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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26547
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hello. I was servive oversees and developed severe depression

Resolved Question:

Hello. I was servive oversees and developed severe depression and then a drug addiction. Long story short is that this was discovered and I was relieved of my position as battalion surgeon. The OER was very bad - do not promote, recommend separation. Since then I have successfully been in recovery from addiction and am back to being allowed full practice in my hospital. The OER does not state any factual errors and clearly my judgement was poor. However, I disagree with the conclusions made by the raters. They said that I should be separated because I lacked army values (not based on job performance, which they say was good). I, and the entire medical community, considers drug addiction a disease and not a marker of values. Any medical professional will tell you that severe depression with follow-on drug addiction is not a consequence of poor character. My performance before and after this speak to the fact that I have a good value system. My concern is that this OER will kill my career, but it does not reflect my true nature. What I did during that rating period was a consequence of mental illness. It is difficult to say "I had no choice" about using drugs, because I did, but, at the time, I was mentally a hopeless wreck and the person who did those things is not the person I am today or I was prior to deployment.

Do I have any grounds to appeal this OER or do anything that might mitigate the damage?

Thank you
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.

You can certainly appeal the OER...but can you tell me, did you ever request a commander's inquiry? If so what was the result?
Customer: replied 1 year ago.

I did not request a commanders inquiry. When this all came to a head in Afghanistan, I was medevaced home for depression and drug addiction and spent the next 6 months in a recovery program. I was not able to sign the referred OER either because I was isolated from phone, email, etc. while in recovery.

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

I am typing up an answer....i expect it will take approx 10 more mins...
Expert:  P. Simmons replied 1 year ago.

Again, you can certainly appeal this.

There are two basic grounds for appeal

1. The OER is factually incorrect. This is, by far, the best grounds for appeal. If there are factual errors in the OER that is grounds to have the OER pulled.

2. There are procedural errors in the OER. For example, the rater does not comply with the regulation. This can be grounds to have the OER pulled...but the underlying error will be examined to determine if the error caused unfair prejudice for the person rated. Example, if an OER contains spelling errors, that would be grounds to appeal, but the remedy would be to correct the misspelled words. On the other hand, if the error was substantive...say this was an error relating to the provision in the AR that provides

"The use of inappropriate or arbitrary remarks or comments that draw attention to differences relating to race, color, religion, gender, age, or national origin is prohibited"

If the rater violates this rule? That can be grounds in and of itself to have the report pulled.

So in your case, it sounds as though the report is factually correct...that is not good (at least as far as an appeal goes)

That said, it may be you still have a basis for appeal. Under AR 623-3, there is a prohibition against listing "Unproven derogatory information"

So if the language they used is not properly substantiated? That can be a basis for an appeal

The fact you had a medical problem is not, in and of itself, grounds for appeal...but if the language in the OER did not accurately characterize you or your conduct? That would be grounds for appeal

So really it comes down to the language in the OER. IF you can point to any unproven derogatory information, that can be enough to get the entire OER pulled.


P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26547
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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