Can information from Social Media be used for UCMJ actions? | AskTOP.net - Leader Development for Army Professionals
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Can information from Social Media be used for UCMJ actions?

I have a Soldier who called in sick this morning due to food poisioning. He ate sushi the other night and got sick. The other night was also his birthday. Which means everyone assumes he was drinking. Now this morning his wife posted a comment about him being hung over. I cannot find the comment anywhere on his or his wife's pages. Our PSG wants to put him in for an article 15 and demote him. The PSG thinks he is lying and is going to investigate. I believe my Soldier and want to give him the benefit of the doubt. Now since it was not him that posted this alleged comment, can they use that against him?

Can information from Social Media sites be used for UCMJ actions?  Absolutely.

Anything posted on Social Media can be used as evidence, subject to verification. Once a Soldier has information posted to Facebook or some other media, it is open information to the public. Even though, in your scenario, his wife posted the comment, it can be inferred that she would know his condition. However, getting her to testify or write a statement that her husband was hung over could be another issue. If the Soldier was given an Article 15 and took it to courts-martial, if would be doubtful if the wife would testify against him and she could not be forced to testify. One way I have used Facebook in the past to track down AWOL Soldiers (one kept updating his status location from his  iPhone), another way was when a Soldier denied underage drinking, but he had pictures showing himself at a party with a beer in his hand and other Soldiers from the unit with him. Be careful what you post.

Now, to address this particular issue the other part of your situation:

  1. How does a Soldier call in sick? In every unit I have been in, the Soldier has to go to sick call and get placed on quarters by the unit medical personnel. If your Soldier called you and you gave him permission to stay home, then you have excused him, but you may in line for some counseling depending on how your chain of command views this. Most units require the medical personnel excuse absences for health reasons. If the Soldier did not go on sick call and he was not excused from duty by anyone in his chain, then he could be punished under Article 86, UCMJ (Failure to go to appointed place of duty).
  2. Even if his wife says he was hung over, he still could have had food poisoning and been hung over at the same time.
  3. Who determined/confirmed (besides the Soldier) that he had food poisoning? If I had a Soldier who called me and said they had food poisoning to the point they couldn’t come to work, I would be going over to their residence to check on them and take them to the TMC or hospital if necessary. I surely would not just say OK, and not check up on them in person. That would be a failure on my part as an NCO and a leader.
  4. If the Soldier was out for his birthday, I am going to assume he was out with some of his Army buddies.  If this is the case, then the PSG should talk to these Soldiers. Any Soldier who is in the unit and was with this Soldier celebrating on his birthday must provide what they know if questioned. Self incrimination only applies when a Soldier is protecting themselves, not their buddy. Any Soldier who does not testify or provides false information could be held in violation of the UCMJ.

A course of action to consider would be:

  1. Have the PSG call the Soldier in and question him. (Make sure the Soldier is read his rights under Article 31. Use DA Form 3881 before any questioning.) Failure to read the Soldier his rights before questioning could result in not being able to use any information the Soldier provides.
  2. Figure out if the Soldier was excused from showing up for work and if so, by whom. If he wasn’t excused, then he violated Article 86, UCMJ)
  3. Speak to any other Soldiers who were with him at the party.

If the Soldier was not excused from showing up for work, then I would suggest a Summarized Article 15 for violating Article 86, UCMJ, assuming he is a good Soldier with no other misconduct or negative counselings. However, if the Soldier lied and was only hung over then I would recommend a Company Grade Article 15 for  “False Official Statement” (Art 107) and “Failure To Go To Appointed Place of Duty” (Art 86). Getting drunk and not showing up for work, and lying about why you didn’t show up, is no excuse and not a situation you want to excuse and set a precedence on. As a young leader, you need to ensure you hold your Soldiers accountable for their actions. It would have been better had the Soldier just called you and said, “It was my birthday last night and I partied too much and am sick. I will be late for formation/work.” This could have been handled with a counseling statement and been over with.

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posted on 09/24/2012 under Q&A
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Staff Sergeant(R) Douglas “Eck” Eckstein is a former Paralegal NCO with over eleven years of service in the Army. He has served overseas tours in Korea and Iraq. Eck served on active duty for seven years working in the personnel administration field then, after a break in service, returned to active duty in 2009 when he earned the Military Occupational Specialty, 27D (paralegal). He has worked in the Office of the Staff Judge Advocate from Division level down to unit level. He has expertise in all aspects of military law, with extensive emphasis in Administrative Law and Soldiers Rights. “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.”

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