profanity case

[Ebbswl]

What is the name of your state? I am currently stationed in ****land! I am originally from Texas and that is my official state of residence. My question is this;
I am a Soldier with 21 years in the army. Recently in the process of counseling a subordinate soldier for lying, disrespect, and dereliction of duty, over a 2 month period, which I have well documented, I became angry due to the soldier's continued disrepect and I used a few curse words. None of which was directed at the soldier. One instance I said, "What the hell are you trying to pull here?" and then I said, "Shut the F*ck up and get at parade rest!". The soldier told me that I should not be talking like that because it offended her. I then challenged her to show me in any regulation that says that use of profanity is prohibited. Meanwhile, I have heard my commander, and other fine officers throughout my career use profanity on many occasions. However, the soldier has filed a formal complaint against me and it seems the command is running scared and may try to bring some kind of charge against me and allow this soldier to get away with her offenses.
Are there any such cases in military law history. Please advise!
Thanks

[rmet4nzkx]

I suggest you start researching the UCMJ and for cases with profanity when counseling subordinates.
Proof of Maltreatment under Article 93

A. The Statute, the Manual, and the Military Judges’ Benchbook

Article 93, UCMJ, proscribes "cruelty toward, or oppression or maltreatment of, any person subject to [the accused's] orders . . ." The explanation of maltreatment in the Manual, states: "The cruelty, oppression, or maltreatment, although not necessarily physical, must be measured by an objective standard." Paragraph 17c(2), Part IV, Manual, supra. The current provision is based upon the guidance in prior editions of the Manual, which provided that the cruelty, oppression, or maltreatment "must be real, although not necessarily physical." Drafters' Analysis of Punitive Articles, Manual, supra, at A23-6; see also Paragraph 172, Manual for Courts-Martial, United States, 1969 (Rev. ed.); Paragraph 172, Manual for Courts-Martial, United States, 1951.

The current Manual also states that "sexual harassment may constitute this offense," defining "sexual harassment" as including "influencing, offering to influence, or threatening the career, pay, or job of another person in exchange for sexual favors, and deliberate or repeated offensive comments or gestures of a sexual nature." Paragraph 17c(2), Part IV, Manual, supra. The Drafters' Analysis of Punitive Articles notes that "[t]he example of sexual harassment was added [in 1984] because some forms of such conduct are nonphysical maltreatment." Manual, supra at A23-6. The Military Judges’ Benchbook contains a nonbinding model instruction describing maltreatment as "unwarranted, harmful, abusive, rough, or other unjustifiable treatment which, under all the circumstances . . . results in mental or physical pain or suffering." Military Judges' Benchbook, Dept. of the Army Pamphlet 27-9 (Apr. 1, 2001)("Benchbook").3

[badapple40]

I fail to see where this conduct would violate any provisions of the UCMJ. This is not an Article 93 case.

They may try a general Article 134 offense, but even that seems suspect.

I suggest your talking with the command about this soldier and her general worthlessness.

Were there any witnesses present while you counseled her?

If she has not already been transfered out of your squad/platoon? Have they given you a no-contact order with respect to her? If not, I suggest in the future that any further contact with her be done with another NCO in the room.

--badapple, COL, JA, USAFR

[rmet4nzkx]

Originally Posted by badapple40

I fail to see where this conduct would violate any provisions of the UCMJ. This is not an Article 93 case.

They may try a general Article 134 offense, but even that seems suspect.

I suggest your talking with the command about this soldier and her general worthlessness.

Were there any witnesses present while you counseled her?

If she has not already been transfered out of your squad/platoon? Have they given you a no-contact order with respect to her? If not, I suggest in the future that any further contact with her be done with another NCO in the room.

--badapple, COL, JA, USAFR

I used to work with a retired Navy Chief and when he would get off on a rants he had no idea how others precieved it or even what he actually said. There may be a reason his superiors are running scared, that is why I suggested Article 93 as worst case. This retired Navy Chief was a manager and many of his subordinates were ex military and they couldn't take it, it took a female who was not ex miliary to get his attention and get the man grounded again. Very good advice to not be alone with this subordinate. 21 years of service would be a shame to waste.

[csporluck]

Retire. Why? Because this crap in the Military is getting out of Hand (the PC crap).

