ct. at 764, 767; Dumas, 620 F.2d at 251; Gammons, 51 M.J. at 174; United States v. Marshall, 45 M.J. 268, 271 (C.A.A.F. 1996); Dobzynski v. Green, 16 M.J. 84, 85-86 (C.A.A.F. 1983); Myers, 100 Haw. at 135, 58 P.3d at 646. Accordingly, in light of Article 15’s text, implementing manual, legislative history, and evaluation in case law, this court finds that Congress did not intend for NJP to be considered as criminal punishment for double jeopardy purposes, and this congressional intent is ‘entitled to considerable deference.’ SEC v. Palmisano, 135 F.3d 860, 864 (2d Cir. 1998).”

“Neither party has argued that the non-judicial punishment proceedings at issue were criminal in nature. See State v. Myers, 100 Haw. 132, 58 P.3d 643, 646-47 (Haw. 2002) (‘Numerous federal cases have held that an Article 15 non-judicial proceeding is not a criminal prosecution.’). Quoted with approval in Sasen v. Mabus, Civil Action No. 16-cv-10416-ADB, 2017 U.S. Dist. LEXIS 44436, at *33-34 (D. Mass. Mar. 27, 2017).

The Ninth Circuit Court of Appelas in United States v. Reveles, 660 F.3d 1138, 1141-42 (9th Cir. 2011), stated:

“The Armed Forces Court of Appeals has stated that ‘the title of the [NJP] legislation—”Commanding officer’s non-judicial punishment”—underscores the legislative intent to separate NJP from the judicial procedures of the military’s criminal law forum, the court-martial.’ United States v. Gammons, 51 M.J. 169, 177 (C.A.A.F. 1999). Similarly, the United States Court of Claims has held that ‘non-judicial punishment, unlike the general and special court-martial, is not a formal adversary criminal proceeding, but is regarded as non-criminal in nature.’ Wales v. United States, 14 Cl. Ct. 580, 587 (1988) (citing Fairchild v. Lehman, 814 F.2d 1555, 1558 (Fed. Cir. 1987)); see also Cochran v. United States, 1 Cl. Ct. 759, 764 (1983); Dumas v. United States, 620 F.2d 247, 251-52, 223 Ct. Cl. 465 (Ct. Cl. 1980); United States v. Trogden, 476 F. Supp. 2d 564, 568 (E.D. Va. 2007); State v. Myers, 100 Haw. 132, 58 P.3d 643, 646 (Haw. 2002); but see United States v. Volpe, 986 F. Supp. 122 (N.D.N.Y. 1997); Arriaga, 49 M.J. at 12; Ivie, 961 P.2d at 945.”

Consult a Health Law Attorney Who Is Familiar with Army, Navy, and Air Force Health Care Professionals and Their Problems.

The attorneys of The Health Law Firm have represented physicians, nurses, dentists, and other health professionals in the Army, Navy, and Air Force, active duty and retired, as well as physicians, nurses, and other health professionals working for the Veterans Administration (VA) in the U.S. and around the world. Representation has included disciplinary action, investigations, peer review investigations, clinical privileges actions, fair hearings, National Practitioner Data Bank (NPDB) actions, and appeals.

To contact The Health Law Firm, please call (407) 331-6620 or toll-free (888) 331-6620 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave. Suite 1000, Altamonte Springs, FL 32714, Phone: (407) 331-6620 or Toll-Free: (888) 331-6620.

“The Health Law Firm” is a registered fictitious business name of and a registered service mark of The Health Law Firm, P.A., a Florida professional service corporation, since 1999.
Copyright © 2021 The Health Law Firm. All rights reserved.

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