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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26836
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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3 year 2 month Marine ADSEPed for adjustment disorder.

Resolved Question:

3 year 2 month Marine ADSEP'ed for chronic adjustment disorder. Given general(under honorable conditions) instead of honorably. I don't have any NJP's, page 11's, 6105's or anything. What is the likely hood of filing for a DRB and coming out of it with an honorable or is that a hope i should just let go of?
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Marine, that is a tough one to fight. The reason is that in order to force a change of the characterization (from general to honorable) the Marine would have to prove there was "error or injustice"

And if you look at the MARCORSEPMAN (the regulation that determines how separations are conducted) you will see that for separation for adjustment disorder, they separation authority can award a characterization of either honorable or general, under honorable conditions.

So you would have to prove "abuse of discretion"....basically the rules allow the commander to give a general discharge...you have to prove that based on all the circumstances they should have given an honorable.

Still you have a good point. No NJP's, no counseling, good record overall...so I am not going to tell you that it is impossible. I would look to your pro/cons. What are they? Are they high in service (4.6 or above average)? If so I would consider filing. If you can show that you were a very good Marine in service, but simply were forced out near the end of your contract, it may be you can convince the NDRB to give you the upgrade.


Please let me know if you have more questions...happy to assist if I can
Customer: replied 1 year ago.

I apologize for the late response due to the login acting interesting with me.


 


What would a misuse of discretion look like when i had a recommendation from my command for an honorable discharge, 4.2/4.3 pro-cons and the other things i listed in my initial question.



I was given the idea of speaking to my equal opportunity rep. because i spoke to legal at the time i received the news and asked them if everyone in my position gets the same as i just did and he said, " You are the first one i've seen".



Also, I was considering a request mast but not until i know on what grounds or how to conduct the process properly so i don't look like a fool while speaking to any of the higher above's especially if i make it to the man who wrote me the discharge. I will also this weekend type up a rebuttal on how I think this should be changed to show my dedication.



If i make it to the civilian world without finishing this, how much would a military lawyer cost to assist in the resubmittal to a Discharge review board. Chances of success? Generally how long of a process will that take.



I apologize for the multiple questions/ scenarios that ive listed for advice on but I don't want to miss my opportunity or just lay down on this one. I appreciate your help in this

Expert:  P. Simmons replied 1 year ago.
The cost to have a lawyer help you appeal this? That depends on the lawyer. And chance of success? That depends on the evidence you have.

As I mention, they can give a general discharge. The rule is clear on this.

The MARCORPSEPSMAN allows that...so you have an uphill battle to prove that them giving you a general was an abuse of discretion. But like I mention, if you have above average pro cons? Or can point to some other evidence to show that they did not treat you fairly? That can be enough to get the NDRB to grant an upgrade.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26836
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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