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Practice Areas

This is a listing of the some of the situations which can have a significant impact on a Soldier's Army career. While it is not a complete list of all administrative actions, it does describe some of the ones that you may be likely to encounter. These are situations in which you will need the assistance of an experienced military law attorney. If you are currently facing any of these types of situations or if you are hoping to mitigate the consequences of a previous adverse action, I may be able to help you to resolve your problem and get your career back on track. If you have a legal problem related to your Army career, you should get in contact with me to discuss your situation.
Administrative Fact Finding Procedures and AR 15-6 Investigations

 

Anyone who has spent much time in the Army is certain to have heard someone refer to a "fifteen-six" or to have seen correspondence which makes reference to AR 15-6. This is the Army Regulation which establishes an administrative procedure for fact-finding investigations and boards of officers in situations not covered by any other directive.

 

Investigations under AR 15-6 may be formal or informal. Formal procedures may be required by other regulation or by higher authority, however, appointing authorities (AA) will usually use informal procedures for most other investigations.

 

AR 15-6 investigations gather and consider all the relevant evidence about an incident, possible misconduct, or a failure to adhere to regulations or policies by personnel under the AA. The investigating officer (IO) must be thorough and impartial, and consider all sides of the issues.

 

The IO must submit a written report to the AA containing his findings and recommendations, which must be based on the evidence discovered and comply with the instructions of the appointing authority. DA Form 1574 is used for submitting the report. The IO's report should answer the following questions: what happened; when did it happen; where did it happen; who was involved; and why did it happen.

 

The IO should be a person of unquestionable impartiality. For example, it is usually poor practice to have a company commander investigate another company commander in the same battalion.

 

The AA should clearly define, in writing, the purpose and scope of the investigation and the nature of the findings and recommendations required.

 

The findings of a properly conducted investigation may be used as the basis for an adverse administrative action. However, if adverse action is contemplated, the AA must provide the subject individual with the following safeguards prior to final action:

 

(1) notice of the proposed adverse action;

(2) a copy of the part of the findings, recommendations, and supporting evidence on which the proposed adverse action is based; and

(3) a reasonable opportunity to reply in writing.

Unless otherwise stated in another directive or regulation, the AA is neither bound nor limited by the IO's findings or recommendations.

 

*What does this mean for an individual Soldier? 

The bottom line answer is that the findings of an AR 15-6 investigation can be critical in providing the information which will form the basis for any action taken by the appointing authority, higher HQ which will review these actions, and finally by Headquarters, Department of the Army (HQDA).

 

*What are "findings"?

 

A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record. It is directly established by evidence in the record or is a conclusion of fact by the investigating officer or board. Negative findings (for example, that the evidence does not establish a fact) are often appropriate. The number and nature of the findings required depend on the purpose of the investigation or board and on the instructions of the appointing authority. The investigating officer or board will normally not exceed the scope of findings indicated by the appointing authority. The findings will be necessary and sufficient to support each recommendation.

 

*What is the standard of proof in an AR 15-6 Investigation?

 

Unless another directive or an instruction of the appointing authority establishes a different

standard, the findings of investigations and boards governed by this regulation must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion. The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and

evaluating such factors as the witness’s demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity.

 

*What does all of the above language really mean?

 

The language cited in the paragraph which appears above is taken directly from paragraph 3-10b. of AR 15-6.  It is a complex statement in legal language and at first may even appear to be somewhat confusing. However, it is actually quite simple. The standard of proof which is required to support action taken as a result of an AR 15-6 investigation is that the facts must be supported by A PREPONDERANCE OF THE EVIDENCE. This is the same standard of proof which is required in most types of civil litigation. This is clearly a lower threshold than what is what is known as "proof beyond a reasonable doubt." That is the standard of proof which is required in order to obtain a conviction in a criminal trial such as a court martial. However, it is important to remember that while administrative actions taken due to the findings of an AR 15-6 investigation cannot impose any criminal penalties, THEY CAN END YOUR ARMY CAREER! 

 

YOU HAVE THE RIGHT TO SEEK LEGAL ADVICE DURING AN INVESTIGATION!

 

If you have been named as the respondent in a formal AR 15-6 investigation or if you become aware that you are the one being investigated in 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 your rights and obligations in this process. While you do have an obligation to talk with the Investigating Officer (IO), you can never be required to incriminate yourself. In fact, both the 5th Amendment to the U.S. Constitution and Article 31 of the UCMJ protect you against having to do so. Any IO or member of the chain of command is required to advise you of your rights if they reasonably suspect that you may have committed a criminal offense.  In that case, you can refuse to make any statement. This regulation also recognizes various forms of privileged communication. These include attorney-client, spousal privilege, and the confidentiality of statements made to members of the clergy. However, you can be required to make statements which might incriminate others. In addition, since most AR 15-6 Investigations result in purely administrative as opposed to criminal sanctions, you are required to respond to questions from an IO. You should also be aware that making a deliberately false statement can result in charges under Article 107 of the UCMJ (False Official Statements).  However, your response to an AR 15-6 Investigation can have critical consequences for your career and a military law 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.

 

YOU HAVE THE ABSOLUTE RIGHT TO PRESENT A RESPONSE!

 

Remember, if you have been investigated,  you 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 miltary law attorney before you respond. In addition to providing advice, the 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. 

 

 

General Officer Memoranda of Reprimand, Rebuttals, and Filing Decisions

A GOMOR is an acronym for what is known as a General Officer Memorandum of Reprimand (GOMOR).  A GOMOR which is filed in the performance fiche of your military record 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 as is required for conviction in a court martial), OMPF 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 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.

 

The Army Review Boards Agency

The Army Review Boards Agency serves as the highest administrative level for review of personnel actions taken by lower levels of the Army and administers a number of boards including those listed below:  

 

Department of the Army Suitability Evaluation Board (DASEB)

 

Army Regulation 600-37, Unfavorable Information, provides information on filing and appealing unfavorable information in the Official Military Personnel File (OMPF). Unfavorable information is any credible derogatory information that may reflect on a Soldier's character, integrity, trustworthiness, or reliability and includes letters of reprimand and Articles 15. Chapter 7 of Army Regulation 600-37 provides information on appeals and petitions to remove unfavorable information or move unfavorable information into the restricted section of the OMPF. Appeals and petitions from Active Duty Soldiers and from U.S. Army Reserve Soldiers in Troop Program Units (TPU) are to be directed to the Department of the Army Suitability Evaluation Board (DASEB) in accordance with procedures outlined in chapter 7. Army National Guard Soldiers not on Active duty will direct their appeals and petitions through state Adjutant General and the Chief, National Guard Bureau, to the Department of the Army Suitability Evaluation Board (DASEB) in accordance with procedures outlined in chapter 7. Soldiers who are retired, in the Individual Ready Reserve (IRR), or separated from the Army must apply to the Army Board for Correction of Military Records to entirely remove unfavorable information from the OMPF  or to move unfavorable information within their OMPF by having it placed into the restricted portion.

If, after exhausting your appeal to the DASEB, you still feel that there is an error or injustice in the information in your military file, you can apply to the Army Board for Correction of Military Records for removal of unfavorable information from your file or transfer it from the performance portion to the restricted portion of the file.  As part of your evidence it is necessary to provide copies of the DASEB decision letter and any other correspondence you have had with other agencies to try to resolve your issue.

 

THE ARMY BOARD FOR THE CORRECTION OF MILITARY RECORDS

 

The Army Board for Correction of Military Records (ABCMR) is the highest level of administrative review within the Department of the Army. It has the mission to correct errors or remove injustices from Army military records. The ABCMR was established under the provisions of 10 USC 1552.  The purpose of the ABCMR is to conduct the final administrative review after all lower level administrative remedies have been exhausted. It also reviews discharges of those issued to former Soldiers over 15 years ago as well as those issued as a pursuant to the sentence of a General Court Martial.

