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The advocate apr may 2013


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A publication from the Office of the Staff Judge Advocate of the Puerto Rico National Guard,

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The advocate apr may 2013

  1. 1. FOR COMMENTS, SUGGESTIONS, QUESTIONS AND CONCERNS E-MAIL US AT: Theadvocate.prng@gmail.comBARS TO REENLISTMENT IN THE ARNGA 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 thatonly soldiers of “high moral character, personal competence, and demonstrated adaptability” to the requirements of military servicewill 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 priorto ETS. Honorable service (the absence of misconduct) does not prevent a bar to reenlistment. (Continued on Page 10)VOLUME 3ISSUE 2 APRIL—MAY 2013A PUBLICATION FROM THEOFFICE OF THE STAFF JUDGE ADVOCATETHE LAUTENBERG AMENDMENTTHE LAUTENBERG AMENDMENT isa supplement to the Gun Control Act of1968. It became law on September 30,1996. This article incorporates Depart-ment of Defense (DoD) and Departmentof Army (DA) guidance, and it applies tothe Puerto Rico National Guard. In gen-eral the Amendment makes it a felonyfor anyone convicted of a misdemeanorcrime 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 aconviction.TO WHOM DOES THE LAW APPLY?The law applies to all soldiersthroughout the world who have beenconvicted of a “misdemeanor crime ofdomestic violence.” The law also appliesto anyone who issues or sells a weaponto someone with a qualifying conviction.Accordingly, if a soldier who has beenconvicted of a misdemeanor crime ofdomestic violence is issued a militaryweapon, both the soldier and the com-mander who knew of the conviction andyet authorized issuance of a weaponwould be in violation of the law. BothArmy 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 anindividual has committed a“misdemeanor crime of domestic vio-lence.”(Continued on Page 2)The ETHICS MATTERS:Government Travel Cards . . . . . .14 FROM THE FTC:The Credit Repair OrganizationsAct . . . . . . . . . . . . . . . . . . . . . . . 15AT THE MOVIES:ZERO DARK THIRTY . . . . . . . . . . . . . 16JAG BOOKSHELF:THE FINISH: THE KILLING OFOSAMA BIN LADEN . . . . . . . . . . . . . 16 HEY. . . COMMANDER:BARS TO REENLISTMENT. . . . . . . . . . . . 10 TALKING ABOUT:ARMY COUNSELINGIN THE 21ST CENTURY . . . . . . . . . . . . . .11 THE ARMY’S LEGAL EAGLES:(from NCO Journal). . . . . . . . . . . . . 4 FROM THE CHIEF PARALEGAL NCO:IT’S ALL ABOUT SERVICE . . . . . . . . . . . 7AdvocateAdvocate
  2. 2. sess firearms or ammunition,and advise the soldier todispose of privately-ownedfirearms and ammunitionlawfully. The commandershould detail the soldier toduties that do not require thebearing of weapons or am-munition. No adverse actionmay be taken solely on thebasis of a soldier’s inability to possess aweapon if the act of domestic violence lead-ing to the conviction occurred on or beforeSeptember 30, 1996. Commanders may initi-ate adverse action (e.g. bar to reenlistment,administrative elimination) if the act of do-mestic violence occurred after September30, 1996 after providing a soldier reasonabletime to seek expunction or a pardon. If asoldier indicates that he does not knowwhether he has a qualifying conviction, thecommander should grant the soldier a rea-sonable amount of time to make an inquiryto appropriate authorities, but should sus-pend the soldier’s authority to possess fire-arms and ammunition during the periodgranted to conduct the inquiry. In all cases,the commander should consult the Office ofthe Staff Judge Advocate to ensure that thelaw applies to a soldier before action is takento comply with the law.HOW WILL THE ARMY NATIONALGUARD DISCOVER QUALIFYINGCONVICTIONS?Commanders will notify all soldiers thatit 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 personnelfiles checks and will report through com-mand channels soldiers known to have quali-fying convictions and soldiers reasonablybelieved to have such convictions.2(Continued from Page 1)In order for the Amendment to apply toan individual, that individual must have beenconvicted 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 threeremaining portions of the six-part test arewhether the individual was represented byan attorney, whether the case was tried be-fore a jury, and whether the conviction hasbeen expunged or the individual pardoned.Of particular note to soldiers, the Lauten-berg language does NOT apply to summarycourt-martial convictions, imposition of non-judicial punishment (Article 15), or deferredprosecutions (or similar alternative disposi-tion) in a civilian court.WHAT SHOULD SOLDIERS DO?Soldiers who are concerned that theAmendment applies to them should contacttheir attorney or the Legal Assistance Officefor an appointment for help in determiningtheir legal status. The soldier should attemptto get a record of the conviction prior to theappointment. Additionally, if soldiers arepending misdemeanor charges in civiliancourt systems for domestic violence, a legalassistance attorney can advise them aboutthe impact of a conviction and any optionsavailable for deferred adjudication or alter-nate resolution.WHY SHOULD SOLDIERS SEEKLEGAL ASSISTANCE?Depending on when the domestic vio-lence occurred, the related conviction maybe the basis for separation from the ArmyNational Guard. The conviction also may bethe basis for other administrative actions,such as reclassification or reassignment.WHAT SHOULD COMMANDERS DO?If a commander knows or has reasonablecause to believe a soldier has been convictedof a misdemeanor crime of domestic vio-lence, the commander should not issue gov-ernment-owned or privately-owned firearmsor ammunition to that soldier. If the soldierhas 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 ofdomestic violence” as defined in the amend-ment does not include a summary court-martial conviction or imposition of non-judicial