The hypothetical conversation no Brigade Judge Advocate (BJA) wants to have with their Brigade Commander after a Commanding General (CG) meeting:
Brigade Commander: “How many of our actions did the CG sign?”
BJA: “Eight of the ten we submitted, Sir.”
Brigade Commander: “What happened to the other two?”
BJA: “Well, Sir, the packets were missing the correct flags, which we were unable to get in time from the unit or the S1. Without the flags, the Staff Judge Advocate (SJA) wouldn’t accept those last two packets . . . ”
When a regulation says “commanders will impose a flag on a Soldier” under specified circumstances, commanders should waste no time in doing it. It may sound harsh, but failing to promptly impose a mandatory flag can create a host of unwanted and time-consuming problems. Judge advocates’ knowledge about the flagging rules and procedures is a force multiplier.
Take, for instance, Captain Matthew Myer, the Commander whose actions at Wanat Village, Afghanistan, on 13 July 2008, were the subject of two administrative investigations.1 The investigation looked into whether the command failed “to prepare adequate defenses for [their newly built] combat outpost . . . where a mass Taliban attack resulted in the deaths of nine Soldiers and twenty-seven wounded . . . .”2 Procedurally, everything began without a hitch. Where the Army failed, however, was evident in what happened months after the closure of the investigations. While facing follow-on adverse administrative action, Captain Myer showed up on the O-4 promotion list, creating a flurry of consternation and attracting congressional attention.3 Why had the subject of a General Officer Memorandum of Reprimand (GOMOR) for dereliction of duty in combat been selected for a position of greater responsibility? The reason was simple: at the time he received the GOMOR, Captain Myer was not flagged. In the words of John Plotkin, the Forces Command (FORSCOM) legal advisor, “we got smacked for the flag, for not having imposed it.”4
The term “flag” is Army short-hand for the “suspension of favorable personnel actions.”5 Above all else, flags are not to be used as punishment or restriction.6 Flags function like an administrative placeholder while the final disposition of disciplinary or other adverse action is pending.7 There are two types of flags: nontransferable, of which there are fourteen reason code subtypes (A, B ,C, D, E, F, L, M, P, T, U, V, W, and X), and transferable, of which there are three reason code subtypes (H, J, and K).8 For Soldiers facing one or more transferable flags, a Permanent Change of Station (PCS) move is permitted, though the flag follows the Soldier to the new duty location.9 In addition to the different flag codes, there are five report type codes: initial (A); final report—favorable (C); final report—unfavorable (D); final report—other (E); and erroneous report (Z).10
Although a Soldier may be subject to multiple flags for the same underlying issue, each flag requires a reason code and a report type code.11 Consider a Soldier who fails a random unit inspection urinalysis: as a general rule, this Soldier should be flagged using the AA (Adverse Action – Initial), BA (Involuntary Separation – Initial), and UA flag codes (Drug-Related Misconduct – Initial) code subtypes, assuming the commander intends to give the Soldier an Article 15 and initiate the separation process.
Despite the reluctance of some commanders to impose flags, the regulatory guidance is relatively clear: “[t]he suspension of favorable actions on a Soldier is mandatory when military or civilian authorities initiate any investigation or inquiry that may potentially result in disciplinary or adverse administrative action.”12
Investigations include commander’s inquiries, preliminary inquiries, Army Regulation (AR) 15-6 investigations, law enforcement investigations, and some Financial Liability Investigations into Property Loss (FLIPLs).13 At the outset of any such investigation, flags must be imposed for named subjects, respondents, suspects, or accused Soldiers.14 In addition, flags may become mandatory during the investigatory process for other witnesses who are suspected of misconduct.15
Favorable personnel actions include, but are not limited to, awards, school attendance, special passes, advance or excess leave (not regular leave), promotion, reassignment, reenlistment, enlistment bonuses, assumption of command, and separation or retirement.16 Contrary to popular misconceptions, commanders do not have discretion to make exceptions for flagged Soldiers; all favorable actions are suspended for the duration of the flag, which—hopefully—motivates the Soldier to become “unflagged” as quickly as possible.17
The “why” associated with flagging procedures is simple: to withhold favorable actions while Soldiers are subject to the potentially unfavorable consequences of investigative findings.18 While an administrative or criminal procedure is still ongoing, the Army has an interest in facilitating communication with the subject and ensuring the Soldier’s presence at future hearings. By imposing a nontransferable flag, the commander prevents the physical movement of the Soldier to other duty locations.19 On a practical note, many criminal law departments will not accept CG actions for processing without a properly imposed flag and updated record brief reflecting the correct flag(s).