 

Appeals to the ABCMR must normally be filed within three years of the time that the appellant has become aware of the existence of the error or injustice. This is usually construed to mean within three years of the final action by previous agencies within the Department of the Army. The ABCMR can waive the three year time limitation when they believe that it would be in the interest of justice to do so. However, the decision to grant such a waiver is left to the discretion of the ABCMR. Therefore, it is very important to file within the three year time limitation.

 

The applicant has the right to request a personal appearance at a hearing before a panel of the ABCMR in Arlington, VA. The applicant can call witnesses, testify in person, and be represented by a lawyer at an ABCMR hearing. However, the decision concerning whether or not to convene a hearing is entirely left to the discretion of the ABCMR.

 

Cases which are filed with the ABCMR are reviewed by a staff of Examiners who review the cases and prepare summaries and recommendations for the actual Board members. These voting members of the ABCMR are Department of the Army Civilians who serve on the Board as an additional duty. They will convene for scheduled meetings at which they will vote on these staff recommendations or to hear testimony in those cases in which they have granted a hearing.

 

The vast majority of cases are decided entirely on the basis of the written record which is before the board. This makes it even more critical for an applicant to submit a  highly persuasive application which is as logical and well constructed and which is well documented as possible. While there is nothing in the regulation which prohibits you from preparing your own appeal, you should be aware that this is a highly complex legal process and that an appeal which is prepared by an experienced military lawyer is much more likely to be successful.  

 

THE ARMY DISCHARGE REVIEW BOARD

 

The Army  Discharge Review Board (ADRB)  reviews discharges of former Soldiers, except those given by reason of a sentence of a General Court Martial or over 15 years since discharge. The purpose of the review is to determine if the discharge was granted in a proper manner, i.e. in accordance with regulatory procedures in effect at the time, and that it was equitable, i.e. giving consideration to current policy, mitigating facts, and the total record.

 

The objective of the Army Discharge Review Board (ADRB) is to examine an applicant's administrative discharge and to change the characterization of service and/or the reason for discharge based on standards of equity or propriety. (Exceptions: Discharge or dismissal by general court-martial and discharges over 15 years old. These issues can be addressed by the Army Board for Correction of Military Records).

 

The ADRB is not authorized to revoke any discharge, to to reinstate any person who has been separated from the Army, or to recall any person to active duty. However, it does have the authority to upgrade the characterization of service and to change the RE Code on a DD 214. Such action MAY make it possible for a former Soldier to re-enter the Army. Bad-conduct discharges given as a result of a special court-martial may be upgraded only on the basis of clemency.

 

The ADRB will consider applications on a records review basis only or through a personal appearance in Arlington, VA (Crystal City). The ADRB also travels to accommodate personal appearances.

 

The ADRB conducts reviews in one of three ways at the applicant's option:

 

1. Applicant personally appears before the Board with or without counsel.

 

2.Counsel appears on the applicant's behalf.

 

3.The Board evaluates the case based on documentation in the military record and additional evidence provided by the applicant.

 

This gives the applicant latitude in presenting evidence, witnesses, and testimony in support of his/her case. One of the most significant differences between the ABCMR and the ADRB is that while the ABCMR determines whether or not they want to convene a hearing, an applicant seeking relief from the ADRB always has the right to a personal hearing.

 

THE ARMY GRADE DETERMINATION REVIEW BOARD

 

The Army Grade Determination Review Board (AGDRB) determines the highest grade in which a Soldier served satisfactorily. A "satisfactory" determination of service at a particular grade has pay implications in three types of cases:

 

1. Advancement on the retired list for enlisted Soldiers and warrant officers who previously held a higher grade after 30 years combined service on the active duty and retired lists,

 

2. Retiring officers above the grade of warrant officer who have been the subject of adverse information since their last promotion,

 

3. Disability separations and retirements.

 

Advancement on the Retired List after 30 Years on Active Duty and the Retired Lists - Application Procedures

 

Who May Apply

Under the provisions of Title 10, United States Code section 3964 (10 USC §3964), if you are an enlisted (E-1 through E-9) or warrant officer (W-1 through W-5) retiree with less than thirty years of active service who previously held a higher grade, you can apply for advancement to that higher grade on the retired list. This applies to former members of the Regular Army, and reserve members of the Army who were serving on active duty at the time of regular retirement. In the case of members of the National Guard, full-time National Guard duty is considered active duty. Those who retired as a commissioned officer above a warrant grade (O-1 through O-10) are not eligible.

 

In order to be advanced on the retired list to the highest grade held satisfactorily, you had to have actually held that higher grade. Simply stated, you must have been promoted to, paid in that grade, and served at that grade for the required statutory or regulatory time. Merely serving in, “acting as” or holding a position or job title authorized a higher grade is not sufficient. If you were an enlisted member or a warrant officer and also held a reserve commission, you may be eligible for advancement on the retired list if you served on active duty in that higher commissioned officer rank for the required statutory or regulatory period of time. For example, if a retired E-7 during his or her career on active duty also served on active duty in his or her reserve status for more than thirty consecutive days as a W-1 through W-5, or at least six months as an O-1 through O-4, or at least three years as an O-5 or above, then the retiree may be eligible for advancement on the retired list. However, a retired enlisted Soldier who held a reserve commission while serving on active duty in the Regular Army in an enlisted status (sometimes referred to as “dual status”), is not eligible for advancement [to the Reserve Officer grade unless they served in the officer grade on active duty] absent the required service on active duty in the officer status.

 

Retiring Officers Above the Grade of Warrant Officer Who Have Been the Subject of Adverse Information Since Their Last Promotion

 

An officer above the rank of warrant officer retires in the highest grade satisfactorily served, not necessarily the grade held the day before placement on the retired list.

 

When an officer applies for retirement, HRC reviews the officer's file to see if there is any adverse information generated since the officer's last promotion. If there is, AR 15-80 requires HRC to refer the officer's case to the AGDRB. Even if there is no adverse information in the OMPF, the officer's command or branch can refer the officer for a grade determination if there is adverse information reflecting conduct since the last promotion that is not required to be filed in the OMPF. The AGDRB will notify the officer what information the AGDRB will consider and provide the officer an opportunity to submit matters in support of retiring in their current grade. The officer does not have a right to appear before the AGDRB

 

 

 


 
Medical Credentialing Actions

Officers of the various branches of the Army Medical Department (Medical Corps, Dental Corps, Army Nurse Corps, Veterinary Corps, Army Medical Specialist Corps, etc.) as well as civilian medical personnel employed by the Army are required to maintain an active license to practice in at least one state or territory and to remain in good standing with the state in which they are licensed. In addition, each practitioner must be approved by the Department of the Army as well as by the commander of the Military Treatment Facility (MTF) or unit to which they are assigned. MTF commanders may take action to revoke, suspend, modify, or limit an individual's ability to practice within the facility when there is evidence that such action is warranted due to acts or omissions by an Army medical provider.

Action taken on the part of the commander against a provider’s privileges (professional’s scope of practice) may

be warranted based on performance suspected or deemed not to be in the best interest of quality patient care. These

actions include holding in abeyance, denying, suspending, restricting, reducing, or revoking clinical privileges/practice.

The action taken may be immediate (summary) in the event of a critical incident or as a result of the credential

committee’s deliberation (routine) on information made available through CQM reporting channels.

b. The commander’s prerogative to hold in abeyance, to deny, or to summarily suspend clinical privileges/practice is

exercised when there is reasonable cause to doubt the individual’s competence to practice or for any other cause

affecting the safety of patients or others. Reasonable cause includes—

(1) A single incident of gross negligence.

(2) A pattern of inappropriate prescribing.

(3) A pattern of substandard care.

(4) An act of incompetence or negligence causing death or serious bodily injury.

(5) Abuse of legal or illegal drugs or diagnosis of alcohol dependence. (See chap 11.)

(6) Documented alcohol or other drug impairment and the individual refuses/fails rehabilitation or a psychiatric disorder that is not responsive to treatment.

(7) Significant unprofessional conduct.

c. The specific intent of all those involved in any adverse action against a provider’s privileges (adverse practice action for the professional) should be—

(1) To protect the safety and well-being of all patients for whom healthcare is provided.

