Can a senior leader force subordinate soldiers to write a legal statement against their will?

SGT(P) Private RallyPoint Member — Sun, 05 Jul 2015 07:21:36 -0400

I have a unique situation. An incident that is being blown out of proportion has come up with one of my fellow soldiers and it's beginning to involve my entire team. We were present when the perceived "unbecoming behavior" happened, although this is normal banter among the enlisted. At the time, the victim did not express any concern. A few civilian contractors were apart of this as well. All in all, something that was said is being brought back up to the contractors boss and the soldier is attempting to get him fired. My soldiers and I are being forced to write a sworn statement but not on a DA form 2823. We actually want nothing to do with this situation.

Can soldiers be forced to write out a non-standard sworn statement against a civilian contractor?

Sorry to be vague, any assistance or insight would be helpful.

Response by MAJ Robert (Bob) Petrarca made Jul 5 at 2015 7:31 AM

MAJ Robert (Bob) Petrarca — Sun, 05 Jul 2015 07:31:18 -0400

No it's an unlawful order and coercion which wouldn't stand up to legal scrutiny.

Response by CPT Private RallyPoint Member made Jul 5 at 2015 7:34 AM

CPT Private RallyPoint Member — Sun, 05 Jul 2015 07:34:13 -0400

I have seen something like this in the past. There are two ways you can go on this. You can either make the statement to the effect of what you know of the incident or you could make a statement that you really don't recall what was said. Just not making a statement at all is something to be discouraged and it seems like you are hiding something.

Just be advised that what you think can be a innocent joke my not be. I saw a Duffel Blog post, I know it is satire but sometimes it is based in truth, that read that "Playfully Racist Soldiers is actually an extremely Racist Soldier." You may think it was nothing but we don't really know. Maybe the joke could have meant more. Even so, offensive comments shouldn't be made in public areas like the such. If you want to joke with a friend it may be best to reserve that for a private setting.

Response by LTC John Shaw made Jul 5 at 2015 8:05 AM

LTC John Shaw — Sun, 05 Jul 2015 08:05:44 -0400

Immediately contact JAG and inform the command you are doing this, probably after the first meeting. Don't make a statement that is not intended or truthful.

Response by CPT Private RallyPoint Member made Jul 5 at 2015 8:13 AM

CPT Private RallyPoint Member — Sun, 05 Jul 2015 08:13:44 -0400

Contact JAG to ensure you and your own troops rights are not being violated and not going to put you in danger of being pursued as an accomplice. Until you also have representation it is in your best interest to not make a statement. No they cannot "force" you to make a sworn statement.

Response by PVT Robert Gresham made Jul 5 at 2015 8:15 AM

PVT Robert Gresham — Sun, 05 Jul 2015 08:15:20 -0400

I'm sorry, maybe I'm missing something ....... is it your company commander, or someone within your chain-of-command, at least, who is 'forcing' you to write these statements? I believe the answer to this question to be of extreme importance. If for some reason you can not answer this question on this forum, then I would encourage to speak with your JAG before signing anything. That is ALWAYS your legal right. To do otherwise may subject you to some type of, as yet unknown, legal action in the future.

Response by CW5 Private RallyPoint Member made Jul 5 at 2015 8:15 AM

CW5 Private RallyPoint Member — Sun, 05 Jul 2015 08:15:54 -0400

First, JAG is the best resource for you in this situation. Usually though you can write out in a statement that you have no statement at this time. This gives you breathing room as well as avoids any 'lawful order' headache.
Second, there are better ways Soldiers can handle contractors. Get the contract from the contracting officer and find something in there the contractor isn't doing (there always is). Get the vendor to replace the contractor. This is easy and gets rid of the problem immediately. It is not our place to get anyone fired although with contractors we can pretty much get rid of them if necessary.

Response by SGT(P) Private RallyPoint Member made Jul 5 at 2015 8:29 AM

SGT(P) Private RallyPoint Member — Sun, 05 Jul 2015 08:29:32 -0400

Gentlemen, I would greatly like to thank you for replying to my post. Your insight and knowledge helped me better understand the situation.

I have been advised by a senior NCO that this specific case does not fall under UCMJ. Since the unofficial statement is being made against a civilian contractor, it is not considered coercion. Apparently, only victims of incidents can contact JAG, as the senior NCO says. This was a awkward, unfamiliar situation for me since I have never dealt with civilian contractors in a manner like this.

The statement I made was to the best of my ability and was in no way falsified or manipulated. Somehow, I feel this entire situation was just completely wrong.

Again, thank you for your assistance.

Response by 1SG Private RallyPoint Member made Jul 5 at 2015 10:22 AM

1SG Private RallyPoint Member — Sun, 05 Jul 2015 10:22:57 -0400

If it's not on a DA 2823 then it's not a sworn statement as far as the Army is concerned.

Response by PO1 John Miller made Jul 5 at 2015 10:35 AM

PO1 John Miller — Sun, 05 Jul 2015 10:35:55 -0400

SGT(P) Private RallyPoint Member, I wouldn't necessarily go off of what a senior NCO told you that it's not a standard incident/statement. Whenever anything of a legal nature is involved it is ALWAYS best to seek advice from JAG. It is after all what they are there for!

Response by SSG Private RallyPoint Member made Jul 5 at 2015 10:39 AM

SSG Private RallyPoint Member — Sun, 05 Jul 2015 10:39:36 -0400

They cannot be forced but they can give a sworn statement. If they give a sworn statement they should contact TDS first and see what they say. Then if they feel they should give one all da 2823 from them should be accompanied by a da 3881 waiver of rights.

Response by CAPT Kevin B. made Jul 5 at 2015 12:41 PM

CAPT Kevin B. — Sun, 05 Jul 2015 12:41:07 -0400

If it's part of an Administrative Investigation, you can be penalized for not providing evidence and not signing off as truthful. So there should be a letter signed by the Skipper the investigator would show you that certifies everything is kosher. If there isn't, then an improper action is occurring. Word needs to get up to your SEL who can whisper in the right places to get things into a proper box. Great advice from the members to contact your JAG. Your IG is also a good resource.

When it comes to contractors, everyone including the Skipper is not authorized to deal with them on a contractor initiated complaint. Only the warranted contracting officer who's assigned to that contract can give direction, issue a requirement like provide testimony. If it was a contractor worker bitching at a Mil and action is then generated internally, that's improper as well. Some mid level Crusader Rabbit who hauls a contractor employee in to meet just violated Federal Statue by an Unauthorized Commitment (FAR) and unauthorized representation. So depending on what's really spinning, it could be correct but many times isn't. If the CoC isn't properly involved, things can spin out of control, hence kill morale.

Can't count the number of times as a Contracting Officer I had to uncluster improper Mil BS.

Response by COL Jon Thompson made Jul 5 at 2015 1:49 PM

COL Jon Thompson — Sun, 05 Jul 2015 13:49:12 -0400

I think that directing Soldiers to write a statement for an investigation or potential investigation is absolutely authorized and legal. Things that may seem taken out of context or harmless can actually be violations of regulations and the UCMJ. The commander is responsible for everything the unit does or fails to do and thus, can be held liable if he/she does not take issues seriously. That being said, I would wonder why you were told not to use a sworn statement form. While I have used statements written on plain bond paper for various investigations over the years, using a sworn statement for something like you allude to seems the right way to go. Hopefully this wasn't something that you were involved with and gave up your rights. If so, I would contact JAG ASAP.

Response by SFC Private RallyPoint Member made Jul 7 at 2015 1:33 PM

SFC Private RallyPoint Member — Tue, 07 Jul 2015 13:33:08 -0400

SFC(RET)Holtslander In one word No! Also I would recommend If Officer pushes it Go to JAG

Response by PO1 Glenn Boucher made Jul 7 at 2015 1:45 PM

PO1 Glenn Boucher — Tue, 07 Jul 2015 13:45:48 -0400

Best bet is to contact your JAG. Explain the situation fully with all details and they can give you the proper advice. Don't just go in and say that someone told you to give a statement because they are senior to you.

Response by MAJ Thomas Person made Jul 7 at 2015 2:13 PM

MAJ Thomas Person — Tue, 07 Jul 2015 14:13:54 -0400

First of all. Ask your commissioned officer to put that order in writing. Then see if he still wants you to follow that "lawful" order

Response by CPO Sandra Dornford made Jul 7 at 2015 2:16 PM

CPO Sandra Dornford — Tue, 07 Jul 2015 14:16:27 -0400

Contact your legal dept. and make sure whatever you give as a statement is written on the proper form and if you don't want to make a statement at the time then write that on the form. No one can make you give a statement.

Response by LTC Mark Beattie made Jul 7 at 2015 2:16 PM

LTC Mark Beattie — Tue, 07 Jul 2015 14:16:47 -0400

SGT Rodriquez - While I am not an attorney, I don't believe you can be forced to write a statement of any type. I would contact my local JAG office to get a legal answer. Keep in mind, if you don't write a statement, you need to be prepared for subsequent repercussions of refusing to provide the statement. Do your legal homework, decide what is right for you, then be ready for the outcome, good or bad.

Response by MSG Brad Sand made Jul 7 at 2015 2:29 PM

MSG Brad Sand — Tue, 07 Jul 2015 14:29:04 -0400

I do not think it matters if you want to be part of this or not...actually I know it does not matter. Without details it is hard to really say what you should, or should not, do BUT if directed to give a statement, give a statement.

If there is anything that can be held against you or your soldier, demand counsel. Actually, you probably want legal advice from those who study the law?

Response by SFC Luis Austin made Jul 7 at 2015 2:34 PM

SFC Luis Austin — Tue, 07 Jul 2015 14:34:34 -0400

No, you can contact your local JAG for assistance. As a Soldier you cannot be compelled to do something illegal or immoral. Plus you always have the right to legal counsel when your signature is required

Response by PV2 Charles Lagois made Jul 7 at 2015 2:36 PM

PV2 Charles Lagois — Tue, 07 Jul 2015 14:36:20 -0400

no it is an unlawful order.

Response by Lt Col Kurtis Sutley made Jul 7 at 2015 2:53 PM

Lt Col Kurtis Sutley — Tue, 07 Jul 2015 14:53:52 -0400

Why not consult the JAG before moving forward?

Response by SrA Christine Martinez made Jul 7 at 2015 2:56 PM

SrA Christine Martinez — Tue, 07 Jul 2015 14:56:39 -0400

Dear Sergeant (P) Benjamin Rodriguez,
I have to tell you: I have never been in the Army, nor was I in the Judge Advocate's office (JA)/Legal Office. I have been an Air Force (active-duty asset), an Air Force civilian (an OPM asset), and a civilian contractor, who had to follow the rules and regulations of the military unit I would have been assigned to, although for any prosecution of crimes, the military would not have been the appropriate authority.
Before you refuse or comply with a directive by a Senior NCO, I would consult the nearest JA.
Although DA Form 2823 is used for documenting informal counseling, to recording evidence for investigations, the guidance for filling out the form is in AR 15–6, Procedures for Investigating Officers and Boards of Officers. Your Senior NCO/Commander cannot refuse you your right to consult an attorney if you invoke that right, and before you attest to any statement, informal or formal, I would ask your Senior NCO exactly what charges or offenses he/she believes the civilian contractor to be guilty of. I know that a statement that is ordered to be given for one charge: say the incident was one where a civilian contractor accessed military communication equipment without proper vetting and permission, and transmitted obscene or lewd images on the government property, and while the recipient was not offended, his/her coworker at the desk next to him/her was offended, the sender can be accused and prosecuted, including terminated, for sexual harassment. In lieu of the DA Form 2823, I believe the communication advising the Commanding Officer that there is an investigator being assigned to the Commander's detail for the purpose of the investigation has to be on military letterhead, and the charges being investigated have to be specified, but in any case, it is still AR 15-6; specifically paragraph 2-1, that is the guiding authority. With the Memorandum, statements from witnesses can be attached, but if a supervisor officially request statements from witnesses, the statements can't be used for a completely different charge, like say... defacing government property with the intent to steal.
Personally, if I had to provide an accounting of a particular incident that I wasn't specifically involved in, but was present to witness, I would caveat the statement with "It is under duress that I provide this statement, and I am being compelled by.... " of the individual demanding your statement, and include that "no oath was administered during the submission of said statement."

