FOR COMMENTS, SUGGESTIONS, QUESTIONS AND CONCERNS E-MAIL US AT: Theadvocate.prng@gmail.com

BARS TO REENLISTMENT IN THE ARNG

A bar to reenlistment is the administrative tool commanders use to deny reenlistment to soldiers thought to be substandard.

Army Regulation (AR) 601-280 sets forth policies and procedures for the Army’s retention/reenlistment program. The AR is clear that only soldiers of “high moral character, personal competence, and demonstrated adaptability” to the requirements of military service will be reenlisted into the Army. With that standard, the AR authorizes bars for soldiers whose immediate separation is not warranted, but whose reenlistment is not in the best interest of the Army. The focus is on service beyond ETS, not on forcing the soldier out prior to ETS. Honorable service (the absence of misconduct) does not prevent a bar to reenlistment. (Continued on Page 10)

VOLUME 3 ISSUE 2 APRIL—MAY 2013

A P U B L I C A T I O N F R O M T H E

O F F I C E O F T H E S T A F F J U D G E A D V O C A T E

THE LAUTENBERG AMENDMENT THE LAUTENBERG AMENDMENT is

a supplement to the Gun Control Act of

1968. It became law on September 30,

1996. This article incorporates Depart-

ment of Defense (DoD) and Department

of Army (DA) guidance, and it applies to

the Puerto Rico National Guard. In gen-

eral the Amendment makes it a felony

for anyone convicted of a misdemeanor

crime of domestic violence to ship, trans-

port, possess, or receive firearms or am-

munition. It is also a felony for any per-

son to sell or otherwise dispose of a fire-

arm to anyone known to have such a

conviction.

TO WHOM DOES THE LAW APPLY?

The law applies to all soldiers

throughout the world who have been

convicted of a “misdemeanor crime of

domestic violence.” The law also applies

to anyone who issues or sells a weapon

to someone with a qualifying conviction.

Accordingly, if a soldier who has been

convicted of a misdemeanor crime of

domestic violence is issued a military

weapon, both the soldier and the com-

mander who knew of the conviction and

yet authorized issuance of a weapon

would be in violation of the law. Both

Army issue and privately owned weap-

ons fall within the scope of the law.

WHEN DOES THE LAW APPLY?

The Amendment has a six-part test

(see below) for determining whether an

ind iv idua l has co mmi t ted a

“misdemeanor crime of domestic vio-

lence.”

(Continued on Page 2)

The ETHICS MATTERS: Government Travel Cards . . . . . .14

FROM THE FTC: The Credit Repair Organizations

Act . . . . . . . . . . . . . . . . . . . . . . . 15

AT THE MOVIES: ZERO DARK THIRTY . . . . . . . . . . . . . 16

JAG BOOKSHELF: THE FINISH: THE KILLING OF OSAMA BIN LADEN . . . . . . . . . . . . . 16

HEY. . . COMMANDER: BARS TO REENLISTMENT. . . . . . . . . . . . 10

TALKING ABOUT: ARMY COUNSELING IN THE 21ST CENTURY . . . . . . . . . . . . . .11

THE ARMY’S LEGAL EAGLES: (from NCO Journal). . . . . . . . . . . . . 4

FROM THE CHIEF PARALEGAL NCO: IT’S ALL ABOUT SERVICE . . . . . . . . . . . 7

AdvocateAdvocate

sess firearms or ammunition,

and advise the soldier to

dispose of privately-owned

firearms and ammunition

lawfully. The commander

should detail the soldier to

duties that do not require the

bearing of weapons or am-

munition. No adverse action

may be taken solely on the

basis of a soldier’s inability to possess a

weapon if the act of domestic violence lead-

ing to the conviction occurred on or before

September 30, 1996. Commanders may initi-

ate adverse action (e.g. bar to reenlistment,

administrative elimination) if the act of do-

mestic violence occurred after September

30, 1996 after providing a soldier reasonable

time to seek expunction or a pardon. If a

soldier indicates that he does not know

whether he has a qualifying conviction, the

commander should grant the soldier a rea-

sonable amount of time to make an inquiry

to appropriate authorities, but should sus-

pend the soldier’s authority to possess fire-

arms and ammunition during the period

granted to conduct the inquiry. In all cases,

the commander should consult the Office of

the Staff Judge Advocate to ensure that the

law applies to a soldier before action is taken

to comply with the law.

HOW WILL THE ARMY NATIONAL

GUARD DISCOVER QUALIFYING

CONVICTIONS?

Commanders will notify all soldiers that

it is unlawful to possess firearms and ammu-

nition if they have a conviction of a misde-

meanor crime of domestic violence. Com-

manders will conduct local unit personnel

files checks and will report through com-

mand channels soldiers known to have quali-

fying convictions and soldiers reasonably

believed to have such convictions.

2

(Continued from Page 1)

In order for the Amendment to apply to

an individual, that individual must have been

convicted of a misdemeanor crime, the of-

fense must have involved the use or at-

tempted use of physical force or the threat-

ened use of a deadly weapon, and the indi-

vidual must have had a familial or family-

like relationship with the victim. The three

remaining portions of the six-part test are

whether the individual was represented by

an attorney, whether the case was tried be-

fore a jury, and whether the conviction has

been expunged or the individual pardoned.

Of particular note to soldiers, the Lauten-

berg language does NOT apply to summary

court-martial convictions, imposition of non-

judicial punishment (Article 15), or deferred

prosecutions (or similar alternative disposi-

tion) in a civilian court.

WHAT SHOULD SOLDIERS DO?

Soldiers who are concerned that the

Amendment applies to them should contact

their attorney or the Legal Assistance Office

for an appointment for help in determining

their legal status. The soldier should attempt

to get a record of the conviction prior to the

appointment. Additionally, if soldiers are

pending misdemeanor charges in civilian

court systems for domestic violence, a legal

assistance attorney can advise them about

the impact of a conviction and any options

available for deferred adjudication or alter-

nate resolution.

WHY SHOULD SOLDIERS SEEK

LEGAL ASSISTANCE?

Depending on when the domestic vio-

lence occurred, the related conviction may

be the basis for separation from the Army

National Guard. The conviction also may be

the basis for other administrative actions,

such as reclassification or reassignment.