(2) To safeguard the quality and efficiency of care delivered within the AMEDD.

(3) To protect the rights of the individual(s) in question (afford due process).

(4) To ensure timely resolution of the issues related to provider/professional performance.

(5) To separate the professional  actions and considerations from any associated  administrative or legal considerations.

(6) To allow timely reporting of individuals to professional regulatory agencies, if required.

 

This type of action can lead to very serious professional consequences for the individual who is the subject of these proceedings.  These can result in the denial, suspension, restriction, and even the revocation of the individual's ability to practice in the MTF. In addition, this process can even lead to administrative separation from the Army. In the worst case scenario, the Army can also report these matters to state licensure authorities. States can use the results of AMEDD investigations as evidence in proceedings which can ultimately result in the suspension or even the revocation of professional licenses. This process can several possible outcomes. These can range from complete exoneration to the end of an individual's military and medical careers.

 

AMEDD Officers who are respondents in this type of action do have significant substantive and procedural due process rights. These include the right to notice of the specific deficiencies, the proposed adverse action, and the right of the provider to submit a written response and to request and be present at a formal hearing.  While it is possible for an individual to waive these rights, one should never do so. The individual officer also has the right to have complete access to all information which will be presented at the hearing. The respondent also the right to submit a written response prior to the hearing and to appear in person at any hearing. 

 

The respondent also has the right to retain legal counsel. Counsel for the respondent can prepare the written response to be submitted on behalf of the client. Since these hearings are not conducted in an adversarial manner respondent's counsel may not directly examine witnesses or present oral arguments. However, the attorney can be present to advise the client throughout the proceedings in order to assist him in being able to effectively speak on his own behalf and to respond in an effective manner. Counsel for the respondent can also assist the individual in regard to ensuring that all procedural requirements are followed.

 

In the event that the hearing results in a decision which is unfavorable to the provider, the individual has the right to request reconsideration by the MTF commander. Following final action at the MTF level, the individual has the right to submit an appeal to the Surgeon General of the Army (TSG). The TSG is the final appellate authority in these cases.

 

 

 

Financial Liability Investigations of Property Loss ("FLIPL")

The Army uses FLIPLs to account for lost, damaged, or destroyed property. The FLIPL is governed by Army Regulation 735-5, Policies and Procedures for Property Accountability, and DA PAM 735-5, and is an investigation into the facts and circumstances surrounding the lost, damaged or destroyed property.

 

1. Q. WHO CONDUCTS THE FLIPL INVESTIGATION?

A. An Investigating Officer, appointed by the chain of command of the responsible Soldier, conducts a thorough investigation to determine the cause of the loss. The Investigating Officer gathers the facts and then determines who, if anyone may be responsible. Once a determination is made, the Investigating Officer recommends whether or not that individual should be held financially liable.

 

2. Q. WHAT FACTORS DETERMINE WHETHER I CAN BE HELD FINANCIALLY LIABLE FOR THE LOST, DAMAGED, OR DESTROYED PROPERTY?

A. If your negligence, deliberate, or willful actions caused a loss to the government, you will be held liable.

 

3. Q. WHAT IS NEGLIGENCE?

A. Negligence has four factors;

1. You were responsible for the equipment;

2. You were culpable (that is, you did not fulfill your responsibility);

3. Your culpability was the proximate cause of the loss;

4. The Army has actually suffered a monetary loss.

 

4. Q. HOW MUCH CAN YOU BE REQUIRED TO PAY?

 

A. You can be held liable for the entire monetary loss to the government. The loss is determined using the item’s current fair market value and depreciation. Generally, the amount of liability cannot exceed one month’s base pay, however, you can be charged the full amount under certain circumstances. Base pay is determined at the time of the incident, not when actual liability is recommended.

 

5. Q. WHAT IS A REBUTTAL STATEMENT?

 

A. You have the right to submit a rebuttal statement on your own behalf. You have 30 calendar days from the date of hand delivery of the FLIPL packet to reply. This response is attached to the FLIPL, and is returned to the Investigating Officer.

 

6. Q. WHAT HAPPENS NEXT?

A. The Investigating Officer sends the FLIPL and the rebuttal through the chain of command to the Approving Authority. Administrative Law attorneys will review the FLIPL and the rebuttal to determine if the survey is legally sufficient.

 

5. Q. WHY SHOULD YOU CONSIDER HIRING PRIVATE COUNSEL FOR A FLIPL?

 

Soldiers are entitled to free legal assistance in order to rebut a FLIPL. These attorneys are almost always ones who are assigned to the installation legal assistance office. They generally do a very good job. However, new Judge Advocates are frequently assigned to work in legal assistance for their initial assignment. This means that unless an individual client is fortunate enough to be represented by either a supervisory Judge Advocate or else a Department of the Army Civilian Attorney who has prior JAG experience you are likely to get an attorney who has not had a great deal of experience dealing with these types of situations.  If the worst possible outcome for an individual Soldier is simply the loss of a month's pay, it would probably not be worth the expense of hiring private counsel. However, if the situation is one in which you may be held liable for the entire amount then you may very well want to consider retaining a private lawyer who is an experienced military law attorney. In addition, the potential consequences of a being found liable in a FLIPL can be far more serious than a simple matter of money. If negligence by an individual is found to have been the cause of a significant loss of military property, this finding can subsequently be the basis for a referred OER or NCOER, a relief for cause or a GOMOR. An officer or NCO can even be found liable for a loss of property by one of their subordinates. This can be based on supervisory responsibility and/or command responsibility. An example of situations where this may occur could be the loss of a sensitive item. For instance, the loss of COMSEC items such as SINGCARS components or a SIPR laptop is quite likely to lead to very severe consequences. This can have devastating consequences for your career. However, being able to successfully rebut a FLIPL will ensure that the loss will not result in an adverse evaluation or other action that could destroy your chances for future promotion.

OER and NCOER Procedures and Appeals

 

OERs and NCOERs are among the primary sources of information that the Army uses to make personnel management decisions such as promotion, retention, and selection for advanced schooling.  A negative evaluation can have devastating consequences for a Soldier's career. This is especially true during a period when the Army is reducing the size of the force.

 

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. Even if successful, the remedy applied would probably be to remove the portions proven inaccurate or unjust, rather than raising the scores or block placements. In deciding what to appeal, you must consider early on whether you can gather useful evidence in support of an appeal. Your self-authored statement alone does not suffice as evidence of an inaccurate, unjust or administratively flawed evaluation report. Remember, the report as accepted by DA is presumed to be correct unless and until you prove that it is not.  In addition, if an evaluation contains significant administrative errors, such errors may be the basis for an appeal.

 

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.

 

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.

 

The burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that—

 

(1) The presumption of regularity normally accorded to completed evaluations will not be applied to the report under consideration 

 

AND that

 

 (2) Action is warranted to correct a material error, inaccuracy, or injustice.

 

Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of  administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

 

The CLEAR AND CONVINCING standard is a very heavy burden of proof.  While it is does not reach the level of PROOF BEYOND A REASONABLE DOUBT which is required to establish guilt under the UCMJ it is still considerably higher than the PREPONDERANCE OF THE EVIDENCE standard which applies in most administrative matters. This requires the appellant to convince the adjudication authority that there has been an error or injustice and that it would be appropriate to amend or delete the incorrect evaluation.

 

In order to succeed with your appeal you must submit a highly persuasive memorandum which is logical and well constructed and which is as well documented as possible. While there is nothing in the regulation which prohibits you from preparing your own appeal, you should be aware that this is a highly complex legal process and that an appeal which is prepared by an experienced military lawyer is much more likely to be successful. 