Response by 1LT Geoffrey Oakley made Jul 7 at 2015 3:07 PM

1LT Geoffrey Oakley — Tue, 07 Jul 2015 15:07:29 -0400

Best course of action: Contact your local JAG officer before putting anything in writing. When making a sworn statement, you want to ensure that you are making a complete and truthful statement, to the best of your recollection. I do not believe that you can be forced to testify unless you were compelled to do so as part of an investigation, but I don't think that your immediate chain of command has the right to compel you to testify, due to the perception of undue command influence on the situation. An outside investigator not in your chain of command would probably be the best source for carrying out an investigation. Bottom line, consult JAG before signing off on anything. If you get push-back saying that you don't need to go to JAG, then you *certainly must* go to JAG.

Response by CWO2 Shelby DuBois made Jul 7 at 2015 3:07 PM

CWO2 Shelby DuBois — Tue, 07 Jul 2015 15:07:51 -0400

No.. but then again..who is asking you to. If you have to, include the honest truth.. that you are being directed to provide a statement against your will and as you said, this event has been 'blown out of proportion". If its a witch hunt, that should get it 86'd. Best bet is to contact your legal officer for direction and if you feel necessary, request your visit be kept confidential. Bottom line is that a wrong has been done then it should be dealt with... if so.. then the proceedings should be above board and no hint of impropriety. By asking you to make a statement but not an 'official' statement, then there is a can of worms in the making. Dealing with 'contractors' will get an IG's attention in a hurry.

Response by PO1 Joseph Frazier made Jul 7 at 2015 3:11 PM

PO1 Joseph Frazier — Tue, 07 Jul 2015 15:11:44 -0400

Contact legal because they will know the legalities involved with such a situation. Further, you might find that legal/JAG could already investigating the situation and will be able to keep your identity secret to prevent retribution.

Response by PO2 John Meade made Jul 7 at 2015 3:13 PM

PO2 John Meade — Tue, 07 Jul 2015 15:13:17 -0400

Going out on a limb with the info I'm looking at, Unless your enlistment oath has changed, I would say that is NOT a lawful order and as such you should NOT be forced to fill it out.

Response by 1SG Mark Colomb made Jul 7 at 2015 3:16 PM

1SG Mark Colomb — Tue, 07 Jul 2015 15:16:49 -0400

From my perspective, if there is an official investigation (including a Commander's Inquiry Art 15-6 formal or informal) and you are asked to provide witness information you have a responsibility as a Soldier to provide that information, whether you think the matter is being blown out of proportion or not. Now that said you have choices, some of which have been identified here. What you must not do is provide false information (one way or the other). These things have a way of working themselves out. If it really is being blown out of proportion the investigation will show it and it will soon die a painless death of insignificance.

Remember you are the only one who can give up your integrity, no one can take that from you.

Response by COL John Power made Jul 7 at 2015 3:43 PM

COL John Power — Tue, 07 Jul 2015 15:43:18 -0400

CW4 Westbrook offers the best answer. If the individual and organization involved is a government contractor then the contract administrator, contracting officer and JAG that supports them is absolutely the way to go. Attempting to take action directly with the contractor could cause serious problems. Stay away from that; do not make sworn statements for the contractor management. Get to the contracting authorities immediately and they will guide you. There is a contract and within it is a statement of work and rules for the contractor employees. Don't wade in where you aren't experienced; use the resources that are. Otherwise you could muck up the Government's position in the terms of the contract.

Response by MSgt Private RallyPoint Member made Jul 7 at 2015 3:44 PM

MSgt Private RallyPoint Member — Tue, 07 Jul 2015 15:44:51 -0400

I don't know the legalities at all, but I would like to make a comment. "At the time, the victim did not express any concern." Most people who are uncomfortable do not speak up at the time. Often, they will speak with someone they trust to get another perspective before making a comment. Don't take someone's silence, or even someone's reluctant acceptance, as being 'okay'. Many people feel they'd be taunted, bullied, or harassed if they said they felt uncomfortable.

Can you honestly tell us that everyone in your shop would've treated the victim with respect, stopped the topic immediately, and didn't try to question the victim's feelings if the victim did speak up at the time? Every single person would've had the maturity not to take it personally that the victim felt uncomfortable?

Response by Cpl Cary Cartter made Jul 7 at 2015 3:52 PM

Cpl Cary Cartter — Tue, 07 Jul 2015 15:52:08 -0400

Forced? No. Threatened with NJP if you don't? Silly, but that could happen. No matter what, the sworn statement, whether on a military form or not, is a legal statement that will presumably be used in a court of law at some level. If your sworn statement is "I was not witness to anything beyond the ordinary" then they cannot dispute that without being able to read your mind.

Response by COL Charles Williams made Jul 7 at 2015 3:53 PM

COL Charles Williams — Tue, 07 Jul 2015 15:53:19 -0400

SGT(P) Private RallyPoint Member First as several had said I would consult SJA/TDS. From a law enforcement perspective, and legal perspective, the only one(s) protected by the 5th Amendment, are those who are considered subjects, not the witnesses. As far as I am concerned as a MP, and former Commander an Company, Battalion, and Brigade level, witnesses have not right to remain silent....

But, I will also say, as a Commander or MP investigating, I too always consulted SJA before proceeding with any inquiry or investigation. I personally don't think "not wanting a part of it" is an option...

As LTC John Shaw stated.

Response by PO3 Steven Sherrill made Jul 7 at 2015 4:16 PM

PO3 Steven Sherrill — Tue, 07 Jul 2015 16:16:12 -0400

As much as you want nothing to do with this, you need to go to base legal and find out. If you are being required to complete a form which is not a DoD form, you need to make sure that you are not left without a chair when the music stops.

Response by SPC Glenn Lovell made Jul 7 at 2015 4:44 PM

SPC Glenn Lovell — Tue, 07 Jul 2015 16:44:59 -0400

The soldier could go to JAG and get representation (even though they are a witness), then make a statement in accordance with their conscience. It won't make the command happy, but the next higher command would then become aware of the problem.

Response by CPO Douglas Bach made Jul 7 at 2015 4:49 PM

CPO Douglas Bach — Tue, 07 Jul 2015 16:49:28 -0400

I would say that NO you can not be forced to write and sign a statement that is false . This would be an unlawful order and you do not have to follow. You should report the person trying to get you to write and sign the false statement to a higher authority,

Response by Cpl Patrik Bernard made Jul 7 at 2015 4:51 PM

Cpl Patrik Bernard — Tue, 07 Jul 2015 16:51:05 -0400

Of course not

Response by PO2 Gerardo Zuniga made Jul 7 at 2015 4:52 PM

PO2 Gerardo Zuniga — Tue, 07 Jul 2015 16:52:41 -0400

No, but make a statement

Response by TSgt Mario Guajardo made Jul 7 at 2015 4:54 PM

TSgt Mario Guajardo — Tue, 07 Jul 2015 16:54:12 -0400

Not just no but HELL NO! However, be advised that despite rules against "retaliation" there could be "consequences" for you. Choose your battles carefully.

Response by Pvt Bill Oneilkl made Jul 7 at 2015 4:55 PM

Pvt Bill Oneilkl — Tue, 07 Jul 2015 16:55:03 -0400

No, especially if it is to be used for the purpose stated.

Response by SSG Benny Johnson made Jul 7 at 2015 4:57 PM

SSG Benny Johnson — Tue, 07 Jul 2015 16:57:30 -0400

I would seek counsel from JAG. I would go thru the chain of command to solve the issue. If this fails then request to see the CSM/BC on the open door policy

Response by SGT Karen Scott made Jul 7 at 2015 5:01 PM

SGT Karen Scott — Tue, 07 Jul 2015 17:01:34 -0400

NO. We have the right to stand up against an unlawful order!!!

Response by PFC Terry Kuehner made Jul 7 at 2015 5:05 PM

PFC Terry Kuehner — Tue, 07 Jul 2015 17:05:48 -0400

According to the UCMJ no they can not force you to write out any sworn statment

Response by LCpl Private RallyPoint Member made Jul 7 at 2015 5:09 PM

LCpl Private RallyPoint Member — Tue, 07 Jul 2015 17:09:43 -0400

I would refuse to sign anything that is not a formal military document.

Response by MAJ Bill Maynard made Jul 7 at 2015 5:33 PM

MAJ Bill Maynard — Tue, 07 Jul 2015 17:33:57 -0400

I'm not a JAG. I don't think it's an unlawful order to require a sworn statement. It is illegal to influence what is written in that statement. Undue command influence...

Response by TSgt Michael Williamson made Jul 7 at 2015 5:34 PM

TSgt Michael Williamson — Tue, 07 Jul 2015 17:34:38 -0400

Contact JAG and ask them. There are bound to be fine points that affect it.

I would expect, though, that they cannot be forced to make any non-official statement. If it was on duty it's official, and if not, they are not subject to such an order.

Response by SFC Bill Graham made Jul 7 at 2015 5:40 PM

SFC Bill Graham — Tue, 07 Jul 2015 17:40:31 -0400

I agree with MAJ Petrarca. This is an unlawful order and JAG willmost likely tell you the same.

Response by 1SG Rudolph Watt made Jul 7 at 2015 5:59 PM

1SG Rudolph Watt — Tue, 07 Jul 2015 17:59:25 -0400

First, the military has provided forms for everything they want in writing and any request to do otherwise can be viewed as a unlawful order, a request for a incident report can be a legit order from the higher as it involved soldiers/civilians under their command and control which also has forms to do so and is usually followed up with a sworn statement on the correct form.

Response by 1SG Michael Farrell made Jul 7 at 2015 6:12 PM

1SG Michael Farrell — Tue, 07 Jul 2015 18:12:44 -0400

My first question is who's trying to force you to write the statement? Frankly, given the emerging no -tolerance atmosphere on racial or sexual banter, I'd probably be careful about how I responded to the thing. I also would not swear to anything unless it was official. Might want to schedule a visit to JAG. As for the contractor, hard if not impossible for the soldier to get the contractor fired. Chain of command will be reluctant to share officially with the employer.

Response by PO3 Jef Mayes made Jul 7 at 2015 6:17 PM

PO3 Jef Mayes — Tue, 07 Jul 2015 18:17:11 -0400

When I was an E-2, I stated to our crewleader, a seasoned E-6, "No, I won't do that, that is an unlawful order. If you want, we can go ask the Command Masterchief." (E-9)
He didn't as I was correct. As the Maj. stated before, it's an unlawful order.

Response by PO3 Jef Mayes made Jul 7 at 2015 6:18 PM

PO3 Jef Mayes — Tue, 07 Jul 2015 18:18:51 -0400

Oh, also...you're entitled to legal counsel if they push this. If they won't provide it, you can get it for FREE here...
http://www.lsc.gov

Response by PO3 Robert Leahy made Jul 7 at 2015 6:23 PM

PO3 Robert Leahy — Tue, 07 Jul 2015 18:23:44 -0400

No. you still have free will, they will likely retaliate and there are laws to protect you from retaliation.... The military makes everyone believe you have to listen to every order, but a legal order has to be within reason and without material violation of free will. You still have individual rights.

Response by SSgt Kenneth Love made Jul 7 at 2015 6:24 PM

SSgt Kenneth Love — Tue, 07 Jul 2015 18:24:37 -0400

There is nothing within the UCMJ that forces a soldier to right a sworn statement by anyone of higher rank. Although serving requires following orders, illegal orders are not admisable.

Response by PO2 Dan Ninedorf made Jul 7 at 2015 6:30 PM

PO2 Dan Ninedorf — Tue, 07 Jul 2015 18:30:51 -0400

The answer is Yes, ask the sailors of the USS Liberty.
http://www.usslibertyveterans.org/
http://www.gtr5.com/
http://ussliberty.org/gifs.htm

Response by 1SG Jesse Perez made Jul 7 at 2015 6:36 PM

1SG Jesse Perez — Tue, 07 Jul 2015 18:36:51 -0400

Chain of command first! This problem will soon be out of your hands, but you can always let your command know that you wish to speak to your battalion SGM for advise. 9 X out of 10 he will refer you back to your 1SG or Commander.

