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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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I am facing a chapter 14-12c, schedule to talk to TDS on Monday.

Customer Question

I am facing a chapter 14-12c, schedule to talk to TDS on Monday. The charge is "failure to obey my commanders order on 27 apr to complete my pre-separation brief at ACAP" and disrespecting my supervisor. He checked "OTH" on his paperwork. preceding this was an Art 15 for failing to report to PT on date in May. It was a summarized. To me this is grounds for an Article 15 at most not a chapter especially not a serious offense. Is this really grounds for a Chapter 14-12c?
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.

It is...that is, technically, in order to process for a 14c discharge you see it provides

Commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM.

And the maximum punishment for violation of a lawful order does include a punitive discharge.

SO they can process for an OTH

Now...I agree with you, this seems a bit silly.

But they can do it...that is they can process for a 14-12 c based on an orders violation.

The good news, for you, is that you get a hearing. And a lawyer. SO you can present evidence at the hearing that an OTH is not appropriate in your case. If you can show eiher that you did not disobey the order, OR that even if you did, it does not rate separation, I would expect the board to recommend you not be separated.


Let me know if you have more questions...happy to help if I can
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.
P. Simmons and 3 other Military Law Specialists are ready to help you
Customer: replied 1 year ago.

How do I demonstrate it does not warrant separation? I was not informed by my 1SG. I was told me meet my commander at our MPD building and 2 minutes before he walked me to ACAP he told me I was getting chaptered. When I was there I a retiring E6 that was EO thought this was wrong and I should talk to legal and IG about it. Later on I completed everything I was told too once I understood everything.

Expert:  P. Simmons replied 1 year ago.
The best way is if you can show you have support from folks above you...are they any SNCO's or Officers who would write letters of support in your favor?
Customer: replied 1 year ago.

I have some SNCOs and NCOs and some officers that could write me character witness letters to show support for me staying in.

Expert:  P. Simmons replied 1 year ago.
How bout your history? ANy prior Art 15's? how many?
Customer: replied 1 year ago.

I got a summarized art 15 the 1st week of May for failing to report to PT. 2 years ago I got a PL40 (I think it is an administrative action not technically an art 15). Sept 2009 in a completely different unit I got a field grade when I was a E5 for using a government travel card to pay my cell phone bill. I was honest about it and the LTC in the other unit sealed it. But on ERB it shows DOR for SGT Dec 06 and DOR for SPC Sep 2009. I been in the Active service since Jan 2004. 12 years reserve before that.


 

Expert:  P. Simmons replied 1 year ago.
Well...it is not a spotless record...but not a horrible one either.

As the adage goes, "it is what it is"

They want to give you an OTH? THey have to give you your "day in court"

It is not technically court...it is an administrative board. But you get a lawyer and the chance to challenge their evidence and present your own

SNCO's/Officers who will say good things about you? THat is huge. That can be very helpful

The other thing I would consider is hiring a lawyer

TDS will give you an energetic attorney with little experience. If you hire a lawyer, you pay for the experience...that can be very helpful in a board. If you win (avoid the OTH) that saves the majority of your VA benefits, which can be worth literally hundreds of thousands of dollars over your lifetime...so you want to fight the OTH.

Customer: replied 1 year ago.

A friend told me I could do a plea bargain where I offered to not do the separation board in return for an honorable. does that usually work?


 


2nd, I am stationed in S. Korea, is there a place where I can hire a lawyer here?

Expert:  P. Simmons replied 1 year ago.
It can work Depends on the case...if you demand a board, then have your lawyer submit a request to waive the board in return for a particular discharge that can work. But typically it will only work for a "general" and not for an "honorable" dischargee

Most of the lawyers I know in the US will fly to Korea to defend soldiers. Costs a bit more (you have to pay for the flight and time) but it is possible
Customer: replied 1 year ago.

the Other than Honorable has to approved by a CG also from what I understand also. So it is hard to get an honorable from a board if I were to take it to the panel?

Expert:  P. Simmons replied 1 year ago.
Yes....it is hard to get a full honorable, unless you can prove you are not guilty (which can be tough to do)

SO if you go to a board, you are fighting for a general discharge...that is a win. Is a full honorable possible? Perhaps..but again, the fight is to avoid that oth
Customer: replied 1 year ago.

will it effect my VA disability claim having a general discharge?


Since I been here three years I have even gotten the BDE commanders coin but he just recently left and he knew me by name.


The BN commander I think will just go with whatever recommendation is listed. Does it help to talk to the BN commaner and possiblity the BDE commander? I know the BDE commander is ususally the approving authority with general and above.

Expert:  P. Simmons replied 1 year ago.
A general discharge has no impact on VA benefits except the GI Bill

You want to have your lawyer talk to the commanders...at this point it will not help you to talk to the commander.
Customer: replied 1 year ago.

does my time in service help, hurt me or is it indifferent in this case? I have 22 years in federal service, almost 11 years active with my credit for reserve time. How much do you think it would cost to win a case like this?

Expert:  P. Simmons replied 1 year ago.
I think it helps. If you can get support from superiors. As to cost? You have to ask the lawyers who can take the case.
Customer: replied 1 year ago.

how does a general effect my unemployment benifits?

Expert:  P. Simmons replied 1 year ago.
It is not the characterization but the basis that matters. If you are separated for misconduct most states will not extend benefits.
Customer: replied 1 year ago.

Thank you for your help.

Expert:  P. Simmons replied 1 year ago.
You bet...best of luck in the fight

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