 


 
Administrative Separation Actions

Administrative separation is the process by which the Army takes action to release Soldiers from their current military status. This can come in several forms and it can be under either favorable or unfavorable circumstances. In some cases, it can simply be the process of releasing someone with a fully honorable discharge at the completion of an enlistment or at the request of the individual Soldier. In other circumstances, it can simply be a release from active duty (REFRAD) in which the Soldier leaves full time active duty and transitions to the Army National Guard or the Army Reserve with no loss of either rank or military status.  Administrative separation can also refer to the process of transferring to another branch of the military such as the Navy, Marine Corps, Air Force, or Coast Guard.  Entry into another service will obviously require that the individual is released from the Army.  Another type of personnel action that constitutes a significant change is retirement.  Strictly speaking, retirement is not a separation but is merely a change of status in which the individual is transferred to the Retired List and fully retains their military status, rank, and eligibility for retired pay and other military benefits and remains subject to recall if needed in the event of war or other national emergency.

 

Unlike retirement, REFRAD, or interservice transfer, a DISCHARGE is an entirely different matter.  An individual who is discharged is entirely released and separated from the military and thus truly becomes a civilian. A discharge represents a complete termination of any military status. There are several  types  of discharges.

 

Punitive discharges are those which as imposed pursuant to a sentence following a conviction by a court martial. A Punitive Discharge is an absolute expulsion from the military. Punitive discharges include a bad conduct discharge (BCD)  which can be imposed on enlisted personnel  by a special court martial. This is typically for lesser types of offenses. These are the equivalent of a misdemeanor level conviction in a civilian court.  The most serious UCMJ offenses are tried by general courts martial (GCM). General courts martial try the most serious offenses. These are typically felony level crimes which can carry up to a life sentence and in certain types of cases the death penalty. A general court martial can also impose a BCD on an enlisted defendant following either a conviction for a lesser offense or as a grant of judicial leniency in cases  when there are extenuating  or mitigating circumstances despite a conviction for a more serious offense.  A general court martial can also impose a dishonorable discharge on enlisted defendants.  A punitive discharge imposed on commissioned officers who are convicted by a GCM is characterized as a dismissal.

 

There are several types of administrative discharges.  Some of these occur when an individual has completed their term of service and then chooses to leave the military. In such an instance, the individual Soldier will simply receive an Honorable Discharge and return to a civilian status.  Someone leaving the Army under these circumstances will be fully eligible for all applicable benefits from the Department of Veterans Affairs.

 

Another type of administrative separation can occur as a result of involuntary separation action. An involuntary separation can result in one of several types of discharge. This is also referred to as "characterization of service."  The three basic types of administrative discharges are as follows:

 

An Honorable Discharge is the most desirable type. This allows an individual to retain full eligibility for all Veterans benefits. The most significant of these include disability compensation, educational benefits, eligibility for veterans preference for civilian employment, eligibility for VA mortgages, and burial in a national cemetery.  An individual who receives an honorable discharge will frequently be able to reenter military service at some time in the future.

 

A General Discharge (under honorable conditions) is less desirable. An individual who is separated with this type of discharge will retain eligibility for some (but not all) benefits.  A general discharge will frequently result in the individual being ineligible to reenter the military.  This type of discharge essentially means that the individual was discharged for being a bad Soldier.  A General Discharge will make it quite difficult for the individual to reenter the military. It will require a waiver in order to do so. This type of discharge will also preclude eligibility for education benefits.  A General Discharge will also limit Veterans  preference for civil service employment.  It also carries some degree of stigma.

 

The least desirable type of administrative discharge is what is known as Other than Honorable (OTH). An OTH discharge is typically given due to an individual having committed significant misconduct.  While this type of discharge is not as bad as being separated following conviction by a court martial, it is nonetheless highly stigmatizing. An OTH discharge will cause an individual to lose eligibility for practically all Veterans benefits of any type. In addition, anyone who receives an OTH will have significant difficulty in the future in being able to pursue most types of worthwhile careers.  Short of being a convicted felon or being discharged pursuant to a sentence resulting from conviction at a court martial, having an OTH is probably the worst stigma that can be imposed on anyone by the government.

 

In addition to ending ones military career, the type of discharge that is received can have far reaching consequences that can have a profound effect on the rest of an individual's life. 

 

Many administrative separation actions are initiated as the result of something which can be objectively proven to have occurred, such as a conviction by a civilian court or by a clear pattern of unsatisfactory performance.  However, it is also possible for a command to initiate the separation process even when there has never been any conclusive proof of misconduct. This can happen in a case where a Soldier refuses to accept non-judicial punishment under Article 15 of the UCMJ and demands trial by a Court Martial. If the command is confident that the individual is guilty, the next step should be to proceed to trial. However, instead of referring the allegations for trial by a court martial, refusal to accept an Article 15 sometimes results in some commands choosing to address the problem by the initiation of administrative separation action. This can place the Soldier in a very difficult situation. A court martial has numerous substantive and procedural safeguards to protect the rights of the accused.  

 

Conviction in a Court Martial requires that the Government prove each and every element of the crime beyond a reasonable doubt. A court martial is also subject to the Military Rules of Evidence. However, an administrative separation action has a much lower standard of proof (only a preponderance of the evidence) and does not require adherence to evidentiary rules. This means that a Soldier who refuses to accept an Article 15 can face the possibility of being  separated from the Army in a proceeding which has far fewer safeguards for the accused.

 

There are four substantive  Army Regulations which govern the administrative separation process. These are as follows: AR 600-8-24 (active duty officers), AR 635-200 (active duty enlisted personnel), AR 135-175 (Army National Guard and Army Reserve officers), and AR 135-178 (Army National Guard and Army Reserve enlisted).  While these regulations are generally quite similar, there are a number of significant differences between them.  An individual who faces involuntary separation action has a number of rights under each of these regulations and the there are a number of other factors which will vary considerably based on the individual's status, length of service and the basis for which the separation action has been initiated. This is a highly complex legal process and it can have profound consequences on both an individual's career in the Army as well as on the rest of one's life.

 

In enlisted separation actions, the separation authority is usually at the two-star level. Administrative separation actions for officers are usually initiated by a command which is designated as having General Officer Show Cause Authority (GOSCA).  GOSCA is usually at the Headquarters of commands at two star  level and higher. Commands at this level will initiate officer separation actions and will also convene the separation board. Officer separation boards are usually referred to as Boards of Inquiry.  The final decision in officer separation cases is always made at the Department of the Army level.

 

Some types of administrative separation actions are initiated as a result of something which can be easily established by objective evidence.  These can include a pattern of misconduct such as multiple Article 15 punishments, civilian convictions, testing positive for illegal drugs, repeatedly writing bad checks, etc. However, there are also instances in which a separation action can be initiated on the basis of things which are more subjective and difficult to prove. Examples of this can include unsatisfactory performance. In addition, separation under the provisions of AR 600-9 (Army Weight Control Program) can also be somewhat problematical. This is because there may be serious questions about the accuracy of the tape testing procedures used to determine if someone exceeds the allowable percentage of body fat.

 

Any Soldier who is facing involuntary separation should immediately seek legal advice in order to be able to get a full explanation of their situation, the available courses of action, and the best options to either remain in the Army or to at least gain the most favorable type of discharge that is possible under the specific circumstances of the individual's case.  The importance of this cannot be overemphasized!  Someone who is facing separation action will be formally notified by means of an official memorandum. This must clearly state the grounds for the proposed separation as well as the least favorable type of discharge that the individual is eligible to receive.  A notice of separation will ALWAYS contain a list of available options for the individual Soldier to respond as well  a suspense date by which the individual Soldier must submit this response! FAILURE TO RESPOND IS THE VERY WORST THING THAT ONE CAN DO IN THIS SITUATION!  Someone who fails to submit a response has waived the right to present a defense and this means that the separation authority can simply go ahead and separate the Soldier with whatever type of discharge it chooses to impose.

 

All Soldiers ALWAYS have the right to submit a written response in reply to a notice of separation. Such a response will enable the Soldier to present any relevant extenuating and mitigating evidence.  In addition, any enlisted Soldier who is facing the possibility of an OTH or who has more than six years of total military service as well as most officers have the absolute right to request a hearing. AR 15-6 provides the procedural guidelines for the conduct of these hearings.  In some instances,  it may be possible to submit a conditional waiver. This is a formal agreement between the respondent and the separation authority in which the Soldier agrees to waive a formal hearing in return for an agreement concerning the type of discharge to be received. In addition, in some cases it may also be possible to resolve a separation action by means of a suspended separation which will give the Soldier the opportunity to remain in the Army by exhibiting improved conduct and performance during the period of the suspension. Successful completion of this period will allow the Soldier to remain in the Army.

