Can counselling chits be back dated to past events that weren't documented at the time?

2015-10-30T22:03:39-04:00

I know a sailor that is being told from their chain of command, that they are trying to send said sailor up to Captain's Mast. Right now they are making said sailor sign counselling chits for past events that they were already verbally counselled for and transpired over the past year. Is such a thing legal and does anyone know the instruction for it? The only thing I can find is:
http://www.public.navy.mil/bupers-npc/reference/milpersman/1000/1600Performance/Pages/default.aspx

1600 - 1699 Performance and Discipline

Procedures for Reporting Members as Failed to Report Under Permanent Change of Station (PCS)/Temporary Duty (TEMDU) Orders

Response by 1stSgt Private RallyPoint Member made Oct 30 at 2015 10:07 PM

2015-10-30T22:07:21-04:00

I would call that bad business. Time to see SJA

Response by PO1 John Miller made Oct 30 at 2015 10:09 PM

2015-10-30T22:09:48-04:00

Firstly, consult with JAG, this doesn't sound "right."

Secondly, and what I've done in the past if doing written counseling on past performance, I would not backdate the chit but rather in the comments of discrepancy "On this date, member did the following..."

Response by SSG Jason Penn made Oct 31 at 2015 12:55 AM

2015-10-31T00:55:59-04:00

Don't know how the Navy does things, but the Army has regulations that place a statute of limitations on past indiscretions. We had a Soldier back in the early 90's where our command (in Georgia) tried to impose NJP on him for something that happened two years prior while he was stationed in Germany. He saw JAG and got it thrown out for 2 simple reasons. 1) statute of limitations, and 2) a unit cannot punish an individual for an offense that happened in another unit.

Response by SCPO Joshua I made Oct 31 at 2015 1:30 AM

2015-10-31T01:30:12-04:00

No, it is not legal.

Response by SCPO Joshua I made Oct 31 at 2015 2:02 AM

2015-10-31T02:02:20-04:00

Basically it's forgery. Putting a false date on a counseling chit and then trying to use that to support an NJP is idiotic.

Start with UCMJ Article 123.

UCMJ - Article 123 - Forgery

Punitive articles of the Uniform Code of Military Justice (UCMJ). Includes information from the Manual for Court Martial (MCM), 2002, including text from the UCMJ, elements of proof, explanation of offenses, and maximum permissible punishment under military court-martial.

Response by PO1 Todd Cousins made Oct 31 at 2015 4:15 AM

2015-10-31T04:15:50-04:00

You can write a chit dated currently about a past action but can't back date a chit. I would add though they are a bunch of idiots if they are trying to document stuff now that happened in the past just for a Mass. Makes zero sense to this old man.

Response by SFC Private RallyPoint Member made Oct 31 at 2015 6:20 AM

2015-10-31T06:20:20-04:00

I don't know how the navy does it. In the army you can't back date a counseling. But you could write it something like "On (date) service member (insert description of event). On (date) service member was verbally counseled. Corrective training included (insert explanation of corrective training). Service member was not initially given a written counseling. Service member is being counseled now because his chain of command is seeking non-judicial punishment for this incident."

Date the counseling for the day it was given. If your chain of command has an issue with it, see JAG.

Response by CPO Private RallyPoint Member made Oct 31 at 2015 5:40 PM

2015-10-31T17:40:27-04:00

I appreciate all the responses. Hopefully the service member gets some good advice from legal. I'll update when I know more.

Response by PO1 Glenn Boucher made Oct 31 at 2015 8:31 PM

2015-10-31T20:31:50-04:00

Not unless you want to go to Mast yourself for falsifying documents.
You can bring up the previous verbal counseling as having been conducted about the behavior but never backdate the counseling and have someone sign it, very wrong.

Response by LCDR Rabbah Rona Matlow made Nov 1 at 2015 10:30 AM

2015-11-01T10:30:48-05:00

No way...

