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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26137
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hello and thank you in advance for your time. During my 3 year

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Hello and thank you in advance for your time. During my 3 year active duty assignments in the ARMY my first base with in Korea. On one occasion we were in a safety brief and all huddled close together. The back of my right hand brushed up against the buttock of the soldier in front of me. The soldier happened to be a female. She turned around, I immediately apologized and we continued to listen to the safety brief. Two weeks later, I am called in for questioning on accusations of sexual misconduct. Her accusation was that I, same height as her, reached under and in between her legs and grabbed her vaginal region back to her buttocks. I pleaded my innocence. CID investigated, there were people questioned however nothing to corroborate her story. Since she was 8 months pregnant she was sent home to the states in a matter of weeks after this incident. CID report found me guilty of sexual misconduct and I was up for a field grade Article 15. I knew I was innocent and I decided to challenge it with the Commander in charge. I scheduled an appointment with him, and after hours of sitting, explaining and looking over the facts, he decided to suspend the article 15 for the remainder of my time in Korea - 6 months and that should I not get in any other trouble at all, this will be gone with the wind and never brought back up. I finished out my time in Korea, went back to the states, got deployed, served the rest of the active duty time and I am now out of the ARMY with an honorable discharge and in the National Gaurd Reserves. The last 7 months I have been working on getting a job with the local Sheriffs office. I have done testing, and testing and more testing. The next step was the polygraph. I received a phone call stating that my background check came back and that it was bad news. They told me that my finger prints are in the NCIC as receiving a suspended Article 15 for Sexual Misconduct. They wanted to see every and all information I had. Well, I had everything as far as statements and witness reports etc until I left Korea because I was told it would be gone after I left. So, I had to request copies of this report and accusation as well as the finding. I received the papers and the CID report states that I was found guilty of Sexual Misconduct and administered an Article 15 and then it states 'suspension 6 months'. The commanders reports states it was suspended. The agency basically just told me to get it removed off of my record of get lost. I dont even know where to begin. What can I do? Where do I go? I dont how to even get started. Can anyone help? I have never been arrested, never done drugs, dont drink, I worked as a Corrections Office before I went Active Duty and I cant picture not being able to proceed with my dream as a police officer because of a false accusation.
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 mention that the Art 15 was "suspended"

That implies that you actually went to Art 15, were found guilty and the punishment was suspended....is that accurate? You went to Art 15, the CO imposed but suspended punishment?
Customer: replied 1 year ago.

Yes, that is correct. I was CID report found me guilty, and the commander decided he did not want to proceed with the Article 15 so he said he was going to suspend it. I was never given extra duty, pay was never relinquished and my rank was never dropped.

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

I think there may be some confusion here. A CID report is an investigation. It is not a finding of guilt or innocence.

Only a commander or a court can make a finding of guilt or innocence. The CID can give opinions...but only the jury or a commander at Art 15 can actually make a finding of guilt or innocence.

And the term suspended is a very specific term.

It means that you were found guilty and the punishment was suspended.

That is not the same as you were found not guilty.

If you were found not guilty, there would be nothing to suspend.

So if your punishment was suspended, the finding of the Art 15 was guilty...and there really is not much you can do about it now. You could apply to the Army Board of Records Corrections and attempt to get them to erase the guilty finding at Art 15...but at this point, unless you have clear evidence of your innocence, I think that will be tough to do...and that is not going to force CID to pull the record.

Sorry to have to bear bad news

Now...if your mistaken and this was not a suspension but a finding of not guilty? Then you could contact CID and request they change the NCIC report.

CID will make this change, if the report is wrong.

But I stress that suspension does not mean that the Art 15 found you not guilty...in fact it means the exact opposite.

What you may want to do at this point is request a copy of your record.

You can do that here

http://www.archives.gov/veterans/military-service-records/

takes about a month...they send you a CD with your record on it.

MAKE SURE TO CHECK THE BOX TO REQUEST THE FULL RECORD AND NOT JUST THE DD214

Then you can see if the Art 15 is in there or not.






Customer: replied 1 year ago.


Sorry for the confusion sir. The CID report states that, it was determined that she was sexually assaulted and the Commanders report states 'G' for Guilty so it corresponds to what you are stating as I do not see anywhere 'NG'. Is there someone to help me try and get this removed? I havent the slighest clue on how I would even go about doing something like this.

Expert:  P. Simmons replied 1 year ago.

You can ask the Army Board of Records Corrections to remove...but they will only do so if you can show "error or injustice"

 

Basically you have to prove that the NG finding was in error.


That is tought to do unless you have evidence to prove it. And more than just your testimony.

 

If, for example, the "victim" was willing to sign a statement that it never happend? Then perhaps. Otherwise I think you have an uphill road.

 

To file the application, you can ask an attorney with military law experience to assist. The attorney can help you prepare and present the application.

 

If you google "military lawer" you will see lots of capable folks.

 

But understand that you may be paying towards something with little chance of success

 

 

Customer: replied 1 year ago.

Thank you for your response. If I were to contact her, and request that. If she were to agree to it, couldn't she get in trouble for a false accusation? I am thinking that she would not want to even consider it, if I were to even try and reach out to her. Not sure that I even remember her name. I had no idea who she was at the time.

Expert:  P. Simmons replied 1 year ago.

Possible? Perhaps....if she is still in. If she is out then UCMJ will no longer have jurisdiction.

 

And this assumes the military learns of it...

 

But yes...that is a potential concern for her. If she lied in the first place, and admits to it know, it is conceivable she could be held accountable if she is still in

 

 

Again, this is the tough part for you...you can ask to have the record charged, but you would need to prove that it is in error somehow.

 

 

Customer: replied 1 year ago.

This is a nightmare. Thank you for you help.

Expert:  P. Simmons replied 1 year ago.

Welcome. Wish I had better news

 

Best of luck with the fight

 

Phil

 

 

Customer: replied 1 year ago.

Sorry - one last question. How is it that this issue was reported to the NCIC. Are ALL Article 15's reported? I am trying to see if the agency that I applied for is just being VERY selective and cannot look over and past this.

Expert:  P. Simmons replied 1 year ago.
Not all Art 15's are reported. However, all CID contacts are reported. NCIC is the National Crime database. So if CID had the case, they were obliged to make a report.

If, for example, you had a case of awol for a day and CID was never contacted, there would not be an NCIC report.
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26137
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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