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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26857
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I was given an ART 15 and a GOMOR for an alleged DUI and resisiting

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I was given an ART 15 and a GOMOR for an alleged DUI and resisiting arrest. I resisted arrest becuase I was not driving though the MPs kept tellilng me I was. Yes, I had been drinking and yes I drove to the shoppette 1 mile away. However, when the MPs showed up, I was not in my car nor were my keys in the ignition. They talked with me because my tags were expired though I had a permit at the time (long process to get tags in this state). Prior to going to court, I was given the GOMOR (permanent file) and an article 15 (restricted). Two months ago, I was exonerated an not found guilty in the state court. I am getting conflicting answers from the G1 and the TDS. I am told as soon as I ask for adjudication, my name will pop on DA radar and will be summonsed to a board. Im also being told I could just sit on it and not do anything in hopes that my name doesnt show up and do the best I can at my job. However, I was exonerated. Please advise.
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.

Sorry...not sure I understand your question. You mention MP's but you mention court...was this a court-martial or was this civilian court in town?

Customer: replied 1 year ago.

I was arrested on base by MPs and they sent my information to my command and to the state. I was given a reading in from of the CG. I was advised that if I told the CG I was not in my car that I would look like I was not taking responsibilty. Because I was drinking and the MPs consitence, I was unsure when I was in front of the CG. After seeing all the evidence (my keys were in my pocket, the windows were rolled up and the inconsitencies in the poilice reports, I was convinced that I was right), My intial memory was confirmed in that I was not in my car.

Expert:  P. Simmons replied 1 year ago.
Thank you. But you went to Art 15...and I assume you were convicted?


If so, what is your question today?
Customer: replied 1 year ago.


Yes. At the ART 15. However, the state said I was exonerated and the GOMOR and the Article 15 were based on false accusations by the MPs.


 


My question is, what can I do to fight this thing and what would be the best COA for my carrer? Should I get out of the army now before I face a BOI. Will I face a BOI (in your opinion). Will the letter from the CG to move my GOMOR to my restricted file help to retain my career? How does DA look at these things now a days? BotXXXXX XXXXXne, best and worse case? What can I do?

Expert:  P. Simmons replied 1 year ago.
If you were going to go to a BOI, I would have expected a show cause letter already. The fact you won this in court makes a BOI less, not more likely

But lets be clear about something. You were not found innocent. You were found not guilty. The standard of proof at a criminal trial is much higher than the standard of proof at Art 15. So the fact you were found not guilty at the criminal trial does not, in and of itself, mean that the Art 15 is not valid.

Please do not misunderstand...I am not telling you that you are/were guilty...I am trying to convey to you you how the Army will view this. The fact you beat the charges in a criminal forum will not automatically remove the Art 15. Quite the opposite. You can certainly apply to the Army Board of records corrections and ask that it be removed...and it may be you succeed. But it is not automatic.

Now...I have one more question for you...you say

I am told as soon as I ask for adjudication, my name will pop on DA radar

What do you mean adjudication? DO you mean apply to the board of corrections?
Customer: replied 1 year ago.


Sir-


 


What the CG told me after requesting the letter to have my GOMOR placed in my restriced file (which he said he would), he stated that two previouse Warrant Officers did the same thing (they recieved the letter from the CG and turned it into DA to get their GOMOR sent to restricted file) and were dismissed by DA.


 


However, G1 tells me that this will show up anyway when I come up for promotion to MAJ.


 


Please keep pulling this stuff from me. your questions are assisting me in narrowing down my thoughts. Thank you. Standing by

Expert:  P. Simmons replied 1 year ago.
It is not the GOMOR that is the issue...that is easy. You can get that put into your restricted file and it is not available for the promotion board.

The issue will be

1. The Art 15...how are you planning to remove that?

2. The OER...was this mentioned in an OER?
Customer: replied 1 year ago.


Negative. My OERs have been stellar.


 


My OER was due in SEP and I was marked above center of mass. After my incident and because the OER was late, my G3 went back and changed it to center mass.


 


The Article 15 is in my restricted file.