WHAT SHOULD COMMANDERS DO?

If a commander knows or has reasonable

cause to believe a soldier has been convicted

of a misdemeanor crime of domestic vio-

lence, the commander should not issue gov-

ernment-owned or privately-owned firearms

or ammunition to that soldier. If the soldier

has an issued weapon and/or ammunition,

the commander should retrieve it immedi-

ately, suspend the soldier’s authority to pos-

Conviction of a “misdemeanor crime of

domestic violence” as defined in the amend-

ment does not include a summary court-

martial conviction or imposition of non-

judicial punishment (Article 15, UCMJ), or

deferred prosecutions (or similar alternative

dispositions) in a civilian court. The recent

amendment should not be construed to apply

to major military weapons systems or “crew

served” military weapons and ammunition

(tanks, missiles, aircraft, etc.) absent an

opinion from the Department of Treasury to

the contrary. The amendment shall be con-

strued to apply outside United States terri-

tory as a matter of DoD policy.

ELEMENTS OF MISDEMEANOR

CONVICTION OF DOMESTIC

VIOLENCE

A person shall not be considered as having

committed a “misdemeanor crime of domes-

tic violence” for purposes of the firearms

restriction recently added to the Gun Control

Act unless all of the following six elements

are present:

the person was convicted of a misde-

meanor crime;

the offense had as an element the use or

attempted use of physical force, or

threatened use of a deadly weapon;

the convicted offender was at the time

of the offense:

a current or former spouse, parent

or guardian of the victim,

a person with whom the victim

shared a child in common,

a person who was cohabitating

with or has cohabitated with the

victim as a spouse, parent, or

guardian, or

a person who was similarly situated

to a spouse, parent, or guardian of

the victim;

the convicted offender was represented

by counsel, or knowingly and intelli-

gently waived the right to counsel;

if entitled to have the case tried by jury,

the case was actually tried by a jury or

the person knowingly and intelligently

waived the right to have the case tried

by a jury, and;

the conviction has not been expunged or

set aside, or the convicted offender has

not been pardoned for the offense or

had civil rights restored, unless the par-

don, expungement, or restoration of

civil rights provides that the person may

not ship, transport, possess, or receive

firearms.

3

ABOUT DOMESTIC VIOLENCE

Domestic violence, also known as do-

mestic abuse, spousal abuse, battering,

family violence, and intimate partner vio-

lence (IPV), is a pattern of behavior which

involves the abuse by one partner against

another in an intimate relationship such as

marriage, cohabitation, dating or within the

family. Domestic violence can take many

forms, including physical aggression or as-

sault (hitting, kicking, biting, shoving, re-

straining, slapping, throwing objects, bat-

tery), or threats thereof; sexual abuse; emo-

tional abuse; controlling or domineering;

intimidation; stalking; passive/covert abuse

(e.g., neglect); and economic deprivation.

Alcohol consumption and mental illness

can be co-morbid with abuse, and present

additional challenges in eliminating domes-

tic violence. Awareness, perception, defini-

tion and documentation of domestic violence

differ widely from country to country, and

from era to era.

Domestic violence and abuse is not lim-

ited to obvious physical violence. Domestic

violence can also mean endangerment,

criminal coercion, kidnapping, unlawful

imprisonment, trespassing, harassment, and

stalking.

AROUND THE WORLD

Laws on domestic violence vary by coun-

try; while it is generally outlawed in western

society, this not the case in many developing

countries. For instance, in 2010, the Su-

preme Court of United Arab Emirates ruled

that a man has the right to physically disci-

pline his wife and children as long as he

does not leave physical marks. The social

acceptability of domestic violence also dif-

fers by country. While in most developed

countries domestic violence is considered

unacceptable by most people, in many re-

gions of the world the views are different:

according to a UNICEF survey, the percent-

age of women aged 15–49 who think that a

husband is justified in hitting or beating his

wife under certain circumstances is, for ex-

ample: 90% in Jordan, 85.6% in Guinea,

85.4% in Zambia, 85% in Sierra Leone,

81.2% in Laos, and 81% in Ethiopia.

In the US, approximately 46 States, the

District of Columbia, American Samoa,

Guam, the Northern Mariana Islands, the

U.S. Virgin Islands and Puerto Rico define

domestic violence in their civil statutes.

These statutes typically are found in domes-

tic relations laws but also may be found in

family or social services laws, and they pro-

vide a means for victims of domestic vio-

lence to obtain civil orders of protection and

other protective services.

IN THE UNITED STATES

Approximately 40 States, the Virgin Is-

lands, and Puerto Rico list in their statutes

specific acts that constitute domestic vio-

lence. Most common among these are sexual

assault, assault or battery, causing physical

harm or serious injury, threatening or plac-

ing a victim in fear of harm, harassment,

stalking, trespassing, damage to property,

kidnapping, and unlawful restraint. Approxi-

mately 11 States and Puerto Rico include

child abuse in their civil definitions of do-

mestic violence. The civil definitions in

Colorado include violence or threatened

violence against an animal that is owned by

a victim of domestic violence, and injuring

or killing an animal as a means of harassing

a person is considered domestic violence in

Nevada.

CRIMINAL LAWS

Approximately 34 States, American Sa-

moa, Guam, and Puerto Rico define domes-

tic violence in their criminal or penal codes.

These definitions generally describe acts that

can lead to arrest and misdemeanor or felony

prosecution.

In criminal laws, domestic violence may

be defined as "any criminal offense involv-

ing violence or physical harm or threat of

violence or physical harm" committed by

one family or household member against

another. Other terms used across the States

include "domestic assault," "domestic bat-

tery," "domestic abuse," or "assault against a

family or household member." The specific

language and terminology used by States in

criminally defining domestic violence varies

considerably.

Approximately 16 States, American Samoa,

and Puerto Rico list in their statutes specific

acts that constitute domestic violence. Most

common among these are assault or battery,

sexual assault, harassment, stalking, tres-

passing, kidnapping, and burglary or rob-

bery. Arizona, Utah, and American Samoa

include child abuse in their criminal defini-

tions of domestic violence. Animal cruelty is

included in the criminal definitions in Ar-

kansas.

