Law
UCMJ
JAG
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I'm going to expand on the issue seeing as there weren't many characters to use stating the question.
The guy was a jr enlisted reservist. His command brought him in to take a record APFT 4 times total when he wasn't on paid or drilling status. His command flagged him, never counseled him, didn't even tell him. He found out, talked to his unit. They told him to come take another APFT. He comes in, tells his command he is taking it for record, and passes it. Command tells him the APFT doesn't count as the commander didn't approve it. That same APFT, another SPC took the pt test, passed it, went and reenlisted. So this guy talks to his commander and is told he is still flagged, with no counseling, and he can't reenlist. So he calls the IG up. Local IG tells him to talk to the battalion cdr first. Guy talks to the CSM and BN CDR. They tell him he is flagged and can't reenilist, but can take another APFT. Guy takes 3rd APFT. Misses run by about 20 seconds. Command brings him back to the unit, counsels and flags him. Apparently, they didn't conduct the APFT to standard. All this is non drilling and unpaid. 1SG tears up the counseling and flagging. Says he can retake the APFT again. IG calls unit and SPC. Says they're looking into it and advises against a fourth APFT.
IG assigns investigating officer who is subordinate of SPC's command. They come in take statements etc. SPC goes to FTX with unit 3 days after investigating officer is there. Declines to take an APFT there due to the 180 days from failure regulation and IG recommendation. I'd have to pull the AR on it, but I've personally checked. It exists. SPC is removed from duty by the HHD commander and assigned to KP. The BN commander has a conversation with the SPC and two unit chaplains. Tells the SPC they feel he may be a threat and that he will be forced to ETS. Again, no valid flaggings against this SPC. They do not allow him to do any training events or qualify. They assign him to KP the entire time.
The SPC feels retaliated against. I'll admit, he's pulled from duty, deemed a threat, and told he is going to be forcibly ETS'd by the BN CDR, just a few days after an IG investigation. So the guy waits out the local IG who tell him there's no issue. I can read AR's reasonably well. This kid is getting hosed. He asks for open door with BDE CDR. She declines to talk to him. He talks with BDE deputy commander and JAG. They don't do anything for him. He goes to the 1 star level. CSM and CDR decline to speak with him. The unit also flagged him again with no counseling documents for the APFT he did not take at the FTX. He is declined for open door by the 2 star command.
The SPC also has contacted the USARC IG and been turned down by them. They told him to file FOIA and take it from there. This is a kid who doesn't know how to FOIA and to address that. Kid goes to Dept. Army IG and it turned down summarily by them.
The SPC contacted the deputy commander of the USARC directly. Turns out the unit had already discharged him with no notification about two months prior.
The guy had also attempted to go through the article 138. He requested counsel by the TDS. They took two months to assign him an attorney by which point he was already discharged.
Guy got ahold of the XO to SMA Dailey. That CSM twice directed army reserve senior staff to look into the issue and make a recommendation. They twice referred the SPC back to the SMA office.
The DOD IG discharged this SPC's complaiint during intake. The SMA office sent a request to the DOD IG to investigate a few weeks ago. The now former SPC never heard back from them.
This SPC has showed me about 100 emails and documents to prove his story. He has followed the chain of command from his 1SG and HHD commander to the pentagon. He has worked the IG route from local to DOD. The now former SPC has been brushed off and ignored for 13 months now. His congressperson has done nothing for him. I've seen the emails.
I don't have any further advice for the guy. What do you do for someone when the entire systems that are supposed to handle issues and investigate things, they just brushed this guy aside time and again. I don't know anyone or how to contact anyone further to help the guy. Short of the media, somebody like Congressman Duncan Hunter, or a tough attorney helping this guy, I have no clue where to direct him. I apparently don't have the knowledge or connections. It's a failure by me to be unable to help him as well as a piipeline of senior enlisted and senior commanders.
This former SPC needs help.
