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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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My husband is an E-5 and has served with the National Guard

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My husband is an E-5 and has served with the National Guard for 16.5 years and was told in April that he was going to be reduced due to Inefficiency because of his APFT failure. He has a very good reputation with the National Guard and on his Military Technician side as well for all those 16.5 years (including deployments). Long story short, he has been on and off a profile due to a back injury. He requested a board, and was not given one. The first communication after tons of inquiries about when/how his board will be, his commander just told him yesterday that he will be separated. Why did he not get the due process when he was notified of the reduction and per his memo would be granted a board? Is there anything we can do now?
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.

Ma'am, can you tell me, he is an E5 now? So the reduction has already happened?
Customer: replied 1 year ago.

Yes, he has been an E-5 for quite some time. The reduction never took place. He got a memo that he would be reduced and that he could contest it with a board and he never got board, his commander called him last night (first correspondence with him in 2 months) to say that he is being separated.

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

The process to reduce requires that they offer a board...it is up to the member to request it...did he request a board?
Customer: replied 1 year ago.

He did request a board for the reduction, never heard anything from unit until the commander called last night & said wasn't going to be reduced, but now he will be separated.


 

Expert:  P. Simmons replied 1 year ago.
ahh...thank you. XXXXX see

One more...what is the basis for separation? Do you know which chapter they are using?
Customer: replied 1 year ago.

The commander only called him and told him he was being separated instead of reduced, so we don't have anything yet for the separation in writing, but we assume it is for the same reason of not being able to pass his PT test 2x.

This is a brand new commander whom for some reason wants to use my husband as an example. My husband is a hero of the computer world for most people in the CO Guard, including his Mil Tech job side (which is dependent on him being in the Guard). My husband and I have served the unit for over 3 years as the Unit Coordinator and Family Readiness Group Leader and done so much for the unit and families so this is a huge blow. We will have a TON of people including high ranking people in the Guard that can testify on his behalf at a board if we ever get one, but do you think there is any hope that he can stay in until he can retire in 3.5 years? Since he has been on and off profiles for hurting his back, is there a chance to get him medically separated?

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

Your husband is entitled to due process. And I would bet he gets it. Look at the phone call as a courtesy. It is certainly not required.

The key due process requirement for a chapter for PT failure, for a soldier with over 6 years of service is as follows

1. They must be notified, in writing, of the basis for the proposed separation

2 They are provided the opportunity for a hearing in front of a board comprised of at least 3 officers (including staff non commissioned officers of a higher grade)

3. They are provided the opportunity for a lawyer to assist them. This is provided by the government (typically they are a reserve JAG from the local area)

When he receives the notice in writing? He should demand a hearing and a lawyer.

Then he can work with the lawyer to prepare for the hearing.

If he has a service connected injury that is causing him to be unable to pass the APFT? That should be the focus of his defense. Specifically, if you can show that the reason he can not pass the APFT is because he has an injury caused by his service? That is grounds for a MEB (medical board). But the key is proof. The separation board burden of proof is "preponderance of the evidence"...this is a "50/50" standard. He will need to present evidence to prove that he has a medical condition caused by his service. If he can? THen he has a shot.

This is where the lawyer comes in...

And he should consider hiring one.

JAG is free...they may or may not have experience.

If he hires a lawyer...he is paying for experience.

THere is a lot of the line...he is close to retirement...if he can win the board, it will force the NG to process him for a MEB. But he needs to win this board. Hiring a lawyer with experience will help.

BotXXXXX XXXXXne: He is entitled to a hearing. He will get it. And a lawyer to help. But I would hire a lawyer to assist in this fight. The fact he has folks who will say he is a great soldier is nice...but that is not the issue. The issue is the APFT failures. He has to prove he has a service connected condition that is causing this (as opposed to him being lazy). If he can prove it? He has a shot.


Customer: replied 1 year ago.


His back injury is from his mil tech side, not from his service.

 

So we are pretty screwed then?

 

how would a experienced lawyer help us in our case then? Why didn't he get his due process for a reduction board?

 

He comes off his profile July 5. Can he do a for record PT test, pass, and then have that be in consideration for his board?

 

 

Expert:  P. Simmons replied 1 year ago.
That makes it tough. If the injury was not service related, he will have a tough time fighting this.

That said, if there is evidence that his service aggravated his condition...made it worse? That can be enough to require a MEB.

And yes...a lawyer can help you fight this.

As for the reduction board? I was under the impression there was never a board held? If there was no board, there is no due process right.

And you bet...if he can pass the APFT? That would be evidence that the board can consider.
Customer: replied 1 year ago.


how do we go about finding an experienced lawyer in our area?

Expert:  P. Simmons replied 1 year ago.
The good ones travel. Google "military lawyer" You will see many folks. I know most all of the retired/former Marines out there...they are to a man (and a few women) all very good.

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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