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Can I be given corrective training and UCMJ punishment for the same offense?

Can I be ordered to perform corrective training and then be recommended for UCMJ for the same offense? Isn't this double jeopardy?

Yes you can receive both. This is not double jeopardy. Corrective training is administrative in nature and not considered punishment. UCMJ actions are punitive in nature. So yes you can be recommended for UCMJ action for the same deficiency your current corrective training is meant to correct.

Let’s say you were disrespectful to an NCO and he required you to give a class on respect and recommended you for an Article 15. Depending on the circumstances this course of action could be appropriate.

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posted on 04/25/2011 under Q&A
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Mark is a Retired Command Sergeant Major with 26 years of military leadership experience. He held 3 military occupational specialties (Field Artillery, Nuclear Weapons Tech, and Ammunition Ordnance). Mark is one of the leading military authors in the fields of leadership, counseling, and training..

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  • SGT NICK

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    No statue of limitations, and the command referreal to ASAP is not a punishment. Your supervisor/commander is responsible for the heatlh and well being of soldiers under them, if you are underage then they are within their limits to send you to get help. Keep in mind ASAP is an evaluation, they will decide if your case warrants admission into the program or not, not your command; you will receive a certificate upon completing the program. The counseling about not drinking alcohol is an informative one and should not have included any corrective training. Keep in mind that your command has you in their cross hairs, if you are underage seriously consider avoiding alcholic beverages until you are of the legal age limit.

    • SPC Nick

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      SGT Nick, I was over the age we just aren’t allowed alcohol in the barracks….

      • SGT NICK

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        odd I only know of WTU units that have alcohol free barracks policy. If you are on medications you are not allowed to drink alcohol either, some Doc’s write that on profiles now. Either way yes alcohol in your room is disobeying a lawful order, your barracks should have signs posted all over them to ensure compliance. The counseling on not consuming alcohol stands if you are on prescription medications. Hope this helps.

  • SPC Nick

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    I was found to have alcohol in my room and received an Article 15, two days after the incident, for disobeying the order of my commander. 13 Days later during the article 15 process Trial Defense Services found my article to be invalid and declared it “Dead.” Two days after the article was declared dead my command issued me consoling statement ordering me to not drink alcohol. It is now almost a month after the incident 13 days after the consoling statement and 15 days after they declared it dead and I find out I am possibly being recommended to be enrolled into the Army Substance Abuse Program…. My question is could they impose the negative statement after my 15 was declared dead as some sorta of retaliation since they couldn’t charge me with the 15? And 2nd is there some sort of statue of limitations on how long they have to give out punishment?

    • Mark Gerecht

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      SPC Nick,
      I engaged one of our SME’s on the legal side with regard to your issue.
      1. Article 15 declared dead: I am not exactly sure what you mean by this as there is not term under the legal system for a “Dead” article 16 to my knowledge. Your Article 15 can be wholly set aside or the it can be found that the evidence dos not support the charge.
      2. Counseling not to drink: Consumption of alcohol is a privilege and this privilege can be suspended or you can be given an order not to consume alcohol for various reasons for infractions. This is an administrative measure and not a punishment. Based on your situation there should be a standard established that will remove this order. It could be upon completion of a ASAP screening that states you are not depended upon alcohol or something of that nature. You can appeal to the commander to remove the suspension.
      3. Recommended Enrollment in ASAP: AR 600-85 states:
      a. (2) Unit commanders must intervene early and refer all Soldiers suspected of being alcohol and/or drug abusers to the ASAP. The unit commander should recommend enrollment based on the Soldier’s potential for continued military
      service in terms of professional skills, behavior, and potential for advancement.
      b. page 3: (7)Separation initiation authorities, in accordance with AR 635–200 and AR 600–8–24 retain their authority to make personnel decisions except that initiation of administrative separation is mandatory for all Soldiers identified as illegal drug abusers, for all Soldiers involved in two serious incidents of alcohol-related misconduct within 12 months and for all Soldiers involved in illegal trafficking, distribution, possession, use, or sale of illegal drugs.
      This action is also administrative in nature. I would encourage you to read AR 600-85 in its entirety as it provides informative information that may assist you.
      4. With regard to a time limit: There is a two year limit to punish any action under UCMJ. However the farther away from the 2 year limit the command goes the more it looks like retribution rather than justice but some cases may take time to process based on the specifics and the resources available.

