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Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20079
Experience:  Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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I need advice on my dwi. Supposedly my chain of command is

Customer Question

Hello. I need advice on my dwi. Supposedly my chain of command is pushing chapter14 separation. I was reading on the type of chapter and it stated that this separation is only granted when there is a pattern of misconduct or conviction of serious offense. I have not plead guilty nor innocent yet at this time. So what should I do
Submitted: 1 year ago.
Category: Military Law
Expert:  Marsha411JD replied 1 year ago.

Hello,

Thank you for the information and your question. If your Command were to process you under Chapter 14-5, then they would need a civilian conviction in order to do so. However, if they process you under Chapter 14-12 c., there is no requirement of a conviction. The only requirement is that either a Board, or the CO at an Article 15 hearing, finds by a preponderance of the evidence that the DWI occurred. In other words, based on the potential punishment in the UCMJ for a DUI, this is considered a serious offense, and again, this particular session doesn't require a conviction but does require that there be a formal finding by the Board or CO that the elements of the misconduct occurred.

You would have a right to appeal any such determination if you choose if you believe that the finding was not accurate. You can see Chapter 14-12 by going to the following link: http://www.apd.army.mil/jw2/xmldemo/r635_200/head.asp

Please feel free to ask for clarification if needed. If none is needed, then if you could leave a positive rating in the box above, I will receive credit for assisting you.

Customer: replied 1 year ago.
would the police report be enough for chapter 14-12c.
Expert:  Marsha411JD replied 1 year ago.

Not necessarily, if you are eligible to elect a Board, then your counsel (JAG Attorney) could try to dispute the facts with your testimony. However, the Recorder (Government Counsel) could bring in the police officer to testify as to the facts to rebut anything you testify to. So, it really just becomes a matter of whether the decisionmakers believe, by a preponderance of the evidence, that you are guilty of a DUI. A preponderance is only just a bit more than 50% sure and there is no requirement at administrative hearing that there be a "beyond a reasonable doubt" determination.

If you can't elect a Board because you have not been in the Army long enough then, as I mentioned, you can file an appeal and in the appeal give your side of the facts. Then it would be up to the Chain of Command and Headquarters to decide whether there is a preponderance. If you were acquitted of the DUI in the civilian court based on the facts (not a technicality) that would make your case much stronger.

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