Using a Department of the Army (DA) Form 268, commanders are required to impose flags within three working days after a Soldier is identified as the suspect or subject of an investigation.20 The effective date of a flag is the date on which the circumstances requiring the flag occurred, not the date on which the commander initiates the flag.21 Within two working days, the Soldier’s commander must also notify the Soldier in writing (preferably using a DA Form 4856) of the imposition of the flag, unless doing so would compromise an ongoing investigation.22 Finally, the commander must remove the flag within three working days after the final disposition of the underlying misconduct or deficiency.23 For example, if an AR 15-6 investigation results in no adverse findings against the subject, the commander would lift the flag favorably, allowing the Soldier to resume his eligibility for favorable personnel actions.24 If the investigation results in substantiated findings and the commander intends to take further action—for instance, a GOMOR—they must lift the investigation flag and impose a new flag for adverse action.
Only those officers authorized to direct the original initiation of a flag can direct the removal of the flag.25 Under certain circumstances, however, a flag imposed on a Soldier who is already on a centralized promotion list may only be removed by the commander of Human Resources Command.26 As a general rule, flags play a significant role in the DA promotion process due to the additional administrative procedures associated with Promotion Review Boards for officers whose flags are later lifted favorably.27
5. Pitfalls and Practical Concerns.
Flags can be an administrative headache. Attorneys and paralegals often find themselves frustrated by the speed with which units respond to requests for copies of flags because the overall processing of the underlying legal action can be delayed without an accurate DA Form 268. This may not seem like the end of the world, but when CG meetings only occur once every few weeks, legal shops scramble to submit as many packets as possible. Some shops retain access to personnel systems, which allows attorneys and paralegals to access active flags, though they typically cannot make updates or changes.
In addition, flags must be reviewed at least monthly, and battalion-level commanders are required to conduct a monthly review of all flags older than six months.28 However, because units juggle competing demands for their time, “flag review” often falls to the bottom of the priority list. The negative consequences can be mitigated by proactive involvement of judge advocates (JAs) in what units usually call “non-deployable meetings.” Flags may not be the number one priority of all commanders, but overall readiness is a metric on which units are routinely measured and compared.29 Although there is technically no such thing as a “non-deployable” Soldier based solely on pending legal action, commanders report these Soldiers on the “administratively non-deployable list.”30 Cross-checking this list with the legal tracker helps to identify flags that should have been lifted and those that require reason code revisions. Doing so also enhances the accuracy of the mandatory monthly flag report, which commanders sign and the S1 shop files them in the Soldier’s local personnel file.31
Another problem associated with flags is tied to split responsibility: commanders retain the authority to impose flags, but S1 personnel process the DA Form 268s, maintain flagging records, and risk poor ratings if inspections reveal procedural deficiencies.32 In other words, the unit commander is ultimately responsible for signing on the dotted line, but S1 shops (and even JAs) suffer the consequences of missteps in flag management. The overall effectiveness of flagging is also premised on accurate, consistent coordination between the S1 shop and various other staff sections, including security and retention.33 In a well-oiled machine, this task is an integral part of the unit’s established battle rhythm. As with monthly flag reviews, however, staying on top of this requirement during times of high operational tempo is challenging.
Flags are here to stay. Avoiding them or trying to “game” the system to help a Soldier benefits no one; in fact, failure to impose a timely flag may unintentionally highlight a Soldier’s personal circumstances at higher levels.34 Imposing and monitoring flags should be a priority for every unit commander and S1 shop. No commander needs to deal with the hassle of responding to an Inspector General complaint for being derelict in the management of flags, which is why JAs must remained engaged and proactive throughout the entire flagging process. By gently reminding every commander, no matter how experienced, to impose the appropriate flag at the appropriate time, JAs and paralegals can save commanders valuable time and resources to focus on the mission. TAL
MAJ Ferrell is the Brigade Judge Advocate for the 2d Infantry Brigade Combat Team, 4th Infantry Division, Fort Carson, Colorado.
1. Luis Martinez, Silver Star Winner Reprimanded for Afghan Battle, ABCNews (Mar. 12, 2010, 12:09 AM), https://abcnews.go.com/Politics/Afghanistan/silver-star-winner-capt-matthew-myer-reprimanded-attack/story?id=10080860. See also Luis Martinez, Army Overturns Reprimands of Officers in Battle at Wanat, abcNews (June 23, 2010, 8:09 PM), https://abcnews.go.com/Politics/article/army-overturns-reprimands-silver-star-winner-battle-wanat/story?id=10997089; Inspector Gen., U.S. Dep’t of Def., No. H10L111565072, Oversight Review of Reinvestigation of Combat Action at Wanat Village, Afghanistan, Donald H. Horstman, Deputy Inspector Gen. for Admin. Investigations (22 June 2010), https://media.defense.gov/2010/Jun/22/2001712437/-1/-1/1/ROI-WANAT508.pdf.
2. Luis Martinez, Silver Star Winner Reprimanded for Afghan Battle, ABCNews (Mar. 12, 2010, 12:09 AM), https://abcnews.go.com/Politics/Afghanistan/silver-star-winner-capt-matthew-myer-reprimanded-attack/story?id=10080860.
3. Lieutenant Colonel John L. Plotkin, USA Retired, Remarks at The Judge Advocate General’s Legal Center and School: Advanced Topics in Administrative Law Lecture (Feb. 12, 2019).