 

An administrative separation hearing is an adversarial process at which Soldiers have the right to be represented by legal counsel, to respond to any allegations made against them, and to present evidence in their own behalf. The actual decision of the board is reached by a vote of the panel members. They will arrive at their decision after having heard the evidence presented by BOTH the government and the respondent.  In many cases, a separation board will determine that merits of the case are such as to justify a more favorable outcome for the Soldier.  The board can find that the Soldier should be retained in the Army. In addition, even if the board finds that the evidence should result in separation, the board can still mitigate this action by finding that the Soldier is entitled to a more favorable type of discharge. In addition, while reviewing authorities can reduce the severity of board recommendations, they cannot impose a less favorable disposition.  That is why it is very important to ALWAYS submit a written post hearing packet for consideration by the separation authority. This is a complex legal matter and should be prepared by an lawyer who is an experienced military law attorney. The favorable findings of a separation board are almost always binding and can only be overruled in rare instances.  This can only be done at the Department of the Army level and this rarely occurs. Therefore, it is quite obvious that ANY Soldier who is facing administrative separation action should ALWAYS seek the assistance of an attorney and seek to present a vigorous defense which will convince a board and ultimately the separation authority that the Soldier's overall record of service is such as to warrant the most favorable possible outcome.

Army Flight Evaluation Boards

Officers (both commissioned and warrant) who hold ratings as Army Aviators or Flight Surgeons can be subject to removal from flight status for a number of reasons. These can include such things as failure to maintain medical certification, lack of proficiency, unsatisfactory performance, or misconduct. In these instances the command can act to suspend the officer from flight status and can also recommend permanent removal from aviation duties. However, before an officer can be permanently removed from flight status, he has the right to submit a written request to appear before a Flight Evaluation Board (FEB).  The objective of the FEB is to ensure that all information relevant to a person’s qualifications is presented and that the proceedings are objectively evaluated.

 

The board receives exhibits and hears testimony in open session, witnesses are sworn in and subject to cross examination, and the respondent may be represented by counsel. The FEB can recommend any one of the following possible outcomes:

 

(1) Officers with proper training and skills be awarded [or allowed to retain] an aeronautical rating.

(2) Orders suspending the respondent from flying be rescinded and respondent be restored to aviation service. When aviation operations or the flying ability of the respondent can be improved, other recommendations may be made.

(3) Orders disqualifying the respondent be rescinded and the respondent be re-qualified for aviation service.

(4) Respondent’s aviation service be terminated.

(5) Respondent’s aviation service and their aeronautical ratings be terminated (no longer authorized to wear the Army Aviation Badge).

(6) Respondent’s aviation service be permanently terminated.

(7) Respondent’s aviation service and their aeronautical ratings be permanently terminated (no longer authorized to wear the Army Aviation Badge).

d. Recommendation guidance. The FEB will base its recommendations on the findings. Recommendations must clearly and logically address the respondent’s potential for service as an officer in active flying service. The findings will be reviewed for legal sufficiency by the servicing legal advisor before being submitted to the appointing authority.

Recommendations will be made using the following guidelines:

(1) Recommendations to terminate aviation service and/or aeronautical ratings of an officer are normally not made on the basis of an isolated incident or action. However, if an officer clearly shows a dangerous or an unacceptable change in pattern of performance, termination should be recommended.

(2) The board must consider the officer’s ability and potential to perform basic military flying duties and, when applicable, the potential for more complex skills after more training and flying experience.

(3) Officers having marginal potential for continued aviation service should be recommended for service termination.

Recommendations permanently limiting ATP participation to copilot or no PIC duties or simulator only duties will not be made as this would be marginal potential for continued performance.

(4) In the final analysis, the best interest of the Army remains the prime criterion in evaluating each case.

 

The final approving authority for the recommendations of an FEB is the first commander having General Court Martial Convening Authority (GCMCA). A GCMCA  is typically at the two-star level.  It is also possible to appeal an unfavorable decision by the approving authority.

 

The results of an FEB can be decisive in determining if an officer is able to continue in Army Aviation.  In addition, an officer who is permanently removed from flight status due to gross negligence or misconduct is very likely to be recommended  for administrative separation from the Army.

 

Being called to appear before an FEB is a critical event in the career of any aviator or flight surgeon.   Any officer who is facing FEB action should immediately consult with legal counsel. Being able to present a vigorous and convincing defense will be critical in convincing the FEB to recommend that the officer should be allowed to return to flight status and complete a successful Army career.

Special Forces Tab Revocations

Special Forces Soldiers can also be subject to revocation of their Special Forces Tab. The immediate effect of such action will result in involuntary reclassification to another MOS. In addition, it is most likely to result in the initiation of administrative separation action to remove the individual from the Army. There are a number of circumstances which will trigger a Tab revocation action. These include the following:

 

1. Revocation of the Parachutist Badge.

 

2. Voluntary action which results in the termination or withdrawal of the Special Forces specialty or branch code prior to the completion of 36 months of Special Forces duty.

 

3.  Becoming permanently medically disqualified from performing Special Forces duty and the injury was found to have been incurred while not in the line of duty. 

 

4.   Having been convicted at a trial by courts-martial or has committed offenses which demonstrate severe professional misconduct, incompetence, or willful dereliction in the performance of Special Forces duties.                      

 

5. Having committed any misconduct which is the basis of an administrative elimination action under the provisions of AR 635–200 or AR 600–8–24.                                                            

 

6. Having committed any act or engaged in any conduct inconsistent with the integrity, professionalism, and conduct of a Special Forces Soldier, as determined by the Commander, U.S. Army John F. Kennedy Special Warfare Center and School (SWCS).

 

As indicated above, the decision to revoke a Special Forces Tab is made by the SWCS commander.  The appeal authority as well as the power to reinstate a Special Forces Tab for current Soldiers rests with the Commander of the U.S. Army Operations Command (USASOC). Veterans and Retirees must apply to U.S. Army Human Resources Command.

 

Since the Army has left Iraq and is now preparing to leave Afghanistan, it is now returning to a peacetime footing. This means that incidents which might have previously been resolved through less drastic consequences are now much more likely to result in Tab revocations and ultimate administrative elimination action. Tab revocation actions do not include any right to appear before a board. These decisions are made on the basis of written recommendations submitted by the individual's current organization and submitted through channels to the SWCS Commander. However, individuals who are facing such action do have the right to submit written materials in extenuation and mitigation in order to rebut the allegations and convince the SWCS Commander to allow them to retain their Special Forces Tab and continue their career.

 

Preparation and submission of convincing materials on behalf of the respondent is critical if he hopes to retain his Tab and continue his Special Forces career and remain in the Army. This is NOT something which should be taken lightly. A Soldier who wants to have the best chance of being able to successfully rebut a Tab revocation recommendation will retain an experienced military law attorney who knows how to put together a packet which will have a good likelihood of success. In addition, individuals who have already had their Tab revoked should be aware that they can also submit an appeal of their case to the USASOC Commander and ultimately to the Army Board for the Correction of Military Records (ABCMR).

Senior Leader Representation

Commanders, senior staff officers, and Command Sergeants Major are subject to a great deal of scrutiny from higher headquarters and will be held accountable for actions that they take in the course of carrying out their responsibilities. Individuals in these types of high visibility positions are also very likely to be the subjects of complaints from members of their organizations, family members, and the general public. These can take several forms. They can result in a number of types of investigations. These include complaints to the (organizational, Department of the Army, or DOD) Inspector General (IG), AR 15-6 Investigations, and Congressional Inquiries.