Response by SFC Maury Gonzalez made Jul 7 at 2015 6:46 PM

SFC Maury Gonzalez — Tue, 07 Jul 2015 18:46:25 -0400

Hmmm, tethering on command influence

Response by SGT Jim Z. made Jul 7 at 2015 6:47 PM

SGT Jim Z. — Tue, 07 Jul 2015 18:47:17 -0400

No, not only is unlawful it is unethical.

Response by LTC John Wilson made Jul 7 at 2015 6:47 PM

LTC John Wilson — Tue, 07 Jul 2015 18:47:25 -0400

First you need to go to the JAG office and tell him your dilemma. Second don't write anything that you did not see, hear, or is against what you saw or heard. Just be truthful and this will work out. any officer using rank to force legal statements is in violation of the UCMJ, Conduct unbecoming an Officer.

Response by SMSgt Gary Calhoun made Jul 7 at 2015 6:47 PM

SMSgt Gary Calhoun — Tue, 07 Jul 2015 18:47:32 -0400

Not in this life or any other. A sworn statement, whether on a DA 2823 or a piece of bond paper must be of your own free will and accord. I've been in military law enforcement for about 3 decades - Army and Air Force - and am always amazed how many people freely give up their rights. The following statement is on the AF form right before you sign: "I hereby voluntarily and of my own free will make this statement without having been subjected to any coercion, unlawful influence, or unlawful inducement. I swear (or affirm) I have read this statement, initialed all pages and corrections, and it is true and correct to the best of my knowledge."

Response by SPC Phillip Sheldon made Jul 7 at 2015 6:51 PM

SPC Phillip Sheldon — Tue, 07 Jul 2015 18:51:08 -0400

In my experience a soldier can not be made to sign any civilian legal document. Now if the chain of command asked them to and the soldier agrees than it is o.k.
But once again, I would believe that a sworn statement is good enough. Especially if the incident happened on base.

Response by SGT Mike Ok made Jul 7 at 2015 6:53 PM

SGT Mike Ok — Tue, 07 Jul 2015 18:53:15 -0400

IMHO, NO.

Response by Maj Mike Sciales made Jul 7 at 2015 6:58 PM

Maj Mike Sciales — Tue, 07 Jul 2015 18:58:02 -0400

Is this a UCMJ action? A soldier can be compelled to testify as to what they heard or saw, but only by a military judge, or a Commander, but if this is some sort of civilian action you can refuse. If you message me I can give you a much better answer, but for now you ask "what authority is compelling me?"

Response by CW3 Arthur Petty made Jul 7 at 2015 6:59 PM

CW3 Arthur Petty — Tue, 07 Jul 2015 18:59:50 -0400

I do know what type of force is being used to obtain a sworn statement, but that one element would make any such statement illegal. A legal sworn statement must be voluntary. There are investigatory entities which should be contacted to obtain the facts about any improriety. These superiors are acting outside of their arena of expertise and should not do anything which could compromise any legitimate investigation. The 'porfessionals' know how to proceed. These superiors should consult the proper investigatory agency.

Response by Maj Private RallyPoint Member made Jul 7 at 2015 7:13 PM

Maj Private RallyPoint Member — Tue, 07 Jul 2015 19:13:57 -0400

You don't really go into what that unbecoming behavior was. Since you mentioned "victim," I'm assuming there was some sort of verbal harassment or unwanted attention toward the victim. Unless the battalion/squadron commander has appointed an investigation officer, and the investigation officer is asking for sworn statements, there is no legal basis for being forced to write a sworn statement.

Now the unit commander can ask his soldiers to write a statement to ascertain what happened. Remember, the unit commander is responsible for the good order and welfare of his troops and ensuring the workplace is hospitable. If victim brought this incident to the attention of the unit commander, then unit commander doesn't have any choice but to conduct an informal investigation to determine what happened and how to respond to it.

With that said, the UCMJ doesn't cover contractors, so if a crime occurred, it would be dealt with by local authorities.

Also the government doesn't need statements from soldiers do get rid of a DoD contractors. All it takes is the government telling the contractor's PM his services are no longer needed. This happens more oft than not.

Response by MSgt Private RallyPoint Member made Jul 7 at 2015 7:26 PM

MSgt Private RallyPoint Member — Tue, 07 Jul 2015 19:26:13 -0400

No....unlawful order.

Response by TSgt Brandon Mills made Jul 7 at 2015 7:27 PM

TSgt Brandon Mills — Tue, 07 Jul 2015 19:27:25 -0400

I would call your local JAG ASAP. The military has a their version of subpoena powers but it only works when there is an article 32 hearing, trial or criminal behavior (as far as I know.) If we are talking about someone being offended by language, it would depend on if that language violated DoD or whatever your branch's policy is on such language i.e. sexist, bigoted or racist statements. As a military cop for 11 years, I have never seen anyone who could be coerced under pressure to provide a sworn statement against their will either criminally or within the CoC. You Commander is walking on a slippery slope here.

Response by SSG David Opsahl made Jul 7 at 2015 7:35 PM

SSG David Opsahl — Tue, 07 Jul 2015 19:35:56 -0400

Whoever is attempting to get this "order" executed should be drummed out of the army with a Dishonorable Discharge! Instead they will probably be promoted. At least that is what my experiences in the Army taught me.

Response by SPC Raymnd Tessicini made Jul 7 at 2015 7:46 PM

SPC Raymnd Tessicini — Tue, 07 Jul 2015 19:46:59 -0400

I was an MP and we learned in school that "Nobody can force you to write a statement or threaten you if you do not write a statement" It has not changed, and if further coercion or harrasment then take the mtter to JAG or the IG or both. Your rights have to be and will be protecte.

Response by PO3 Jody Wangen made Jul 7 at 2015 7:50 PM

PO3 Jody Wangen — Tue, 07 Jul 2015 19:50:28 -0400

I have worked for a contractor since 1989. the form they are asking you to fill out is the civilian equivilant. sounds like one of the contractors has taken insult and has filed a "hostile work environment" complaint. this happened 2 years ago where I work. a guy was fired. several others demoted. this is part of that politically correct bull crap the nation has fallen into where everyone cries because they think they are insulted.

Edit

Response by LCDR Kent Meyer made Jul 7 at 2015 7:52 PM

LCDR Kent Meyer — Tue, 07 Jul 2015 19:52:26 -0400

Agreed with others. No they can not force you. You can write a statement on a DA 2823, which would be the appropriate action even against a contractor or you can have a statement taken by lawyer or law enforcement officer.

Response by 1SG Private RallyPoint Member made Jul 7 at 2015 7:53 PM

1SG Private RallyPoint Member — Tue, 07 Jul 2015 19:53:55 -0400

Most responses have already identified the need to get legal guidance so I won't add to that. Instead I want to point out that the "unbecoming behavior, that normal banter among the enlisted" should be what you concern yourself with.
I can't say for certain, with your vague references , that there was an actual offensive incident, but if you can recall any of your training (EO/SHARP) the offense is as perceived by the
"Victims" not the "perpetrators. "
just food for thought, but you maybe you should reevaluate you squads climate.

Response by CPO Eugene Gillam made Jul 7 at 2015 7:58 PM

CPO Eugene Gillam — Tue, 07 Jul 2015 19:58:09 -0400

Just because you were in the vicinity does not mean you heard or paid attention to the discussion and I sincerely doubt anyone can prove you did. If you're forced to write a statement just write "no comment".

Response by PO1 Jvon Clark made Jul 7 at 2015 8:00 PM

PO1 Jvon Clark — Tue, 07 Jul 2015 20:00:29 -0400

For the most part, all statements you may provide should be voluntary

Response by SPC Brian Bay made Jul 7 at 2015 8:05 PM

SPC Brian Bay — Tue, 07 Jul 2015 20:05:32 -0400

First and foremost, my disclaimer is that I am not an attorney and this is not to be interpreted as "Legal Advice". On the surface, I understand the desire to not be forcefully inserted or otherwise sucked into the drama of others. There are multiple prongs to this situation:

I don't believe that soldiers can be "forced" or directly ordered to compose a witness statement, really against anyone. As I understand, soldiers can be ordered to cooperate with any military or other "investigation" be it civil or criminal. In reading between the lines, more pointed, the "banter" that was referenced could include sexual harassment which in and of itself could have criminal implications. (again for clarity sake, this is an example an the original poster has not defined the nature of the investigation).

Should this develop into a criminal or civil matter, those who have been identified as having knowledge of what took place or being witnesses thereto, could be compelled to provide information/testimony through legal channels (i.e., witness subpoena, deposition or other interviews) all of which will more than likely be made under oath (the truth, the whole truth and nothing but the truth....under penalty of perjury, etc, etc) or after being read a Miranda Warning (right to remain silent...anything you say can and WILL be used AGAINST you).

The last thing that you want to do is give ANYONE, ANY reason to come back at you and have it bite you in the ass. You don't want to become named as someone who was involved in any conspiracy, coverup, etc; nor do you want to face any type of obstruction or impeding investigation charges.

It sounds to me that someone's feelings got hurt, they are going up the civilian chain of command and are competing in a "Who's **** is bigger contest". I would take the course of action and respond to any direction or other inquiries as follows:

"I will cooperate with any and all investigations/inquiries after being granted immunity, conferring with counsel and having counsel be present during any and all interviews/questioning."

Any information that is provided should be limited to factual in nature only; I would not offer any opinion on anything; if asked about anything that called for an opinion, I would respond with something along the lines of, "I'm not qualified to answer that and it would not be appropriate to speak as to what someone else thought or felt."

I hope things work out fro the best.

Response by PO2 Arthur Delsing made Jul 7 at 2015 8:10 PM

PO2 Arthur Delsing — Tue, 07 Jul 2015 20:10:50 -0400

You need to be careful, good job keeping this vague. Talk to JAG however understand going against an illegal order can still damage yourself and your career. If you can get JAG to step in without it biting you go for it.

Response by SFC Samuel Simonton made Jul 7 at 2015 8:14 PM

SFC Samuel Simonton — Tue, 07 Jul 2015 20:14:25 -0400

NO. If you feel you have no choice, simply write that you don't recall.

Response by SGT Carmon McCurrie made Jul 7 at 2015 8:22 PM

SGT Carmon McCurrie — Tue, 07 Jul 2015 20:22:04 -0400

I would use the chain of command, and speak with JAG. Sometimes an issue can and will be resolved with COC.

Response by 1SG Todd Sullivan made Jul 7 at 2015 8:29 PM

1SG Todd Sullivan — Tue, 07 Jul 2015 20:29:20 -0400

So, look, lots of "answers" and lots of fluff... You can write a sworn statement on any paper... There are a set of regs to that but anyway.. No you cannot be made to write one, unless your violating the UCMJ by not writing it. Bottom Line Up Front even though there is a ton of knowledge and experience of all levels on here....... This topic is one that should have been taken straight to JAG not Rally Point. Ever heard the phrase "sh$t house" or Barracks Lawyer?? That's what this forum would equate to. So go see JAG!!!! but hang up your boots if you compromise your integrity.. That is all carry on.

Response by CPO Kenneth Wilkinson made Jul 7 at 2015 8:34 PM

CPO Kenneth Wilkinson — Tue, 07 Jul 2015 20:34:39 -0400

Nope

Response by 1SG Joe Burgess made Jul 7 at 2015 8:35 PM

1SG Joe Burgess — Tue, 07 Jul 2015 20:35:18 -0400

You were vague, but remember truth trumps all. Do not get yourself tied up in some "cover up." If you own it, then own it. This is exactly why even when you are having fun with your buddies, you must remember you are a professional soldier 24/7.

Response by SPC Ryan Henderson made Jul 7 at 2015 8:36 PM

SPC Ryan Henderson — Tue, 07 Jul 2015 20:36:21 -0400

I would say no it is unlawful and if you are threatened with punishment if you don't comply you seek legal council.I have experienced a similar situation and after seeking council received no punishment and was advised not to sign any statements...Of course do not forget to use the proper steps through your chain of command.