PERSONS INCLUDED

IN THE DEFINITIONS

In all States, the District of Columbia, the

U.S. territories, and Puerto Rico the statutes

specify that only persons who have some

sort of personal relationship are protected by

the domestic violence laws. The most com-

mon relationships listed include spouses and

former spouses, persons who are currently

living together, who have previously lived

together, are involved or were previously

involved in a dating or intimate relationship,

or who have a child in common, whether or

not they have ever lived together.

Approximately 34 States, American Sa-

moa, Guam, the Northern Mariana Islands,

the Virgin Islands and Puerto Rico, include

children as a class of protected persons

within their definitions of domestic violence.

Most commonly, a child who is a member of

the household or a child of either adult in the

relationship is protected. Seven States and

Puerto Rico specifically include grandchil-

dren as protected persons. Four States in-

clude foster children. Foster parents are in-

cluded as protected persons in seven States.

4

Published as a Courtesy from NCO JOURNAL

5

.

6

7

8

9

AFTER reading NCO Journal’s

excellent article on the job done

by Army Paralegals, it got me

thinking. It seems curious to me

that when one of our judge advo-

cates or paralegals walk along

PRNG Headquarters to one of

the many offices we may visit in

the course of our duties, many

people may think at times that

someone is in trouble, or some-

thing bad is about happen. Well,

that may be the case, but most of

the time we’re just looking for

assistance to resolve some situation brought

to our attention by one of the many soldiers,

airmen and their families who come by the

Office of the Staff Judge Advocate on a

daily basis.

As part of the Judge Advocate General’s

Corps we’ve always had a clear understand-

ing of what our mission entails; to develop,

employ, and retain One Team of proactive

professionals, forged by the warrior ethos,

who deliver principled counsel and mission‐focused legal services to the Army and the

Nation. It’s all about service.

It’s the kind mentality that should be a

permanent part of our institution, and which

sometimes gets lost in the hustle and bustle

of everyday work. As a result, some choose

not to seek out proper assistance, because

they feel that they will not, or cannot obtain

it. We see this many times when people are

referred to our office by other sections for

any reason, not necessarily being a matter

for the legal office, and which could have

been solved just as easily, by making the

extra effort of doing a simple internet search.

As consequence, our paralegals, regard-

less of their individual backgrounds and

civilian experiences, have to be very creative

and versed in many areas of everyday situa-

tions, in order to provide that assistance

many have come to expect. More than what

their job description as 27Ds MOS might

entail, our paralegals have met the challenge

head on by educating themselves in numer-

ous fields, many way off the beaten path of

what their administrative qualifications are

“supposed” to be.

The most common scenario we encounter

while providing legal assistance to our cli-

ents, is the infamous “Someone told me

that…”, as in someone told me that I can do

this or that, or whatever. There have always

been what we in popular slang call “barracks

lawyers” (abogados de pasillo), persons who

believe they know what needs to

be done and what the rules say.

They mean well, but more often

than not, they are not correct in

their assessments. Many have

gone by what these “barracks

lawyers” advise them, and have

found themselves in troublesome

situations.

We’ve made efforts to get the

right information out to service

members and their families, in an

attempt to minimize the ill effects

of the “barracks lawyer”. This

publication, The Advocate, is one

of such efforts, and thankfully, it

has been widely accepted by the

National Guard community here

and in the Continental US. It is

our hope that through our preven-

tive law program, we can assist

you in preemptively addressing

any legal concerns you may have. The para-

legals and judge advocates in our OSJA have

the proper training, knowledge and experi-

ence to provide you with the right informa-

tion. Give them the opportunity to serve you

as they have served many others in our Na-

tional Guard.

One Team! It’s all about service.

SFC Francisco I. Chiroque, J.D.

CPNCO, Puerto Rico National Guard

Sonia Marisa Franco López was born

in Toa Baja Puerto Rico. She joined the

Puerto Rico Army National Guard in Janua-

ry of 1983 and was a part of the Quartermas-

ter Corps; Chief Warrant Officer 3 Franco

passed away on March 28, 2013; she was 53

years old. At the time of her passing she was

assigned to the Puerto Rico Army National

Guard Element Joint Force Headquarters,

after a career that lasted more than 30 years

of Honorable service as a military member

and technician.

Chief Franco’s awards and decorations

include the Meritorious Service Medal, the

Army Commendation Medal (2), the Army

Achievement Medal, the Army Reserve

Component Achievement Medal (2), the

National Defense Service Medal (2), the

Global War on Terrorism Expeditionary

Medal, the Global War on Terrorism Service

Medal, the Noncommissioned Officer

(NCO) Professional Development Ribbon

(2), the Army Service Ribbon, the Overseas

Service Ribbon, the Armed Forces Reserve

Medal with M Device and the NATO non-

Article 5 Medal.

I had the privilege of meeting CW3

Franco, during our service in 2010-2011

with the 92nd MEB to Kosovo, in support of

KFOR13. She was a special person and an

outstanding officer, who always had the

welfare of her colleagues and subordinates

above her own. She always had a smile, a

kind comment and a warm embrace for all of

us. She lived by the army values of Loyalty,

Duty, Respect, Selfless Service, Honor, In-

tegrity and Personal Courage; and though

the Puerto Rico National Guard shines a

little less brighter without her, she leaves

behind an example of dedication to service

and work ethic that all of us should aspire to

achieve. I and many others, who knew her

through the years, will miss her very much.

Rest in Peace old friend.

(By: Sgt. Javier Fontánez and the Staff at The Advocate)

Sonia M. Franco Chief Warrant Officer 3 Oct 20, 1959 - Mar 28, 2013

10

(Continued from Page 1)

CRITERIA There are three criteria justifying initiation of a Bar to Reenlistment. In accordance with AR 601-280, bars are appropriate for soldiers who are un-trainable; unsuitable; or unable to work-up a fam-ily care plan.

Un-trainable simply means the particular sol-dier has, despite repeated attempts, failed to meet minimum professional standards. Inability to perform basic tasks associated with their MOS, repeated failure of the Army Physical Fitness Test, or repeated failure to qualify with their as-signed weapon are all examples of un-trainability.