Response by PO2 Mark Lewandoske made Nov 3 at 2015 5:00 AM

2015-11-03T05:00:33-05:00

Never ever sign anything with past date. If they are going to force them, make sure he notes that on his section that this is post dated, this was a verbal counciling they are now changing to written and they are signing it under duress.

Response by SN Timothy Ehrenhaft made Nov 3 at 2015 5:08 AM

2015-11-03T05:08:41-05:00

Assuming you've discovered you can't trust your unit's legal officer to advise you (why else would you be asking here instead of their office?), the best I could tell you is to determine if it is "double indemnity" or not.. that should answer it all for you..

Response by PO2 Kevin Peine made Nov 3 at 2015 6:55 AM

2015-11-03T06:55:09-05:00

Talk to a JAG this sounds shady as Hell

Response by SGM Private RallyPoint Member made Nov 3 at 2015 7:03 AM

2015-11-03T07:03:31-05:00

Ridiculous in any Branch of Service. Don't sign it.

Response by PO1 Rick Serviss made Nov 3 at 2015 7:14 AM

2015-11-03T07:14:20-05:00

At the very least, it's morally wrong. I would advise the member to get advice from JAG. If the performance justified written counseling, the paperwork and signature should have been done at that time. If he/she is on sea duty, the Sailor can request Courts-Martial in lieu of Mast. It sounds like the COC is trying to turn it into a farse.

Response by SCPO Lee Pradia made Nov 3 at 2015 8:26 AM

2015-11-03T08:26:58-05:00

Counseling is meant to document a deficiency/decline in proformance and the ways to improve along with followup. A strong CPO Mess via Disciplinary Review Board (DRB) should see that this is wrong and illegal or underhanded and make the proper recommendations to the COC for dispostion.

Response by PO1 Michael Bruso made Nov 3 at 2015 8:35 AM

2015-11-03T08:35:38-05:00

I say no and they fact that there wasn't documented written counseling looks bad on the the chain of command. They need to own up to that and not try to cover it up!

Response by PO2 Rick Oswald made Nov 3 at 2015 8:40 AM

2015-11-03T08:40:04-05:00

Absolutely not legal to back date a previous action. Tell him not to sign and request a JAG lawyer

Response by CPO Jim Turner made Nov 3 at 2015 8:50 AM

2015-11-03T08:50:29-05:00

I cannot see making a sailor sign a counselling chit from a previous event, discipline needs to be current and pertinent. It sounds like the leadership missed the opportunity to document a behavior that could have been identified and changed earlier. It is one thing being told you messed up, it is another seeing it written and knowing it is now a part of my permanent record, trust me, I know.

Response by SCPO Anthony Wingers made Nov 3 at 2015 8:54 AM

2015-11-03T08:54:20-05:00

The procedure you are describing would not have flown in the past, but in today's politically correct Navy, it is probably considered okay, just as in civilian life these days double jeopardy seems to be just fine with the DOJ. This should not be either legal or moral, but it does seem that today's superiors are more interested in throwing their subordinates under the bus, than teaching them how to catch one.

Response by COL Private RallyPoint Member made Nov 3 at 2015 9:06 AM

2015-11-03T09:06:25-05:00

You didn't say they were trying to back date it. If they are not "back dating" it, it's legit. There is no statute of limitations on counseling. I can come back a year later and give you a written counseling for something you jacked up, but I have to date it for today. The problem comes in when someone asks about rehabilitative and leadership tools used to correct the action. They can also state on the same counseling form that those things were done and how, but it gets troublesome trying to keep track of all that over a long period of time and things and dates get forgotten. Your friend can bow up, but he's going to get it anyway. A good courts-martial authority will look at these counseling chits with a grain of salt, but will take them into account if done properly.

Response by CAPT Hiram Patterson made Nov 3 at 2015 9:52 AM

2015-11-03T09:52:43-05:00

Probably not legal, but certainly unethical. I'd request a court martial if possible as a good JAG lawyer would jump on this. Now if the command documented the counseling in their records, that might change things.

