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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 25428
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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PMS Professor of Military science is trying to Disenroll me

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PMS Professor of Military science is trying to Disenroll me out of ROTC, I am a senior I commission exactly a day  before a month only. Commission date is June 14th 2013.


right now my PMS He is under investigation that I have integrity/ honesty issues and do not fit for the Army. He is asking me to fill or the ARMY sworn statement AR190-45 Currently I am positive that other cadets have written sworn statements back in April on the AR 190-45 1. What I am trying to say is the person who made the cadet Public Affairs video said I did not review his video 2. In the car ride back from weekend Field Training along with 2 others in the car I have said "I did view the video." Professor of Military Sci is trying to get me out of ROTC for integrity issues of Honesty, above 1 &2 it happened on same day Right now if I go with either of those two answers it can go against me and this is not my answers Or if I put on sworn statement of following to what the cadet who made the PAO video said And 2. Apologize for saying I did see it during the car ride back that even though I did see it. And that this will make things not contradict with others, which is a big issue. This happened so long ago really more than a month ago. PMS asked all these questions and asked other to put on sworn statements during April 21 2013. He is just purposely trying to get me out of the program. Many times the Professor of Military Science has said in the real ARMY it gets really political, that he does not see me well in front people. Also that I am not competent enough to be a leader, he also said that it is not that I cannot commission you but I just do not see you being a leader. I going Transportation, he said the only branch he sees me well is Chaplain and they are out there. Those were his exact words. I believe he is bully me as much as he can and make me dis-enroll by myself But I have passed all required Physical Fitness Tests, GPA, and assignments/ duties given.


I do not violate the law do not have any bad records either.


 


I am somewhat aware that if dis enrollment occurs and I have a board to review my case I would not have an attorney to support me at that case? And there is another Army Corrections board after this. So everything right now I am trying to be as careful as I can. Now is MAY 15 2013 I commission in a day less than a month. The PAO video incident happened back in April 21st 2013. Obviously there are things I cannot remember. Now should I write and turn in the sworn statement to the PMS or if I turn it in there would be more issues. Also If I do not turn it in I believe it is as if I am not listening to the PMS and following superiors’ orders. In my situation what are the things I can do please provide suggestions to my case. Please get back to me as soon as you can, I am running out of time. Respectfully, Justin

Submitted: 11 months ago.
Category: Military Law
Expert:  P. Simmons replied 11 months ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Are you a scholarship student? And is the basis for disenrollment misconduct?
Customer: replied 11 months ago.

Sir, I am a full time student I am on 4 years national AROTC scholarship


 


About the ROTC and Disenrollment


The various branches of military service offer a college recruiting program known as the Reserve Officer Training Corps or ROTC. These programs exist for the Army, Navy, Marines and Air Force. Each college or university differs with respect to the availability of ROTC and branch of service offered. ROTC offers scholarship and other financial benefits to college students enrolled full-time in exchange for a defined term military service obligation. Those who successfully complete ROTC are commissioned as military officers upon graduation.


Students who apply for and receive ROTC scholarships are administered the oath of office for appointment into the military. These students, known as cadets, also sign a complex contract that sets forth the benefits they receive as cadets, as well as the requirements they must meet to receive the benefits. The contract also outlines the term of the agreed-upon military service obligation. Cadets on scholarship are required to maintain certain academic standards; adhere to military physical fitness, height and weight requirements; attend and complete certain military training; and adhere to military standards of moral, ethical and lawful conduct. These terms are also outlined by the ROTC contract.


ROTC cadets who fail to meet contract requirements may be referred for disenrollment. Disenrollment is the procedural mechanism for terminating a Cadet’s scholarship benefits and removing him from the ROTC program. Cadets may be referred for disenrollment for failing to maintain minimum required semester or cumulative grade point averages (G.P.A.); failure to meet requirements for weight control or physical fitness; for being an approved conscientious objector; personal hardship; if a condition is discovered that will later bar Cadet from becoming a commissioned officer; inaptitude for military service; undesirable character or unethical conduct; indifferent attitude or lack of interest in military training; criminal or other forms of misconduct; or breach of contract.


