I have a Soldier whom I know pretty much everything about while maintaining a healthy professional relationship. He has consistently been counseled for failure to report because he is sleeping through alarms. It is the only thing wrong with his behavior. I recently recommended him for UCMJ, he received a summarized 7/7 with no reduction. He is a stellar Soldier other than this issue. He won the Soldier of the month two months in a row and aced the promotion board. He recently told me he enrolled in behavioral health. This month he has been out of ranks 4 times. I counseled him with no recommendations, but the 1SG is pursuing a field grade and possibly separation. After I explained that to my Soldier he broke down, he explained why he has been at BH and showed me supporting paperwork. He was diagnosed with PTSD and night terrors, and can't sleep like the rest of us and is so exhausted by the time his alarms go off he just doesn't hear them. I have witnessed this first hand while we were down range. I explained it to TOP but he didn't budge. What should happen? I believe we should keep this Soldier. My question is, can they pursue UCMJ for something linked directly to his PTSD if he is actively enrolled and receiving treatments through behavioral health services? Also I feel like TOP kinda has it out for him, convincing him to recommend a summarized the first time took me a week of non stop battering and him accusing me of using rank to help a friend. It has even escalated ever since he made the by-name list. We had a promotion ceremony for my soldier as well as three juniors. As soon as the 3 soldiers were pinned he went inside. I'm sorry but I have never in 4 years seen a First Sergeant in the United States Army walk away from someone being brought into the Corps. It really got to me as an NCO. Sorry for being long winded, just need a little advice.
Great question and one I believe we will see more often as the Army struggles with how to help Soldiers/Leaders after 13 years of combat. I reached out to one of our Legal SME’s and here is what I received:
Separation is most likely not appropriate in this case
**If this is a behavioral health related issue, then based on the information provided this Soldier should (most likely) not be separated for a pattern of misconduct or commission of a serious offense (CH 14-12b or 14-12c, respectively). Can he be given a FG Article 15, yes, but if the documentation mentioned supports his medical condition as the reason why he oversleeps, then he may consider refusing the Article 15 if the command pursues it that far. I would recommend this Soldier ask his BH doctor for a statement/diagnosis that supports the reason he oversleeps. Additionally, if his PTSD is causing these issues with missing formation, etc, then the Soldier should discuss with his BH doctor about being referred to the MEB/PEB process. This allows him to get the continued treatment he needs, as well as potentially being reassigned to the Warrior Transition Unit, where his only duty to go to appointments and process through the MEB/PEB process.
Get the Doctor and Command Involved
The command should be aware of the BH issues and the Soldier should be on their high-risk assessment list. If not, the Soldier, along with the BH provider, needs to make the command officially aware of the Soldier situation. This may provide the evidence to the command and they **may take a different approach.