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Articles of the UCMJ

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Counseling for Malingering

Purpose of Counseling

Event-oriented: Article 115, Malingering

To discuss SGT Bland going on sick call to avoid duty



Key Points of Discussion

You are being counseled for malingering. Malingering is defined in the UCMJ as: the feigning of illness or physical disablement or intentional self-injury for the purpose of avoiding work, duty, or service. Anyone found guilty of malingering is subject to court martial under Article 115.

In order to be charged with malingering, the following conditions must be met:

1. that the accused was assigned to and aware of assignment to or availability for the performance of work, duty, or service

2. that the accused feigned illness or physical disablement or intentionally inflicted injury upon himself or herself

3. that the accused's purpose or intent in doing so was to avoid the work, duty, or service

We are all scheduled, on a rotating basis, for two days of radio operator duty with the active special operations team. The schedule is posted at least 30 days in advance.

I am aware that, in the past, you occasionally went on sick call and obtained a DNIF waiver which prevented you from performing this duty. Until now, I considered your occasional sick calls an annoyance that occurred at inopportune times. I had to task someone else, on short notice, to perform this duty in your place. I accepted your explanation that these recurring physical ailments were unfortunate events and did not question your integrity.

But yesterday, our new Operations NCO charted the last 6 months of work schedules and overlaid all leaves, sick calls, and other absences. It became immediately obvious that all of your sick calls and subsequent DNIF waivers over the last 6 months correlated exactly with your scheduled assignment to the special ops team.

Although questioning an NCO's integrity is the last thing I would normally do, in this instance it is apparent that you have been shirking your duties and letting your peers risk their lives in your place. There is absolutely no excuse for this kind of blatant disregard for one's duties and team members. Your actions have exposed you as someone who abused the system to avoid your responsibilities and to hide from danger. You have demonstrated that you cannot function as a team member.

I believe that you meet all conditions (noted above) for and qualify for the charge of malingering. Last 6 months of schedules with annotated duty assignments and associated waivers are attached.



Plan of Action

I recognize that I am a poor supervisor for not noticing this before and will ask for guidance in improving my supervisory skills and understanding of Soldier rights.

I will forward this counseling to the First Sergeant along with my recommendation that you receive a bar to reenlistment. This will prevent you from further service in the Army and limit some of your entitlements and benefits while serving.

I will leave the decision as to whether to proceed with a court martial or Article 15 to the First Sergeant and Commander. Whatever their decision, I will request that you be transferred out of our unit.

I will ask our Commander to contact the Medical center Commander in order to review waiver tracking and procedures.




Session Closing

Individual counseled:                   I agree / disagree with the information above.

Individual counseled remarks:



Signature of Individual Counseled: ___________________ Date: ______


Leader Responsibilities

I will pay closer attention to scheduling and the timing of sick calls and waivers. Any instance of waivers coinciding with special duties will be closely investigated. More than one instance of sick call coinciding with special duty assignments will make a team member subject to transfer out of our unit.




Signature of Counselor: ____________________ Date: ______


Assessment





Counselor: ________ Individual Counseled:_______ Date of Assessment: ____







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