Unsuitability is different in that the focus is more on attitude and motivation. The focus is on whether the soldier presents proper military bear-ing and whether the soldier refuses, or is other-wise unable, to adapt to the military lifestyle. Questionable off-duty conduct not amounting to misconduct may justify a bar on this ground.

Finally, single soldiers with dependent family members or dual military couples with depend-ents, who are unable to craft an acceptable family care plan, are subject to a bar.

PROCEDURE Any commander in a soldier’s chain of command may initiate a bar. Normally, the soldier’s com-pany-level commander will initiate the action because he or she is most likely to have direct contact with the soldier, and be most aware of the soldier’s successes and shortcomings. A bar is initiated using DA Form 4126-R. Once the bar is initiated, the commander will present it to the soldier. The soldier will then have 7 days to sub-mit a rebuttal statement. If the commander deter-mines the bar is still warranted, it will be for-warded up the chain of command for approval or disapproval.

Upon receipt of the comment of the Soldier, or the Soldier's refusal to comment, the certificate will be endorsed personally by each commander in the chain of command, and approved or disap-proved by the appropriate authorities as shown in (1), (2) or (3) below.

(1) For Soldiers with less than ten years of qualifying service for retired pay at ETS, the ap-proval/disapproval authority is the first com-mander, Lieutenant Colonel (O-5) or above, in the Soldier's normal chain of command. No dele-gation of authority is authorized.

(2) For Soldiers with at least ten but less than

18 years of qualifying service for retired pay at ETS, those with more than 20 years of service at ETS, and those when action is taken to extend the Soldier to complete 20 years of service, the approval/disapproval authority is the first com-mander, Colonel (O-6) or above, in the Soldier's normal chain of command. No delegation of au-thority is authorized.

(3) Soldiers, who upon ETS, will have at least 18 but less than 20 years of qualifying service, will be allowed to extend to the point where they could attain 20 years. They may, after the exten-sion is executed, be barred. The approval/disapproval authority for this bar is TAG. These Soldiers may be processed for separation before they attain 20 years of service but will not be separated before that point without approval of Chief, NGB.

Any of these higher level commanders may disapprove the proposed bar.

APPEALS When the BAR has been approved, the Sol-dier's unit commander will use a counseling state-ment to inform the Soldier of the right of appeal within 15 days. The appeal will be forwarded through command channels, endorsed personally by each commander, and approved or disap-proved within 30 days by the authorities shown below.

(1) Soldiers with less than ten years of qualify-ing service for retired pay at ETS, the appeal approval/disapproval authority is the first com-mander, COL or above, in the Soldier's normal chain of command.

(2) Soldiers with ten or more years of qualifying service and those with more than 20 years for retired pay at ETS, the approval/disapproval authority is TAG. Those with 18 or 19 years ser-vice will be extended to 20 years.

When NGB Form 602-R BAR has been ap-proved by the appropriate authority, the custodian of the Soldier's personnel records will:

(1) Give the original to the Soldier.

(2) Submit a copy to the State PSB/PSC via iPERMS (PSDR clerks).

An entry "Not recommended for further ser-vice" will be made on DA Form 1315 (Retention Data Card) or a localized approved substitute.

An approved BAR will be reviewed by the appropriate unit commander every six months (for M-Day Soldiers) or three months (for AGR Soldiers) after the date of approval, and 30 days before the Soldier's scheduled departure from the unit or discharge from the service.

If, upon review, the commander feels the BAR should remain in effect, the custodian of the Soldier's personnel record will be notified and will

enter on the Soldier's DA Form 2-1, "Bar to re-enlistment, immediate reenlistment or extension reviewed; not recommended for removal (date)." The unit commander will make the same remark on DA Form 1315 and will notify the Soldier by providing a reproduced copy of NGB Form 602-R.

A recommendation to remove a BAR may be submitted at any time by the Soldier's unit com-mander, if the Soldier has proven worthy of reten-tion in the ARNG/ARNGUS.

(1) Recommendations to remove a BAR will be submitted in writing through the chain of com-mand and will be endorsed personally by each commander.

(2) Approval to remove a BAR may be granted by the same authority that approved the BAR originally or, if the Soldier has moved to another jurisdiction, by a comparable commander in that jurisdiction.

(3) The approved recommendation removing the BAR will be maintained in the appropriate unit file. NGB Form 602-R BAR will be removed and destroyed. The remark "Not recommended for further service" and an entry pertaining to "Bar to immediate reenlistment review; not recom-mended for removal (date)" will be deleted from DA Form 2-1, per AR 600-8-104 (Military Person-nel Information Management/Records). The same remarks on the DA Form 1315 will be erased. The Soldier concerned will be given a copy of the approved recommendation removing the BAR.

If at the time of the second six month (for M-Day) or three month (for AGR) review of a locally imposed BAR to reenlistment, the commander does not recommend that the BAR be removed, the commander will process the Soldier for sepa-ration per NGR 600-200 and the appropriate chapter(s) of AR 135-178. The term processed for separation means that separation action will be initiated and processed through the chain of command to the separation authority for appropri-ate action. Compliance with AR 135-178, para-graph 1-12 is mandatory. The unit and intermedi-ate commanders will recommend separation or retention and the characterization of service to be awarded. See subparagraph k below for special provisions for Soldiers barred for APFT failure.

Processing for separation will be initiated after the first review for Soldiers who receive a locally imposed BAR to reenlistment after the second failure of the APFT. Soldiers who receive a locally imposed BAR after the first APFT failure will be processed for separation after the second review.

DISCHARGE WITH A BAR NGB Form 22 (Report of Separation and Record of Service) of otherwise qualified Soldiers, who are discharged with a BAR in effect, will be anno-tated "Bar to Reenlistment or Extension (dated) in effect on the date of discharge' in the remarks section, block 18. Block 26, Reenlistment Eligibil-ity, will be coded RE 3.

COUNSELING is a type of communication

that leaders use to empower soldiers to

achieve goals. It is much more than provid-

ing feedback or direction. It is communica-

tion aimed at developing a soldier’s ability

to achieve individual and unit goals. Soldiers

want to be counseled and will respond to

counseling because they want to know what

it takes to be successful in today’s Army.

