27 October 2009

Soldiers Accused in Marriage Scam for Benefits

Two soldiers and three women face up to five years in federal prison when sentenced for their roles in a scam that allowed Russian women to get U.S. citizenship and enlisted men to received off post housing and an extra living allowance. The scam was rather simple, a soldier would marry a Russian immigrant, who then returned to New York City after the nuptials to file immigration papers. The soldier would tell the Army he was married and file for permission to move off post as well as for an extra living allowance for his dependent. According to the government, the false marriages cost the Army at least $200,000 in unauthorized benefits. See the following News Story for the complete details of the scam.

23 October 2009

Officer Show Cause Boards

You have been given notice by memorandum (called a notification memo) that you are required to “show cause” why you should not be administratively separated from the Army under the provisions of AR 600-8-24. This handout will answer some general questions about your administrative separation (also called a show cause action).

Your separation has been initiated by either the Department of the Army (DA generated) or by a General Officer Show Cause Authority (GOSCA) at your installation (locally generated). The separation action is based on substandard performance of duty, misconduct, moral and professional dereliction, the interests of national security or any combination of the above. Your notification memo will list the specific reasons why the show cause action was initiated.

Your notification memo also lists the options available to you to respond to this action. Normally, you have 30 calendar days to submit your response to the notification memo. The options available to you depend both on the basis for the proposed separation and on your status as an officer. These options are:

a) If you are a probationary officer (meaning you are a Reserve officer with less than 3 years of commissioned service, or a Regular Army officer with less than 5 years of commissioned service), and you are not being considered for an OTH discharge, you have the following options:

(1) You may submit a Resignation in Lieu of Elimination. A Resignation is a document you send to Department of the Army, through your command channels, telling them that you will agree to give up your right to a Board hearing if you are promised a better type of discharge (usually a General discharge). If the Separation Authority agrees, you get that better type of discharge. If your offer is turned down, you still have the right to a board (see below);

(2) If you are a Regular Army officer, you may submit a request for Discharge in Lieu of Elimination.

(3) You may submit a response to the notification memo. The only way you can fight this action (or at least have some input into what sort of discharge you receive) is to submit statements in your own behalf. These statements can be yours, or from people that you work for or work with. They should talk about your duty performance, potential for future service, and any significant past contributions. They can ask that you either be retained in the service or given an Honorable discharge. These statements should be submitted to your attorney, who will include them in your response to the show cause action. That response will then be sent to Department of the Army, for decision.

b) If you are a nonprobationary officer (meaning you are a Reserve officer with 3 or more years of commissioned service, or a Regular Army officer with 5 or more years of commissioned service), or you are being considered for an OTH discharge, you have an additional option, and that is to request to have your case heard before an administrative separation board, called a Board of Inquiry (board). This board would normally consist of three officers, all senior in rank to you. The board’s job is to decide whether you have committed the acts upon which the government alleges you should be separated, and then decide if those acts warrant separation. If they decide they do warrant separation, they also recommend what kind of discharge you should get. The board then makes a recommendation to the Department of the Army. The Department of the Army makes the final decision, but cannot do anything less favorable to you than the board recommended. At the board you have certain rights. You would have the right to be represented by a detailed military lawyer at no cost to you. You can also hire a civilian lawyer, at no cost to the government. If you are a minority officer, you could request that a minority member be part of your board. You could make a statement to the board, or chose to remain silent. If you are facing a board, it is critical that you get legal advice as soon as possible. In many cases, an aggressive defense at the board will make a huge difference in your case.

Should your case go to a board, Department of the Army must also review the case prior to taking final action. They will send your case to a Board of Review at DA which will review the case in its entirety. Unlike the original Board of Inquiry, you do not have the right to appear before the Board of Review.

Regardless of the option you select, Department of the Army makes the final decision on whether you should be separated and if so, what type of discharge you should receive. If separated, you could receive one of three types of discharges (depending on the reason for the show cause action): Honorable, General (Under Honorable Conditions), also called a General discharge, or a discharge Under Other Than Honorable Conditions, also called an “OTH.” An Honorable discharge is the best discharge you can receive from the service. A General discharge is the second best discharge that the Army gives, but it is also “good paper.” An OTH discharge will deprive you of most of the benefits you would receive with an Honorable discharge and may cause you substantial prejudice in civilian life. Generally, an OTH discharge is only possible for show cause actions based on misconduct and before you can be given an OTH, you have the right to have your case heard by an administrative separation board, called a Board of Inquiry.

If discharged with a General Discharge (Under Honorable Conditions) once out of the service you may petition the Army Discharge Review Board and the Army Board for Corrections of Military Records to upgrade your discharge. An upgrade is neither guaranteed nor automatic.

In any case, you also have the right to consult with an attorney to decide what option is best for you. You can always obtain copies of all documents that will be forwarded to the Separation Authority. You should now see an attorney who will answer questions that you may have about your rights. The attorney should also thoroughly review your discharge packet to ensure the Commander has satisfied all of the regulatory obligations. You and the Attorney will then fill out a form indicating what options you wish to exercise in this matter. If you will face a board of inquiry, it is important to start preparing now. If you have any questions about your rights, feel free to contact our office.