punishment (Article 15, UCMJ), ordeferred prosecutions (or similar alternativedispositions) in a civilian court. The recentamendment should not be construed to applyto major military weapons systems or “crewserved” military weapons and ammunition(tanks, missiles, aircraft, etc.) absent anopinion from the Department of Treasury tothe contrary. The amendment shall be con-strued to apply outside United States terri-tory as a matter of DoD policy.ELEMENTS OF MISDEMEANORCONVICTION OF DOMESTICVIOLENCEA person shall not be considered as havingcommitted a “misdemeanor crime of domes-tic violence” for purposes of the firearmsrestriction recently added to the Gun ControlAct unless all of the following six elementsare present: the person was convicted of a misde-meanor crime; the offense had as an element the use orattempted use of physical force, orthreatened use of a deadly weapon; the convicted offender was at the timeof the offense: a current or former spouse, parentor guardian of the victim, a person with whom the victimshared a child in common, a person who was cohabitatingwith or has cohabitated with thevictim as a spouse, parent, orguardian, or a person who was similarly situatedto a spouse, parent, or guardian ofthe victim; the convicted offender was representedby 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 orthe person knowingly and intelligentlywaived the right to have the case triedby a jury, and; the conviction has not been expunged orset aside, or the convicted offender hasnot been pardoned for the offense orhad civil rights restored, unless the par-don, expungement, or restoration ofcivil rights provides that the person maynot ship, transport, possess, or receivefirearms.
  3. 3. 3ABOUT DOMESTIC VIOLENCEDomestic violence, also known as do-mestic abuse, spousal abuse, battering,family violence, and intimate partner vio-lence (IPV), is a pattern of behavior whichinvolves the abuse by one partner againstanother in an intimate relationship such asmarriage, cohabitation, dating or within thefamily. Domestic violence can take manyforms, 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 illnesscan be co-morbid with abuse, and presentadditional challenges in eliminating domes-tic violence. Awareness, perception, defini-tion and documentation of domestic violencediffer widely from country to country, andfrom era to era.Domestic violence and abuse is not lim-ited to obvious physical violence. Domesticviolence can also mean endangerment,criminal coercion, kidnapping, unlawfulimprisonment, trespassing, harassment, andstalking.AROUND THE WORLDLaws on domestic violence vary by coun-try; while it is generally outlawed in westernsociety, this not the case in many developingcountries. For instance, in 2010, the Su-preme Court of United Arab Emirates ruledthat a man has the right to physically disci-pline his wife and children as long as hedoes not leave physical marks. The socialacceptability of domestic violence also dif-fers by country. While in most developedcountries domestic violence is consideredunacceptable 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 ahusband is justified in hitting or beating hiswife 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, theDistrict of Columbia, American Samoa,Guam, the Northern Mariana Islands, theU.S. Virgin Islands and Puerto Rico definedomestic violence in their civil statutes.These statutes typically are found in domes-tic relations laws but also may be found infamily or social services laws, and they pro-vide a means for victims of domestic vio-lence to obtain civil orders of protection andother protective services.IN THE UNITED STATESApproximately 40 States, the Virgin Is-lands, and Puerto Rico list in their statutesspecific acts that constitute domestic vio-lence. Most common among these are sexualassault, assault or battery, causing physicalharm 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 includechild abuse in their civil definitions of do-mestic violence. The civil definitions inColorado include violence or threatenedviolence against an animal that is owned bya victim of domestic violence, and injuringor killing an animal as a means of harassinga person is considered domestic violence inNevada.CRIMINAL LAWSApproximately 34 States, American Sa-moa, Guam, and Puerto Rico define domes-tic violence in their criminal or penal codes.These definitions generally describe acts thatcan lead to arrest and misdemeanor or felonyprosecution.In criminal laws, domestic violence maybe defined as "any criminal offense involv-ing violence or physical harm or threat ofviolence or physical harm" committed byone family or household member againstanother. Other terms used across the Statesinclude "domestic assault," "domestic bat-tery," "domestic abuse," or "assault against afamily or household member." The specificlanguage and terminology used by States incriminally defining domestic violence variesconsiderably.Approximately 16 States, American Samoa,and Puerto Rico list in their statutes specificacts that constitute domestic violence. Mostcommon among these are assault or battery,sexual assault, harassment, stalking, tres-passing, kidnapping, and burglary or rob-bery. Arizona, Utah, and American Samoainclude child abuse in their criminal defini-tions of domestic violence. Animal cruelty isincluded in the criminal definitions in Ar-kansas.PERSONS INCLUDEDIN THE DEFINITIONSIn all States, the District of Columbia, theU.S. territories, and Puerto Rico the statutesspecify that only persons who have somesort of personal relationship are protected bythe domestic violence laws. The most com-mon relationships listed include spouses andformer spouses, persons who are currentlyliving together, who have previously livedtogether, are involved or were previouslyinvolved in a dating or intimate relationship,or who have a child in common, whether ornot they have ever lived together.Approximately 34 States, American Sa-moa, Guam, the Northern Mariana Islands,the Virgin Islands and Puerto Rico, includechildren as a class of protected personswithin their definitions of domestic violence.Most commonly, a child who is a member ofthe household or a child of either adult in therelationship is protected. Seven States andPuerto 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. 4. 4Published as a Courtesy from NCO JOURNAL
