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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26070
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am in the U.S Army, I have been given an evaluation from

Customer Question

I am in the U.S Army, I have been given an evaluation from my Rater in which a Commander Inquiry was done to investigate allagations towards me, which resulted in defamation of character, slander and libel in local media and community is this allowed?

I have sumbitted a FOIA request to get the results of the Commander's Inquiry,

My question is, is this procedure fair and just on the part of my Rater? I feel that there will be some kind of backlash from my Rater

It get complicated the Evaluation has already went to HRC. As I've only recently found out about the Commander's Inquiry which was conducted at Brigade Level, I am under the impression that case came back "unsubstaniated".

I have reason to believe defamation of character because I've heard my situation discussed while I was at deployment, in the Host Country I was stationed in, on R & R leave, and while and on my installation. I'm assuming that this information was broadcast on the News or Media.

What course of actions do I have?
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Did you initiate the commanders inquiry?

Have you appealed this to HRC yet?
Customer: replied 1 year ago.

No I did not, I was done by my Unit or higher echelone. I have not yet appealed, I still have some time.

Expert:  P. Simmons replied 1 year ago.
Thank you

So what caused the command to initiate the commanders inquiry? DO you know?
Customer: replied 1 year ago.

Yes, It involved a personal realationship, in which my supervisor and his co-worker was involved. My supervior felt my relationship was part of his duty. Which resulted in harsh treatment toward me. After confronting both of them I rumor and allegation began to spread that I was involved in illegal activity.


 


I was moved to a different section within the same unit. I was also accused of committing Sexual assult, it got messy.


 


I later found out there was possible information passed to the local media.

Expert:  P. Simmons replied 1 year ago.
Thank you

First, it is important to understand that technically "defamation" is not recognized under military law. Defamation is a civil law tort...basically it is an action that can be raised in civil court alone

So defamation is not going to be relevant to your case.

HOWEVER, under Art 107, UCMJ, it is a crime to give a false official statement. SO if this person was lying about you in an official capacity, that would violate Art 107 and could subject them to punishment under the UCMJ.

So what you describe? Your raters actions? They are certainly not professional and may well be criminal. You can complain to the chain of command and ask them to hold that person accountable.

It is up to the commander what happens (the commander has discretion over this and can charge or take other action as appropriate)

All that said, it sure sounds like you have a basis to have this report pulled.


There are 2 parts to fighting a negative OER.

The first part is to request a Commanders Inquiry. This is your chance to have the commander take a look at the circumstances surrounding the OER.

But if that was done and they have not pulled the OER SO the next step is an appeal to HRC.

If you can show that the OER was not fair, then HRC (Human Resources Command) Can remove the report.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26070
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 1 year ago.


I do have a question relating to the situation, can I request the results of the Commander's Inquiry through FOIA? I am unsure if the Command, is even aware of my rater's involvment, as the individuals involved were in a Command position and in favored that the inquiry came back substianted. I am unsure if I express, I was left for training, and come back into a situation.

Expert:  P. Simmons replied 1 year ago.
That depends...there is a exemption under the FIOA that protects documents from release where there is a "Investigatory Records Compiled for Law Enforcement Purposes"

You mention that you did not initiate the commandants inquiry.

It is actually rare for one to be conducted not at the request of the rated individual.

So it MAY be they are pursuing criminal charges in this case. If so, the investigation is exempt from FOIA (so long as the investigation is pending)

You can certainly request the documents. You would do so under the FOIA (basically you write letter requesting the inquiry and state that the request is made under the FOIA). Under the FOIA they have 20 days to respond. If there is a pending law enforcement investigation they will tell you...then you can wait for it to be complete and re-request at a later point.

But the FOIA will not apply to HRC...they can get the inquiry. SO you can still appeal the OER...HRC will have access to the inquiry and will use that to make their decision if they should pull the OER or not.
Customer: replied 1 year ago.


Wow, thank you, XXXXX XXXXX as ever.

Customer: replied 1 month ago.

I actually have a question the Commanders Inquiry was in reference to sexual assault I am not sure if it was informal or formal reported. I do know that it came back unsubstantiated. As I knew it would. I would like to know if I can get the report. I request it, I was told that there was no report. This is not the case as I seen the Investigation Officer, and heard the report.

Expert:  P. Simmons replied 1 month ago.
The FOIA would be the key, as I explained in the last response...can you tell me, did you submit a FOIA request? If so what was the response?
Customer: replied 1 month ago.