Response by SGT Bill Undique Shavkey made Jul 7 at 2015 8:37 PM

SGT Bill Undique Shavkey — Tue, 07 Jul 2015 20:37:31 -0400

Working in the JAGC for as long as I had, much of this had been going on for quite some time. Under the UCMJ, you could be 'penalized' for not following an order, although your defense would be that it was an unlawful order. Only your commander can choose to exert such an act. However, on a technical aspect, the IG should be given a call to investigate this matter, as anyone flaunting rank or position to coerce illegal behavior can, and should be, stopped. I was a paralegal investigating these claims made by junior ranks (years ago), and it seemed that many of these circumstances never continued on, thus never receiving action deemed appropriate to the senior ranks. So, I agree a call needs to be to the SJA, as well as the IG.

Response by Sgt Eric Moorman made Jul 7 at 2015 8:37 PM

Sgt Eric Moorman — Tue, 07 Jul 2015 20:37:51 -0400

No. No one can be forced to be witness unless they are subpoenaed in criminal court and are under oath. Then they have to answer any questions directed by the judge or may be held in contempt of court. Possible day or so in jail.

Response by GySgt Ronald Bacote made Jul 7 at 2015 8:40 PM

GySgt Ronald Bacote — Tue, 07 Jul 2015 20:40:15 -0400

No they can't, that would be unprofessional .

Response by PVT Eli Hathaway made Jul 7 at 2015 8:43 PM

PVT Eli Hathaway — Tue, 07 Jul 2015 20:43:46 -0400

I'm no lawyer but I'm sure they can require you to write an official sworn statement, just follow your gut when you write your statement, what do you think is right? You certainly don't want to lie on a sworn statement, but again use your own judgement on what you think is right and word your statement accordingly. Too many people in this day and age get their panties twisted if someone's called a name or looked at wrong. The law is there for a reason but I still wouldn't take part in something minor that was going to end up harming someone who's an asset to your missions.

There's a reason a solid soldier who's proven himself may get a lesser punishment for the same 'crime' as someone who's a constant fuck-up and always looking for the easy way out of every situation (thinking only of themselves). That's life, that's why it's also important to be an asset in every mission you're assigned to, if you wanna be a soldier be the best you can, if you don't GTFO!

Response by SFC Franky Hicks made Jul 7 at 2015 8:44 PM

SFC Franky Hicks — Tue, 07 Jul 2015 20:44:13 -0400

i am not sure why a senior leader would ask an enlistee to such act, But rest assure that issue should be brought up to the senior leader unless they hiding the real facts. In which is illegal also an un becoming of a senior non commisioner oficer, You may want to seek legal actins immediately to protect the enlistee as well as the integrity of the unit, that can turn into something real ugly, And I am ashame the a senior NC would request such thing!

Response by PO3 William Smith made Jul 7 at 2015 8:47 PM

PO3 William Smith — Tue, 07 Jul 2015 20:47:07 -0400

Hmmm... You can't be forced to write a statement, however, this is a case against a civilian contractor. This is not a UCMJ issue. Any case against a civilian contractor would have to be heard in a civilian court. I suspect, by the very little information, that perhaps the military needs your sworn, truthful statements just in case the issue ever goes to a civilian court. I would suggest that it is probably wise to provide the statements. Also though, there is a possibility that such sworn statements could land your team in difficulties. I think that before you do anything, you should consult a lawyer. Additionally, keep in mind that refusing to provide sworn, truthful statements even though you have a right to do so, can lead to more trouble because such refusal will provide the perception that perhaps there is something to hide. Truth is always the best.

Response by SPC Margaret Higgins made Jul 7 at 2015 8:47 PM

SPC Margaret Higgins — Tue, 07 Jul 2015 20:47:27 -0400

My father was a Federal Administrative Law Judge. Boy, would he have something to say about THIS. He would ABSOLUTELY be AGAINST this.

Response by SGT Jorge RuedaLopez made Jul 7 at 2015 9:11 PM

SGT Jorge RuedaLopez — Tue, 07 Jul 2015 21:11:44 -0400

I had a similar situation, in which, I was approached by a senior NCO in regards a conduct he observed that he though I witnessed entirely. He approached me about filling out a sworn statement. I simply told him I couldn't for two different reasons. One I didn't witness the whole event just a part a frankly my statement could be easily taken out of context and second the conduct I saw wasn't hurting anyone. Definitely the my senior NCO resented that I didn't do it and try to force it but I just simply said no. If I would have made the statement, it would have hurt my military career and relations with other soldiers. So simply it can't be forced.

Response by MSG Robert Mills made Jul 7 at 2015 9:16 PM

MSG Robert Mills — Tue, 07 Jul 2015 21:16:26 -0400

No. Id simply say you want a statement well want in one hand and take a dump in the other see which fills up first lol. Do your own paperwork unless if falls into your perview, and would harm one of your soldiers.

Response by 1SG Jeffery Rentschler made Jul 7 at 2015 9:16 PM

1SG Jeffery Rentschler — Tue, 07 Jul 2015 21:16:53 -0400

No they can not force you to write a statement unless it is on the official form and you are read your rights. If they take this route then request to go and see JAG and have a lawyer review the question with you prior to submitting your response.

Response by 1LT Private RallyPoint Member made Jul 7 at 2015 9:24 PM

1LT Private RallyPoint Member — Tue, 07 Jul 2015 21:24:07 -0400

JAG could be busy . Look it up. Go to some military court cases database and type in some keywords: burden of proof, legal statement, conduct unbecoming. Maybe it will help you establish a defensible conclusions.

Response by SFC Rollie Hubbard made Jul 7 at 2015 9:24 PM

SFC Rollie Hubbard — Tue, 07 Jul 2015 21:24:34 -0400

I would say that it is NO it is illegal and will not stand up. Get your butt to JAG ASAP protect your self.

Response by SFC Brian Speich made Jul 7 at 2015 9:24 PM

SFC Brian Speich — Tue, 07 Jul 2015 21:24:55 -0400

Not a chance. I have been retired for over 30 years and unless something has changed, which I drought, only write what you have saw and be truthful. Nothing will get you in more trouble then to write what someone wants you and not be truthful. I spent three years in Viet Nam and am there right now for Vacation. Some of the after action reports were not pretty but everybody wrote the same thing, truthfully, and on their own. While some of the reports did get us an a** chewing once in a while for what we had to do but I got them all out alive.

Response by SGT Jorge RuedaLopez made Jul 7 at 2015 9:25 PM

SGT Jorge RuedaLopez — Tue, 07 Jul 2015 21:25:11 -0400

Response by PO3 Myali Remorra made Jul 7 at 2015 9:26 PM

PO3 Myali Remorra — Tue, 07 Jul 2015 21:26:19 -0400

No he cannot, PERIOD!
As a E3 Master at Arms (Navy Military Police) I once had a Chief (E9) tell me that I had write a voluntary statement about a certain situation in which I didn't feel comfortable. As an E3 at the time, I refused the E9's attempt to intimidate (which is coercion) me into writing it. I said no, the end of that story. Nothing ever happened, nothing could ever happen. Don't fold under pressure.

Response by 1LT Private RallyPoint Member made Jul 7 at 2015 9:30 PM

1LT Private RallyPoint Member — Tue, 07 Jul 2015 21:30:20 -0400

Look it up. Blogs responses are not authoritative literature. Go to a military court case database and type in keywords: conduct unbecoming, legal statements, dd form whatever. What are the facts and circumstances around this statement?

Response by MSG David Johnson made Jul 7 at 2015 9:33 PM

MSG David Johnson — Tue, 07 Jul 2015 21:33:42 -0400

Unless it is required by legal sources and on a sworn statement they should not be forced to write anything.

Response by SSgt Chris Frey made Jul 7 at 2015 9:37 PM

SSgt Chris Frey — Tue, 07 Jul 2015 21:37:29 -0400

Absolutely not. As a prior military detective you can not be forced to take a statement. Seek your respective branches legal out and ask to talk to a lawyer.

Response by SFC Brian Speich made Jul 7 at 2015 9:39 PM

SFC Brian Speich — Tue, 07 Jul 2015 21:39:12 -0400

Not a chance, unless the military has changed after I retired 30+ years ago, which I drought. I spent three years in Viet Nam and there right now on Vacation. All of our after action report were truthful, and all were about the same thing, each person wrote what he saw and was not influenced by anyone. Now some of our reports were not very pretty about what happened out in Indian country, we might of got a butt chewing, but everyone went home alive.

Response by SPC Ronald Collins made Jul 7 at 2015 9:41 PM

SPC Ronald Collins — Tue, 07 Jul 2015 21:41:12 -0400

From my understanding of UCMJ you can always claim Article 31, military version of the 5th Amendment but I'm a former 11B. So my knowledge comes from Article 15s and some internal investigations when I was in the Army.

Response by CPL Eric Allen made Jul 7 at 2015 9:59 PM

CPL Eric Allen — Tue, 07 Jul 2015 21:59:29 -0400

been there (NCO were tying to get each other demoted but nothing happened to them beside hurt feelings report.) and in some situations some soldiers unaware of what they are putting down.but forcibly no

Response by SSG Tonia Howard made Jul 7 at 2015 10:04 PM

SSG Tonia Howard — Tue, 07 Jul 2015 22:04:17 -0400

It needs to be on the sworn starement form and no you cant be forced to write it. If writing a statement is in favor of helping either the soldier or contractor it has to be their own prerogative

Response by SGT Loren Johnson made Jul 7 at 2015 10:06 PM

SGT Loren Johnson — Tue, 07 Jul 2015 22:06:02 -0400

You have the ability to decline writing a statement if you wish. It the actions persist involve JAG and the IG.

Response by Bryce Englin made Jul 7 at 2015 10:09 PM

Bryce Englin — Tue, 07 Jul 2015 22:09:45 -0400

I would recommend you talk with both the JAG office and tech out to the IG to see if something can be done. What makes no sense Is that you're being asked to write out a nonstandard sworn statement, this feels like we have a barracks lawyer scenario written all over it.

Response by CSM David Litteral made Jul 7 at 2015 10:19 PM

CSM David Litteral — Tue, 07 Jul 2015 22:19:49 -0400

The short answer is yes. The 5th amendment and the military version of protection from self-incrimination do not extend to others- only self. In other words, a soldier can be ordered to give an account of what he or she saw, heard, etc. However, if providing a statement about the contractor implicates the person writing the statement, then the protection against self-incrimination has been violated. So, as one of my esteemed colleagues put it, call JAG or the IG to ask if it is a lawful order. If the order doesn't direct you to do anything illegal, immoral, unethical, or unsafe, it is probably a lawful order.
All the best,
CSM (Ret) Litteral

Response by SGT Calvin Frazier made Jul 7 at 2015 10:24 PM

SGT Calvin Frazier — Tue, 07 Jul 2015 22:24:28 -0400

You know the answer after all of these comments. Do the good and right thing. First pray on it and then move on it. God put other people in your life to hellp you and other's to get you to see him. In the end it's your decision. Don't fear your decision but standby it and know that it was the right thing to do. GBY

Response by SPC Michelle Nelson - Thompson made Jul 7 at 2015 10:26 PM

SPC Michelle Nelson - Thompson — Tue, 07 Jul 2015 22:26:19 -0400

I just wanted to get one thing clarified. It's not going to make a difference about consulting JAG but it may change some of the responses. "My soldiers and I are being forced to write a sworn statement but not on a DA form 2823." A lot of what I'm reading pertains to contractors. Who is trying to force you to write out the statements? Military or civilians? Things sometimes have a habit of going sideways when the two mix. If it's your Command they should be getting you write it out out on a DA 2823. Not doing so makes me leery of their intentions, short of having nothing to write on but tp. Get in and see a defense lawyer ASAP to CYA, the rest involved too. Like it was mentioned further down in the remarks worst case scenario write you have nothing to say until you've consulted with JAG. It won't make you any friends with the Command but at least your six is covered. Good Luck.

Response by CAPT George Williams made Jul 7 at 2015 10:45 PM

CAPT George Williams — Tue, 07 Jul 2015 22:45:52 -0400

Follow chain of command. That does not include sworn statements. Give superiors your opinion & let superiors file the complaint. Objectional behavior should not be condoned, but reporting it short of sworn statement should be sufficient.