      As SGT Nick as indicated your actions have most likely gained the attention of your chain of command in a negative way. The action is to be a good Soldier and comply with the requirements to the best of your ability. Given the current draw down you should make sure you understand the consequences for any substandard performance and/or repercussion from a career perspective with regard to ASAP enrollment.
      Hope this helps
      TOP

  • pfc james

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    I have a profile and it is pretty much a dead mans profile. the only thing i can do is walk at own pace and distance. My team leader is trying to give me corrective training and said that he can ignore my profile and that by doing this my health was in his hands. is this true? and if not what can i do to get this to stop?

    • Preston

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      This article may be of interest to you, PFC James: http://asktop.net/q-and-a/who-can-stop-my-leader-from-abusing-me-and-ignoring-my-medical-profile/

    • SGT NICK

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      You can tell your platoon/1SG or commander or take a copy of the profile to IG and tell them your story. I would give your leadership the opportunity to help first.

    • Mark Gerecht

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      PFC James,

      As a wise SSG once told me when I made SGT. If you want to be successful in the military know what the Army can and cannot do to you. Study the regulations!

      Without special consideration from your commander No, you cannot be forced to violate your profile. See AR 40-501 chapter 7 for specifics on profile actions. I have provided an extract below for your review. Your commander may evaluate and make the determination about your duty assignment and what corrective training might be appropriate. If a leader orders you to violate your profile you have a duty and responsibility to notify the leader that the order violates the profile and could cause you physical harm. Any leader that forces you by order or intimidation to break your profile may be guilty of abuse of subordinate, violation of medical order, or other offenses under the UCMJ. Keep in mind if you are caught violating your medical profile you could be punished under the UCMJ. So by extension the leader is guilty of violating an order, causing harm or potential harm/abuse to a Soldier under their charge, among other things that can be punished under the UCMJ. In addition should the rating chain determine it to be appropriate they could make mention of this action in a negative manner on the leader’s evaluation report.

      If your leader truly stated he could ignore your profile he may find himself in a very bad position. You might want to consider a few options in this type of situation:

      1.If you are ordered to violate your profile immediately inform your leader that such action violates your provide. Present him a copy of your profile (this should be on your person at all times)

      2.If the leader ignores the profile make a mental note of the individuals around you that can testify that you were ordered to violate your profile.

      3.Ask the leader to give you the order in the presence of another Soldier preferably senior in rank to the leader giving the order.

      4.If you have the opportunity request to see a senior leader Platoon Sergeant, Platoon Leader, Company Commander, 1SG.

      5.If you are forced to comply with the order and are unable to seek assistance from a senior member of the chain of command consider making a memorandum for record that documents the date, time, specific order, individuals that were present when the order was given, and any damage that was done to you as a result of the violation, and any other specifics about the issue to include any medical attention you sought after being ordered to violate your profile.

      6.Consider immediately reporting to the TMC or go on sick call and have your medical records documented. Inform the medical authority of the rank name, date with regard to the leader that ordered you to violate your profile and any other related comments he made. This matter needs to be document in your medical records in the event that permanent damage is caused and you might need to seek disability compensation upon separation or retirement. By seeking medical attention for this issue I am sure the medical authority will then contact your chain of command and seek immediate resolution or investigation of the matter.

      7.You can also request a formal investigation into the matter by speaking with your commander.

      8.You may also seek assistance from the IG and/or JAG.

      You must carefully examine any action you decide to take based on your specific situation. Make sure that anything you say, do, or communicate is factual, professional, and unemotional. This will help to ensure the chain of command hears your accusations with an open mind. If you approach them in an unprofessional manner, are emotional, or less than honest it will hurt your case significantly.

      Leaders that make such comments or take such action are most likely making emotional decisions or are immature and inexperienced leader. If you can get to a senior leader quickly this issue will most likely be crushed as senior leaders tend to be more experienced, understand the regulation, and are removed from the emotion of the issue. It is highly probable that the leader that stated he can ignore your profile also fails to understand the consequences for such a decision on your personal health and the possible impact on his career.

