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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 33073
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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We just my husband did not receive a phone call until about

Customer Question

Hello, so we just my husband did not receive a phone call until about 1500 this afternoon asking him to come him to fill out a packet which he found odd. The he is told they just figured out he no longer falls under anyone. Meanwhile he tells them he will be there shortly he had to bring us home and change. He gets another text saying top wants to see you when you get here. So he got to work after 2 1/2hrs of being screamed at he is informed he had missed a 0700 formation. He was never informed about now. His platoon SGT never even told him in the earlier text. Top is now recommending him for an article 15. What can we do?
Submitted: 1 month ago.
Category: Military Law
Customer: replied 1 month ago.
Hello, so my husband did not receive a phone call until about 1500 this afternoon asking him to come him to come fill out a packet which he found odd. Then he is told they just figured out he no longer falls under anyone. Meanwhile he tells them he will be there shortly he had to bring us home and change. He gets another text saying top wants to see him when he gets there. So he got to work after 2 1/2hrs of being screamed at he is informed he had missed a 0700 formation. He was never informed about. He has not received any notes from his platoon SGT in months they have even removed him from the call roster. His platoon SGT never even told him in the earlier text. Top is now recommending him for an article 15. They also just found out he has officially started the MEB process. What can we do? Please help
Expert:  P. Simmons replied 1 month ago.

Hi, My name is***** am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Expert:  P. Simmons replied 1 month ago.

I am sorry for this dilemma. But not sure I understand your specific question. Do you have a question regarding this? Are you asking if they can take this to Art 15?

Customer: replied 1 month ago.
apparently they had formation yesterday being Saturday that his command never informed him of. No one called or text him until later that afternoon. He still didn't even know about missing a formation. Now his 1sgt is saying he is recommending an article 15 for missing movement.
Expert:  P. Simmons replied 1 month ago.

Thank you
They can take this to Art 15. If they believe he committed criminal misconduct, the commander can bring this to non judicial punishment.

That said, your spouse has the right to refuse...so if he was never informed? He can refuse Art 15 and take this to court martial.

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 month ago.
What will this do to his MEB process?
Expert:  P. Simmons replied 1 month ago.

This would stop the MEB process until the allegations of misconduct are resolved.

Customer: replied 1 month ago.
Do we just go speak with jag?
Expert:  P. Simmons replied 1 month ago.

After they read his rights for Art 15 he can speak with JAG...so he has to wait until the bring this to Art 15.

Customer: replied 1 month ago.
Can you explain to me how him missing formation is missing movement? From what our understanding is this can be enforced only over substantial distance and substantial time.
Expert:  P. Simmons replied 1 month ago.

You are correct, Art 87 (missing movement) has the following elements

That the accused was required in the course of duty to move with a ship, aircraft or unit;
That he knew of the prospective movement of the ship, aircraft, or unit;
That the accused missed the movement; and
That the missed movement was either through design or neglect.

So there would have needed to be some "movement" of the unit to charge Art 87

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.

Expert:  P. Simmons replied 1 month ago.

Hi
Experts on this site (myself) are compensated ONLY if the customer (yourself) "rate" or "accept" the answer.

Do you have more questions regarding this?

Thanks for your understanding
Phil

Customer: replied 1 month ago.
Sorry I just want to make sure I understand....so his unit went from formation in the hangar to sitting in the hangar that is not substantial enough "movement" to qualify and with his command not informing him of this formation this does not qualify...he is the first time he has ever missed a formation
Expert:  P. Simmons replied 1 month ago.

That is not missing movement. But AWOL (absence without leave) is a lesser included offense to missing movement...so if he take this to a court, if he was awol he would be convicted at court.

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 month ago.
But how was he AWOL if no one told him to be there on a Saturday? We have a text from his platoon SGT saying he screwed up
Expert:  P. Simmons replied 1 month ago.

Then he may well not be awol. If he had no notice, then he is not awol...my point is that if they charge with missing movement and can not prove that, they can try and prove awol.

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 month ago.
they may just try to grasp at straws in all reality? Especially since he went to the hangar as soon as he was ask to come fill out a packetThey just found out his MEB started so now it feels as if they just want to punish him.
Expert:  P. Simmons replied 1 month ago.

Again, he has the absolute right to refuse Art 15 and demand a court marital...so if he is not guilty? That is exactly what I would do. At the end of the day, if the want to punish him, they have to follow the rules (which include giving him the right to refuse Art 15)

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.

Expert:  P. Simmons replied 1 month ago.

Again, Ma'am if you have no questions I would respectfully ***** ***** rate the answer.
Thank you

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