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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26081
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am currently in the process of being discharged from the

Resolved Question:

I am currently in the process of being discharged from the navy due to a positive urine analysis. I was sent to SARP, substance abuse treatment program and completed the program. While confiding in my counselors I informed them of an event that happened at a previous command where I was forced to have sex with another navy sailor, man on man. I have completed my check out process and now legal is telling me that is can take pers 6 months to complete my discharge. I informed them I was willing to waive my rights as I no longer wanted to take actions. All NCIS every did was take a statement from him and then I only heard from them one other time and they requested additional that I talk on the phone with the alleged offender. If is there anyway or law stating where I can stop NCIS and get legal to expedite my discharge as my mental Health Dr recommended
Submitted: 12 months ago.
Category: Military Law
Expert:  P. Simmons replied 12 months ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience

I want to make sure I understand....they are planning to discharge you early (because of the positive urine test results) but they now have you on legal hold as a witness or possible witness?
Customer: replied 12 months ago.

I was given PCS orders from Fort Sam Houston to NMCSD, Balboa Hospital as a BMET, my first actual base assignment. I could not handle mentally and attempted suicide. I went through mental evaluation and the evaluation team recommended immediate discharge as I was no longer deployable and I am a danger to myself as well as others. During my evaluation they did a drug screening and I was found positive for some unusual drug called Serax. I was sent to SARP, substance abuse treatment program and while there I opened up to one of my counsels and told them about that I was sexually assaulted at my previous base and I opened up to them about my homsexuality. NCIS took my statement as I am the victim and then they called me a few other times. I gave a statement and signed the statement stating that everything I stated was indeed factual. Now I have completed the program and completed my check out process for discharge so they can email my packet to PERS and they are telling me it could take up to six months because of the alleged sexual assault that happen to me. I told them I wanted to waive all my rights as I no longer wanted to deal with any more turmoil with the situation, I want to leave the military and move on. Is there anything I can do with Legal or NCIS or a law stating that I can waive or request them not to pursue the sexual assault any further and let the normal discharge process of about 10 days be done and let me go.

Expert:  P. Simmons replied 12 months ago.
Thank you

And I am sorry for this dilemma

But legally? You are stuck. You have no legal way to force them to discharge you. On the contrary, since you are under contract, the Navy can, if they choose to, keep you for your entire enlistment contract.

An administrative discharge based on a positive urine test is called an "involuntary separation". This means it is controlled by the command and not by the Sailor. So you can waive your rights if you like, but that will not force NCIS to drop the case or the Navy to discharge you.

I am very sorry to have to bear bad news.



Customer: replied 12 months ago.

They are recommending OTH and I am not fighting the discharge, what I am try to inquiry is there any way to expedite the process and not have the sexual assault part of it involved any longer so that PERS can complete the paperwork in the normal process. The HMC in legal is stating that sense I mentioned the sexual assault, and I never filed a formal compliant to my knowledge, it could take PERS up to 6 months to complete the paperwork but I was never given the opportunity to informal resolve the assault.

Expert:  P. Simmons replied 12 months ago.
That makes this a bit more intriguing. But it does not change the answer. But tell me...did you ever have a board? Or did you waive that as well?
Customer: replied 12 months ago.

there was no board, and I was not given an njp, I was just sent to SARP, released, brought back to base, sent to 1st LT job, very simple, completed my check out process. Had one discuss with NCIS about the sexual assault and then they requested release of medical information which I never completed and asked if I would have a conference call with the alledged offender.

Expert:  P. Simmons replied 12 months ago.
Before they can give you an OTH they MUST give you the opportunity to have a board. You can waive that....but you must be given the chance to have one...did they give you the chance for a board?
Customer: replied 12 months ago.

There was never a mention about a board, they stated that since the mental health Dr's recommended separation due to my mental health status and that I was no longer deployable and that I was a danger to myself and others they recommended an immediate discharge under general conditions, but Legal is the one that keeps on telling me about the OTH. and now the issue with sexual assault. I have asked for documentation to better understand but they are not granting it.

Expert:  P. Simmons replied 12 months ago.
Thank you

It sounds like you have not been formally notified.

One more question...have you received documents, requiring your signature, notifying you of your rights pursuant to your separation?
Customer: replied 12 months ago.

I have received my documents and signed them, but is there any way I can get legal to remove the sexual assault prior to going to PERS because legal is stating that with me being assumed having being sexual assaulted they have to report this in PERS. I just spoke to legal and per DODD 6495.02 I can request at any time to waive my rights and no longer request legal help from NCIS. My main concern if the case is closed and they have not completed the investigation how can legal apply this information to the discharge packet going to PERS?

Expert:  P. Simmons replied 12 months ago.
you may want to look at that paperwork.

You want to look at what you signed.

If you waived your right to a board, then you are done...once you waived you can not un-waive it. They can rely on your initial waiver (of the board). Once you waive your right to a board, the Navy can separate you without a board.

You can certainly waive your right to help from NCIS...that is a separate matter.

But that is not going to stop NCIS from investigating or the command from pursuing charges.

This has to do with how military justice works...it is much like the civilian system, in that a single person has "discretion" or the ability to prosecute or not prosecute. IN the civilian system, this person is the prosecutor. IN the military it is the commander. In both they have the final say. So, like in the civilian system when a person makes a criminal accusation, and they withdraws it, the prosecutor can continue to prosecute if they feel it is best.

The commander has the same power.

In your case, your recourse is to request to speak to the commander. The ship commander, or if you are at a shore command, your commanding officer. They have the final say on how your case progresses. They are the ones who can discharge you

As I mentioned prior, there is no legal means to force them to discharge you prior to your end of contract. But you can certainly request it.

BotXXXXX XXXXXne: you can make this request to your commanding officer...they have the final say.

If you feel they are being unfair? You can file a complaint with your congressman...congress has oversight over the military and can investigate complaints of unfair treatment.



Customer: replied 12 months ago.

I do apologize as I may not be expressing what I am looking in a response. Legal has informed me that since I have stated I was sexually assaulted that the process for PERS to complete the discharge is approximately 6 months. I am not fighting the discharge, I would like to inquiry is there any law or any process for which I can have them remove the sexual assault from my package going to PERS so that is does not take so long for the process to be completed. Also does the investigation have to be completed prior to Legal submitting my packet to PERS for discharge? I hope this makes sense. Thanks for all your help and patience

Expert:  P. Simmons replied 12 months ago.
I am sorry for the confusion. What you are asking makes sense. I think perhaps I am not conveying my answer very well.

The problem you face is that since you are facing an administrative discharge it is the Navy, ultimately, who controls the process. This is based on your enlistment contract.

Since you are under contract, you will remain under contract until discharged.

In your case, I understand had you not made this report, the process would be complete. You would be out.

But since you made the report, you initiated a criminal investigation. That is why they are holding you on duty...they (the Navy, specifically NCIS) wants to have you available as the investigation progresses.

Can you request that the investigation be ceased...in effect "drop charges" so you can go on with your life? Certainly. You can make that request. You would make that through your Commanding Officer. He or she would then forward that request up with a recommendation.

Ultimately it is up to the commander with the authority to prosecute this case (that may not be your immediate commander...but it will be a commander) who has to make the decision...is it important to keep you on duty? Do they even need to continue to investigate if you are not requesting prosecution?

That is the key to this...what the commander who has authority over this investigation decides.

So you can request to "drop charges"

But there is no legal mechanism that allows you to force the commander to drop charges, or to discharge you


Please let me know if you have more questions...happy to assist if I can



P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26081
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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