Blogs from 2020

General Officer Memorandums of Reprimand (GOMORs) are among the most abused mechanisms in the Army’s reprimand process and, once filed, can have devastating consequences on a service member’s military career. If you have received a GOMOR or other adverse written reprimand, contact one of our military defense lawyers today to learn more about your rights.

OVERVIEW

The Army has come under increased scrutiny in recent years due to abuses by commanders in its reprimand process. Among the most abused mechanisms is the Army’s notorious General Officer Memorandum of Reprimand (GOMOR). GOMORs are the Army’s way of punishing Soldiers when there is not enough evidence to support Article 15 punishment or court-martial. Once filed, a GOMOR can have career-ending consequences for a Soldier.

AUTHORITY TO ISSUE A GOMOR

AR 600-37, Unfavorable Information, sets forth the Army’s policies and procedures on when unfavorable information can be placed in, transferred within, or removed from a Soldier’s Army Military Human Resource Record (AMHRR). The regulation directs commanders to “take appropriate action(s) with reference to unfavorable information concerning members of their commands.” Authority to issue and direct the filing of a GOMOR is typically restricted to general officers and school commandants.

While AR 600-37 provides the authority to issue a GOMOR, the regulation fails to provide any standard of proof which must be met before a Soldier can receive an administrative reprimand. As a result, Soldiers routinely receive GOMORs based on weak evidence or substantiated allegations which later prove untrue.

REBUTTING A GOMOR

Service members have an absolute right to submit evidence that rebuts, explains, or mitigates unfavorable information. AR 600-37, paragraph 3-2, affords service members two important due process rights in rebutting a GOMOR.

First, the recipient of a GOMOR is entitled to the “opportunity to review the documentation that serves as the basis for the proposed filing.” The documentation should be largely unredacted to enable the Soldier to meaningfully rebut the allegations.

Second, the Soldier is entitled to a “reasonable amount of time to make a written statement in response.” Active duty Soldiers are usually provided 7 calendar days to respond, while Army National Guard and Reserve Soldiers receive 30 calendar days. Commanders will typically grant reasonable requests for extension of time beyond these deadlines.

A written statement in response can be prepared by the service member or their attorney. When drafting a rebuttal, it’s important to consider both the content of the response and whether providing evidence in support would be helpful or harmful. Soldiers are often told simply to accept responsibility in their GOMOR response and beg that the reprimand be filed locally. However, any admission of guilt can later be used against a Soldier at Article 15 punishment, court-martial, chapter board, or any other administrative or criminal proceeding.

The decision of what approach to take in a GOMOR rebuttal is highly fact specific and should be made in consultation with an attorney.

FILING A GOMOR

Commanders issuing GOMORs have only two filing options: permanent filing in the performance portion of the AMHRR or local filing.

Permanent. Regardless of the issuing authority, a GOMOR may be filed in a Soldier’s AMHRR only upon the order of a General Officer. The General Officer must be senior to the recipient or given direction from an officer having general court-martial jurisdiction over the Soldier. GOMORs filed in a Soldier’s AMHRR will be filed in the performance folder. Unfavorable information should only be included in the performance portion of the AMHRR “after considering the circumstances and alternative non-punitive measures.” One placed in the AMHRR, a GOMOR will be permanently filed unless removed through the appeal process.

Local. The second option is to file the GOMOR locally. A local filing may only be filed for up to 18 months, or until the Soldier is reassigned to another general court-martial jurisdiction, whichever is sooner. A locally filed memorandum should state the length of time the letter is to remain in the local file and provide a point of contact for the Soldier after the expiration date to ensure removal. The Soldier and the unit are equally responsible for removing the letter from the local file after 18 months.

Anonymous communications cannot be filed in a Soldier’s AMHRR or filed locally.

CONSEQUENCES OF RECEIVING A GOMOR

Receipt of a GOMOR can have significant adverse consequences. Soldiers flagged as a result of unfavorable information are unable to PCS or promote and are typically viewed as guilty until proven innocent by their chain-of-command and fellow service members.