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  9. 9. 9AFTER reading NCO Journal’sexcellent article on the job doneby Army Paralegals, it got methinking. It seems curious to methat when one of our judge advo-cates or paralegals walk alongPRNG Headquarters to one ofthe many offices we may visit inthe course of our duties, manypeople may think at times thatsomeone is in trouble, or some-thing bad is about happen. Well,that may be the case, but most ofthe time we’re just looking forassistance to resolve some situation broughtto our attention by one of the many soldiers,airmen and their families who come by theOffice of the Staff Judge Advocate on adaily basis.As part of the Judge Advocate General’sCorps we’ve always had a clear understand-ing of what our mission entails; to develop,employ, and retain One Team of proactiveprofessionals, forged by the warrior ethos,who deliver principled counsel and mission‐focused legal services to the Army and theNation. It’s all about service.It’s the kind mentality that should be apermanent part of our institution, and whichsometimes gets lost in the hustle and bustleof everyday work. As a result, some choosenot to seek out proper assistance, becausethey feel that they will not, or cannot obtainit. We see this many times when people arereferred to our office by other sections forany reason, not necessarily being a matterfor the legal office, and which could havebeen solved just as easily, by making theextra effort of doing a simple internet search.As consequence, our paralegals, regard-less of their individual backgrounds andcivilian experiences, have to be very creativeand versed in many areas of everyday situa-tions, in order to provide that assistancemany have come to expect. More than whattheir job description as 27Ds MOS mightentail, our paralegals have met the challengehead on by educating themselves in numer-ous fields, many way off the beaten path ofwhat their administrative qualifications are“supposed” to be.The most common scenario we encounterwhile providing legal assistance to our cli-ents, is the infamous “Someone told methat…”, as in someone told me that I can dothis or that, or whatever. There have alwaysbeen what we in popular slang call “barrackslawyers” (abogados de pasillo), persons whobelieve they know what needs tobe done and what the rules say.They mean well, but more oftenthan not, they are not correct intheir assessments. Many havegone by what these “barrackslawyers” advise them, and havefound themselves in troublesomesituations.We’ve made efforts to get theright information out to servicemembers and their families, in anattempt to minimize the ill effectsof the “barracks lawyer”. Thispublication, The Advocate, is oneof such efforts, and thankfully, ithas been widely accepted by theNational Guard community hereand in the Continental US. It isour hope that through our preven-tive law program, we can assistyou in preemptively addressingany legal concerns you may have. The para-legals and judge advocates in our OSJA havethe proper training, knowledge and experi-ence to provide you with the right informa-tion. Give them the opportunity to serve youas 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 GuardSonia Marisa Franco López was bornin Toa Baja Puerto Rico. She joined thePuerto Rico Army National Guard in Janua-ry of 1983 and was a part of the Quartermas-ter Corps; Chief Warrant Officer 3 Francopassed away on March 28, 2013; she was 53years old. At the time of her passing she wasassigned to the Puerto Rico Army NationalGuard Element Joint Force Headquarters,after a career that lasted more than 30 yearsof Honorable service as a military memberand technician.Chief Franco’s awards and decorationsinclude the Meritorious Service Medal, theArmy Commendation Medal (2), the ArmyAchievement Medal, the Army ReserveComponent Achievement Medal (2), theNational Defense Service Medal (2), theGlobal War on Terrorism ExpeditionaryMedal, the Global War on Terrorism ServiceMedal, the Noncommissioned Officer(NCO) Professional Development Ribbon(2), the Army Service Ribbon, the OverseasService Ribbon, the Armed Forces ReserveMedal with M Device and the NATO non-Article 5 Medal.I had the privilege of meeting CW3Franco, during our service in 2010-2011with the 92ndMEB to Kosovo, in support ofKFOR13. She was a special person and anoutstanding officer, who always had thewelfare of her colleagues and subordinatesabove her own. She always had a smile, akind comment and a warm embrace for all ofus. She lived by the army values of Loyalty,Duty, Respect, Selfless Service, Honor, In-tegrity and Personal Courage; and thoughthe Puerto Rico National Guard shines alittle less brighter without her, she leavesbehind an example of dedication to serviceand work ethic that all of us should aspire toachieve. I and many others, who knew herthrough the years, will miss her very much.Rest in Peace old friend.(By: Sgt. Javier Fontánez and the Staff at The Advocate)Sonia M. FrancoChief Warrant Officer 3Oct 20, 1959 - Mar 28, 2013
