Hypothetically speaking and excluding General Courts Martial what if the 1SG or CSM had UCMJ authority with commanders as the reviewer?

COL Roger Lintz — Thu, 01 Jan 2015 16:57:41 -0500

I've led two platoons, a detachment, three companies one of which was in combat, a battalion, and a deployed Task Force in combat and I have to say my least favorite requirement was to administer non-judicial punishment to Soldiers. I hated it. Don't get me wrong, I did my job. I've often wondered if NCO's had the authority and officers were the reviewer would the effect on discipline been any different. Let's face it as an officer whenever I walked into a new job my counterpart almost always had a great deal more experience than I did and frankly I seldom disagreed with their recommendations when it came time to administer punishment. As a new company commander I had a grand total of 6 years as an officer while my 1SG had over 18 years of experience. I always gave him his due respect and included him in all aspects of the UCMJ process but not all officers are the same. Do all officers consider the full effect of giving a young PFC a company grade ART-15 and maxing him out versus a summarized and suspending everything? Would an NCO have greater appreciation for the impact punishment would have on that same PFC? Trust me officers don't receive extensive training on how to be a judge, jury, and executioner in any of our basic, advanced, or senior service training courses and as far as I know neither do NCO's. Therefore it comes down to personality and judgement of the particular officer responsible for making that potentially career ending UCMJ decision. Some officers are extremely quick to pull the trigger without ensuring that the CoC had done their due diligence prior to elevating to the command level. I insisted on seeing the counseling packet and hearing from the entire CoC and believe it or not they were not always in agreement on the recommendation. I told my leaders that I was not their personal sledge hammer or shortcut to problem resolution. I expected problems to be handled at the lowest level where appropriate. However, some of my command peers handed out non-judicial punishment like candy on Halloween and I sometimes thought they were just too eager to eat their own. Everyone makes mistakes and I often thought that, "there but for the grace of God go I." I understand that Soldiers must follow the orders of the officers appointed over them or we would cease to be an effective fighting force but what would be the impact on the force if NCO's handled punishment? Would it have a positive or negative effect on the Esprit de Corps of the unit? Would it negatively impact the commander's ability to effectively lead? Thoughts?

Response by LTC Jason Mackay made Jan 1 at 2015 5:36 PM

LTC Jason Mackay — Thu, 01 Jan 2015 17:36:46 -0500

All the authority to administer UCMJ flows from the General Court Martial Comvening Authority, usually the Division Commander/ senior commander down to subordinate commands summary and special courts martial authority. I am sure there is also statuatory obstacles as well, but at a min you would have to change AR 600-20. I have worked well with the NCO leadership but I do not think this is the way to go. This is a command responsibility and burden. One can be advised but it can't be shared .

Response by SGT(P) Khalid Wise made Jan 1 at 2015 6:31 PM

SGT(P) Khalid Wise — Thu, 01 Jan 2015 18:31:51 -0500

COL Lintz and LTC Mackay,

I whole-heartedly agree that input and advisement by Senior Enlisted Leaders in the CoC is essential. Moreover, while I don't believe this responsibility could or should be delegated or shared with Senior Enlisted, I do believe that some type of Senior Enlisted led instruction on the pros, cons and effects of these types of decisions shared with junior officers in their formative years ie. PLT LDR, CO XO, CO CMDR (2LT-CPT) yield better and fairer outcomes without demolishment of a salvageable young PFC-SGT, IMHO...

Response by 1SG Clifford Barnes made Jan 1 at 2015 6:54 PM

1SG Clifford Barnes — Thu, 01 Jan 2015 18:54:09 -0500

I think that we as NCO Leaders have a better idea and tend to teach mentor in those areas. Don't get me wrong sometimes you have to. Treating with respect pride and dignity we can make a difference. I learned along time ago you don't have to scream yell or cuss to gain respect.

Response by SFC David Cantu Jr. made Jan 1 at 2015 7:12 PM

SFC David Cantu Jr. — Thu, 01 Jan 2015 19:12:35 -0500

Sir,

This is a very good discussion and, in my opinion, should be a subject of LPD across the Military so everyone has a better understanding of the impact UCMJ can have on a career. I will say that if NCOs were given the authority to administer UCMJ action, it probably wouldn't make a whole lot of difference. The NCO Corps also has its share of individuals who would hand out UCMJ like candy. I have recently retired after 20 years of service and one observation I have made throughout my time is that older doesn't necessarily mean wiser. I have seen SR NCO's with 25+ years of service act less mature than an E6 with 6 years even more so during the last 3-5 years of my career. Good judgement and decision making on matters like UCMJ rest on the shoulders of the individual who is holding the hammer and, let's face it, not everyone who holds the rank or position deserve to be there.

