1. Why would you need an attorney to assist you with an issue relating to your Army career?

 

A. Soldiers who may be facing a currently pending unfavorable action such as a referred OER or NCOER or who may be under investigation due to allegations of misconduct should be aware that an unfavorable outcome in any of these types of situations is likely to result in the placement of unfavorable information in their Army Military Human Resource Record (AMHRR). This is the same record which has long been known as the Official Military Personnel File (OMPF). In addition to negative OERs and NCOERs, unfavorable information can also include a General Officer Memorandum of Reprimand (GOMOR), a negative Academic Evaluation Report, and a Record of Punishment under Article 15 of the UCMJ. In addition, an unfavorable outcome in these types of situations will frequently lead to the initiation of administrative separation action These actions are conducted in accordance with complex Army Regulations which can frequently be confusing to the Soldier whose career is at stake. Soldiers who are facing the possibility of an action which has the potential to end their careers will need legal representation by a military law attorney in order to ensure that they are able to take advantage of all of the substantive and procedural rights to which they are entitled.

 

 

2. Why would you need to retain private legal counsel?

 

A.  Soldiers who are under investigation or who may be faced with adverse legal actions such as reprimands, removal from promotion lists, reduction in rank, and involuntary administrative separation are entitled to a number of rights in accordance with the provisions of the applicable Army Regulations. These include the right to be notified of the proposed action and the opportunity to respond in order to obtain the most favorable possible resolution of the situation. Perhaps the most important procedural safeguard which is available to the Soldier is the right to be represented by legal counsel.

 

The Army will provide legal representation at no cost to the Soldier. Soldiers who are facing courts martial or other actions pursuant to the Uniform Code of Military Justice (UCMJ) (such as Article 15) action. are entitled to be represented by Judge Advocates who are assigned to the U.S. Army Trial Defense Service (TDS). My personal opinion as a retired Judge Advocate is that TDS is a great organization. I have seen a lot of court martial cases and there is absolutely no question in my mind that Soldiers do get outstanding representation from TDS. I have seen both TDS counsel and privately retained defense counsel defend Soldiers in courts martial and in administrative proceedings and while some lawyers are better than others, I have always been very favorably impressed by the vast majority of TDS counsel. Even if a Soldier does choose to retain private counsel to appear at a court martial or for representation in an administrative matter, there is absolutely no question that this should be in addition to being represented by TDS and that both lawyers should work together in order to try and obtain the best possible outcome for the client.

 

In addition to appearing before courts martial, TDS counsel MAY also represent Soldiers in administrative proceedings such as elimination boards, etc. However, UCMJ cases are always the first priority for TDS. Whether or not TDS is available to assist in adverse administrative actions is determined by such factors as the size of the caseload and the resources which are available to TDS.

 

In those instances in which TDS is not able to represent Soldiers who are facing adverse administrative actions, the Soldier will be provided with counsel from the local Legal Assistance Office. In fact, it is quite likely that the assigned military counsel for a Soldier facing adverse administrative action will usually be one who is assigned to Legal Assistance and NOT a member of TDS. In addition, it is also quite possible that a TDS counsel can very well be an outstanding subject matter expert in court martial practice and still have very limited experience in dealing with administrative law issues. While TDS counsel are typically quite experienced, this is not usually the case with Legal Assistance attorneys. The Soldier MAY be assigned a highly experienced legal assistance attorney such as a supervisory Judge Advocate or a Civil Service attorney who may be either a retired or reserve component JAG who has had a lot of experience in dealing with military law. Brand new Judge Advocates who are in their initial assignment following completion of the Judge Advocate Officer Basic Course will frequently begin their careers in either Claims or Legal Assistance. This is not intended to be critical of them in any way. These new Legal Assistance attorneys will usually do a great job in assisting Soldiers with typical legal problems such as the preparation of wills, tax matters, consumer law, domestic relations, general legal advice, and making referrals to reputable local attorneys for representation in local civilian courts. However, they do not usually have a great deal of experience in dealing with complex military personnel law matters. This is why you should think about retaining private counsel for these cases. 