The guy was a jr enlisted reservist. His command brought him in to take a record APFT 4 times total when he wasn't on paid or drilling status. His command flagged him, never counseled him, didn't even tell him. He found out, talked to his unit. They told him to come take another APFT. He comes in, tells his command he is taking it for record, and passes it. Command tells him the APFT doesn't count as the commander didn't approve it. That same APFT, another SPC took the pt test, passed it, went and reenlisted. So this guy talks to his commander and is told he is still flagged, with no counseling, and he can't reenlist. So he calls the IG up. Local IG tells him to talk to the battalion cdr first. Guy talks to the CSM and BN CDR. They tell him he is flagged and can't reenilist, but can take another APFT. Guy takes 3rd APFT. Misses run by about 20 seconds. Command brings him back to the unit, counsels and flags him. Apparently, they didn't conduct the APFT to standard. All this is non drilling and unpaid. 1SG tears up the counseling and flagging. Says he can retake the APFT again. IG calls unit and SPC. Says they're looking into it and advises against a fourth APFT.
IG assigns investigating officer who is subordinate of SPC's command. They come in take statements etc. SPC goes to FTX with unit 3 days after investigating officer is there. Declines to take an APFT there due to the 180 days from failure regulation and IG recommendation. I'd have to pull the AR on it, but I've personally checked. It exists. SPC is removed from duty by the HHD commander and assigned to KP. The BN commander has a conversation with the SPC and two unit chaplains. Tells the SPC they feel he may be a threat and that he will be forced to ETS. Again, no valid flaggings against this SPC. They do not allow him to do any training events or qualify. They assign him to KP the entire time.
The SPC feels retaliated against. I'll admit, he's pulled from duty, deemed a threat, and told he is going to be forcibly ETS'd by the BN CDR, just a few days after an IG investigation. So the guy waits out the local IG who tell him there's no issue. I can read AR's reasonably well. This kid is getting hosed. He asks for open door with BDE CDR. She declines to talk to him. He talks with BDE deputy commander and JAG. They don't do anything for him. He goes to the 1 star level. CSM and CDR decline to speak with him. The unit also flagged him again with no counseling documents for the APFT he did not take at the FTX. He is declined for open door by the 2 star command.
The SPC also has contacted the USARC IG and been turned down by them. They told him to file FOIA and take it from there. This is a kid who doesn't know how to FOIA and to address that. Kid goes to Dept. Army IG and it turned down summarily by them.
The SPC contacted the deputy commander of the USARC directly. Turns out the unit had already discharged him with no notification about two months prior.
The guy had also attempted to go through the article 138. He requested counsel by the TDS. They took two months to assign him an attorney by which point he was already discharged.
Guy got ahold of the XO to SMA Dailey. That CSM twice directed army reserve senior staff to look into the issue and make a recommendation. They twice referred the SPC back to the SMA office.
The DOD IG discharged this SPC's complaiint during intake. The SMA office sent a request to the DOD IG to investigate a few weeks ago. The now former SPC never heard back from them.
This SPC has showed me about 100 emails and documents to prove his story. He has followed the chain of command from his 1SG and HHD commander to the pentagon. He has worked the IG route from local to DOD. The now former SPC has been brushed off and ignored for 13 months now. His congressperson has done nothing for him. I've seen the emails.
I don't have any further advice for the guy. What do you do for someone when the entire systems that are supposed to handle issues and investigate things, they just brushed this guy aside time and again. I don't know anyone or how to contact anyone further to help the guy. Short of the media, somebody like Congressman Duncan Hunter, or a tough attorney helping this guy, I have no clue where to direct him. I apparently don't have the knowledge or connections. It's a failure by me to be unable to help him as well as a piipeline of senior enlisted and senior commanders.
This former SPC needs help.
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COL Vincent Stoneking
I hate to be the one to say it, but there is no evidence of retaliation in the above. No, really, read through it again - carefully. At no point did they take any action against him BECAUSE of the fact that he filed an IG complaint. By definition, without that, there is no retaliation.