 


Will this show up to a promotion board?


 


Do I go through the same process as I would to remove the GOMOR?


 


So what you are saying, with the CGs letter to move the GOMOR to my restricted file is that DA will not initiate a BOI or a retention board?


 


Can DA even do this or is it my DIVISION who does the eliminating.


 


Again, I am being filled with a lot of mis-information.

Expert:  P. Simmons replied 1 year ago.
Thank you

You got luck with the Art 15 in the restricted file. That is not common. But it is possible...and if you have it...well, consider yourself lucky.

The restricted file is what the name implies. It is generally NOT available to promotion boards...heck, it would not do much good to fight to get records in there if it were available to promotion boards. It is also not available some other selection boards but can be reviewed prior to command selection. It is also available to DONCAF (the folks who grant security clearances)


I say generally since there are exceptions. Under DA Memo 600-2 it can be requested...here is what the memo provides

b. Access to the restricted file.
(1) Restricted file access is governed by AR 600–8–104.
(2) The board president may request that the board review information contained in the restricted file of
an officer under consideration. The board president will state the specific reasons for submitting the request. The convening authority or his designee will consider each request on a case-by-case basis. Only information directly related to the request may be provided to the board. If the request is approved, the OMPF custodian will place a copy of the approved request in the officer’s restricted file

So it is possible for them to access...but it is not common and would only be available if SecArmy approves.

As for the BOI - if you have it in the restricted file? I doubt they are going to press a BOI...that would not make any sense. If they wanted to kick you out, they would not have put this in your restricted file.

Now...for removal? If it is in your restricted file? You can file a request to "correct" the record, to remove it as inaccurate.

But as I mention, I think you will have a tough time with this...again, you were not found innocent, you were found criminally not guilty. Still, if you want to press this, I would do so with a request to the army board of records correction...you want to demonstrate to them that the record is in error...if you can do so, the board can erase the record

Customer: replied 1 year ago.


Ok. Last question (you may have answerd it but I am in the IN so please bare with me).


 


The question with the BOI is in refrence to getting my GOMOR moved to my restricted file. The CG stated he would write a letter of support to do so. Is this a good option?


 


So in your opinion, I should not be overly concerned with a BOI even if the GOMOR remains in my official file.


 


If the ART 15 was in my permanent file, that is when I should have been concerned?


 


My goal is to make Major and pop smoke. Ive had 11 years and by the time I am looked at for LTC, I will be moving on to conduct major farming operations.


 


Hopefully this is my last question. You have been very helpful.

Expert:  P. Simmons replied 1 year ago.
The show cause authority for a BOI is the 3 star...it is possible for HQDA to convene a BOI but rare if the 3 star does not.

What you describe, I do not see a BOI on the horizon...and heck, even if they brought one, you beat this in court...that makes it harder for them to get a board to separate you. I do not see it...not what you describe. I would not worry about it.

If the Art 15 is in your permanent file (not restricted file) then the selection board will see it...and you likely will not be promoted.

But you mention that the Art 15 is in your restricted file. If that is the case? I think you are in great shape.

You can still press to erase the Art 15...they are not going to punish you for this...you have the right to ask. But if it is already restricted, I doubt it will impact promotion to Major.

Now...for the GOMOR? You can and should request that be moved. I would. And with the acquittal out in town on the charges, I think you have a great case to make that happen. They are not going to give you a BOI for making that request...whomever is telling you that I think is flat wrong. YOu have every right to make such a request...HQDA is not going to punish you for that by convening a BOI.

Customer: replied 1 year ago.


I want to say thank you for giving me the straight answers. This has been a horrific ordeal and have felt the full weight of the United States Army on my shoulders.


 


However, I placed myself in this position so I am the only one to blame. With that being said, 15mins does not constitute ones carrer but unfourtunatly, it is becoming that.


 


Again, thank you for your time and consideration. I am very pleased with the service and will mark the face as such. blessings. v/r CPT Mark Fisher

Expert:  P. Simmons replied 1 year ago.
You are welcome.

Best of luck through this fight

Phil

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26857
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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