That depends, if you received restriction under the provisions of an Article 15 then yes it is punishment.
However, if your pass privileges were revoked by the Commander then no, it is not punishment. This is known as revocation of privileges. You can have your pass privileges revoked and your movements can be defined by the Commander. In this case it is not called restriction because restriction is a punishment, revocation of a privilege by a Commander is not considered restriction.
There are a number of privileges than can be revoked by Commanders who want to get a Soldier’s attention. This is a technique that is often used in conjunction with Corrective Training.
Read The Mentor: Everything you need to know about leadership and counseling for more information about Counseling, Leadership, Corrective Training, and Separations in the Army.
Comments
Trenton
CSM Gerecht, Can you go into detail on what is considered confinement?
Mark Gerecht
Trenton, it would be better if you gave me a specific situation. There are numerous situations in which privileges can be revoked or under UCMJ you can be restricted to a certain area. This does not constitute confinement. Hope this helps! Check out our YOUTUBE CHANNEL: Mentor Military https://bit.ly/2FPymVa
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Vance
Is the practice of not allowing Soldiers off the installation because of “training status”, but allowing them the privilege of using on post MWR facilities an unfair business practice? Some AIT units are never allowed “off-post” while others are allowed.
Mark Gerecht
This is a decision totally up to the commander. You can raise the issue through your chain of command or seek resolution by requesting to see the company commander on open door policy.
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Eldridge
I had my pass privileges revoked. Long story short I was arrested in DV situation. Since then she has recanted her statement and the DA is not pursuing charges. How get I get my pass privileges back?
Mark Gerecht
The Commander having authority over the privilege has the ability to re-instate the privilege. In cases like this typically you are counseled. Sometimes the unit runs the counseling through JAG. If situation is as stated it should not be a problem to re-instate pass privileges
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Tammy Rose
Can a platoon sgt revoke a soldier’s pass priviliges pending ucmj, or does this HAVE to be done in writing by the commander and in person with the commander? My nephew did something wrong, it is larceny, his platoon sgt gave him a counseling statement in regards to this incident and revoked pass priviliges. This was on June 10TH they had him do a physical for pending serparation, they mentioned article 15 and possible chapter, they have not yet called him in to read charges or anything and he has not been before the commander yet either. I am told by my husband who is a CSM that commander has to be the one to revoke the pass privileges and in writing and in person. Is this accurate in this case and if so what is the exact AR for this, I was googling and saw that it may be in AR 630-5 chapter 10 but before me approching his chani of command I would like verification and exact document stating this.
Mark Gerecht
Tammy,
First my apologies for the delay in responding. I have been swamped lately. Your husband in my opinion is partly correct. The only person that can revoke a privilege is the commander having authority over that privilege. In the case of pass privileges that is typically the company, battery, or troop commander. The regulation is AR 600-8-10. Pass is a Commander’s program and therefore The commander has the authority to control the pass privilege. If the Soldier is overseas this usually means they cannot go off the installation. In the states it usually means you must remain within the battalion foot print and request permission to go to other locations on base.
Here is a typical scenario in how the privilege could be revoke. Soldier does something wrong. Platoon Sergeant tells 1SG/Commander he would like to revoke Soldiers pass privileges. Commander agrees and by verbal order/directs pass privilege to be revoked. Platoon Sergeant prepares counseling statement in which he recommends revocation of privilege. In the plan of action Platoon Sergeant pulls the Soldiers’ pass privilege. If the platoon sergeant is smart the counseling statement will read: “By order of the company commander your pass privilege have been revoked until further notice”. Then it will go on to describe what the Soldier must do or needs to do in order to leave the unit footprint. There is a thin line between restriction and confinement. The chain of command must ensure their actions do not become confinement.
Now to address other elements of the situation you describe:
1. Incident 10 June- it is not uncommon for the commander not to see the Soldier at this time. If the platoon sergeant recommended separation and Article 15 those actions could be being processed. A physical is an indication that separation action has been initiated.
2. Depending on the installation, the backlog at JAG, and the administrative efficiency of the unit it is not uncommon for the request for an Article 15 to take up to 30 days. The Army has up to two years under AR 27-10 to punish a Soldier under the Article 15 process.
3. Usually separation is not started until an Article 15 is complete and the Soldier is found guilty. This chain of command may be being proactive and getting the medical physical complete prior to the Article 15 as typically it is the longest part of the separation process. Once they complete the Article 15, they can immediately being the separation paperwork and the physical paperwork should be completed by this time. Meaning the Soldier can be separated as soon as possible.
Here are some things to think about.
Your nephew has the right to see JAG before he takes the Article 15. This process can be found in AR 27-10. He can also refuse the Article 15 and demand trial by courts marital. Most Soldiers if guilty do not want any part of this process. It is important that he seeks counsel from the JAG officer.
