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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27110
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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ALCONI am a recent graduate of FA BOLC, and PCSd from

Resolved Question:

ALCON:


 


I am a recent graduate of FA BOLC, and PCS'd from Ft. Sill to Ft. Bragg on the 19th of March 2013, with TDY-enroute at Airborne school on the way. 2 days prior to Airborne graduation, I receieved a memorandum signed by the Battalion Commander (For BOLC and CCC at Ft. Sill) stating that my ordinary leave following Airborne school prior to showing up at Fort Bragg had been canceled, and that I had to return to Ft. Sill. I went to TDS at Ft. Benning to figure out what was going on since it seemed very strange, and I was advised by a TDS attorney at Ft. Benning that I had to comply with the memorandum. I returned to Ft. Sill and reported on 15 April by 0900, as was stipulated by the memorandum. Upon arriving, I was notified that I was the subject of an informal 15-6 investigation regarding a website that I had to created to disseminate information to my fellow FABOLC lieutenants. There were/are 3 issues at hand. First, some of the information that was given to us to distribute was FOUO; this information was given to us on a DVD, and we were instructed to make copies of it and ensure that everyone in the platoon got a copy. Instead of the seemingly archaic method of making 30+ copies of a DVD, I put this information on a website that I made and gave everyone the URL. I didn't know that the information was FOUO, and the initial CD was not marked with the green UNCLASS//FOUO sticker. Additionally, my instructors (1 Marine Capt, and 1 Army CPT) were aware of what I was doing, and encouraged me to do it by giving me additional material to post on the website. This is where the second issue comes into play. When the chain of command became aware of the website, they discovered what they assumed to be official testing materials that I had somehow improperly acquired and was distributing to my classmates. In fact, the material they had found was demonstration practice materials that were given to me by my instructors for the explicit purpose of posting and distributing to my classmates. The third issue was that the chain of command was displeased with some of the language that I used on my website. There was nothing racist, sexist, derogatory towards the Army/Chain of Command, etc., but they seemed to take an issue with some profanity that I had used nonetheless.


 


I waited approximately 2 weeks before speaking to the IO, another 2 weeks before speaking with the Battalion Commander, and have been waiting in limbo until recently.


 


Backtracking to when I initially arrived to Fort Sill, all the initial memorandum said was that my ordinary leave following Airborne School had been canceled, thus it did not make fiscal sense for me to track down an apartment, drive all the way back here, etc. Thus, I flew back, rented a car, and stayed in a hotel for what I assumed to be a short duration. I made the chain of command aware that I was staying in a hotel and had a rental car, and the acknowledged this and said they were working on finding a way to get me reimbursed for my expenses, ostensibly retroactively placing me on TDY and giving me a full per diem, which would have been fine with me. Approximately 6 weeks into my stay, I was informed by the Battalion XO (Civilian) that the unit was under no obligation to reimburse me for any of my expenses, and that I was collecting BAH and would not be eligible for additional compensation. I had already made a committment to an apartment at Ft. Bragg, and my future roommate is currently there footing the entire bill himself (I make no presumptions that this should matter to the chain of command, it just goes to show a lack of communication and general apathy). I was fairly incensed at this revelation, so I began talking to individuals at IG, and they informed me that the chain of command had violated AR 600-8-10 when I was recalled, and that you cannot recall someone from leave who is due travel reimbursements with a memorandum, it must be done with orders. IG also said that since the 15-6 is still 'open', they cannot intervene. I did not get a revocation order until the end of May. Without new orders, I would be unable to get an apartment (even if I had attempted to do so), as a requirement to get an apartment at Ft. Sill is that you have to check in with housing first with your orders. Essentially, I have been living out of my own pocket the entire time I have been here to the tune of $10,000+ for a hotel and a rental car. I eventually found someone I knew in the area and have been crashing with them since the beginning of June.