Response by GySgt Private RallyPoint Member made Jan 1 at 2015 7:21 PM

GySgt Private RallyPoint Member — Thu, 01 Jan 2015 19:21:40 -0500

I think this is a bad way to go. The enlisted have a saying that there are "enlisted matters" and "officer matters". NJPs should remain the responsibility of the Commanding Officer. Enlisted have ways of conducting discipline for minor infractions and if the infraction is of a nature that an NJP is warranted, the the CO should know and should be responsible for the outcome.

Response by TSgt Joshua Copeland made Jan 1 at 2015 8:12 PM

TSgt Joshua Copeland — Thu, 01 Jan 2015 20:12:33 -0500

In 16 years, I have never had a Commander that did not discuss Art15's with the unit CEM (E9), Shirt, and usually the Flight Commander and Superintendent. This is in additional to Legal reviewing it as well. I believe leaving it at the Commander is best, not because NCO's/SNCO's are not competent, but because it ensures that NJP is fair across the unit.

Things go horribly wrong when Commanders act in a vacuum or worse yet, to make themselves "promotable." Those that listen to the advise of their NCO's/SNCO's might have 1 mad SM, but the unit will know that it was fair.

Response by CSM Michael J. Uhlig made Jan 1 at 2015 8:53 PM

CSM Michael J. Uhlig — Thu, 01 Jan 2015 20:53:37 -0500

The punishment should remain with our Commissioned Officers, our NCOs have tools available to fix behavior and performance.

We (NCOs) take care of infractions and fix behaviors through the use of corrective training...when a recommendation for UCMJ happens it means the infraction is indicates the service member will not change the behavior or that the incident is so severe that it requires UCMJ punishment.

Always recommend taking the position that the commander yields the power of a nuke in that he can reduce in rank, restrict, impose a monetary fine and also sentence the service member to extra duty.....we ought not use that weapon unless other means of corrective training have failed.

Response by CMSgt James Nolan made Jan 1 at 2015 8:56 PM

CMSgt James Nolan — Thu, 01 Jan 2015 20:56:34 -0500

COL Roger Lintz Sir, I have been the First Sergeant providing guidance to the Commander on 16 Article 15s. Not one of them made him happy (and I can speak to that with absolute certainty). What he did, and I respected, was the same that you are speaking of. He would look at everything, have conversations with leadership and then ultimately make his own decision. He never strayed far from what was discussed and never once took an iota of pleasure from having to administer them. The troops knew this as well.

I think that authority needs to stay in the hands of the Commander. I strongly feel, as you apparently do as well that counsel should be taken from your trusted SNCO corps, but ultimately that decision is yours. SNCOs and NCOs are in the troop business not the issuance of formalized discipline business. I think we have enough going on to leave that to the Boss. That also gives us the ability to try and resolve where the resolving can take place. When it gets to the level of formal discipline, the issue is simply not fixing.......

Response by COL Jason Smallfield, PMP, CFM, CM made Jan 1 at 2015 9:11 PM

COL Jason Smallfield, PMP, CFM, CM — Thu, 01 Jan 2015 21:11:52 -0500

Good hypothetical question since it should drive people to better understand why the military does things the way that we do things. Short answer is no, 1SGs/CSMs should not have UCMJ authority. Reasons include:
- There is a difference between a commissioned officer and a non commissioned officer (NCO) in terms of legal authority. Changing the legal authority to accomidate things change would mean several 2nd and 3rd order changes. Goes to cost benefit analysis.
- One of the principles of the military is unity of command. Simply stated this means one person, and only one person, is in charge of a formation. This change would create two people in charge and therefore disperse command authority.
- 1SG/CSMs are critical parts of a formation's command team but their job is to advise and assist the CDR. A 1SG/CSM can and should be part of the process before it gets to the CDR but the final decision is, and must be, the CDR's decision alone. For example, every formation has a "CDR's open door policy" but this policy normally dicates that the chain of command be used before seeing the CDR. Soldiers normally never see a CDR without seeing the 1SG/CSM first.
- A commander is responsible for two things. Everything a formation does do and does not do. UCMJ is one of the tools that a commander uses to carry out his/her responsibility.
- What does "the commander would be a reviewer" mean? Does this mean appeal authority? If not, would the commander have veto authority over a 1SG/CSM's decision? If so and a CDR exercised this veto authority then what does that do to a 1SG/CSM's authority and credibility?

Response by CMC Robert Young made Jan 2 at 2015 5:45 AM

CMC Robert Young — Fri, 02 Jan 2015 05:45:02 -0500

Sir, as a member of the Chiefs' Mess at our unit, and the Command Master Chief, I would offer that only officers should retain the authority to administer UCMJ. We (CSM, CMC, 1SG, etc) are here to advise and assist, but not usurp the position/capacity/responsibility of the CO. A good CO should have cultivated a positive relationship with the SNCO corps particularly the command senior enlisted leader in his sphere of influence before such things occur. This relationship should facilitate honest and open dialog between the command cadre with the end game being a just and fair decision which hopefully improves overall performance of the unit while also salvaging the offending member from career ending behavior.