If your nephew wants to make sure he is getting a fair shake he could consider getting professional legal assistance in this matter I suggest you get a disinterested opinion from a civilian attorney with JAG experience. If one is not available in your area or you have difficulty finding one we have used and recommended Phil Cave in the past. He can be contacted at:Phone: 800-401-1583 ~ Metropolitan D.C. area: 703-298-9562…Fax: 703-997-6076, Skype: mljucmj, eMail: mljucmj@gmail.com, sMail: 1318 Princess St., Ste. 200, Alexandria, VA 22314, website http://court-martial.com/ Usually a consultation will cost between $50-$150 depending on the attorney. I am unsure of Phil’s rate structure.
I would be careful of how you plan to approach the chain of command as they have no need or requirement to speak with you. If conducted properly and professionally it might be of use but this also depends upon not only your approach but the attitude and climate within the unit. It could also further inflame the issue. As I am sure you are aware the Army is downsizing and they are separating Soldiers for minor infractions. Larceny is not normally considered minor.
You might consider getting all the information you can regarding the incident and ensure you have the facts. then you might be able to get some insight from the local JAG office.
On another note we have put together several posts on Article 15s. You might find some useful information in the following posts:
How can I convince My Chain of Command to drop an Article 15?
Soldier’s Decision and Recourse During the Article 15 Process
Counseling and the Article 15
Can I appeal an Article 15 after I initially decline the appeal process?
Article 15 guide and checklist
Article 15 fact Sheet
Odds are he will not receive an honorable discharge. He has 15 years to appeal his discharge and get it modified. This is not an easy process and is usually unsuccessful but there are varying degrees of success if you do your homework in preparing the appeal.
I have also asked our subject matter expert in JAG issues to chime in on this post.
I hope you found this response useful. We would greatly appreciate your feedback!
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Eck
CSM Gerecht pretty much covered everything in his post. Just a couple notes from my perspective:
1. Article 15 and separation actions are separate actions, independent from each other. A separation is an administrative action, while an Article 15 is non-judicial punishment under the UCMJ. As long as the command has the evidence to support an administrative separation, they are not required to do an Article 15 first. Normally, they will, but not always. Also, an Article 15 and a separation action, based on the same misconduct, can be processed at the same time. I.E. Soldier pops hot on a drug test for an illegal drug. The commander can initiate the separation to get that process started, then process the Article 15 during the time the separation action is being processed. The only caveat is that the Article 15 can not be mentioned in the separation action unless/until it is complete and only then if the Soldier is found guilty. However, the Soldier’s misconduct of using an an illegal drug, based of the same drug test, can be used as the basis for the separation. The command can just not mention he received an Article 15 for that misconduct unless the Article 15 is complete and he was found guilty.
2. As far as passes are concerned. I refer you to AR 600-8-10, paragraph 5-27 and it’s subparagraphs which establish what a pass is, who can approve a pass and how the pass program is applied.
Bottom Line Up Front:
A regular pass is any absence from post or place of duty during non duty hours. So essentially, a regular pass is from end of duty Tuesday until report time Wednesday morning. A regular pass is also from end of duty Friday until report time Monday morning.
The unit commander is the approval authority and by that regard, the disapproval authority. Nothing I can find indicates that the revocation of a pas must be provided in writing or in person from the commander. However, for punitive reasons if the Soldier would disobey the order to remain on post, I high recommend the commander put it in writing and have the Soldier acknowledge it in writing.
As far your nephew’s case is concerned I echo CSM Gerecht’s observations:
1. Make sure you have ALL the facts from your nephew. He may not be forthcoming on everything he has done. There may be other negative counselings or misconduct that you are not aware of.
2. Commands do not usually like outside parties getting involved. Additionally, the command has no obligation to disclose anything to you, and, if they would disclose something, without the Soldier’s written permission, they may be violating his constitutional right to privacy.
3. In the event separation proceedings and/or Article 15 proceedings are initiated against your nephew, he will have the right to speak with an attorney from the Trial Defense Services Office, who will be appointed to represent your nephew and protect his legal rights. Make sure he utilizes that right.
I hope you found this useful.
Eck
“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 it’s Components.”
Mark Gerecht
Tammy,
There is one other option rarely used. Let’s say your nephew is a high speed Soldier. But for some reason made a poor decision but otherwise appears to be a good Soldier with great potential to serve. The commander can take age, maturity, performance, etc. Into consideration when determining punishment under the Article 15 proceeding. See AR 27-10. Also AR 635-200 allows the Commander to place the separation action into suspension much like a suspended sentence for an Article 15. If memory serves me correctly the separation can be placed in suspension for up to two years. This means as long as your nephew toes the line and is a good Soldier he could remain in the service and the separation action would expire. Now the question becomes, is he someone the commander would be willing to shoot a silver bullet on? Will the Battalion Commander allow a suspended separation action? This is a long shot and I only used it twice during my 26 year career for Soldiers I really thought deserved another chance. It is a very long shot option given the current draw down but I wanted to give you all the possibilities I could think of.
Please let us know if you found this information useful.
ECK….Thanks for your words of Wisdom…You ROCK!
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