How should I handle the punishment and flag from a UCMJ action when there is lost paperwork?

Your spot on with your response yet the most important thing you left out. I learned prior to becoming an E-5; if you have a Soldier that cannot seem to get him/herself together then you must write that down on paper. Then sit down with the Soldier, counsel them on their deficiencies, and have them sign it.

A good Commander will want to see the “paperwork” before he/she makes a determination of restriction or Company grade Article 15. I’ve seen too many “no responsive” soldiers get away from punishment because the paper trail was not there.

I counseled all my Squad leaders when I was a platoon Sergeant on the basics and the importance of counseling your soldiers.

SSG Gary R Peek - While you have a point with the paper trail, the problem here is that the paper trail is not in question. The SM is not saying he did not do the offense that warranted the Article 15 but rather that after the fact, after the decision was rendered, the charge read, the decision made, flag in place and punishment pending that the counseling statements have gone missing. Bear in mind that this already passed muster with JAG which had to review the charge and associative documents and the SM had to go before JAG as well to avail himself of their counsel.

Not so fast on his punishment and having a flag lifted. When the punishment has been completed there will be a “cooling” off period where the Soldier is evaluated after the punishment for about 90 days. He/she must prove to their direct chain of command that they have taken full responsibility for their behavior and have learned from their defaults.

Normally a Commander will ask the Soldiers direct chain to update him/her of the progress the Soldier has made each month. After the flag has been reevaluated (normally after the 90 days) the Commander will re-evaluate the progress/lack of progress the Soldier had made. If the Commander (with input of the direct supervisors) decides the progress was been sufficient the flag will be removed. If the Commander decides that the lack of progress demonstrates lack of progress he/she will then be set for discharge. Furthermore The Commander must decide at that time if the behavior is gregarious enough to warrant a Dishonorable discharge or that the lack of progress has not met the Military standards but was not egregious enough then he will have to discharge the Soldier from active Duty with an Honorable discharge. Either way the DD214 will be annotated as to the discharge decision.

Just an insight into how things could go.

SSG Gary R Peek - Ah No, that is a direct violation of AR 600-8-2
Flags are not a punishment but an administrative tool.
2-1
"b. Flags are not to be used for punishment or restriction, but only as an administrative tool.
c. The Flag is not the final disposition. A Flag is emplaced during some type of disciplinary or administrative action
until that action is concluded.
d. The Flag should be initiated within 3 working days after identification of the Soldier’s unfavorable status and
removed within 3 working days after determination of the final disposition."

2-9 Removal of Flag
"b. Rules for removing a Flag are as follows:
(1) Charges, restraint, confinement, court-martial, nonjudicial punishment and absent without leave (including
alcohol related incidents). Remove the Flag when the Soldier is acquitted at court-martial or civilian trial and no other
adverse action arising from the incident or charges is contemplated; when UCMJ action is closed or dropped without
action; or when punishment from court-martial, civilian trial, or nonjudicial punishment is completed. If a court-martial
has adjudged a punitive discharge, the individual will remain flagged until the conviction is final in accordance with
Rule for Courts-Martial 1209, Manual for Courts-Martial. If there is a suspension of punishment (for example, under
UCMJ, ART 15) or the imposition of probation or parole (usually for civilian misconduct), that individual will remain
8 AR 600–8–2 • 11 May 2016
flagged until the suspension, probationary, or parole period is over. This does not include suspension of a driver’s
license. If the duration of punishment, suspension, probation, or parole is over 1 month, the unit should consider if the
adverse action Flag should be converted to a transferable ”Punishment Phase” Flag, if appropriate. In this case, the
“Adverse Action” Flag is lifted the same date the “Punishment Phase” Flag is initiated. If the Soldier receives
punishment and subsequently appeals, the Flag will be removed when punishment is complete; the Soldier will only
remain flagged if the appeal puts the punishment on hold or suspension until either the adverse action is revoked or the
punishment is complete. A Flag on a Soldier who is on a HQDA promotion list may only be removed by Commander,
U.S. Army Human Resources Command (AHRC–PDV–P), 1600 Spearhead Division Avenue, Department 472, Fort
Knox, KY 40122–5407 or [login to see] for Active Component or USAR Soldiers or by
Director, Army National Guard (HRH–I), 111 South George Mason Drive, Arlington, VA 22204–1373 for ARNG or
ARNGUS personnel. This includes officers promotable to 1LT through COL, warrant officers promotable to CW2
through CW5, and enlisted Soldiers promotable to SFC through SGM/CSM."

What all that means is that with the above soldier receiving an Article 15 he would have been flagged from the point where the action occurred to incur the Article 15 until the point where the punishment was complete. IE if he had to serve 15 days extra duty they the punishment would be complete on the 15th day of ED and the flag then submitted to be lifted. It is required that this be done within 3 days of completion of punishment.