Posted on Aug 9, 2014
Should an EO complaint hold up a separate Article 15?
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I just recently ran into a situation that has me scratching my head. I have a Soldier who failed to follow orders in a timely manner on two separate occasions during our last field problem. I handled the issue in the field and started writing up the counseling with recommendations as soon as we came off the gunline. The day before I finished the counseling and recommendations, the Soldier filed an EO complaint against another Soldier in the BN. I came to my commander with my recommendation for an Article 15 and was told that it would look like reprisal if we went forward with an Article 15 while there was an active EO investigation. In my mind, I see these as two completely separate incidents that wouldn't look suspicious, but my commander is the one with UCMJ authority.
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Posted >1 y ago
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I think the Commander has been forced into a corner on this. Soldier gets in trouble. Counseling is started. Soldier files EO. Soldier is handed a reprimand for an "unrelated" incident from the EO.
It really could be misconstrued as retaliatory. Not your fault, just bad timing.
We had a dirtbag PFC who went AWOL, showed up constantly late for formation. Was counseled that if it happened again she would be busted in rank. Little later, she filed an EO complaint about something I'm not privy to. Missed a couple more formations. Went AWOL again.
She wasn't busted. In fact, she went from PFC Dirtbag to SPC Dirtbag pretty quickly!
Oh, this send little ripples of hellfire through the Company and taught a valuable lesson to incoming soldiers: file an EO and you are untouchable!
It really could be misconstrued as retaliatory. Not your fault, just bad timing.
We had a dirtbag PFC who went AWOL, showed up constantly late for formation. Was counseled that if it happened again she would be busted in rank. Little later, she filed an EO complaint about something I'm not privy to. Missed a couple more formations. Went AWOL again.
She wasn't busted. In fact, she went from PFC Dirtbag to SPC Dirtbag pretty quickly!
Oh, this send little ripples of hellfire through the Company and taught a valuable lesson to incoming soldiers: file an EO and you are untouchable!
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SGT (Join to see)
I'd let the soldier trip over his own bootlaces. Apparently, he failed to follow orders twice in the field...at least. He is 100% likely to continue because giving the Article 15 to him seems a little too risky, at this point.
I'd say, file it away somewhere, let the EO investigation run its course and as he continues to screw up, address those ( it's still your responsibility and duty to yourself and the soldier) with developmental counseling. They may actually help him to realize his pattern of behavior. If it doesn't, you have done your duty and have a chronological record of misbehavior. And eventually, he will realize the error of his ways or he gets the Article 15 and you have CYA.
I'd say, file it away somewhere, let the EO investigation run its course and as he continues to screw up, address those ( it's still your responsibility and duty to yourself and the soldier) with developmental counseling. They may actually help him to realize his pattern of behavior. If it doesn't, you have done your duty and have a chronological record of misbehavior. And eventually, he will realize the error of his ways or he gets the Article 15 and you have CYA.
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SFC (Join to see)
When in doubt, enlist the BDE JAG team, perhaps the LTC would be right that it may appear as reprisal. However, with the JAG teams backing you would at least be able to intelligently argue your point to the boss with the support of other than common sense arguments. In this situation I definitely see the CDR's point of appearance and unless you've dealt with a congressional or two you may not feel the same. As leaders, there is right and wrong, but there is also the factors that some overlook in regards to risk vs reward. Unfortunately in this situation the CDR sees more risk to damaging the unit than reward in this Soldier receiving non-judicial punishment.
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I think your commander is on point to see the investigation into the EO matter resolved first. The fact that the Soldier in question filed the complaint prior to your counseling indicates that it is not a defensive tactic on the troop's part. In point of fact, I'm left wondering if the two episodes are not in fact related to each other. A climate of (whatever the EO complaint consists of) would likely affect the Soldier's performance. While he/she is still accountable for their own actions, I would counsel patience here and let the situation develop more fully. There will be time to adjust the Soldier's performance (preferably by a member closer to them in the chain-of-command) and quite possibly identify and solve the root problem instead of punishing the symptoms.
If the Soldier is really just a dirtbag, they will self-identify that fact repeatedly and often and you'll have ample opportunity to exercise UCMJ actions, if necessary.
I'm curious, what does your Platoon Sergeant have to say on the subject? I'll wager that would be instructive.
If the Soldier is really just a dirtbag, they will self-identify that fact repeatedly and often and you'll have ample opportunity to exercise UCMJ actions, if necessary.