Issuance of a GOMOR may also trigger a variety of administrative reviews like the Qualitative Management Program (QMP), Promotion Review Board (PRB), and Standby Advisory Board (STAB), to name a few. Unfavorable information which casts doubt on the suitability of a Soldier to hold a security clearance may be reportable to the supporting counterintelligence office.

A GOMOR may also be a precursor to more serious administrative or punitive action such as Article 15 punishment, court-martial, or a chapter board.

APPEALING A GOMOR

The Department of the Army Suitability Evaluation Board (DASEB) is the initial appeal authority for GOMORs and make recommendations for removal, alteration, or transfer or unfavorable information entered in a Soldier’s AMHRR. The DASEB considers appeals from Soldiers serving on active duty, in the National Guard, and in the Reserves (in grades E-6 and above). The DASEB does not accept appeals from veterans and retirees.

A GOMOR properly filed in a Soldier’s AMHRR is presumed to be administratively correct. However, the officer who directed the filing in the AMHRR of an administrative reprimand “may request its revision, alternation, or removal if later investigation determines such information is untrue/unjust in whole or in part.” A Soldier may likewise request the removal or transfer of a GOMOR that was improperly filed.

Soldiers whose appeal has been denied may submit a request for reconsideration no earlier than one (1) years from the date of notification of denial. Any request for reconsideration must include evidence not previously considered.

REMOVAL VS. TRANSFER

Appeals for removal. A Soldier may request removal of a GOMOR on appeal. The Soldier has the burden to show, by clear and convincing evidence, that the GOMOR is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include an official investigation showing the allegation was untrue; decisions by superior authorities overturning the basis for the adverse documents; notarized witness statements; historical records; official documents; and/or legal opinions. There is no time restriction to submit an appeal for removal of unfavorable information from the AMHRR.

Appeals for transfer. A Soldier may also request that a GOMOR be transferred to the restricted portion of their AMHRR. To be eligible for a transfer, a Soldier must have received at last one evaluation since imposition of the GOMOR. The Soldier must prove by substantial evidence “that the intended purpose of the document has been served” and that transfer of the unfavorable information “would be in the best interest of the Army.” Such evidence may include statements of support from the imposing authority or the Soldier’s current or previous chain of command; subsequent evaluation reports; court documents; notarized witness statements; statements of remorse; documents demonstrating rehabilitation; and any other information which proves that the intended purpose of the GOMOR has been served.

Soldiers who are retired, separated, or serving in the Individual Ready Reserve must appeal to the Army Board for Correction of Military Records to request removal or transfer of unfavorable information within their AMHRR.

CONTACT MJA TODAY

If you have received a GOMOR or other adverse written reprimand, contact one of our military defense lawyers today to learn more about your rights.

The post GOMORs: The Army’s Career-Killing Reprimand appeared first on Military Justice Attorneys.

DoD policy requires that DNA samples be taken from service members, civilians, and contractors who are suspected of committing certain criminal offenses. These samples are forwarded to the United States Army Criminal Investigation Laboratory (USACIL) which serves as the DoD’s Combined DNA Index System (CODIS) participating laboratory.

Individuals from whom samples are taken but who were not convicted of a crime can request expungement of their DNA records. If your DNA was taken during a military criminal investigation, contact our military attorneys today to learn more about your expungement rights.

Current Service Members

Current service members from whom DNA samples were taken but who were not convicted at general or special court-martial may request in writing that their DNA records be expunged. Conviction at court-martial does not include non-judicial punishment, administrative separation, or referral to a summary court-martial. For example, if a service member has DNA taken for an offense that ultimately results in punishment under Article 15 (non-judicial punishment) or in administrative separation (chapter board), those adverse actions are not considered a “conviction” and the service member may request expungement of their DNA records.

Expungement requests must include proof that the charges were dismissed, withdrawn, never preferred, or otherwise have not and will not result in a criminal conviction. This service member’s request will be reviewed by their commanding officer and then submitted to the relevant DoD law enforcement organization to validate that there is no conviction that would prohibit expungement. Once confirmed, the DoD law enforcement organization will send a request for expungement to USACIL. When a request for expungement is properly submitted, USACIL will expunge the DNA records, destroy the submitted sample, notify the service member of its actions, and maintain documentation of that notice.

