Corrective training vs UCMJ punishment: What is your take on this?

2013-12-29T12:53:13-05:00

<p>I was wondering if anyone here on rally point is familiar with this term in reference to UCMJ? A few years ago, I had a fellow NCO come to me in reference to one of his Soldiers facing UCMJ. The unit submitted the flag, flag counseling, and supporting documents to process for a field grade article 15. My fellow NCO informed me that the packet was sent back because the Soldier was already punished for the offense due to the way most of the counseling statements were worded. Most of the plan of action stated something along the lines of..."your punishment will be...." or the assessment section stated...."you have successfully completed all aspects of your punishment..."</p><p><br></p><p>What is your take on this? Have you experienced similar situations in the past? I have spoken with different legal counsel from different installations and get pretty much the same response. I have taken this account when review counseling statements prior to leaders conducting them on Soldiers. I take it as a learning tool and move forward. </p>

Response by CSM Private RallyPoint Member made Dec 29 at 2013 1:11 PM

2013-12-29T13:11:24-05:00

I can completely understand your pain, example soldier gets a ticket on post for texting while driving. Although you cannot recommend UCMJ action for the traffic violation you can recommend action for failure to obey the post commander's policy on zero tolerance of texting while driving on post. Always have the magic bullet at the end of the statement and I recommend you stick to the facts, don't worry about what article they violated that's legal's job to figure out. The tricky part is refraining from you will get UCMJ, or your punishment/corrective training will be this because you did that. Even if your unit legal buys off on processing the article 15, TDS might recommend against it. When using sworn statements in your packet be careful on how you obtain them. It's best to have your 1SG discuss with the commander about assigning a 15-6 investigating officer if there are more than the one soldier involved and you want all the facts to be gathered to assist legal and your commander with processing. Some times it's easier to recommend administrative reduction for misconduct than using UCMJ. For NCOs a administrative reduction board can be tricky but not impossible as I have completed a few. 

Response by CPT Aaron Kletzing made Dec 29 at 2013 1:17 PM

2013-12-29T13:17:32-05:00

This is an outstanding scenario-based question, SFC Ewing - thanks for posting. This is helpful for leaders at all levels. I look fwd to hearing the insights of other members on this one.

Response by 1SG Steven Stankovich made Dec 29 at 2013 1:35 PM

2013-12-29T13:35:44-05:00

I am familiar with situations such as this.  1SG Rink was spot on with his response.  I also always had my NCOs steer clear from statements like "your punishment will be," or "you are restricted from/to," or any words to that effect in a counseling statement where the command is looking for UCMJ action.  Any of those statements can, and often do, end up as "punishment served" and there is no further action that can be done.  When counseling for an offense that may be punished under UCMJ, stick to the facts.  Stick to the facts from the police report, blotter report, sworn statements or any other official documentation.  Build the packet with the facts for your CDR.  That way he/she has all the information required to make an informed decision.  If counseling refers to any type of punishment, restriction, etc, then you have removed a tool from the CDRs kit bag for further action.

Response by CW2 Private RallyPoint Member made Dec 29 at 2013 1:47 PM

2013-12-29T13:47:58-05:00

As a 1SG I was informed by the BDE legal team that if you issue corrective action you should not/can not also issue UCMJ, because it's almost like "double jeopardy". Because if you issue corrective training that is your way of saying "this is how we are going to fix this problem" but then without even giving them a chance to do so, in the same counseling you also recommend UCMJ. At first I was like WTF, but eventually I saw what they were saying. So now all counselings that recommend UCMJ I have JUST the recommendation for UCMJ in there and why. <div><br></div><div>When we recommend we also take the wording straight out of the MCM. So it says something like "you, without permission, on DTG, were absent without permission from X location"</div>

Response by MSG Bobby Ewing made Dec 29 at 2013 2:11 PM

2013-12-29T14:11:05-05:00

I knew my fellow NCO and I were not the only ones that have ever faced this problem. It just seemed odd at the time, but like SFC Matthew Jones stated, I eventually saw what legal was stating in reference to double jeopardy. I wish I had a little more knowledge about this subject earlier in my career, because it would have been an extremely helpful tool back then. All I can do now is pass the knowledge on to the next generations. Thanks for all the advice thus far.

Response by MSG Reid Zohfeld made Jun 10 at 2015 1:01 PM

2015-06-10T13:01:08-04:00

In 37 years I have never asked for UCMJ to be brought against on of my soldiers! I find it sad that Officers and NCO,s alike spend time on punishment.
If on of my soldiers got out of line they new it when I would clear the office except for the one who would receive the wall to wall counseling statement.
If you are a strong leader you can handle 99.9% in house.
I have only written 10 or less counseling statements and none of these ever made to OMPF.
Yes I used corrective action and yes it might not have been the right way but it worked for me and you know not one complaint was ever filed against me Hmm.
End result I never asked a soldier to do something I would or could not do.
They knew I always had there back and for that reason they always had mine.
Thank God I had great mentors in the Army to show me the way.
Old School Army all the way!!!!

Response by SGT Private RallyPoint Member made Jun 11 at 2015 3:45 AM

2015-06-11T03:45:23-04:00

almost there