Regardless of your leadership position, your

soldiers see you as successful simply be-

cause you have achieved the level they are

striving to accomplish. Leaders must provide

each of their soldiers with the best possible

road map to success. Today’s leader-

ship doctrine incorporates this defini-

tion in subordinate-centered commu-

nication, which leads to the achieve-

ment of individual and unit goals.

Leadership

Influencing people by providing

purpose, motivation, and direction

while operating to accomplish the

mission and improve the organiza-

tion.

Army Values

Loyalty, Duty, Respect, Selfless

Service, Honor, Integrity, & Personal

Courage.

The Army Values of Loyalty, Duty, &

Selfless Service require us to counsel. The

Army Values of Honor, Integrity, & Per-

sonal Courage require us to give straightfor-

ward Feedback. The Army Value of Respect

requires us to find the best way to communi-

cate that feedback.

Leadership Doctrine

Army Leadership; FM 6-22, 12 October

2006, Appendix “B”- Counseling

(Supersedes FM 22-100)

Competent leaders of character are neces-

sary for the Army to meet the challenges in

the dangerous and complex security environ-

ment we face. FM 6-22 is the Army’s key-

stone field manual on leadership. It estab-

lishes leadership doctrine and fundamental

principles for all officers, noncommissioned

officers, and Army civilians across all com-

ponents.

This manual uses the BE-KNOW-DO

concept to express what is required of Army

leaders. It is critical that Army leaders be

agile, multi-skilled pent athletes who have

strong moral character, broad knowledge,

and keen intellect. They must display these

attributes and leader competencies bound by

the concept of the Warrior Ethos. Leaders

must be committed to lifelong learning to

remain relevant and ready during a career of

service to the Nation.

Army leaders must set the example,

teach, and mentor, and this manual provides

the principles, concepts, and training to ac-

complish this important task on which

America depends.

Counseling perceptions

Counseling is generally perceived as be-

ing negative; normally associated with an

evaluation requirement, problem, or poor

performance. Documenting counseling is

seen as bad news - writing things down is

perceived as negative. This may be a fair

assessment considering current counseling

techniques, which for the most part are usu-

ally one way/directives (I talk, you listen),

that do not result in a concrete action plan

and are based purely on past performance.

Counsel

Webster’s Dictionary defines counsel as-

a : advice given especially as a result of

consultation b : a policy or plan of action or

behavior

FM 6-22 defines counseling as the proc-

ess used by leaders to review with a subordi-

nate the subordinate’s demonstrated per-

formance and potential.

Counseling is one of the most important

leadership development responsibilities for

Army leaders. The Army’s future and the

legacy of today’s Army leaders rests on the

shoulders of those they help prepare for

greater responsibility.

Developmental Counseling

Purpose

To develop subordinates to achieve per-

sonal, professional development and organ-

izational goals and to prepare them for in-

creased responsibilities.

Types of Developmental counseling

Developmental counseling is cate-

gorized by the purpose of the session.

The three major categories of develop-

mental counseling are:

Event counseling.

Performance counseling.

Professional growth counseling.

Event Counseling

Event-oriented counseling involves

a specific event or situation. It may

precede events such as appearing be-

fore a promotion board or attending

training. It can also follow events such

as noteworthy duty performance, a problem

with performance or mission accomplish-

ment, or a personal issue. Examples of event

-oriented counseling include the following:

Instances of superior or substandard

performance.

Reception and integration counseling.

Crisis counseling.

Referral counseling.

Promotion counseling.

Separation counseling.

Counseling for Specific Instances

Sometimes counseling is tied to specific

instances of superior or substandard duty

performance. Leaders use counseling ses-

sions to convey whether or not the perform-

ance met the standard and what was done

right or wrong. Successful counseling for

specific performance occurs as close to the

event as possible. Leaders should counsel

subordinates for exceptional as well as sub-

standard duty performance. The key is to

strike a balance between the two.

11

What to Do?

Explain the purpose of the counseling -

what was expected, and how the subor-

dinate failed to meet the standard.

Address the specific unacceptable be-

havior or action - do not attack the per-

son’s character.

Explain the effect of the behavior, ac-

tion, or performance on the rest of the

organization.

Actively listen to the subordinate’s re-

sponse.

Remain neutral.

Teach the subordinate how to meet the

standard.

Be prepared to do some personal coun-

seling, since a failure to meet the stan-

dard may be related to or be the result

of an unresolved personal problem.

Explain to the subordinate how an indi-

vidual development plan will

improve performance and iden-

tify specific responsibilities in

implementing the plan. Continue

to assess and follow up on the

subordinate’s progress. Adjust

the plan as necessary.

Professional Growth Counseling

Professional growth counseling in-

cludes planning for the accomplish-

ment of individual and professional

goals. During the counseling, leader

and subordinate conduct a review to

identify and discuss the subordinate’s

strengths and weaknesses and to cre-

ate an individual development plan

that builds upon those strengths and com-

pensates for (or eliminates) weaknesses.

The Leader as a Counselor

Developmental counseling must be a shared

effort. Leaders assist in identifying strengths

and weaknesses and creating plans of action.

Once a plan is agreed upon, support the Sol-

dier throughout the plan implementation and

continued assessment. To achieve success,

soldiers must be forthright in their commit-

ment to improve and candid in their own

assessments and goal setting.

While it is not easy to address every possible

counseling situation, leader self-awareness

and an adaptable counseling style focusing

on key characteristics will enhance personal

effectiveness as a counselor. These key char-

acteristics include:

Purpose: Clearly define the purpose of

the counseling.

Flexibility: Fit the counseling style to

the character of each subordinate and to

the relationship desired.

Respect: View subordinates as unique,

complex individuals, each with a dis-

tinct set of values, beliefs, and attitudes.

Communication: Establish open, two-

way communication with subordinates

using spoken language, nonverbal ac-

tions, gestures, and body language. Ef-

fective counselors listen more than they

speak.

Support: Encourage subordinates

through actions while guiding them

through their problems.

