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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 18790
Experience:  Lawyer and current JAG officer.
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Administation Seperation question. JA: The Military Lawyer

Customer Question

Administation Seperation question.
JA: The Military Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: No
JA: Please tell me everything you can about this issue so the Military Lawyer can help you best. Please give me a bit more information, so we can help you best.
Customer: I am being looked at for Admin Seperation due to PFT failure. I have a knee injury and was on Limited Duty. I am currently on full duty, but the injury is unchanged. I was told that back to back PFT failures can result in Admin Seperation. I have a Passed Partial PFT in the system for last year. Since I haven't technically failed 2 in a row, do I have a counter argument with my chain of command?
JA: Is there anything else the Military Lawyer should be aware of?
Customer: I am set to PCS on June 4th. My goal is for this to happen. My larger goal is to ultimately receive a honorable discharge. My pros/cons are sufficient enough to be awarded it. I just need advise on the Admin Seperation issue.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Military Lawyer about your situation and then connect you two.
Submitted: 5 months ago.
Category: Military Law
Expert:  Allen M., Esq. replied 5 months ago.
Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. First, an honorable discharge is the typical response for a PT failure separation, so you would likely receive that level of discharge. Unless you had some other disciplinary issues in the past, the chances are very low that they would seek anything other than an honorable. Second, you have an argument here, but an Admin Sep is not court. There isn't a judge that is going to look at your argument and the commander's argument and then choose the most legally valid. Your argument goes to the commander, who can accept or reject it. Your argument is reasonable, but if the JAG office has told the command that the separation is legally sufficient, they can separate over your protests. If you have any further questions, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a top-three rating so that I receive credit for working with you today. Also, feel free to request me in the future, if you have questions concerning a different matter.
Customer: replied 5 months ago.
Thank you for the response. I understand that this would not be handled in a court room. For me to make my argument of a passed Partial PFT I would have to have my staff NCO or Officer argue it on my behalf to my company 1st Sgt or even company Commander? It shouldn't go higher than that, correct?
Customer: replied 5 months ago.
Also, just to clarify, I am in the Marine Corps. I don't know if that may affect things differently.
Expert:  Allen M., Esq. replied 5 months ago.
You'd have to submit it in a letter to your command. Certainly, the Marines are more likely to give a General for PT failures. That being said, they still look to the rest of your service before making that determination. When they serve the separation paperwork, you'll be able to argue on your behalf in a letter.
Customer: replied 5 months ago.
To be clear, does my passed Partial PFT still count as a passed PFT in the system? And since I do not have 2 consecutive years with a failing score, can I still be separated on those grounds?
Expert:  Allen M., Esq. replied 5 months ago.
If by partial, you mean a PT test that was partly waived by a profile, then yes it does count as a pass. You have to fail two in a row to be separated for unsatisfactory performance. You can be separated though for other reasons if you can't pass the PFT. If they know now that you can't pass it, then you can be separated based on a medical. That being said, it sounds like medical put you back on duty suggests that they are at least saying you are cleared for training (so, you should be able to pass to them). Having a partial pass, if they are counting that, means you don't have two consecutive fails and you can certainly make that argument to the command.

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