Cadets who are referred for disenrollment are entitled to due process. Cadets are provided with notice of disenrollment and afforded the opportunity to attend a disenrollment hearing board. Cadets may waive or exercise the right to a board. Upon being referred for disenrollment, the following questions are presented:



  1. Is there a basis to disenroll or remove the Cadet from ROTC;

  2. If so, should the Cadet be disenrolled from the program;

  3. If disenrollment is warranted, should the Cadet be required to repay the scholarship benefits received;

  4. And/or should the Cadet be ordered to perform a period of active duty service as an enlisted service member.


Cadets who waive the right to a board may submit a written request or other submissions related to these questions. Cadets who alternatively elect the right to a board will have a neutral and impartial military officer, appointed to hear evidence, make factual findings and recommendations regarding these issues. Cadets are entitled to present evidence at disenrollment board hearings by submitting documents, other forms of evidence, and calling witnesses on their behalves. Cadets may also challenge and question any evidence or witnesses presented to the hearing officer by the ROTC program where the cadet attends school. At the conclusion of the hearing, the appointed investigating officer will make finding and recommendations regarding the issues outlined above. The Cadet may then submit written matters in response to the hearing officer’s finding and recommendations. These materials are finally forwarded to Cadet Command for approval or disapproval


Cadets who are pending disenrollment are entitled to the representation of counsel at all phases of the disenrollment process, to include the disenrollment hearing. However, counsel may not advocate or speak on a Cadet’s behalf at the hearing unless otherwise permitted by the hearing officer. However, it is crucial for counsel to assist the cadet with understanding, interpreting and applying the complex rules and regulations that govern disenrollment proceedings. Counsel may also advise the cadet regarding how to present evidence and testimony, as well as how to challenge the same if presented against the Cadet at the hearing. Since counsel may be present with the Cadet during the hearing, they may confer privately outside the presence of the hearing officer and witnesses. This enables the two to work together as a team to collaborate on defense, strategy and other important issues.


Experienced counsel can also assist Cadets with developing presentations and submissions to the hearing officer. Disenrollment hearings are very similar in nature to administrative separation hearings, but for the fact that counsel cannot actively advocate on a Cadet’s behalf. However, the preparation, analysis and defense strategy are virtually identical. Counsel experienced in these areas can meaningfully assist Cadets with identifying key witnesses and documents to present in one’s defense; highlighting important issues related to the questions presented by disenrollment proceedings; and identifying weaknesses in the government’s case. Counsel can also present submissions on the Cadet’s behalf, which is a form of written advocacy, at the hearing, in response to the hearing officer’s findings and recommendations and ultimately to Cadet Command.

Expert:  P. Simmons replied 11 months ago.
Understand...I know quite a bit about AROTC. Your due process is tied to the basis for discharge. Have you been advised, in writing of the separation proceeding? What is the basis?
Customer: replied 11 months ago.

so far the PMS has not given me any discharge or disenrollment papers and I have not turned in the sworn statement nor have I signed anything. He is still on the basis of reviewing my statement vs others.


 


in a nut shell right now it is clear the cadet made the Public affairs video said i did not review it, the two others who both probably heard or in the room during the meeting, that the cadet made the Public affairs video said I did not review it, and IN car the two cadets hear that I said I did review which i did say and I did review.

Expert:  P. Simmons replied 11 months ago.
Thanks

YOu want to take a look at the Army regulation that applies. You can see it here

http://www.apd.army.mil/pdffiles/r145_1.pdf

Section 3-43 covers this.

YOu see that in order to disenroll you, they must first give you notice, in writing. THen, you get a board to hear your case. the board makes a recommendation on if you should be discharged or not. It is up to the CG of AROTC to make the final decision.

