What It Means To Be “Flagged” – for Military Justice

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To anyone outside the military, being “flagged” as an employee might sound like a good thing…. After all, flagged can mean “picked” or “selected.” Perhaps as a civilian employee, it means they’ve been selected as a good performer or identified as someone with special talent or abilities.

Not so in the Army.

In the Army, being “flagged” is definitely a bad thing—all Soldiers know that.  Unfortunately, that’s about all that most (including senior NCOs and Officers) know about being flagged is that it’s “bad.”

So, what does it really mean to be flagged?  Here are the basics:

What is a flag?  When a Soldier is flagged by the Army, it means that he is not eligible for certain favorable personnel actions. These actions include reenlistment, a permanent change of station (PCS), promotion (pinning on OR selection by a board), military awards and decorations, and military schools.  It can also interfere with non-military activities that are based on service, such as using tuition assistance benefits. And that’s not necessarily everything, as a flag can involve other measures determined by the commander.

What causes a flag?  A flag can be initiated by the commander for a variety of reasons, such as failing a Physical Fitness Test (APFT) or weight standards, being arrested or convicted of a crime, or being under investigation for misconduct.  Flags have different codes that reflect the particular reason for the flagging action.

What happens with a flag once the Soldier has one?  A flag can be either transferable or non-transferable. A transferable flag means that the member can be PCS’d to another unit or even installation, but a non-transferable flag means that the Soldier must remain in her current unit until the flag is lifted.

A flag will remain in place until the commander determines that the service member is no longer in an unfavorable status. This could take a few days or several months, depending on the circumstances. In at least one example, multiple Soldiers remained flagged for more than a year. A flag is not simply “lifted” when complete. Army flags for some actions will have a code that records whether the reason for the flag was resolved favorably or unfavorably.

What should a Soldier do if they are flagged? Keep the following in mind if flagged:  The member will be (or at least should be) counseled in writing by the commander or first line supervisor.  The flag will be visible on their electronic personnel record. Even if that counseling does not happen, it does not mean the flag is unlawful. Technically, flagged individuals are required to meet with their commander or first line supervisor on a regular basis to discuss the flag and what’s causing it, but that often does not happen. The Soldier may be required to complete additional training or counseling.

If a Soldier is flagged but has not been counseled, they can request through the chain of command to find out why they were flagged. But be careful. This could end up making the Soldier provide information without having been advised of their rights, and statements made that were initiated by the Soldier can probably be used against the service member, and particularly if the command perceives the statement to have been a false official statement under Article 107, UCMJ.

What is important for the service member to know is what they need to do to get the flag lifted. An advocate can make these inquiries for the Soldier.

Soldiers should also be aware of the limitations that the flag places on their career. Some flags are harmless, but many are the first indicator of a potential serious adverse action, such as nonjudicial punishment, or even criminal prosecution or involuntary administrative separation.

If a Soldier gets flagged for misconduct and has any questions, he should consider speaking with a qualified attorney. At the time a flag is first been imposed, an adverse action may be in its early stages: the beginning of what may be a long, difficult legal or administrative process.  Some choose to simply sit and wait, hoping that everything will work itself out. Often, this leads to bad results and may cause missed opportunities to favorably resolve the matter. We pride ourselves on capitalizing on this window to get adverse actions shut down quicklyand favorably for our clients.

 

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