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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27126
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hello, I am a Marine who recently got processed out of the

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Hello, I am a Marine who recently got processed out of the military with a General (under honorable conditions) discharge. In July of 2011, I deployed to Afghanistan, upon getting to the dirt, I received a phone call from a SSgt in my shop. He immediately accused me of stealing his credit card info and using it to buy various items and to pay bills. I vehemently denied any involvement or any wrongdoing, and That was the last I heard about the issue until I came home in February of 2012. Upon returning, I was notified that I was being investigated for four counts of larceny. Fast forward to June, after the investigation, I get charged with all four counts and I was going to be tried by special court martial. They set my trial date to august 28th 2012. Long story short, I never went to trial. Apparently it was one of those online crimes, so my lawyers at the time requested the government provide me with an expert witness to clear my name (ip addresses because i was in afghanistan). The military judge awarded me the expert witness and told the prosecution that the case is constitutionally unfair if I cannot adequately prove that i am innocent. They dragged their feet on the court martial for 7 months and requested four continuances because they kept switching prosecutors. In december of 2012, I was notified that I would be tried at an administrative separation board; with the least favorable characterization being an OTH. At that board, my lawyers challenged the board members for cause and they told my attorney that the command had made them aware of the case files and details of the case prior to the fact. so that board was voided due to the board members no longer being "impartial". Fast forward two weeks later, and I am on another Admin board. The members this time heard all facets of the case and decided that the case was indeed constitutionally unfair and they concurred with the military judge that I should have had an expert witness this whole time; so they ruled in my favor. HERE'S THE KICKER: I WAS PENDING COURT MARTIAL CHARGES THE ENTIRE TIME THIS PROCESS WAS HAPPENING, THRU BOTH ADMIN BOARDS I COULDN'T ADEQUATELY DEFEND MYSELF. This is a direct violation of my constitutional rights. While I was going through the administrative proceedings, I was still pending court martial, and my lawyers could basically do nothing. I couldn't even take the stand in my own defense. So after, both admin boards passed, while I was still pending charges, they began to process me for a General discharge. Mind you I have an outstanding military record. Multiple meritorious promotions with 4.8 average in service pros/cons. I have all documents, including character statements, bank records, court documents, charge sheets, motions paperwork, and all admin board convening orders, I have filled out dd 293, and dd 149, and I am ready to start fighting this injustice. Where do I go from here?
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.

 

Sounds like a good case. That is, what you describe sounds like a great case to apply to the BCNR (Board of Corrections for Naval Records) and ask for them to upgrade the characterization of your discharge.

 

And that is rare...that is, it is rare for me to tell someone they have a chance at an upgrade. I must get 4-5 calls every week from folks who received a general, or an OTH and will pay anything to have it upgraded. And for the most part I can not take their money...since it is difficult to obtain an upgrade.

 

You are required to prove that the government was "unjust" in their handling of the case, or that there is clear error. Again, in most folks cases, that is not possible.

 

But what you describe? If they took all this trouble to separate you with a general discharge, basically denying you the opportunity to have your "day in court" (even an administrative hearing)? I think you have a shot.

 

It is a two step process...and you must file within 3 years of separation. The first step is to apply to the NDRB (Naval Discharge Review Board). They routinely deny applications but you must go to them first. Then, if they deny the application, you can file with the BCNR. You can see the process on the BCNR website here http://www.donhq.navy.mil/bcnr/bcnr.htm

 

Do yourself a favor...have a lawyer with experience help you with this...it sounds like you have a great case...let a lawyer help you put it into a package that is easy to understand

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27126
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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P. Simmons
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Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.