Posted on Mar 5, 2015
SFC Josh Jackson
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Hi, all. I had a career first last night; One of my subordinate NCOs got a field grade article 15 for inappropriate relationship with a subordinate. He is reduced in rank to E5, and has 11 years in service. There will be no GOMR. I want to rehabilitate this Soldier, but in this age of drawdown, I don't know if that's possible.

So here is my question, since I am in uncharted territory. What am I obligated to include in his next NCOER? It's more than 180 days out, if that makes a difference. There will be the glaringly obvious difference in rank from his last eval to his current one. Is it an automatic Needs Improvement? Is it a NO for one or more of the Army Values? I could do these things very easily, but am I required to?

I'm angry with him, but I also want to help him climb out of the hole he dug himself into. I remember a time when an NCO could bounce back from UCMJ action. Now, in the age of drawdown, I don't know if I have time to help him redeem himself. With a field grade article 15 and a bad NCOER, he would have little chance of surviving the next QMP board. I appreciate and look forward to your counsel.
Posted in these groups: Ucmj UCMJHandcuffs_2249048b PunishmentEvaluations_logo Evaluations1efa5058 NCOER
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CSM Mark Gerecht
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SFC Jackson,
You raise a great point. All of us have made mistakes. Some received Article 15's some did not. Needless to say all of us could have received an Article as I doubt any of us are so exceptional that we never violated the UCMJ. Now what comes into play is how our Chain of Command chose to deal with us. Some chose to use corrective training when appropriate others just used UCMJ.

When dealing with an infraction I believe there are two aspects that need to be reviewed.

1. Was the offense part of what I refer to as 1 of the 4 unforgivable sins of Leadership: Illegal, Unethical, Immoral, unsafe. If it was one of these then it was not an honest mistake and offense was committed with full knowledge that it was wrong...which speaks to values.

2. Next was the offense committed by a leader, was it committed during a time of draw down, what was the overall impact of the event on the unit/Army, is the Soldier worth saving? If so why?

This act was in my opinion an unforgivable sin. The NCO knew they were doing something that was absolutely wrong...no honest mistake answer accepted. We have seen numerous examples of Senior NCOs and Officers getting a pass in issues like this. So should the Soldier get a pass? What was the impact of the Leader's action on the unit/Army? Only you can answer that question? How hard should the NCO be held accountable? Only you and the rating chain can answer that question.

Now here is what the rating chain has the authority to do:

1. There is nothing in AR 623-3 that states the event must be mentioned on the evaluation report? In fact the information on the rater and senior rater portion of the NCOER is totally at the discretion of the rater and senior rater? You can not mention it, you can allude to the infraction, and you can outright state the infraction in hard facts.

2. No mention of punishment can be made on the evaluation report IAW AR 623-3 and DA PAM 623-3. The actions that led to the punishment can be mentioned.
For example:

You cannot say "NCO received an article 15 for an inappropriate relationship".

You can say something like: Soldier exhibited poor judgement by participating in an inappropriate relationship or adulterous relationship.

So what you say, if you say anything, and how hard of a stance you take is up to you and the members of the rating chain and the reviewer.

3. I have seen NCOER in which a Soldier made one mistake. Lets say they failed an APFT. The rating chain hit them in Values, Training, Leadership, Accountability, etc. My opinion find the most appropriate place to mention the offense and address it one time on the report in the most appropriate wording.

4. Now does the Soldier deserve to receive consideration for past performance? Should the rating chain go light on the issue...only the rating chain can make that assessment.

Recommendation: If you seriously believe the Soldier is already receiving appropriate corrective action and has learned their lesson consider the following actions.

1. List the facts of the issue, Address how the Article 15, reduction of rank, etc, have and will impact the Soldier's potential to continue to serve.

2. Answer this question from you perspective. Was the Field Grade Article 15 administered by the chain of command to get the Soldier's attention, to correct a wrong, and/or to crush their ability to continue to serve or some combination thereof.

3. If you believe the intent was to allow the Soldier to continue to serve then you should develop an argument you can defend with facts from this perspective. IAW AR 27-10 Commanders are authorized to look at age, experience, maturity, performance, mitigating factors, extenuation, etc in determining punishment. They are also provided this flexibility when determining the Soldiers potential for future service, bars to reup, separation from service, etc. You can use what types of punishments were used in the past for similiar events for Officers, NCOs, and Soldiers.

