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To whom it may concern; I would like to know if it is

To whom it may concern...
To whom it may concern; I would like to know if it is possible to upgrade a BCD to a General under Honourable? I was charged with Art. 123a and 134 of the UCMJ back in 1989, and was sentenced to 6 mos confinement, 6 mos forfeiture of pay, reduction to E-1, and a BCD. But, this is where it gets interesting. I reported to my unit in Feb of 1989, and found out that I had a huge stack of mail. I opened the mail, and saw that I had several returned check notices. I decided, that I would be a man, and do the honourable thing, and tell someone. So, after reviewing the notices, I was told by the acting Sgt Maj., to go to my section, pay it off, and worry about it later. A month later, I was told to report to the S-1 to sign some paperwork. I was told that I'd be signing a Page 11 entry, and thought no big deal. After reading the entry, it said that I was pending court-martial for the checks, and that my promotion wasn't going to happen. I was supposed to get promoted in Arpril to E-3. During this time, I continued to pay off the the checks. I was then placed under the command of the barracks Police Sgt, and was under close supervision of him. I wasn't allowed to go to my section, and do the job I was trained to; I hadn't been charged with anything at this point... This didn't happen until August, when I was Mirandised, and advised of my rights. Meanwhile, I continued to pay off the checks. Before I was charged, I was treated like a criminal. I was berated by EVERYONE because a rumour had been spread that I was going to be court-martiald. I developed a negative attitude because of this treatment (who wouldn't, right?), and it affected my ability to work. The extenuating and mitigating circumstances are that I was forced into writing the checks because of my mother. She had already gotten me into trouble with my previous command by telling my Bn. CO that I hadn't called her for 6 months. I was then ordered to call her once a week by my CO, and a Page 11 entry was made to make sure I followed orders. If I cooperated, the entry would be removed, and it was. She said that I had incurred a serious bill, and that I need to pay it, or else she'd tell my new CO. So, I started writing the checks, knowing that I didn't have the money, or the choice. The other major circumstance, is that I have a severe case of ADHD that went undiagnosed until 2010. It was said during my court-martial by my OIC that "I have the propensity to deviate from assigned tasks, unless properly supervised, or that I am incapable of completing tasks in a prompt manner." My mother, when I was younger, took me to psychologists to find out what was wrong with me; back then, they didn't have a name for it, so they didn't have a treatment for it either... at least not in my neighbourhood! The final circumstance was when my military lawyer, a Capt. Kenneth B. Martin, instructed me that I can elect to seperate in lieu of trial. I had elected to go this route, but my lawyer went on leave, and neglected to file the paperwork. The military doesn't offer redress for judical malpractice, so I don't know what to do there. This is something that has plagued me for quite some time. I have appealed it, but the NDRB upheld every time. My 15 year period has passed, and I would like to think that I have some hope; do I have any, or am I screwed?
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Answered in 12 minutes by:
3/2/2012
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 37,673
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Thanks for the chance to help. I am an attorney with over 12 years military law experience.
I know ***** ***** very well. I consider him a very good lawyer.
But we all make mistakes.
If this was a mistake, it could be grounds for redress...but how did you get to trial if your lawyer was not there? Was Capt Martin not at trial with you?
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Customer reply replied 6 years ago
What is it that you need to know? Who I was attached to? MWSS-173 MWSG-37 aboard MCAGCC 29 Palms. Reported 3 Mar 1989. I told you what I was charged with; Art 123a and Art 134. My attorney's name was then Capt. ***** *****. In regards ***** ***** separation in lieu of court-martial, I asked Capt. Martin to file the paperwork. But, he went on leave, and forgot to file the paperwork. What shocked me at the time, was how callous he was when I begged him to file for a stay pending application submission and review. His attitude was rather nonchalant, almost as if it wasn't worth his time. He was at trial with me, which happened (I think, because I don't have my record of trial handy...) on or near 2 October 1989. I wish I had redress to deal with the failure to file, but as you know, I don't... As for the appeals, I've all but exhausted them. My only hope now, it would seem, is the BNCR. Again, I was forced to do this under duress from my mother, who had already gotten me into trouble with my previous command. MWSS-173 already regarded me as the proverbial "shitbird," and made no bones about broadcasting this command-wide. I heard it everyday from fellow enlisted, NCOs, and Staff NCOs how bad I was, and how "it" might rub off of me, and stick to them if they weren't careful. I was even denied promotion because of this. My life was hell there, and I did everything I could emotionally and mentally from lashing out. It took a lot of courage on my part to put up with this; not to say that I didn't get into fights over this... I did, numerous times! I was punished before I was punished, and that's what I still have issues with today. Add to this a severe case of undiagnosed ADHD, and you've got a powderkeg waiting to be ignited.
You went to a court martial and pled guilty? Is that not the case? Was Capt Martin at this trial?
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Customer reply replied 6 years ago
I didn't plead guilty, but I had a pretrial agreement in the event I was found guilty... And, Capt. Martin was there. He gave a good defence, but I really wished he'd have been a bit more aggressive on Cross Examinating my OIC...
Then you had the benefit of due process. You had a court hear the evidence in your case. Part of that (right up front) you may recall the judge asked you if you were satisfied with your counsel.
If you were not? That was the time to raise this issue.
It is unlikely that the BCNR will now upgrade your discharge, at least based on that argument.
You can sure try. If you can show that the proceeding was unfair, they have the power to upgrade.
But what you describe? I do not see it...that is, if your claim is that Captain Martin did not do his job, that is something you should have raised at trial or on appeal (you received a full appeal from the Navy Court of Criminal appeal).
You may do better to focus your upgrade request on the good things you have done since your discharge.
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Customer reply replied 6 years ago
He did an ok job, but it was lacking. But, what about the circumstances that I brought up? Do those not rise to the level of either extenuating or mitigating? I'm asking you to think outside of the "Marine Corps" box; look outside of the box for solutions. But, I have a feeling that I'm not going to like the response. I feel, no, I know I was persecuted before I was prosecuted... That alone, is worth mentioning. And, how Capt. Martin neglected to file the motion... And, I did address the dissatisfaction, but to no avail...
The problem you have is that the BCNR is not going to go "outside the box".
And the BCNR is the audience here, not me.
As I mention, the fact Capt Martin did not fully defend your claim is not something that the BCNR is going to care much about. At all.
They will look into the E&M. And if I were to file this for you (I can not file this for you, but you can hire another lawyer, like ***** ***** who still practices) I would address that in the request to upgrade.
But it is tough to get an upgrade, not unless you can point to a compelling reason.
That is why I would also focus on, if you can, good things you have done since.
But at the end of the day? It is near impossible to accomplish what you want...and without a good lawyer assisting I would say it is fully impossible..
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Customer reply replied 6 years ago
This is the last thing I'm going to ask you... Where is ***** ***** practicing now? Last I heard, he was at 29 Palms... but that was in 2003. I may want to get in touch with him, only because he has familiarity with this case. Thanks anyway.
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 37,673
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
Verified
P. Simmons and 87 other Military Law Specialists are ready to help you
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Customer reply replied 6 years ago
Thanks...
welcome
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