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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Comments
christopher
I missed two appointments one appointment was because i was in a VA med eval and could not call to cancel until after the appointment the other appointment had been missed because i had a flat tire which i can proove by physically showing them the plug in the tire. they gave me two counseling in one day. one recommended article 15. according to 1SGT was company policy that he recomend me for article 15. i called the appointment lines to reschedule the appointments but they had already put me as a no show. the first one was prior to the appointment but could not get anyone on the line until 2 mins after the appointment to reschedule. i just now looked at my erb it says AA under the flag portion from the 7th noone has contacted me about receiving an article 15 since the counceling about two weeks ago. today is the 9th. i have been on a gym detail for almost two years now and am faceing a MED board. both appointments had been recheduled and made. i had talked to peblo she said there would be no problems from her end.
christopher
i am not sure what steps to take for this i have explained all this to my leader. can they recommend an art.15 with two conselings in one day. are they allowed to do so? also i am not aware of what ever policy they are refering to. post policy is 3 i believe within a year.
Mark Gerecht
Christopher,
Not sure what you are referring to when you talk about post policy 3. You can go to the installation website or Division Website and usually all policy letters are listed there. A counseling statement is not required to recommend and Article 15. Article 15 recommendations happen everyday without a counseling statement.
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francis
So I received corrective training for not having my gear cleaned for a layout and that same day they gave me a summarized article 15. Can they do that?
Eck
Yes. Corrective training is an administrative action to address a shortcoming. The summarized Article 15 is UCMJ imposed by the commander.
Example: Soldier is late to formation twice in one week. The Soldier’s NCO, as corrective training, has the Soldier report 15 minutes early to formation for two weeks. This is acceptable corrective training. At the same time the corrective training is going on, the Commander decides to give a Summarized Article 15 for the two late reports and the Soldier received 7 days extra duty and 7 days restriction. This too is legal, as it is punishment under UCMJ.
Hope this helps.
Will Salter
I had a family emergency with my wife who is pregnant and had to leave my acap class early and had no way of getting ahold of my COC, they are trying to count me awol and recommend an article 15, but I have to report to staff duty every 2 hours all day and through the night, can they still take ucmj action?
Mark Gerecht
Yes they can still request an Article 15. Corrective Training is not considered punishment it is considered administrative in nature. An Article 15 is considered punishment.
You can bring this up when you speak with JAG to see if they see the corrective training as appropriate or restrictive in nature.
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Eck
Make sure you speak with your TDS attorney if they give you an Article 15. Having you sign in every two hours around the clock can be inferred as restriction. Restriction can only be imposed by the commander under UCMJ. If it is determined that punishment has been imposed before you were given the right to speak to legal counsel, then they cannot charge the offense. Speak with a TDS attorney.
As far as leaving ACAP class early, can you get a statement from your wife’s doctor that your presence was necessary? You need to have some type of documentation to prove your leaving ACAP was necessary. If all you did was go home to be with your wife and no doctor/medical personnel were involved, then you may have an issue. Did you leave voice mails for your COC or text them? Anything to show you attempted to get in touch with them before you left ACAP? Speak with you TDS attorney if they do try to give you an article 15.
Anonymous
I am SPC(p) holding a team leader position and I recieved a negative counseling for disrespecting a nco after I had been correctively trained from that team leader who is a current e-5 in another section? Is this correct?
SGT Hardy
I have a soldier that just got finished with a court marshal. He was punished through there for various offenses. Now my commander has failed to provide the “hard labor” that was set forth by the court marshal. It has been since OCT 2012, it is now Jan 2013. I just received word that they want to chapter this soldier out for the same offenses. Is that Double Jeopordy? The soldier has already lost all of his rank and has been waiting on the ‘Hard Labor”, he goes and signs in every night. He has talked to I.G. about his ‘hard labor’ and they informed him to keep signing in. The commander has recently allowed him to go on leave. To my understanding, if there is a break from doing extra duty that your extra duty is completed. I just mainly want to know if he needs to continue to do ‘hard labor’ now that he is back from leave and whether or not they can chapter him on the same offenses that he was already charged with in a Court Marshal.
Thanks,
SGT Hardy
Eck
Hi SGT Hardy,
There is a big difference between extra duty from an Article 15 and hard labor without confinement from a courts-martial. However, the same does apply, once started, it must be run in its entirely until completed.