Former Service Members

Former Service members from whom samples were taken but who were not convicted of any offense by a general or special court-martial, or who can provide a certified copy of a final court order documenting the charge has been dismissed or resulted in an acquittal, can also request that their DNA records be expunged.

Requests for expungement from former service members will be submitted to the Clerk of Court of the Military Department’s Court of Criminal Appeals and must include proof showing that none of the offenses giving rise to the collection of DNA resulted in a conviction at a general or special court-martial. This could include a final court order showing that such a conviction was overturned or showing action by the convening authority that has the effect of a full acquittal. A court order is not final if time remains for an appeal or application for discretionary review with respect to the order.

Upon receipt of an expungement request, the Clerk of Court of the Military Department’s Court of Criminal Appeals will search their records for any conviction pertaining to the former service member and determine whether expungement is proper. If so, the Clerk of Court will send requests for expungement to USACIL. USACIL will expunge the DNA profile from the CODIS database upon receipt of a complete request.

Civilians

DoD law enforcement organizations are required to take DNA samples from civilians whom they detain and who remain within their control when there is probable cause to believe the civilian has committed a qualifying federal offense. DoD regulations specifically require that DNA samples be taken from all alleged civilian drug offenders, except in cases of simple possession and personal use. DNA samples may also be taken by civilian law enforcement organizations. Law enforcement organizations are not required to take samples from a civilian not in their control at the time when a probable-cause determination is made.

DNA samples obtained by law enforcement will be forwarded to USACIL and potentially, to the FBI Laboratory. Civilians who are not convicted of any offense, or whose conviction was overturned, may request in writing that their DNA sample be expunged. The requester must provide, for each charge for which the DNA record could have been included in the national DNA index, a certified copy of a final court order showing that such charge has been dismissed, resulted in an acquittal, or that no charge was filed. Expungement is not authorized if the individual seeking expungement has a Federal conviction for a separate offense that should have but did not result in the collection and forwarding of DNA to USACIL.

Contact MJA Today

If your DNA was taken during a military criminal investigation, you may be eligible to request expungement of your DNA records. Contact Military Justice Attorneys today to speak with an attorney about your options.

The post DNA Expungement: What You Need to Know appeared first on Military Justice Attorneys.

MJA is proud to announce a recent victory on behalf of our client, a Specialist in the United States Army. The client was charged at general court-martial with violating Article 120b (sexual abuse of a child) for allegedly committing a lewd act in the presence of a teenager. He was advised by military counsel to sign a plea agreement which would require him to plead guilty and result in his conviction, confinement, dishonorable discharge, and likely sex offender registration. The client retained MJA the night before his scheduled plea. MJA immediately withdrew from the plea agreement and requested a continuance. MJA then began investigating the allegations. MJA discovered previously unknown evidence showing that the alleged victim had made false allegations against the client and other young men. A general court-martial trial was held almost three years after the alleged incident. At trial, MJA exposed the numerous lies and inconsistencies in the alleged victim’s statement, and attacked an unlawfully obtained “confession” by the accused. The jury deliberated for less than an hour before finding our client NOT GUILTY on all charges and specifications. The Specialist will be promoted to Sergeant and continue his military career. Congratulations to this well-deserving client!

MJA Can Help

MJA has successfully represented service members charged with some of the most serious offenses under the UCMJ. If you are facing court-martial or other adverse action, it is absolutely critical that you have an experienced military justice attorney fighting on your behalf. Please contact us today for your free consultation.

The post Full Acquittal for Soldier Charged with Violating Article 120b, UCMJ appeared first on Military Justice Attorneys.

The Last Line of Defense for Service Members Convicted of a Military Crime

The presidential pardon is the last line of defense for service members convicted at general or special court-martial. After all legal appeals are final, only the presidential pardon can provide a convicted service member with meaningful relief.

