Can a commander break up extra duty?

2021-02-26T16:01:22-05:00

If a Soldier is on extra duty for 30 days, can a commander break those days up? Situation: Soldier is currently getting divorced and has a child to look after while separated spouse is at work. If the 1SG and CSM agree to work around that work schedule, can they make that Soldier make up those days he is watching his child? Can those 30 days last as long as it takes to complete 30 actual days of extra duty? Please provide some regulation proof. I have not been able to find anything about this.

Response by SSG Private RallyPoint Member made Feb 26 at 2021 4:02 PM

2021-02-26T16:02:55-05:00

I don’t see why not

Response by SP5 Peter Keane made Feb 26 at 2021 4:21 PM

2021-02-26T16:21:48-05:00

It would seem that this was a Field Grade. If it was agreed to let the soldier have the time to take for his child, it stands to reason that it was also agreed that the extra duty would be made up for those days.

Response by 1SG Private RallyPoint Member made Feb 26 at 2021 4:22 PM

2021-02-26T16:22:34-05:00

It is possible however the situation brings up a bigger issue- Family Care Plan. If SM is legally seperated they have 30 days to create family care plan or be separated. The reason for this rule is the exact situation, who is taking care of children while mom/dad are at work.

Response by SFC Private RallyPoint Member made Feb 26 at 2021 4:29 PM

2021-02-26T16:29:51-05:00

AR 27-10, dated November 2020

Section IV - Punishment
Para 3-19 (4):

(4) Extra duties. Extra duties may be required to be performed at any time and, within the duration of the punishment, for any length of time. No extra duty may be imposed that—
(a) Constitutes cruel or unusual punishment or a punishment not sanctioned by the customs of the Service; for example, using the offender as a personal servant.
(b) Is a duty normally intended as an honor, such as assignment to a guard of honor.
(c) Is required to be performed in a ridiculous or unnecessarily degrading manner; for example, an order to clean a barracks floor with a toothbrush.
(d) Constitutes a safety or health hazard to the offender.
(e) Would demean the Soldier’s position as a NCO or SPC (see AR 600–20)

Also:

(7) Combination and apportionment. With the following exception, punishment authorized pursuant to UCMJ, Art. 15
(b) may be combined: No two or more punishments involving deprivation of liberty may be combined, in the same NJP proceedings, to run either consecutively or concurrently, except that restriction and extra duty may be combined in any manner to run for a period not exceeding the maximum duration that can be imposed for extra duty, by the imposing commander. Once commenced, deprivation of liberty punishments will run continuously, except where temporarily interrupted due to the fault of the Soldier, or the Soldier is physically incapacitated, or an appeal is not acted on as prescribed in paragraph 3–21b (see para 3–21c regarding the circumstances when deprivation of liberty punishments, imposed in separate NJP proceedings may run consecutively.)
(8) Format for punishments. The formats shown below should be used when entering punishments in item 6 of DA Form 2627. When more than one punishment is imposed during any single UCMJ, Art. 15 proceeding, punishments should be listed in the following order, as appropriate, reduction, forfeiture of pay, deprivation of liberty, and admonition/reprimand.

Response by SFC Casey O'Mally made Feb 26 at 2021 5:30 PM

2021-02-26T17:30:31-05:00

As has been mentioned, your best bet is to talk to JAG. SFC Private RallyPoint Member has provided the Reg, and IMHO, MSG Joseph Cristofaro has given a proper interpretation of it. I can tell you from experience that I have seen ED broken up on a number of occasions. In one instance, a Soldier was already scheduled to go TDY for training for 12 days. The training was something she needed for professional development / career progression, and keeping her back would have set her back by at least a year (before she could get another slot). Then, she messed up - not BAD, but still bad. Lost some pay (no rank) and 14/14. She did 5 of the 14, went TDY, came back, and did the other 9. I was amazed that the CoC blessed off on it, but that is what they decided to do.
In another, the Soldier took emergency leave because his wife was in a car accident two states away, and in the ICU. CoC let him go be with his wife until she was fully stable and able to take care of herself / make medical decisions for herself (it was 3 or 4 days), and then come back and resume punishment. They didn't have to let him go, but they made the call (and the right one, IMHO) to take care of the Soldier and the family, even though the Soldier had stepped in it.

From the way the reg reads to me, I would say that both of those cases were handled within the letter of the law. Also both of those cases involved the CoC going above and beyond their requirements to take care of the Soldier. They were not obligated to let the Soldier go, but they felt it was the best for the Soldier. If I was the Soldier in either of those cases, I would not have even CONTEMPLATED bitching about it being non-consecutive.

I, myself, had non-consecutive ED. I managed to get in trouble about a week before a 4-day holiday weekend, for which I had already submitted a pass. I had some big family thing going on (I don't remember what), and the Commander let me take my 4-day pass (which TOTALLY surprised me). That one, I would say, would NOT fall within the reg, it was just my Commander being a nice guy.

The last thing I will say on the topic is this. Much like the three Soldiers I mentioned, in this case, the CoC is going above and beyond to take care of the Soldier. Regardless of whether they CAN legally extend out the time and require the Soldier to "make it up," it is in the Soldier's best interest to go with it. Because the alternative, if the Soldier wants to fight it, is that the CoC puts him in the barracks, and makes sure his restriction and Extra Duty runs for 30 consecutive days, which means the Soldier will be completely unable to tend to the needs of his child. This is one of the cases where you REALLY have to be careful what you wish for.

Response by SFC Ralph E Kelley made Feb 26 at 2021 5:43 PM

2021-02-26T17:43:00-05:00

I agree with SFC Private RallyPoint Member's information and MSG Joseph Cristofaro's interpretation per AR 27-10 Para 3-21. Its not a good thing for officers, commanders or otherwise to 'interpret' regulations without consulting their unit's JAG.
I know of a company commander (not mine) who tried that with a soldier in Europe. He had to explain himself to the soldier's State Representative, his State Governor, his district's US Representative and both of his State's US Senator's, in-written form. All were prior service military.
The soldier's mother had contacted them.
Three months afterward he was shuffled off a S4 position in another unit. Last I heard he left the service as a Captain about 8 months later.

Response by SFC Melvin Brandenburg made Feb 27 at 2021 12:18 AM

2021-02-27T00:18:40-05:00

Jag would be the source I'd visit.

Response by SGT Hector Rojas, AIGA, SHA made Feb 27 at 2021 4:05 PM

2021-02-27T16:05:37-05:00

According to AR 27-10 Section IV Para 3-19 (4):

(4) Extra duties. Extra duties may be required to be performed at any time and, within the duration of the punishment, for any length of time. ()

This is to say that the extra duty can be performed literally at any time and for any length of time, as long as the total number of days that extra duty was performed was within the original number of days.

As for MSG Joseph Cristofaro 's interpretation of the "continuously" excerpt, I agree in the final assessment; the SM can be allowed to watch his/her kid when needed. Still, I disagree because extra duty is not a "deprivation of liberty" punishment, where Restriction is.

Response by SGM Bill Frazer made Feb 27 at 2021 11:03 PM

2021-02-27T23:03:28-05:00

So an SM gets UCMJ actions, and is still questioning his CO who gave him the punishment? Rocks would have more sense.