The unit may well have done him dirt. But if so, it was doing him dirty before the IG complaint, and continued with NO CHANGE during and following the investigations. Again, no change is - by definition - NOT retaliation.
It may well be that the command acted in a way that was against regulations (which is what IG primarily looks at) or in a manner that was manifestly unjust (which is what IG secondarily looks at) such that the IG should have recommended that the appointing authority (which is the command, not the IG) take some action. If so, further action on the Soldier's part may be justified, though really at this level (IG and congressional done, IG refusal of further investigations, senior commanders refusing to discuss, 138 ended, it sounds like), that really only leaves ABCMR or a lawsuit.
I make no judgement on the underlying conduct, because I have seen only one side of the story above. While not casting aspersions at the claimed narrative, I've got to say that it goes against my experience that a Soldier would be treated THAT lopsidedly. Then again, the older I've gotten, the more I've found things that go against my experience.
The unit may well have done him dirt. But if so, it was doing him dirty before the IG complaint, and continued with NO CHANGE during and following the investigations. Again, no change is - by definition - NOT retaliation.
It may well be that the command acted in a way that was against regulations (which is what IG primarily looks at) or in a manner that was manifestly unjust (which is what IG secondarily looks at) such that the IG should have recommended that the appointing authority (which is the command, not the IG) take some action. If so, further action on the Soldier's part may be justified, though really at this level (IG and congressional done, IG refusal of further investigations, senior commanders refusing to discuss, 138 ended, it sounds like), that really only leaves ABCMR or a lawsuit.
I make no judgement on the underlying conduct, because I have seen only one side of the story above. While not casting aspersions at the claimed narrative, I've got to say that it goes against my experience that a Soldier would be treated THAT lopsidedly. Then again, the older I've gotten, the more I've found things that go against my experience.
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MAJ (Join to see)
CPT Gowin,
I spoke with the young man's BN CSM. His statement was that he thought the soldier had used the appropriate measures to address it, just that it hadn't gone the SPC's way. Perhaps I should stay in my lane, however, this young man asked me for advisement on the matter. I always believed commanders were supposed to take care of their troops, and demonstrate leadership while accomplishing the mission.
Having pulled some of the applicable regulations in the matter and printed them off, I don't believe you can tell me that it's appropriate for a junior enlisted to have been flagged four times without being counseled or notified of any of them. It's certainly not within army regulations. My point here was not to cause discord or argument with others, but rather to seek a consensus and collect thoughts beyond my own. Takes a village of NCO's and officers to raise good troops.
From my perspective, and having a folder of relevant documents the young man has given me, I can see why he'd be displeased with the outcome.
His only remedies at this point are likely the board of corrections and/or a federal civil suit.
I spoke with the young man's BN CSM. His statement was that he thought the soldier had used the appropriate measures to address it, just that it hadn't gone the SPC's way. Perhaps I should stay in my lane, however, this young man asked me for advisement on the matter. I always believed commanders were supposed to take care of their troops, and demonstrate leadership while accomplishing the mission.
Having pulled some of the applicable regulations in the matter and printed them off, I don't believe you can tell me that it's appropriate for a junior enlisted to have been flagged four times without being counseled or notified of any of them. It's certainly not within army regulations. My point here was not to cause discord or argument with others, but rather to seek a consensus and collect thoughts beyond my own. Takes a village of NCO's and officers to raise good troops.
From my perspective, and having a folder of relevant documents the young man has given me, I can see why he'd be displeased with the outcome.
His only remedies at this point are likely the board of corrections and/or a federal civil suit.
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MAJ (Join to see)
COL Vincent Stoneking -
We do live in a world that seems to get more crazy by the day. The way things have changed in the last forty years, I can't imagine where we'll be socially or technologically in another thirty.
We do live in a world that seems to get more crazy by the day. The way things have changed in the last forty years, I can't imagine where we'll be socially or technologically in another thirty.