22 October 2009

Camp Liberty Soldier Accused of Killing Five Fellow Soldiers Likely to Face Court-Martial

Sergeant John M. Russell, a 44-year-old radio communications specialist, is charged with premeditated murder and aggravated assault. However, his court-martial is temporarily on hold until he is determined mentally capable of assisting in his own defense. Until that time, Russell is confined at the Butner Federal Medical Center in Butner, North Carolina.

Earlier, Russell was assessed by a panel of doctors, found to be incapable of assisting in his own defense. As a result of this determination, his court-martial was placed on hold and he was confined in the Butner Federal Medical Center. Under Rule for Court-Martial 909, Russell may not be brought to trial by court-martial if he is presently suffering from a mental disease or defect that renders him mentally incompetent to the extent that he cannot understand the nature of the proceeding or cooperate intelligently in his defense. The rule requires Russell to be hospitalized for a period not exceeding four months, unless there is a substantial probability that he will attain the capacity to permit the trial to proceed in the foreseeable future. In such a situation, an additional reasonable period of time is permitted.

Once Russell is mentally cleared for trial, the Army will immediately proceed with its court-martial. However, if Russell is not mentally cleared for trial after a reasonable period of time, he will be subject to indefinite hospitalization under federal law. For more information see the following news article. Associated Press Article

21 October 2009

Discharge Upgrades

If you have been told you discharge is automatically upgraded after six months, then you need to read this blog entry carefully. The truth is that your discharge will not be automatically upgraded. If you want to upgrade your discharge, you need to file a request for an upgrade with The Army Discharge Review Board (ADRB). The information below is from the ARDB's website. I've included it here so that you can quickly have access to information on most of your questions.

The ADRB reviews discharges for most soldiers.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 by submitting a DD Form 149).

The ADRB is not authorized to revoke any discharge, to reinstate any person who has been separated from the Army, or to recall any person to active duty. 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.

You may engage private counsel at your own expense or you may contact one of the Veterans organizations who provide free counsel or a representative to assist in case preparation.

Here are the frequently asked questions for ADRB reviews:

Question: What is the purpose of the Army Discharge Review Board? Answer: The Army Discharge Review Board is authorized to review the character, reason and authority of a discharge of any service member discharged from active military service within the past 15 years. The authority for ADRB review comes from Public Law 95-126 and Title 10 U.S.C. § 1553. The Department of Defense Directive 1332.28, Discharge Review Board Procedures and Standards, establishes uniform policies and procedures and standards for review of discharges and dismissals. Army Regulation 15-180, Army Discharge Review Board, governs the actions and composition of the ADRB.

Question: Is my discharge automatically upgraded after six months?
Answer: No. There is no automatic upgrade of a discharge after six months or any other time period. Changes or upgrades in discharges are only made if there is a proven error, injustice, or inequity in the discharge. You must provide with your application evidence and supporting documents to show that there is an error, injustice, or inequity in your discharge. You may apply for a discharge review online at http://actsonline.army.mil and send the signature page and evidence as instructed by the online program – or - you may print a blank DD Form 293 from this website under Army Discharge Review Board application procedures, fill in the form and mail it with your evidence to the address shown on the reverse of the form.

Question: Can the Army Discharge Review Board change my Reentry Eligibility (RE) code?Answer: The RE code (Reentry Eligibility code) is determined by the reason for separation, not the character of separation. According to Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), the Reentry Eligibility (RE) code can only be changed if an incorrect code was entered. For this type of correction, please send a letter and a copy of your DD Form 214 to the following address requesting the correction: Commander, US Army Human Resources Command Attention: Retention Branch (AHRC-EPF)Alexandria, VA 22331-0450
The RE code is not upgraded to allow enlistment. Soldiers separated with an RE-3 or RE-4 code must seek a waiver from a recruiter to enlist. Depending on the type of discharge and disqualification, a waiver may not be possible. If however, a former Soldier can provide evidence that the RE code is an error or unjust, the former Soldier may apply to the Army Board for Correction of Military Records for a correction of the RE code. If the former Soldier can provide evidence that their discharge character or reason for discharge issued in the last 15 years are erroneous or unjust, the former Soldier can apply to the Army Discharge Review Board for a discharge review and request that their RE code be changed according to the correct reason for discharge. The former Soldier may complete an online application at http://actsonline.army.mil/ and send the signature page and evidence as instructed by the online program – or - may print a blank DD Form from the Army Review Boards Agency website at http://arba.army.pentagon.mil/ fill in the requested information, and mail it to the address shown on the reverse of the form. Please provide copies of all relevant military records in your possession and any evidence to support your request.

