Technically, yes he can. Traditionally, the NCO would prepare the counseling statement and talk with the squad leader and both leaders would be present during the counseling or the squad leader would take the counseling statement and counsel the offending Soldier. However, there is no rule or regulation that states an NCO outside your immediate supervisory chain cannot give you a counseling statement. All members of the military have a duty and responsibility to execute general military authority to correct substandard performance.
Comments
1SG RET
I am a retired 1SG and card carrying member of the Retired Reserves. If I see someone who is off duty perform an unprofessional act or act that would be considered unlawful can I identify myself, show my ID card and give a “lawful” order to cease and desist the act?
Hoss
I get frustrated at all of these people confusing Lawful and Direct orders. There is no official term ” direct order ” All orders are presumed to be lawful and can be given by an NCO, PO, Warrant or Commissioned Officer. @Jessica,from the information given the only issue with the counseling is that it stated a direct order.
Anonymous
Can I be punished under article 92 for the following actions.
Me and 3 other E-4 were told by a 1st lieutenant to move vehicles we were not licensed on. So our E-5 told us to leave the ao so we were walking away and the officer walked up to the nco and started yelling and spitting in his face. Our nco then told us to walk away and the officer said if we walk away we will be all getting ucmj so we didn’t know who to listen to so we walked about 10 feet then stopped cause we were confused on who to listen to. Now we got a counseling saying we are being recommended for ucmj for disobeying a direct order. Is this fair?
Mark Gerecht
Ran this by our Legal SME…keep in mind this response is based on the information you provided.
I believe it was an unlawful order to order the Soldiers to move vehicles they were not licensed on. I do not think any legal office would support an article 15 for disobeying this. I also do not believe they are guilty of disobeying for walking 10 feet away. They didn’t leave the area.
This sounds like a beef between the PLT Sgt and PLT leader and the junior Soldiers are caught in the middle.
If they receive an article 15 they need to go see TDS. If it’s a summarized art 15 then I would appeal it. Can’t hurt them.
If this is the complete story, I don’t see any SJA signing off on an art 15 for either scenario. While it’s the commander prerogative to impose an Art 15, it’s the SJA who has to prosecute it if the soldiers turn down the Art 15 and demand court-martial.
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SSG Dimond
Without question Eck is 100% correct. SGT Nick these Leaders know what the regulation says. A direct order is only given by an officer and a lawful order is given by NCO. The crime must match the punishment.
SGT NICK
A lawful order is any order given by a superior officer. With the exception of orders that violate military regulation. A common misconception is that only certain people can give lawful orders and others give direct orders. The term “Direct Order” is actually informal and is not mentioned in the Uniform Code of Military Justice (UCMJ). The UCMJ does point out that lawful orders are given by commisioned officers, warrant officers, noncommissioned officers, and petty officers in both Articles 90 and 91. Hope this helps!
SGT NICK
What? Um it definitely does not take an officer to tell someone they have to show up earlier for a formation. The problem this soldier is bringing up is common. Usually the Platoon Sergeant will set a Platoon formation 15 minutes prior to 0630 when too many soldiers are running up to formation at 0628. He/She uses this to take accountability before the 1GT calls fall-in. If you are late you either get dropped or counseled or both. I do not agree with a response above about whether dropping is appropriate for this offense or not and blame the NCO Corps for not supporting leadership styles that are not in line to their own. I have my way of leading and you have yours.
Eck
The answer to your question is yes, Article 44 of the UCMJ and the Fifth Amendment prevents a person from being punished twice for the same infraction. However, this does not apply to your situation.
A counseling statement is not punishment under UCMJ, it is an administrative action to address a performance issue. The same is true for corrective training, it is not punishment under UCMJ. You can be given corrective training and a counseling statement for the same misconduct. Documenting corrective training in a counseling statement is actually accurate. It provides a written documentation of the events.
I assume that when you state you were given “physical corrective training” for being late you performed pushups or some other form of PT. IAW AR 600-20, paragraph 4-6b(1)”The training, instruction, or correction given to a Soldier to correct deficiencies must be directly related to the deficiency. It must be oriented to improving the Soldier’s performance in his or her problem area.”
Doing physical corrective training is not appropriate for being late to accountability. Having the Soldier show up ten to fifteen minutes prior to formation time for a week would be appropriate for being late. Having said that, I would advise against refusing to perform the physical corrective training when told but bring it up during the counseling session when it is given. Be professional at all times and address the issues do not make personal statements or attacks on the NCO giving the training.
I hope this helps.
Eck
Disclaimer: I am not an attorney and any views presented are my own and are not to be interpreted as legal advice. Furthermore, my views do not necessarily represent the views of DoD or its Components.
Jessica
I am an E-4. Today I was 13 minutes early to work instead of the mandated 15. I was given a negative counseling statement for 1. Failure to report and 2. Failure to follow a direct order. I was also then given a session of “physical corrective training”. Are there any Army regulations against punishing a soldier twice for the same infraction?
MK
Unless the person whom told you to be 15 minutes prior was an officer then it wasn’t a Direct Order. Next thing is if it is announced that formation will be at 630 then you are not late till 631. However if you C.O.C. announced that they would in fact hold accountability at 615 and you showed up at 0617 you would be in violation of a Lawful Order.
But on a lighter note I wouldn’t sweat it just show up on time and keep you nose clean.