MJA is dedicated to fighting for service members facing court-martial, appealing their conviction, or seeking final relief in the form of a presidential pardon. Contact one of our military defense lawyers today to learn more.

Pardon Clause

Article II, Section 2, Clause 1 of the Constitution, known as the Pardon Clause, empowers the President of the United States “to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The President’s power to pardon or grant clemency, while broad, extends only extends to federal criminal convictions, which includes military courts-martial. Pardons cannot be given for impeachment convictions by the United States Congress or for state criminal convictions.

Eligibility for a Pardon

To be eligible for a presidential pardon, a petitioner must usually wait at least five years after their federal conviction before applying. This waiting period is designed to give the petitioner a reasonable period of time to demonstrate that they can be a responsible, productive, and law-abiding citizen. The waiting period begins on the date the petitioner is released from confinement or, if no confinement was awarded, from the date of sentencing.

Petitioners must have also fully satisfied whatever sentence was imposed, including all probation, parole, or supervised release, before applying for a pardon. It is important to note that the waiting period begins after the petitioner is released from confinement for their most recent conviction, whether or not that is the offense for which pardon is sought. Petitioners may request a waiver of this waiting period requirement, though such waivers are rarely granted.

Requesting a Pardon

The pardon process differs for military and non-military convictions. For non-military offenses, a petitioner must submit a formal application to the Officer of the Pardon Attorney. In contrast, veterans seeking pardon of a court-martial conviction must submit their petition directly to the Secretary of the military department that had original jurisdiction over their case.

In evaluating the merit of each request, the Office of the Pardon Attorney considers numerous factors including the nature and seriousness of the offense, how recently the offense occurred, the service member’s overall criminal record, the service member’s conduct following conviction including community service, whether the service member accepted responsibility for the crime, and any specific hardships that the petitioner is suffering because of the conviction.

Petitioners should be prepared for pardon officials to conduct a detailed and extremely thorough background check into their personal lives, job history, criminal record, and current activities, to name a few. Petitioners are required to disclose any additional arrest or charge by civilian or military authorities, delinquent credit obligations (whether disputed or not), any civil lawsuits in which they were named as a party including bankruptcy actions, and any unpaid tax obligations.

Effect of a Pardon

A presidential pardon generally relieves the offender of all punishments, penalties, and disabilities that flow directly from the conviction and restores important rights lost including the right to vote and possess firearms. In fact, a presidential pardon is currently the only way in which a person convicted of a federal felony offense may obtain relief from federal firearms prohibitions.

A presidential pardon does not, however, erase or expunge the record of a military conviction. Expungement is a judicial remedy, rarely granted by courts, and cannot be granted by the Department of Justice or by the President. Instead, both the federal conviction as well as the pardon would both appear on your record. Even if you are granted a pardon, you still have to disclose that you were convicted at court-martial but may also state that you were later pardoned for the offense.

Additionally, the pardon of a military court-martial conviction will not change the character of a military discharge (e.g. dishonorable or bad conduct). To request a change in their characterization of service, a veteran must still submit a petition to their respective board for correction of military/naval records.

Length of Process

The executive clemency process can be lengthy, and the Office of the Pardon Attorney is not able to estimate for any particular applicant when he or she may expect to receive a decision on their application. After the President decides to grant or deny a particular clemency request, the Office of the Pardon Attorney notifies the applicant of the decision in writing. Because the written notification is sent to the last address the applicant has provided to the Office of the Pardon Attorney , it is important that an applicant notify that office if their address changes while the application is under consideration.

Decision Making Authority

The final decision on whether to grant a pardon rests with the President alone. No hearing is held on the pardon application by either the Department of Justice or the White House. A petitioner cannot appeal the President’s decision to deny a clemency request.

Likelihood of Success

While grant of a presidential pardon is an extraordinary remedy, they are far from impossible. Over 800 presidential pardons and almost 1,800 sentence commutations have been granted over the past four presidential administrations.

