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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15461
Experience:  Lawyer and current JAG officer.
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I have a long story and question to ask of you. I have been

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I have a long story and question to ask of you.

I have been in the military for almost 18yrs. I was stationed as a Commanding Officer of a ship from 2009 - 2012. During that timeframe, I was ranked as the "best CO" in my area with extremely strong evaluations. After, I left for graduate school, earned a masters degree over the course of a year, and arrived at my new assignment in Jun 13. In Dec of 2012, I received an email from my previous command that my command climate was being investigated due to a complaint. I complied with the email and contacted the investigating officer with my contact info. The investingating officer told me that he had been given two weeks to conduct the admin investigation. After 2 months of not hearing anything, I contacted a lawyer. The lawyer filed a letter stating that he was representing me and attempted to contact the legal staff at my previous command. We are now at the 7 month mark and they willl not allow me to participate in the investigation. I haven't seen or heard anything official but I'm hearing that i am being given an alcohol incident for an alleged incident dating back to Dec 11. I'm also hearing informally that the original complainant lodged 22 various complaints of harrassment against me and my command. I've also heard that the report says that all of the charges are unsubstantiated. All of this is through "back channels" as the investigating officer has never contacted my for a statement on anything.
It now appears that the investigation is over and my previous command is moving forward with an alcohol incident (that didn't even involve the complainant). Don't know the details of the allegations, but I can tell you its very much a "he said/she said". No police involvement, no fight, no abuse to my sailors. I believe the charge is from alledgedly being too intoxicated at a bar. If i receive this, this will be my second documented alcohol incident and the policy states I must be processed for discharge.

Here's my question. What are my legal rights? Does my previous command have the authority to assign an alcohol incident to me since I am no longer in there chain of command? WIll I ever get a chance to speak to the allegations? Just because I am "processed" for discharge, does that mean I WILL be discharged? Can you explain the Board of Inquiry and if I'm entitled to one? Thanks.

I have a lawyer but just wanted to hear a second voice.
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

 

1. Yes, your previous command can note the incident even though you are not in their chain of command. You were in their chain of command when the incident occurred, or at least, when the incident that they are alleging occurred. They will, however, need the cooperation of someone in your current chain of command in order to do anything more than simply documenting the incident.

 

2. Yes, you'll get a chance to speak to the allegations in some forum. For the incident to have any effect on your career, it has to go into some sort of permanent file, be that a performance report, Letter of Reprimand, or some greater level of legal action. You aren't entitled to speak to the issue until they actually choose a course of action and then, that is when your ability to rebut their statement takes effect.

 

3. No, just because you are processed that does not mean you'll be discharged. With your career, you would legally be entitled to a board hearing before you could be considered for discharge. You would have representation by counsel and the opportunity to rebut any evidence in a trial-like process before you could be discharged.

 

4. A board of inquiry or court of inquiry, under Article 138 of the UCMJ, is just a formal process for you to question the actions of command. However, the disciplinary process and investigatory process of a command are not subject to that sort of inquiry. This is because any disciplinary action to be taken comes with it's own due process. A board of inquiry simply provides the means for a person to question discretionary practices of a command where the decision don't have their own due process built in.

 

For instance, you could do a court of inquiry concerning how people were selected for certain schools that would help their career. You can't do it for how a Captain's Mast was processed though, because that process has its own due process built in.

Customer: replied 1 year ago.

Thank you very much for the info. Just a follow on to make sure I have this right. My former command can conduct an investigation, document everything, and make recommenations, but my current command is the one who will need to act on those recommendations. The former command will not be able to put an adverse administrative letter in my record, it must come from my current command?

Expert:  Allen M., Esq. replied 1 year ago.

Yes, that is generally correct. Your current command is the only command with jurisdiction to rate you, counsel you or initiate any administrative/legal actions against you.

 

Now, your former command can place a letter in your record, because that is not a jurisdictional matter.

Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15461
Experience: Lawyer and current JAG officer.
Allen M., Esq. and other Military Law Specialists are ready to help you
Expert:  Allen M., Esq. replied 1 year ago.
And just to clarify, while they wouldn't need your current command's cooperation to write up something for your record, they would need their cooperation to have it filed in anything more permanent than a local filing.

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