I have served as the Preliminary Inquiring Officer for several issues which were forwarded for further UCMJ action. I have also served as a member of Chiefs' Counsel (a formal counseling vehicle for members with behavior issues), and as the CMC have made recommendations to the CO regarding UCMJ actions. They ranged from simple counseling statements all the way to courts martial. The CO took no joy in any of these cases, but the fact that a trusted SNCO was there as a resource reduced his burden.

Response by 1SG Mark Colomb made Jan 2 at 2015 12:20 PM

1SG Mark Colomb — Fri, 02 Jan 2015 12:20:43 -0500

Good points all. From my foxhole, I believe 1SGs and CSM, if given the responsibility (word choice specific, vice authority) to administer UCMJ they would be able to do it. I would still want the commanders to be responsible for it however. Often times NCOs are, for good or bad, emotionally attached to the Soldier. Allowing the NJP to be meted out in the NCO ranks leaves the possibility for a perception of impropriety, if not an emotional judgement altogether. Leaving NJP in the realm of officers allows that one step back from the situation to allow the emotion to temper and allow reasoned thought to intervene.

Response by CMDCM Gene Treants made Jan 3 at 2015 9:09 PM

CMDCM Gene Treants — Sat, 03 Jan 2015 21:09:11 -0500

COL Roger Lintz , Sir, as Command Master Chief on two ships I believe that my Commanding Officers relied very heavily on the word of our Chief Petty Officers to determine the outcome of every case referred to Mast (Article 15 - UCMJ). Our process (and is/was not the same on every ship) was that any case referred for possible Mast was first reviewed by a CPO Board which I Chaired. The Board consisted of 3 to 5 Chief or Senior Chief Petty Officers (E-7 or 8) in addition to myself and any other Master Chiefs available.

The accused, his Leading Petty Officer, Leading Chief, and any witnesses were interviewed, facts, if any were determined and a recommendation was made to the Executive Officer concerning further action (referral to the CO or dismissal). After his review the XO would either concur or make his own recommendation (he could dismiss or referrer).

At any point along the COC a referral to CM could also be made and the CO could act on them or keep the case at Mast. If the case went to Mast for any reason, recommendations might accompany the referral. At Mast the Command Master Chief was always there to represent the accused and make sure his/her best interests were fully represented. AT Mast the CO could of course impose punishment, suspend, or dismiss.

Do I need to have to have UCMJ Authority? No, Sir. I believe our system works very well as it is with the Commanding Officer holding the ultimate and final decision. He/She has all of the advise needed to make a decision and MORE at times. In Navy, when we are at SEA, the Commanding Officer IS IT! Nothing needs to come between him and his authority.

If the CMC is worth the pay he/she earns, then advise given is listened to and cherished. Many times I have sat with the CO and discussed the day, what has happened and what is going to happen. I have listened to his problems and unburdened myself, the relationship between the CO and CMC has to be totally trusting and open or it will not work.

Response by SGM Erik Marquez made Jan 4 at 2015 5:58 PM

SGM Erik Marquez — Sun, 04 Jan 2015 17:58:05 -0500

1st
From Section Leader and my PL/ CO asking for my recommendations on UCMJ
To platoon sergeant and my PL/CO, BN CO BDE CO asking for my recommendations on UCMJ
To 1SG and my CO, BN CO BDE CO asking for my recommendations on UCMJ
I can not think of a single time UCMJ did not go exactly as I thought it should, not harsher or lesser.
So from my experiences I would say it works as designed.

NCO's have many tools when supported by the officers to deal with minor transgressions. All the way to separations proceeding that when done right are started at, documented by NCO, s supported by officers and honestly discussed and decided upon before it starts, so once worked up, is all but a rubber stamp by the approval authority. IOW it was decided as the way to go before the first required"counseling" is done.

Officers as the approval authority for UCMJ makes it a stepped, increase in dealing with minor offenders. It is an obvious and understood escalation of behavior modification that every Soldier clearly sees and understands.

Response by TSgt Robert R. made Jan 5 at 2015 1:31 PM

TSgt Robert R. — Mon, 05 Jan 2015 13:31:55 -0500

The Military Command Structure and UCMJ are there for a reason, it set out the responsibilities for every individual from Private soldier to Chairman of the Joint Chiefs. The responsibility of an NCO is to train, maintain and manage those soldiers under them. They can counsel, correct and reprimand their soldiers; also, they can recommend Article 32 investigation and if necessary NJP. There are other useful tools that be applied to discipline and correct errant enlisted, such as Correctional Custody (at least in the AF - I don't know about the other services).
I firmly agree, sir with your assertion that disciplinary correction should be accomplished at the lowest level with best utilization of resources. Enough said except – “ALL THE WAY” - 20th Engineers (Airborne) ( At least in my times )

Response by MCPO Private RallyPoint Member made Dec 28 at 2015 7:39 PM

MCPO Private RallyPoint Member — Mon, 28 Dec 2015 19:39:06 -0500

I'm amazed that a Coast Guard CWO2 and a Master Chief have answered and not brought up a glaring difference between the services.