Qualities of the Counselor

Army leaders must demonstrate certain

qualities to be effective counselors. These

qualities include respect for subordinates,

self-awareness and cultural awareness, em-

pathy, and credibility. Self-aware Army

leaders consistently develop and improve

their own counseling abilities. The tech-

niques needed to provide effective counsel-

ing vary from person to person and session

to session. However, general skills that lead-

ers will need in almost every situation in-

clude active listening, responding, and

questioning.

Active Listening

Active listening helps communicate recep-

tion of the subordinate’s message verbally

and nonverbally. To capture the message

fully, leaders listen to what is said and ob-

serve the subordinate’s manners.

Responding

A leader responds verbally and nonverbally

to show understanding of the subordinate.

Verbal responses consist of summarizing,

interpreting, and clarifying the subordinate’s

message. Nonverbal responses include eye

contact and occasional gestures such as a

head nod.

Questioning

Although focused questioning is an impor-

tant skill, counselors should use it with cau-

tion. Too many questions can aggravate the

power differential between a leader and a

subordinate and place the subordinate in a

passive mode. The subordinate may also

react to excessive questioning as an intrusion

of privacy and become defensive. During a

leadership development review, ask ques-

tions to obtain information or to get the sub-

ordinate to think deeper about a particular

situation. Questions should evoke more than

a yes or no answer. Well-posed questions

deepen understanding, encourage further

explanation, and help the subordinate per-

ceive the counseling session as a construc-

tive experience.

Counseling Errors

Dominating the counseling by talking too

much, giving unnecessary or inappropriate

advice, not truly listening, and projecting

personal likes, dislikes, biases, and preju-

dices all interfere with effective counseling.

Competent leaders avoid rash judgments,

stereotyping, losing emotional control, in-

flexible counseling methods, or improper

follow-up.

Accepting Limitations

Army leaders cannot help everyone in

every situation. Recognize personal

limitations and seek outside assis-

tance, when required. When neces-

sary, refer a subordinate to the agency

more qualified to help.

The Four Stage Counseling Process

Identify the need for counseling.

Prepare for counseling.

Conduct counseling.

Follow-up.

Identify the Need

Usually organizational policies focus

a counseling session. However, leaders may

conduct developmental counseling whenever

the need arises for focused, two-way com-

munication aimed at soldier’s development.

Developing subordinates consists of observ-

ing the subordinate’s performance, compar-

ing it to the standard, and then providing

feedback to the subordinate in the form of

counseling.

Prepare

Successful counseling requires preparation

in the following seven areas:

Select a suitable place.

Schedule the time.

Notify the subordinate well in advance.

Organize information.

Outline counseling session components.

Plan the counseling strategy.

Establish the right atmosphere.

12

13

Conduct Counseling Session

Leaders use a balanced mix of formal and

informal counseling and learn to take advan-

tage of everyday events to provide soldiers

with feedback. Counseling opportunities

often appear when leaders encounter subor-

dinates in their daily activities in the field,

motor pool, barracks, and wherever else

Soldiers perform their duties. Even during ad

-hoc counseling, leaders should address the

four basic components of a counseling ses-

sion:

Opening the session.

Discussing the issues.

Developing a plan of action.

Recording and closing the session.

Follow Up

Leader Responsibilities

The counseling process does not end with

the initial counseling session. It continues

throughout the implementation of the plan of

action, consistent with the observed results.

Leaders must consistently support their sub-

ordinates in implementing the plan of action

by teaching, coaching, mentoring, or provid-

ing additional time, referrals, and other ap-

propriate resources. Additional measures

may include more focused follow-up coun-

seling, informing the chain of command, and

taking more severe corrective measures.

Assess the Plan of Action

During assessment, the leader and the subor-

dinate jointly determine if the desired results

were achieved. They should determine the

date for their initial assessment during the

initial counseling session. The plan of action

assessment provides useful information for

future follow-up counseling sessions.

The Developmental Counseling Form

The Developmental Counseling Form (DA

Form 4856) is designed to help Army lead-

ers conduct and record counseling sessions.

Leaders must decide when counseling, addi-

tional training, rehabilitation, reassignment,

or other developmental options have been

exhausted.

The Importance of Praise to a Soldier

Successful leaders use praise effectively.

Identifying shortcomings and then telling

soldiers what must be improved are a

leader’s responsibility. Praising soldiers for

their improvement and proper performance

is even more important.

Sincere and honest praise lets soldiers know

that their leader appreciates their efforts.

Praising subordinates is a simple act that

takes little time but will provide many bene-

fits. With a few positive, encouraging words

and a pat on the back, the leader can recog-

nize and reinforce desired behavior and per-

formance. A soldier who feels that his best

efforts are valued by his leader is likely to

continue in those efforts.

It is important that the soldier know he is

viewed as a valuable member of the unit.

With praise, leaders can create and reinforce

a positive self-image in their soldiers, mak-

ing them feel like winners. This is most de-

sirable in confusing or unclear situations

where the soldier is trying to do the right

thing but is uncertain of his actual perform-

ance.

Some soldiers are assigned necessary but

boring and not challenging tasks. They, too,

must be praised for their contributions to the

overall success of the unit. Praise should be

a part of every leader’s normal day-to-day

leadership action. Its contribution to soldier

development cannot be overstated.

Legal Assistance

If you have questions or concerns regarding

proper counseling, you can contact the Of-

fice of the Staff Judge Advocate

at Tel. No. (787) 289-1411

manders and supervisors

are responsible for the

effective management of

the Travel Charge Card

Program in their organiza-

tions. Commanders and

supervisors should con-

sider all the facts and

circumstances in reaching

a disposition that is war-

ranted, fair and appropri-

ate.

Commanders and Super-

visors have the following options available

to them:

a. Military Personnel.

When Military personnel misuse a pur-

chase or travel card the options are:

Counseling

Admonishment

Reprimand

UCMJ (for those under Title 10 USC

jurisdiction)

Administrative separation

b. Military Technicians

Technician Personnel Regulation (TPR)

52, Disciplinary and Adverse Actions, lists

among its offenses the Misuse of Govern-

ment charge card. These offenses are divided

into two categories:

Deliberate or negligent travel card mis-

use, abuse, delinquency and fraud

Purchase card use for deliberate or neg-

ligent illegal, improper or incorrect

purchase.