  10. 10. 10(Continued from Page 1)CRITERIAThere are three criteria justifying initiation of aBar 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 tomeet minimum professional standards. Inability toperform basic tasks associated with their MOS,repeated failure of the Army Physical FitnessTest, or repeated failure to qualify with their as-signed weapon are all examples of un-trainability.Unsuitability is different in that the focus ismore on attitude and motivation. The focus is onwhether 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 tomisconduct may justify a bar on this ground.Finally, single soldiers with dependent familymembers or dual military couples with depend-ents, who are unable to craft an acceptable familycare plan, are subject to a bar.PROCEDUREAny commander in a soldier’s chain of commandmay initiate a bar. Normally, the soldier’s com-pany-level commander will initiate the actionbecause he or she is most likely to have directcontact with the soldier, and be most aware of thesoldier’s successes and shortcomings. A bar isinitiated using DA Form 4126-R. Once the bar isinitiated, the commander will present it to thesoldier. 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 ordisapproval.Upon receipt of the comment of the Soldier, orthe Soldiers refusal to comment, the certificatewill be endorsed personally by each commanderin 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 ofqualifying service for retired pay at ETS, the ap-proval/disapproval authority is the first com-mander, Lieutenant Colonel (O-5) or above, inthe Soldiers normal chain of command. No dele-gation of authority is authorized.(2) For Soldiers with at least ten but less than18 years of qualifying service for retired pay atETS, those with more than 20 years of service atETS, and those when action is taken to extendthe Soldier to complete 20 years of service, theapproval/disapproval authority is the first com-mander, Colonel (O-6) or above, in the Soldiersnormal chain of command. No delegation of au-thority is authorized.(3) Soldiers, who upon ETS, will have at least18 but less than 20 years of qualifying service,will be allowed to extend to the point where theycould attain 20 years. They may, after the exten-sion is executed, be barred. The approval/disapproval authority for this bar is TAG. TheseSoldiers may be processed for separation beforethey attain 20 years of service but will not beseparated before that point without approval ofChief, NGB.Any of these higher level commanders maydisapprove the proposed bar.APPEALSWhen the BAR has been approved, the Sol-diers unit commander will use a counseling state-ment to inform the Soldier of the right of appealwithin 15 days. The appeal will be forwardedthrough command channels, endorsed personallyby each commander, and approved or disap-proved within 30 days by the authorities shownbelow.(1) Soldiers with less than ten years of qualify-ing service for retired pay at ETS, the appealapproval/disapproval authority is the first com-mander, COL or above, in the Soldiers normalchain of command.(2) Soldiers with ten or more years of qualifyingservice and those with more than 20 years forretired pay at ETS, the approval/disapprovalauthority 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 custodianof the Soldiers personnel records will:(1) Give the original to the Soldier.(2) Submit a copy to the State PSB/PSC viaiPERMS (PSDR clerks).An entry "Not recommended for further ser-vice" will be made on DA Form 1315 (RetentionData Card) or a localized approved substitute.An approved BAR will be reviewed by theappropriate unit commander every six months(for M-Day Soldiers) or three months (for AGRSoldiers) after the date of approval, and 30 daysbefore the Soldiers scheduled departure from theunit or discharge from the service.If, upon review, the commander feels theBAR should remain in effect, the custodian of theSoldiers personnel record will be notified and willenter on the Soldiers DA Form 2-1, "Bar to re-enlistment, immediate reenlistment or extensionreviewed; not recommended for removal (date)."The unit commander will make the same remarkon DA Form 1315 and will notify the Soldier byproviding a reproduced copy of NGB Form 602-R.A recommendation to remove a BAR may besubmitted at any time by the Soldiers unit com-mander, if the Soldier has proven worthy of reten-tion in the ARNG/ARNGUS.(1) Recommendations to remove a BAR willbe submitted in writing through the chain of com-mand and will be endorsed personally by eachcommander.(2) Approval to remove a BAR may be grantedby the same authority that approved the BARoriginally or, if the Soldier has moved to anotherjurisdiction, by a comparable commander in thatjurisdiction.(3) The approved recommendation removingthe BAR will be maintained in the appropriate unitfile. NGB Form 602-R BAR will be removed anddestroyed. The remark "Not recommended forfurther service" and an entry pertaining to "Bar toimmediate reenlistment review; not recom-mended for removal (date)" will be deleted fromDA Form 2-1, per AR 600-8-104 (Military Person-nel Information Management/Records). Thesame remarks on the DA Form 1315 will beerased. The Soldier concerned will be given acopy of the approved recommendation removingthe BAR.If at the time of the second six month (for M-Day) or three month (for AGR) review of a locallyimposed BAR to reenlistment, the commanderdoes not recommend that the BAR be removed,the commander will process the Soldier for sepa-ration per NGR 600-200 and the appropriatechapter(s) of AR 135-178. The term processedfor separation means that separation action willbe initiated and processed through the chain ofcommand 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 orretention and the characterization of service to beawarded. See subparagraph k below for specialprovisions for Soldiers barred for APFT failure.Processing for separation will be initiated afterthe first review for Soldiers who receive a locallyimposed BAR to reenlistment after the secondfailure of the APFT. Soldiers who receive a locallyimposed BAR after the first APFT failure will beprocessed for separation after the second review.DISCHARGE WITH A BARNGB Form 22 (Report of Separation and Recordof Service) of otherwise qualified Soldiers, whoare discharged with a BAR in effect, will be anno-tated "Bar to Reenlistment or Extension (dated) ineffect on the date of discharge in the remarkssection, block 18. Block 26, Reenlistment Eligibil-ity, will be coded RE 3.