Response by CWO3 Bryan Luciani made Nov 3 at 2015 10:09 AM

2015-11-03T10:09:39-05:00

I think you got the answer here already. Any command that has to backdate anything, for any reason, just shows their own inability to get things done right. I'd consider finding a good command (split tour).

Response by PO2 Dale Pettigrew made Nov 3 at 2015 10:11 AM

2015-11-03T10:11:43-05:00

I would say that most of the guys here are correct about backdating older violation. It would be fraud to back date it. I don't know what the statute of limitations are for the violations. It probably depends on the violation ,similar to the civilian counterpart. Checking with your command legal or JAG would be your best bet.

Then again it would also depends on what senior staff could "convince" the junior sailor to sign.

Response by PO1 John. Bivins made Nov 3 at 2015 11:03 AM

2015-11-03T11:03:09-05:00

Not to my knowledge, never has been legal.

Response by PO2 Weaver Brian made Nov 3 at 2015 12:01 PM

2015-11-03T12:01:33-05:00

I know it's been a very long time since I got out, but that was absolutely illegal back in the '70s and '80s. It sounds like someone is trying to railroad your buddy.

Addenda:
I don't recall having such a thing as a 'counseling chit' back then either. If I had some seaman that needed counseling, I handled things at my level as much as possible. For me to have to get my chief involved, the guy would have had to have been a serious screw up. And I don't recall ever having to get my chief involved. I do, however, recall just one incident where my chief warned me to be careful about my 'counseling' methods. I never did have to send one of my kids to mast.

Response by PO2 Jennifer Heraty made Nov 3 at 2015 12:10 PM

2015-11-03T12:10:34-05:00

If he or she had any verbal counseling for past events it should be documented in their training jacket. At least we did with every command I was in. They could use that for the Capt. Mast

Response by PO1 Aaron Baltosser made Nov 3 at 2015 12:39 PM

2015-11-03T12:39:22-05:00

Absolutely not. When I reported to a command with a Sailor grossly out of body fat standards I was instructed to process him for separation. When I asked where his paperwork was for the ad sep package...counseling chits, write ups, etc I got a ridiculous blank stare. You can't retroactively document anything. IF you fail in leadership and don't maintain a record of corrections both verbal and written, you have no leg to stand on for separating anyone.

Response by PO3 Lourde Owens made Nov 3 at 2015 12:44 PM

2015-11-03T12:44:00-05:00

I personally got a chit back dated four months

Response by PO2 Kayla Modschiedler made Nov 3 at 2015 1:55 PM

2015-11-03T13:55:37-05:00

That would be like submitting a chit for leave today but back dating it for two weeks ago and then saying "But Chief! I told you two weeks ago!" I had a chain of command this shady once I learned to document everything after that.

Response by SSG Todd Halverson made Nov 3 at 2015 3:13 PM

2015-11-03T15:13:52-05:00

Not legal at all. If said Sailor was given verbal counseling, they have already had the issue addressed and can not be punished or change the course of action they had taken. Now they can mention the fact that he did receive verbal counselings for previous transgressions. But, if it happened multiple times, why wasn't something put in writing about the incidents.

Response by CMDCM Richard Moon made Nov 3 at 2015 4:35 PM

2015-11-03T16:35:42-05:00

The chain of command is practicing a CYA maneuver. Verbal counseling ...honestly, should never happen and this is a crystal clear reason why. It allows the Sailor to learn from something, the Chain of command to see that and at the end of the reporting period, fairly document it in an evaluation. Then tear it out and shred it. Or in the case of continued issues, ratchet things up to where it eventually ends up at NJP. As a former CMC, this kind of things drives me nuts, because it's as much or more so a failure of the chain of command to do it's job taking care of it's people (in both senses of the words) than it is the individual. I would never, not in a million years, sign anything that was back dated. The chain of command can present to the leadership Triad unsigned counseling chits and explain why it failed to document these performance issues in the past. To hide the fact that they didn't document at the time is as much reason to counsel them. If there is merit there, the Skipper and the CMC can hash things out - but there is no way I'd sign these things.

