Expert: Rod Powers - 5/8/2007

Question
If a Soldier is pending seperation from the militarydue to "other physical or mental conditions" and his/her chain of command is pushing to punish the Soldier for an incident that has already been turned back by legal professionals due to a lack of proof that the individual did any wrong doing in the incident--- my question is, can his/her chain of command keep pushing to punish the Soldier after it has been kicked back from legal; and a doctor has recommended the soldier be discharged from the military due to a mental condition that he believes in his expertise is not possible to rehabilitate the Soldier into a satisfactory member of the Military? The Soldier's chain of command has not initiated the seperation packet and it has been 1 1/2 months since the doctor made his recommendation.  

Answer
Hi Adrian,

In civilian life, there is a person who gets to decide whether or not someone who has committed an office (crime) should be punished, and -- if so -- how. That person is the District Attorney (DA).

In the Military, the person is the commanding officer. The commanding officer receives information, evidence, and recommendations from a variety of sources, including the staff judge advocate (legal), the first sergeant, other commissioned officers and non-commissioned officers in the chain of command (such as the accused's squad leader, platoon leader/commander, etc.). But, the CO, under military law is the only one who can make such decisions, just like in most civilian jurisdictions, it's the DA who makes such decisions.

Even if the medical facilities recommends a discharge for a mental health condition, or any other condition, the CO can initiate administrative or judicial action, based on specific acts of misconduct.

The CO *could* decide to administer administration action, such as a letter or reprimand, a letter or admonition, additional training, administrative demotion (see my article at: http://usmilitary.about.com/od/justicelawlegislation/a/counseling.htm

The CO *could* decide to initial Article 15 (nonjudicial punishment) action (see: http://usmilitary.about.com/od/justicelawlegislation/a/article15.htm). However, in such cases, the member could refuse the Article 15 and demand trial by court-martial.... so, if it's true there is not enough evidence to justify a "guilty" finding in a court-martial, this may be the path the member may want to take, if the CO takes such action.

The CO *could* initiate administrative separation procedures, either before or after doing administrative action or nonjudicial punishment (see: http://usmilitary.about.com/od/justicelawlegislation/l/aadischarge1.htm).

Finally, the CO *could* refer the charges to court-martial.

The delay *could* be because of an on-going CID (Army Criminal Investigative Division), or MP (Military Police) investigation which is not yet completed and closed. If such is the case, the military member may not even known that there is an open investigation.

I have to mention one thing here, because it happens all the time. I assume that you're not the military member in question? If not, then your information is from the service member him/herself, and not from the Military. How do I know this? Because the Military is not allowed to release such information, outside of Military offices which have a "need to know."

In other words, you're probably getting the "story" from the affected military member him/herself, and -- in my experience -- it's likely you're not getting the true or entire story.

I know this is probably not something you want to hear, but its a scenario I've seen over and over and over, and over again. Members who are facing negative administrative action, or court martial, or administrative discharge, often don't tell their friends, loved ones, or family the "whole story."

As a First Sergeant, I once initiated discharge proceedings on a member (upon order from the commander), just to get an angry phone call from the member's father about two weeks into the process. It seems his son had told him he was being discharged for writing a bad check. In actuality, he was being discharged for writing over 35 bad checks, totalling over $20,000. This is just one example, out of many.

I'm not saying that the member you're talking about is lying to you. What I am saying is that -- unless you've seen some written proof -- it's a possibility you have to take into consideration.

If there *is* written proof, the member should take it to the Area Defense Counsel (ADCs, are Military Defense Lawyers who do not fall under the local chain of command, but rather report directly to the ADC's office in Washington, D.C., so one doesn't have to worry about "command influence.")

Hope this helps!

Rod Powers
http://usmilitary.about.com