4. Once you have conducted your research and developed your argument I would encourage you to seek input from the rating chain how do they view the issue? What do they see as the most appropriate course of action? In my opinion the goal is to reach a collective decision on how best to proceed. Keep in mind if the Rater says the Soldier is awesome, and the senior rater says the Soldier is okay, and the reviewer attaches a letter of nonoccurrence and states the Soldier should not be retained because the rating chain failed to mention violations of value on the NCOER the QMP board is absolutely confused. Send a united, fair, and clear message.

5. How you say it matters. You must be honest with your self and more importantly do your duty to the Army even if that goes against your emotional and personal feelings about the Soldier and the offense. If the Soldier deserves a chance to continue to serve do your homework...base it in fact and take your argument to the rating chain and reviewer.

6. We all make mistakes! The bottom line is you should be able to find justice by asking yourself a few questions:
a. Have I fulfilled my obligations as a leader to the Army?
b. Are my actions fair and just?
c. Is this the way I would want to be treated by my chain of command if the roles were reversed?
d. If this leader were leading my son/daughter into battle would I accept the decision of the chain of command to allow the Soldier to continue to serve as a reasonable decision?
e. If my son/daughter were the victim of the offense would I be satisfied with the decision/action of the chain of command?

WARNING WAR STORY----Keep in mind, AR 623-3 states NO ONE Can make you change your ratings and you cannot make them changer theirs. So the key it to be a team an compromise so the right message is sent on the evaluation report. That is what is right for the Army and for the Soldier. When I personally saw a potential injustice being done on an evaluation report (OER/NCOER) and I spoke to the rating chain I sometimes heard "You can't make me change my rating...I will go to the IG, JAG, etc"! My response was simple. "I have not pressured you, I have not directed, implied or demanded you change anything. I have ask you to look at the issue from a factual perspective and treat the Soldier like you would want to be treated and as your duty and responsibilities say you must treat the issues at hand".
Then I would sum it up this way. "So you absolutely believe you are applying the standard fairly in this evaluation report"? If they said "YES", I would say something like "Then you will have no problem with me applying the same standard to your evaluation report correct"?

It never failed the response was WHAT? Wait a minute, you can't do that? Are your threatening me? My response- "Absolutely not I am only saying I will hold you to the same standard you are holding your Soldier too. You stated your standard is fair and therefore you should have no problem meeting it".

In 100% of the cases the individual rating team Officers/NCOs alike came back to me usually a day or two later and said we thought about what you said and see your point we have made some adjustments. Usually I was later told "Hey CSM until you put it to me that way I did not see your point. Once you held me accountable and I thought about it...I saw that I was really angry at the Soldier, or felt the Soldier embarrassed me or let me down, and I was emotionally connected to the issue. Thanks for getting my attention.

Last but not least keep this in mind. Life is not fair! What happens to one Soldier may not happen to another Soldiers. Soldiers that get in trouble during a draw down are more likely to pay a higher prices than those that get in the same type of trouble during non drawn down years. I once heard it expressed this way- We are only retaining the best Soldiers and the best Soldiers don't get Article 15, are not fat, don't fail APFT, WPNS QUAL, etc. There is truth to that statement with an exception...the ability to impose UCMJ is very broad and sometime perhaps not the best choice for the infraction. In this case I believe UCMJ was most likely appropriate.

Finally all leaders have a different degree of what fair and just looks like- some are more lenient while others only believe in crushing a Soldier (funny these types usually want a lot of compassion for themselves when they are in trouble).

If you believe the Soldier deserves a chance to serve and take their chances with a retention or QMP board then you have a duty and responsibility to look at the facts, do your research, build your argument and present realistic solutions to the rating chain. Only you can decide what is appropriate. Do not let your emotions lead you. If you think through the issue I believe you will reach a decision you are comfortable with.

Remember you did not put the Soldier in this position. They put themselves in this position and ultimately it was their actions, choices, and decisions. I once had a Soldier say to me "CSM why are you all up in my personal business"? My response was "1SG, Trust me I have no desire to be in your personal life, but once your private life becomes public knowledge and is put on my desk based on your actions and choices you put me in your private life and that requires me to act. So if you don't want me in your private life I would suggest that you KEEP YOUR PRIVATE LIFE PRIVATE"!

Your questions shows your concern and compassion. There is no Right Answer here. There are hard choices you must make as a leader. We all learn through a process called experience and by sharing lessons learned.

Be factual, calm, professional, and honest. The answer will be appropriate in the end.

