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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27019
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hello, Please bear with me as I attempt to explain the entire

Resolved Question:

Hello,

Please bear with me as I attempt to explain the entire situation in order to receive the best response. Also there are a lot of things that I am not proud of that I will tell you, and I am currently working on those issues.

I joined the Marines in 2007 in which I had two driving under the influence charges. I was granted a waiver for this, but never disclosed to them that I had received alcohol treatment on my enlistment contract on DD Form 2807-2.

I reenlisted in 2010 at my 3.5 year mark and the following day I was arrested for drunk driving, and received NJP. In addition to that I had to go see the SACO and was sent to outpatient treatment which I completed.

Fast forward to today, I am being charged with article 92 and 134, of which I am guilty of both. These charges are alcohol related and I again had to see the SACO. After filling out the paperwork I decided to be completely honest and disclosed of my past treatment prior to joining the military.

My question is, can they possibly look at separating me for fraudulent enlistment for not disclosing my prior treatment, or has the statute of limitations passed? I have not been questioned directly by anyone yet if I disclosed this prior to enlistment, and before I say anything, I'd like to know what the consequences are.

Additionally, they are going to attempt to administratively separate me for a pattern of misconduct but my EAS is only 6 weeks away. The command seems to be very intent on attempting to separate me prior too. I was threatened with a special court martial if I did not sign away my right to an adsep board and accept NJP. My thought is that if they get me to sign away my adsep board then it will expedite the separation process. So I told them I would accept court martial because I wanted the opportunity to speak on my behalf and have an attorney. Plus I already have a criminal record, so whats another misdemeanor charge? But if they were willing I would accept NJP and not waive my board. Amazingly enough the command agreed and I still get to keep my adsep board.

Anyways, back to the real question. When I get my NJP and if the CO asks if I disclosed my prior treatment for alcohol, how should I respond? I don't want to say yes because now I'm lying about something that an easily be verified, and I don't necessarily want to say no unless the statute of limitations has passed. Additionally I don't want to avoid the question as I will be standing in front of the CO for my punishment and would prefer not to appear like a belligerent/uncooperative Marine.

Please keeping in mind my EAS is less than 6 weeks away.
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.

Marine, first the bad news. If the commander wants to give an OTH 6 weeks is an eternity. I have seen notification to separation (oth) in 36 hours. So 6 weeks is nothing. Please do not assume that 6 weeks is not long enough...it is more than enough time.

On to your questions

When I get my NJP and if the CO asks if I disclosed my prior treatment for alcohol, how should I respond? I don't want to say yes because now I'm lying about something that an easily be verified, and I don't necessarily want to say no unless the statute of limitations has passed. Additionally I don't want to avoid the question as I will be standing in front of the CO for my punishment and would prefer not to appear like a belligerent/uncooperative Marine.


You can and likely should refuse to answer that question. There is no statute of limitations for this charge. The statute of limitations comes from Art 43 UCMJ. It states that the statute is tolled when

(f) When the United States is at war, the running of any statute of limitations applicable to any offense under this chapter--

(1) involving fraud or attempted fraud against the United States or any agency thereof in any manner, whether by conspiracy or not;



We have been at "war" since 2003...since this a fraud charge there is no statute of limitations.

I would invoke your right to remain silent under Art 31 UCMJ and leave it at that.

Customer: replied 1 year ago.
So is this grounds for fraudulent enlistment, even though I have reenlisted and am not on my initial contract?
Expert:  P. Simmons replied 1 year ago.
Could be...since it goes back to the initial enlistment. If that is void, the all subsequent enlistments are void

Customer: replied 1 year ago.
So when speaking with my CO and that question arises, is it an admission of guilt by simply claiming I don't remember that being a question so I don't know the answer? By invoking my right to keep silent, only raises questions and will without a doubt cause them to look into it. Is simply stating I don't know acceptable?
Expert:  P. Simmons replied 1 year ago.
That would be a lie...so I would not lie, since they could prosecute you separately for lying

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27019
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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P. Simmons
P. Simmons
Military Lawyer
27019 Satisfied Customers
Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.