Response by SPC Timothy Repetto made Jul 7 at 2015 11:19 PM

SPC Timothy Repetto — Tue, 07 Jul 2015 23:19:07 -0400

Speak with JAG and ask them for legal advice on the matter. If any of your leadership is still pressing the matter and is badgering you or abusing their rank to pressure you to give in then go to IG if you think its unlawful. I would need to know more details in order to give you more detailed advice.

Response by SPC Kenneth Dziewulski made Jul 7 at 2015 11:24 PM

SPC Kenneth Dziewulski — Tue, 07 Jul 2015 23:24:36 -0400

I believe it is called purgery. Either in written or testimony form. If its a sworn statement then it is illegal and punishable under UCMJ...Your Chain of Command should be involved if it involves both civilian and Military. You can not be compelled to make any statements written or oral...

Response by SSG Ronald Rollins made Jul 7 at 2015 11:25 PM

SSG Ronald Rollins — Tue, 07 Jul 2015 23:25:48 -0400

As a retired MP, I can tell you, there is no way they can make them write anything. All they have to say is they don't know the entire story, which I am sure that don't. They can also tell them they want to talk to a lawyer or someone at legal before they do something that may get them into trouble. If it goes to court and they wrote a statement then go to court and say something different it will get them into trouble or get them investigated. And if they do write something all they have to say is that they were forced to write it and then the command will be in trouble. I have seen entire commands get relieved for less. And a sworn statement MUST be on the correct form.

Response by PO2 Dave MatchDirector made Jul 8 at 2015 12:37 AM

PO2 Dave MatchDirector — Wed, 08 Jul 2015 00:37:37 -0400

Document everything, CYA, if forced to sign make sure that it is also noted you are signing under coercion or duress. Be advised that this "Superior" may possibly be vindictive.

Response by CMSgt Michael Osborn made Jul 8 at 2015 12:48 AM

CMSgt Michael Osborn — Wed, 08 Jul 2015 00:48:08 -0400

I would speak to legal to ensure your and subordinates rights are protected.

Response by PO3 John Jeter made Jul 8 at 2015 12:55 AM

PO3 John Jeter — Wed, 08 Jul 2015 00:55:42 -0400

I would think that if anyone wants a sworn statement from a service member concerning any matter at all, the requesting party would be obliged to go through the proper chain of command channels. I'm not familiar with Army structure for something like this, but wouldn't it have to go through the Provost Marshalls office? Y'all please correct me if I'm mistaken. I know the Navy takes a dim view of ........'outside processes' ........which involve Naval personnel without being informed first. I would refer the one demanding the statement to the proper legal authority and let them determine the validity of the request and whether you will be allowed or required to furnish the statements.

I see from further comments I should have said 'JAG' rather than "Provost Marshal' so you folks can put the hammers away, please! *grin* This swabbie stands self-corrected!

Response by LCDR Private RallyPoint Member made Jul 8 at 2015 12:59 AM

LCDR Private RallyPoint Member — Wed, 08 Jul 2015 00:59:35 -0400

Nobody can force you to put your name to any legal document for any reason; just be prepared for the backlash.

Response by PFC Stephens Clark made Jul 8 at 2015 1:31 AM

PFC Stephens Clark — Wed, 08 Jul 2015 01:31:21 -0400

Write the statement in a manner that would be So Vague it wouldnt help them in the least, and tell them you wish to not be a part of this fiasco.

Response by SFC Private RallyPoint Member made Jul 8 at 2015 1:36 AM

SFC Private RallyPoint Member — Wed, 08 Jul 2015 01:36:09 -0400

Just do the right thing. Give Leaders all the information they need to make an informed Decision. And to pick the proper path. Are you an NCO or just a Sergeant? It is not our place to dictate what our seniors need from us, but to be able to provide what is in our power for them to do their job.

Response by MSgt Donna Austin made Jul 8 at 2015 3:25 AM

MSgt Donna Austin — Wed, 08 Jul 2015 03:25:25 -0400

If it's a LEGAL statement he wants, and you're not sure if his request is LEGAL, the answer is simple. Contact JAG.

Response by PO3 David Persons made Jul 8 at 2015 3:31 AM

PO3 David Persons — Wed, 08 Jul 2015 03:31:56 -0400

This is a tough one, and I am not an attorney. Remember that civilians are not under the UCMJ, while soldiers and sailors are. I would consult confidentially with the JAG to find out if this is a lawful order, and if you are required to follow that order. Many posts and bases now have JAG confidential consulting and legal counseling, and I think there is also an 800 number. IF YOU DO go to the JAG and ask for confidential legal advice, make VERY VERY sure that the JAG is not required to report either your meeting or the content of that meeting to your chain of command. I am fuzzy on what the Lawyer-Client confidentiality is under the UCMJ.

The bottom line is that if you are being ordered to complete a legal statement as a part of UCMJ process, I can't see how that is any different from a civilian witness statement. However, you need to determine if what you are being ordered to do is a lawful order. Virtually all orders are lawful, as long as the officer is not engaging in either subornation of perjury or trying to get you involved in a conspiracy to do so. Bottom line on this one without knowing more - consult the JAG asap as long as that consultation does not get back to the superior giving you the order in the first place.

Response by SGT Jason Weisbrich made Jul 8 at 2015 3:33 AM

SGT Jason Weisbrich — Wed, 08 Jul 2015 03:33:58 -0400

You and your subordinate cannot be forced to write a sworn statement. Any statement either verbal or written that is obtained by coercion or duress cannot be introduced as evidence in court. Furthermore, there is a reason they created a standard form for sworn statements, and that is so that they can be kept on record. I would be be highly suspicious of said senior leader's agenda, if said senior leadership is avoiding putting the statement on record. I would be sure to visit JAG and/or IG about it to cover your bases though.

Response by SSG Ken Gilder made Jul 8 at 2015 3:48 AM

SSG Ken Gilder — Wed, 08 Jul 2015 03:48:45 -0400

I'd recommend a visit to the Staff Judge Advocate's office. They would be better qualified to advise you.

Response by SGT Michael Long made Jul 8 at 2015 4:23 AM

SGT Michael Long — Wed, 08 Jul 2015 04:23:25 -0400

it's an unlawful order and coercion

Response by SSG Vincent Corzo made Jul 8 at 2015 5:43 AM

SSG Vincent Corzo — Wed, 08 Jul 2015 05:43:35 -0400

The senior leadership cannot make you write a statement against your will. On the other hand, if you don't I assume the leaders will be out to get you for not cooperating, but than again that would be an EO complaint.

Response by SSG Timothy Carr made Jul 8 at 2015 6:07 AM

SSG Timothy Carr — Wed, 08 Jul 2015 06:07:31 -0400

Sounds like a personal problem between the contractor and the soldier in question. I agree with the CSM. Aand JAG is free. CYA in this one.

Response by SGT Private RallyPoint Member made Jul 8 at 2015 6:23 AM

SGT Private RallyPoint Member — Wed, 08 Jul 2015 06:23:15 -0400

I would ask why the 2823 is not being used. You mentioned contractors, this could be a something only for the contractors employer and not a military investagation. They just want to get what you and your team observed while its still fresh in your mind. You also said "unbecoming behavior" and "Normal banter among the enlisted" and "At the time, the victim did not express any concern" indicating that the contractor made allagations later. Which brings me back to why the 2823
is not used and why at the very lest a commanders inquiry was not started. Bottom line, tell the truth of what happened, If you didn't think it was a big deal at the time say so. If there is a problem that needs to be addressed, then do so. I am sorry you where offened, I will make sure it doesn't happen again.

Response by SFC Kenneth Marsh made Jul 8 at 2015 6:32 AM

SFC Kenneth Marsh — Wed, 08 Jul 2015 06:32:32 -0400

Without being provided the entire story, I will have to say it is unlawful to be forced to make a statement.

Response by LT Peter Hill made Jul 8 at 2015 7:05 AM

LT Peter Hill — Wed, 08 Jul 2015 07:05:54 -0400

The process for dealing with a civilian contractor's behavior is very specific and narrow. The Contracting Officer's Representative should bring the issue to the Contracting Officer who then would bring it to the contractor. The COR or KO would investigate and take statements from those willing to provide them, if necessary. The Government cannot dictate the corrective action (i.e. firing) to the Contractor's boss, only report the unacceptable behavior. Going "VFR Direct" to the Contractor's boss could form basis of a legal claim against the government.

Response by SFC Juan Wilkerson, MIT,BIT made Jul 8 at 2015 7:23 AM

SFC Juan Wilkerson, MIT,BIT — Wed, 08 Jul 2015 07:23:31 -0400

I would suggest changing the question i.e.

1. Should soldiers hold civilian contractors accountable?
2. How responsible are we to insure compliance of all stakeholders?
3. ..? etc.

The right question will automatically point a leader to the best solution or decision. The best solution is the one that solves the problem, maybe saves the person, but certainly upholds standards. Let standards control behavior. Remember: The one thing that we know is that we don't know what we don't know. Popularity can be dangerous, don't depend on it.

Thanks for asking,

Juan Wilkerson MIT, BIT
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Response by MSgt Michael Smith made Jul 8 at 2015 7:25 AM

MSgt Michael Smith — Wed, 08 Jul 2015 07:25:04 -0400

Talk to your legal office.

Response by SGT Logan Beckwith made Jul 8 at 2015 7:28 AM

SGT Logan Beckwith — Wed, 08 Jul 2015 07:28:46 -0400

The short answer is "No".

The long answer is: Any method they use to force you to do so would place you under duress and the legal form would, therefore, be null and void.

The other side of that coin, however, is if you are being told to do so by a JAG officer. Terms like "obstruction" and "accomplice" may be thrown around if you don't cooperate with legal authorities. Keep that in mind.

Response by SFC Travis Williams made Jul 8 at 2015 7:50 AM

SFC Travis Williams — Wed, 08 Jul 2015 07:50:55 -0400

I am retired from the Army. If the regulation has not changed since 2004, then a senior Cannot force anyone to write a written, sworn or any kind of statement. I have been down that road before. Now what can and mostly likely will happen is if the person doesn't write the statement (the powers that be) can make your life a living hell. Something as simple as late for formation (1 min) can destroy your life. But Pvt Snuffy is 30 min late and nothing happens to s/he. That is how it used to work thing may have changed, but no one make you write a statement.

Response by CPT Quentin von Éfáns-Taráfdar made Jul 8 at 2015 8:24 AM

CPT Quentin von Éfáns-Taráfdar — Wed, 08 Jul 2015 08:24:21 -0400

I have seen this sort of situation before. Contact the JAG people before anyone else. You would also do well to contact the Inspector General.

Response by MSgt Private RallyPoint Member made Jul 8 at 2015 8:24 AM

MSgt Private RallyPoint Member — Wed, 08 Jul 2015 08:24:48 -0400

You can be forced to not be a bystander by writing a statement. However, it should be documented on your service's standard form. Only the writer knows how the situation was perceived by them.

Response by SGT James Cook made Jul 8 at 2015 8:25 AM

SGT James Cook — Wed, 08 Jul 2015 08:25:47 -0400

Contact your JAG office and they will be able to give you the correct answer

Response by MAJ Charles Ray made Jul 8 at 2015 8:28 AM

MAJ Charles Ray — Wed, 08 Jul 2015 08:28:21 -0400

I think the question should be, "Is it legal for a senior leader to force soldiers to sign sworn statements against their will?", and even though I'm no lawyer, I would have to think the answer is no. That it has undoubtedly happened I have no doubt, I've seen it during my 20 years in uniform, but usually to people who were too intimidated to resist or who didn't know their rights. I would strongly encourage you to consult the post JAG on this, because, in my opinion, the senior leader in question is going over the line. This is an illegal order which you are bound by law to refuse to carry out.

Response by PO1 Ken Nelson made Jul 8 at 2015 8:40 AM

PO1 Ken Nelson — Wed, 08 Jul 2015 08:40:36 -0400

I would not sign regardless of any orders. Note, this may jeopardize your career but in my case I was quite ready to leave the military if necessary. It has quite a while since I've been in the military but if you are a "valuable person" with training invested in you, the military probably won't push this too far.

