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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15963
Experience:  Lawyer and current JAG officer.
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I am humbly requesting any guidance here. I am currently a

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I am humbly requesting any guidance here. I am currently a fire team leader in a line squad. Right now in our unit is chaptering any one they can; just in my squad 4 chapters have been initiated. One of my soldiers is receiving a Chapter 13 for Unsatisfactory Performance with General Under Honorbale conditions and I believe its completely unwarranted. This specific soldier received formal negative counseling statements for an incident that happened 4 months ago involving borrowing money from another soldier. I counseled him, and told him he would have a rehabilitation period - during which if he continued this behavior he could be seperated from the Army. He improved, changed, and is an excellent soldier today with no negative issues since the incident. However, with new leadership recently - they looked back at what he had done and decided to get him for an administrative reduction in rank from E-4 to E-3. They didn't stop there; they have just initiated a chapter 13 (as listed above) to seperate him (General Under Honorable) for the same incident that happened 4 months ago. I am currently managing his chapter packet and going through all the motions. My issue is, he was given a rehabilitation period, and improved and we had no issues since then - and has actually turned into a very efficient soldier. After trying to talk my leadership out of the chapter, they explained he needs to be made an example of... as if the 15 other chapters currently being initiated throughout the company aren't a good enough example. I believe this is unfair punishment by leadership that is just out to get this soldier. What can I do to fight this for him?

Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

 

Unfortunately, there just isn't much that can be done.

 

If a soldier in the Army has less than 6 years of service (and I'm assuming he does due to his rank), he is not entitled to a board hearing. The only other way he would be entitled to a board is if command was seeking an Other than Honorable.

 

Now, you stated that they were seeking an Other than Honorable. I believe you have your terminology wrong here. An Other than honorable is not available under Chapter 13. Only Honorable or General (under honorable conditions). Para 13-10, AR 635-200 says as much.

 

So, he will end up with a General Discharge. His rights are limited. He can submit matters on his own behalf to his commander and the commander that will be the approval authority. If the discharge is approved, he can appeal to the next level commander who can either disapprove the discharge, change the status to Honorable or allow the discharge.

 

Beyond that, there is no appeal right and nothing else that can be done. This is an administrative and not a judicial process, so due process is not legally required beyond the regular notification, allowing him to submit matters on his behalf and the appeal to the next level commander.

 

If you wish to help, you can certainly submit a statement on his behalf, explaining that this is one issue that was corrected during the rehabilitation period, so you do not believe this is a true lack of performance or pattern. Point to the reduction in rank, stating that an appropriate punishment has already been accomplished.

 

That's really all you can do here.

 

 

Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15963
Experience: Lawyer and current JAG officer.
Allen M., Esq. and 2 other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you for your response, I would like to clear a couple things up.

Yes he is being recommended for a General Under Honorable conditions, and not Other than Honorable I apologize. I understand that right now at this point all I can do is submit a statement on his behalf.

I do have one more question... I am currently handling his chapter packet and have just recently looked through all of it. All of my counseling statements I've issued him are in there... but one of them is not like the others. There is a counseling statement that is regarding the incident they are trying to chapter him for, the second page is different. It's on different paper, and obviously a copy as the punch holes at the top have been scanned over. It has his signature as the individual counseled, and my signature as the counselor. However, the dates next to the signature are typed in and dated one month BEFORE the date of counseling on page one. As I do all my counseling for my soldiers on my own computer I have everything saved and I never type dates in - I have the soldier and myself write them in ink. There has been information added on this second page as well, that I did not put there. I did not put this packet together, my leadership did and they have left me with almost no information through this whole process... is this counseling considered a false statement - what should I do with this?

Customer: replied 1 year ago.
Relist: Incomplete answer.
Expert:  Allen M., Esq. replied 1 year ago.
Sorry for not completing the answer last night. You posted it after I had gone to bed.

As for this document, it is completely possible that they changed the date so that they could meet the requirements of having time between the performance complaints.

If you believe that to be the case, you should report it to the IG or go straight to JAG and tell them as much. If your name is on these counseling statements, you're the one being held to the dates on them.

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Allen M., Esq.
Allen M., Esq.
Military Lawyer
15963 Satisfied Customers
Lawyer and current JAG officer.