 

The applicable Army Regulations provide that Soldiers who are facing either UCMJ action or adverse administrative action are entitled to be represented by EITHER OR BOTH assigned military counsel and privately retained attorneys. My recommendation is that you should make use of BOTH. I believe that the client is best served when both assigned military counsel and retained counsel work together in a collaborative manner. This is usually the case in the legal representation of Soldiers and in my experience it the best way to help ensure the best possible outcome for the client. Having spent many years in the Army, I am very accustomed to working with other members of a team in order to accomplish the mission. I am always open to suggestions from others who may have an insight into a particular situation. In addition, I believe that my background and experience will enable me to help others to do a better job for the client in a current situation and to help them gain knowledge and experience which will also benefit both them and the Army in the future.

 

However, as stated above the vast majority of Legal Assistance attorneys simply do not have a great deal of experience in the Army and in dealing with adverse administrative actions and with the types of complex personnel issues that can have a decisive impact on a Soldier's military career. That is why a Soldier who is facing any type of adverse action should give serious consideration to retaining experienced private counsel. This is certainly true if one is facing a current action such as an elimination board. In addition, it is even more so in a case in which the Soldier is seeking to overturn or mitigate a past unfavorable action by means of an appeal to an agency such the Department of the Army Suitability Evaluation Board or the Army Board for the Correction of Military Records. Preparation and submission of these types of appeals requires extensive research and writing and this can be a very time consuming process. This is a complex matter which should done by an experienced mailtary law attorney. The Legal Assistance offices on most Army posts simply do not have the resources to devote a lot of time and attention to seeking redress for past actions. However, the cost of not addressing adverse information in your OMPF will be readily apparent when it becomes the reason for an unfavorable decision when you are considered for promotion. 

 

 

3. Why should you be concerned about the contents of your record?

 

A. Selection for all officer and senior NCO (to SFC, MSG, and SGM/CSM) promotions, commands, nominative assignments, and most advanced professional education opportunities are made by centralized selection boards conducted at the Department of the Army level. Individuals being considered do not appear in person. All decisions are made by panel members who base their decisions on what it is contained in a Soldier's Army Military Human Resource Record (AMHRR). This is the same record which has long been known as the Official Military Personnel File (OMPF). Panel members don't know you and they are bound by regulation to base their decisions on what they see in your file. That means that it is critical for each Soldier to do everything possible to ensure that the record which appears before these boards looks as good as possible. "Protecting the record" is a legal term which means that one should always act in order to ensure that there is a complete and accurate record which will withstand later scrutiny by a court or administrative review agency. You need to do everything possible in order to PROTECT YOUR RECORD!

 

4. What should you do if you are currently under investigation?

 

A. If you have been named as the respondent in a formal AR 15-6 investigation or if you become aware that you have become the focus of an informal investigation, you have the right to speak to an attorney in order to get legal advice. You should always take advantage of this right! The attorney can explain the nature of your situation and how it can effect your Army career. Your response to an AR 15-6 Investigation can have critical consequences for your career and an attorney can advise you on your rights and obligations under this process as well as the best way to respond to an investigation. That is why it is always advisable to seek legal advice as early as possible during the process.

 

5. What recourse do you have in the aftermath of a investigation which has already been completed?

 

A. Even if you have already been investigated, you still have the right to receive written notice of the proposed adverse action; a copy of the part of the findings, recommendations, and supporting evidence on which the proposed adverse action is based; and a REASONABLE OPPORTUNITY TO REPLY IN WRITING. This is your chance to ensure that the appointing authority as well as reviewing authorities will be able to consider your response to the investigative report. Your response to an AR 15-6 investigation can make or break your future Army career. You should always consult a military law attorney before you respond. In addition to providing advice, an attorney will be able to draft a persuasive written response which will enable you to ensure that the ultimate decision is based on a complete record which will include your response to the investigation.

 

6. What should you do if you have received a referred OER or NCOER?

 

A. "referred" evaluation report is the Army's term for one which contains a negative or unfavorable conclusion about the individual's performance during that rating period. The literal meaning of "referral" is that such reports are referred to the rated individuals in order to allow them a chance to respond prior to final approval of the evaluation. According to the applicable Army Regulation any officer or NCO who has received a referred evaluation report must be given a "reasonable suspense date" in order to allow them to respond and rebut the unfavorable statements contained in the evaluation. An individual who receives a referred evaluation will be provided with written notification of this suspense date when they are served with a copy of the report. It is critical to file a timely response. Failure to respond or to meet the suspense date will mean that the report will go forward as originally written and become a part of the Soldier's OMPF without any response from that Soldier. Once a evaluation is finally completed, approved, and placed in the OMPF it is then presumed to be correct and it will be much more difficult to get it overturned in the future. If you have been served with a referred evaluation report you should immediately contact a military law attorney in order to have the assistance of counsel in submitting a cogent and persuasive response. If it is close to the suspense date, your lawyer can submit a written request for an extension of time in order to have adequate time to prepare a meaningful response.