[Ebbswl]

Thank you all for your responses! I will try to answer all;
LawIsFun! We don't operate like that and I know you are joking. Right now I would not even joke like that. This soldier has distorted almost everything that I have said even though I have had witnesses from the beginning. I was warned about her.
rmet4nzkx: I am researching and have not found one case such as this! This is not sexual harrasment and none of the profanity was sexual in nature.
badapple40; Sir, I agree (from my own experience as a 1SG). This soldier has a history of making false accusations and/or accusatuions that are unsubstantiated and the command is full aware of that. So I always had someone in the room when counseling her and she has accused the entire staff of allowing me to mistreat her. I will tell you, just like I told her and the 15-6 investigating LTC, that I treated her no differently than I treated all my artillery Soldiers and I never took any disrespect or lying from any of them either. Now, about the chain. I told my commander, a LTC, everytime the soldeir was counseled and that I was holding her accountable to the Army standard and he repeatedly said, "You're doing a great job!" and "I am with you, drive on!" Then, when he thought she was going to make the formal complaint, he did an about face. He is doing some "CYA" action now. He says he is concerned if a congressional comes down, that he be able to say that he took action and I am sure I will be the target of either UCMJ or a letter of reprimand while this sorry NCO gets away with real offenses.
While I can take one for the team as well as the next guy, I do not want anything to hinder my chances for promotion, which until now, everyone says I should make.
Thanks again and I may be coming back asking for a referral for a lawyer in the Baltimore/DC area

[Legal Big Lips]

Originally Posted by Ebbswl

LawIsFun! We don't operate like that and I know you are joking. Right now I would not even joke like that. This soldier has distorted almost everything that I have said even though I have had witnesses from the beginning. I was warned about her.

Hey, Dufus . . .

You're the one who asked (without a question mark): "Are there any such cases in military law history."

Obviously, you don't know your history, and you didn't bother to find out. Once a Jar Head, always a Jar Head.

And, Dufus, why didn't you say the following in your original post? "This soldier has distorted almost everything that I have said even though I have had witnesses from the beginning. I was warned about her."

You see, here's your problem - - you shoot your mouth off before your brain engages.

IAAL

[rmet4nzkx]

I found military case law, in fact, what I posted was from an Army case. You admitted to use of the word, F_ck which is profanity and a word of a sexual nature. As you may have noticed there doesn't have to be contact for there to be considered abuse or mistreatment. Has this soldier been evaluated by a psychologist, perhaps she has a borderline personailty disorder which could account in her behaviors and history of accusations, if she had BPD that could result in her discharge or transfer. Here is a Army link re flight crews, if she was USMC, it would mean discharge, but ARMY will reassign and otherwise limit. .
[url]http://usasam.amedd.army.mil/_aama/apls/Pys/Psychiatric.pdf[/url]

[dallas702]

When you get outa training and into Iraq you can smile when she acts dumb when you tell her to get down, and then gets her head blown off when you tell her to get the down, but she's too worried about her "feelings".

Reality check: your job is to make sure she's ready for duty....ANY duty. Being a PC wimp might spare her "feelings", but it won't save her life.

[Ebbswl]

Legal big lips,

Oh I see, a blinded, extremist, liberal. I pity you! (when you can't think of a clever come-back, just attack Bush! Yea, that'll show 'em!)

1. I am currently working on my Masters degree. (which matters not here!)
2. I do support my commander-in-chief, especially after a tour in Iraq where I saw the poverty stricken children that were elated to see me and my men pushing toward Baghdad. Something I'm sure you know nothing about!
3. There was no reason for you to take offense when I did not answer you the way you thought I should. Of course I know about GEN Patton but that does not apply here. I did not slap a soldier several times as he did and I did not use profanity nearly as much.

So now go ahead and get your last few shots in at me to sooth your immature ego and let's be done with this. I won't answer you again.

[Ebbswl]

rmet4nzkx,
Thanks for your thoughtful answer. I will go check out the link you provided. Yes I did use the word F_ck. However, it was not used in a sexual manner such as, "F_ck you!" or "you F-cking b_tch", or "You are all F_cked up!" and over a 2 month period of counseling her weekly, that word was only used twice when she was repeatedly lying to me and disrespecting me by trying to shout me down when I tried to say something to her.
Yes I do believe that she has a mental disorder and I told the commander as much. I asked her if she wanted to go see mental health or a chaplain and she did go see the chaplain several times.
Bt the way, she also called the IG and was told that profanity, in the context of how I was using it, was not illegal but was a command issue.
By the way, I do not normally use profanity. It is a rare occurance and all the people I work with know this.
Thanks again

[badapple40]

1SG:

Start gathering witness statements from those that were present at these counseling sessions. You may find that once the command takes the position to nail you, it might be difficult, if not impossible, to find favorable witnesses.

These statements should be:

1. complete, outlining what was said, the context it was said in, and what impression the witness had about the statement.
2. any response she had, including, but not limited to, her reactions, statements about being offended, etc.
3. anything else the witness feels may be relevant or pertinent.
4. signed and dated by the witness. Preferably with another party present to also sign and date.

If your boss is CYA, you better start doing the same.

This may all blow over, or not, but you need to start gathering your ammunition now, rather than later, for use in defending you at a court martial, preparing a response to a LOR, etc. I seriously doubt that this will result in a court-martial or Article 15. There is no way base legal would OK such a shaky case.

If you need a referral, I'll see what I can do. I did my reserve tours in D.C. until earlier this year, and know the military law landscape there.