Additionally, service members convicted at court-martial may be uniquely positioned for a pardon depending on the specific offense. Since taking office, President Trump has already granted full and unconditional pardons to three members of the United States military convicted at general court-martial for violations of Articles 80, 118, 128, and 134.

The Department of Justice maintains over 100 years of statistics showing the number of clemency petitions granted and denied by presidents: https://www.justice.gov/pardon/clemency-statistics.

Contact MJA Today

Even if you were unsuccessful in appealing your court-martial conviction, you may still be eligible for a presidential pardon. Call us today at (843) 773-5501 for a free consultation.

The post Presidential Pardon: The Last Line of Defense appeared first on Military Justice Attorneys.

Defending Service Members Charged with Malingering

“Malingering” is the criminal offense of feigning mental or physical illness, or intentionally hurting oneself, in order to avoid military duties. While this military-specific offense may sound archaic, malingering is still prosecuted in the military and carries serious punishment.

MJA has defended service members charged with the most serious offenses under the UCMJ, including malingering. Contact our military defense lawyers now to learn more.

ELEMENTS

A violation of Article 83, UCMJ (malingering), generally requires three elements:

1. That the accused was assigned to, or was aware of prospective assignment to, or availability for, the performance of work, duty, or service;
2. That the accused feigned illness, physical disablement, mental lapse, mental derangement, or intentionally inflicted injury upon himself or herself; and
3. That the accused’s purpose or intent in doing so was to avoid the work, duty, or service.

If the offense was committed in time of war or in a hostile fire pay zone, an additional element is added to the offense.

MALINGERING EXPLAINED

Malingering is best described as any act designed to avoid performance of any work, duty, or service normally expected of a service member. This can be an attempt to avoid all duty or only a particular job.

According to the Manual for Courts-Martial, the “nature or permanency of a self-inflicted injury is not material on the question of guilt. . . . Evidence of the extent of the self-inflicted injury or feigned disability may, however, be relevant as a factor indicating the presence or absence of the purpose.”

HOW INJURY IS INFLICTED

An injury may be inflicted by violent or nonviolent means, and “may be accomplished by any act or omission which produces, prolongs, or aggravates any sickness or disability.” For example, voluntary starvation which weakens a service member is considered a self-inflicted injury and act of malingering if done for the purpose of avoiding work, duty, or military service. Bona fide suicide attempts should not be charged as the criminal offense of malingering.

MAXIMUM PUNISHMENT

The maximum punishment for malingering varies depending on whether the service member is simply feigning illness or intentionally hurt themselves. For example, the act of feigning illness, physical disablement, mental lapse, or mental derangement carries the risk of a dishonorable discharge, total forfeitures, and confinement for a year. In contract, intentional self-inflicted injury carries up to 5 years confinement.

These punishments increase to 5 years and 10 years confinement, respectively, if the feigned illness or self-inflicted injury occurs in a hostile fire pay zone or time of war.

PROTECT YOUR FREEDOM AND MILITARY CAREER 

MJA has defended service members facing investigation, court-martial, and discipline for some of the most serious offense under the UCMJ, including malingering. Call us today at (843) 773-5501 for a free consultation.

The post Understanding Article 83, UCMJ – Malingering appeared first on Military Justice Attorneys.

MJA is proud to announce a recent victory on behalf of our client, a Lieutenant Commander in the United States Navy. Following completion of a command investigation, our client was offered nonjudicial punishment (NJP) for alleged violations of Article 92 (dereliction of duty) and Article 133 (conduct unbecoming of an officer), UCMJ. After refusing NJP, the officer was notified that a report of misconduct would be sent to Navy Personnel Command (PERS) requesting the officer’s promotion delay or removal and recommending that the officer be required to show cause for retention in the naval service.

MJA was retained to rebut the allegations and conducted an independent investigation which uncovered exculpatory evidence previously unknown to the command. MJA then submitted extensive written matters to the command which included statements from multiple witnesses not interviewed during the command investigation.  Based on this evidence, the Commanding Officer withdrew the NJP charges and routed a report of no misconduct to PERS to remove the flag from the officer’s record. The Lieutenant Commander will continue on active duty and remain eligible for promotion. Congratulations to this well-deserving officer!