Response by SSG James N. made Jul 8 at 2015 9:41 AM

SSG James N. — Wed, 08 Jul 2015 09:41:52 -0400

Go to your local Legal Assistance office before writing anything like this. I was in a similar position when I was in prior to 2009, and was told that no one can COERCE a written statement, to include any officer or commander of subordinate troops. The first thing that will happen with these is they will be thrown out due to the nature of coercion. The Soldier was advised to look the commander right in the eye and say with all the sincerity he could muster,"Sir, I respectfully ask you to get your class A's ready regarding this matter" Both he and the 1SG were, well, pissed because neither myself, my team leaders, or my subordinate Soldiers would write any statements. We were with him at the time of the stated accusations and we all knew they were false. A female Soldier from another unit said he felt her up while we were all sitting on couches at a multi unit party. I along with a few NCO's from the other units were also there to 'show up, and leave'. It was while we were there, this girl said the kid 'rubbed her up and felt her breasts'. The facts were, that the kid left with me, and four others on our bikes(we did not drink) after about an hour. We were within eye contact the entire time. One of the other NCO's also said he did not see any of the alleged behavior as we were always right there together.
Write a false statement against an innocent Soldier? HELL NO! Get your damn Class A's ready, Sir. Ours are!
You DO realize you will suffer illegal repercussions from both the CO and 1SG if they are true scumbags who demand illegally written statements. You may also want to go with your GI to IG and file formal IG complaints. You got the balls to go forward, push the issue to the point they HAVE TO GO AWAY? Are you willing to do what is required to prevent these individuals form not only falsely accusing your GI, but others later on? Are they the kind of people that use others to get where they are? If so, go for it. Is your GI innocent and deserves you, and everyone else to step up for him? If that answer is yes, then do your duty as an NCO and step the hell up, and do it letting everyone know you, and your GI's are not to be messed with.
If the issue is such that you are willing to everything it takes to stand by your GI, stand by him, and do me a favor.
Look on my profile, and check my connections. There's an old top, RJW, he can help in ways only you can imagine. Ask him directly for help. But be damned sure you are on the right, in the right, and your GI is in the right.

Response by SSG Timothy McCoy made Jul 8 at 2015 9:46 AM

SSG Timothy McCoy — Wed, 08 Jul 2015 09:46:09 -0400

SGT (P) Benjamin Rodriguez,
I have only one thing to add to all the great committs even from the snot nosed Pvt.
ANYTHING you write and or sign you name to can come back and bite you in the ass. Get to JAG for legal counsel and find out what is right and legal.
Good Luck

Response by PO3 Dennis Bullard made Jul 8 at 2015 9:46 AM

PO3 Dennis Bullard — Wed, 08 Jul 2015 09:46:14 -0400

Be very careful. If you are enlisted and the person ordering you is an officer, he can order you to do this if the statement concerns events that happened on base, especially while you are on duty. You can only disobey a lawful order if 1. you received an order from a higher ranking officer and the lower ranking officers order counters of interferes with the higher ranking officers order. 2. you can if the order clearly violates moral standards held by everyone. e.g. he/she tells you to kill the civilian. Other than that, you can bring much grief to yourself. If they are simply asking you to write a statement of truth, then write it.

Response by LTC Paul Labrador made Jul 8 at 2015 9:51 AM

LTC Paul Labrador — Wed, 08 Jul 2015 09:51:55 -0400

If this is a part of an official AR 15-6 investigation?

Response by SSgt Jon- Karen Arthur made Jul 8 at 2015 9:52 AM

SSgt Jon- Karen Arthur — Wed, 08 Jul 2015 09:52:25 -0400

I agree that you should contact the JAG office with the specifics & let them advise you.

Response by Cpl Jeremy Young made Jul 8 at 2015 10:18 AM

Cpl Jeremy Young — Wed, 08 Jul 2015 10:18:31 -0400

Coercion for sure. Obviously we all know how the chain of command really works in most cases. Not sure the rank of the soldier who is demanding a written statement but as a team if the situation is such that those who are being coerced had nothing to do with nor no nothing about the situation then they need to stick together. Long past are the days when you handled shit bird leaders in the back 40 to align them back up to the team. Disgraceful really.

Response by SMSgt Cary Baker made Jul 8 at 2015 10:34 AM

SMSgt Cary Baker — Wed, 08 Jul 2015 10:34:51 -0400

SMSgt (Ret) Cary Baker
You and your soldiers cannot be forced to write out an official statement. I have been asked on a few occasions to right out statements, however, my rights were never read to me and I wasn't being ordered to do so. I did refuse to this once, and nothing else was ever said. Just to fill out a DA form 2823 as a suspect, you must have your rights read to you. If your leadership is trying to force you to do this, you haven't done so yet, go speak to an Area Defense Counselor (ADC). If you have had your rights read to you, you need to speak with the ADC regardless.

Response by SSG Ronalda Frank made Jul 8 at 2015 10:36 AM

SSG Ronalda Frank — Wed, 08 Jul 2015 10:36:42 -0400

You do not have to write the statement if you feel it is not warranted.

Response by LT John Stevens made Jul 8 at 2015 10:37 AM

LT John Stevens — Wed, 08 Jul 2015 10:37:27 -0400

I believe that such an order probably is a legal order and therefore must be obeyed. However, no one can dictate the content of your statement. Your statement should reflect only facts as you personally know them, should make no accusations or conclusions, and should reflect the truth, the whole truth, and nothing but the truth.

The fact that your statement will be made on a non-standard form seems to me to be insignificant and meaningless. I am not certain I understand your concern in that regard.

I would strongly recommend that you seek out the counsel of your local JAG officer for advice before taking any action. I am not a lawyer or JAG officer, so my opinion is probably worth what you paid for it.

Response by SSgt Tim Weedeman made Jul 8 at 2015 11:00 AM

SSgt Tim Weedeman — Wed, 08 Jul 2015 11:00:04 -0400

They can require you to make s statement and sign it but they can not make you sign something that is a falsehood. that in effect is forcing you to commit a crime. If you don't wish to you can just inform them that you where present at the incident and nothing more. They can not make you do anything that is against your will and if they try they can be court marshaled for conduct unbecoming or worse if they are demanding you write a falsehood. As a soldier you are required to follow orders and if those orders seem to force you to include illegal acts then you can require that the orders are given in writing and at that time you will be required to perform them but I would also insure that a copy of the orders are put in a safe place to insure you are protected. Learn your rights and responsibilities before you go any farther and if you still have questions talk to your local Jag or other legal department that is available to all military personnel.

Response by CPL Brian Clouser made Jul 8 at 2015 11:06 AM

CPL Brian Clouser — Wed, 08 Jul 2015 11:06:05 -0400

You have a right and a duty to disobey any and all unlawful orders.

Response by PO3 Stephanie Morales made Jul 8 at 2015 11:22 AM

PO3 Stephanie Morales — Wed, 08 Jul 2015 11:22:55 -0400

This could be something that if its a sworn statement could the actions also affect your or your teams careers. I know if there was a chance of it affecting my career I wouldn't do it but rather express wanting no part of the investigation. Good luck!

Response by CPT Private RallyPoint Member made Jul 8 at 2015 11:24 AM

CPT Private RallyPoint Member — Wed, 08 Jul 2015 11:24:39 -0400

So... If you haven't figured it out yet, go to JAG, go to JAG, go to JAG!

Response by MSgt Dwyane Watson made Jul 8 at 2015 11:31 AM

MSgt Dwyane Watson — Wed, 08 Jul 2015 11:31:18 -0400

I would contact base legal or the JAG to make sure that no one is getting their rights violated, this would be to protect all parties.

Response by CPO William Zaczek made Jul 8 at 2015 11:57 AM

CPO William Zaczek — Wed, 08 Jul 2015 11:57:04 -0400

Without knowing the situation it will be hard to say. Differences between military & civilian contractors should be brought to the attention of the comptroller who authorized the contract. However, since there is a military member involved, I would ask the senior enlisted of the command or base (Master Chief, Top) to assist me in solving the issue. If the military member thinks the remark is egregious enough to warrant a civilian contractor to loose their job then writing a statement and turning them over to a third party (Master Chief, Top, etc.) for a r
esolution should be the correct way to a solution.

Response by CW4 Laird Culver made Jul 8 at 2015 11:59 AM

CW4 Laird Culver — Wed, 08 Jul 2015 11:59:43 -0400

No soldier can be "forced" to write a sworn statement in any situation. The person having an issue with the contractor sounds vindictive and if there were multiple participants the "forced" statements could come back to penalize all parties involved. Watch the blast radius, since the instigator is not!

Response by MSgt J D McKee made Jul 8 at 2015 12:32 PM

MSgt J D McKee — Wed, 08 Jul 2015 12:32:40 -0400

As retired military who spent several years on contract, I can't really answer your question, but I will say this: Don't kill your career over this unless it really is the hill you want to die on. We all live in a world where being PC is often more important than results or reality, and this is a shame, but it's our reality right now. Contractors know this, on several contracts by different companies I remember many briefings (why do we call them that? they are never brief..) on the topics of gender, race, getting along with the locals and basically how to and how not to deal with diverse people we might meet including our own military. So, these guys, most of whom are former military anyway, know what they are supposed to do. Here's an example: My contract company had just been allowed back on a US Army installation after being banned (the whole company) because of some BS one of the contractors had done. So, off we go to the BX. We have an idiot with us, come to find out. This guy had about a week in-country, no military, had been a civilian cop for about 5 years in some small town in Louisiana, but had been everywhere and done everything, I'm sure everyone here recognizes the type. The guard force Commander at this installation was a female LT, and our idiot decided to hit all over her, to the point it actually embarrassed me to see it. She was very unimpressed. When he got to the point of sticking out both hands and begging her to "arrest" him, I told him to get in the truck or get left there, and I did mean that. I was driving, but at the time, everyone there was the same "rank" (none), I guess I'll call it. As soon as we got back, I reported the incident to my boss (and his) in the idiot's presence. When the report from the LT went up the Army chain to a great height, then over to our retired 1-star Program Manager, he was able to tell them the idiot was already on a plane, that day. So we got to keep our BX privileges, very important to us. I heard on the grapevine the guy was on contract with another large contracting company a few months later. My point being, the contractors know how to behave, if they choose not to, don't blow your career over them, even if they are in the right. If you go to the legal office (and I concurred below with LTC Shaw who is obviously a lawyer, but after reflection here is a different opinion), your chain of command will see you as potential trouble. This may not be a good thing. You may make personal enemies of people who control your destiny. Consider whether it is worth all that to keep someone on a really high-paid job when they can get another one just like it fairly easily. I know this is a wussy answer, I know it doesn't hold up to high-minded ideals of right and wrong, but at this point, my opinion is that if this is how we as a society want to live and do business, which it is or we would be doing something else, go along with the stupidness, because otherwise you suffer for doing the right thing. Especially if you intend to retire and/or make any rank in the future.

Response by COL Ken LaPlante made Jul 8 at 2015 12:55 PM

COL Ken LaPlante — Wed, 08 Jul 2015 12:55:55 -0400

You've been given the appropriate routes: chain-of-command, JAG and IG reference your question. I want to respond in a different direction. First, your situation is not unique. These situations, unfortunately, happen routinely. Most are addressed and resolved in manner acceptable to all; others do 'blow up' although blowing up is also a matter of perception. "Normal banter among enlisted" (in my day we called it foxhole humor; and, yes, I made t hose mistakes a few times) is your perception of this incident. Reflect on that, perhaps your perceived normal banter is not accepted outside your team, or even inside. As already mentioned - the perception is the reality of the aggrieved/victim not the perpetrators. That someone did not react to or mention the issue at the time does not mean that they were not offended etc. That happens far too often from fear of retribution or many other reasons. Ideally, the 'victim' would mention the issue in a mature, rational manner and the perpetrators would accept, consider and respond in a similar manner and resolve it at that, the lowest, level. Social norms, inside and outside the military, modify all the time; what is acceptable day 1 is no longer acceptable day 2. Whether one accepts the modification or not is not relative to the norm. I would expect your chain of command would address the issue and seek to resolve without further damage to anyone. You are involved whether you want to be or not. You can set and maintain the moral and legal high ground or you can be part of those who decide to accept a lower standard -- sounds to me like you are in the former group. Chain-of-command, JAG, IG.

