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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Discipline
Soldier
Discipline Soldier
Posted 10 y ago
Responses: 12
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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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