  11. 11. COUNSELING is a type of communicationthat leaders use to empower soldiers toachieve goals. It is much more than provid-ing feedback or direction. It is communica-tion aimed at developing a soldier’s abilityto achieve individual and unit goals. Soldierswant to be counseled and will respond tocounseling because they want to know whatit takes to be successful in today’s Army.Regardless of your leadership position, yoursoldiers see you as successful simply be-cause you have achieved the level they arestriving to accomplish. Leaders must provideeach of their soldiers with the best possibleroad 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.LeadershipInfluencing people by providingpurpose, motivation, and directionwhile operating to accomplish themission and improve the organiza-tion.Army ValuesLoyalty, Duty, Respect, SelflessService, Honor, Integrity, & PersonalCourage.The Army Values of Loyalty, Duty, &Selfless Service require us to counsel. TheArmy Values of Honor, Integrity, & Per-sonal Courage require us to give straightfor-ward Feedback. The Army Value of Respectrequires us to find the best way to communi-cate that feedback.Leadership DoctrineArmy Leadership; FM 6-22, 12 October2006, Appendix “B”- Counseling(Supersedes FM 22-100)Competent leaders of character are neces-sary for the Army to meet the challenges inthe 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 fundamentalprinciples for all officers, noncommissionedofficers, and Army civilians across all com-ponents.This manual uses the BE-KNOW-DOconcept to express what is required of Armyleaders. It is critical that Army leaders beagile, multi-skilled pent athletes who havestrong moral character, broad knowledge,and keen intellect. They must display theseattributes and leader competencies bound bythe concept of the Warrior Ethos. Leadersmust be committed to lifelong learning toremain relevant and ready during a career ofservice to the Nation.Army leaders must set the example,teach, and mentor, and this manual providesthe principles, concepts, and training to ac-complish this important task on whichAmerica depends.Counseling perceptionsCounseling is generally perceived as be-ing negative; normally associated with anevaluation requirement, problem, or poorperformance. Documenting counseling isseen as bad news - writing things down isperceived as negative. This may be a fairassessment considering current counselingtechniques, which for the most part are usu-ally one way/directives (I talk, you listen),that do not result in a concrete action planand are based purely on past performance.CounselWebster’s Dictionary defines counsel as-a : advice given especially as a result ofconsultation b : a policy or plan of action orbehaviorFM 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 importantleadership development responsibilities forArmy leaders. The Army’s future and thelegacy of today’s Army leaders rests on theshoulders of those they help prepare forgreater responsibility.Developmental CounselingPurposeTo develop subordinates to achieve per-sonal, professional development and organ-izational goals and to prepare them for in-creased responsibilities.Types of Developmental counselingDevelopmental 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 CounselingEvent-oriented counseling involvesa specific event or situation. It mayprecede events such as appearing be-fore a promotion board or attendingtraining. It can also follow events suchas noteworthy duty performance, a problemwith performance or mission accomplish-ment, or a personal issue. Examples of event-oriented counseling include the following: Instances of superior or substandardperformance.Reception and integration counseling.Crisis counseling.Referral counseling.Promotion counseling.Separation counseling.Counseling for Specific InstancesSometimes counseling is tied to specificinstances of superior or substandard dutyperformance. Leaders use counseling ses-sions to convey whether or not the perform-ance met the standard and what was doneright or wrong. Successful counseling forspecific performance occurs as close to theevent as possible. Leaders should counselsubordinates for exceptional as well as sub-standard duty performance. The key is tostrike a balance between the two.11
  12. 12. 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 theorganization. Actively listen to the subordinate’s re-sponse. Remain neutral. Teach the subordinate how to meet thestandard. Be prepared to do some personal coun-seling, since a failure to meet the stan-dard may be related to or be the resultof an unresolved personal problem. Explain to the subordinate how an indi-vidual development plan willimprove performance and iden-tify specific responsibilities inimplementing the plan. Continueto assess and follow up on thesubordinate’s progress. Adjustthe plan as necessary.Professional Growth CounselingProfessional growth counseling in-cludes planning for the accomplish-ment of individual and professionalgoals. During the counseling, leaderand subordinate conduct a review toidentify and discuss the subordinate’sstrengths and weaknesses and to cre-ate an individual development planthat builds upon those strengths and com-pensates for (or eliminates) weaknesses.The Leader as a CounselorDevelopmental counseling must be a sharedeffort. Leaders assist in identifying strengthsand weaknesses and creating plans of action.Once a plan is agreed upon, support the Sol-dier throughout the plan implementation andcontinued assessment. To achieve success,soldiers must be forthright in their commit-ment to improve and candid in their ownassessments and goal setting.While it is not easy to address every possiblecounseling situation, leader self-awarenessand an adaptable counseling style focusingon key characteristics will enhance personaleffectiveness as a counselor. These key char-acteristics include: Purpose: Clearly define the purpose ofthe counseling. Flexibility: Fit the counseling style tothe character of each subordinate and tothe 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 subordinatesusing spoken language, nonverbal ac-tions, gestures, and body language. Ef-fective counselors listen more than theyspeak. Support: Encourage subordinatesthrough actions while guiding themthrough their problems.Qualities of the CounselorArmy leaders must