Response by PO2 Kirk Flowers made Nov 3 at 2015 7:47 PM

2015-11-03T19:47:13-05:00

NOPE...if you don't address an issue when its hot (documentation) then you cannot go back and try to address it later accurately.

Response by PO1 William Perry made Nov 3 at 2015 8:52 PM

2015-11-03T20:52:07-05:00

Absolutely not! He needs good legal advice. SIGN NOTHING BACKDATED! I'm a retired Master at Arms and they can do is document his previous infractions and what they did to resolve them on his referral to Mast. If the Command dropped the ball on couceling him properly, they don't have a case. Of, I don't know the anything about the event leading to this but, sounds to me they are trying to cover their ass.

Response by CPO David Sharp made Nov 4 at 2015 7:24 AM

2015-11-04T07:24:49-05:00

My advice is for this Sailor to get to the JAG Office ASAP. There is more to this story than you are relating, my gut feeling. However this Sailor does have rights under the UCMJ and those who have verbally counseled him have an OBLIGATION to come forward and relate this to the Chain of Command. First off SIGN NOTHING!!! I can't say this loud enough. I have been in Commands which were antagonistic to a point which so demoralized people the transfer/attrition rate was astounding. This Sailor should also check Navy Regs. especially 111. This is about harassment and undo bias from a Superior Officer. One thing I again will be emphatic about is for them to get Legal Representation on this matter, not listen to "Sea Lawyers" and don't think they are smarter than those in Command. The Command has Legal working for them already and has already got a game plan.

Response by SSgt Alex Robinson made Nov 4 at 2015 7:35 AM

2015-11-04T07:35:55-05:00

You can't so much backdate but you can include previous offenses in a current counseling session.

Response by PO1 Private RallyPoint Member made Nov 4 at 2015 9:28 AM

2015-11-04T09:28:30-05:00

This is pretty vague and there could be a lot more going on, so I'll pose a different question. Is the person requesting the member sign the backdated counseling chits the same person routing the report chit up? If yes, member should probably talk to legal.

The reason I started off with asking who is routing the report chit is this: It might be hard to believe, but there are still people around who try to take care of their people. Soooo, say something came out in an investigation worthy of bringing said sailor into the investigation for further questioning but the immediate chain of command said "I already counseled them on that, no need to take further action ", the chain of command will in most cases request documentation.

On the other hand, if said sailor is a habitual screw up, they don't really "need" the counseling chits to send him up to the CO. NJP is very different from courts martial. If you are currently out at sea, you're pretty much screwed, forget about requesting courts martial. Buuuut, if the person just tries to wiezel his/her way out of trouble by going to legal or requesting courts martial, be VERY careful in what you wish for.

Then of course there is always that thing where people take responsibility for their actions and take a just punishment......that usually goes a long way in getting a reduced punishment. If it feels wrong, it probably is wrong, seek legal counsel, but don't be a dick about it.

Response by CPO Private RallyPoint Member made Nov 4 at 2015 10:18 AM

2015-11-04T10:18:44-05:00

MILPERSMAN 1910-202 And the NRTC "Military reqs for PO1" summarize what a counseling chit is intended for: to identify an issue and provide the member an opportunity to correct deficiencies. If the chain of command did not feel the need to put anything on paper, that's their failure. If anything goes on paper now for past issues it will raise question to their leadership. Anything signed will have to be for a current date and the Sailor can make the argument that he or she was only recently formally notified of his or her deficiency and had no reasonable time to correct the problem.

I've always seen local instructions that state formal counselings a should be conducted within 72 hours of an infraction.

Also, to receive a verbal counseling only to receive a written counseling approaches An issue of trivial/petty form double jeopardy and harassment.

Im not advocating for the accused Sailor, but the chain of command needs to operate with a higher form of discipline and responsibility.

