Posted on Aug 30, 2022
Is it a Privacy Act or UCMJ violation for an NCO to disclose to an employer my having been on permanent profile and receiving an Article 15?
16.5K
270
88
26
26
0
So, I am on terminal leave. Actively looking for employment in the civilian world, I added my old NCO down as a reference. But that NCO was recent to the unit, and probably was around for 2-3 months before I out-processed. So, in that police department I applied for when doing background investigations, the background investigators called all the references, nothing but good words, from old jobs, family, and former managers and supervisors. But when coming to the one reference from the military side, called that NCO, he proceeded and said he did not really know me that much, but went ahead and hand the phone to that other NCO that was there, another NCO he was there to replace as the MCS and will be PCSing soon. Then he went ahead and disclosed about me was being on a permanent profile, and was using it to not do my job. And to make it worst, disclosed about an article 15 that I've received. Art .15 that was a company grade, I ETSed already, already got handed my files from the training room from the unit, and I out-processed them, records should have been destroyed or archived. Informations that were private, you weren't there at the hearing. Was not up to you, or had the authorization to disclose to anywho, and on top of that military records to a civilian entity. I want to know if was that in the right if was it a privacy act violation or any UCMJ violations at all, and what is the way to proceed to report it and to whom/where.
FYI, yes, the Art. 15 was already willingly disclosed to the employer at the time of application. I just want to know, was that right?
FYI, yes, the Art. 15 was already willingly disclosed to the employer at the time of application. I just want to know, was that right?
Posted in these groups: 
UCMJ
UCMJ
Edited 1 y ago
Posted >1 y ago
Responses: 41
53
53
0
First, UCMJ results are not private. Units frequently post the results of UCMJ in a blotter report, online or on the wall of the unit, as a warning for others. While the proceedings are restricted unless specifically opened, the results can be posted without the PII. It doesn't take a detective to connect "PFC accused of ____ received 15/15" to the person who did it.
Second, information is not private. Records are private, information is knowledge and is frequently spread around until its common knowledge. Information that is publicly known is not protected. If someone transferred the records of your UCMJ without authorization, that would be a violation. That NCO might not have been at your hearing, but they knew what happened.
Third, references are for checking your reputation. They want to know what kind of person are you to work with, what type of character you have, and anything else that can't be adequately portrayed in a record. They want to reveal any hidden traits or previous issues that could make you a liability. Governments are financially liable if you mess up as a law enforcement officer, they have a responsibility to ensure you won't be the face of a future multimillion dollar lawsuit.
Fourth, sharing that you were on profile is not private. Back to the common knowledge part, if someone was obviously pregnant and you told that to another person, that would not be a HIPAA or privacy violation. Providing the medical records would be. While your employer cannot ask certain questions about disabilities because of ADA, your references are free to say whatever they know from personal knowledge and experience.
You are under a background investigation. The investigator may talk with anyone about anything they believe will reveal information about you as necessary to complete their task. They may even follow up with another phone call to the NCO. If this was a federal investigator they might send out an investigator to the unit to meet with the NCO and any other people who may have known you. With most background checks you will have already signed a release of information, I can't imagine that you didn't for this one. A release of information authorizes anyone holding relevant documents, such as UCMJ proceedings, to be released to the investigator. Not that any have been released.
Finally, you have not ETSed, you're still in the Army on leave. Until the day your transition leave ends, you're still an active duty Soldier. I'm pointing that out because you seem to be confused about the difference. While you're trying to sharpshooter someone over the disclosure of information you think is protected, you can't even identify if it was veterans records or soldiers records you are talking about. It sounds like you don't know what is supposed to happen to your records, when they are shredded or how long they are kept for. Also, again, information is generally free and only physical records are protected in most cases.
Second, information is not private. Records are private, information is knowledge and is frequently spread around until its common knowledge. Information that is publicly known is not protected. If someone transferred the records of your UCMJ without authorization, that would be a violation. That NCO might not have been at your hearing, but they knew what happened.
Third, references are for checking your reputation. They want to know what kind of person are you to work with, what type of character you have, and anything else that can't be adequately portrayed in a record. They want to reveal any hidden traits or previous issues that could make you a liability. Governments are financially liable if you mess up as a law enforcement officer, they have a responsibility to ensure you won't be the face of a future multimillion dollar lawsuit.
Fourth, sharing that you were on profile is not private. Back to the common knowledge part, if someone was obviously pregnant and you told that to another person, that would not be a HIPAA or privacy violation. Providing the medical records would be. While your employer cannot ask certain questions about disabilities because of ADA, your references are free to say whatever they know from personal knowledge and experience.
You are under a background investigation. The investigator may talk with anyone about anything they believe will reveal information about you as necessary to complete their task. They may even follow up with another phone call to the NCO. If this was a federal investigator they might send out an investigator to the unit to meet with the NCO and any other people who may have known you. With most background checks you will have already signed a release of information, I can't imagine that you didn't for this one. A release of information authorizes anyone holding relevant documents, such as UCMJ proceedings, to be released to the investigator. Not that any have been released.