See AR 27-10, paragraph 5-29g. Hard labor without confinement is an authorized courts-martial sentence (see RCMs 1003(b)(6) and 1301(d)(1)). Hard labor without confinement (like the punishment of restriction) is not served
until ordered executed in the convening authority’s action in accordance with UCMJ, Art. 57c. A convening authority’s approval of hard labor without confinement does not automatically reduce the convicted Soldier to the rank of private E–1 (see subpara e above, eliminating hard labor as triggering an automatic reduction under UCMJ, Art. 58a). Hard labor without confinement will—
(1) Be performed in a manner directed by the Soldier’s immediate commander. Such duties will normally be performed in public view and may not include duties that constitute a safety or health hazard to the convicted Soldier;
(2) Focus on punishment and may include duty to induce fatigue;
(3) Not excuse the Soldier from his regular duties. The immediate commander will determine the number of hours of hard labor the Soldier will perform in addition to his regular duties;
(4) Not include duties associated with maintaining good order and discipline, such as charge of quarters and guard duties;
(5) Run consecutively once ordered executed and served in its entirely unless the executed portions are remitted by the convening authority;
(6) Soldiers performing hard labor without confinement will be provided the opportunity to consume three meals daily, though meals may be provided by meals ready to eat, or similar substitutes. Upon completion of the duties
specified as the daily assignment of hard labor without confinement the Soldier should be permitted to take leave or liberty to which entitled.
You did not mention what type of Courts-Martial the Soldier faced. If a Summary Courts-Martial, the max hard labor that can be given is 45 days. Under a Special Courts-Martial, the max hard labor is 3 months.
Execution of the hard labor begins when the Convening Authority approves the sentencing. Normally, this is within 3 – 10 days after the court-martial. Depending on when the court-martial was concluded in October, even if he was sentenced to 3 months hard labor, he should be very close to the end of the period. I would suggest the Soldier speak to his Defense Attorney at TDS for help on this case. There are a number of variables that come into play, and his defense attorney will be best to assist him on the hard labor issue.
You refer to the Soldier signing in every night. Does the Soldier report to the Staff Duty and then leave or is he required to hang around for awhile? This would be a determination of accountability versus restriction.
Now, as far as the chapter issue. It is not double jeopardy. A courts-martial is legal/judicial action, where as a chapter is an administrative action. The Soldier can be chaptered based on the misconduct he was court-martialed for.
AR 635-200, Active Duty Enlisted Separations, specifically allows for separation of Soldiers who have been court-martialed but not given a punitive sentence.
Paragraph 14-2f, “Commanders will consider Soldiers meeting the criteria of section III of this chapter and convicted by courtmartial,
but not sentenced to a punitive discharge, for administrative separation under section III, when the underlying misconduct warrants separation.”
Section III of Chapter 14 is for acts or patterns of misconduct.
I hope this answered your questions and you found this information useful.
Eck
“The views presented by the author are his own and do not necessarily represent the views of the DoD or its Components.”
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.
Anonymous
Ok I got one. I was counciled by my commander about the recent election. I was unaware that as a solider I am not permitted to publicly be for one side or the other. So I posted a campagn ad on fb. The cpt counciled me. It was my only slip up in my 4years active service. He stated that I was to remove the ad. I did. Then 30plus days later my 1st sgt calles me in with a counciling about the same thing this one reccomending art15. When I asked about the 1st counciling he said he was not “satisfyed with what our chain of command had given me” and ” I dug deep and hit the books hard to get you on this one” is this legal? Or is this a personal vendetta?
Eck
Your situation is a bit confusing. Your 1SG can only recommend an Article 15 and it has to be your Commander who gives an Article 15. So, if your commander already counseled you, it seems odd that the 1SG would recommend an Article 15 30 days later.
DOD Directive 1344.10 covers what military members can do as far as political activity. (Google it) The general rule is that if you are not representing yourself as a military member, you can voice your opinions. I would have to consult with my ethics attorney whether or not posting a campaign add on facebook violates the directive. I personally do not believe so, unless you presented it in some way that it could be inferred that you were supporting this candidate as a military member and not as a private citizen. Again, that is my opinion and not a legal interpretation.
