Do I have the right to a lawyer during a negative developmental counseling when I feel I am being retaliated against because I filed a congressional letter?
State/Country relating to question: Georgia
Reporting through my chain of command, EO, IG,and congressional letter. The day after my unit received the congressional they gave me 4 counselings and two more the day after that.
Hello,What service are you in?
If it helps any, here is a copy of my congressional letter
Before I lay my story out I want to make it clear that my only intention here is to make sure my health is taken care of so I can take care of my family (something I have not been able to do for quite some time now). Sometimes people are faced with choices and decisions they do not want to be faced with, and sometimes what is morally right may not be ethically right or vice versa. Please understand I never meant to Disrespect anyone; however, I believe the system has failed me, thus putting my health at risk - leaving me no choice but to fight for myself. This is why I am bringing this outside of my chain of command.
It all began around February 2011. I was moving out of my barracks room because I was soon to be married and I realized I was missing much of my TA50. It was not until this point I found out from my roommate that someone had been in our barracks room. She said she came home and found a man standing in our kitchen/common area. He said he was looking for me (But why was he in our room alone, and how did he get in there?). She told me shortly after that this same man walked in to our barracks room without knocking while she was in there -- again claiming he was looking for me. Another time she came home and she found some of her DVDs under the sink in the common area (she did not put them there) and that food had come up missing. So, we can only assume it was the same guy. Weeks later I found out this same guy was in trouble for stealing from another room. I reported all of this to my chain of command because the cost of replacing the things I was missing (still missing) was going to be more than I could afford. Apparently, the automatic lock on our door was messed up. Neither I nor my roommate was aware, but we were still blame because we did not check the lock every time we walked out. So, I was informed by my 1SG that because I left my stuff unsecured I could not file a report with the MPs. This was when I began to lose faith in my unit and in the army. However, I carried on, as a Soldier does, until August 2011.
On August 08, 2011 I had spinal surgery (lamanectomy, tethered cord release, and tarlov cyst decompression). My husband had to take several days off work, and my parents drove down from Michigan to help out for 4 days because I could not get around very well. My husband can attest to the physical difficulty I had after the surgery. Some days were so bad I could not shower myself. Now, I give my Chain of Command credit because they did come to the hospital to see me, but during the two months of convalescent leave I had no one ever called or came by my house to see if I was okay. I suppose it was my responsibility to contact someone if I needed anything, but as a lower enlisted soldier, it was my expectation that my chain of command would occasionally check-up on me (at the time my coc was SFC Townsend, Robert; 1SG Clary, Kenneth; and CPT Kearney, April D.).
I started back to work mid November 2011. This is when I told my Chain of Command about the sexual assault I endured while I was still in the hospital recovering from my spinal surgery back in August. I do believe the date was August 10, 2011 (it may have been the 11th, but I am unsure because I was so medicated...the days kind of ran together.) The only thing I am sure of is that "my friend" Eche , someone I deployed with, came to visit me in the hospital.
I remember his phone call asking if I needed anything. I had a craving for coffee, so I asked him to bring me some. He brought me coffee, then proceeded to take my hospital gown off and rub lotion on my breasts and stomach. I said, "Please don't do that," and he responded with, "Don't worry, its okay." I could not stop him or yell because I was so weak from the surgery, and like I said I was heavily medicated. It was very quick, and he left. I did not realize how it affected me until I went back to work and was faced with him. I drove myself to behavioral health and made a formal report to my friend and the company's EO Rep, SGT Philpot, Kenu; the SHARP Rep, SFC Kennedy, Michael; and 1SG Clary, Kenneth. What it boiled down to was the Unit could not do anything because it happened off post, Savannah SVU would not pursue the case, and I was unwilling to put myself through the emotional stress of requesting a civilian judge to issue a warrant so the case could be taken to trial. Eche PCSed a few days after the report and everything was sort of swept under the rug. I had to meet with Colonel Alia a few days after the report. He gave me a free pass to see him at any time, and said he would speak with me on a monthly basis to see if I was being taken care of. That did not happen, not once.
