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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26287
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Im AF (CAPT). While Im not trying to play games, I would

Resolved Question:

I'm AF (CAPT). While I'm not trying to play games, I would like to
carefully establish my position. There's a crazy assessions battle ongoing related to them medically disqualifying me, then imposing a surprise waiver 3 months after telling me to find another job.my single father hardship was actually seriously exacerbated by these events. Would you agree that I should have counsel at every step of the way?
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.Depends...are they subjecting you to a board of inquiry?
Customer: replied 1 year ago.
No board. I'm the one questioning the legitimacy of their reversed disqualification and imposed waiver. I don't even have orders yet, but I'm causing a stir with FIO requests. I should mention that I would prefer separation, but legitimated feel I'm healthy to serve in only in a non-remote setting (US MIL hospital, but not deployed tent hospital). If I go active, they will need to work with me on the FCP becuase it has holes. I'll secure things in my control, but don't want
Punishment if my caretaker misses a flight to TX. Again, my request for separation (hardship/parenthood) can be seen as my duty to alert them of possible breakdown of FCP.
I WILL NOT purposefully make it fail.
Expert:  P. Simmons replied 1 year ago.
Than you

Ao are you in the guard/reserves? OR are you on active duty currently?
Customer: replied 1 year ago.

I'm sorry...this happens a lot in my category. No base, no supervisor, no access to military colleagues, etc.


 


I'm ex-HPSP (took scholarship for 4 yrs med school) with a 4 year obligation to be served AFTER residency. I'm in a deferred non-sponsored civilian neurosurgery residency and completing my final (7th) year and I'm told by email that I will start in San Antonio as Major on 14 AUG.


Its very complicated ever since they told me I was in the "discharge phase."


I expect that I'll have to serve 4 yrs on base with a c-code (for my non-service-related myopericarditis) unless Gary Myers' actions successfully make then re-declare me medically disqualified, thus not meeting assession requirements.


 


I'm ahead of myself. I think I know what I'll do and just wanted reassurance:


 


What I'll do:


1) report for duty and document my valid FCP


2) submit for hardship/parenthood separation (for FCP holes)


3) be denied separation


4) work as best I can to serve and support my 2 boys


5) be ready to fight disciplinary action IF something out of the ordinary (out of my control; out of predicted circumstances) forces me to miss work to take care of my kids


 


I think I've troubled you too much. I should stop asking questions.


 


May I contact you later in the process for FCP positioning?

Expert:  P. Simmons replied 1 year ago.
Now I understand. Thank you

And yes...I think there may be an issue.

But one more question, please...you mention that you expect your command to separate you currently...is that based on the FCP issue? Or is there something else afoot?
Customer: replied 1 year ago.

Yes...I was notified that I was medically disqualified on JAN 2. They told me I would NOT received Active Duty orders and instructed me NOT to not sell my house, and to find a different job. They told me not to call them anymore and directed me to call the ARPC Separations office instead. That office never received my "file."


 


On MAR 22, they emailed me to tell me my disqualification was overturned and that I was "medically qualified with waiver." Chaos ensues. Damages are still being managed. My attorney, Gary Myers, has filed FOI and is arguing that a waiver cannot me imposed and does not make me "fit for duty."

Expert:  P. Simmons replied 1 year ago.

Thank you

And sorry for the back and forth....but I believe I now have a picture of what is happening.

I know Gary Myers...he is good.

But one more question please...was this FCP dilemma you are going to face created by or aggravated by this change in plans (them telling you initially you were going to be discharged, then changing the game on you)? If so, how so?

Customer: replied 1 year ago.

Well... the AF didn't "create" my divorce... However, the issues of the divorce, in my opinion, are far from "incident" because I was commissioned in 2002 with an 11 delay before putting on the uniform and the recent debacle.


 


It took MONTHS (2012) to finally come to an agreement that my wife would relocate to my duty station in the interests of the children. Once the AF told me I was out, we put forth several irreversible plans. Divorce consent agreements were re-written (and re-re-written after MAR 22nd).


 


The custody problem was completely aggravated by the actions of the AF. Once they "overturned" my MDQ, my wife said "I'm not moving anymore" and got a job. I missed my duty station preference and defaulted to my last choice (which may have been a factor in the refusal to move) because they assigned the other 3 guys in the interim between to two opposite medical determinations.


 


My wife is taking this job which requires overtime and travel. Right or wrong in terms of best interest of the children, she feels she "needs" to "pursue her career dreams" and I am getting custodianship in the joint legal/physical custody agreement. She has many issues...yet not an unfit mother, per se.


 


The legal costs (contract attorney for the contract I ALREADY SIGNED at Oakwood Hospital in Detroit, divorce attorney, and military attorney) are skyrocketing with no quick or easy resolution in the near future---this is why I hesitate to bother you about legal questions in the "next phase."


 


How's that for crazy?


 

Expert:  P. Simmons replied 1 year ago.
Thanks

The key, in my opinion, to avoid issues with the FCP is to demonstrate that the issues with the FCP are not of your own making and beyond your control

Example:

Say a soldier is married with a special needs child. Then say the soldiers wife dies. And the soldier is not able to obtain care for the child (due to the child's needs). Certainly, in that case, the soldier is in violation of the Army Regulation that covers this...but the soldier is not truly at fault. In such a case, I would expect a Ch 5 discharge with an honorable characterization.

Another example: Say a single parent with sole custody of the child joins the Army, and at the first duty station makes it clear they do not want to remain in the Army. This soldier tries to obtain a discharge for a medical condition. When this fails, they then claim that they can not find child care for their child.
The would be on the opposite end of the scale from the above example...and at best would result in a general, under honorable conditions discharge, but could very well lead to charges of dereliction of duty (for failure to complete a FCP)

So for your case, where you fall in the spectrum (from the lack of FCP was not your lack of effort or planning but circumstances beyond your control to the lack of FCP was your plan to get out of the Army). The more you can show that this was unexpected? The less likely they would try and take adverse action (like a board of inquire to separate for misconduct)

What you describe? It sure sounds like this was beyond your control.

That is why I suspect you have little to worry about

Plus...you have a good lawyer.


Let me know if you have more questions...happy to help if I can




P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26287
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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