Short Answer: Absolutely
I will address the UCMJ first: When a Soldier is pending UCMJ action, that Soldier is still required to follow all orders and duties, to include any deployments, whether it be to NTC or another country. The Soldier will be afforded the right to speak with a TDS attorney before the hearing phase of an Article 15 is carried out. (This does not apply to a summarized Article 15. However, I have never seen a Summarized Article 15 given for a drug hot.) Any punishment resulting from Article 15 proceedings can be carried out during the deployment or training exercise. However, once punishment is started it must be continuous. IAW AR 27-10, para 3-19b(8):
“…Once commenced, deprivation of liberty punishments will run continuously, except where temporarily interrupted due to the fault of the Soldier, or the Soldier is physically incapacitated, or an appeal is not acted on as prescribed in paragraph 3–21b.”
For example, 45 days extra duty and/or restriction is started on the day of imposition. 10 days later the unit is scheduled to travel to NTC and it takes three days, the command cannot suspend the extra duty during the travel period, then still say the Soldier has 35 days extra duty/restriction remaining once arriving at NTC. Whether the Soldier performed extra duty during the travel time or not, the Soldier must be given credit for those 3 days of travel. The only way punishment may be suspended and resumed later is if it is the fault of the Soldier, i.e. Soldier is given emergency leave or goes AWOL, or the Soldier is incapacitated, i.e. in the hospital, on quarters or confined in jail.
Chapter action: The Soldier is still responsible to perform all assigned duties and missions while pending chapter actions. While AR 635-200 directs that separation action will be initiated for drug use, it does not say a Soldier has to be separated. The separation authority will determine whether the Soldier is retained or separated. I have seen a Soldier retained for a positive marijuana but only twice, and in today’s environment of downsizing, I don’t expect to see it happen again. There is no set time limit on processing a chapter, so depending on how close you are to NTC rotation, the command may decide to wait until after the rotation to process the chapter action. This is more due to the unit’s resources being at NTC and unable to process the action, get signatures, medical evaluations, TDS consult, etc.
Whether or not a Soldier is deployed while they are pending UCMJ and/or administrative (chapter) actions is at the sole discretion of the chain of command.
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.