In addition to the above I had to request to be moved from my current position, PC clerk, because I was treated so poorly by SGT Ravina, Michael (he was transferred to PC while I was on leave). He made it clear to me that he had a high disregard for women, and that is why he could never stay in a relationship. His attitude was excused by my chain of command. I do not know why; however, I do know I was not the first female to have problems and request to be separated from this sergeant. Also, before he came to PC he was in Tech Supply for a short time, but moved because of his attitude; and before that he was in AVNX, Shops Platoon - also moved for disciplinary problems. I do not want to say anymore, but I know his behavioral health profiles and his company file provide more information. I do know that his behavior should have been handled, and it was not.
I was moved from PC to tech supply. This was another job I could not do. The opening and closing of the heavy drawers full of parts caused pain in my lower back (where I had the surgery). My plt sergeant at the time, SFC McFadden, did all he could to make sure I did not have to do this work, but it was still requested of me. Several weeks later I was moved to shops platoon. SFC Mierta was my new plt sergeant, and is my current plt sergeant. His initial counseling was verbal and he said, "I do not have much for you to do. I will let you know if I need you. Just make sure you show up to the 0630 formation). So for months that's what I did. I stayed as far away from there as I could. It is hard to be in a place that you are not wanted. I was told by another soldier that SFC Mierta put out to the formation when someone asked, "What about Mocini?" "Don't worry about Mocini, I don't really consider her part of the platoon." I confronted him after I spoke with another NCO and he told me he did not say that, but he could understand how his words may have gotten taken out of context. This was not the last time I was told something my plt sergeant said about me. It has, in a sense, created a hostile work environment for me. I get picked on by the guys (I am the only female in the platoon) because of things he says about me....about my illness and my limitations.
On from there, in November 2011 I got sick with what, at the time, the 4-3 doctors said was bronchitis. I took four different antibiotics and had a high white blood count for five months; still I did not get better. During this time my heart rate has increased (the highest I am aware of is 150 bpm), my blood pressure is high (The highest I am aware of is 174/94), I became very fatigued, started having seizures, and am constantly sweating (this makes it hard for me to stay hydrated). I have had several other symptoms that I have shared with my physician (4-3 medics).
The seizures started on April 15, 2012. I was in the emergency room on that day, twice on the 16th, and finally admitted to St. Joseph's on the 17th. At this point, my white blood count was still high but was starting to lower, and I was on my 5th (I believe) antibiotic. The hospital physician took me off the antibiotic. I had to get a lumbar puncture and suffered debilitating side effects (migraines and vomiting while standing). I was put on convalescent leave for a week, and I took a week of personal leave so I could get well enough to go back to work. While I was on leave I had to get a blood patch to reverse the side effects I had from the lumbar puncture. After this I still felt terrible and ended up back in the TMC while I was on leave. My blood pressure was about 160/110 and my heart rate was 123 bpm. Doc Brady finally decided to put me on medication for my heart rate.
I was supposed to go back to work on May 07, 2012; however, I still felt terrible and had to go back to sick call. I was so fatigued I could hardly get out of bed. My labs showed a urinary tract infection. They also showed my white blood count was back to normal. So, I was told my fatigue was from the UTI. Another week of quarters and two antibiotics were to follow for this infection. I had pretty much become a walking pharmacy. Everything I have written about my medical condition can be verified in my medical records. I finally went back to work on Tuesday, May 15th. I did go back to sick call on this day (this is when CPT Plotkowski put me on the second antibiotic for the UTI). I was not sleeping and was so tired but was sent back to work. I sat at work for a few hours falling asleep in a chair when I decided to go talk to my PLT Leader, LT Schwartz because I felt that I could not continue this way. I pleaded with him to get me help and all he could do was tell me he couldn't send me home every day. I felt like somehow he did not understand what I was saying to him; and finally after several attempts of trying to get some advice on what I should do I asked him to set me up an appointment with the Colonel. A little while later he came to me and said I had to see the Commander first. I did not want to talk to her about this because we already had problems previously. When she asked me what the problem was I told her I preferred not to talk to her about it. This is when things got really bad. She said to me, "Mocini, I am not in the mood for your bullshit today." So, I fired back. I told her I wasn't in the mood either; so, please set me an appointment with the colonel and let me go." She responded with, "The colonel is a very busy man and I will not schedule you an appointment with him unless I can give him a reason." Once again I was failed by my chain of command because I was refused the open door policy. This night I was driving home (we were on nights and lunch was from 1830 to 2100) for lunch and went off the road because I blacked out.