Submitting Rebuttal Matters

Service regulations generally provide service members the opportunity to submit a written rebuttal or response to potential adverse counselings, substantiated findings in an investigation, or initiation of separation proceedings. This due process protection gives service members the opportunity to correct false or misleading allegations and, if done appropriately, can mean the difference between formal adverse proceedings and the charges being dropped.

Responding to an allegation is not, however, without risk. Any statement made by a service member (oral or written) may later be admissible against them at a court-martial or hearing and could even serve as the basis for additional charges. For this reason, it is critical that a service member consult with a qualified attorney before submitting a response to any adverse action.

An attorney can not only help draft an appropriate response, but can also assist in obtaining evidence that might otherwise be unavailable to the service member.  Service members suspected of misconduct may also be limited in the nature and scope of communications they can have with percipient witnesses, making an independent investigation almost impossible without the help of an attorney. For example, military protective orders or “no contact” orders may prohibit them from contacting witnesses with evidence relevant to their rebuttal. Doing so without an attorney could result in charges for orders violation, witness tampering, or obstruction of justice.

MJA Can Help

MJA is experienced in representing officers across the service branches who are under investigation or facing courts-martial, boards of inquiry / show cause proceedings, and adverse administrative actions. Please contact us today for your free consultation.

The post Naval Officer Not Required to Show Cause for Retention appeared first on Military Justice Attorneys.

Have you ever wanted to remove derogatory material from your official military record, request a medal you earned but were never awarded, or ask for a different discharge characterization of service or reenlistment code? If so, there is good news!  Each service branch maintains a Board for Correction of Military/Naval Records (BCMR/BCNR) devoted to correcting errors or injustices in a service member’s official military file.

MJA has helped active duty service members and veterans successfully petition the BCNR/BCMRs for relief in a variety of cases including titling appeals, administrative reprimand removals, discharge upgrades, and even removing records of nonjudicial punishment under Article 15, UCMJ. If there is an error or injustice in your military service records that warrants removal, contact us today for your free consultation.

What are the BCMRs?

The BCMRs, established pursuant to 10 U.S.C. 1552, consider applications properly before them for the purpose of determining the existence of an error or an injustice, and to make appropriate recommendations to the Service Secretaries. The BCMRs, unlike the Discharge Review Boards (DRBs) for each service, may review discharges awarded by a general court-martial.

Other types of cases reviewed by the BCMRS include, but are not limited to: requests for physical disability retirement; the cancellation of a physical disability discharge, and substituting, in lieu thereof, retirement for disability; an increase in the percentage of physical disability; the removal of derogatory material from an official military record; the review of nonjudicial punishment; and the restoration of rank, grade, or rating. The BCMRS will also review the case of a service member who is in a Reserve component and who contends that their release from active duty should have been honorable, rather than general (under honorable conditions).

Veterans seeking a discharge upgrade who were separated from the military less than 15 years ago must first apply to the Discharge Review Board for their service branch.

Am I eligible to apply?

Current and former members of the United States military (including Reserve personnel) may apply to the BCMR for their respective service for a correction of an error or injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, widow or widower, next of kin (parent, sibling, or child), or legal representative can apply for the service member.

What are the filing requirements?

Applications must be filed with the BCMRs within 3 years of the date of the discovery of the error or injustice. However, the boards are authorized to excuse the fact that the application was filed at a later date, if the finds it to be in the interest of justice to consider the application. The BCMRs may deny an application without a hearing, if it determines that there is insufficient evidence to indicate the existence of probable material error or injustice to the applicant. An application will not be considered by the BCMRs until the applicant has exhausted all other effective administrative remedies afforded by existing law or regulations, and such other legal remedies as the board shall determine are practical and appropriately available to the applicant.

How do I apply?

To apply, applicants must submit a completed DD149 form containing the veteran’s personal information, requested correction, justification for the request, and date and time when the alleged error or injustice was discovered, among other information. Applicants may attach as evidence documents in support of their application.

