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ADVERSE ADMINISTRATIVE ACTIONS
It is all about procedural and substantive due process.
In military personnel law, in the vast majority of cases the outcomes of any adverse administrative actions depends on how you exercise your due process rights. Here are potential negative outcomes of most adverse actions in no particular order:
permanent adverse filings in Official Military Personnel File
adverse evaluations
board of inquiry / administrative separation / elimination
denial of re-enlistment
non-selection for promotion / promotion review board
recoupment of debt
security clearance issues - statement of reasons
loss of pay / recoupment
legal hold / Flagging
rank reduction
restriction
adverse information on your Certificate of Discharge - DD Form 214
loss of command
Your rights - generally
In military personnel law, you generally have the following rights:
1. to be notified about the allegations against you
2. to review evidence against you (limited)
3. to a hearing (sometimes)
4. to fair and impartial consideration
5. to appeal (sometimes)
6. to have your arguments and evidence considered
More rights - UCMJ Article 31
Under Article 31 UCMJ, you have the following rights:
1 right to remain silent
2. right to consult with an attorney
3. right to be informed of the specific offenses
4. right against self-incrimination
5. right to stop an interrogation
Three Tiers of Potential Relief
In military personnel law, there are generally three levels of potential relief. Usually, it is best to resolve any adverse action at the lowest level possible.
1 - Unit Level: Your due process and substantive rights start at the unit level. This is where you are notified of an adverse actions and flagging or legal hold.
2 - Administrative Level: After your unit level action is completed, you have a right to petition Boards for Correction of Military or Naval Records to request relief. These boards act on behalf of the Secretaries for each service.
3 - Judicial Level: Adverse administrative actions are subject to a judicial review under the Administrative Procedures Act of 1974. (actions contrary to law, contrary to evidence, arbitrary, capricious, or abuse of a discretion). See the Court of Federal Claims Section for more details.
DISCLAIMER
CASE RESULTS DEPEND UPON A VARIETY OF FACTORS UNIQUE TO EACH CASE; CASE RESULTS DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE UNDERTAKEN BY THE LAWYER. IN EACH CASE DIFFERENT LAWS AND FACTS ARE APPLICABLE
Representative Cases
Service member received a punishment under UCMJ Article 15 (NJP) for financial fraud related to theft of U.S. Government funds. Service member wanted to set it aside so he could re-enlist. Action: Developed persuasive and comprehensive evidence in rebuttal and mitigation and worked with the Service member to identify important facts. Result: The UCMJ Article 15 was set aside and the Service member could re-enlist and continue his service
A grade determination review board considered (GDRB) a field grade officer for retirement grade based on substantiated misconduct in his official military personnel file (OMPF). Action: Developed evidence in mitigation, extenuation, and rebuttal. Submitted written responses and submissions and over 40 exhibits. Result: The officer was allowed to retire in his current rank.
Service member was investigated for based on allegations of misconduct related to fraternization. Action: Counseled and represented the Service member during the investigation and made submissions to the investigating officer. Service member exercised her rights. Result: The investigation was closed and no adverse action was taken against the Service member.
Service member received a punishment under UCMJ Article 15 (NJP) for being frequently late. Action: On appeal, developed strong evidence in rebuttal and provided additional documentation showing that there was no intentional misconduct. Also outlined critical due process violations and potential consequences of receiving the UCMJ Article 15 punishment. Result: The appeal was successful and the Service member was not guilty.
Service member was investigated for violating a lawful order prohibiting drinking while on a military mission. Action: Advised the Service member about her rights and contacted witnesses to develop evidence rebutting the alleged misconduct. Result: After several months the investigation was closed with no adverse action and the Service member continues to serve.
Service member was convicted of a driving under the influence (DUI) in a civilian court and proposed for separation with an other than honorable characterization of service. Action: Advised Service member of his rights and made persuasive and compelling submissions on his behalf. Result: Service member was allowed to separate with a general under honorable conditions characterization of service.