On the 18th I met with the colonel. However this meeting was not a private unbiased meeting. My whole chain of command was in there, and my fate had already been decided. They wanted to have me admitted to the mental hospital. As the colonel put it, "We want to get a holistic view of everything." This was not an acceptable answer to me; however, I did agree because it seemed the only way I was going to get medical treatment.
I was released after the meeting. I went home and told my husband I was going to stop taking all of the medication. If it was a behavioral issue then I did not need the medication. The very next day I was not so fatigued. I had another meeting with the commander and she told me the only way she could do a command referral was to say I was a harm to myself or to others. I assured her that she would be lying because I was not a harm to myself or others. I also told her I stopped taking all my medication and that I was beginning to feel better. I asked her if she could speak with Doc Brady about my heart rate and blood pressure because even though I was on the heart medicine it did not control my heart rate. Well, Doc Brady did not speak with me until almost a week later and did not want to change the medication but was open to increasing the dosage. I tried to increase the dosage but it made me very tired. I had another seizure May 24th in a battalion formation. The day before, the 23rd, I woke up and had high blood pressure and my heart rate was elevated. It was too early to take my heart medication, but I had to take it early so I could drive to work. I text my section leader and let him know that I was not going to make it to PT because I had to wait for the medication to start working. I was told when I got to work that my PLT Sergeant, SFC Mierta, put out to the platoon that if I was not at work by nine someone would have to pick me up and that my blood pressure and high heart rate do not fly, in other words, that's not a good enough reason for me not to show up to pt. This is quite embarrassing and exhausting. I never know when it's going to happen and am constantly scared while I am driving.
Later that morning I spoke with my PLT Leader, LT Schwartz, and told him I did not understand why I would be in trouble. I took the appropriate steps. I also told him that I would not risk my safety or the safety of others by getting on the road in that condition.
I went to the TMC the morning of my last seizure. All they did was check my blood pressure, give me fluids, and send me home. I told both Doc Brady and CPT Plotkowski that I had severe pain in my right shoulder blade from the fall. They did not check my shoulder for swelling or bruising -- just sent me home to ice it.
In addition, when I had the seizure, I dropped my keys and my camelback was removed. Somehow my keys turned up missing. SPC Morgan - maintenance plt- gave them to a SSG from the TMC and the SSG claims he does not have the keys, but he does have my camelback. My keys are still missing. My jeep is stuck on post with my phone and my son's car seat. It is going to cost approximately 140.00 to get a new key - money I do not have.
I am at a loss. My doctors are not supporting me and neither is my unit. My health is at risk. High heart rate and blood pressure are serious. I am still constantly sweating, and have severe night sweats which make it hard to stay hydrated (I drink over a gallon of water every day). In addition, I am still at risk for seizures. I am not turning my head to the fact that some of this may be caused by stress, but I am not depressed as my chain of command would like to believe. I am, however, frustrated, and I have not trust in my support channels. I keep getting shuffled around between people, but nothing is getting done. I am not writing this so people get in trouble. I am writing this because I feel my health has been dismissed and I could be at risk of stroke or heart attack, I am at risk of injuring myself or others while driving, and I cannot go out in public because big wet stains under my arms is quite embarrassing. If standing up for myself so this does not happen to anyone else (I know another soldier in my unit who went through the same thing and ended up getting an article 15) means someone has to get in trouble, so be it. I am also now in fear of retaliation from my chain of command. Their attitude towards me has already begun to change because they heard that I was going to IG.
In addition to the above, I would like to add the following:
I requested to be tested for Candida. I got to a point that I began googling my symptoms. Candida is what I found. It is basically a yeast overgrowth in the body. It often goes undiagnosed, and many of the stories I read sounded just like my life. Many people with Candida end up on some type of psychiatric drug or get referred to behavioral/mental health. My doctor's treated me for a vaginal yeast infection, but my request to be tested for Candida was dismissed. I brought a list of symptoms, daily and occasional, to my doctors. I also included the definition of Candida and the only way to be tested for it. They were not wrong for treating me for a vaginal yeast infection; if you read the label on the medication, it says, "Caused by Candida." I would still like to be tested for it.