On a Separate note I host WWW.ASKTOP.NET with a panel of subject matter experts including legal SMEs. There are a lot of posts you might useful on this topic.

I you want to chat off line I am more than happy to do so. I hope you found this information useful and not a lecture.

Respectfully,
TOP
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CSM Mark Gerecht
CSM Mark Gerecht
>1 y
LTC Wayne Brandon Enforcing Standards and Values are important. Sometimes as leaders it is difficult to do this because we see potential in the individual and/or we see it as a mistake but we must still do our duty. As leaders it is important we exercise our duties and responsibilities with dignity, respect, and compassion for the individual before us. We have the authority and the power as senior leaders. How we hand a situation has much to do with how that Soldier and other Soldiers will how to handle a similar situation when they are in a position of authority. We need to ensure we encourage leaders to be understanding and compassionate when executing their duties. It is not a sign of weakness but a sign of a mature and caring leader. When correcting Soldiers I often heard “that’s how my leaders handled it”, what we see influences how we behave. It is our duty and responsibility to educate leaders, believe it or not many senior leaders need the education because in many situations they solve problems the way their leaders solved problems. I wish someone in my chain of command would have corrected me earlier in my career. Sorry for the long winded reply. Its just I think back to how many times I could have acted differently and how the results might have been different for those Soldiers. I am glad one of my Mentors gave me an education on the issue.
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1SG Michael Brooks
1SG Michael Brooks
>1 y
Every Active Duty Soldier reading this should copy and print; then staple it to AR 623-3. Great discussion for NCOPD.
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CSM Mark Gerecht
CSM Mark Gerecht
>1 y
1SG Michael Brooks - Top Greatly appreciate the kindness. I realize the mistakes I made and hope others can learn from them. That's why are offer my time on Veterai, Rally Point, and Ask.net in the hopes that I can help others.
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CPT Inactive Reserve
CPT (Join to see)
2 y
Awesome response.
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1SG Information Assurance Manager
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Well, his next NCOER is not 180 days out. It's due now as a Relief for Cause NCOER, and as such it will have to contain the details of the cause.

That will reset the clock on his rating period, and he'll have 12 months (if not chaptered out) of time at SGT to earn a clean, supportive NCOER.

Your reference on this is AR 623-3, Section 3-55.
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SFC Josh Jackson
SFC Josh Jackson
>1 y
Thanks, SFC White. I'll research those regs tomorrow
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SSG Physical Security Nco
SSG (Join to see)
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I have never had this situation but I say to rehab the NCO, and treat him like an NCO and see what happens after that. I would also from time to time find out if he is still focused on a career in the Army.
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CSM Mark Gerecht
CSM Mark Gerecht
>1 y
SFC Jackson,
I would like to offer an update to my original post.
After my initial posting I read the response of SFC(P) White and COL Burleson (Gentlemen I apologize I should have read your comments first so I could have addressed them in my initial post)
I feel compelled to respond for clarification purposes. The Army provides regulatory requirements and guidelines for Commanders in the field. The Army also recognizes that the leader closest to the issue is usually in the best position to make the best assessment and thereby make the best determination on how the issue should be handled. For that reason Commanders are given broad latitude in almost all situations. Rarely does a regulation handicap a Commander with terms like “Will or Must”. I am sure most of us are aware of this fact given that this latitude has been in the news as of late regarding a Commanders discretion in resolving cases of Sexual Assault or Abuse. I am sure you know Congressional Leaders are now considering removing some of that latitude from Commanders in the field.
Now to my point. Here is what AR 623-3 has to say about a Relief for Cause NCOER (in part)
Extract of AR 623-3 paragraph 3-55
A code 05, “Relief for Cause” NCOER, is required when an NCO is relieved for cause. ///An NCO can be relieved for cause regardless of the rating period involved///; however, a waiver is required to render “Relief for Cause” NCOERs covering a period of less than 30 days. Relief for cause is defined as the removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO’s chain of command or supervisory chain. ///A relief for cause occurs when the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army///