      Now with all of this stated I would encourage you to seek resolution through your chain of command. Most leaders want to do what is right and will not tolerate abuse of subordinate or conduct that jeopardizes the health and safety of others. Solving problems at the lowest possible level typically is the correct action. Your situation maybe be different and you must determine how to proceed.

      Did you find this information useful? We appreciate your feedback!

      Please see the extract below of AR 40-501

      AR 40-501 EXTRACT FOLLOWS

      7-3e
      (2) It is the responsibility of the commander or personnel management officer to determine proper assignment and duty, based upon knowledge of the Soldier’s profile, assignment limitations, and the duties of their grade and MOS.
      (3) The commander has the final decision on the deployment of Soldiers in his/her unit. When medical providers and commanders disagree on the medical readiness status of a Soldier, the decision will be raised to the first general officer in the Soldier’s chain of command, who will review both medical and commander recommendations and make the final decision whether to deploy the Soldier.
      (4) Table 7–1 contains the physical profile functional capacity guide.
      (5) See TB MED 287 for profiling Soldiers with pseudofolliculitis.

      PARA 7-4
      c. Temporary profiles. Soldiers receiving medical or surgical care or recovering from illness, injury, or surgery, will be managed with temporary physical profiles until they reach the point in their evaluation, recovery, or rehabilitation where the profiling officer determines that MRDP has been achieved but no longer than 12 months. A temporary profile is given if the condition is considered temporary, the correction or treatment of the condition is medically advisable, and correction usually will result in a higher physical capacity. Soldiers on active duty and RC Soldiers not on active duty with a temporary profile will be medically evaluated at least once every 3 months at which time the profile may be extended for a maximum of 6 months from the initial profile start date by the profiling officer.
      (1) Temporary profiles exceeding 6 months duration, for the same medical condition, will be referred to a specialist (for that medical condition) for management and consideration for one of the following actions:
      (a) Continuation of a temporary profile for a maximum of 12 months from the initial profile start date;
      (b) Change the temporary profile to a permanent profile;
      (c) Determination of whether the Soldier meets the medical retention standards of chapter 3 and, if not, referral to an MEB.
      (2) The profiling officer must review previous profiles before making a decision to extend a temporary profile and refer the Soldier to a medical specialist for management if the temporary profile has been in effect for 6 months. Any extension of a temporary profile must be recorded on DA Form 3349, and if renewed, item 8 on the DA Form 3349 will contain the following statement: “This temporary profile is an extension of a temporary profile first issued on (date).”
      (3) Temporary profiles will specify an expiration date. If no date is specified, the profile will automatically expire at the end of 30 days from issuance of the profile. In no case will Soldiers carry a temporary profile that has been extended for more than 12 months. If a profile is needed beyond the 12 months, the temporary profile will be changed to a permanent profile. Exceptions to the 12-month temporary physical profile restriction must be approved by the medical treatment facility (MTF) commander or their designated senior physician approval authority (often the deputy commander for clinical services).

      PARA 7–12. Responsibility for personnel actions
      a. Commanders and personnel officers are responsible for necessary personnel actions, including appropriate entries on personnel management records and the assignment of the individual to military duties commensurate with the individual’s physical profile and recorded assignment limitations.
      b. If the Soldier’s commander believes the Soldier cannot perform within the limits of the permanent profile, the commander will request reconsideration of the profile by the profiling physician. Reconsideration must be accomplished by the profiling officer, who will either amend the profile or revalidate the profile as appropriate. Commanders may also request a review of temporary profiles

  • SPC Ramos

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    I was currently on quarters do to having one of my molars pulled out. We are required to answer are phones at all times. Put i was drugged up on pain killers that were prescribed to be. I was pulled of quarters the same day because i was knocked out and was not able to answer my phone and now i am being punished for extra duty and possibly an ART-15. What can i do ?

    • SGT NICK

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      This would be more appropriate for open door policy to your company or battalion leadership; if they do not care I would file an official IG complaint. Make sure you keep your prescription paperwork as well as your quarter’s paperwork in case of UCMJ action. You need a copy of the negative counseling as well as your recall formation counseling; it should look like the one below. This recall counseling is imperative for them to try to pull UCMJ on you.

