Article 89

[badfish138]

So, I'm a Senior Non-commissioned officer. I work with several civilians, and recently got into a "heated exchange" with one of them (a GS-13) and told him to "get the ef outta my office, get the ef outta my face, effin' beat it," etc. Didn't threaten him or anything. At any rate, a LTC (who, incidentally has no UCMJ authority) in the other room heard the exchange and apparently wrote a sworn statement in hopes of UCMJ proceedings. I'm a little over a year from retirement. I have documented medical issues concerning "anger". Don't really want to go into that one much. I will say that while I'm brash and whatnot, I've never received a rating below 1/1 on my NCOERs.

My questions are as follows:

1. What is the likelihood of my command actually entertaining this and pursuing punishment through UCMJ? I have absolutely no pattern of misconduct.

2. If they do actually pursue UCMJ based on only the one sworn statement, should I go ahead and request trial by Court Martial?

Any help and/ or advice would be greatly appreciated. Thanks in advance.

 

[ERAUPIKE]

1. What is the likelihood of my command actually entertaining this and pursuing punishment through UCMJ? I have absolutely no pattern of misconduct.

You have a 50/50 shot, they will or they won't. Patterns of misconduct are not relevant in UCMJ proceedings until the punishment phase. In other words, everyone messes up the first time. You may get held accountable for your actions but it depends on factors that you didn't disclose.

2. If they do actually pursue UCMJ based on only the one sworn statement, should I go ahead and request trial by Court Martial?

You have that right.

 

[badfish138]

Fair enough. Two more questions, if I may:

1. Does it matter that the verbal altercation was with a civilian, not a military member?

2. Does it matter that it's only ONE sworn statement from ONE individual?

Thanks again!

 

[Proseguru]

. I'm a little over a year from retirement. I have documented medical issues concerning "anger". Don't really want to go into that one much..

The officers hearing a court martial will certainly want to explore your anger issues, wouldn't they.

And all punishments of any serious consequence go through UCMJ. And yes .. 1 statement can convict you. What you going to lie when asked about the incident?

Maybe you'll only get a LOR ... then keep your mouth shut for 12 mos...right?

Hows the relationship now with the GS-13 employee?

 

[badfish138]

The officers hearing a court martial will certainly want to explore your anger issues, wouldn't they.

And all punishments of any serious consequence go through UCMJ. And yes .. 1 statement can convict you. What you going to lie when asked about the incident?

Maybe you'll only get a LOR ... then keep your mouth shut for 12 mos...right?

Hows the relationship now with the GS-13 employee?

The anger issues are actually PTSD related. Not that it's any kind of excuse, but it definitely affects the way that I act. I'm not going to lie about the incident at all. I just find it hard to believe that only one sworn statement can be used to UCMJ a Soldier. In my experience, it takes several counseling statements for a NCO to recommend UCMJ. One lousy sworn statement is enough? That's really what I was attempting to get at.

If I end up with a LOR or GOMAR, so be it. I don't even know if they will pursue UCMJ at this point. I guess I should have expected to be targeted what with a draw down happening.

 

[OHRoadwarrior]

Have you ever approached therapy for the PTSD? If you receive a court martial, it might help. A therapist, trained in EMDR, has been proven very helpful for PTSD, including that which is service related. How was this Civilian a superior commissioned officer?

 

[badfish138]

Hows the relationship now with the GS-13 employee?

Forgot to address this question. The GS was actually attempting to apologize for writing some slanderous comments in an email that was mistakenly sent to me when the incident occurred. Currently, the GS is not talking to me, nor I to him. Prior to that, the relationship between the two of us was alright. The GS14 that is his boss gets along with me fairly well, however. The LTC that is pushing the sworn statement is the one that is attempting to recommend UCMJ. I just got an NCOER that was a 1/1 from these guys as well...

 

[badfish138]

Have you ever approached therapy for the PTSD? If you receive a court martial, it might help. A therapist, trained in EMDR, has been proven very helpful for PTSD, including that which is service related. How was this Civilian a superior commissioned officer?

Funny you should ask. Yes, I've been seeing two separate therapists for a little over a year, and one of them is an EMDR guy. You're right, it does help, but I don't think I'm "cured" or anything. Don't know if that's actually possible.

GS employees are subject to UCMJ, right? Wouldn't that make him a "superior officer" (don't know, just asking)? Additionally, I haven't actually been charged yet, there hasn't been a formal investigation started or anything. Article 89 was what someone told me that they would pursue.

Thanks for the help!

 

[OHRoadwarrior]

http://usmilitary.about.com/od/punitivearticles/a/mcm89.htm

According to this he is not defacto a superior commissioned officer. If he were, lack of that knowledge would be a defense.

 

[badfish138]

Good lord...I just want to retire.

 

[Proseguru]

GS employees are subject to UCMJ, right? !

Good question...

http://www.fas.org/sgp/othergov/dod/gates-ucmj.pdf

Sometimes ... ?

 

[OHRoadwarrior]

Good question...

http://www.fas.org/sgp/othergov/dod/gates-ucmj.pdf

Sometimes ... ?

That seems to refer to acts committed by non military personnel, rather than against them. I think our Senior NCO is okay in this situation. At worst, he might get a nasty gram from a superior. He appears to have an affirmative defense even if it were an issue, which I doubt. In addition he has a record of seeking treatment. I think they will let him cruise to retirement.

Thank You for your ongoing service.

 

[gator1]

Your behavior was certainly inappropriate and unbecoming a senior NCO. However, it will be your commanding officer who will review this matter and make the call on how to address this matter.

Which may, or may not, result in a company or field grade Article 15, depending upon the rank of your CO.

Don't underestimate the impact a sworn statement by a Lieutenant Colonel who overheard your conversation. And don't assume that if it comes down to his word vs yours, you will prevail. You will also have to contend against the word of the GS-13.

Article 134 is a catch all that may apply to your situation. Article 92 may also apply if you violated any standing orders from your command or regulations on how soldiers in your unit are to interact with civilian counterparts.

If you are faced with a non-judicial Article 15 and the punishment is not too severe, it is often better to bite the bullet, accept responsibility for your actions, apologize, and let it go at that. Your CO will have a lot of discretion on how to file it, which may result in little more than a formal slap on the wrist. It could be foolish to escalate it to a court martial, where the price for losing will be higher.

Bottom line is there are two credible witnesses who will leave little question on what you actually stated and to whom. Given this, and the context in which you made those statements, it is actionable under UCMJ. While there may be some mitigating factors, it does not excuse the problem or make it go away.

But the disposition of this matter is entirely up to your commanding officer.