Short Answer:
That depends. It is up to the commander to allow the Soldier to go on leave. Imposition of punishment begins immediately if a later start date is not stipulated during the announcement of punishment. Any repercussions for the Soldier not having to complete the entire extra duty imposed falls on the 1SG and Commander for not informing the BC prior to the punishment phase of the Article 15 proceedings.
Extract of AR 27-10
AR 27-10 – Military Justice – governs Non-judicial punishment – specifically Chapter 3. Imposition of reduction in grade and/or forfeiture of pay has no bearing on whether the Soldier is on leave or not. However, imposition of deprivation of liberty (extra duty, restriction, correctional custody) will be affected by the Soldier being on leave.
Paragraph 3-19b(8) states in part, “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.”
A Soldier being on regular leave IS NOT the fault of the Soldier. Leave is a Commander’s program and if the Commander approved the Soldier to go on a previously scheduled leave with knowledge the Soldier was receiving a Field Grade Article 15 from the BC, it is the Commander’s duty to inform the battalion commander of the issue. This should have been communicated by the Unit Commander to the Battalion Commander.
Paragraph 3-21 b. Unsuspended punishments. “Unsuspended punishments of reduction and forfeiture of pay take effect on the date imposed. Other unsuspended punishments take effect on the date they are imposed, unless the imposing commander prescribes otherwise. In those cases where the execution of the punishment legitimately must be delayed (for example, the Soldier is hospitalized, placed on quarters, authorized emergency leave, while on a brief period of temporary duty (TDY) or a brief field problem, or in the case of Army Reserve Soldiers any periods that may intervene from times when they are in a Title 10 duty status), the execution of the punishment should begin immediately thereafter.”
In this case, since the imposing commander did not stipulate a delayed start of the Article 15 punishment, the extra duty and/or restriction began the day the punishment was imposed. So, if the Soldier was adjudged (given) 45 days extra duty and was allowed to take 15 days leave, when he returns he has 30 days of extra duty left to perform. Same goes for any restriction imposed. This also applies if the Soldier performed 5 days of extra duty, went on leave for 15 days, then the Soldier would have 25 days of extra duty left.
Local Supplements to AR 27-10
I would also recommend checking to see if your installation and Brigade have Supplements to AR 27-10 and what those supplements state about leave for Soldiers who are flagged or pending UCMJ action. Every Brigade I was in restricted leave approval for Soldiers pending involuntary separation to the Brigade Commander and leave approval for Soldiers pending or under UCMJ punishment to the Battalion Commander. Your 1SG and Commander may have violated a standing unit or post policy. Make sure you fully understand the facts of this matter by looking at all issues.
Recommendations
Now, what should you do. I think you already know the answer to that, since in your comment you stated, “or do the wrong thing and let it go…”
As the Soldier’s leader you might consider approaching the 1SG and ask how this is going to be handled. If you are afraid of stirring a hornet’s nest, then approach the 1SG as a learning question. Such as,
1SG, as you know SPC Doe is currently on Extras Duty and has an approved leave scheduled to start next week. Does SPC Doe’s leave impact his extra duty in any way?
If the 1SG says no, then you might want to share what you learned. Perhaps something like:
Hey 1SG, here is my concern I read Chapter 3 of AR 27-10 and found some an installation and Brigade suplement to AR 27-10 and here is what I found out….. then ask so is there anything we should potentially do?
What if the Soldier goes on Leave and Battalion wants the Soldier to serve the Fully Term of Extra Duty?
If you are aware of this and the command tries to enforce the entire amount of extra duty imposed by the Battalion Commander when the Soldier returns from leave, you also have a responsibility to the Soldier to let him/her know about this issue also. Then it is up to the Soldier if he/she wants to fight this battle.
Additional Thoughts
In the long run, it would probably be better for the Soldier to just do the extra duty in its entirety if that is what the Command decides. Especially since he/she was allowed to take leave. This is a decision that the Soldier should be allowed to make, not you on his behalf by not saying anything.
Communicating with the Chain of Command
When approaching the Chain of Command be calm, professional, and factual. Make sure you have your facts together and have thought through how you will approach the Chain of Command.
I hope this helps.
Did you find this information useful? I would appreciate your feedback!
TOP.
Note:
Special Thanks to ECK for his assistance and response on this legal situation! HATS OFF ECK! Thanks again!