      (Last Name/First Name) ___________________, this counseling is to inform you of the recall procedures the battalion has authorized in case a flight arrives before Tuesday September 20th, 2011. You, as well as every other soldier assigned to chalk two are on a one hour recall, starting today upon release and lasting till Tuesday when we leave. This means that you need to answer your phone during the four day break and be prepared to leave country one hour later. The Army does not have a definite day when we are suppose to leave, if a flight shows up early we will leave early. The one hour starts the first time someone calls your phone, not when you decide to answer or return the call. If you do not answer your phone, if no one is able to reach you, and you miss your flight you will be recommended for an Article 15 for disobeying a lawful order and for missing movement.

      I had a soldier in the same predicament above, but it was my responsibility to go to the soldier’s room over the four day weekend to ensure they were in their room and for accountability since they slept through their phone rings.

      • SPC Ramos

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        Thanks alot

  • PFC Gastelum

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    I’am being recommended for a ART 1. They placed me on “DUTY” status at all times until further notice. So basically I have to be in uniform at ALL times and on my days off I get tasked out to do whatever they want me to.Basically its extra duty but they are not calling it that. Is this considered to be a punishment?

    • PFC Gastelum

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      *ART 15
      Forgot to add they told me I’m on duty status until they figure what is going to happen to me. I signed my counseling statement yesterday that said i would be recommend for a ART 15.

      • Mark Gerecht

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        It depends how they handle the issue. If the commander revoked privileges like civilian clothes and pass privileges then there is most likely not an issue. Having to pull duty might be another issue. This is where JAG comes in. You need to keep a record of everything you are told to do and the actions taken against you and present this to JAG when you go for your Article 15 review. While revoking privileges is common place someone in a 24 hour duty status is not.
        Most command and leaders try to do the right thing so my guess would be prior to taking this action your chain of command most likely spoke with JAG to ensue their actions were appropriate. But you never know. There might be a situation were the 24 hour duty staus would be appropriate such as if you were a flight risk.
        Did you find this information useful? We appreciate your feedback !
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      • PFC Gastelum

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        Thank you so much! This information was helpful, I’ll be sure to keep a record and go and talk to JAG. One more thing does it make a difference if the duty status was placed on me by the CSM and not the commander?

      • Mark Gerecht

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        PFC Gastelum,I have some additional information I would like to share with you that may be of assistance to you. I don not believe it is proper to post it here. Please email me at: Mark@asktop.net and I will send you the information in an email ASAP.
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      • Mark Gerecht

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        PFC Gastelum,
        NCO’s including the CSM have the authority to recommend revocation of privileges but do not have the authority to impose the revocation. NCOs can impose corrective training but based on what you stated I am not sure that 24 hour duty would fall under corrective training. Since I do not know the specifics about what transpired with you I cannot tell what is correct in this matter. I would caution you not to tangle with the CSM as we usually (not always) have our stuff together. If you believe the action was inappropriate make a note of it and speak with JAG. Regardless of what happens be professional, unemotional, and calm. Do not allow yourself to be provoked to action or simply lack self control and say or do something that will just dig a deeper hole. I would also suggest you keep your mouth shut. Do not discuss the issue with your peers. Also be careful of what you hear in the barracks. Odds are those Soldiers know less than you do about UCMJ. Keep in mind your leaders are doing what they believe best in this situation. As I stated previously shoot me your email address I an will send you some specific information that might help. You can email me directly no need to post your email on the site.
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    • SGT NICK

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      I would need more information about the infraction that caused the counseling and UCMJ recommendation. If it is coming straight from the CSM it sounds bad. Keep in mind that JAG only makes recommendations to the commander and cannot force them to act in your favor entirely.

  • SPC V

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    I have received a counseling for disrespect and slander of a NCO. On the corrective actions section of the counseling it says that my reenlistment slot will be taken from me, i will not be recommended to the board and recommended for a ART 15. Can i be recommended for the ART 15 in conjunction with the other two punishments?