I did request a FOIA but I do not know what provisions allow me o have access to the report. I was informed that there was no report, I am 100 % certain that there was a report.

Expert:  P. Simmons replied 1 month ago.
Thank you

I want to make sure I understand...as a response to your FOIA request, they claim that there is no report? Is that correct?
Customer: replied 1 month ago.

Yes, that is correct, I was told that there was no report. Not at the Company or the Battalion level. I even requested it higher but there was no report.

Expert:  P. Simmons replied 1 month ago.
Thank you
That makes it tough...that is, if they claim there is not a report, your only recourse would be to hire an attorney and sue them, in federal court. If you can prove there is a report, the court can order they release it.

But you will need an attorney to proceed.

Customer: replied 1 month ago.

How do I proceed? Which type of attorney do I hire? Any recommendations. I am sure there was a informal or formal investigation conducted.

Expert:  P. Simmons replied 1 month ago.
You would need to contact a lawyer familiar with the FOIA. This is a very specialized area of the law...few lawyers deal with it...but the ones who do, generally, can help you.

Contact your state bar...they can give you a referral to an attorney or attorneys who understand the FOIA.

The attorney can then file suit in federal court.

If they are violating the FOIA? The federal judge can order they produce the document

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26070
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 1 month ago.

I would like to also say this particular investigation was either a restricted or unrestricted report under SHARP or SAPR. Can I obtain this report.

Customer: replied 1 month ago.

I've researched the following information:


 


http://www.law.cornell.edu/cfr/text/32/635.28

Customer: replied 1 month ago.

As I once stated the report was a false report, as I would never physically harm another human being. The scorned female, and possibly her military boyfriend, made the claim behind my back. There was no evidence to support the claim.

Expert:  P. Simmons replied 1 month ago.
Thank you

What was the exact response to your FOIA request? Did they say the document did not exist? Or did they say it was not releasable under the FIOA?
Customer: replied 1 month ago.

I was told the document did not exist. I know the document existed because I was I heard from the Commander that is was unsubstantiated, as they were pushing for it behind my back. But as I said I was fortunate because I was able to fight it.

Expert:  P. Simmons replied 1 month ago.
Thank you

There are several exemptions to the FOIA (reasons that the government can use to deny access)

For example, if this was an investigation that could be used for law enforcement purposes? That would be a reason to deny access.

But the law requires they tell you if they are claiming an exemption.

If they claim that there is no document, and you believe there is? Then you can sue them and let a judge order them to produce the document (assuming that the document still exists)


Customer: replied 1 month ago.

Good point, the event happened in 2010-2011. I believe it would have been used by law enforcement, but I only within the past year found out that I could request information via FOIA.

Expert:  P. Simmons replied 1 month ago.
That is a potential hurdle you face...even if you can prove they have it, if they can claim law enforcement exemption that can be a basis to deny you access

So you could pay a lawyer, sue, get them to admit there is a document but still not have access to it.


Customer: replied 1 month ago.

What is the usual fee for that service, I say this because. I suffer even today from that trama. I had to figure out what happened.

Expert:  P. Simmons replied 1 month ago.
That depends...that is, depends on how much work this turns into.

You would have to start with a filing....you file the case in federal court (that would not cost much) and see what they do.

IF they come clean up front? You avoid court? It could be you get out with a nominal cost.

But if you have to actually go into court? That is where the costs rack up. Quick. Figure ten thousand or more go get into court.

Customer: replied 1 month ago.

This is interesting because the cost and time invested would not be worth the gain. I already cleared my own name.

Expert:  P. Simmons replied 1 month ago.
Yep. I am with you on this...it could cost you a LOT of money and at the end it may be you still do not get access to the document!

Customer: replied 1 month ago.

I'll take this recourse start with a filing. File the case in federal court (that would not cost much) and see what they do.


 


How do I go about doing this.

Expert:  P. Simmons replied 1 month ago.
Easy...you get an attorney and have them file the case...that gets the ball rolling. The attorney would be able to have contact with their attorney...you would find out real soon if they are going to cooperate or not.
Customer: replied 1 month ago.

Do you have a ball park figure the that service?

Expert:  P. Simmons replied 1 month ago.
That I do not...it will depend on the lawyer you contract with...but talk to a couple (call your state bar and they can refer) and they can give you an idea.
Customer: replied 1 month ago.

Thank you very much.

Expert:  P. Simmons replied 1 month ago.
Certainly....I wish you the best of luck in this fight!

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