I'm curious, what does your Platoon Sergeant have to say on the subject? I'll wager that would be instructive.
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CPT Michael Wilke
As a FiSTer, as I'm sure you know 1SG, we have a slightly different chain of command. I am the Fire Support Officer and he was one of my Forward Observers prior to the Fire Support NCO leaving for ALC. Because he was the only other NCO at the time that my FSNCO left, he was moved into the FSNCO position until the E-6 returned. Unfortunately that time included BFIST Gunnery and this is where all the events occurred.
The only answer to the cause/effect thoughts going around is that the events, not following orders, happened before the EO complaint. I was just unable to get to a computer and get the 4856 written on the same day as the incident because we were at the firing line all day. The next day, while I was writing the statements, is when the EO incident and complaint happened. My FSNCO/PSG won't be back for a few more days and unfortunately by then, any decision would need to have been made and acted on.
The only answer to the cause/effect thoughts going around is that the events, not following orders, happened before the EO complaint. I was just unable to get to a computer and get the 4856 written on the same day as the incident because we were at the firing line all day. The next day, while I was writing the statements, is when the EO incident and complaint happened. My FSNCO/PSG won't be back for a few more days and unfortunately by then, any decision would need to have been made and acted on.
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1SG (Join to see)
Ah, the challenges of unique organizations. I can relate from the opposite perspective; my CA company has 32 authorized Soldiers of whom only six are junior enlisted positions. The remainder are seven officers (two O-4s) and a bunch of NCOs. Heck, I have more E-7s then E-4s. This creates its own headaches.
That being the case, this situation puts you on the spot then for sure. If the Soldier in question is your sole NCO present and you are the FLL, you're the man. I would suggest then checking in with one of your sister platoons and "borrow" a PSG to bend an ear.
I've been saying this a lot lately, but there is a reason the Army in its infinite wisdom issues every officer a senior NCO as a partner. This situation is an excellent case in point.
I hope to hear from you how this turned out. This is a challenging situation, sir. You are smart to seek help from your resources. Good luck.
That being the case, this situation puts you on the spot then for sure. If the Soldier in question is your sole NCO present and you are the FLL, you're the man. I would suggest then checking in with one of your sister platoons and "borrow" a PSG to bend an ear.
I've been saying this a lot lately, but there is a reason the Army in its infinite wisdom issues every officer a senior NCO as a partner. This situation is an excellent case in point.
I hope to hear from you how this turned out. This is a challenging situation, sir. You are smart to seek help from your resources. Good luck.
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Sir- don't read too deeply into it. Your commander is doing the right thing and probably has already sought guidance from your unit legal team.
As a BCT Legal NCO, I can see recommending to a command team that they do the same thing. The EO issue, while not directly coming from you, may be a contributing factor of this Soldier's poor performance (however unlikely this may seem) or may be some other contributing factor which may mitigate this Soldier's poor performance/attitude. Not an excuse for it, but maybe something the commander should be made aware of before administering punishment under Article 15, UCMJ.
If it turns out to be nothing but a false accusation, this is also something the commander should probably be made aware of before administering punishment as well. Let the EO investigation play out and see where it goes. While you are correct that they are two separate issues, the EO complaint/investigation can/will play a part in whatever nonjudicial punishment proceedings the commander has planned.
As a BCT Legal NCO, I can see recommending to a command team that they do the same thing. The EO issue, while not directly coming from you, may be a contributing factor of this Soldier's poor performance (however unlikely this may seem) or may be some other contributing factor which may mitigate this Soldier's poor performance/attitude. Not an excuse for it, but maybe something the commander should be made aware of before administering punishment under Article 15, UCMJ.
If it turns out to be nothing but a false accusation, this is also something the commander should probably be made aware of before administering punishment as well. Let the EO investigation play out and see where it goes. While you are correct that they are two separate issues, the EO complaint/investigation can/will play a part in whatever nonjudicial punishment proceedings the commander has planned.
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I am currently serving as an IG. I would never recommend to a commander to let the IG complaint serve out first. Although it may look like reprisal, the commander should look at the facts and if an Article 15 hearing is warranted, to proceed with that. When IGs look at Whistleblower Reprisal cases, we take into account all other actions.
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CPT Michael Wilke, I find myself in complete agreement with COL Randall Cudworth on this one. Document everything, bide your time, and let them tie their own noose. As a young LT, I remember hearing talk about what many 1SGs and CSMs do with problem Soldiers: the term was "building a book." Literally, you ensure documentation is thorough, timely, and unimpeachable, then you simply let the volume of it speak for itself at the appropriate time.