Finally, you have not ETSed, you're still in the Army on leave. Until the day your transition leave ends, you're still an active duty Soldier. I'm pointing that out because you seem to be confused about the difference. While you're trying to sharpshooter someone over the disclosure of information you think is protected, you can't even identify if it was veterans records or soldiers records you are talking about. It sounds like you don't know what is supposed to happen to your records, when they are shredded or how long they are kept for. Also, again, information is generally free and only physical records are protected in most cases.
(53)
(0)
SFC Jerald Bottcher
Though you make good points about how things are. I have to disagree with you. The NCO in this case volunteered negative information and was not listed as a reference. The only person that call should have been forwarded to is the Plt Sgt, or 1SG in this case. During a background investigation they are not supposed to just speak to anyone that volunteers information. If they were going to talk to your old chain of command while doing a background check they would have talked to your 1SG or commander period. and for all I know that "other NCO" could have been a dirtbag NCO that had it out for you. Making any negative comments about you without proof or documentation is not good. He does not get immunity from civil actions just because he is on active duty.
(9)
(0)
SFC (Join to see)
SFC Jerald Bottcher the question was "is this a privacy act or UCMJ violation..?"
The answer is that it was not illegal, not covered by the privacy act, and not a violation of UCMJ.
If the veteran wants to press a civil suit, that's a different question and not within my area of expertise, however I doubt much would come of it.
The answer is that it was not illegal, not covered by the privacy act, and not a violation of UCMJ.
If the veteran wants to press a civil suit, that's a different question and not within my area of expertise, however I doubt much would come of it.
(1)
(0)
TSgt Paul Munsel
SFC Jerald Bottcher - Many times the person in law enforcement doing the backgrounds are not Veterans or Reservists/NG, so they have no idea of how the military works. I've done backgrounds before I retired from LE, and knew who to talk to, and what questions to ask. In Texas, we are limited to what can be said when giving a reference on a law enforcement officer who has worked for us. Civilians, or Vets are under a different category if they've never been certified and licensed.
I'm sure other States have their own rules on this. I wasn't allowed to give a negative reference, but was often asked if we would rehire. My response was that I thought the person was better off at another agency than ours, we had nothing really to offer them.
I'm sure other States have their own rules on this. I wasn't allowed to give a negative reference, but was often asked if we would rehire. My response was that I thought the person was better off at another agency than ours, we had nothing really to offer them.
(2)
(0)
MSgt John Cina
When I attended Business Law 24 years ago, we were told that you could not pass on negative information; however, you could answer the question of whether or not you would hire the person! Also, when I arrived at one of my duty stations an Article 15 followed me! My commander said it wasn't supposed to follow me (He was correct!) and he handed it to me!
Also, i reference to the 'dirt bag' statement, I ended up with a great career both in and out of the service!
Also, i reference to the 'dirt bag' statement, I ended up with a great career both in and out of the service!
(2)
(0)
I am curious....why did you add an NCO, as a reference, that was only in the unit for 2-3 months that really didn't know you well?
(32)
(0)
MSG (Join to see)
SPC Rigarly L Etienne - Hard lessoned learned on that one. Yea, I use Army folk that I know as references, but only after I've known them for a year at least.
(5)
(0)
LTC Jason Mackay
SPC Rigarly L Etienne you can’t do nomlook passes on references. You need to reach out to them to ask. That way there you know what you’ll get
(2)
(0)
SGT (Join to see)
SPC Rigarly L Etienne - It's always a good idea to vet your references too. Ask them if they are willing to give you a good reference. Be direct about it. If they are wishy washy or say no, then search for somebody that will.
(5)
(0)
19
19
0
All I can say is most companies will only confirm you worked for them, even if they fire you most of them will not give the reason. Because they don't want to have a law suit filed against them.
(19)
(0)
SGT Dennis Shoemaker
After the military, I worked in factory supervision & management...an employer. I was often asked for employment verification information. The rule of "civilian" thumb is that you can always give a good recommendation to someone who deserves it, but you can NOT give a "bad" one. If i was being asked about at great employee, I'd say so, In fact, that's about all they asked other than if they were eligible for rehire, because I would line list all their strengths, what made them great. But the shitbirds were another matter. I'd confirm that they'd been employed there. Then they'd ask "How was the former employee's attendance?" I'd just reply "No Comment". "What kind of employee was he/she?". "No Comment". "Would you rehire them?" "No Comment". So technically, I made no negative remarks or shared any negative information to put myself or my employer in any position of liability. But I think the person requesting the information got what they needed.
(9)
(0)
SPC Barry Bolton
SGT Dennis Shoemaker - A good HR dept. can read between those lines and understands what you are telling them. "No Comment" is exactly what I say.
(5)
(0)
SGM Marshall Rader
There is legal recourse leaders need to be aware. Wearing a uniform doesn't protect Soldiers in these situations.
(1)
(0)
Read This Next
Continue with Facebook 
Continue with Google