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Would need more details to give educated advice, but I would either advise counsel in any legal issue like this ,sir, or escalate it up the chain of command...there has to be a point in the chain where someone can get involved who is not involved in this situation.
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If there is a legitimate issue, congressional inquiry is the next logical step.
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MAJ (Join to see)
Guy's been there and done that. His local sent him an email basically stating nothing other than they are there to support him.
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CPL (Join to see)
Didn't work for me. They never 3rd me when they were coming out to investigate and then everyone made it look like I was this bad, horrible person by using heresay for most of the responses they got from people that I may have said about this or that. They never spoke with me and a month later, because my unit was "butt-hurt", they started proceedings for Article 15. One SFC put in a counseling statement she never have me and put that I refused to sign in types letters. They got on the phone with each other and came up with a story. These leaders that came against me all were belittling and two-faced. I either couldn't please them enough or got bosses around like a private at the same time being a platoon leader and the one Motorpool Sergeant would periodically put me down in front of lower enlisted and demean me. So, excuse me for not having anything nice to say about my full time leadership.
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There has to be someone in the chain of command that cares, just keep using the chain of command's open door policy, keep good notes with time, date outcome of meetings if warranted call your congressman or congresswoman and ask them to look into it. Without more details this is the best i can advise.
This is not legal advice, I am not an attorney
This is not legal advice, I am not an attorney
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Sir, I'm not an expert in the subject, but I believe that it falls under the whistleblower protection act. If I'm not mistaken it is a crime under the US code to punish a person for filing a report with any departments inspector general. So, if it violates US code, it most likely violates UCMJ.
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MAJ (Join to see)
SGT Clifford,
There are applicable army, DOD, and federal regulations which prohibit retaliatory behaviour. I have a copy of them on my desk somewhere, due to this matter.
There are applicable army, DOD, and federal regulations which prohibit retaliatory behaviour. I have a copy of them on my desk somewhere, due to this matter.
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I am not an attorney either and I agree with the above advice. Just make sure you know the whole issue and the trooper is being truthful. Also could and Article 138 be used to help?
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This thread is a bit old, but I thought I might add something. If there was any chance, it would be through a whistleblower complaint. The key is to write up the complaint correctly so as to show the 4 elements needed to substantiate it.
First he needs a protected communication... Which is a complaint alleging broken regulations such as the pt issues... It doesn't have to be something major like fraud and he doesn't have to be right.
Element 2 requires some negative action being taken against him... There are a long list of things, and this includes his removal from duty.
Element 3 Did the person doing the reprisal know about the complaint/protected communication?
Element 4 Causation, would the negative action have happened if he didn't make the complaint? Would he have been on kp duty and not his regular duty all of AT had he not made a protected communication.
Unfortunately, this young man is past the year time limit he has to file.
The point of whistleblower protection is so that other service members aren't intimidated to make a complaint to IG, CoC, Congressman, etc.
First he needs a protected communication... Which is a complaint alleging broken regulations such as the pt issues... It doesn't have to be something major like fraud and he doesn't have to be right.
Element 2 requires some negative action being taken against him... There are a long list of things, and this includes his removal from duty.
Element 3 Did the person doing the reprisal know about the complaint/protected communication?
Element 4 Causation, would the negative action have happened if he didn't make the complaint? Would he have been on kp duty and not his regular duty all of AT had he not made a protected communication.
Unfortunately, this young man is past the year time limit he has to file.
The point of whistleblower protection is so that other service members aren't intimidated to make a complaint to IG, CoC, Congressman, etc.
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If you have concrete proof file a Congressional with an influential Senator or Congressman. Make sure you do your homework on the person/people you are filing this against.
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You should re-phrase the question if you want to get some good COAs. This is too general. First thing I'd like to know is the type of retaliation. With the way you posed the question I'd want to know when the individual is eligible to PCS from the unit and does HRC know anything about the current case? Last- I thought IG complaints were confidential? You can use the Army IG if you think the post IG is doing something wrong.