demonstrate certainqualities to be effective counselors. Thesequalities include respect for subordinates,self-awareness and cultural awareness, em-pathy, and credibility. Self-aware Armyleaders consistently develop and improvetheir own counseling abilities. The tech-niques needed to provide effective counsel-ing vary from person to person and sessionto session. However, general skills that lead-ers will need in almost every situation in-clude active listening, responding, andquestioning.Active ListeningActive listening helps communicate recep-tion of the subordinate’s message verballyand nonverbally. To capture the messagefully, leaders listen to what is said and ob-serve the subordinate’s manners.RespondingA leader responds verbally and nonverballyto show understanding of the subordinate.Verbal responses consist of summarizing,interpreting, and clarifying the subordinate’smessage. Nonverbal responses include eyecontact and occasional gestures such as ahead nod.QuestioningAlthough focused questioning is an impor-tant skill, counselors should use it with cau-tion. Too many questions can aggravate thepower differential between a leader and asubordinate and place the subordinate in apassive mode. The subordinate may alsoreact to excessive questioning as an intrusionof privacy and become defensive. During aleadership development review, ask ques-tions to obtain information or to get the sub-ordinate to think deeper about a particularsituation. Questions should evoke more thana yes or no answer. Well-posed questionsdeepen understanding, encourage furtherexplanation, and help the subordinate per-ceive the counseling session as a construc-tive experience.Counseling ErrorsDominating the counseling by talking toomuch, giving unnecessary or inappropriateadvice, not truly listening, and projectingpersonal 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 improperfollow-up.Accepting LimitationsArmy leaders cannot help everyone inevery situation. Recognize personallimitations and seek outside assis-tance, when required. When neces-sary, refer a subordinate to the agencymore qualified to help.The Four Stage Counseling Process Identify the need for counseling. Prepare for counseling. Conduct counseling. Follow-up.Identify the NeedUsually organizational policies focusa counseling session. However, leaders mayconduct developmental counseling wheneverthe 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 providingfeedback to the subordinate in the form ofcounseling.PrepareSuccessful counseling requires preparationin 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. 13. 13Conduct Counseling SessionLeaders use a balanced mix of formal andinformal counseling and learn to take advan-tage of everyday events to provide soldierswith feedback. Counseling opportunitiesoften appear when leaders encounter subor-dinates in their daily activities in the field,motor pool, barracks, and wherever elseSoldiers perform their duties. Even during ad-hoc counseling, leaders should address thefour basic components of a counseling ses-sion: Opening the session. Discussing the issues. Developing a plan of action. Recording and closing the session.Follow UpLeader ResponsibilitiesThe counseling process does not end withthe initial counseling session. It continuesthroughout the implementation of the plan ofaction, consistent with the observed results.Leaders must consistently support their sub-ordinates in implementing the plan of actionby teaching, coaching, mentoring, or provid-ing additional time, referrals, and other ap-propriate resources. Additional measuresmay include more focused follow-up coun-seling, informing the chain of command, andtaking more severe corrective measures.Assess the Plan of ActionDuring assessment, the leader and the subor-dinate jointly determine if the desired resultswere achieved. They should determine thedate for their initial assessment during theinitial counseling session. The plan of actionassessment provides useful information forfuture follow-up counseling sessions.The Developmental Counseling FormThe Developmental Counseling Form (DAForm 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 beenexhausted.The Importance of Praise to a SoldierSuccessful leaders use praise effectively.Identifying shortcomings and then tellingsoldiers what must be improved are aleader’s responsibility. Praising soldiers fortheir improvement and proper performanceis even more important.Sincere and honest praise lets soldiers knowthat their leader appreciates their efforts.Praising subordinates is a simple act thattakes little time but will provide many bene-fits. With a few positive, encouraging wordsand a pat on the back, the leader can recog-nize and reinforce desired behavior and per-formance. A soldier who feels that his bestefforts are valued by his leader is likely tocontinue in those efforts.It is important that the soldier know he isviewed as a valuable member of the unit.With praise, leaders can create and reinforcea positive self-image in their soldiers, mak-ing them feel like winners. This is most de-sirable in confusing or unclear situationswhere the soldier is trying to do the rightthing but is uncertain of his actual perform-ance.Some soldiers are assigned necessary butboring and not challenging tasks. They, too,must be praised for their contributions to theoverall success of the unit. Praise should bea part of every leader’s normal day-to-dayleadership action. Its contribution to soldierdevelopment cannot be overstated.Legal AssistanceIf you have questions or concerns regardingproper counseling, you can contact the Of-fice of the Staff Judge Advocateat Tel. No. (787) 289-1411
