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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33805
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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My son is at Fort Gordon for AIT. He called us and said that

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My son is at Fort Gordon for AIT. He called us and said that he failed a test two times and they are sending him home. He says he has asked to be reclassified but his CO still insists on sending him home. Can they really do that or should he be given the opportunity to reclassify.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Sorry...was this a physical test or a written test?
Customer: replied 3 years ago.

The test was a written test in his tech school. He said he was given the opportunity to take the test a second time and failed it the second time as well. Here is the strange part...he appears to have been doing very well up until we got the phone call about a month ago that they were sending him home for failing the test. He was able to go off base and even came home for Memorial Day weekend. He said that his CO mentioned reclassifying him but after three weeks came back and said that in fact they were not going to reclassify but were going ahead with the general discharge under honorable conditions.

Thank you

I am sorry for this dilemma

You ask a couple of questions

Can they really do that or should he be given the opportunity to reclassify.

I will try and address them separately.

Can they separate him for this? Yes. They can. Under the rules, if a service member has been on active duty for less than 6 months they are subject to an "entry level separation". This is akin to being on probation in a job...the employer can release the employee during this time frame if they

"Cannot meet the minimum standards prescribed for successful completion of training (i.e. PT or Weight standards, academic) because of lack of aptitude, ability, motivation or self-discipline."

So failing the same test 2x can be a basis for this separation.

The tough part for the soldier is they have very little in the way of due process. They are permitted to submit matters in writing to contest this. The matters will be reviewed by the separation authority (the commander who has the final decision on whether to separate or not) prior to decision.

So your son can submit a written statement as to what happened, and why it will not happen again. He is also allowed to submit statements from others in support. So, for example, if his direct supervisor is willing to draft a letter of support, your son can include that as well. Your son can visit JAG at the TDS (trial defense services) and they can give him some assistance in this matter.

But the botXXXXX XXXXXne is that he can be separated for this.

Now...should he?

That is a different question. Typically if this is the only stumble it would NOT result in a discharge. So there may be more to the story. It is my experience that the parents often are not apprised of the complete set of facts that lead to disciplinary proceedings. If this is truly a case of failing one test twice and otherwise he has a stellar record? I would (were I him) fight to remain in. If he can get letters of support from his chain of command I would expect the separation authority to consider retaining him.

But if there is more to the story...if he has had discipline problems, or other issues, that could be why he is facing discharge now and would make contesting this very difficult.

Customer: replied 3 years ago.

I should have added. This is not an entry level separation. He was about to graduate from AIT. He went to boot camp in November.

Thank you. That makes it a bit more complex...they can only separate him if they counseled him after the first test. Do you know if that happened. Did they give him counseling in writing after the first failure?
Customer: replied 3 years ago.

No, I don't know that part. I'd imagine that they did though if they did after the first failed attempt. Like I said earlier, we were under the impression that all was well until we got the call from him which was after the failed second attempt. So, if they counseled him after he failed it the first time and he failed it again then they would not consider reclassifying him to another MOS. I'm inclined to agree with you that there is more to this story but feel like I need to be reasonably sure before I start assuming.

The difference between the ELS and a regular separation is that after the 6 months have passed, they can only separate for this if they had given him a warning prior (called counseling).

If they did not do this? Then under the rules they can not separate.

If they did? The analysis is exactly the same as I described above. He can challenge this, but only in writing.

Take a look here

This is the regulation that applies

This would be a "chapter 13"...starting on page 93 you are review the regulation to see how it applies.

This is the key provision

13–4. Counseling and rehabilitation requirements
Before initiating separation action against a soldier, commanders will ensure that the soldier has received adequate counseling and rehabilitation. Because military service is a calling different from any civilian occupation, a soldier should not be separated when unsatisfactory performance is the sole reason for separation unless there have been efforts at rehabilitation

SO they have to have given him notice and a chance to correct the issue. If they did, and he failed again? That is basis to separate.

Customer: replied 3 years ago.

Yes, we have read exactly what you suggested. Thank you for your help and can I ask one last question, which is strictly based on your experience in dealing with this kind of stuff. Do you THINK that they would take what has appeared to be a good kid and not at least try to reclassify? He has never been in any trouble and there is no reason for us to think that he has been a trouble maker since enlisting. However, hearing about military downsizing and such would the Army consider one warning and a second failed test grounds for discharge as opposed to reclassify when the soldier has asked for a second chance in another job?

To answer the question

would the Army consider one warning and a second failed test grounds for discharge as opposed to reclassify when the soldier has asked for a second chance in another job?

The answer is yes...this happens often...but perhaps for different reasons. Every case is different. I mean I have seen kids who have great potential, but commit a mistake or two and the commander believes they need to be discharge and so they are.

I have seen kids who may not have great potential...but have a good reputation in the unit and are able to get 3rd or more chances.

But that is life, no?

I mean the Amy is simply a bureaucracy...with all the human failings inherent in any bureaucracy. People have prejudices and beliefs and make decisions accordingly.

Typically commanders (the person who makes the decision to separate or not) are well is not easy to rise to the level of commander and the Army generally does well to screen out folks not suited. So I would expect the decision maker here to be fair. But they likely do not know your son are following recommendations of subordinates based on their knowledge of the subordinate.

The rules allow discharge after a failed test. But do not require there is discretion.

That is why exercising due process may be worth the effort. Having your son collect letters of support, and writing his own letter will at least give the commander a bit more information on which to make this important decision.

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