Excellent question.
Let’s me make sure I understand the situation. Soldier is counseled, receives Corrective Training
(NOTE: Punishment cannot be administered under a counseling statement). The Soldier fails to complete corrective training IAW the plan of action because they were potentially impaired by medication.
This is a
personal opinion and I highly encourage you to contact the following agencies to receive proper guidance:
(Do not act on any information contained in this response without receiving approval from the appropriate authority).
1.
Local JAG officer (if this case goes to an Article 15 or Courts-Martial you want to make sure your actions are legal)
2.
Local IG Office: They may be able to provide a regulation concerning this action.
3.
Local Hospital Commander or XO: These individuals may be able to provide what actions should have been taken by the Soldier with regard to reporting potential impairment as a result of medication., what regulation may cover this action (Potentially this may be covered in some way by AR 40-501) and last but not least did the medical facility have any responsibility to notify the chain of command through the use of a PROFILE or other means that the Soldier’s ability may be impaired?
Things to Consider
1. Did the Soldier have a legal responsibility to disclose to you that they were on medication that could impact their decision process, their safety, and the safety of others?
2. Did the command know the Soldier was on medication and allow the situation to continue anyway?
3.
Consider: the entire incidentlook at this from the aspect of:
a. what was the infraction?
b. how severe was it?
c. what was or the impact of the offense with regard to the Soldier and unit?
d. how can this best be resolved?
e. what is the outcome you desire, is this outcome in the best interest of the Army and Soldier? (always try to solve the problem at the lowest level appropriate for the offense)
f. Is impairment by medication covered under the UCMJ (most likely under article 134)?
Personal Opinion:
If the Soldier was truly on medication that impaired their ability perhaps you should consider
1.
A counseling statement informing them of their responsibility (if medical authority and JAG agree) to inform the command that they may have been impaired by medication. By failing to inform the command the Soldier exposed themselves and others to a potential safety hazard that was unacceptable.
2. Ensure the Soldier understands they are required (if you have medical and JAG support)to report impairments to the chain of command.
3. Give the Soldier corrective training that requires them to give a Class or write an Essay on why it is important to inform the chain of command when their abilities may be impaired, how this impacts mission, safety, etc (or other proper subject matter as determined by the chain of command). Have the Soldier present the class to the unit.
4. In the counseling concerning medication I would also consider addressing the fact that the Soldier's behavior or action (taking medication) caused or contributed to the act of disobeying an order by not completing the corrective action under the previous counseling statement. I would then direct the Soldier to complete the impairment corrective training and the previous corrective training they failed to complete due to potential impairment.
5. By applying this methodology you have addressed the potential impairment, informed the unit, given the Soldier corrective training, and made sure they understand that they must also complete the previous corrective training.
6. Also inform the Soldier that should they fail to complete both corrective training plans you will recommend the chain of command take more serious measures that may include an Article 15, Separation from Service and/or a bar to reenlistment.
Summary:
1. Talk to the Experts (JAG, IG, Medical Authority)
2. Based upon the Experts response consider
a. Counseling the Soldier about the medication and giving corrective training
b. Have the Soldier complete the corrective training from the previous counseling
c. Inform the Soldier that failure to complete both corrective training plans may result in a recommendation for punishment under UCMJ and/or a bar to reenlistment.
d. Command may also consider: letters of reprimand, concern, etc.
Hope this has helped.