  14. 14. manders and supervisorsare responsible for theeffective management ofthe Travel Charge CardProgram in their organiza-tions. Commanders andsupervisors should con-sider all the facts andcircumstances in reachinga disposition that is war-ranted, fair and appropri-ate.Commanders and Super-visors have the following options availableto 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 USCjurisdiction) Administrative separationb. Military TechniciansTechnician Personnel Regulation (TPR)52, Disciplinary and Adverse Actions, listsamong its offenses the Misuse of Govern-ment charge card. These offenses are dividedinto two categories: Deliberate or negligent travel card mis-use, abuse, delinquency and fraud Purchase card use for deliberate or neg-ligent illegal, improper or incorrectpurchase.The regulation, depending on the severityof the situation, contemplates sanctionsranging from letters of reprimand, suspen-sion or removal.14Salary OffsetDoD Financial Management Regulation,Volume 9, Chapter 3 states that upon delin-quency of a Government Card Holder thebank can request to DoD, through DFAS tobegin the process of salary offset. All invol-untary salary offsets are limited to a maxi-mum of 15% of the employees disposablepay. DoDFMR, Volume 8, Chapter 8 estab-lishes the specific procedure to be followedin these cases.Suspension of Security ClearanceThe commander or head of agency isauthorized to suspend an individual’s classi-fied access when it has been reported thatsaid servicemember or employee has mis-used or abused his Government travel orpurchase card. The suspension process isdetailed in the Assistant Secretary of De-fense Memorandum for the Secretaries ofthe Military Departments, dated 4 November2002.We now face stricter rules for issuing andtracking government charge cards under thenew Government Charge Card Abuse Pre-vention Act of 2012. The law re-quires agencies to create internalsafeguards for spotting and stop-ping unauthorized purchases, in-cluding: Running credit checks fortravel-card users and restrictingaccess for those with poor credit Maintaining records ofcardholders and their transac-tion limits Periodically reviewingusers to determine if theres ifstill a need for them to usecharge cards Providing training for charge-card users and Directing agency inspectors general toconduct periodic risk assessments andaudits to identify fraud.ConclusionThis is a summary of the current guid-ance and options available to TAG, com-manders and supervisors, when cases ofmisuse of Government Travel or PurchaseCards 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 questionsregarding this or any other Ethics matters,contact the PRNG Office of the Staff JudgeAdvocate, at Tel. (787) 289-1411.By: Maj. William E. O’ConnorFulltime Judge AdvocatePuerto Rico National GuardTHE ARMY TRAVEL CHARGE CARDprogram is part of the Government TravelCharge Card program, which was imple-mented to provide a more efficient means ofpaying for official travel related expenses forgovernment travelers. The government travelcharge card is a safe convenient tool you canuse to pay your travel expenses. In fact, theentire process is very simple. You travel,you charge official travel expenses to yourtravel card and (upon return) you file yourtravel claim and use the split disbursementoption to pay off those charges.This simplicity, however, getscomplicated when you mis-use your Travel Charge Card.Since the establishment of theprogram the number of casesof improper use of “the card”has increased exponentially,creating a problem of incredibleproportions for not just theArmed Forces, but the federalgovernment in general. TheDepartment of Defense has beencracking down on these cases ofmisuse, and here in the NationalGuard, we have begun to do thesame.Bottom Line… It is Departmentof Defense (DoD) policy, that ineach and every case of improper, fraudulent,abusive or negligent use of a governmentpurchase or travel charge card by military orDoD civilian personnel the appropriate cor-rective or disciplinary action must be taken.Misuse of a Government charge cardincludes any improper or fraudulent use of atravel 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 currentpolicies reflect that the best way to preventgovernment card misuse is through training,leadership and discipline. When confrontedwith a government card misuse case, simplyignoring the problem is not an option. Com-
  15. 15. profit status — may charge high fees or hidetheir fees by pressuring people to make“voluntary” contributions that only causemore debt.If you’re thinking about filing for bank-ruptcy, be aware that bankruptcy laws re-quire that you get credit counseling from agovernment-approved organization withinsix months before you file for bankruptcyrelief. You can find a state-by-state list ofgovernment-approved organizations, the website of the U.S.Trustee Program. That’s the organizationwithin the U.S. Department of Justice thatsupervises bankruptcy cases and trustees. Bewary of credit counseling organizations thatsay they are government-approved, but don’tappear on the list of approved organizations.Reputable credit counseling organizationscan advise you on managing your moneyand debts, help you develop a budget, andoffer free educational materials and work-shops. Their counselors are certified andtrained in the areas of consumer credit,money and debt management, and budget-ing. Counselors discuss your entire financialsituation with you, and can help you developa personalized plan to solve your moneyproblems. 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 avariety of false and misleading statements, as well asfraud by credit repair organizations (CROs). CROs maynot receive payment before any promised service is"fully performed." Services must be under writtencontract, which must include a detailed description ofthe services and contract performance time. CROsmust provide the consumer with a separate writtendisclosure statement describing the consumers rightsbefore entering into the contract. Consumers can sueto recover the greater of the amount paid or actualdamages, punitive damages, costs, and attorneys feesfor violations of the CROA. The states and the FTCmay also enforce the CROA.You can find more information regarding creditreports and DIY credit repair and other topics of inter-est at our Facebook page at or contact the Puerto Rico NationalGuard—Office of the Staff Judge Advocate at Tel No.787-289-1411.15The Credit RepairOrganizations ActThe Credit Repair Organization Act(CROA) makes it illegal for credit repaircompanies to lie about what they can do foryou, and to charge you before theyve per-formed their services. The CROA is en-forced by the Federal Trade Commissionand requires credit repair companies to ex-plain: your legal rights in a written contractthat also details the services theyll per-form your three day right to cancel withoutany charge how long it will take to get results the total cost you will pay any guaranteesWhat if a credit repair company you