I have placed /// marks around the parts of the issue I consider important.
First: ///An NCO can be relieved for cause regardless of the rating period involved///; Key words here are CAN BE
Next: ///A relief for cause OCCURS when the NCO’s personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army///
I submit two items for consideration. 1. CAN BE is at the discretion of the Commander 2. Occurs must be used in context with the remaining requirement of the paragraph. Which follows next:
Extract of AR 623-3 paragraph d, e, f
d. ///The “Relief for Cause” NCOER must specifically indicate who directed the relief of the rated NCO and the rating official directing the relief will clearly explain the reason for the relief in his or her portion of the NCOER/// (see DA Pam 623–3 for instructions and procedural guidance that apply to completing a “Relief for Cause” evaluation report).
e. ///If the relief is directed by an official other than the rater or senior rater, the official directing the relief will describe the reasons for the relief in an enclosure to the NCOER/// (see fig 3–2).
f. ///The minimum rater and senior rater qualifications and the minimum rating period are 30 rated days. The fundamental purpose of this restriction is to allow the rated NCO a sufficient period of time to react to performance counseling during each rating period. Authority to waive this 30–day minimum rating period and rater and senior rater qualification period in cases of misconduct is granted to the first general officer in the chain of command or an officer having general court-martial jurisdiction over the relieved NCO. The waiver approval will be in memorandum format and attached as an enclosure to the NCOER (see para 3–35 and fig 3–3)///
For brevity I have will not repeated all of the /// text. Now a Relief for Cause Report “OCCURS” when:
1. d- a member of the chain of command directs the relief.
2. e. - if directed by someone outside the chain of command an enclosure is required.
3. f:- typically a relief for an inappropriate relationship would not be subject to a 30 day minimum because it is based on a specific act and not on general poor, or substandard performance. The purpose of this paragraph is to provide an NCO the ability to recover from poor performance when they are not performing to standard. In case of clear violations of values, etc such as this case appears to be the 30 day period is usually waived.
So based on the information you provided no one to date has evidently directed a relief. This is usually done during the Article 15 process or shortly thereafter. It does not mean this is not coming or is not appropriate… it means it is not in play now.
Now let’s say there is no directive for a Relief for Cause
Extract AR 623-3 paragraph 3-7b2(3) comes into play
End of the rating period.
The rater will review the final DA Form 2166–8–1 when preparing the NCOER. The rater will include the Soldier’s duty description from the rated NCO’s final DA Form 2166–8–1 and may include performance-related information for the NCOER. ///However, the choice of what to enter on the NCOER is ultimately up to the rater./// NOTE- This applies to the OER as well.
/// marks in the paragraph above speak to my last post about what can, should, may be addressed at the rating chains discretion.
(a) ///The rater ///will/// provide comments on how well the rated NCO promoted a climate of dignity and respect and adhered to the requirements of the SHARP Program in Part IV, block d of DA Form 2166-8. This assessment should identify, as appropriate, any significant actions or contributions the rated NCO made toward—///
1. Promoting the personal and professional development of subordinates;
2. Ensuring the fair, respectful treatment of unit personnel; and
3. Establishing a workplace and overall command climate that fosters dignity and respect for all members of the unit.
4. ///This assessment should also identify any failures by the rated NCO to foster a climate of dignity and respect and adhere to the SHARP Program.///
///marks above in (a) 1-4 may require specifics comments depending on the specifics of the situation.
5. Raters ///will/// comment on any substantiated finding, in an Army or DOD investigation or inquiry, that the rated NCO—
a. Committed an act of sexual harassment or sexual assault;
b. Failed to report a sexual harassment or sexual assault;
c. Failed to respond to a complaint or report of sexual harassment or sexual assault; or
d. Retaliated against a person making a complaint or report of sexual harassment or sexual assault.
e. After the rater reviews the final DA Form 2166–8–1, they will sign and date it to acknowledge the review.
f. The rater will forward both the NCOER and the final DA Form 2166–8–1 to the senior rater to assist in their completion of the NCOER
//// marks above are a clear indication of a directive you WILL see (a) above and 5

