202-640-3023 cmr@correctmilitaryrecords.com Correct Military Records and Back Pay
U.S. Constitution and the Administrative Procedures Act
Your Rights
In military personnel law, it is always imyou 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
U.S. Constitution and UCMJ Article 31
Your Rights
In military personnel law, your UCMJ Article 31 rights may also be applicable. Under UCMJ Article 31 you have the following rights:
1. to remain silent and not say anything
2. to consult with an attorney
3. to be informed of the about offenses investigated
4. to avoid self-incrimination
5. to stop an interrogation
Your rights
the U.S. Constitution states:
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Administrative Procedures Act
5 U.S.C. 706, scope of review
The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
PRIOR CASES - YOUR RIGHTS IN ACTION
An elimination board recommended an officer for elimination based on misconduct and derogatory information in his official military personnel file. Action: Appealed this recommendation based on failure to review and consider the evidence, loss of impartiality, and failure to make specific findings. After the board was re-convened again and it made the same findings - appealed again. Result: the officer was allowed to retire.
Service member separated under other than honorable conditions, reenlistment code 4, and narrative reason for separation misconduct (drug abuse). Action: Reviewed the evidence and conducted legal research. Filed a lawsuit at the U.S. Court of Federal Claims alleging, in part, wrongful discharge and abuse of discretion. Result: New DD Form 214 issued with characterization of service as honorable, reenlistment code 1 and expiration active duty obligation.
Service member was separated based on fraudulent enlistment on the Service member's DD Form 214. Action: Reviewed the evidence, conducted legal research, developed additional evidence and petitioned the Discharge Review Board. Result: Approximately 7 months later the Board found an injustice, and recommended to change the narrative reason for separation to erroneous enlistment, among others.
An filed grade officer was notified about grade determination review board based on misconduct. Action: Developed evidence in mitigation, extenuation, and rebuttal. Submitted written responses and submissions and over 40 exhibits. Result: Officer allowed to retire in current rank.
Contractor proposed for debarment based on allegations of mischarging time over a number of years valued in excess of $300,000. Action: Conducted legal research and review of the evidence, and analyzed the underlying investigation. Presented evidence in rebuttal to the Suspension and Debarment Official during a hearing. Result: Proposed debarment terminated after the hearing.
Officer proposed for elimination based on derogatory information in official military personnel file relating to a pattern of misconduct, abuse of authority, sexual assault, conduct unbecoming, and sexual harassment. Action: Conducted comprehensive review of the record and developed compelling evidence in rebuttal. Result: Board unanimously recommended retention.
Commander investigated during an administrative investigation concerning multiple allegations relating to harassment, toxic leadership, and financial fraud. Action: Invoked all applicable rights, provided submissions with supporting evidence to rebut the allegations. Result: Investigation closed with no adverse action taken.
Former service member received a statement of reasons (SOR) relating to the general court-martial conviction concerning financial fraud and false statements. Action: Developed persuasive and compelling evidence in rebuttal, mitigation and extenuation. Result: Former service member maintained eligibility for access to classified information
An Officer selected for promotion was notified that he would be subject to a Promotion Review Board based on numerous allegations of misconduct and a criminal investigation. Action: Reviewed the records, conducted additional legal research, and made submissions. Result: Officer was promoted to the next rank.
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