Should an EO complaint hold up a separate Article 15?

2014-08-09T22:30:48-04:00

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.

Response by SFC Christopher Perry made Aug 9 at 2014 10:54 PM

2014-08-09T22:54:28-04:00

CPT Michael Wilke While I cannot argue with your logic that these are two totally separate issues, your commander is in my mine taking the correct approach. Understand, it pains me to say this all the way down to my big toe. However, things are just different these days than they were in the Military I came up in. Everything is different now, and your commander has more experience in dealing with these issues. The reality is that unfortunately this Soldier has shown a pattern with his/her actions. Most likely you will be given another opportunity to deal with this one. Hopefully this will not be the case and they will fly straight from here on out realizing they dodged a bullet. But this is yet another thing that has changed. These days folks see this as getting over, and will just assume this is how it will be. You have already done your part for the time being, don't dwell on what you cannot change. Concentrate instead on being the best leader you can be to all your Soldiers.

Response by SSG Robert Burns made Aug 9 at 2014 11:10 PM

2014-08-09T23:10:37-04:00

When you say against another Soldier in the BN; is that Soldier also under you leadership?

Response by SGT Private RallyPoint Member made Aug 10 at 2014 12:37 AM

2014-08-10T00:37:51-04:00

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!

Response by COL Randall C. made Aug 10 at 2014 10:36 AM

2014-08-10T10:36:41-04:00

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).

Response by MAJ Private RallyPoint Member made Aug 10 at 2014 12:21 PM

2014-08-10T12:21:47-04:00

CPT Michael Wilke, I find myself in complete agreement with COL Randall C. 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.

Response by 1SG Private RallyPoint Member made Aug 10 at 2014 12:24 PM

2014-08-10T12:24:35-04:00

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.

Response by MSG Private RallyPoint Member made Aug 10 at 2014 12:37 PM

2014-08-10T12:37:16-04:00

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.

Response by CPT Private RallyPoint Member made Aug 11 at 2014 2:18 AM

2014-08-11T02:18:23-04:00

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?

Response by PV2 Louise De Simone made Aug 12 at 2014 4:47 AM

2014-08-12T04:47:32-04:00

that depends, since most 2and Lt's are a very nasty bunch and like spoiled children who did"nt get their toy you would have to explain later here what was his failure? and you said 2X? isnt it really your anger that the soldier is smart enough to recognize a bully of which every 2Lt and even what we called also, butter bars? between you guys and the rear ens kissing NCO"s of which you guys make them your GO-Fers I highly suspect you want retaliation and this time after the EEO which is a failure and a complete joke you will get your tantrum written up. Louie Grow Up and leave the REAL SOLDIERS ALONE!!!! Cause some day in battle we will just pull back and give you what you deserve.

Response by LTC Private RallyPoint Member made Aug 13 at 2014 9:54 AM

2014-08-13T09:54:23-04:00

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.

Response by SGM Private RallyPoint Member made Aug 13 at 2014 7:56 PM

2014-08-13T19:56:39-04:00

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.

Response by 1SG Private RallyPoint Member made Aug 18 at 2014 7:10 PM

2014-08-18T19:10:15-04:00

CPT Michael Wilke any update on how this turned out? I'll bet the followers of this discussion are curious. I know I am.