The burden of proof to show either an error or injustice rests with the applicant. Absent evidence to the contrary, the BCMRs will presume that the military record was appropriate and in compliance with service regulations. Applicants can request a personal appearance before the Boards, but are not entitled to a hearing.

Who reviews my case?

The BCMRs are composed of at least three-member panels of civilian employees appointed to by the Service Secretaries. The BCMR of the Coast Guard consists of civilians within the U.S. Department of Homeland Security. Panels review cases on a first come, first served basis.

How long does it take?

The BCMRs collectively process ten of thousands of applications a year. As a result, an applicant should expect to wait as long as 18 months before the board considers their case. This wait can, however, vary between the service branches.

What is liberal consideration?

On September 3, 2014, the Secretary of Defense issued a memorandum providing guidance to the BCNR/BCMRs as it considers petitions brought by veterans claiming Post Traumatic Stress Disorder (PTSD) with other than honorable conditions (OTH) discharge. This includes a comprehensive review of all materials and evidence provided by the applicant.

This policy was issued to make the application process easier for veterans seeking redress and assists the Boards in reaching fair and consistent results in these cases. The guidance also mandates liberal waivers of time limits, ensures timely consideration of petitions, and allows for increased involvement of medical personnel in Board determinations.

On 25 August 2017, the DOD issued clarifying guidance to the Military Discharge Review Boards expanding liberal consideration “when the application for relief is based in whole or in part on matters relating to any mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment.”

Under this new guidance, evidence of a qualifying condition “may come from sources other than a veteran’s service record, such as mental health counseling centers, and may include “changes in behavior” or “inability of the individual to conform their behavior to the expectations of a military environment.” Conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge.”

In discharge upgrade cases, liberal consideration applies when the board is considering for critical questions: (1) Did the veteran have a condition or experience that may excuse or mitigate the discharge?; (2) Did that condition exist/experience occur during military service?; (3) Does that condition or experience actually excuse or mitigate the discharge?; and (4) Does that condition or experience outweigh the discharge?

Liberal consideration, if applied, does not mean that the service member will automatically receive the requested relief but will be a consideration in the BCNR/BCMR’s analysis.

Is it actually possible to correct my records?

Yes! While getting a military review board to grant relief is not easy, it is possible with a lot of hard work and the right facts. MJA has helped active duty service members and veterans successfully petition the BCNR/BCMRs for relief in a variety of cases including titling appeals, administrative reprimand removals, discharge upgrades, and even removing records of nonjudicial punishment under Article 15, UCMJ. Examples of successful past cases include: 

• Board for Correction of Naval Records (BCNR). A Chief Petty Officer in the United States Navy was titled and indexed by the Naval Criminal Investigative Service (NCIS) during an investigation for a violation of Article 120, UCMJ. Despite substantial and overwhelming evidence showing that the Sailor did not commit the offense, NCIS refused to remove the titling determination. MJA appealed the decision to the BCNR, which determined that credible information did not exist to title the Sailor and that the titling was a “significant injustice.” The BCNR granted the Sailor full relief and recommended that NCIS expunge his name as a titled and indexed subject from the NCIC and DCII criminal history databases.
• Army Board for Correction of Military Records. A Private First Class (E-3) in the United States Army was titled and indexed by the Army Criminal Investigation Division (CID) for assault consummated by battery after a domestic incident with her spouse. The Soldier was never taken to court-martial or nonjudicial punishment and was later honorably discharged. Despite these facts, the Soldier remained titled and later learned that she was disqualified from working in the healthcare field due to the titling action. After USACID refused to remove the titling entry, MJA appealed the decision to the ABCMR. The Army Board determined that the Soldier was the victim of domestic physical abuse and should not have been titled. The ABCMR granted the Soldier full relief and recommended that all Department of the Army records concerning the Soldier be corrected by removing her name from the title block of the law enforcement report. 
• Board for Correction of Naval Records (BCNR). A Gunnery Sergeant (E-7) in the United States Marine Corps was awarded Nonjudicial Punishment (NJP) and issued a 6105 Counseling after being arrested for operating a motor vehicle under the influence of alcohol. MJA appealed the punishment on the basis that the Commanding Officer who imposed NJP failed to comply with JAGINST 5800.7F. The BCNR determined the NJP and counseling entry were invalid and removed them from the Marine’s OMPF. The BCNR further directed that a fitness report referring to the NJP be redacted to exclude any reference of the punishment. 

