Can I Be Directed To Write A Counseling Statement That Was Written By Someone Else And Backdate it?
This response is based on the information you provided and is not to be used to make a decision. Do your own research, seek guidance from the chain of command, the IG/JAG, and/or a trusted Mentor before making any decisions…
Let me recap to ensure I understand the issue:
1. Soldier admitted he smoked spice in April 2011
2. Soldier was counseled
3. Training Room loses original counseling statement.
4. The individual that completed the counseling was not the Soldier’s Team Leader and has moved to another company.
5. I am not clear on who started poking and prodding you The CO?
First you are correct you cannot back date the counseling statement. The UCMJ action may be in jeopardy based on the information you provided. It is proper to protect your integrity in this matter. Here are several courses of action you might want to consider.
1. Did the TL provide the Soldier a copy of the counseling statement? If so, then have the Soldier produce the counseling statement. If the Soldier produces it case solved.
2. Approach the previous TL, he may have the counseling saved on a computer. If not ask him to type up another counseling statement that says on or about this date I counseled you concerning this behavior and provided you a copy of the counseling document. As a result of administrative error this document was lost. Therefore I am providing you this counseling that records the information we discussed with SGT___on or about ___date. If the Soldier signs no worries.
If the Soldier refuses to sign have a witness present to witness the Soldier’s refusal and have them right a brief comment that states. I ___observed ___refused to sign this counseling. Sign and date. Before going into detail with the Soldier about the issue and with the witness present ask the Soldier if he recalls the counseling session with the other TL on or about the date of the first counseling. Then ask the Soldier what he recalls about the counseling session. The Soldier should briefly recap the contents of the counseling you have prepared. If he does summarize the previous counseling with the other TL and then refuses to sign the counseling statement the witness can attest that the other counseling session was conducted based on the Soldier’s admission. In addition a brief sworn statement from the other squad leader would be appropriate.
3. Option 3 is to type a counseling as you were directed that states on our about this date you admitted to SGT____that you had smoked spice. This is a violation______ (continue counseling). This is punishable under the UCMJ. Add separation notice. Then date the counseling with the actual date you conduct the counseling. In addition prepare a memorandum for the Commander or a memorandum for record that reviews the entire process and your actions including bringing your concerns to the Commander and that you are more than willing to conduct the counseling as directed but that you believe it is inappropriate to back date the counseling statement as it would not be appropriate. As you did not conduct the original counseling and cannot attest to the date, time, or content of the original counseling.
Issues:
As you have explained this issue I see several issues that could cause a problem for the chain of command.
1. The individual that conducted the counseling was not in the correct TL.
2. This individual has moved
3. Appears this incident happened many months ago.
4. If they are asking you to backdate a counseling statement then they are technically asking you to falsify a document that states you conducted a counseling in April and then sign it with an inaccurate date.
All of this could becomes a very ugly issue for the chain of command and yourself if the Soldier has half a brain. This is why I suggest you construct a memorandum for record so that you can protect yourself if an investigation is initiated. I would strongly encourage you to have a professional conversation with the CO and other leaders as appropriate. Discuss the issue in manner that highlights you are just trying to do the right thing and that you will not lie if questioned. In addition the chain of command should place themselves in the Soldier’s position. In closing it is always better to let issues go if there is a big chance that it will cause the chain of command’s integrity to be questioned or look like they are setting up a Soldier. If this Soldier is a screw up he will continue to be a screw up. Document the next problem and hammer him then if it is appropriate. Skating on thin ice is a dangerous place for a chain of command. Once your integrity is in doubt the investigator will usually side with the Soldier because the investigator cannot trust any additional information from the chain of command.
I believe there are ways to handle this issue that protects the integrity of the command and gets the outcome the command is looking for. However if the chain of command does this in an inappropriate manner and then gets called on it they could be in a worse position. I agree this issue needs to be resolved and the Soldier’s conduct is inappropriate but the Army maintains certain values and procedures and we as leaders must up hold them. A simple question a leader should ask themselves is: If I were this Soldier would I want my chain of command to treat me this way? Every Soldier wants a fair shake, it’s better to tell the truth and deal with the consequences at hand rather than dig a hole and let someone bury you in your own mess.
Finally, ask yourself this question: What would a disinterested reasonable person investigating your actions determine. If you have to try to justify your answer then you are most likely not doing the right thing!
You might also find the following information useful:
Can a leader backdate a counseling statement?
Can my squad leader give me a backdated counseling statement?
Can I order a Soldier to sign a DA 4856 counseling statement?
What are the time limitations for the completion of counseling?
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