 


Fast-forwarding to the present, I began to protest louder and louder about how long the investigation had been open, taking into consideration that I had waived my right to counsel and remain silent in the interest of expediency and justice. I was eventually told that the Brigade Commander was putting together an administrative separation packet (offline and unofficially), and that I should schedule a meeting with the Battalion Commander (and eventually the Brigade Commander). I met with the Battalion Commander 2 weeks ago (again) and re-iterated how sorry I was, and I have a meeting with the Brigade Commander on Thursday of this week.


The entire situation seems incredibly strange, and I'm even more shocked that I'm actually being considered for separation. I really don't know where to turn at this point. I'm out 10K, may be processed for an administrative separation, and getting increasingly desperate. I feel like an incredible amount of Army resources has been wasted on something so capricious and arbitrary. I'm afraid to cause too much of a stir because the Brigade Commander has deep connections to Ft. Bragg, and as much as people like to deny it, back-channel communications between senior leaders happen, and I'm wary of being doomed to failure before I even get to Ft. Bragg, if I get there at all.


I know there is a lot of information to digest here, so if you need anything else from me let me know.



Thanks in advance.

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.

Can you tell me, have they convened a Board of Inquiry (BOI) to separate you? If so where are you in that process.

Also, how many years/months of commissioned service do you have currently?
Customer: replied 1 year ago.

Sir,


 


I have received no official notification of separation whatsoever, just rumors through the chain of command. I was commissioned on 26 MAY 2012, but I had previously been enlisted from JAN 2007 to JUN 2008.

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

That helps.

SO what is your question today? What is it you want to know?
Customer: replied 1 year ago.

Is there any action that I should take? Does any part of this seem illegal/unjustifiable on their part? Do I have a case to file a claim to be compensated considering they violated AR 600-8-10? I was also under the impression that if someone is being considered for separation that they would have to be notified, is this not true?

Expert:  P. Simmons replied 1 year ago.
Thanks

A few minutes please, I will type up an answer to your questions

Customer: replied 1 year ago.

Great. Thanks!

Expert:  P. Simmons replied 1 year ago.
Is there any action that I should take?

Let me first say "what is done is done"...so you can not change the past...but I sure would not give any further statements to the IO or anyone.

If they called you back to be investigated, there are potential criminal charges. It is almost never a good idea for an accused to talk to the IO. And it is never a good idea for an accused to talk to an IO without counsel.

SO I would not provide any more statements to anyone about the matter under investigation.

I would start to attorneys who specialize in military law...plenty of experienced ones out there...if you are forced to defend a BOI or court martial, TDS alone is typically not a wise move...they may be energetic but often have little to no experience





Does any part of this seem illegal/unjustifiable on their part?

Actually, it seems routine.

That is, what you describe is common...if the commander has evidence of criminal misconduct, they can recall a soldier from leave. If you have not checked into your new command, the original commander stil has jurisdiction. This comes from the AR (section 10-13) which provides


The commander is the recall authority when Soldiers are on authorized leave and are needed for return to duty for reasons of military necessity.

Again, until you report to the new command the original commander can exercise this authority.

I have seen this happen, time and time again. Typically it happens with terminal leave...but it also happens with PCS leave



Do I have a case to file a claim to be compensated considering they violated AR 600-8-10?

This may be semantics. An order is required to change leave status.

The AR provides

If travel and transportation allowances are authorized (JFTR, Vol 1, U4105 or U7220–A through U7720–D)
orders will be used to recall Soldiers (see AR 600–8–105). Direct travel questions to the local travel or transportation
officer.

SO they must cut you orders to recall...if that did not happen? Then you may have a claim for the lodging expenses you incurred. But for a reasonable period of time. Once the commander told you "you are on BAH" there is no further argument that you can collect per diem.



I was also under the impression that if someone is being considered for separation that they would have to be notified, is this not true?

It is true. Absolutely true.

A soldier must be notified in writing before they can be processed. But the due process they get to respond can be limited.

If they process you for an OTH you get a hearing...time to hire a lawyer and prepare

If they process you for a general discharge, since you are a probationary officer (less than 2 years) they can do so with no hearing...you get to make your case in writing. All the more reason to talk to lawyers now...so if you need one you can hire them immediately

Let me know if you have more questions



P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27110
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.