Quote Originally Posted by JAG Major View Post
Although commanders and NCO’s often think that they are doing a Soldier a favor by punishing him “off the record,” this creates a potential for a lot of abuse. Before a Soldier can receive a company grade Article 15 or greater, he receives the benefit of counsel. If the charges cannot be substantiated, the TDS attorney can likely prevent the Soldier from receiving the punishment. Also, before receiving an Article 15, a Soldier can present witnesses on his behalf, make a statement, or turn down the Article 15. Additionally, he can appeal whatever punishment is given. If a first line supervisor decides to mete out punishment as he sees fit, he really isn’t doing anyone a favor.
This goes beyond Squad Leaders using pushups instead of counseling; we're creating Commanders and CSMs who use Administrative Action in lieu of Non-Judicial Punishment. Why? Because its faster, has less oversight and does more damage in many cases.

For example, I had a scenario where a male E-4 (P) and a female E-4 went out and did some things they shouldn't have. As a result of those actions, prior to UCMJ, the male E-4 was withdrawn from the promotion list. While effectively a reduction in rank, it was an administrative action which the Soldier was not entitled to the benefits of TDS; only Legal Assistance.

Likewise, when we have to relieve an individual from a position, regardless of the circumstances, we're arguably doing more to damage their career than an Article 15 with no reduction in rank. Once again, the Soldier isn't entitled to the benefit of TDS or other aspects of due process since Relief For Cause is an Administrative Action.

Just to be clear, I'm not saying there aren't cases where this is warranted and fully believe in the need for due process. But to echo many of the other comments, the UCMJ system has become so cumbersome and toothless that perfectly sanctioned – but still irresponsible – actions are becoming favored when its time to send a message.

To tie it all in to warfighting, it helps develop a mentality that addresses the short term issue "How do I get rid of this problem" rather than looking at the long term consequences of decisions. It trains leaders to do the most convenient thing rather than think about what the right thing really is.