Since you complied with the commanders directive to take down the add when initially counseled, I would not think the commander would pursue an Article 15 at this time. It seem awful minor to me.
If you are given a Company Grade or Field Grade Article 15 for this, you are entitled to consult with a Trial Defense Attorney (TDS) prior to the hearing phase of the Article 15. DO NOT waive that right and speak to an attorney. While I do not have all the facts in your case and I only have your side of the story, the case appears weak from the information I have.
If there was some one else in the room when the 1SG counseled you make sure you make the TDS attorney aware of that if you do receive an Article 15.
I hope you found this useful.
Eck
“The views presented by the author are his own and do not necessarily represent the views of the DoD or its Components.”
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.
Sgt rose, dewey
upon arriving to a new unit at fort benning on june 20 2012 i was informed that i would take a diagnostic apft to see where i was. i agreed with this and 2 days lateri took the apft and passed every event except situps. i failed the situp by one repetition. the following tuesday i showed up to work and my section sergeant was there. he told me i had to sign a counseling and i noticed he a flag initiation paper with my name on it. so i asked what it was for and the response was that i failed a record apft. i argued the point that i have not taken a record apft and i should not be receiving a counseling. he informed that the actual plt sergeant was back from training and he wanted it to count for record. i refused to sign the counseling and confronted him with the issue. he said he was briefed that it was a record apft(i already know that one of the nco’s is lieing). after the truth came out the plt sergeant agreed it was not right to count it for record and that paperwork was not brought up again.immediately after this we went to formation for regular pt and i was told i would do a record apft instead of regular pt. i disagreed with this due to fatigue in my legs from a long run the day before. during the apft briefing i asked for time to recover from the previous pt day and was told no. i argued that given what had happened that morning with the lie regarding the diagnostic apft that i didnt think i would get a fair assesment. the plt sergeant took that statement as a form of disrespect and wrote a counseling for me later that day for disrespect to an nco. after reviewing the counseling and writing my rebutle i signed it and gave it back to the plt sergeant.
it is apparant to me that the nco’s in this platoon did not want me to promote even though i had already made points the week prior. i am scheduled to get promoted on july 1st 2012. i have not received an initial counseling or been integrated into my platoon. i went to IG with the complaint and they called the unit. IG said i have nothing to worry about regarding my promotion. the question i have is, can they use the counseling that i rebutled against me to start an article 15 and possibly persue cancelation of my promotion or any other punishment. i have been in the military for almost 11 years and have not had a disiplinary action against me ever. in the seven days i’ve been with my unit i have been threatened with loss of promotable status 3 times, almost had a counseling and flag initiated based on a lie about a diagnostic apft and now a counseling statement for disrespect. thank you for reading.
SGT NICK
Your PCS orders had this in it: “You are responsible for reporting to your next duty station/school in satisfactory physical condition, able to pass the Army Physical Fitness Test (APFT) and meet weight standards.” That’s the magic bullet; it is suppose to be a record one once you show up. I have never PCS to another unit that did it the right way and ended up doing the way it happen to you, BUT you had 48 hrs, I had from ten o’clock the night before. You should be able to pass a PT test at any given time; you could have been flagged and lost your promotable status.
Yes your unit is right and IG is wrong, you must keep your head above water until the 1st, if not they can flag you and your promotion orders can be revoked. Keep in mind you are still just promotable until midnight June 30th.
This sounds like a BCT unit, maybe a line one they are tough on PT and respect, some units can recommend UCMJ for an Article 91 violation right off the bat. You have already made a bad first impression but since you will (hopefully) be promoted on the 1st the slot that you were suppose to be in should be open again. Does your unit have a MTOE with a 30 level slot for your MOS now since you will be a SSG? You can request to move if not, don’t let them over strength slot you.
You have to get back to basics, get back in shape, and stand at parade rest when talking to the Platoon Sergeant, roger SGT, yes and no SGT need to be the only words coming out of your mouth. This is the only way the situation won’t get worst. Instead of fighting them and looking for a way to burn them, just have a sit down with the platoon sergeant and talk things over. Maybe you’re not use to this kind of command climate and trust me there are a lot of them out there, you must learn to adapt to multiple command climates.