There's also a flip-side to it. It's entirely possible (though less common) that as they see the case against them building, they could have a genuine change of heart moment, and be salvageable. More than that, if you're honest about documenting things, you'll ensure that any good items are also in there, and the change in the Soldier will also become evident. I've seen such documentation showing positive changes save a Soldier when someone who still just wanted them out tried to press the issue.
I also agree that the EO/SHARP/etc. complaint is an old tactic for a Soldier in trouble, but also one worth taking the time to ensure responses are done correctly. I once had a walking, talking security violation in a secure facility, who after confrontation and documented counseling on the regular security issues, filed numerous complaints against everyone who wasn't, like her, a black female for either racial or sexual harassment, or both. The thing is, we should treat every claim as serious and investigate it properly, because that's the only appropriate way to respond to EO/SHARP claims (ever). If, like in my case, the charges are a bogus deflection from the Soldier's own issues, they will eventually sort themselves out and be further evidence against them.
There's also a flip-side to it. It's entirely possible (though less common) that as they see the case against them building, they could have a genuine change of heart moment, and be salvageable. More than that, if you're honest about documenting things, you'll ensure that any good items are also in there, and the change in the Soldier will also become evident. I've seen such documentation showing positive changes save a Soldier when someone who still just wanted them out tried to press the issue.
I also agree that the EO/SHARP/etc. complaint is an old tactic for a Soldier in trouble, but also one worth taking the time to ensure responses are done correctly. I once had a walking, talking security violation in a secure facility, who after confrontation and documented counseling on the regular security issues, filed numerous complaints against everyone who wasn't, like her, a black female for either racial or sexual harassment, or both. The thing is, we should treat every claim as serious and investigate it properly, because that's the only appropriate way to respond to EO/SHARP claims (ever). If, like in my case, the charges are a bogus deflection from the Soldier's own issues, they will eventually sort themselves out and be further evidence against them.
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PV2 Louise De Simone
it's all your word against a good soldier just trying to do their job without being harrassed and bullied. Your "book" is only as good any any goood defense attny. xould tear it apart since arrogance seems a part of your very existence. as far as the security violation you might have a valid complaint since the black female probably had the same attitude as most in the 1970"s which was hate whitey, that i can understand, but my exp. was so bad, that all the officers and NCO"s were walking violations not only in that post, but downtown also. NCO"s were Go-fers and snitches always lying to get in better with the 1st Louie. you should know by now as enlisted we always hated officers, even the saying of the day was "don"t call me Sir I work for a living!!" or have you forgotten as most officers and NCO"s who are go-fers live in their bubble. What was the outcome of the complaint? race is handled in a much differant light than the rest of us.
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MAJ (Join to see)
PV2 De Simone, I don't even know where to begin. Your comment was perhaps the worst semi-random mashing of a keyboard since the writing of the Twilight series.
This thread isn't about how you felt mistreated long ago and harbored a grudge against all the NCOs and Officers to the point where it's still stuck in your craw. It's about a very specific issue of how to deal with a problem Soldier when they are possibly using EO complaints as a smokescreen to avoid punishment. It happens to be something I know from personal experience.
At the same time, it's about the importance of treating the EO/SHARP process appropriately, no matter what you think of a particular claim, because every EO/SHARP case should be taken seriously.
And more than that, it's about the importance of documenting everything that can be useful in a case such as this. Yes, it *can* be used to bury someone unfairly; it can also be used to exonerate them or provide proof of efforts to change/reform.
The issue is integrity, and the best interests of the service. The issue is most decidedly not your vague complaints and accusations.
This thread isn't about how you felt mistreated long ago and harbored a grudge against all the NCOs and Officers to the point where it's still stuck in your craw. It's about a very specific issue of how to deal with a problem Soldier when they are possibly using EO complaints as a smokescreen to avoid punishment. It happens to be something I know from personal experience.
At the same time, it's about the importance of treating the EO/SHARP process appropriately, no matter what you think of a particular claim, because every EO/SHARP case should be taken seriously.
And more than that, it's about the importance of documenting everything that can be useful in a case such as this. Yes, it *can* be used to bury someone unfairly; it can also be used to exonerate them or provide proof of efforts to change/reform.
The issue is integrity, and the best interests of the service. The issue is most decidedly not your vague complaints and accusations.
