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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26141
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hello- I have a complicated situation for you all. About

Resolved Question:

Hello-
I have a complicated situation for you all.
About me: prior service NCO Army reservist currently in AIT training
Situation: Received a counseling statement for "making a false official statement and oral false statements"
About:
First and foremost, obviously I have no reason to lie to YOU so please hear me out. On a Tuesday, I asked a school instructor if we could start cleaning early prior to dismissal. She replied NO. I said fair enough.
The following day, 5 minutes early to cleanup, instructor states she has changed her mind and will allow us to clean early.
So, at 1620, we begin cleaning. At approx 1625, I begin dismissing Soldiers and I myself leave. At this time, apparently, another NCO asks if "we are good to go?" Instructor says no and retrieve folks who have left and went to form up. They got everyone but me.
So, I was questioned on this. I stated, once we begin cleanup and finish, I'll start dismissing Soldiers to go form up who aren't doing anything.
A NCO interrogates me and has me sign a waiver. I write a sworn statement 100% true on events from 1620-1625.
Following day, senior NCO has class write sworn statements. All state the instructor said that at 1620 to begin cleaning and that she didn't say 1630 would still be release time.
Senior NCO then interrogates me again on how I've dismissed Soldiers in the past. He asks me questions without my rights. He claims that I verbally lied when I said upon clean-up duties, I begin dismissing Soldiers without asking for permission. Other NCOs have corroborated my claim.
He then interrogates me again after I voluntarily goto his office and tell him I have proof I wasn't lying. He asks about a "playful" conversation I had with the instructor about starting cleanup early. I said yes, that did happen. He accuses me of lying on my sworn statement that I just admitted we had this conversation. I then deny making that statement since my sworn statement only contains events on WEDNESDAY from 1620-1630 and not conversations on the prior day. He said, in my counseling, that because I claimed I DIDN'T make that statement after I said it didn't happen, that I lied and his senior NCO buddy can vouch.

So, I've been removed from class. I've voiced to my chain of command that the 2nd and 3rd interrogations that I had DIDN'T involve reading my rights whatsoever. But regardless, this is a drastically major miscommunication and I'm extremely stressed since being removed from AIT is grounds for OTH discharge. Moreover, no UCMJ is being pursued. They are just trying to remove me from AIT for some reason.

Questions: should I retain TDS? Should I appeal the removal of course? I was told by my PSG that "there is no way you're going back to the schoolhouse" even though my PSG explicitly stated when reading the whole packet that "yeah, it looks like you didn't lie."

BotXXXXX XXXXXne : I never lied!!! I may have made confusing statements but doesn't mean I lied!! WTF!?
Submitted: 11 months ago.
Category: Military Law
Expert:  P. Simmons replied 11 months ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I will attempt to address your questions in order...but first let me say this sure seems petty...that is, what you describe, it sure sounds petty.

Questions: should I retain TDS?

It is not actually possible to "retain" TDS. You can ask them if they will represent you on this...what you describe it does not sound like a case that TDS will take. Typically they will only represent a soldier if there are pending charges or a pending chapter. Still, very TDS shop has their own policy on what cases they will or will not take. So you can certainly ask them to assist you. Just understand up front they may refuse at this point (though if you are chaptered they will then represent you)



Should I appeal the removal of course? I

Yes. I would. What you describe, it sure sounds like there is "more going on".

Not sure what that may be. It seems clear that they have something against you. Whether that is based on prior documented misconduct, or misperception, no way for me to know. But you can certainly appeal this. What I would consider doing is filing an Art 138 UCMJ complaint. This is a formal complaint against your commander (the school commander). It is sent up to the general officer who will investigate.

To file one is simple...you put your complaint on paper, make sure you state that it is made pursuant to Art 138 UCMJ. Hand to any commissioned officer. They will do the rest.

I would ask TDS if they can assist you with the Art 138 complaint, perhaps they will review it for you before you launch it.

Customer: replied 11 months ago.

Thank you sir.


 


This, in my opinion, is extremely petty. But, it seems everyone is "against" me even though this is AIT and I'm a Reservist.


 


I have no prior record. The instructor states she "repeatedly" stated at 1620 that 1630 would still be release time. BUT, I have multiple sworn statements from others that she said only to cleanup but nothing about 1630. So, I, as an NCO, began telling Soldiers to form up and get to formation including myself at approximately 1625.


 


The senior NCO is clearly taking her side. He mentions NOTHING about the class sworn statements in his counseling removing me from the course.


 


So my question is if I get removed from the course (since I don't wish to appeal and want to get the hell out of here over this nonsense), will it result in an OTH discharge since I have "failed" to qualify for my position?

Expert:  P. Simmons replied 11 months ago.
They can only give an OTH if they can prove misconduct. AND they have to give you a hearing AND a lawyer from TDS to fight this case. So I doubt they go that route. More likely they will give a general discharge.

Customer: replied 11 months ago.

Ok that is unacceptable. I plan to fight this.


 


Again, no UCMJ is being pursued. I would think, if some guy lied to me, I'd pursue UCMJ no matter what. Also, shouldn't the senior NCO read me my rights each questioning session?


 


Fact is, this is extremely confusing with the whole "he said, she said" kind of thing. Would a article 138 complaint really resolve my situation or make it worse!? I'm trying to get back into class ASAP if I can.

Expert:  P. Simmons replied 11 months ago.
The way back in class, in my opinion, is through the school commander. If that fails, then Art 138 is your best recourse.


As far as "reading rights" it is true under Art 31, UCMJ before they question you, they must advise you of your rights. But practically speaking, unless they take you to court martial there is no recourse to you for them not abiding by this requirement. IF they do take you to court martial, you can have any unwarned statements suppressed

Customer: replied 11 months ago.

Ok, tracking on all you said. Great information.


 


I'm still stuck on this Article 138 process. It seems that this is for UCMJ proceeding but no UCMJ is bring brought against me. I'm just in a "hold" status while being removed from the course.


 


Either way, the senior NCO, in my opinion, has really screwed me over. I don't think this should happen to anybody: false accusations that may hinders one career. Should I bring IG into play given he is using statements, without reading me rights, against me? But the fact is, these statements are misconstrued in that he asks "did you have this conversation?" I reply YES. "Well you just lied on your sworn statement." Then I reply "uh, I deny making that statement on my sworn statement since that convo happened a different day!" But the senior NCO believes that it happened that day but I have sworn statements saying it didn't. Clearly, he removed me from class without a thorough investigation, right?

Expert:  P. Simmons replied 11 months ago.
Art 138 is not for UCMJ. It is used when a soldier is treated unfairly by their commander.

It is similar to IG...and you can go the IG route if you like instead. They both lead to the general officer.

That is why I would first appeal to the school commander, then if that does not work I would file an Art 138 UCMJ complaint
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26141
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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