Response by LCDR Jeffery Dixon made Jul 8 at 2015 1:13 PM

LCDR Jeffery Dixon — Wed, 08 Jul 2015 13:13:08 -0400

Without assuming I know the motivations here, it is fair to be asked if you were present what did you hear or witness. It is really no different than a subpeona. In the Navy (old Navy) the Judge Advocate General (JAG) corp aka the lawyers should be involved.

Response by CPO Cleveland Lowers made Jul 8 at 2015 2:30 PM

CPO Cleveland Lowers — Wed, 08 Jul 2015 14:30:52 -0400

Short answer: NO!

Response by SSgt Private RallyPoint Member made Jul 8 at 2015 2:34 PM

SSgt Private RallyPoint Member — Wed, 08 Jul 2015 14:34:51 -0400

He/she can direct you to write a statement. They just cannot direct you to lie about the circumstances in the statement. Think of it like a police report. You can be made to fill out a police report. If you lie in the report, you can have some issues.

Response by CPT Private RallyPoint Member made Jul 8 at 2015 2:36 PM

CPT Private RallyPoint Member — Wed, 08 Jul 2015 14:36:26 -0400

I hate to burst the bubbles of the (apparently numerous) small-town pizza lawyers giving you responses, and I highly recommend you go talk to on-post legal assistance who can provide you with actual legal advice tailored to your situation. But I will say this: unless your Commander suspects you of a crime, he or she can absolutely lawfully order you to provide a sworn statement in the course of an investigation.

Response by SGT Richard Horner made Jul 8 at 2015 2:53 PM

SGT Richard Horner — Wed, 08 Jul 2015 14:53:21 -0400

The DA form 2823 is a sworn Statement and that is what you should be writing, If you are being ask to alter that in anyway then there is a problem. This should not be a witch hunt to force out a person who is more/less popular should not be a motivating factor in any Investigation. I would instruct the EM to do exactly as ask, but I would instruct them to do it on a 2823, this will do two things. First: it will find the true intensions of the Complainant, second: This will make the Incident official and can not be brought up at a later date.

Response by 1SG Private RallyPoint Member made Jul 8 at 2015 3:33 PM

1SG Private RallyPoint Member — Wed, 08 Jul 2015 15:33:17 -0400

I've seen this answer already: go see JAG. Your statement, "Sorry to be vague..." says it all; without all the details any advice you receive here will be flawed. Being a good leader doesn't mean you know all the answers, but good leaders should know where to go to find the answers. Never hesitate to refer a soldier to a Chaplin, JAG, mental health, whatever. A sh*t house lawyer is never as knowable as the real thing.

Response by SFC SFC Michael George. RET made Jul 8 at 2015 4:47 PM

SFC SFC Michael George. RET — Wed, 08 Jul 2015 16:47:09 -0400

This might have been mentioned below.
US Soldiers are under UCMJ and UCMJ only. Using and other form of sworn statement, verbal or written is a NO GO! If contractors are involved this needs to be brought to the CDR or officer in charge. At no time are E4s or young E5s are to squabble, commit or work for any contractor. At no time should a senor NCO ever take this situation away from UCMJ. This only hurts the soldier involved and waves his rights without him/her even knowing what they did.
Great Question!
Remember...bottom line, contractors work for DoD, not the Active component. The active component has the option to remove that individual at anytime during there contracted commitment. Lastly, 90% of contractors are retired senor NCOs/Officers and they should no better. Its up to us senor NCOs to keep,m in line.
Michael S George, SFC. RET

Response by PO2 Blain Sewell made Jul 8 at 2015 5:14 PM

PO2 Blain Sewell — Wed, 08 Jul 2015 17:14:17 -0400

Response by CSM Felipe Mendez made Jul 8 at 2015 5:28 PM

CSM Felipe Mendez — Wed, 08 Jul 2015 17:28:26 -0400

No.. If you write such statement because you are forced to do so and is not the true.. you will be held accountable for making a false statement. Make a statement stating that you do not have any knowledge of the situation and was not present at the time of the incident. Be careful and state away from group statements. If is not the true, don't do it. You have the right to see legal and inform them of the situation at hand and what you and others are coheres you to do (statements). Legal will advised you the right course of action. Wherever your decision may be, make sure that was is written is the true.

Response by SSG David Winters made Jul 8 at 2015 5:50 PM

SSG David Winters — Wed, 08 Jul 2015 17:50:09 -0400

No.

Response by SSgt Randy Sweat made Jul 8 at 2015 6:08 PM

SSgt Randy Sweat — Wed, 08 Jul 2015 18:08:25 -0400

Get away from the sea bag lawyers and consult with the local JAG office for any concerns.

Response by SSG Michael Hartsfield made Jul 8 at 2015 6:51 PM

SSG Michael Hartsfield — Wed, 08 Jul 2015 18:51:21 -0400

It may be a little late but I'm going to offer the suggestion anyway. Instead of going to JAG go to TDS (Trial Defense Service). (I got this information from a JAG officer) JAG worries about the unit's well-being. TDS worries about the individual

Response by SGT Brenden Lee made Jul 8 at 2015 7:38 PM

SGT Brenden Lee — Wed, 08 Jul 2015 19:38:48 -0400

Sgt. Benjamin Rodriguez, you are, indeed, being quite vague. "Unbecoming behavior" can take many forms. I would be willing to make an educated guess and say this may be a case of a sexual nature but, again, I have no clue as to the true nature of the "unbecoming behavior". With that being said, and with the little knowledge I have of legal matters, I would have to agree with Maj. Robert Petrarca, MSgt Jason Maughan and MAJ Katherine Ireland. Personally I would refuse to sign any sworn statement, standard or non-standard, unless I was a true witness of the "incident" and I truly knew it to be illegal. I would certainly contact JAG and find out if it any of this sorted mess is in violation of the USMJ as SSG Richard Hackwith as stated. I learned,long ago, to never sign anything unless I am completely sure it is legal and spot on. I have been burned too many times to not cover my own ass. I would suggest you do the same for you and your men. Best of luck.

Response by PV2 Glen Lewis made Jul 8 at 2015 8:25 PM

PV2 Glen Lewis — Wed, 08 Jul 2015 20:25:20 -0400

Not knowing who is demanding this makes it a little difficult to answer but if it were a civilian I'd say no. This appears to involve civilian leadership and I wouldn't think they could require it of you. If an officer or even a higher ranking NCO ordered you to I'd say yes. The rules by necessity, are different in my perception of what a civilian can require of you and what the Army can. I'd refuse if it were a civilian. I don't see that you have a choice if it's a soldier. Hope this helps: good luck with your problem.

Response by SSG Private RallyPoint Member made Jul 8 at 2015 9:07 PM

SSG Private RallyPoint Member — Wed, 08 Jul 2015 21:07:47 -0400

No they cant the 5th amendment still applies also look up art 31 UCMJ.

Response by SSG Donald Sistrunk made Jul 8 at 2015 9:27 PM

SSG Donald Sistrunk — Wed, 08 Jul 2015 21:27:07 -0400

simple answer: no, always request to go to JAG when confronted with any legal issue.

Response by LCpl Donald Richards made Jul 8 at 2015 11:35 PM

LCpl Donald Richards — Wed, 08 Jul 2015 23:35:42 -0400

In accordance with The Uniform Code of Military Justice and/or The Constitution of The United States; no individual may/can be compelled to incriminate him/her self in any crime. However; in this case, the crime appears to be a falsification of events and who is responsible for the problem. The filing of a false report/statement could be leagal grounds for a court(s) martial. While you can be made to write a statement; you can not be forced to sign the document. Said senior officer could be on the carpet before higher ranking authority when the problem gets out of hand.
DONALD P. RICHARDS
L/CPL USMC
HONORABLY DISCHARGED

Response by Sgt Matt Koeneman made Jul 9 at 2015 4:31 AM

Sgt Matt Koeneman — Thu, 09 Jul 2015 04:31:12 -0400

No. You can not be forced to write anything, ecspecially a sworn statement. We learned this in our E-4 Leaderships course. (Corporals Course)

Response by CPO Norman Mauldin made Jul 9 at 2015 8:08 AM

CPO Norman Mauldin — Thu, 09 Jul 2015 08:08:31 -0400

That my friend would be a question for a legalman or JAG.

Response by SGT Andrew Ornelas made Jul 9 at 2015 9:32 AM

SGT Andrew Ornelas — Thu, 09 Jul 2015 09:32:41 -0400

The only sworn statement you can be ordered to fill out is, DA form 2823. because you can only be ordered to make a statement to the (Military Command) , you cannot be ordered to make a statement to a private civilian organization. Civilian Courts area different matter.

Response by SMSgt Bob Swanson made Jul 9 at 2015 10:43 AM

SMSgt Bob Swanson — Thu, 09 Jul 2015 10:43:00 -0400

This is a question for the JAG. You want an authoritative answer you can rely on, not an opinion from a barracks lawyer. Particularly if this is interpreted as an unlawful order.

Response by SGT Kristin Wiley made Jul 9 at 2015 10:48 AM

SGT Kristin Wiley — Thu, 09 Jul 2015 10:48:35 -0400

Depends on how you look at the situation. No, they cannot be LEGALLY forced to, but if the soldier is unaware that they can say no; then yes, they can be coerced and manipulated to write a statement without understanding the full intent of their actions. If they aren't aware that it's an illegal order, or that they can say no to an illegal order, or they might even write one to prevent being harassed for refusing to do so. I know first hand that IG, EO, and legal won't look closely into the matter if the soldier is harassed for choosing the RIGHT action in this regards.

Response by SGM Erik Marquez made Jul 9 at 2015 11:11 AM

SGM Erik Marquez — Thu, 09 Jul 2015 11:11:47 -0400

Im not JAG, nor do i play one on TV. But I understand your question to have two answers.
Yes, you can be ordered to write a statement.
No you can not be ordered what to write or otherwise influenced as to what to write.
"SGM Marquez at 1500 today you will meet with the CDR and write a statement as to what you observed or heard on XX day at 12:20 relating to conversation at the water cooler between bob and Ken and SSG Zee"
"I SGM Erik Marquez did not observe or hear any act I found to be unlawful, immoral or against policy."

Signed me.. Sir there you are my statement.

Now a good investigator would not let that stand, they would then ask you direct questions to which you can answer... You are not allowed to lie, but you are not required to give them the answer they want either.
Your 5th amendment rights stand (UCMJ Art 31), you have the right to not self inciminate.. You have the right to remain silent, so if you choose, invoke it in the event you are questioned. The fact that you choose to do so cannot be held against you in any later proceeding. But if such a statement would do so, perhaps a introspective look is needed to re center yourself on your obligations, duties and responsibilities, which often require you to report violations of policy, regulations or law.... even if you feel what you observed deserved a pass.

Response by CPT Pedro Meza made Jul 9 at 2015 5:38 PM

CPT Pedro Meza — Thu, 09 Jul 2015 17:38:24 -0400

From what you have described "We were present when the perceived" sounds that you did not see it as how the soldiers sees it. Therefore your statement should reflect that, your statement is not against the civilian but against the soldiers, the DA Form 2823 should be used because it relates to military personnel presence.

Response by SSG Shawn Birkholz made Jul 9 at 2015 9:32 PM

SSG Shawn Birkholz — Thu, 09 Jul 2015 21:32:03 -0400

Bottom line - If you are subject to the UCMJ but only considered a witness then you can be compelled to furnish a truthful statement about the incident that you witnessed. No second hand accounts. You must report specifically what you witnessed.

2nd Bottom line - only the Contractor can fire a contract employee and it can be done essentially without cause. Usually however, there will be a cause for the firing such as poor performance on the contract, lied about qualifications, etc. The proper course of action is for the alleged infraction to be reported to the Contracting Office Representative (COR). The COR reports the information back to the Contractor who will make a decision to either investigate the matter or not. If the Contractor chooses to investigate they can request statements from the military but in this case they would not be compelled to make a statement since it is a non-military action. Again it is the choice of the Contractor to fire the contract employee. If the government agency feels strongly enough about the employee they could appeal any non-firing action to the Contracting Officer at the local military contracting office who would then take any authorized actions against the Contractor as allowed under the Federal Acquisition Regulation (FAR) and Defense FAR or terms of the Work Statement (PWS).