Response by PO1 Scott Cottrell made Nov 4 at 2015 5:51 PM

2015-11-04T17:51:07-05:00

No Counseling chits from before last Eval. Once you get an Eval (those chits should have been input for the Eval), they can not use them against you at Mast. As an PO3, I was taken to Mast, mostly based on past Counseling Chits. After Mast, I had 3 PO1's grab me, sat me down and showed me how to file a grievance. As I had an Eval 6 months before Mast and all of the Counseling chits were 9 months and older. They could not be used at Mast. Anyway my Mast was thrown out because of old Chits and them trying to change the punishment for the crime. BQ room failed inspection while I was TAD to another command, normal punishment was open bay BQ for a month, they tried to bust me down to E-3 and move me to open bay. Oh and they did not go after my roommate who was there for the failure. Headhunting at it's finest. Thank god for the 3 PO1's who grabbed me, 1 retired as a PO1, One retired as a Chief, the last retired as a Master chief. Then again that was over 20 years ago.

Response by SCPO Charles Steinbrook made Nov 4 at 2015 6:32 PM

2015-11-04T18:32:25-05:00

Document! Document! Document! Back in the day, if you were having issues with a sailor, especially for the same thing, if you documented it at least 3 times, then you could use it for disciplinary action: e.g. XOI, Captain's Mast, etc. If it isn't documented it NEVER happened. If this sailor is being made to sign counseling chits that are backdated for previous infractions, regardless if they were verbally counseled for it, then they should be seeking legal counsel themselves. Chain of command failed to do their job correctly. Said sailor, I hope, takes a strong look at their actions and if they wish to remain in the Navy, and do what they should be doing. Hope it all works for the best.

Response by TSgt David Holman made Nov 4 at 2015 7:20 PM

2015-11-04T19:20:41-05:00

I wouldn't think it is legal, and if I were him (or his supervisor) i would be talking to the ADC before signing anything...

Response by PO1 Craig Alley made Nov 4 at 2015 7:50 PM

2015-11-04T19:50:22-05:00

No, it is False Official Statements by said COC but we know said Officers in COC will not be prosecuted.

Response by CPO Paul Olloren made Nov 4 at 2015 7:58 PM

2015-11-04T19:58:20-05:00

That's wrong. That's a technicality for the COC they can't and should not pursue.

Response by PO3 Cris Smyth made Nov 5 at 2015 1:33 AM

2015-11-05T01:33:22-05:00

I would talk to a JAG. What the command is doing sounds shady. My wife is a Commander in the CG as a JAG. This is the type of stuff they will help with and go to mast with you if need be.

Response by Sgt Jerami Ballard made Nov 5 at 2015 2:18 AM

2015-11-05T02:18:09-05:00

Whatever Sailor is backdating the chits failed themselves, their command, and the Navy, but not the problem child in question.

And no, it's against the counselling orders in all branches and possibly an offense under the UCMJ to do so.

Response by 1SG Michael Blount made Nov 5 at 2015 4:30 PM

2015-11-05T16:30:07-05:00

Legal? Probably. Ethical? Definately not

Response by PO2 Michael Dick made Nov 5 at 2015 8:34 PM

2015-11-05T20:34:42-05:00

No they can't they can only do current events. My chain of command tried that with me but have failed due to the CO knowing what was going on. I stood my ground on what I knew was right and my chain of command didn't like that.

Response by MSgt Private RallyPoint Member made Nov 5 at 2015 9:12 PM

2015-11-05T21:12:52-05:00

No....but you can do one with the current date and reference the events if they were not previously mentioned .....however the rebuttal from the individual would simple be something like "if this was so horrible why did you wait till now to write it up".....basically unless it's a legal thing that was under investigation already or had new evidence the widow of opportunity has probably passed. Would recommend ADC or consult private lawyer for your friend.

Response by PO2 Michael Ponder made Dec 5 at 2015 9:32 AM

2015-12-05T09:32:22-05:00

Time for a jag officer to step in