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MAJ (Join to see)
Sir, I wrote an expanded explanation of the issue above. RP doesn't allow enough space to explain the issue in the original topic. If you have a recommendation, I'll pass it along to him and I know he'd appreciate it. The SPC wrote out a document explaining the dates, places, people, and specifics. It's a dozen pages at least.
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Unfortunately, back to the IG - with our without JAG support - is probably the only available route.
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Depends on whether it's a legitimate beef or just a BS gripe about being singled out. Overall - tread lightly and think things through before taking further action(s). If the Chain of Command has broken down and is part of the problem, and IF it's legitimate and worth going to the mat for....the next course after consulting with those that would know, is contact constituent services of their Member of Congress. Last resort and only if nobody at Command can or will help. Best have ducks in a row though or it will not end well.
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There must be more as I don't know how a Civilian Council will help deal with command level retaliation.
I'm not a Lawyer, that being said I have attended all the bloody training everyone goes through every year. IF a member files an IG complaint and the IG finds it to be unsubstantiated. Then a report is given to the member and the command about the complaint, along with any found deficiency's during the investigation. The IG does not dismiss things with out investigating unless the complaint is ... well bat shyte crazy. (i.e The command is discriminated against me because I want to wear a unicorn horn as part of my religion)... (Bronies don't ask!!). I have seen 2 times where the IG complaint was unsubstantiated and the member persisted with a "The CoC is out to get me" attitude. Never mind in both cases the Member had committed criminal and UCMJ violations. The CoC in both cases were forced to deal with multiple investigations and legal issues till they separated these walking Cluster ... I have also seen another 4 IG Complaints where it was substantiated and the Hammer came down swift and hard on some senior people.
One of those was filed on me because I required a TAD / limdu person to show up during work hours and sit at a desk instead of sleeping in and not showing up at all. They said I was "Religiously Discriminating against them and retaliating" They never could explain how I was doing these things as I didn't Rate them, write there Evals, or assignee jobs all I did was muster them Mon to Fri 0800 to 1600.
I guess my point in all of this is Trust the system, and don't dig your self into a hole. Unless you know for sure and have seen it be wary of believing another's perceptions.
I'm not a Lawyer, that being said I have attended all the bloody training everyone goes through every year. IF a member files an IG complaint and the IG finds it to be unsubstantiated. Then a report is given to the member and the command about the complaint, along with any found deficiency's during the investigation. The IG does not dismiss things with out investigating unless the complaint is ... well bat shyte crazy. (i.e The command is discriminated against me because I want to wear a unicorn horn as part of my religion)... (Bronies don't ask!!). I have seen 2 times where the IG complaint was unsubstantiated and the member persisted with a "The CoC is out to get me" attitude. Never mind in both cases the Member had committed criminal and UCMJ violations. The CoC in both cases were forced to deal with multiple investigations and legal issues till they separated these walking Cluster ... I have also seen another 4 IG Complaints where it was substantiated and the Hammer came down swift and hard on some senior people.
One of those was filed on me because I required a TAD / limdu person to show up during work hours and sit at a desk instead of sleeping in and not showing up at all. They said I was "Religiously Discriminating against them and retaliating" They never could explain how I was doing these things as I didn't Rate them, write there Evals, or assignee jobs all I did was muster them Mon to Fri 0800 to 1600.
I guess my point in all of this is Trust the system, and don't dig your self into a hole. Unless you know for sure and have seen it be wary of believing another's perceptions.
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I would suggest that they inspect their belongings and storage spaces on a very regular basis and prepare all of their own food, because you never know what they will find when they search your desk.
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MAJ (Join to see)
AA Moody,
I don't actually know what an AA is by rank. Yes, I've told the young man that I'd keep an extra squeaky clean everything until it's been sorted out and some time after.
I don't actually know what an AA is by rank. Yes, I've told the young man that I'd keep an extra squeaky clean everything until it's been sorted out and some time after.
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