The regulation, depending on the severity

of the situation, contemplates sanctions

ranging from letters of reprimand, suspen-

sion or removal.

14

Salary Offset

DoD Financial Management Regulation,

Volume 9, Chapter 3 states that upon delin-

quency of a Government Card Holder the

bank can request to DoD, through DFAS to

begin the process of salary offset. All invol-

untary salary offsets are limited to a maxi-

mum of 15% of the employee's disposable

pay. DoDFMR, Volume 8, Chapter 8 estab-

lishes the specific procedure to be followed

in these cases.

Suspension of Security Clearance

The commander or head of agency is

authorized to suspend an individual’s classi-

fied access when it has been reported that

said servicemember or employee has mis-

used or abused his Government travel or

purchase card. The suspension process is

detailed in the Assistant Secretary of De-

fense Memorandum for the Secretaries of

the Military Departments, dated 4 November

2002.

We now face stricter rules for issuing and

tracking government charge cards under the

new Government Charge Card Abuse Pre-

vention Act of 2012. The law re-

quires agencies to create internal

safeguards for spotting and stop-

ping unauthorized purchases, in-

cluding:

Running credit checks for

travel-card users and restricting

access for those with poor credit

Maintaining records of

cardholders and their transac-

tion limits

Periodically reviewing

users to determine if there's if

still a need for them to use

charge cards

Providing training for charge-

card users and

Directing agency inspectors general to

conduct periodic risk assessments and

audits to identify fraud.

Conclusion

This is a summary of the current guid-

ance and options available to TAG, com-

manders and supervisors, when cases of

misuse of Government Travel or Purchase

Cards are reported. Each case shall be evalu-

ated by its specific facts and impose the cor-

rective or disciplinary actions that are war-

ranted and appropriate.

As always, if you have any questions

regarding this or any other Ethics matters,

contact the PRNG Office of the Staff Judge

Advocate, at Tel. (787) 289-1411.

By: Maj. William E. O’Connor

Fulltime Judge Advocate

Puerto Rico National Guard

THE ARMY TRAVEL CHARGE CARD program is part of the Government Travel

Charge Card program, which was imple-

mented to provide a more efficient means of

paying for official travel related expenses for

government travelers. The government travel

charge card is a safe convenient tool you can

use to pay your travel expenses. In fact, the

entire process is very simple. You travel,

you charge official travel expenses to your

travel card and (upon return) you file your

travel claim and use the split disbursement

option to pay off those charges.

This simplicity, however, gets

complicated when you mis-

use your Travel Charge Card.

Since the establishment of the

program the number of cases

of improper use of “the card”

has increased exponentially,

creating a problem of incredible

proportions for not just the

Armed Forces, but the federal

government in general. The

Department of Defense has been

cracking down on these cases of

misuse, and here in the National

Guard, we have begun to do the

same.

Bottom Line… It is Department

of Defense (DoD) policy, that in

each and every case of improper, fraudulent,

abusive or negligent use of a government

purchase or travel charge card by military or

DoD civilian personnel the appropriate cor-

rective or disciplinary action must be taken.

Misuse of a Government charge card

includes any improper or fraudulent use of a

travel charge card, including any use at es-

tablishments or for purposes that are incon-

sistent with the official business of the DoD,

including the Military Services or with ap-

plicable standards of conduct. The current

policies reflect that the best way to prevent

government card misuse is through training,

leadership and discipline. When confronted

with a government card misuse case, simply

ignoring the problem is not an option. Com-

profit status — may charge high fees or hide

their fees by pressuring people to make

“voluntary” contributions that only cause

more debt.

If you’re thinking about filing for bank-

ruptcy, be aware that bankruptcy laws re-

quire that you get credit counseling from a

government-approved organization within

six months before you file for bankruptcy

relief. You can find a state-by-state list of

government-approved organizations at

www.usdoj.gov/ust, the website of the U.S.

Trustee Program. That’s the organization

within the U.S. Department of Justice that

supervises bankruptcy cases and trustees. Be

wary of credit counseling organizations that

say they are government-approved, but don’t

appear on the list of approved organizations.

Reputable credit counseling organizations

can advise you on managing your money

and debts, help you develop a budget, and

offer free educational materials and work-

shops. Their counselors are certified and

trained in the areas of consumer credit,

money and debt management, and budget-

ing. Counselors discuss your entire financial

situation with you, and can help you develop

a personalized plan to solve your money

problems. An initial counseling session typi-

cally lasts an hour, with an offer of follow-

up sessions.

The CROA, 15 U.S.C. § 1679, et. seq., prohibits a variety of false and misleading statements, as well as fraud by credit repair organizations (CROs). CROs may not receive payment before any promised service is "fully performed." Services must be under written contract, which must include a detailed description of the services and contract performance time. CROs must provide the consumer with a separate written disclosure statement describing the consumer's rights before entering into the contract. Consumers can sue to recover the greater of the amount paid or actual damages, punitive damages, costs, and attorney's fees for violations of the CROA. The states and the FTC may also enforce the CROA.

You can find more information regarding credit reports and DIY credit repair and other topics of inter-est at our Facebook page at www.facebook.com/PRNG.OSJA or contact the Puerto Rico National Guard—Office of the Staff Judge Advocate at Tel No. 787-289-1411.

15

The Credit Repair

Organizations Act

The Credit Repair Organization Act

(CROA) makes it illegal for credit repair

companies to lie about what they can do for

you, and to charge you before they've per-

formed their services. The CROA is en-

forced by the Federal Trade Commission

and requires credit repair companies to ex-

plain:

your legal rights in a written contract

that also details the services they'll per-

form

your three day right to cancel without

any charge

how long it will take to get results

the total cost you will pay

any guarantees

What if a credit repair company you hired

doesn't live up to its promises? You have

some options. You can:

sue them in federal court for your actual

losses or for what you paid them,

whichever is more

seek punitive damages — money to

punish the company for violating the

law

join other people in a class action law-

suit against the company, and if you

win, the company has to pay your attor-

ney's fees

Report Credit Repair Fraud

State Attorneys General

Many states also have laws regulating

credit repair companies. If you have a prob-

lem with a credit repair company, report it to

your local consumer affairs office or to your

state attorney general (AG).