MJA Can Help

MJA has helped active duty service members and veterans successfully petition the BCNR/BCMRs for relief in a variety of cases including titling appeals, administrative reprimand removals, discharge upgrades, and even removing records of nonjudicial punishment under Article 15, UCMJ. If there is an error or injustice in your military service records that warrants removal, contact us today for your free consultation.

The post How to Correct Your Military Records: A Primer appeared first on Military Justice Attorneys.

MJA is proud to announce a recent victory at the Board for Correction of Naval Records (BCNR). Our client, a former enlisted Sailor who was discharged from the Navy in 1987 for a pattern of misconduct, spent over 30 years with an other than honorable (OTH) characterization of service on his record. After repeatedly being denied VA healthcare treatment because his discharge was not under honorable conditions, the Veteran retained MJA. MJA filed a petition with the BCNR arguing that the discharge and characterization of service were improper and inequitable based on the totality of the circumstances and the governing service regulations. The Board agreed and awarded the Veteran an honorable discharge. Congratulations to this well-deserving client!

The post Veteran Separated Over 30 Years Ago Receives Honorable Discharge appeared first on Military Justice Attorneys.

Being titled in the military is as simple as being placed in the subject block of a CID, OSI, or NCIS report of investigation. When an investigation begins, the investigator on the case only needs to develop credible information that a person committed a crime. Credible information can be as little as an alleged victim’s first statement to military police. Titling is not a legal decision; it is strictly investigative. So, when a person is titled, that doesn’t mean he or she actually committed any crime. Simply put, to be titled is to be listed as the subject of an investigation.

What is the legal authority to title someone?

DoD Instruction 5505.07, Titling and Indexing in Criminal Investigations, establishes the DoD’s policies and procedures for titling and indexing subjects of criminal investigations.  This policy requires the titling and indexing of any service member under criminal investigation “as soon as the investigation determines there is credible information that the subject committed a criminal offense.”  This is an incredibly low standard.  Once the subject of a criminal investigation has been indexed in the federal law enforcement database (DCII), “the information will remain in the DCII, even if the subject if found not guilty of the offense under investigation.”  The only exceptions to this policy are where “there is a mistaken identity or it is later determined no credible information existed at the time of titling and indexing.”

How does being titled affect me?

While the burden to title someone is quite low, the burden it places on the person titled can be heavy. When a service member is titled, the report of investigation is indexed in the Defense Clearance and Investigations Index (DCII). Once a person is titled and indexed, the record can be on file and accessible for up to 40 years.  Unfortunately, a titling determination can remain on record even when a service member never received any type of punishment, administrative or judicial, and was honorably discharged from the military!

When a person is titled, the record can be (and often is) accessed during background checks for such things as employment and education applications. This record can be likened to an arrest without further prosecution in the civilian world. It will often require explanation and can be a determinative factor for employers, educational institutions, state agencies and other areas where background checks are required.

What can I do?

When a person has been indexed after titling, there are ways to attack the record and amend or delete the titling decision. For example, titling information indexed in the DCII can be expunged or corrected if the titling resulted from mistaken identity or if no credible information existed at the time the titling decision was made.

As one may imagine, a request to amend or delete a titling decision is a tall task. Doing so often requires combing through investigative files, statements, interviews, and other records created throughout the investigation and strategically building a case based on all the information available. An experienced military lawyer has the skills and expertise to effectively build and present a case to amend or delete a titling decision.

MJA has experience successfully appealing titling decisions.  If you have been titled, please contact Military Justice Attorneys today to speak with one of our attorneys about your options.

The post I’ve Been Titled: What Next? appeared first on Military Justice Attorneys.