 

7. What is the first level of redress after having received an unfavorable evaluation report?

 

A.  The initial avenue to seek redress is to ask for a Commander's Inquiry. Commanders (OERs and NCOERs) or Commandants (in the case of Academic Evaluation Reports [AER]) are required to look into alleged errors, injustices, and illegalities in evaluation reports. This section does not pertain to AERs or other evaluation reports provided by civilian educational, medical, or industrial institutions because there is no military command structure available. Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the Commander’s or Commandant’s attention by the rated Soldier or anyone authorized access to the report. The primary purpose of a Commander’s or Commandant’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. In addition, the applicable Army Regulation provides restrictions on modifications to previously submitted reports already accepted by HQDA.

 

8. What can do you do if you have previously had a referred evaluation placed in your file?

 

A. You have the right to appeal an evaluation report which you firmly believe is an inaccurate or unjust evaluation of your performance Likewise, a report that was not rendered in accordance with the Army Regulation in effect at the time of preparation may be considered for appeal. If you are simply dissatisfied with receiving a good report (for example with nothing but favorable comments) because you believe it should be better, you should be aware that it is difficult to successfully challenge the judgment of your rating officials with clear and convincing evidence that you deserve a better evaluation.

 

9. How much time do you have to file an appeal of an OER or NCOER?

A. Appeals on reports prepared on an OER or NCOER must be submitted within three years of the completion date. This restriction will only be waived under exceptional circumstances. Administrative appeals will continue to be considered regardless of the period of the report. However, the likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is therefore recommended.

 

10. What is the burden of proof required to successfully appeal an evaluation report?

 

A. In order to have the best chance of being able to succeed with an appeal, you should be aware that the burden of proof is on the appellant. Once an evaluation has become part of an OMPF, there is a strong presumption of correctness. An appeal must be supported by substantiated evidence. An appeal that merely alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence will be made by the agency which will adjudicate the appeal.

 

11. What should you do if you have been notified that you are going to receive a GOMOR?

 

A. A GOMOR is an acronym for what is known as a General Officer Memorandum of Reprimand (GOMOR). A GOMOR is an extremely serious type of sanction and can be a real career killer. It is nothing less than a strong negative recommendation from a general officer which essentially states that the individual should not be selected for promotion, advanced schooling, and nominative assignments. Any board which sees this in a file will be strongly inclined to render an unfavorable decision. Getting turned down by two successive promotion boards will typically lead to the end of an Army career. Although the imposition of an Article 15 requires that the imposing authority believes that the offender is guilty "beyond a reasonable doubt" (the same standard which is required for conviction in a court martial), OMPF/AMHRR filing of a GOMOR in a matter not involving a UCMJ action is something which is left to the discretion of individual general officers. While some of these decisions are based on something which has been objectively established to have occurred (such as a civilian court conviction for a DUI or some other offense), many GOMOR filing decisions are quite subjective in nature. However, the individual Soldier does have the opportunity to submit a response in order to try and convince the imposing authority to either file it locally or possibly even decide not to file it at all. However, the notice of intent to file a GOMOR will always include a suspense date for the Soldier to respond. The worst thing to do is to simply ignore the notice. The next worst thing is to simply submit a pro forma statement which is essentially nothing more than asking for a more favorable disposition but not providing any meaningful reason to support such a decision. Anyone who is serious about avoiding potentially catastrophic damage to their career has no option other than to file a timely and persuasive response. This is a very serious and often complex matter. For example, a GOMOR which is filed as the result of action under the UCMJ must be based on evidence which supports a conclusion that the Soldier's guilt has been established "beyond a reasonable doubt." However, in other types of cases both the decision to issue a reprimand as well as the filing decision can be based on an entirely subjective determination by the imposing authority. This means that an individual Soldier who is facing this type of situation bears the burden of having to submit a response which is sufficiently persuasive to convince the imposing authority to either not file it at all or at least to direct that it should be filed locally rather than in the performance fiche of a Soldier's OMPF. The best course of action in this type of situation is to submit a response which has been prepared with the assistance of an experienced military law attorney.

