Can I inspect a Soldier’s quarters or off post housing for health and welfare? | AskTOP.net - Leader Development for Army Professionals
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Can I inspect a Soldier’s quarters or off post housing for health and welfare?

I do weekly (at least) barracks inspections. While I was out doing my run, i decided to pop in and see one of my Soldiers who lives on post. He's a young E4 with a wife and two kids. He allowed me in his home and we talked for a few minutes. While I was there, I noticed that his house was filthy. I politely mentioned this to him. I brought it to the attention of my E6. He came with me to visit the Soldier the following week. The house was still a mess. We sat him down and spoke to him about it. We then paid another visit today. He had notice and time to prepare for us. Conditions were better, but still bad. Now my question is this: Do we have the right to counsel and punish (if deemed necessary) for this? Or is a Soldier's house off-limits to the reach of their leaders? I've been searching and having a hard time finding any solid information on this. I don't want to see this situation blow up and have him go to JAG and sink everyone involved because we were trying to help him.

Revised: Post.

Recently I received some great information from a legal NCO that provided some interesting information concerning inspection of quarters or housing off base.   This information compelled me to modify my previous post on the subject.  Here is the foundation of his comment:

I would caution about giving the impression that the command can “at will” inspect a Soldiers on or off post housing.  The command must have permission of the Soldier or spouse to enter the home.

 The command can ask to enter, but if the Soldier says no, they can not force their way in to inspect.  Some ways to work this issue is that if the Soldier is living in on base housing, then the command requests the housing authority do an informed inspection of the premisis.  This is usually in the contract with the housing authority that they can come in and inspect the quarters after giving 24 hour notice.

The command can then accompany the housing authority to the residence.

 If the Soldier is living off-base, then the same can be attempted through the rental property management.  Most rental managers will support such a request to protect their interests.

 If the Soldier is purchasing a residence off-base it is more difficult to inspect if the Soldier will not give permission.  Then access has to be for just cause and coordinated through the local authorities/courts.

I greatly appreciate the valuable information this leader provided and wanted to share it with all of you. While my original post stated you needed to make sure you comply with all legal standards and seek advise from senior members of the chain of command in each situation.  I believe the information provided by this legal NCO is more specific and answers the question in a more informative way.  Bottom-line if you are having an issue with a Soldier in quarters or living off post I would encourage you to seek legal advice before proceeding.  As  you do not have authority to force your way into a Soldier’s home.

Thanks for helping us clarify the issue!

 

posted on 12/09/2011 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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    Comments

  • Anonymous

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    If leadership walks into the residence, whether or not they are invited in, do they have the authority to punish the soldier for the condition of their home? Is it a lawful order to say that they want that soldier to clean their home to their level of satisfaction and have inspections until then. Also, is it possible that the leadership can pull a soldier from his home and force him to live in barracks if they are not satisfied with the conditions as well as revoke his BAS? This is an issue I’m currently seeing with soldiers.

  • SFC Nathan J. Kerr

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    There has been a rash of these questions and the simple answer is no. I refer you to the opinion written by the Fort Drum Inspector General who state concerning even ON POST quarters (let alone off-post)…

    This is what I found:

    I researched and found the following:

    The first response I found seemed to be ambiguous reading from DA Pam 27-50-373 also titled “The Army Lawyer” April 2004 in which is states,

    “…The (Military Housing Privatization Initiative) MHPI project becomes a potential search and seizure issue for commanders because of the project format. That is, “[t]he developer will own, operate and maintain the houses, and lease the underlying land from the agency for a term of fifty years.” Therefore, the commander’s authority to authorize searches within MHPI housing units is not clearly delineated.” (Vest, 2002) (Martin, 2004)

    So for a more straight forward answer, I researched and found a Q&A forum from the Army’s Fort Drum Inspector General’s office which pointedly asked:

    “Dear IG,

    My team leader and squad leader showed up at my on-post quarters and ordered me to allow them to come in and conduct a health and welfare inspection. My team leader told me that I could not refuse to allow them to check my quarters because I live in government housing. Is my unit chain of command or NCO support channel authorized to come to my on-post private quarters and conduct a health and welfare check of the premises? Can they do that?

    – Housing Challenged

    Dear Housing Challenged,

    The answer to your question is no. Only law enforcement personnel may enter your quarters without prior permission in certain situations and only within the performance of their duties. Also, some housing leases may authorize landlords or their representatives to enter the premises for the purpose of conducting an inspection or performing maintenance. Your chain of command also may arrange in advance to visit your on-post quarters; however, the commander must have your voluntary permission. Commanders cannot lawfully order Soldiers to let them into on-post quarters. (Mountaineer, 2011)

    While it is presumed that the Inspector General relies on the advice of SJA counsel before posting to the public opinions about a highly subjective topic, I did not want to leave it only there. So I went to the Office of the Deputy Under-Secretary of Defense Installation and Environment’s Military Housing Privatization Initiative (MHPI) frequently asked questions to which it clearly states, “The Government will not inspect move-ins or move-outs because the Government no longer owns the unit. The project owner’s property manager is now responsible for this function.” (FAQ #72)

    While this cleared up move-in and move-out inspections, I wanted to find something a little more solid from other official writings. In 2010, the Chief of Military Law and Ethics Division for Fort Knox wrote the following:

    “…commanders DO NOT have authority to conduct inspections or authorize searches in privatized housing or in a soldier’s off-post quarters. Therefore, any searches off of the installation must be conducted in conjunction with a valid search warrant.” (Ft. Knox, 2010)

    In order to provide an example of continuity and a standard practice across the Army, I turned to an opinion provided to the Commander of NTC as given by the NTC and Fort Irwin Legal Office and implemented in NTC Policy Letter #23 par.5 J which clearly states (paraphrased in part) that no leader will ever enter non-barracks housing on or off-post without the Soldier or spouses permission and further ordered, “leaders will promptly leave the premises if asked to do so, and no adverse action will be taken or threatened against a Soldier or Family member for refusing to permit a leader to enter or remain in the quarters.”