Federal Trade Commission

You also can file a complaint with the

Federal Trade Commission. Although the

FTC can't resolve individual credit disputes,

it can take action against a company if

there's a pattern of possible law violations.

File your complaint online at ftc.gov/

complaint or call 1-877-FTC-HELP.

Where to Get Legitimate Help

Just because you have a poor credit his-

tory doesn’t mean you can’t get credit.

Creditors set their own standards, and not all

look at your credit history the same way.

Some may look only at recent years to

evaluate you for credit, and they may give

you credit if your bill-paying history has

improved. It may be worthwhile to contact

creditors informally to discuss their credit

standards.

If you’re not disciplined enough to create

a budget and stick to it, to work out a repay-

ment plan with your creditors, or to keep

track of your mounting bills, you might con-

sider contacting a credit counseling organi-

zation. Many are nonprofit and work with

you to solve your financial problems. But

remember that “nonprofit” status doesn’t

guarantee free, affordable, or even legitimate

services. In fact, some credit counseling

organizations — even some that claim non-

PUERTO RICO NATIONAL GUARD—SUICIDE PREVENTION PROGRAM

CW2 NYLSA PACHECO DR. WALESKA SANTIAGO, PSY.D SUICIDE PREVENTION PSYCHOLOGICAL HEALTH PROGRAM MANAGER PROGRAM DIRECTOR 787-289-1400 X. 1106 787-239-5608 787-529-5196 waleska.santiago-pagan@ceridian.com Nylsa.pachecocruz@us.army.mil

MILITARY ONESOURCE 1-877-888-0727 (EN ESPAÑOL)

Zero Dark Thirty received

wide critical acclaim and was

nominated for five Oscars for

the 85th Academy Awards, in-

cluding Best Picture, Best Ac-

tress and Best Original Screen-

play. The film won one, for Best

Sound Editing.

Zero Dark Thirty earned four

Golden

Globe Award

nominations,

including

Best Picture

Drama, Best

Director, and

Best Actress

Drama.

The film's

graphic de-

piction of

torture has

generated

controversy,

with some critics describing it

as pro-torture propaganda, and

other critics describing it as an

anti-torture exposure of interro-

gation practices. In addition, the

chairman of the US House com-

mittee on homeland security

charged that the filmmakers

were given improper access to

classified materials, which they

denied. Subsequent examina-

tions found no evidence to sup-

port the charges.

'Zero Dark Thirty' is military

slang for an unspecified time in

the early

hours of the

morning

before dawn.

The rele-

vance of this

term to the

film is that

the raid on

Osama bin

Laden's quar-

ters was exe-

cuted be-

tween mid-

night and two

o'clock in the morning on May

2, 2011. It also symbolizes the

veil of darkness and secrecy that

was cast over the decade-long

mission to capture bin Laden.

The Advocate A Publication from the Office of the Staff Judge Advocate

Staff Judge Advocate

Col. Orlando A. Izquierdo

EDITORIAL BOARD

Fulltime Judge Advocate

Maj. William E. O’Connor

Chief Paralegal NCO

Sgt. 1st Class Francisco I. Chiroque, J.D.

Paralegal NCO

Staff Sgt. Jeannette M. Diaz

Paralegal NCO

Sgt. Javier Fontanez, J.D.

The Adjutant General

Col Juan J. Lamela Medina

Director of the Joint Staff

Col Marta Carcana

The materials and information on this publication are

made available by the PRNG OSJA for information

and entertainment purposes only. It does not

constitute legal advice. This publication is not

intended as advertising and it does not create an

attorney-client relationship. Persons reading the

information on this publication should not act upon

the information provided without seeking profes-

sional legal counsel.

16

ZERO DARK THIRTY is a 2012

American historical drama film

that dramatizes the United States

operation that found and killed

Osama bin Laden, leader of al-

Qaeda. Billed as "the story of

history's greatest manhunt for the

world's most dangerous man", the

plot covers the ten years since the

attacks on September 11, 2001 up

to the final operation in 2011.

“Today, at my direction, the

United States launched a tar-

geted operation against that com-

pound in Abbottabad, Pakistan.

A small team of Americans car-

ried out the operation with ex-

traordinary courage and capabil-

ity. No Americans were harmed.

They took care to avoid civilian

casualties. After a firefight, they

killed Osama bin Laden and took

custody of his body”

President Barack Obama

May 1, 2011

In his latest book, The finish,

author Mark Bowden takes us

into the 10 year manhunt that

ended in the killing of Osama

bin Laden in Pakistan on May

2011. This book contains per-

sonal accounts and interviews

with President

Obama and other

key players that

led to the mis-

sion to raid

Osama bin

Laden’s com-

pound. The

author takes us

into both the

rooms in which the decisions

were made and into Pakistan

were the mission took place.

The term “finish” refers to

the third prong in the doctrine of

“F3EAD”. This stands for

Find, Fix, Finish Exploit, Ana-

lyze, Disseminate. In essence it

is the result of the lessons

learned during the last decade of

conflict. Simply put it is Amer-

ica’s offensive strategy on how

to destroy a terror network.

According to the author, this

capability is a “remarkable fu-

sion of instant global telecom-

munications, drones, computer

data storage, cutting edge soft-

ware, experienced analysts,

stealth helicopters, precision

munitions, and the operational

skills of pilots

and shooters

who could

execute strikes

with great

surprise and

skill virtually

anywhere in

the world”.

This book

offers an interesting study of the

application of the basic princi-

ples of the law of war and the

F3EAD doctrine. It also dis-

cusses how technology could

enhance compliance with the

law of armed conflict. It is an

excellent book for those who are

interested in military history and

current issues.

Mark Robert Bowden (born July 17, 1951) is an

American writer and a contributing editor at Vanity Fair. From 1979-2003, Bowden was a staff writer for The Philadelphia Inquirer. Over the years, he has written for The New Yorker, Men's Journal, The Atlantic, Sports Illustrated, and Rolling Stone. As a result of his book Black Hawk Down: A Story of Modern War, Bowden has received international recognition. The book was made into a 2001 movie directed by Ridley Scott.