Also, I had my LOI written for my medboard in January 2012. Shortly after the new medboard system was implemented, and my name was kinda of swallowed by the system. I frequently asked my plt sergeant, SFC Mierta what I should do. My whole chain of command, up to my commander, knew I was having trouble with the medboard process and no one helped. The Colonel, in our meeting on the May 18th, said to me that he could chapter me out right now and I could be out in two weeks. He gave me time to think about it. A few days later I told my plt sergeant I wanted to take the chapter. After they found out I was taking my problems outside the chain of command, my plt sergeant told me I could have the chapter, honorable as the colonel said, but it would be for a pattern of misconduct. He also told me it would not be in two weeks because the colonel was "just too busy". I have no pattern of misconduct, and if I had a derogatory attitude towards anyone it was because of my constant fatigue, plethora of medications, and my frustrations of not being taken care of. So, I feel that this a retaliation of my unit to let me know "who's boss". I am begging you; please help me get out on better conditions. I prefer not to take the medboard, for this has never been about the money for me. It has been about my service to my country. Now, my unit has made day-to-day life so terrible, I just want to move on. I am also asking to be removed from my current company/unit. The hostile work environment they have created just induces my stress, worsening my health.
Hello again,Thank you for the information and your question. It certainly sounds as if your relationship and position in your Command has gone downhill to the extent that you are not going to be able to fix it. As you may have read from the Terms of Service on this Site I cannot provide you with legal advice or a legal opinion specific to your circumstances since we cannot form an attorney-client relationship. However, to answer your initial question, which was: Do I have the right to a lawyer during a negative developmental counseling...? The answer is no. A servicemember only has the right to have counsel present at an Administrative Discharge Board/Med Board and at Special or General Courts-Martial. That said, you do have a right to redress and that is by using the Article 138 system. The Article 138 complaint is, by necessity, against your Commanding Officer, since they are the ones who are responsible for what happens in the Command. The complaint will go through the chain of command to the General Court-Martial Convening Authority who will investigate your complaint and take appropriate action. You can find out more about that process and your rights by going to: http://findarticles.com/p/articles/mi_m6052/is_2008_April/ai_n27912218/Chapter 19 of AR 27-10 is the Army's Official information about the Article 138 process and that is what you will want to go to after you read the general information at the above link. You can find the Regulation at: http://www.apd.army.mil/pdffiles/r27_10.pdf
My company just had a change of command last thursday. So, can I file the article 138 against the commander that was in command. She is the one who instigated most of this and made it a point to have me couneled the morning of the change.
In addition, am I required to put my signature on the documents before I have an attorney review them?
Relist: Answer came too late.Its always best to get more than one person's outlook.
Hello, thanks for asking your question.An adverse developmental counseling is usually for something that could be considered a violation of the UCMJ. Therefore, technically they are supposed to advise you of your rights under Article 31, to silence. Article 31 does NOT give you the right to a lawyer, only the right to silence and not make a statement. If they do not advise you of Article 31, they cannot use your statements against you at a court-martial for the same or similar offenses.You only get the right to counsel if you are undergoing a custodial interrogation. At that point, under United States v. Tempia (which adopts Miranda in the military) you have the Article 31 right to silence and the constitutional right to counsel.Retaliation for communicating with congress is forbidden by statute. 10 U. S. Code §1034. http://court-martial.com/complaining-ucmj/ HOWEVER, as I frequently advise clients, what you say in that letter to congress can be used against you. See United States v. Gogas. http://www.armfor.uscourts.gov/newcaaf/opinions/2003Term/01-0718.pdf
So, do I have the right to have a lawyer look over the DA form 4856 before I sign it? I was not advised of my article 31 rights.
Also, can I file a 138 complaint against the commander at the time. We just had a change of command on 31May12.
No, again you don't have the right. You can ask if they will let you consult with TDS.Yes, you can file a 138 against your commander at the time of the incident if he was the one counseling in a way you believe was retaliation. With a view to having the counseling removed.
33 years military law experience.
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