In the Coast Guard, E-7's and above can be placed in full-fledged COMMAND of units, and this includes being able to use full UCMJ authority. Of course, the units are smaller (usually 50 personnel and fewer), but they have legitimate command of those units. They also run the risks of all Commissioned Officers with that command - possible reliefs for cause for lack of confidence and all the other wonderful things that go along with it.

Why is this so hard to imagine, especially when we've been doing it successfully for over 100 years?

Response by SGT Lawrence Corser made Jan 1 at 2016 11:52 AM

SGT Lawrence Corser — Fri, 01 Jan 2016 11:52:40 -0500

I think that would be pretty good for NCO's as a lot of involvement with officers some times mucks up the system. Officers have better stuff to do.

Response by SGM Erik Marquez made Jul 27 at 2016 5:15 PM

SGM Erik Marquez — Wed, 27 Jul 2016 17:15:48 -0400

"COL Roger Lintz
Hypothetically speaking and excluding General Courts Martial what if the 1SG or CSM had UCMJ authority with commanders as the reviewer?"

What if, if only....... That punk Lt that walked across the grass at the DFAC, many he would have been toast....

And that folks is the nonsense mentality I see from way too many in what they perceive otherwise stereotype senior NCO's
Are there those types? of course, as there are officers that should not be in charge of a #2 pencil

But like the many officers I have worked with I would led, walk next to or follow anywhere, there are many senior NCOs that I worked with, most in fact that would do the authority justice (pun intended) if UCMJ athority was vested in them to administer.

Response by SGT Gary Brown made Apr 19 at 2017 9:12 PM

SGT Gary Brown — Wed, 19 Apr 2017 21:12:38 -0400

I, as a young E-4 once was almost 6 hours late returning from a 4 day pass. Though I did not miss a movement this is still punishable under the UCMJ. I had a 1SG who gave me 5 days extra duty, 5 hours a day, rather than recommend punishment under the UCMJ to the CO. This kept me eligible for promotion and gave me a greater respect for the NCO CoC.

Response by LTC Private RallyPoint Member made Apr 19 at 2017 10:11 PM

LTC Private RallyPoint Member — Wed, 19 Apr 2017 22:11:48 -0400

COL Roger Lintz Sir, I think that the reason that the military gives it to the officers is for the fact that for most issues there are opportunities for the NCOs to handle the situation prior to making to the officer. Handle it at the lowest level. With that you know you messed up if a Commander is calling you into his/her office. It might add to the effect. Also, officers are given different authorities than enlisted to spread it out and have some lanes. If you give that to senior NCOs they lose their advisor role on one of the most crucial items within an unit. I leaned on my first sergeant's opinions and most of the time we agreed on what to recommend to higher or to do at our level. If we disagreed ultimately I had the final decision. You take that away from the officer they may be emboldened elsewhere and the Commander will have virtual no authority as you have the "carrot: but not the "stick". Why listen to the Commander if he/she cannot punish me but only the 1SG/CSM. Just my thoughts on the subject.

Response by SMSgt Lawrence McCarter made Jun 8 at 2017 12:05 AM

SMSgt Lawrence McCarter — Thu, 08 Jun 2017 00:05:55 -0400

I did learn something here today with both Navy and Coast Guard people mentioning the Chiefs Mess used in some disciplinary situations. That was an interesting concept which it seems worked ok from what I've heard here. Colonel Lintz, sounds like a process where some services do use enlisted people in the process at least for minor offenses. I have Myself worked as a First Sergeant but it seems the Army and Air Force handle that pretty much the same and I presume the Marines as well. It looks like it did get a few of us thinking though. one of the Commanders, a Captain I had served as a First Sergeant for had been a former NCO and sure had the insight from His own experience. He also by the way retired from the USAF as a Full Colonel. I loved working with and for Him.

Response by CMDCM Gene Treants made Jun 9 at 2017 8:14 PM

CMDCM Gene Treants — Fri, 09 Jun 2017 20:14:53 -0400

COL Roger Lintz having thought about this question on and off over the last year I have to say NO. Leave it as IS. As you described some officers, that is the same for some NCO/CPOs also - MANY do not think of the consequences of their decisions and recommendation AT mast let alone if they had the final say. The Officer Corps is paid to make these kind of decisions and LIVE with them so that is where they belong.

BUT, I really do appreciate the thinking you made me do with the question. I have really gone back and forth over it since you posted it. Thanks