 

12. What can be done to mitigate the consequences of previous unfavorable actions?

 

A. The Army Review Boards Agency (ARBA) serves as the highest level of administrative review for personnel actions taken by lower levels of the Army and administers a number of boards. These include the Department of the Army Suitability Evaluation Board, the Army Board for the Correction of Military Records, The Army Discharge Review Board, and the Army Grade Determination Review Board. Each of these boards and their functions and jurisdiction are discussed in greater detail elsewhere on this site. However, they all provide a means by which a Soldier can seek to mitigate the consequences of previous unfavorable actions by having them completely or partially overturned or to have them placed in the restricted fiche of an OMPF. Any Soldier who has been the subject of a previous unfavorable action should seriously consider taking action to file an appeal with the appropriate board. Being able to do this may be the factor which determines whether a Soldier will be able to complete a successful military career or will instead be turned down for promotion or even be recommended for administrative separation from the Army. The facts relating to each individual and each case can and do vary widely. If you have been subject to previous unfavorable action, you can always contact me to discuss the particular circumstances of your situation.

 

13. Why should you contact me and what will it cost to discuss your situation?

 

A. I will not charge you for an initial consultation. Anything that you tell me will be privileged information and I will maintain the confidentiality of anything that you tell me. No ethical attorney can ever guarantee the outcome of any situation. That is why I will always give you a candid and objective opinion as to the nature of your problem as well as the available courses of action and the likelihood of being able to successfully resolve your problem. Dealing with these types of issues is a complex legal process. It is not something which can be taken lightly or easily done. In order to have the best chance of success in resolving these types of issues a Soldier should seek the assistance of an attorney who has had significant experience in military administrative law. If you are currently facing an investigation, a reprimand, a referred OER or NCOER, a bar to reenlistment, or an involuntary separation action or if you have been the subject of previous adverse action such as having had an Article 15, a General Officer Memorandum of Reprimand, a negative OER or NCOER, or other unfavorable action which has harmed your career, I may be able to help you to resolve your problem and help you to continue with a successful Army career. If you are facing any of these types of problems, you can contact me to discuss your case. This website contains an address for you to e-mail me as well as a phone number and a mailing address.

 

14. Do you represent members of other branches of the military service?

 

A. No. I am a retired Army Judge Advocate. All of my military experience is in the U.S. Army. All of my time as a Judge Advocate was spent acting as a legal advisor to commanders at every level from company to major command (MACOM) level. As a result of this experience, I learned a great deal about Army Regulations and procedures. In addition to this purely technical knowledge, I also learned a lot about how the Army actually works. However, while I occasionally had to deal with situations which involved members of other military services, my experience of dealing with the regulations and procedures of other services was limited. While the Uniform Code of Military Justice is applicable to all branches of the military, administrative actions are conducted in accordance with the regulations of each individual service. Therefore, I believe that a member of another service who is having to deal with the legal consequences caused to their career by an adverse administrative action would be much better by served by seeking the assistance of a military law attorney who has had experience as a judge advocate in that service.

 

15. When should you seek legal advice?

 

A. You should consider speaking with a military law attorney as soon as you learn that you are facing ANY type of action which has the potential to have adverse consequences for your Army career. These types of actions include receiving a referred OER or NCOER, an unfavorable Academic Evaluation Report, an administrative separation action, a bar to reenlistment, or if you are becoming the subject of an investigation or if your command notifies you that they are considering the imposition of a formal reprimand, etc. This type of advice can range from a phone call or an informal meeting with a Legal Assistance or TDS attorney at your installation all the way to formally retaining the services of an outside attorney. This will enable you to determine the gravity of your situation and the possible consequences for your Army career. The worst thing that you can do is to ignore a problem in the hope that it will somehow go away. Seeking legal advice will enable you to get a good idea about the gravity of your situation and make it possible for you to take steps to ensure that your interests are protected.