So what you describe, it sure sounds like there is no solid basis for discharge. So if you can convince the board that hears your case that you did not commit misconduct, then I would expect the board to recommend you not be discharged and that you receive a commission.

Customer: replied 11 months ago.

Sir,


 


 


I remember of getting a counseling statement on for missing a few PTs.


 


It stated on bottom failure to comply ... suspension /removal of scholarship.../ benefits and so on.


 


My question is, is this what you are referring to?


 



Here is the sworn statement


During the last week 2 weeks from February there had been discussion to get the PAO (Public Affairs Video) ( PAO stands for). Sometime during 18Feb to 21FEB I gave guidance and tasked the cadet(c/) PAO Officer to c/Gunsser for the process of starting the video and Obtaining video for end of year PAO video.


On FEB 22 during our TNG meeting I was tasked to ensure c/Gunsser to get the PAO VIDEO ready for the end of the year. That he has to obtain end of the year PAO video.


On the next week TNG meeting 01MAR c/ Gunsser had stated during the TNG meeting that the end of year PAO video is on editing. That there was an audio issue then the ETC revised date for c/Gunnser’s completed video the date is set for him to ETC for a full review on 11MAR13.There had been a series of technical difficulties along the process of the video.


On 11March I emailed c/Gunsser cc’d c/BC Hall and bcc’d the PMS(Professor of Military science) . The subject of the matter was the readiness of the PAO video to be reviewed by myself.


I asked c/Gunsser what is the status on Audio backdrop is and reminded him, that the ETC for review is today 11MAR13. c/Gunsser, replied with the following,


“Yea thats fine, who wanted them updated? Did BC give you this order? PAO video is done its draft ill bring in tom and we can review it.


Gunsser


My response to this email was;


“The PMS wanted them update and please bring them in tomorrow I would suggest you to have SFC Cook to do a final review. BC(cadet Battalion Commander) will take a look at it first tomorrow right after PT.”



Tuesday 12March after PT I asked c/Gunsser if he had shown the video to c/BC Hall, he told me they were out of time and that there had been time conflicts for rehearsals, stopping the c/BC from reviewing the material.


On Thursday 14Mar2013, I had ensured that Gunsser had shown the PAO video to the BC and that he watched the video and that there still needs editing to be done.


During this period of Mid-March to April I was only able to review pieces of the video, XO duties and school work had me stretched thin and I decided to wait until after the final editing is done before I would review the video. This allowed me extra time to review other materials and complete lagging school work. I assumed that after the high volume of work that needed to be done with the approaching JFTX (Joint Field Training Exercise) that I would wait till after to fully review the final draft of the video. I felt that the PAO video didn’t hold the same weight and priority as the upcoming JFTX and to school assignments that were due in the immediate time frame. On 18April during the lab of that week I have asked c/Gunsser to show the PAO video to c/BC but I was unaware that he failed to show and I simply did not follow up with c/Gunsser.


On 21April right after the JFTX, during the car ride back to Drexel from Fort Dix I was asked a series of questions from the PMS about the video and other topics of the JFTX as how it went/ upcoming awards ceremony/ other informal chatting of school. When asked by the PMS on the PAO video I said “that I have seen Gunsser’s PAO video.” Because of the many questions on many different topics listed in the prior sentence, I did not go into length that the video had gone through more revisions and that I had only seen parts of the early draft and was waiting for our return to see the rest. The question didn’t back on the reply of me seeing parts of it. The simple fact was that I had reviewed it. I remember that c/ Gunsser stated he finished the video was actually the draft I do remember it had been electronic music -Skrillex (The music Artist) was the background music.


The PMS then asked more in-depth questions about the video and I felt shocked, I didn’t think he wanted to know more about the video originally or else I would have explained that I only reviewed early copies and was waiting for the final draft.
After this the PMS asked c/BC Hall about the video and he was able to answer every question, making it seem that I didn’t review the video. I should have explained right there that I didn’t review it wholly I thought it would make me look like I was lying and scape goating to avoid getting in trouble. I assumed the best thing for me to do is waiting until I return review the video and show that I’m competent at my job. I planned to apologize for the incident but I thought it had blown over and it would be better for me to prove my value by being a good XO then just apologize for the incident. On top of it the additional upcoming events such as the awards ceremony lab plan was in a complete failure.


