If the Soldier was a rehabilitative transfer from another unit then yes it is legal to send the counseling records from a previous unit to the gaining unit.

If the Soldier was not a rehabilitative transfer then no it is not legal to send the counseling packet to the gaining unit.

The disposition for the DA Form 4856 can be found on the bottom front page of the DA Form 4856. it states: This form will be destroyed upon: reassignment (other than rehabilitative transfers), separations at ETS, or upon retirement, For Separation requirements and notifications of loss of benefits/consequences see local directives and AR 635-200

If a Soldier is reassigned under a rehabilitative transfer there are in my option two options available to the chain of command.

Options 1

The first method is the one I used. The counseling packet usually arrived from the old unit in a sealed packet. I would call the Soldier in as the 1SG or CSM and show them the packet. I would then seal the packet in another sealed envelope and have the Soldier sign across the seal and I would also sign across the seal. Then tape the signatures across the seal with scotch tape. I would then tell the Soldier something like: You were granted a rehab transfer and I intend to give you a clean slate. I will not look at this packet unless you give me reason to view it as a result of substandard performance or conduct. Your future is in your hands ensure you make professional decisions and your conduct/behavior is upon reproach. Should you choose to perform in a substandard manner I will open this packet and use it in conjunction with your current records within the unit. I would then document my conversation with the Soldier in a memorandum for record format. I then placed the sealed packet into a location that only I and the Commander had access to. I usually only shared the existence of the rehab packet with the commander to ensure that subordinate leaders were not tainted as to the quality of the Soldier. If the Soldier performed well the packet was never opened and the rehabilitative transfer served to give the Soldier a second chance. If the Substandard performance continued I opened the packet and if need be used it to separate the Soldier. On a side note, I never separated a rehabilitative transfer or opened the packet because the Soldier did a great job in our unit and got a fresh start.

Option 2

Is to open the packet and review it. The problem with this method is regardless of how professional the leader is they has just tainted their view of the Soldier and could unconsciously make biased decisions against the Soldier. You can’t put Pandora back in the box.

If the Soldier was not a rehabilitative transfer and the previous unit forwarded their packet illegally to the gaining unit the Soldier may have the option to initiate an Article 138 investigation against the commander or commanders that ordered the packet be forwarded. The Soldier should seek an opinion from JAG.

Bottom-line– Treat the Soldier the way you want to be treated.

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