It all depends on the actions of the NCO. If the NCO saw the Soldier in his home through a window while pulling up in his car or walking on the sidewalk/standing on the porch in front of the house, then there is no issue. If the NCO walked into the yard, up close to a window, to “search” for the Soldier, then there may be an issue of intruding on the Soldier and his family’s rights. This would be a decision for a judge to make if the case ever got that far.
If this Soldier is a good Soldier, with very little or no other disciplinary issues, then I believe a counseling statement for false official statement (lying to the NCO) is sufficient. He was given the afternoon off to go snowboarding and ended up deciding to spend it with his 1 year old child and his pregnant wife who was on bed rest. I see this as a non-issue.
The lying to the NCO is the issue at hand. If the command decides more than a counseling statement is required, I would recommend a Summarized Article 15 at the most. This accomplishes two things. 1) The Soldier realizes he screwed up; and 2) the command is protected from the potential “rights violation” issue because the Soldier is not entitled to counsel from an attorney at TDS.
While it is required to counsel a Soldier who is being flagged; per AR 600-8-2, failure to counsel the Soldier does not negate the legitimacy of the flag.
Once the final punishment is complete, the command needs to make sure they remove the flag. The command cannot leave a flag in place as punishment.
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