Last week on 09May I was asked by the PMS and MSG Bazile was in the room that “either I have watched the PAO video or not” I said I did because I did watch it. I am given a sworn statement and asked what had fully happened along the process on the c/ Gunsser’s PAO video all the things I can remember.

The truth is prior to the JFTX I had watched the PAO video briefly; I was given many goals and tasks to accomplish and I ranked the PAO video lower then all the rest. When we took the ride home from the JFTX I had no intention or want, to deceive or manipulate the LTC about my task of reviewing the video. He asked a simple question and I gave the basic answer. If I could go back now, in a heartbeat I would explain the situation and let the PMS know upfront that I was waiting on the final draft to then review it on our return. Upon our return I have said
I did watch it and was asked to give a sworn statement on 09May. There was no Malicious Intent; I simply made a mistake in my wording. I should have been very upfront about the cause of the problem and this major lack of communication on my part. A simple apology and explanation after the JFTX would have done wonders and I’m sorry for any insult and misleading that occurred.


 


also with the sworn statement what is better for me to do? turn it in or have a legal ROTC disenrollement lawyer tell me what to do?

Expert:  P. Simmons replied 11 months ago.
Misconduct is defined as ay misconduct under the UCMJ.

So failure to follow orders, or AWOL (missing PT) can be a basis for discharge

Again, you are entitled to a hearing...they must give you a hearing before they can disenroll. And prior to that they must give you notice, in writing, so you can prepare for the hearing.

The time to fight this is now...you want to put the effort into fighting this now. It is MUCH more difficult ot win on appeal.

So consider working with a lawyer now, IF they actually start the process to disenroll you.

Customer: replied 11 months ago.

1. for the hearing do i get to write everything on a statement?


rather than talking in front of the board?


2. Can there be an attorney/ lawyer to support and talk on behalf of me


3. for the Sworn statement should I turn it in now or not turn it in since info could be against me?


If i do not turn it in is that disobedience to superior officer?


I know they cannot force me to turn it in

Expert:  P. Simmons replied 11 months ago.
1. for the hearing do i get to write everything on a statement?

rather than talking in front of the board?

Your choice. You can do both, or either. Or nothing...your call entirely.


2. Can there be an attorney/ lawyer to support and talk on behalf of me

You can work with a lawyer to prepare. You SHOULD do this. They can help you get ready. But the attorney can not represent you at the hearing.


3. for the Sworn statement should I turn it in now or not turn it in since info could be against me?

If i do not turn it in is that disobedience to superior officer?

They can not make you give a statement. Art 31, UCMJ covers this...you are not required to give a statement if you do not want to. I would not turn one one...since it can be used against you. Much better to present this to the board, after you work with a lawyer to prepare.



Customer: replied 11 months ago.

sir, would you know how much it will roughly cost on a lawyer to go through this process

Expert:  P. Simmons replied 11 months ago.
That depends on the lawyer.

Most of the folks who do this (who have experience) can work with you via phone/email...you may not need to fly them out to help. But you do want someone with experience. Particularly experience with ROTC boards, since if you do loose the board, it is good to have a lawyer who can engage in the appeal.

Do a google search for "military lawyer" and start talking to folks...you will get an idea real quick of the cost. Less if they are local to you or do not have to travel to you.

Customer: replied 11 months ago.

thank you sir, at this point if the Professor of Military sci is asking me sign anything can i refuse to sign?

Expert:  P. Simmons replied 11 months ago.
There is no rule that requires you as a suspect of misconduct to give a statement. In fact, the rules are the exact opposite...as a suspect of misconduct, you can invoke your right to remain silent.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 25428
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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