 

The Army takes all such complaints very seriously. For example, ANY allegation of wrongdoing by a general officer will never be handled at the local level.  All such complaints are automatically referred to the Department of the Army Inspector General.

 

Many complaints are often a matter of someone simply not approving of a decision which has been made in the course of carrying out the responsibilities of one's assigned military position. In those cases, you will be assisted by the Office of the Staff Judge Advocate (OSJA) of your organization in preparing your response.

 

However, you should be aware that all Judge Advocates who are assigned to an OSJA have the responsibility to protect the interests of the organization. The Army is their client and they are not allowed to form an attorney-client relationship with any individual Soldier. Once an individual is accused of wrongdoing and then becomes the respondent in either an IG investigation or a formal AR 15-6 investigation, it will be up to that individual to obtain a lawyer to provide legal advice to protect his own legal interest. Your response to such an investigation can have a decisive effect on your career. That is why you would need to retain an experienced military law attorney. The findings of an investigation and the actions taken as a result of these findings can make the difference being able to continue in your assignment or getting a relief for cause as well as the difference between getting a favorable evaluation or getting one that will have the effect of ending your career. As the Army begins to revert to a peacetime footing and shrinks in size, getting selected for good future assignments and further promotion will become increasingly competitive. In addition, receiving an unfavorable action such as a centrally filed reprimand, a relief for cause, or even a negative evaluation can have a significant effect on your retirement. Retirement at the rank of LTC and above normally requires one to have served at least three years in that rank prior to retirement in order to retain it on the retired list. Being forced to retire with less than three years time in grade will usually result in having to retire at your previous rank.

 

In addition, an officer above the rank of warrant officer retires in the highest grade satisfactorily served, not necessarily the grade held the day before placement on the retired list. This means that any adverse action at your highest rank can also result in being retired at a lower rank. This means that it is necessary to be able to present a strong rebuttal of any allegations that have been made against you.

 

When an officer applies for retirement, HRC reviews the officer's file to see if there is any adverse information generated since the officer's last promotion. If there is, AR 15-80 requires HRC to refer the officer's case to the Army Grade Determination Review Board (AGDRB). Even if there is no adverse information in the OMPF, the officer's command or branch can refer the officer for a grade determination if there is adverse information reflecting conduct since the last promotion that is not required to be filed in the OMPF. The AGDRB will notify the officer what information the AGDRB will consider and provide the officer an opportunity to submit matters in support of retiring in their current grade. The officer does not have a right to appear before the AGDRB.  However, you DO have the right to submit a written response in order to attempt to convince the AGDRB to allow you to retain your final rank when you are placed on the retired list. Being successful in doing so can have a very significant effect on your retirement income as well as on your ability to obtain future employment which is commensurate with your rank and experience.                       

 
The Army Qualitative Management Program

 

The Army has recently reinstituted the Qualitative Management Program (QMP). This is a program which provides that the Army will screen the records of all Regular Army and USAR Active Guard Reserve (AGR) Staff Sergeants and above will have their records reviewed to determine if the performance fiche of their AMHRR/OMPF contains any of the following adverse documents: 

 

• General officer letter or memorandum of reprimand.

• Conviction by courts-martial or Article 15.

• NCO Evaluation Report documenting a relief for cause action.

• A rating of 4 (fair) or 5 (poor) in the senior rater performance and potential blocks of the NCO evaluation report.

• An Academic Evaluation Report indicating a soldier has failed an NCO Education System course.

 

Those senior NCOs whose records contain any of the items listed above will have their records flagged. This ensure that these issues will be considered by the next HQDA centralized (promotion, advanced schooling, etc.) selection board. In addition to making it almost certain that these NCOs will NOT be promoted, these NCOs will also be considered for QMP action. Soldiers who are notified that they are being processed for QMP action will be required to execute an election of options (DA Form 4941). A Soldier denied continued service under the QMP may appeal the determination and request retention on active duty on the basis of improved performance and/or presence of material error in the Soldier’s record when reviewed by the selection board. Regular Army Soldiers wishing to appeal will be able to submit an appeal within 60 days of the execution of the DA Form 4941. Because of geographical separation and limitations on access to commanders and legal advisors, USAR AGR Soldiers are granted a maximum of 90 days from completion of DA Form 4914 to submit their appeals to their chain of command. Each commander in the chain of command, through the GCMCA or general officer commander, will add substantive comments regarding the Soldier’s performance and potential and recommend approval or disapproval of the appeal.

 

As mentioned above, it is possible to appeal separation under the QMP program on the basis of improved performance and/or the presence of material error in the Soldier's record.  In addition, a good appeal package should be prepared in order to ensure that the entire chain of command is aware of all positive aspects of a Soldier's Army career. This is essentially what is known as a "Good Soldier Defense."  The Soldier may submit any relevant material in support of the appeal. A Soldier may submit only one appeal, and requests for reconsideration of denied appeals are not authorized. Since the Soldier will have only one opportunity to appeal, it is imperative to ensure that the appeal is as complete and persuasive as possible. A QMP appeal is too critical to simply do it on your own. The best way to ensure that an appeal is as strong as possible is to have it prepared by an attorney who is highly experienced in dealing with military personnel actions.

 

In addition to submission of an individual appeal, a commander in the grade of LTC or higher may submit an appeal on behalf of a Soldier selected for QMP on the basis of the Soldier’s current performance and potential. Such an appeal must be based on the commander’s judgment that the Soldier merits retention after comparing the Soldier’s current performance with the documents cited as grounds for the denial of continued service. A commander’s appeal is separate and distinct from the Soldier’s own appeal since it is based on different criteria. Commander appeals must be processed through the Soldier’s chain of command and must reach USAEREC (RA) and USA HRC (USAR AGR) within 120 days of the date that the Soldier is notified of QMP selection. Any Soldier who is facing QMP action should always ask their chain of command to consider the initiation of a Commander's appeal.

 

However, the best way to deal with the QMP process is to avoid it entirely. QMP actions are based on the presence of unfavorable information in the performance fiche.  While it is not possible to turn back the clock and change the past, the Army does provide the means to either entirely remove unfavorable information from the performance fiche of a Soldier's record (and moving it to the restricted fiche) or to have it deleted entirely. This can be done by means of an application to the Department of the Army Suitability Evaluation Board (DASEB) and/or the Army Board for the Correction of Military Records (ABCMR).

 

 

 

 

 

Bars to Reenlistment

In addition to initiating administrative separation action, a command may impose a Bar to Reenlistment. This is an action that will prevent a Soldier from serving in the Regular Army past his current ETS date. While it will not result in an unfavorable characterization of service, it will result in the end of an individual's Army career. Chapter 3-7 of AR 601-280 provides that  Commanders should evaluate all potential reenlistees under the “whole person” concept. Those soldiers who are not considered suited for future military service should be considered for immediate administrative separation or initiation of a bar to reenlistment under the provisions of chapter 8 of AR 601-280.

 

Factors considered under the “whole person” concept are listed below. This is a commander’s guideline to assist in evaluating the potential reenlistee.

 

(1) Recent nonjudicial punishment.

(2) Repetitive nonjudicial punishment.

(3) Low aptitude area scores.

(4) Low education achievement in combination with a pattern of disciplinary incidents.

(5) Low evaluation reports.

(6) Slow rank progression resulting from a pattern of marginal conduct or performance.

(7) Potential for further service.

(8) A combination of any or all of the above factors.

 

The factors listed above are typical but these are not the only factors which can be used as the basis for the imposition of a bar to reenlistment. As an example, failure to maintain an acceptable Family Care Plan may be the basis for a bar.

 

Bars to reenlistment are typically initiated by commanders at the company level. A Soldier who has been served with a notice of the proposed action on the DA Form 4126-R (Bar to Reenlistment Certificate) along with copies of any documentation which supports the basis for the proposed action. A Soldier who has been served with such notice will have seven days in which to file a formal written response. In some cases it will be possible to obtain an extension of time in order to be able to prepare a file a complete and convincing response. Any Soldier who is facing such an action should ALWAYS seek legal advice and assistance in order to be able to file a convincing response.

