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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 19770
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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I received an GO art 15 and was found guilty on two charges

Customer Question

Hi there I received an GO art 15 and was found guilty on two charges one for alcohol possession and the second for false official statement when I said I intended to get rid of the alcohol. I am in the process of writing my appeal. They are taking 1000 dollars each month for two months and there was no GOMOR issued. Now that the MPI is over my clearance is still suspended and I am still unable to do my job. How much longer can the suspension continue? Can they have a show cause board on me? This is the only negative instance I have on my record.
Submitted: 1 year ago.
Category: Military Law
Expert:  Marsha411JD replied 1 year ago.

Hello,

Thank you for the information and your questions. Please note, this is NOT an answer but merely an information request. Please do not RATE my work until after you receive an actual answer. Can you please tell me what Branch of Service you are in, your rank and exactly what Article you were found guilty of for the alcohol? What was the context of the charging facts? Who did you make the false statement to and what was the situation when you made that statement? Finally, did you, or have you spoken to the personal representation JAGs where you are stationed about the charges or appeal?

Customer: replied 1 year ago.
I am a CPT in the Army, I was found guilty of art 92 and 107. It was 107 when I told the MPI inves that I intended to get rid of the alcohol. Which I did intend to do so. I had left it in the community fridge because I opened it in the office. Im appealing it especially on the 107.
Expert:  Marsha411JD replied 1 year ago.

Thank you for that reply but I still need additional information that responds to all of my questions. Still need to know what the facts were surrounding the possession of the alcohol. What is the context? Why couldn't you possess it and was the order a direct order or general order? Did you sign this statement you provided to the investigator and had you been read your Article 31b rights? Why do you think you have a basis for appeal and again, have you, or did you speak to the defense function JAGs before or after your Article 15?

Customer: replied 1 year ago.
It was a general order a friend sent the alcohol in a care package. I barely had it for two days I intended to get rid of it but forgot and it leaked in my fridge
Expert:  Marsha411JD replied 1 year ago.

Alright, well you still didn't answer my other questions. Are you not opening the question fully on a computer? If not, please do. I still need these previously asked questions answered: Did you sign this statement you provided to the investigator and had you been read your Article 31b rights? Why do you think you have a basis for appeal and again, have you, or did you speak to the defense function JAGs before or after your Article 15?

Customer: replied 1 year ago.
Im deployed in Kuwait. I did not sign a statement but did give one to the investigator. I talked to TDS who recommended going with the NJP. I am appealing because I'm being charged with wrongful posession I intended to get rid of it. MY Assistant is accusing me of drinking and offering it to him. This is all false. The physical evidence proves it, the 500ML bottle was 3/4 full when the mps took it and according to two statements enough had leaked to be all over the fridge and office floor. I received the bottle and was in a hurry I left it temporarily in the back of the office fridge because my desk was full and I intended to get rid of it. MY Assistant by nature of what he said possessed the bottle when he went in the night before the leak and picked it up. I am appealing because I am being charged with posession for holding the bottle and placing it in the fridge, when my assistant did the same thing.
Expert:  Marsha411JD replied 1 year ago.

Thanks again, although I don't see whether you said you had been given your Article 31b rights before giving your statement. This is important since you originally said you were appealing the false official statement charge and not the possession charge. Now you are saying you want to appeal the orders violation charge. So, I am not sure which charge you are appealing. If you are appealing the false official statement, then if you were a suspect when you gave your statement, but were not read your rights, then this wouldn't be a false official statement since the questioning would have violated Article 31b of the Manual for Courts-Martial. However, if you were either not a suspect or were read your rights and then gave a false statement, it could be charged. If you are saying that the clear evidence that the GO had that you did not make a false statement, then you would have a basis for appeal and just need to discuss the facts in your appeal.

As for the orders violation itself, if the order says "possession" is a violation, then it doesn't matter what your intent was as far as the alcohol goes after you possessed it, you would still be guilty of an orders violation. On the other hand the order says "possess with the intent to consume," then you can try to argue that you were going to get rid of it. However, on appeal, it is unlikely that the reviewer will second guess the GO's judgment as to whether or not they believed your version of the facts.

As for your security clearance suspension, that can be indefinite. In other words, it is entirely up to the GO as to whether your security clearance is reinstated or permanently withdraw. Obviously, if they are going to retain you in your job, instead of being relieved for cause, then they will have to reinstate you so that you can do your job. But, again, up to the chain of command.

Finally, whether or not you will go to a show cause board is also up to the chain of command and headquarters. If you are not relieved for cause, it is highly unlikely you will have to show cause. If you are relieved from you job, then it might be more likely. It really depends on your chain of commands attitude about you, your service record and the numbers of excess officers (if any), that the Army is trying to cut.

Please feel free to add facts that you didn't before or ask follow up questions if you have them.

Customer: replied 1 year ago.
I was read my rights I am appealing both charges. the false official statement is the one they are questioning because I said I intended to get rid of it. There has been no relief for cause OER. MY OER went through July 10th but I have not seen it at all. These events happened on the 23. On the same day I was brought up on alcohol charges, I was brought up on another 15-6 for allegedly leaving base and a cross domain violation both were dropped. But I am being charged with posession technically I only possessed it the moment I opened the care package and put it in the fridge, my assistant had posession of it the night before the leak and he said so in his statement
Expert:  Marsha411JD replied 1 year ago.

Alright, thank you. I don't see any additional questions, so I can't say much more, except to say again that the "possession" as long as the order just says "possession" would have occurred when you didn't immediately destroy the alcohol, assuming that there isn't proof that you knew the alcohol was coming to you and tried to hide it. In the latter case, "possession" would have occurred when you received the package. But, if no such proof, then your act of putting it in fridge versus disposing of contraband the way you are directed or allowed to, would technically be "possession." As mentioned with the false statement, please review what I mentioned about when your statement might or might not have been considered a false official statement.

Expert:  Marsha411JD replied 1 year ago.

Hello again,

I wanted to touch base with you and make sure that you did not have any further follow up questions for me from the answers I provided to you on the 25th. For some unknown reason, the Experts are not always getting replies or ratings (at the top of the question/answer page you are viewing or in the pop up box for this question), which is how we get credit(paid) for our work, that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator. Please note that Site use works best while using a computer and using either Google Chrome or Firefox.

In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at: http://www.justanswer.com/law/expert-marsha411jd/

Thank you.

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