Now to another point the COL makes with regard to the Soldier’s likely future. While no one can tell you how a board will find…given today’s current situation the likelihood of retention is slim. Usually a board does not want to pass on a potential problem but will make exceptions if they believe it appropriate. There is always a chance the Soldier will be retained based on upcoming missions, troop strengths, sequestrations, etc. Regardless the COL makes an AWESOME point. It is better to prepare now than later for transition. This NCO should consider:
1. Getting a Resume, 2. As someone else suggested getting a LINKEDIN Account to start to build a network, 3. Consider getting letters of recommendation from leaders in previous units 4. Contacting the education center, 5. Begin VA application process 6. Speak with JAG about the type and characterization of separation they may receive to include characterization of discharge and how that impacts the Soldiers GI Bill. There are numerous other actions but this is a good start.
Note: It might be wise for you to prepare a transition assistance counseling statement to notify the Soldier.
The Soldier needs to be absolutely prepared for staying in the Army and being separated either voluntarily under Chapter 10 or involuntary another chapter of AR 635-200.
I am in no position to judge whether this Soldier should be retained. I am not aware of the complete situation nor do I have the facts of the case. I can share with you that being a leader is not an easy position to fill and doe wisely. We have to make tough choices.
Do your research, examine the facts, treat people with dignity and respect, treat them like you want to be treated, treat them fairly. At the end of the day it is up to the chain of command. You can swing the Sledge Hammer or you can provide an opportunity for the Soldier to potentially overcome their mistakes before a QMP Board. With that stated it is also possible that changes occur as previously discussed and by the time the next board examines the file he will get a wait and see vote.
This Soldier should consider the following actions:
1. Accept accountability and Responsibility.
2. Grown were they are planted- Do the absolute best they can to shine and show they learned from the incident.
3. Resolve to do the best they can regardless of the situation.
4. Realize that all eyes are cast upon them and they will have to overcome the stigma associated with their behavior/actions.

My final recommendation: Whatever you do not put your own credibility or integrity on the line if it is not warranted. Doing so only taints you as a leader. If you stand up for this Soldier do so because it the right thing to do and you can support your argument from a position of facts. Even if your leadership does not agree with you they will at least respect your position based on how you arrived at it.

Do not get into a measuring contest with leaders…the conversation and discussion must be factual, calm, professional, and honest. Remember the Soldier made choices that brought on this decision point. His made choices that put others in charge of his destiny. Use this as an opportunity to learn and grow as a leader. Seek lessons learned from seasoned leaders but in the end it’s your call and the chain of command’s call. Choose WISELY!

Note: If you would like more information on evaluations and relief for cause reports please check out WWW.ASKTOP.NET
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SFC Casey O'Mally
SFC Casey O'Mally
>1 y
CSM Mark Gerecht I will say that my situation was a bit different, but I can speak as a QMP survivor. I had a 4/4 NCOER based on A) failed tape (by 2%) and B) personal vendetta. (Values - NO, because I lacked loyalty AND duty by failing tape.)

That 4/4 was sandwiched between a VERY STRONG 1/1 NCOER from the SF community during a deployment and a remarkably strong (considering it was only for 5 months) COR 2/1 NCOER.

I passed tape the very next month by 3% - a 5% drop in BF in one month - and I had a history of passing tape by 1-2%, with no previous overs.

I was not on the board, but I think it was pretty obvious that 4/4 reflected more on my leaders than on me.

As I said, this NCOs situation is different, BUT....

One bad situation sandwiched between VERY positive information can be viewed as an anomaly rather than an indicator of overall value.

Of course, even if he is retained, making it through a SECOND centralized board for SFC is a long shot. He also has a LOT of years in for a SGT - even if QMP doesn't get him, RCP may.
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1SG Claims Assistant
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My advice (absent detail):
"No" box check in values under Honor. It is debatable for Selfless Service or Respect, but I think Honor captures it better. More than one is piling on. Bullet should be specific enough to eliminate any ambiguity about the reason for the box check. Something like -
o compromised his Honor by engaging in an inappropriate relationship with a subordinate, resulting in reduction

On the back of the report, I would give a NI-much in Leadership, again specifically detailing the issue and how it damaged the SM's ability to continue as a leader. Something like -
o removed from leadership position due to NJP under Article 134 - fraternization

Overall rating of Marginal is a judgment call that I'd make based on the details, but I would lean that way

The Senior Rater should probably enter a 4 in performance and a 4 or 5 in potential for promotion. He clearly shouldn't (and likely can't) be considered for promotion at this time.
Suggested bullets -
o potential for positions of greater responsibility is contingent upon swiftly learning from mistakes
o do not promote at this time; Soldier has demonstrated a lack of professionalism and concern for good order and discipline
o may be rehabilitated through consistent mentoring and focus on the mission at hand over personal advantage

It sounds harsh, but I have absolutely no tolerance for fraternization in my formation, particularly in a superior/subordinate situation. The way I have always put it:
If you engage in fraternization, the Senior Soldier can expect to match the junior Soldier's rank immediately prior to their forced transfer to another unit.
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SFC Josh Jackson
SFC Josh Jackson
>1 y
Thanks, Top!
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