 

The commander who has initiated the bar will not be the final approving authority.  The level at which a bar may finally be approved is as follows:

 

1. For Soldiers having less than 10 years active federal service: the first commander in the normal chain of command in the rank of LTC or above or having special court martial convening authority (whichever is in the most direct line to the Soldier).

 

2. For Soldiers having between 10-18 years active federal service: the first general officer in the chain of command or the officer exercising general court martial convening authority (whichever is in the most direct line to the Soldier).

 

3. For Soldiers having 18-20  years active federal service: a bar must be approved by HRC. This is because Soldiers who have reached 18 years of active duty are almost always allowed to complete 20 years of service in order to qualify for retirement.

 

Any Soldier who is facing a bar should be aware that they are sometimes imposed as a means of putting someone on notice that they should improve their performance. In addition, it is also possible to successfully rebut a recommendation to impose a bar and to convince the approval authority to allow the Soldier to continue in the Army. Any Soldier who has been served with a notice of intent to impose a bar should ALWAYS seek legal advice in order to gain a full explanation of the their options and to gain assistance in the preparation and submission of a convincing rebuttal.

 

 

Security Clearance Revocations and Appeals

1. Q. WHAT ARE THE CONSEQUENCES OF HAVING A SECURITY CLEARANCE REVOKED?

 

A. For many soldiers a security clearance is vital for pursuing and retaining their Military Occupational Specialty. If it is revoked, a fine military career may be devastated. Fortunately, if you are having problems with your security clearance, an attorney can do a great deal to assist you.

 

2. Q. WHAT IS THE PROCEDURE FOR REVOKING A SECURITY CLEARANCE?

 

A. The Central Clearance Facility (CCF) located at Fort Meade, Maryland, will notify you that there is a problem with your security clearance. Army Regulation (AR) 380-67, Paragraph 8-201, governs clearance revocation and the appeals process. The initial memorandum, called a Letter of Intent (LOI), will state that the CCF intends to revoke your security clearance because the CCF discovered a credible derogatory information about you. A common form of derogatory information is a bad credit report. For example, if your credit report demonstrates that you do not pay your bills regularly and/or on time, the CCF may consider you a security risk and begin actions to revoke your clearance. The LOI will state in detail the nature of the derogatory information and will direct suspension of your access to classified information and/or your access to Sensitive Compartmented Information.

 

3. Q. WHAT DO YOU DO WHEN YOU RECEIVE A LETTER OF INTENT?

 

A. Immediately upon receiving the LOI, your commander will have you acknowledge its receipt in writing and will counsel you regarding the severity of losing your security clearance. He or she will also have you indicate your intention to appeal in writing.

 

4. Q. HOW DO YOU APPEAL?

 

A. You have sixty (60) days to appeal the CCF’s intent to revoke your clearance. You may submit a request for extension of time to appeal to Headquarters, Department of the Army, in writing and endorsed by the immediate commander. Such requests are granted only in exceptional cases. In appealing your revocation, you must address each issue raised in the LOI in your appeal. You should attach written documents supporting your appeal including letters from supervisors, counselors, creditors, or other credible sources. When you complete your appeal packet, you must forward it through your chain of command. At least one of your commanders must endorse the LOI and recommend whether your clearance should be revoked or restored.

 

5. Q. CAN I SUBMIT A REQUEST FOR RECONSIDERATION?

 

A. After the CCF receives your appeal, a decision regarding your clearance revocation will be made within 60 to 90 days. If your appeal is denied, you have 60 days following receipt of the denial letter to appeal to Headquarters, Department of the Army. Within 60 days after receiving the denial letter, you may also submit a Request for Reconsideration (RFR) to the CCF. The RFR must be based on additional mitigating information not contained in the first appeal to the CCF. If all of your appeals are denied, you may submit another RFR to the CCF after one year from the date of your final denial letter or appeal decision, whichever is later.

 

6. Q. WHAT CAN BE DONE FOLLOWING FINAL UNFAVORABLE ACTION BY THE CCF?

 

A.  A Soldier who has received a Letter of Denial or revocation from the CCF has two remaining appeal options. He can either submit a direct written appeal to the Army Personnel Security Appeals Board (PSAB) within thirty days. He can also request a personal appearance before a Defense Office of Hearings and Appeals (DOHA) administrative judge.  This must be done within TEN (10) calendar days!

 

Having an appearance before a DOHA judge is the best option and the Soldier should always request an appearance whenever possible..  The Soldier will be able to personally speak to the DOHA.  A Soldier who has appealed to the DOHA also has a regulatory right to be advised by legal counsel.

 

In some cases, he will be able to be accompanied by counsel who is an Army Judge Advocate.     

However, it will be up to the Judge Advocate's chain of command (either from the Office of the Staff Judge Advocate for legal assistance attorneys or the Senior Defense Counsel for members of the Trial Defense Service) to determine if they will  authorize one of their attorneys to make an appearance in such a case. Such a decision will be made based on staffing levels, and budgetary considerations, etc. While a Soldier has an absolute right to have representation by assigned military counsel at a court martial there is no guaranteed right to have representation by assigned military counsel at a DOHA hearing.

 

However, a Soldier will always have the right to be represented by an attorney who has been privately retained at no expense to the government. Since maintaining a security clearance is a prerequisite for being able to continue your Army career, you will need to retain an experienced military law attorney. The Soldier has the right to a copy of the investigative file and will thus be able to formulate a response to any negative information. While the Soldier does not have the right to call live witnesses, he does have the right to submit documentary evidence to refute or mitigate any adverse evidence. The DOHA judge will have a copy of the Statement of Reasons in support of revocation as well as the entire CCF file. Government counsel will NOT be present and the client and/or his counsel will be able to present arguments on behalf of the appellant.

 

Following the appearance, the DOHA judge will make a written recommended decision to the PSAB. The PSAB is a three member board and it will consider the appeal and render a final determination on the case.

 

Legal Issues Related to the Army Promotion System

There are a number of legal issues which may arise as a result of the Army promotion system. 

These occur in the centralized promotion board system which controls all officer promotions as well as for NCO promotions to the ranks of SFC-SGM/CSM (E-7 through E-9).  Prior to a promotion board, individuals who are in the zone of consideration will be notified that they are going to be considered for promotion. At some point they will be able to go online and examine their board file. They will then have an opportunity to contact their career manager in order to ensure that everything that should be seen by the board is included and also to seek to remove anything which should not be included. You will then have the chance to finally approve what will actually be seen by the board. It is critical to be diligent in this process. Remember, you are your own best career manager. In addition, it is always highly advisable to retain a copy of your board file. 

 

RECONSIDERATION  BY A SPECIAL SELECTION BOARD

 

In addition, an Army officer who has been turned down by a promotion board MAY have grounds to seek reconsideration by a Special Selection Board. While the results of promotion boards are presumed to be administratively correct, there are occasionally some instances in which the denial of a promotion can be due to some administrative error. This may occur when the individual's board file was incomplete due to the omission of documents which should have been seen by the board.  In other cases, the board file may have included documents which should not have been included in the board file. This type of situation can occur when the file includes items which should not have been included. These are documents which should have either been entirely removed from the file or else placed in the restricted fiche due to either the provisions of Army Regulations or as a result of  previous action by the Department of the Army Suitability Evaluation Board or the Army Board for the Correction of Military Records. When it can be shown that denial of promotion occurred due to such an error, it is possible to have a corrected file considered by a Special Selection Board.

 

There is no guarantee of being granted reconsideration or that a subsequent board will grant the promotion. However, it is possible to apply for reconsideration. Any Soldier who is facing the end of a career due to being turned down for promotion needs to seriously consider applying for such reconsideration.

 

REMOVAL FROM A PROMOTION LIST BY A PROMOTION REVIEW BOARD

 

It is also possible to be removed from a promotion list. This can occur when an officer is in a promotable status but the promotion has not yet become effective. Removal from a promotion list can occur as a result of something which was not known to the board or which has occurred subsequent to the promotion board. The basis for such an action is the discovery of adverse information which would have been likely to result in nonselection for promotion if the information had been included in the board file. This is separate and distinct from being flagged during the pendency of an investigation or until a temporarily disqualification can be resolved. Action by a Promotion Review Board (PRB)  can overturn a previous favorable decision by a Promotion Board.

