Posted on Aug 26, 2016
No magic bullet and stating there will be a UCMJ recommendation for failure to comply on an event-oriented counseling ?
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I've seen a lot of people who don't use the magic bullet on negative event-based counseling statements. Also some will always say, "any future infraction or failure to comply will come with a recommendation for UCMJ" isn't preemptive action/punishment illegal? Also, aren't we supposed to inform a soldier of their rights in negative counseling statements to make them valid?
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Counseling
Posted 9 y ago
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Those are all optional items. Some JAG and TDS may require it. But look at it this way, do you counsel a soldier for a major infraction like murder or a DUI? That usually comes later if at all. If infractions are serious enough, the counseling can explain what the event/situation was and move forward with non-judicial punishment. I have seen a combination of these situations over the last 18 years.
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Okay, that answers the magic bullet piece. On some counselings, like say showing up late, leaving a weapon in a barracks locker, or uniform infractions (females with out-of-regs hair, or men not shaving), I've seen some NCO's say that if it happens again actually on the counseling statement that the soldier will be recommended for UCMJ. One of my coworkers, a former AIT platoon sergeant, said that that is preemptive punishment/action and is not legal making the counseling null and void which seemed interesting to me (I'm also about give a NCOPD class on counseling and I thought this would be a good thing to throw in if it is true). However, I have not found the regulation on this.
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Capt Chris McVeigh
Unless the Army has a different definition of UCMJ than the rest of us that seems like really weird phrasing. Recommendation for NJP/administrative punishment would make more sense. And saying you would "recommend" a punishment is not a punishment, preemptive or otherwise, it's a recommendation and by that definition means the person making it doesn't have any authority to administer the punishment. I would say even threatening punishment for future infractions is fine, you are providing them a warning. The phrase below comes directly from the MCO on separations and is included in formal disciplinary counselings:
"Failure to take corrective action and any further violations of the UCMJ, disciplinary action, or incidents requiring formal counseling may result in judicial or adverse administrative
action, including but not limited to administrative separation."
As to reading people their rights, that only applies to a formal charge for suspected violation of an article of the UCMJ, not a counseling. The idea being that you can't use anything they say as evidence in a court martial if you don't.
"Failure to take corrective action and any further violations of the UCMJ, disciplinary action, or incidents requiring formal counseling may result in judicial or adverse administrative
action, including but not limited to administrative separation."
As to reading people their rights, that only applies to a formal charge for suspected violation of an article of the UCMJ, not a counseling. The idea being that you can't use anything they say as evidence in a court martial if you don't.
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