5. U.S. Dep’t of Army, Reg. 600-8-2, Suspension of Favorable Personnel Actions para. 1-1. (11 May 2016) (C1, 3 July 2018) [hereinafter AR 600-8-2].
6. Id. para. 2-1b.
7. Id. para. 2-1c.
8. Id. para. 2-1g, 2-2, 2-3, tbl. 2-1.
9. Id. para. 2-8. The failure to maintain transferable flags can actually undermine the intent of a previously executed legal action. On this note, the author speaks from painful personal experience. For example, if a Soldier commits additional misconduct during the period of suspension associated with an Article 15 after transferring to a different unit, the Soldier’s new commander cannot vacate the suspension without some knowledge of the original Uniform Code of Military Justice action. Thus, when properly utilized, the punishment flag (reason code H) puts the new commander on notice regarding the suspended punishment.
10. Id. para. 2-9, tbl. 2-2.
11. See U.S. Dep’t of Army, DA Form 268, Report to Suspend Favorable Personnel Actions (May 2016). See also Kenneth Godfrey, Quick Reference Flag Table, milBook (Jan. 11, 2019), https://www.milsuite.mil/book/docs/DOC-135756.
12. AR 600-8-2, supra note 5, para. 2-1e (emphasis added).
13. Id. para. 2-2a, 2-2b. Although investigations are defined as “any action that may result in disciplinary action or other loss to the Soldier’s rank, pay, or privileges,” the term does not include Inspector General (IG) investigations, unless the IG refers a complaint to the Soldier’s chain of command for a commander’s investigation. Seeid. para. 2-1i, 2-2a. See alsoid. para. 2-2a (noting that a flag is no longer required upon initiation of a FLIPL, though it may become necessary if Soldiers are recommended for financial liability during the investigation). See also generally Jim Tice, Army Updates Rules for ‘Flagging’ Soldiers, ArmyTimes (May 16, 2016), https://www.armytimes.com/news/your-army/2016/05/16/army-updates-rules-for-flagging-soldiers/.
14. Id. paras. 2-2a, 2-2b.
15. Id. para. 2-2a.
16. Id. para. 3-1. Note that exceptions exist for reassignment; awards; school attendance; and unqualified resignation, retirement, or discharge. Id. para. 3-1b, 3-1e, 3-1f, 3-1g. See alsoU.S. Dep’t of Army, Reg. 600-8-22, Military Awards para. 1-17a(1) (25 June 2015); U.S. Dep’t of Army, Reg. 600-8-19, Enlisted Promotions and Reductions para. 1-10a(7) (25 Apr. 2017); U.S. Dep’t of Army, Reg. 600-8-29, Officer Promotions para. 1-20a, 1-20e (25 Feb. 2005) [hereinafter AR 600-8-29].
17. See PartTime1SG, Army Flags Regulation-Flagging Actions-Army National Guard, YouTube (Oct. 9, 2017), https://www.youtube.com/watch?v=Blki8nLG—o.
18. AR 600-8-2, supra note 5, para. 2-1a(1).
19. Id. para. 2-1a(2).
20. Id. para. 2-1d, 2-4.
21. Id. para. 2-4.
22. Id. para. 2-6.
23. Id. para. 2-1d.
24. Seeid. para. 2-9b(9).
25. Seeid. para. 2-5, 2-9a(1).
26. Id. para. 2-9b, fig. B-2.
27. Id. fig. B-2. See also AR 600-8-29, supra note 16, para. 8-2, 8-3.
28. Id. para. 2-10a, 2-10b, fig. B-4.
29. SeeThe Army Vision, U.S. Army (7 June 2018), https://www.army.mil/e2/downloads/rv7/vision/the_army_vision.pdf?_st.
30. See generallyU.S. Dep’t of Army, Dir. 2018-22, Retention Policy for Non-Deployable Soldiers para 4j (8 Nov. 2018). Seealso Matthew Cox, Army Releases Deploy-or-Out Rules for Administratively Sidelined Troops, Military.com (Nov. 13, 2018), https://www.military.com/daily-news/2018/11/13/army-releases-deploy-or-out-rules-administratively-sidelined-troops.html. But see U.S. Dep’t of Def., Instr. 1332.45, Retention Determinations for Non-Deployable Service Members para. 3.5b(2) (30 July 2018) (describing specific types of legal actions that render service members “temporarily non-deployable”).
31. AR 600-8-2, supra note 5, para. 2-10b, fig. B-4.
32. See id. para. 2-9a(4) (explaining that once removed, units or S1 offices must maintain records of the flag and the documentation justifying removal for one year). See also id. fig. B-4 (outlining flag management and oversight).
33. Seeid. para. 2-7c.
34. For example, because Soldiers cannot be retained beyond their scheduled ETS or retirement date solely on the basis of a flag, commanders sometimes fail to properly flag Soldiers already pending separation from the service. Seeid. para. 3-2.