 

Any officer who is facing action by a PRB should act immediately to file a timely and persuasive response.  Due to the critical significance of being removed from a promotion list the officer should retain an attorney to help prepare this response.  If an officer is removed from a promotion list due to one of the adverse actions listed above and the record of this action is not subsequently removed from the AMHRR the adverse information WILL be seen by future promotion boards and this will almost certainly result in the denial of any future promotions.

Mitigating the Effects of Previous Adverse Actions

Selection for 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 Resources Record File (AMHRR).  Panel members don't know you and they are bound by regulation to base their decisions on what they see in your AMHRR. 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!

 

The importance of a Soldier's military record is clearly stated in Army Regulation 600-37:

 

a. Personnel management decisions will be based on the following:

(1) Review of official personnel files.

(2) The knowledge and best judgment of the commander, board, or other responsible authority. (Both favorable and

unfavorable information regarding the soldier concerned will be considered.)

b. Personnel decisions that may result in selecting soldiers for positions of public trust and responsibility, or vesting

such persons with authority over others, should be based on a thorough review of their records. This review will include an appraisal of both favorable and unfavorable information available.

 

U.S. Army Human Resources Command (HRC) usually maintains a soldier’s AMHRR. It consists of a performance section (performance, commendatory, and disciplinary data), a service section (general information and service data), and, in some cases, a restricted section (controlled data). U.S. DEP’T OF ARMY, REG. 600-8-104, MILITARY PERSONNEL INFORMATION MANAGEMENT/RECORDS ch. 2 (27 Apr. 1992). Once unfavorable information is placed in the performance fiche of a soldier’s record, the procedure to remove this unfavorable information from the AMHRR is difficult and “appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.”

 

THE AFTERMATH OF AN ADVERSE ACTION, HOW CAN YOU FIX THE PROBLEM?

 

Having unfavorable information such as a GOMOR or an Article 15 filed in the performance section in one's AMHRR can have serious and potentially catastrophic consequences for any Soldier's Army career. This type of information is essentially the equivalent of a cancerous tumor waiting to metastasize or a ticking time bomb waiting to explode.  It is nothing less than a strong negative recommendation from a general officer which clearly 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.  However, the Army does provide a means to overcome the negative effects of a GOMOR or an Article 15 and to get your career back on track.  It is possible to have unfavorable information moved to the restricted fiche of the AMHRR and in some cases to have it removed entirely.  The first step in this process will be to file an application with the Department of the Army Suitability Evaluation Board (DASEB).

 

A successful application to the DASEB can enable you to overcome the effects of a career setback and convince the Army that your subsequent performance has demonstrated that you really are a good Soldier.  A Soldier must wait at least a year to file an application with the DASEB and have received at least one favorable OER or NCOER.  The decision of when to file is a very important one and the timing will depend on a number of factors to include the nature of the adverse information, and the strength of the individual's subsequent record of service.  For example, two or three strong positive evaluations will do more to convince the DASEB than would one. However, the timing of the next promotion board will also be a significant factor. An individual with more time in grade would certainly need to act sooner than one whose next board is several years in the future. This would depend on the individual's date of rank which will determine when someone is in the zone for promotion consideration. In addition, during a period such as the present when the Army is likely to be reducing its overall numbers, anyone who has unfavorable information in their OMPF would be well advised to apply to the DASEB as soon as possible. In every case, the burden of proof is on the applicant. That is why it is critically important to submit the strongest possible application packet. A military law attorney who is experienced in military personnel law can greatly enhance your chances of success by helping you to compile a thorough and complete application packet and by drafting your memorandum to the DASEB.

 

You have the right to apply to the DASEB and request the removal of unfavorable information.  Once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR. Normally, consideration of appeals is restricted to SSGs (E6) and above, to officers, and to warrant officers. Although any soldier may appeal the inclusion of a document placed in his or her file under the applicable regulation, the appeals of Soldiers in grades below E–6 will only be considered as an exception to policy. This does not include documents that have their own regulatory appeal authority such as evaluation reports and court-martial orders. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

 

In addition to filing an application for removal, you can also seek to have the unfavorable information removed from the performance fiche and transferred to the restricted fiche. 

Documents in the restricted fiche are not seen by most promotion boards.  There are a few exceptions. For example, a board which is considering officers for promotion to Colonel (O-6) and above, and for some nominative assignments will have access to everything in a Soldier's record.                            

 

While  board access to the restricted fiche for in the case of NCOs was previously limited to selection  for higher level CSM positions and certain other nominative assignments, the Army has recently announced that MSG boards will now have access to the entire record, INCLUDING the restricted fiche! This means that in addition to simply seeking to have the information moved to the restricted fiche, it is now even more critical to seek to have it completely removed from one's record.

 

The Army has recently reinstituted the Qualitative Management Program (QMP). This is a program which provides that the Army will screen the records of all Regular Army and USAR Active Guard Reserve (AGR) Staff Sergeants and above will have their records reviewed to determine if the performance fiche of their OMPF contains any of the following adverse documents:

 

• General officer letter or memorandum of reprimand.

 

• Conviction by courts-martial or punishment under Article 15 of the UCMJ.

 

• NCO Evaluation Report documenting a relief for cause action.

 

• A rating of 4 (fair) or 5 (poor) in the senior rater performance and potential blocks of the NCO evaluation report.

 

• An Academic Evaluation Report indicating a soldier has failed an NCO Education System course.

 

Those senior NCOs whose records contain any of the items listed above will have their records flagged. This will ensure that these issues will be considered by the next HQDA centralized (promotion, advanced schooling, etc.) selection board. In addition to making it almost certain that these NCOs will NOT be promoted, these NCOs will also be considered for QMP action.

 

In addition to the foregoing, the Army recently conducted Officer Separation Boards and Selective Early Retirement Boards to consider the records of almost 19,000 CPTs (year groups 2006, 2007, and 2008) and MAJs (year groups 1999, 2000, 2001, 2002, and 2003) in the Army Competitive Category. It is anticipated that as many as 20% of those considered will be forced to leave active duty through either retirement, transfer to the reserve components, and in some cases outright separation from the Army. Those being considered by these boards are those with adverse information in their AMHRR. This will include information which is filed in the restricted fiche. These boards will even consider information which was formerly not held against officers, such as records of Article 15 actions which had been imposed during previous enlisted service. These boards were convened as a means to reduce the size of the Army and it appears that individuals who had been the subject of previous adverse actions may be penalized even if these events occurred many years ago and despite the fact that the officers in question may have had an exemplary record since that time.

 

Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted fiche. Normally, such appeals will be considered only from NCOs in pay grades E–6 and above, officers, and warrant officers. (At lower grades, the AMHRR is not used for centralized promotion purposes.) In addition to the cases cited above, such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

 

Appeals approved under this provision will result in transfer of the document from the performance record to the restricted portion of the AMHRR. However, the transfer of administrative letters of reprimand, admonition, or censure to the restricted fiche will not normally serve as the sole basis for promotion reconsideration by a special board, unless approved by the DMPM as a justified exception to policy. (3) Appeals submitted under this provision will normally be returned without action unless at least 1 year has elapsed since imposition of the letter and at least one evaluation report, other than academic, has been received in the interim.

 

If an appeal is denied by the DASEB (including those not accepted, such as appeals filed by Soldiers below the rank of SSG) a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record. The appeal will be placed in the restricted portion of the AMHRR.

 

In addition to the foregoing, once an appeal to the DASEB has been denied the Soldier can bring the matter to the Army Board for the Correction of Military Records (ABCMR). The ABCMR is the highest and final level for administrative review of any personnel action within the Department of the Army. All of these matters are discussed in greater detail in the section of this site that describes the Army Review Boards Agency.

 

 

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