Posted on Oct 30, 2015
Can counselling chits be back dated to past events that weren't documented at the time?
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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
http://www.public.navy.mil/bupers-npc/reference/milpersman/1000/1600Performance/Pages/default.aspx
Navy
Punishment
Counseling
Article 15
Posted >1 y ago
Responses: 49
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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.
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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.
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COL (Join to see)
Agreed. That doesn't change the legality of it though. It is within regulations. It can be done. There are some very small people.
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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!
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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.
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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.
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SCPO Joshua I
Oh, I would sign the chits, and I would date my signature on them correctly, and I would point out in the remarks block that the document was presented to me for signature on whatever date it was with a false date at the top of the document, in a clear attempt to build fraudulent documentation for an NJP. That chit would never make it into a legal package, because the chain of command would be putting themselves on report with it.
I kind of disagree on counseling -- not all counseling needs to be documented. I never document a first offense unless it's something really serious -- a second offense for the same thing, certainly -- or if I feel I actually need to assign EMI that's going to be documented as well of course.
I also will shred counseling chits when I feel the problem that led to them has been corrected. The last one I did I actually called the Sailor into the office, pulled the chit out of the divo record in front of them, handed it to them and had them run it through the shredder (I also gave back the designation letters I'd pulled at the same time). Kind of a way to make a point.
I kind of disagree on counseling -- not all counseling needs to be documented. I never document a first offense unless it's something really serious -- a second offense for the same thing, certainly -- or if I feel I actually need to assign EMI that's going to be documented as well of course.
I also will shred counseling chits when I feel the problem that led to them has been corrected. The last one I did I actually called the Sailor into the office, pulled the chit out of the divo record in front of them, handed it to them and had them run it through the shredder (I also gave back the designation letters I'd pulled at the same time). Kind of a way to make a point.
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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.
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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.
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SCPO Lee Pradia
SCPO Anthony Wingers, yeah, DRB'S were needed in my day as I retired in 2008, to handle at the lowest level. These dwys, almost everything is handled via NJP, some commands are better than others at leadership. I've experienced a command where a CO would come in on Sundays to hold NJP, it didn't matter Officer or Enlisted, he hammered everything.
Prior to my retirement, I had an E6 pull a knife out on me while we were both in uniform and on base, I disarmed him, cost me a letter of reprimand via NJP for assault, he was charged with assault and fined. That was one of the lowest points in my career. Anyway that's another story.
Prior to my retirement, I had an E6 pull a knife out on me while we were both in uniform and on base, I disarmed him, cost me a letter of reprimand via NJP for assault, he was charged with assault and fined. That was one of the lowest points in my career. Anyway that's another story.
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PO1 Aaron Baltosser
I'm a big fan of handling things at the lowest level. It makes corrections often work more effectively, and allows the Sailor a chance to grow and improve.
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Suspended Profile
Unfortunately, there are commands out there today that believe that NJP is ok. I was taught by one of the best Chiefs to handle things at the lowest level. So, throughout my almost 30 years that is what I did. But, I did get my butt chewed by one CO that found out that I was not forwarding everything up the chain-of-command so that he could make the decision of whether the situation required more than just the counselling done at a lower level. I still kept doing business the way I was taught even when threatened with NJP for doing so. But, on the other side of the tracks I did have Skippers that if I heard they found out about a situation I could walk into their stateroom and tell them "I'd like to handle this at the "lowest level" (LPO, LCPO, Div O, Dept Chief, etc)" and would get zero flack from them, even if the Sailor screwed up again later.
SCPO Joshua I
SCPO Anthony Wingers - Nailed it. I was taught by an old crusty BMCS years and years ago that taking a Sailor to CO's mast for divisional disciplinary problems is the same as going to the CO and telling him "Sir, I'm such a fucked up leader that I can't train my Sailors or get them to follow the rules -- could you do that for me?"
I can still count the number of report chits I've written personally on the fingers of one hand in a 20 year career.
I can still count the number of report chits I've written personally on the fingers of one hand in a 20 year career.
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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.
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PO1 (Join to see)
Might want to do your research on that shipmate... being out at sea is the only time a CO can deny request for courts martial.
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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.
Date the counseling for the day it was given. If your chain of command has an issue with it, see JAG.
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SGM (Join to see)
This too is weak. If a chain of command is considering Art 15 the discrepancies should be well documented in writing along with a plan of action to overcome the issue, unless the behavior or performance issue was so egregious it warranted an immediate response; or was proven through inquiry or investigation.
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PV2 Ana Waters
I concur with this from the navy side as YN and for working with JAG. If they post date it then that are creating a false/forged document.
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