hireddoesnt live up to its promises? You havesome options. You can: sue them in federal court for your actuallosses or for what you paid them,whichever is more seek punitive damages — money topunish the company for violating thelaw join other people in a class action law-suit against the company, and if youwin, the company has to pay your attor-neys feesReport Credit Repair FraudState Attorneys GeneralMany states also have laws regulatingcredit repair companies. If you have a prob-lem with a credit repair company, report it toyour local consumer affairs office or to yourstate attorney general (AG).Federal Trade CommissionYou also can file a complaint with theFederal Trade Commission. Although theFTC cant resolve individual credit disputes,it can take action against a company iftheres a pattern of possible law violations.File your complaint online at or call 1-877-FTC-HELP.Where to Get Legitimate HelpJust because you have a poor credit his-tory doesn’t mean you can’t get credit.Creditors set their own standards, and not alllook at your credit history the same way.Some may look only at recent years toevaluate you for credit, and they may giveyou credit if your bill-paying history hasimproved. It may be worthwhile to contactcreditors informally to discuss their creditstandards.If you’re not disciplined enough to createa budget and stick to it, to work out a repay-ment plan with your creditors, or to keeptrack of your mounting bills, you might con-sider contacting a credit counseling organi-zation. Many are nonprofit and work withyou to solve your financial problems. Butremember that “nonprofit” status doesn’tguarantee free, affordable, or even legitimateservices. In fact, some credit counselingorganizations — even some that claim non-PUERTO RICO NATIONAL GUARD—SUICIDE PREVENTION PROGRAMCW2 NYLSA PACHECO DR. WALESKA SANTIAGO, PSY.DSUICIDE PREVENTION PSYCHOLOGICAL HEALTHPROGRAM MANAGER PROGRAM DIRECTOR787-289-1400 X. 1106 787-239-5608787-529-5196 ONESOURCE 1-877-888-0727 (EN ESPAÑOL)
  16. 16. Zero Dark Thirty receivedwide critical acclaim and wasnominated for five Oscars forthe 85th Academy Awards, in-cluding Best Picture, Best Ac-tress and Best Original Screen-play. The film won one, for BestSound Editing.Zero Dark Thirty earned fourGoldenGlobe Awardnominations,includingBest PictureDrama, BestDirector, andBest ActressDrama.The filmsgraphic de-piction oftorture hasgeneratedcontroversy,with some critics describing itas pro-torture propaganda, andother critics describing it as ananti-torture exposure of interro-gation practices. In addition, thechairman of the US House com-mittee on homeland securitycharged that the filmmakerswere given improper access toclassified materials, which theydenied. Subsequent examina-tions found no evidence to sup-port the charges.Zero Dark Thirty is militaryslang for an unspecified time inthe earlyhours of themorningbefore dawn.The rele-vance of thisterm to thefilm is thatthe raid onOsama binLadens quar-ters was exe-cuted be-tween mid-night and twooclock in the morning on May2, 2011. It also symbolizes theveil of darkness and secrecy thatwas cast over the decade-longmission to capture bin Laden.TheAdvocateA Publication from the Office of the Staff Judge AdvocateStaff Judge AdvocateCol. Orlando A. IzquierdoEDITORIAL BOARDFulltime Judge AdvocateMaj. William E. O’ConnorChief Paralegal NCOSgt. 1st Class Francisco I. Chiroque, J.D.Paralegal NCOStaff Sgt. Jeannette M. DiazParalegal NCOSgt. Javier Fontanez, J.D.The Adjutant GeneralCol Juan J. Lamela MedinaDirector of the Joint StaffCol Marta CarcanaThe materials and information on this publication aremade available by the PRNG OSJA for informationand entertainment purposes only. It does notconstitute legal advice. This publication is notintended as advertising and it does not create anattorney-client relationship. Persons reading theinformation on this publication should not act uponthe information provided without seeking profes-sional legal counsel.16ZERO DARK THIRTY is a 2012American historical drama filmthat dramatizes the United Statesoperation that found and killedOsama bin Laden, leader of al-Qaeda. Billed as "the story ofhistorys greatest manhunt for theworlds most dangerous man", theplot covers the ten years since theattacks on September 11, 2001 upto the final operation in 2011.“Today, at my direction, theUnited 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 civiliancasualties. After a firefight, theykilled Osama bin Laden and tookcustody of his body”President Barack ObamaMay 1, 2011In his latest book, The finish,author Mark Bowden takes usinto the 10 year manhunt thatended in the killing of Osamabin Laden in Pakistan on May2011. This book contains per-sonal accounts and interviewswith PresidentObama and otherkey players thatled to the mis-sion to raidOsama binLaden’s com-pound. Theauthor takes usinto both therooms in which the decisionswere made and into Pakistanwere the mission took place.The term “finish” refers tothe third prong in the doctrine of“F3EAD”. This stands forFind, Fix, Finish Exploit, Ana-lyze, Disseminate. In essence itis the result of the lessonslearned during the last decade ofconflict. Simply put it is Amer-ica’s offensive strategy on howto destroy a terror network.According to the author, thiscapability is a “remarkable fu-sion of instant global telecom-munications, drones, computerdata storage, cutting edge soft-ware, experienced analysts,stealth helicopters, precisionmunitions, and the operationalskills of pilotsand shooterswho couldexecute strikeswith greatsurprise andskill virtuallyanywhere inthe world”.This bookoffers an interesting study of theapplication of the basic princi-ples of the law of war and theF3EAD doctrine. It also dis-cusses how technology couldenhance compliance with thelaw of armed conflict. It is anexcellent book for those who areinterested in military history andcurrent issues.Mark Robert Bowden (born July17, 1951) is anAmerican writer and a contributing editor atVanity Fair. From 1979-2003, Bowden was astaff writer for The Philadelphia Inquirer. Overthe years, he has written for The New Yorker,Mens Journal, The Atlantic, Sports Illustrated,and Rolling Stone. As a result of his bookBlack Hawk Down: A Storyof Modern War,Bowden has received international recognition.The book was made into a 2001 movie directedbyRidleyScott.