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CPT Michael Wilke, I would continue to document poor performance and counseling. Do not treat the soldier any differently than any other soldier in this regards. It sounds like your commander didn't say "No" to the article 15, but rather "Not right now". Let the EO investigation run it's course and then, if still warranted, pursue NJP.
While this sounds like a timing issue (the EO complaint was against someone else, not you), the "I've been discriminated against" is a common tactic that is not new. Usually, if unfounded, it has the effects of building the dam higher and higher. Once the dam lets loose, there's just more water going downstream. If the EO complaint is upheld, then documentation of performance before the EO complaint was made is necessary to avoid looking like a reprisal.
They key to this and the majority of other personnel issues you'll deal with in your career is to ensure good documentation of both negative and positive performance (necessary, plus this makes writing the personnel actions a lot easier (counseling, awards, evals, etc).
While this sounds like a timing issue (the EO complaint was against someone else, not you), the "I've been discriminated against" is a common tactic that is not new. Usually, if unfounded, it has the effects of building the dam higher and higher. Once the dam lets loose, there's just more water going downstream. If the EO complaint is upheld, then documentation of performance before the EO complaint was made is necessary to avoid looking like a reprisal.
They key to this and the majority of other personnel issues you'll deal with in your career is to ensure good documentation of both negative and positive performance (necessary, plus this makes writing the personnel actions a lot easier (counseling, awards, evals, etc).
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CPT Michael Wilke
Sir, I have documented the issue on a 4856 and have started the necessary paper trail that my predecessor never left me. Unfortunately I am a little concerned that this could set a dangerous precedent like I said before. I don't want to look as though Soldiers in the future can have an out to just disregard orders they don't feel like following. If I UCMJ one and they find out about the other, it would be too easy to look like there is an uneven standard for action following similar incidents.
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COL Randall Cudworth
CPT Michael Wilke, it will only be a double-standard if you let it be. As I said, it sounds more like a scheduling issue with the EO complaint. Treat the soldier in question equitably with the other soldiers under your leadership. Once the EO matter is settled, then continue on if appropriate.
Have you discussed your concerns with your commander? Find out definitively what he is thinking regarding the EO complaint.
Have you discussed your concerns with your commander? Find out definitively what he is thinking regarding the EO complaint.
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CPT Michael Wilke
I haven't approached my commander since the EO investigation started. The recommendation was due last weekend and I have yet to have a chance to sit down with my CO regarding the issue.
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CPT Michael Wilke any update on how this turned out? I'll bet the followers of this discussion are curious. I know I am.
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CPT Michael Wilke
Still waiting for the findings of the EO investigation to be reviewed by the commanders involved. An update should come by weeks end.
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Treating this as a hypothetical and a learning point, consider how you would proceed as a commander. EO and EEO are powerful methods of resolving disputes, and rightfully so. Maybe your commander believes that the Art. 15 could be viewed as connected to the EO complaint, in which case he has to pick his fight. He is in the seat of a prosecutor, and has to decide if the costs and risks are worth the fight. The Art. 15 might be discharged, in which case pursuing it would be a bad idea, or the infractions might be dealt with in a less official way. From personal experience, I would recommend summary or NJP if this is a first-time or second-time offense; think crawl-walk-run : NJP-summary-"throw the book at em."
On the other hand, leaders are supposed to do what is right, and officers are supposed to voice unpopular opinions...until told definitively to stop.
My general advice for Article 15s is this; if you aren't willing to go to court-martial over the offense, don't push the Article 15. If, however, the cost of court-martial and the punishment both fit the crime, go for it.
On the other hand, leaders are supposed to do what is right, and officers are supposed to voice unpopular opinions...until told definitively to stop.
My general advice for Article 15s is this; if you aren't willing to go to court-martial over the offense, don't push the Article 15. If, however, the cost of court-martial and the punishment both fit the crime, go for it.
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I would go talk to BDE legal, if the guy is a shit bag he will "fail to follow a order in a timely manner" again. Also, If it was only two incidents, your BDE legal may not even say you have enough material to move forward on a a article 15, and is a company grade article 15 for "failing to follow an order in a timeley manner" really worth the squeeze of a possible reprisal 15-6?
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PV2 Louise De Simone
Hey Louie, what was the order? why dont you tell the truth ? aren't you just angry that some soldiers dont respond to your bullying in the manner to which you try to force them to? which would be physical? why don't you guys go back to field stripping cig butts since that's all your good for? opportunists, bullies, are all you Shavetails are, Grow Up!
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When you say against another Soldier in the BN; is that Soldier also under you leadership?
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