Response by CPT Tamara Brewer made Jul 10 at 2015 1:33 AM

CPT Tamara Brewer — Fri, 10 Jul 2015 01:33:11 -0400

There is nothing stopping you from writing a DA2823 IF YOU witnessed any unlawful or perceived "unbecoming behavior". Take it to your rater and/or 1st line of command. BUT just because you do not agree with something does not make it unlawful. Make sure you know what you are talking about and keep the facts the facts.
You cannot unlawfully order someone else to write a statement.

Response by SFC Private RallyPoint Member made Jul 10 at 2015 4:53 AM

SFC Private RallyPoint Member — Fri, 10 Jul 2015 04:53:16 -0400

Do not sign. Go to JAG and ensure that your soldiers are protected as well, as it is your job as a leader to protect them as well.

Response by SSG Richard Reilly made Jul 10 at 2015 9:33 AM

SSG Richard Reilly — Fri, 10 Jul 2015 09:33:04 -0400

1st Soldiers cannot be charges with unbecoming behavior as there is no charge for unbecoming a Soldier. Sounds more like provoking speech and jestures to me. But the answer is yes and no. If the Soldier is going to self incriminate himself then Article 31b rights must be read to them and no order can be given. If the Soldier si not guilty or not believed to be guilty then yes an order can be given.

Response by SPC Private RallyPoint Member made Jul 10 at 2015 11:58 AM

SPC Private RallyPoint Member — Fri, 10 Jul 2015 11:58:21 -0400

No. Absolutely not. is your legal right not to speak, and you cannot be forced to give a statement against your will, regardless of who tells you to. It is an unlawful order/directive, and is not an obligation to be followed, due to the potential for self-incrimination or forced coercion (sp?)

Response by SSG Jeff Black made Jul 10 at 2015 12:19 PM

SSG Jeff Black — Fri, 10 Jul 2015 12:19:22 -0400

After a 14 year Army career I now work for the railroad. Even as a civilian entity, we are monitored and regulated by the federal government (FRA). A railroad employee who finds him/herself in the vicinity of any accident or incident is REQUIRED to fill out a written statement. However, that statement can simply be that you don't have a statement and have no relevant or factual information to offer. Not knowing the whole story, I am wondering if this is the same type of situation that you find yourself in, in which case, your statement could mirror the one I previously mentioned.

Response by PO1 Glenn Boucher made Jul 10 at 2015 8:48 PM

PO1 Glenn Boucher — Fri, 10 Jul 2015 20:48:33 -0400

I know I responded a few days ago but its been bugging me since seeing this. If, in your current position within the rank structure, that you don't already know that you cannot be forced to make a statement against your will then there are some bigger problems than your letting on.
I know back in the day, when something happened if we were witness to it and it became a legal matter then we were asked what happened and asked to give a statement. We were never forced to give a statement, even if there was the appearance or feeling that our statement was necessary.

Response by SGT Leon Riege made Jul 10 at 2015 10:28 PM

SGT Leon Riege — Fri, 10 Jul 2015 22:28:40 -0400

you must follow all lawful orders.. is the order lawful ? i dont know enough about what s going on , does your top have the right answer ? go on up the chain thats why its there

Response by PO1 Joseph Glennon made Jul 14 at 2015 8:18 AM

PO1 Joseph Glennon — Tue, 14 Jul 2015 08:18:02 -0400

Short answer - no.
Long answer - there are a lot of politics involved, and the pressure being put on you and your troops indicates that there will be repercussions should you decline. I would suggest including the following phrase: "Under duress, I swear that I am being directed to write the following;"

You will have covered your own butts, and will have written what you're being directed to write.

Response by Cpl Michael Mannella made Jul 14 at 2015 1:28 PM

Cpl Michael Mannella — Tue, 14 Jul 2015 13:28:54 -0400

Without all the facts trying to handle this at your level any advise you receive would be worthless

Response by SFC Donald Neal made Jul 16 at 2015 1:03 AM

SFC Donald Neal — Thu, 16 Jul 2015 01:03:42 -0400

I would seriously consider what everyone else recommended and talk to legal (JAG, or whatever it is called depending on your duty station). Another great resource that urban legend says is there for troops to complain to is the IG. They're the Commander's resource to ensure compliance to the rules, regulations, and other laws that affect all those who serve. The civilian contractor has a separate bunch of concerns which may lead to their dismissal. I've seen contracting offices ask that a particular personality be removed from the job site and the company always (always) will terminate that person rather than be hammered by the DOD contracting office for non performance on the contract. FYI--lots of contractors are former service members, so it would behoove them to remember they are civilians and the standards of conduct and interaction are very different.

Response by MSgt Alan H made Jul 16 at 2015 6:37 AM

MSgt Alan H — Thu, 16 Jul 2015 06:37:59 -0400

I believe in the military if you witness certain behaviors that violate the UCMJ you can be compelled to write written statements attesting to the fact the very same way you can be subpoenaed to testify in court to what you witnessed. Bottom line however, you must go to and involve the JAG in each and every action for your own legal safety and ensure the legitimacy of everything your leadership and the prosecution team are asking or telling you to do.

Response by CSM Private RallyPoint Member made Jul 16 at 2015 9:29 PM

CSM Private RallyPoint Member — Thu, 16 Jul 2015 21:29:15 -0400

You currently have two issues:
1. Someones Perception of a statement.
2. Being forced to write a statement.

Your first stop is JAG/SJA. They will answer all your questions.

Response by PO1 Bill Reilly made Jul 17 at 2015 2:44 PM

PO1 Bill Reilly — Fri, 17 Jul 2015 14:44:06 -0400

NO! But, I am a retired 22yr Veteran and served in the VC arena and I remember hearing that while serving under the UCMJ, some of your Constitutional Rights are suspended. Fragging was popular at that time.

Response by LTC(P) Private RallyPoint Member made Jul 20 at 2015 1:13 AM

LTC(P) Private RallyPoint Member — Mon, 20 Jul 2015 01:13:03 -0400

As a matter of fact...a Soldier can be forced to write a legal sworn statement on a DA 2823. A witness to an incident in question cannot just simply refuse to write a statement that may increminate his/her friend...but the superior should realize that they may be getting a vague statement. On the other hand...a Soldier does NOT have to make a statement that incriminates him/herself.

Response by SSG Brian MacBain made Jul 21 at 2015 12:04 PM

SSG Brian MacBain — Tue, 21 Jul 2015 12:04:36 -0400

With out not knowing the full story, I would say no, they cannot be forced. This situation needs to brought you your Company Commander. Only CO CDR and his/her leadership (aka 1SG, PSG) (minus the BN and higher levels) can order you to write an official statement. The contractor cannot force you, but can ask and you can decline without no punishment.

Response by Capt Christian D. Orr made Aug 7 at 2015 7:22 AM

Capt Christian D. Orr — Fri, 07 Aug 2015 07:22:14 -0400

Proud as I am to have served, ordeals such as yours remind me why I'm happy and relieved to no longer be in uniform.

Response by SSgt Raminah Turk made Aug 15 at 2015 1:44 AM

SSgt Raminah Turk — Sat, 15 Aug 2015 01:44:12 -0400

1. Absolutely not, and your leadership is committing a crime themselves by trying to force you to do so! You do NOT have to give either a written or verbal statement involuntarily (unless in court and under oath), and NEVER should do so even voluntarily without getting legal consult first, whether or not you witnessed or even participated in a crime. This is still your right as a military member, and I'm amazed the number who forget it and let themselves be browbeat into doing so. This is why even the official form has a statement right before your signature that says you are giving the statement voluntarily and without coercion; this is a prime reason why there's a host of issues and legal validity with freestyle bond paper style statements.
2. Regarding staying uninvolved... you can only do so if you witnessed no crime and if you are unsure, consult JAG. However, while you are required to REPORT a suspected crime, you do not have to give a written STATEMENT. There's a fine line between the two. Regardless, always consult JAG before reporting too.

You really need to consult JAG to determine if a crime was committed and if so, how to report. I would also consider contacting the IG to report the coercion of written testimony, because your leadership has been trained on this and knows better, thus is committing a crime themselves by abusing their positions and power.

Response by CPO William Zaczek made Sep 3 at 2015 2:14 PM

CPO William Zaczek — Thu, 03 Sep 2015 14:14:41 -0400

I know I am late in responding. Writing a "Statement" on what a person saw is not a sworn statement unless it is preceded by an administered oath of perjury as in a court room. Most "statements" are looked at as just trying to gather the facts of a case or incident or gather evidence that will either confirm or deny what the claim is. Many times I have given a statement on a plain piece of paper and just wrote my name without signing it.

Response by LTC Stewart Stephenson made Sep 3 at 2015 4:32 PM

LTC Stewart Stephenson — Thu, 03 Sep 2015 16:32:31 -0400

Recognizing this thread started two months ago...The bottom line is that your chain of command is obligated to investigate credible allegations. Can you be compelled to provide a statement whether you want to be a part of it or not? Yes, with some restrictions regarding self incrimination, etc. Can they tell you WHAT to say? Absolutely not. Your best bet is to reach out to JAG and get a legal read from them regarding your rights and obligations. If not comfortable going to JAG, I'd recommend submitting an assistance request with your local IG. Your IG has a pretty unique ability to pull resources together and, if something "off kilter" is happening, they have a direct pipeline to commanding general level.

Response by SMSgt Cary Baker made Sep 11 at 2015 2:53 PM

SMSgt Cary Baker — Fri, 11 Sep 2015 14:53:15 -0400

I don't believe a commander can make anyone sign a "Non-standard" sworn statement. I do know that during statement's a specific form is used (I don't remember the number for it). If told to submit a sworn statement on the appropriate form, the individual will either be a "Suspect or Witness". If a "Suspect", then the individual's Miranda Rights must be read to them - this is not the case for a "Witness". A First Sergeant, Commander, or JAG would best answer this. I would first seek legal council before going any farther with this.

Response by MSgt Private RallyPoint Member made Aug 16 at 2016 7:48 AM

MSgt Private RallyPoint Member — Tue, 16 Aug 2016 07:48:39 -0400

As an Investigator, I will do everything I can to get you to write down your statement, unless it violates your rights or Military Law. However, all statements were documented on the correct forms.

Contact your JAG, if they do not help go see the Area Defense Council. Take your subordinates with you.

Response by MSgt Darum Danford made Aug 18 at 2016 1:43 PM

MSgt Darum Danford — Thu, 18 Aug 2016 13:43:55 -0400

No disrespect intended here but, I'm not sure why everyone on these boards insists that going to JAG is the first course of action. If you are involved somehow or could be considered a suspect, you should not seek counsel from them. In criminal justice actions they work as the prosecution, which is very different from TDS or the ADC. Go see your area defense counsel but do not bring your subordinates with you. Multiple suspects seeing the same ADC creates a conflict of interest and you will most likely won't see the same one (the AF farmed out clients with conflicts to other ADCs within a region) because what could be good for one client, may be bad for another. You can and should strongly encourage them to go to the ADC and as a supervisor, I would expect you to do so. The TDS or ADC can easily give you the law as it pertains to statements, specific to your needs.

However, I will say that if you have an 1168 or someone has given rights advisement (article 31) asking you to waive your right to counsel I would definitely decline to make a statement until such time that I could be advised by counsel. If you have had a rights advisement they cannot make u give a statement after you have exercised your right to seek counsel.

Response by CPT Private RallyPoint Member made Feb 12 at 2019 11:20 AM

CPT Private RallyPoint Member — Tue, 12 Feb 2019 11:20:02 -0500

1. Never write anything you don't believe in or wouldn't support in court
2. Talk to JAG
3. I'm concerned when you say perceived unbecoming behavior, although normal banter...BUT you feel uncomfortable writing it down and saying you were a part of it. AKA you silently supported the action. I've seen normal banter that was slightly in appropriate but funny, to downright verbal assault, and I've seen an entire room of men laugh too it. Until I stood up looked the Captain in the face and said Sir, any man with a daughter ( knowing he had a 13 year old girl) should never utter the words coming out of your mouth. -- Want to watch that whole floor get really quite and talk football the rest of the shift.