    So while there is no clear cut answer in modern case-law or regulation that could be found, the general consensus across the Army is that there is no legal basis to allow a Commander nor a representative (or agent) of the command into privatized housing on-post nor off-post quarters.

    References in order of appearance and extra reference:

    http://www.loc.gov/rr/frd/Military_Law/pdf/06-2004.pdf

    http://www.drum.army.mil/mountaineer/Article.aspx?ID=5270

    http://www.acq.osd.mil/housing/faqs.htm#72

    http://www.knox.army.mil/Garrison/supportoffices/sja/docs/papers/mle/HealthWelfInsp.pdf

    http://www.irwin.army.mil/CommandGroupUnits/NTCcommand/Documents/6_11_13/NTC_PL_23.pdf

    http://www.signal.army.mil/OLD/sigbde15/Policies/Policy_Letter_26_(Health_and_Welfare_Inspections).pdf

    • Mark Gerecht

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      SFC Kerr,
      Thanks for stopping by and sharing your research and experience. We need leaders that are willing to help shape and grow the future leaders of this nation. Please feel free to stop by anytime and share your professional insight.

      Respectfully,
      TOP

  • First Sergeant Griffiths

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    I personally have never had a Soldier refuse my request to visit their quarters. I do believe Commanders are required to verify the Soldiers address and that their quarters is adequate. If the Soldier has a Family and you are concerned for their welfare I recommend a phone call to Family Advocacy who can intervene in cases of suspected abuse or mistreatment. I also remind My Soldiers that living off post is a privilege and if we cannot resolve the issue and you feel strongly enough about it you can always request their persion to live off post be revoked. I’m not sure this will be successful except in extreme circumstances but in all cases. consult SJA prior to any such action.

    • Mark Gerecht

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      1SG Griffiths,
      Good point. It has been my experience most Soldiers will not appreciate the interruption of personal space but will understand the need for such and event. It is all about the attitude and tone of the leadership involved. Bad leaders can make this an ugly experience.
      TOP

    • SGT NICK

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      With all due respect 1SG I believe you provided inadequate information on this topic. If a Soldier lives off post there is literally nothing family advocacy can due about it other than call the county social services, you could actually do this anonymously yourself if you really think there is a serious problem.

      You personally never had a Soldier refuse your request to check on their quarters off post but I believe you never told them that they had the right to REFUSE your request either. I saw good 1SG’s get relieved over this just because they didn’t follow proper protocol. You have to be invited inside the house to enter or you could just knock on the door and ensure the Soldier lives where their emergency data claims they live and that’s it NO entering. As TOP said some COC’s are aggressive over this and find themselves in trouble really fast, its not their fault all the time most post manuals will claim that leaders need to check on quarters off post but fail to provide guidelines.

      1st Example Wrong Way:

      COC puts out that all off post Soldiers will have their house or apartments inspected today with no warning, go home and stand by. After the inspection numerous Soldiers were counseled on their living conditions. Afterwards many IG and legal complaints start flying out of nowhere. Some people claim they never invited the Platoon SGT 1SG, CO on their property and filed official criminal trespassing charges with the local sheriff department. Others conjure up complaints that they beat the door so hard damage is done and they want compensation, filling it through the county courts outside military jurisdiction. Not long later the CDR and 1SG are relieved.

      2nd example right way:

      COC puts out on Monday that they are going to to ensure that every person that lives off post address matches whats on file for administrative reasons, this is going to happen Friday after PT. All Soldiers not living in the barracks will be counseled on whats going to happen Friday and whether not they agree or disagree. The guidelines are clear your squad, platoon, 1SG, or CO will knock on the door that’s on file. You will need to answer the door and that’s it you can be in civilians and wont have to come back to work. If you invite them in your house that’s fine, if not that’s fine too. If you refuse this altogether than the COC will contact the local sheriff or social services to check on you which will most likely be far more intrusive.

      I was in both of these COC’s that did off post inspections and was surprised on the amount of people that participated in the second one compared to the first.

  • JAG

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    What is the Army Regulation that states that it is authorized to conduct and inspection of off-post housing?

    • Legal NCO

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      To my knowledge, there is no regulation that authorizes the command to inspect off-post housing. If the command is concerned about the cleanliness/living conditions of a Soldier in off base housing, and the Soldier is renting, the command can express their concerns to the landlord and ask for their assistance to check the property. If the Soldier owns the property, then the command would have to engage the local law enforcement/courts (family services if children are involved) and establish probable cause that the conditions are such that intervention by the courts is necessary for the welfare of the family. I have seen this happen when children were involved and the command could establish that the children’s health and welfare were at risk. As always, consult with the SJA before taking any course of action in regards to inspecting off-base or on-base housing for that matter.

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