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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33481
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Trying to figure out if a Command investigation was properly

Customer Question

Trying to figure out if a Command investigation was properly conducted. I never received the IO's report to provide rebuttal to any information. I was wrongfully punished with a NPLOC and then the CO gave me a declining FitRep. The instructions clearly state who is responsible but I was implicated as being responsible even though I did my due diligence. THe other senior officer failed in their duties but I was included as well. So, I am going to a BCNR.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.

I am sorry for this dilemma...but do not see a question. Do you have a question. Are you asking how to file with BCNR?
Would it help to chat on the phone? I can make that available for $5

Customer: replied 1 year ago.
I know how to file a BCNR. My question is how is a command investigation conducted? Does the IO have a legal obligation to present their findings to me for rebuttal and review. I never saw the IO's report. I just was presented my bravo rights and escorted the XO and handed my NPLOC. I was told that I was charged with failing to follow an order from a 2003 local instruction. It was about receiving reports from an outside Command appointed board that inventories my pharmacy's controlled substances. Nothing was missing or out of line. The senior board member always verbally reported there were no issues but apparently he was not keeping reports or lost them. Anyway, they thought I should have know the senior member was not doing his job because the instruction said I should be getting reports. THe lnaguage was very vague and explantory on what reports I should get. I did not say shall but should, which impies to me that reports are given to me when their are findings that I need to correct. This is how it normally happens. The higher level instructions say the Senior CSIB memeber is responsible for the reports not the pharmacy department head. So, I feel the investigation was unjust and done in error because the IO and CO did not understand my role and did not provide me due process because they did not allow me to rebutt the IO's investigation report.
Expert:  P. Simmons replied 1 year ago.

The JAGMAN is the regulation that covers this.

If you take a look at the JAGMAN you will see the IO has no obligation to interview you, or allow you to "rebut" anything. So taking that tact with the BCNR will not likely help you.

HOwever, if the investigation is flawed, that would be a basis to appeal to the BCNR.

This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that the JAGMAN gave you a right to rebut, but I can only provide you information based on the law so that you can act on the best available information to you...I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

Customer: replied 1 year ago.
No, that answered my question about the rebuttal. What about the shall and should wording? I often here it is a relevant legal term and it may bring merit to the error in the investigation. As stated the local instruction does not define what report I am to receive. It is very unclear on the circumstances of when I should receive a report. Also, higher level instruction puts the responsibility clearly on the senior CSIB member not the pharmacy DH. I was just wandering if this seemed like a reasonable defense to shoe an injustice or error in the investigation?
Expert:  P. Simmons replied 1 year ago.

Sorry...not sure what you mean...you think the wording of the regulation is vague?

Customer: replied 1 year ago.
I is not clear on what type of report. The CSIB generates several reports. None of which are reviewed by the pharmacy DH. THey are routint reports sent to the CO saying what they did. I assumed it was referring to a report of controlled substance process or quantity discrepancies that I had to address to avoid further occurrences. Those are reports I am familiar with but not routine inspection reports that indicate no issues. Pharmacy does not get those type of reports or retain them in the pharmacy. CSIB is supposed to be independent from the pharmacy. It acts as the CO's oversight committee to ensure controlled substances are being properly managed. THe Pharmacy DH is totally blinded from the inspection to avoid a conflict of interest. So, I feel that if I did not get a report, it was because there were no issues from me to address. That is the way I interpreted the instruction and the word should versus shall.
Expert:  P. Simmons replied 1 year ago.

Thanks

I understand you believe the vague regulation is the cause of this...and I agree legally there is a different between "shall" (which makes it a directive) and "should" (which serves more as guidance)
And you can certainly make this argument to BCNR

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.

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