Mark Gerecht
SGT Rose,
AR 350-1 clearly lays out the requirement for APFT testing. A “For Record” Test must be announced prior to taking the APFT. It is not uncommon for a unit to require new Soldiers to take a diagnostic APFT. Usually a Soldier is also given 30 days for accumulation to a new unit prior to testing. While this is not a hard and fast run it is rather typical and usually a local policy.
Now to the issue of disrespect. Yes, if the leader believes you were disrespectful he can initiate Article 15 proceedings against you. Understanding that there may be extenuating circumstances in this situation you still cannot be disrespectful. Even if your leaders are not correct you must remain: professional, unemotional, and factual otherwise you put yourself in a bad position and are likely to be recommended for punishment.
The goal in issues you like this is to take the moral high ground. Be an absolute professional. Try and solve the issue at the lowest possible level and work it up through the commander’s open door policy. Usually by the time you get to the 1SG/CDR level the issue will be resolved. If you are concerned consider preparing an memorandum for record that discusses your side of the story. Include times, dates, individuals involved, what was said, etc. Make sure it is well laid out, factual, and unemotional. This will provide a dated record of the issues involved if you need to refer to them in the future.
The next question becomes did your leader lie to you or is he an inexperienced leader that thought he was doing the right thing? If he is in fact not telling the truth odds are the issue will occur again in the future. Most likely the senior leaders of this unit will have also identified this trait in the leader as well. So you need to prepare yourself for the likelihood this could occur again in the future and determine how you will proceed in a professional manner. Remember becoming emotional or disrespectful put the leader in charge of your future. If you remain professional and think through the issue you are controlling your response and setting the example. Odds are most leaders will see the situation for what it is.
When it comes to counseling statement and you disagree with them make sure you develop a professional, factual, unemotional response and get a copy. Never argue or raise your voice.
Here are some items you might find useful:
Can a Leader Backdate a Counseling?
Should I Refuse to Sign a Counseling I Do Not Agree With?
What Do I Do When A Soldier Refuses To Sign?
What Does It Mean When A Soldier Disagrees?
How Do I Tell My Side of the Story?
Taking the Venom Out of Toxic Leadership
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Bob Smith
I was cited with a DUI while driving on a military installation for .068 BAC. It was dismissed in federal court.
Can my chain of command still pursue UCMJ action against me?
Can they give me corrective training or any other form of administrative action?
Doesn’t UCMJ fall under the federal court system and therefore would be double jeopardy?
Thank you
Mark Gerecht
Bob,
I apologize for the delay in responding but I wanted to check somethings out with one of our experts and I also got swamped by some other activities in the office.
Double Jeopardy
Depending on the specifics of what happened there could be a double jeopardy issue with regard to this situation. There could be a double jeopardy issue if the case was heard at Federal Magistrates Court. You need to seek assistance from your local JAG with regard to this issue immediately. If JAG will not see you because the command has not formally filed an Article 15 request (which is not uncommon)then you might want to consider seeking advice from an attorney off post with prior JAG experience. This consult will usually cost about $50-$150 but in my opinion the money is will worth it in most cases. If you have difficulty finding an attorney in your area shoot us an email at: Questions@asktop.net and we will see if we can link you up with individuals we have recommended in the past.
Corrective Training can they do it? Yes
Can they send me to ASAP? Yes
-These items are administrative in nature and do not constitute punishment.
AR 600-85 requires commanders to refer Soldiers to ASAP in certain alcohol related incidents. Consider reading AR 600-85 to make sure you have a firm grasp of the requirements.
Impact of the Draw Down
If you are a SGT or above other issues that may be on the horizon. This could be a negative comment on your evaluation report, the possibility of a relief action, letter of reprimand, etc. These are administrative in nature. In today’s Army with the draw-down on going these items can be career ending. So you might want to consider reading the following regulations in the event you have to prepare to appeal an evaluation report or QMP notification.
AR 623-3 goes through the evaluation report appeals process. You might also want to check out the Evaluator, for sale on GIPUBS.com it goes into specifics about preparing an appeal for NCOERs.
AR 601-280 with regard to QMP and AR 635-200 with regard to QMP and separations. I have an information paper on the QMP process but can’t figure out how to post it on this reply. If you would like a copy of it just email me at: Questions@asktop.net for your review.
These items may not be an issue in your case but I wanted to bring it up so that if it is a possibility you can prepare for it by being well versed in the process and be well prepared to defend yourself if necessary.
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