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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26850
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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When separation paperwork is submitted to PERS and the command

Resolved Question:

When separation paperwork is submitted to PERS and the command that is requesting the separation due to unfavorable means has informed the chain of command that the sailors check in process was never completed. The sailor checked into the command on March 12, 2013 and personally completed the process has his sponsor was not willing to assist. This was his first duty base. Also will this missing paperwork stop the separation process and what is the best way for the sailor to address this mishap.
Submitted: 1 year ago.
Category: Military Law
Expert:  Fran-mod replied 1 year ago.
We have been working with the professionals to try to help you with your question. Sometimes it may take a bit of time to find the right fit. I was checking to see if you had already found your answer or if you still needing assistance from one of the professionals.

Please let me know if you wish to continue waiting or if you would like for us to close your question.Also remember that JustAnswer has a multitude of categories to help you with all your needs from Health, Pets, Computers, Cars, Finance, Law, to Home Improvement, and more.
Customer: replied 1 year ago.

I have not found the answer and why does not Psimmons answer the question has he has answered many of my other military ?'s. Why does he only answer ?'s when he paid directly and not through the unlimited resources.?

Expert:  Fran-mod replied 1 year ago.
There is no indication on your question that this was for Psimmons. I will alert him that this is waiting for him.
Customer: replied 1 year ago.

THank you so much, he is been extremely helpful in the past and his services go beyond excellent. Thanks

Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Sorry for the confusion on this. I am away from the office this week and have limited internet. If you do not mind working with that (it may take a few hours between responses) I am happy to work with you.

So what is the goal with this...you want to know if you can use this somehow to fight the pending adsep? That is you want to know if you can use the discrepancy in the check in process to fight the separation?
Customer: replied 1 year ago.

Spoke with Pers today and they stated that the check in process would not render the adsep but the adsep would take at a minimum of two months to process. The ? is there any certain task or situation that expedite the process with pers as I have a job offer that I am wanting to except but if PERS is going to take 60 days or more I will not be able to accept the position. The delay in responses is extremely acceptable and I do understand appreciate any and all help, direction or counseling that you are able to advice. Thanks

Expert:  P. Simmons replied 1 year ago.
Thanks

So a few more questions..if I recall, they had not actually provided you written notice of the adsep...is that correct? That is, you are still waiting on them to give you the formal, written notice, of the adsep. Is that correct?

And if I understand, they are talking "OTH" as the characterization that they want ot give you, but you have NOT yet gone to Mast, is that correct?

Customer: replied 1 year ago.

I do apologize, they have provided written notice of the adsep. HMC stated they are recommending OTH due to the positive UA and on the I waived the board but no punishment was given, almost like it disappeared. My paperwork has been submitted and received by PERS in Tennessee and there is there is 3 critierias to the adsep. The positive UA, recommendation from 2 Mental Health Dr's and while I was on another command I was raped but I only gave a written statement then told NICS that I wanted the investigation to "Cease" on my behalf.


Thanks for all your help.

Expert:  P. Simmons replied 1 year ago.
Thanks

But this begs one more question

You say

HMC stated they are recommending OTH due to the positive UA and on the I waived the board but no punishment was given, almost like it disappeared.


I want to make sure I understand (since this detail is important to how the case plays out)

Did they notify you in writing that they wanted to give you an OTH? And then you signed the papers saying you did not want a board?

Or have you not yet signed anything?


Expert:  P. Simmons replied 1 year ago.
I am going to assume they gave you notice in writing and you waived in writing your right to a board.

If that has not yet happened then it MUST happen before you discharge can be processed...the timelines I discuss below are based on the time AFTER notice is given to the Sailor


First, let me say that your options are limited to “force” this. As I explained in the last question, there is no legal requirement that the military discharge you PRIOR to your end of contract. They could, in theory, hold you to the last day of your contract and then discharge you with an OTH.

I say “in theory” since there are some limitations on this.

They have an obligation to treat you fairly, based on all the circumstances.

If they are treating you unfairly? For example if your commander was dragging this out as some form of punishment? Then you would have recourse. More on that below

What you describe? You have a lot going on...

That is, it seems as though you have several things tied together. You have the fact you were sexually assaulted. The fact you apparently health concerns that may limit your ability to serve, and you have a failed UA.

The failed UA will trump the other reasons...that is, they can use the failed UA as a sole basis to separate.

Separation for a failed UA, if the Sailor waives their right to a hearing, typically takes a month or so, start to finish. It can take longer...I have seen it take several months. But such cases are rare.

Now...your case is a bit unique, with the fact there is a pending criminal charge on another service member...but that should not drag this out indefinitely. Two months? Perhaps...but no longer.

I say “should” since as i mention above, there is no legal requirement that the military discharge you PRIOR to your end of contract.

But as I also mention, they have an obligation to treat you fairly, based on all the circumstances.

And this is where it may be you can get some leverage.

If they are just “dragging this out” to punish you? That would be unfair...and I would expect the commander (or, if the commander is dragging this out, the commander’s commander) to step in and move this along.

I mentioned in the previous answer


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.


That is still true. And you may be surprised that it actually works. Again, if they are delaying this needlessly. But before I went to that step, I would have a chat with the commander. You can “request mast’ over this issue if you feel that the command is not treating you fairly. And if that is the case, the commander has the power to speed this up.

Again, the average time to process a UA failure discharge is a month. Not more.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26850
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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