    • Mark Gerecht

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      Unfortunately Yes. The first two actions are administrative in nature. The Article 15 recommendation is punitive in nature. If these actions have not already occurred I would encourage you to seek a resolution with the chain of command. Be humble, be responsible and see if they will go for corrective training. Ensure them you have learned your lesson and that they will not have this problem out of you again. If properly delivered and your are sincere you may have a shot at putting the brakes on this before the ART 15 process starts. Keep in mind we all make mistakes and we should learn from them. Depending on the specifics of this situation you might be able to get some empathy from the chain of command. Keep in mind during the draw down the Army is looking to get rid of Soldiers that can’t play well with the team or have difficulty following orders and maintaining discipline.
      Hope I provided you some useful nuggets of knowledge.
      TOP

    • SGT NICK

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      To reiterate what the CSM said yes you can receive all three punishments. First, because you are pending UCMJ you will be immediately flagged barring you from re-enlistment and favorable actions; you should receive an email in your AKO account when that happens. For the first time in Army history your brigade commander must now approve your re-enlistment. In order to do so he will need recommendations from your company re-enlistment rep, company commander, your battalion career counselor and commander then to him. If any of these people say no, then it is DOA unless you want to use the open door policy to talk to him/her. As for your ART 15 there are many considerations to take into effect, including if this was your only negative counseling or do they have a few of them on you already. What are the proceedings? Summarized, Company, or Field? And finally and most importantly does your unit have a zero tolerance policy for disrespect? Units that do tend to be aggressive toward violators, hope this helps and good luck. P.S. I would recommend reading CSM Gerecht article on recovering from a Article 15 proceeding

  • spc butler

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    i have recieved two councilings for late to morning formation and one for missing a bus for white water rafting i am an outstanding soldier u have a 295 pt score and am in route for nco board and wlc i also just reenlisted to further my carreer all counciling states were marked as article 86 (awol) i have completed all corrective training and am now recommended for sum. art 15 however all counciling statements are now being rewritten as article 92 failure to obey lawful order what should i do if myself and other leadership within my plt disagree with actions taken and believe i am being pinpointed by plt srgt this is not the fitst time i have been singked out directly by my pkt srgt

    with all respect

    spc butler

  • Taylor

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    I have already received a negative counseling for underage drinking, i have already started my punitive action for it. My PLT SGT came back from leave and went around the company commander and is recommending me for article 15. My Company Commander stated before he left on leave and stated that he did not want to give us ART 15. What am I supposed to do i know I was wrong but I thought that it was double jeopardy.

    Very Respectfully,
    Taylor Gouette.

    • Mark Gerecht

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      Let’s go over a few things first.

      You stated you have already started your punitive action. Punitive action is punishment and usually administered under UCMJ. So I believe you received corrective training. Corrective Training is not punitive action. Corrective training is the lowest level of disciplinary correction and is designed to be conducted until the substandard performance has been corrected and cannot be used as punishment.

      If the corrective action was taken in the form of a counseling statement you are probably okay, especially if the Commander stated he did not want to handle it with an Article 15. Make sure you have a copy of the counseling statement.

      With regard to double jeopardy I do not believe this situation qualifies for the double jeopardy ruling.

      Now to the root of the issue. If your Company Commander stated that your corrective training was sufficient and did not want to resolve the issue under an Article 15 then the Platoon Sergeant does not have the authority to overrule this decision. He can make his dissatisfaction known to the command and recommend an Article 15 but odds are the XO will not override the Commander’s decision, especially if he has been briefed on the matter by the Commander.

      I would recommend that you stay calm, unemotional, and professional. You have already acknowledged and accepted responsibility for your actions. Most leaders will respect this and take this into consideration when you make a poor decision. If you feel you are being treated unfairly you should seek resolution through your chain of command. If you do not feel you can do that then you can call the IG without providing your name or unit and request their thoughts on the matter.

      There are several articles and questions/answers on AskTop.net regarding corrective training. You may also want to read about implementing corrective training by read the Mentor. If so you can find it at GiPubs.com

      I hope you found this information useful. If you have additional questions or if I did not adequately address your question please feel free to contact me again.

      Keep us posted

      TOP

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