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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15471
Experience:  Lawyer and current JAG officer.
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My son served almost 4 years (2 months shy of 4 years) in the

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My son served almost 4 years (2 months shy of 4 years) in the army with 2 deployments. He received a general discharge under honorable conditions due to alcohol abuse. While he was going through the article 15 hearing, the Battalion commander gave the order to "call his parents". My son was made to call us and the platoon leader spoke to my husband telling him of our son's issues with alcohol and infractions. What can we do now?
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.

 

How was your privacy breached? What information did they require you to give them?

 

 

Customer: replied 1 year ago.

It wasn't my privacy but my son's. My son was made to call us and give the phone to the platoon leader who then told us that our son was an alcoholic and getting "kicked out". He then read my son's infractions to my husband. This was on Feb. 1st, I didn't do anything for fear of retribution to my son and my son told us not to do anything. I called IG on Feb. 28th to see if this was protocol and they said absolutely not but I didn't dare give them any names. I have since called IG and they have opened up an investigation. They would like to talk to my son but he's still wary.

Expert:  Allen M., Esq. replied 1 year ago.

I'm sorry. I must have misread the question.

 

Ok. The problem with claiming any sort of privacy violation is two-fold.

 

First, Article 15's and administrative separations are public information. They can be found through regular background checks at any time, so it is not legally a violation of any privacy law that exists.

 

Second, your son would not be able to sue the military even if it were a violation of privacy. This is because it occurred during his military career and soldiers can not sue based on things that happen to them during military service. This is called the Feres Doctrine and comes from the Supreme Court of the United States.

 

So unfortunately, you have already taken the best and only action that is going to be available here. I will completely agree with you that this was poor form, not a normal procedure and is not something that I would ever recommend to or knowingly allow one of my commanders to do. It's unprofessional, but not illegal.

 

The IG can conduct and ethics investigation and look into possible punishments that would come, in the form of counsel and negative performance reporting of the commanders and NCO's that were involved. You could further report it up the chain of command if you wished, just to get as many individuals talking about it as possible. However, that is going to be the extent of your son's ability or your ability to effect any sort of punishment here.

 

 

 

Customer: replied 1 year ago.

Thank you for the response. If you don't mind I just want to add that this thing they did seemed to be a pattern of unusual punishment for our son since on top of this, which distressed us and our son, they gave him 3 months extra duty, decreased his rank from E4 to E1 and then took 2 months of halving his E1 pay. And, the BC threatened him with a dishonorable discharge in order to make an example of him. Our son had no run-ins with the law, never a DUI, he needed treatment not punishment. Is there any recourse for him to address these issues?

Expert:  Allen M., Esq. replied 1 year ago.

Unfortunately, no.

 

The punishments that you are referring to are all normal under Article 15, non-judicial punishment.

 

So, while it certainly seems an unusual pattern of punishment, it is actually exceedingly common in the military, for better or worse. These punishments could only have come from misconduct that occurred as a result of the alcohol abuse, because just merely being intoxicated is not enough to legally justify any of these punishments.

 

The only recourse for non-judicial punishment is an appeal to the next level commander. I know this seems rather like there are no rights, but that's because of the forum of an Article 15. Soldiers do not have to accept that forum. They can legally request a court martial, where they would have the rules of evidence, criminal procedure, legal representation, appeal rights, the right to be heard by a jury, etc. When a soldier accepts an Article 15, they give up all of those rights.

 

Now, there is no way he can get an dishonorable discharge without a full court martial, so that was an empty threat by what we've already determined was an unprofessional commander. It doesn't really change what the last bit of advice was concerning this commander. All he can do is report the behavior, which is not illegal but very unprofessional, to the IG.

 

Customer: replied 1 year ago.

Okay, thanks. This punitive thing going on in the military really bothers me especially from a base that already has one of the highest alcoholic rates and suicide rates in the country (Fort Bragg). If you can't inspire your soldiers, punish the heck out of them. They didn't want my son to leave because he was a good soldier in the field so they threw everything at him and asked him if he wanted out to which he responded "yes".


 


Would it help to change things if I report any of this to my Congressman? This is my final question. Thank you

Expert:  Allen M., Esq. replied 1 year ago.

Having been in the Army before and now in the Air Force, I certainly understand your position. Things are illegal in the military that really have no correlation in the civilian world.

 

Contacting your Congressman will have no effect on your son's situation personally. All a person from Congress can do is send a congressional inquiry asking if the law was followed when punishing your son.

 

Legally, JAG would have forced the command to abide by the law, in terms of processing the documents correctly and alleging things that are violations of the UCMJ. So, that's all that Congress can do for specific instances.

 

The only other thing Congress can do is lobby itself for change in the laws that the military applies. That's a more broad endeavor which wouldn't effect your son personally, but would have a more global effect, if it leads to anything.

 

 

Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15471
Experience: Lawyer and current JAG officer.
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