Question: Is there a time limit to apply to the Army Discharge Review Board (ADRB)?
Answer: Yes, there is a 15 year statute of limitation from the date of discharge for applying for a discharge review by the ADRB. If it has been more than 15 years since the date of discharge, the applicant may apply for a change or upgrade of discharge to the Army Board for Correction of Military Records (ABCMR) online at http://actsonline.army.mil or on a DD Form 149 which can be found on this website under ABCMR application procedures. Changes or upgrades in discharges are only made if there is a proven error, injustice, or inequity in the discharge. You must provide with your application evidence and supporting documents to show that there is an error, injustice, or inequity in your discharge.

Question: If I was discharged by a court-martial, can the Army Discharge Review Board review my request for a discharge upgrade?
Answer: If you were discharged as a result of a Special Court-Martial, you can apply on a DD Form 293 to the Army Discharge Review Board for a discharge upgrade review. If you were discharged as a result of a General Court-Martial sentence, you must apply on a DD Form 149 to the Army Board for Correction of Military Records for a discharge upgrade review.

Question: If I received a disability discharge and my contention is that I should have received disability retirement, can I apply to the Army Discharge Review Board?
Answer: No, issues on disability and retirement must be submitted to the Army Board for Correction of Military Records on a DD Form 149 for review.

Question: What do I need to send with my application?
Answer: Attach to your application copies of all relevant military records in your possession and any evidence to support your request. Send photo copies; do not send originals. As part of your evidence, you need to provide copies of any correspondence you have had with other agencies concerning your discharge.

Question: What is evidence to support an application?
Answer: Evidence is any military record document, witness statement, your written statement, correspondence or other documents that supports your contention of error, injustice, or inequity in your discharge. Please provide only photo copies of documents as they will be retained permanently with your application.

Question: How long does it take to process an application?
Answer: The Board reviews applications in the order in which they are received. Due to the number of applications already on hand and the complexity of many of the cases, it may be as long as twelve months before you receive notification of the decision on your request. Be assured that the Board will consider your application as soon as possible and will notify you by mail as soon as a decision is made. If you request a personal appearance before the Board in Arlington, Virginia at your own expense, that appearance can normally be scheduled within six months. If you request a personal appearance before a travel panel of the Board in your regional location at your own expense, you will be scheduled for such within twelve months.

Question: What are my options regarding hearings?
Answer: You may choose to have your discharge reviewed before an Army Discharge Review Board records review hearing or a personal appearance hearing or by both types of hearings. However, if you first appear before a personal appearance hearing, you are not entitled to a subsequent records review hearing. If you first apply for a record review hearing and do not receive a favorable decision, you can then apply for a personal appearance review. Due to the statute of limitation on the Army Discharge Review Board reviews, both hearings must be conducted within 15 years of the date of discharge.

Question: What is a record review hearing?
Answer: A records review hearing is conducted by a panel of senior active duty officers following a thorough review of your record of service. In such a hearing, you do not appear, but you may submit documentary evidence on your own behalf related to your military service and/or your post service achievements. The Board sends a written decision by mail to your current address. If you move after submitting an application, it is important to notify the Board of your new address and phone number. You can do this by sending an email to the webmaster of this website.

Question: What is a personal appearance hearing?
Answer: A personal appearance hearing is conducted by a panel of senior active duty officers in Arlington, Virginia. You may appear before the panel in person, be represented by counsel, make a statement, provide witness testimony, and present documentary evidence on your own behalf, related to your military service and/or your post service achievements. You are strongly urged to provide the Board with documentary evidence pertaining to post service accomplishments related to work, school, letters of reference, your resume, community or any achievement that enables the Board an opportunity to more thoroughly evaluate your after service record. After the hearing, the Board sends a written decision by mail to your current address. If you move before you receive a decision on your application, please provide your new address and phone number by email to ARBA_I@hqda.army.mil or by mail to Army Review Boards Agency, Discharge Review Board, 1901 South Bell Street, Arlington, VA 22202-4508.

Question: If I can't afford to come to Arlington, Virginia, will the Board travel to my area?Answer: The ADRB periodically travels to regional locations in the United States to hear cases when there are a sufficient number of cases in that area to warrant the expense of travel. Normally, the Board will not appear at a regional location more than once a year
Question: Am I required to have a records review hearing? Answer: Many applicants apply for the personal appearance hearings as a first step and skip their records review hearing. A records review hearing is not mandatory. However, if an applicant has a personal appearance hearing, they are not then entitled to a records review hearing. Requesting a records review hearing as a first step gives the applicant two opportunities (two hearings) to have a review by the Board, a records review and then a personal appearance review. A records review provides the applicant a board decision that can be helpful in preparing for a personal appearance hearing. Personal appearance hearings allow the Board the opportunity to evaluate your evidence, your testimony, and your witnesses through questions and answers.

Question: What are the advantages of choosing a records review as a first step in the discharge review process?
Answer: While a records review hearing is limited in its scope of evaluation of you and your post service conduct, the decision can give you an idea of the types of issues the Board may consider in your case. Choosing a records review hearing as a first step, then proceeding later to a personal appearance hearing if the records review Board does not upgrade the discharge, will provide opportunity for two different reviews. Applying for a records review hearing first provides the applicant a board decision that can be helpful in preparing for a personal appearance hearing. Additionally, having both the records review hearing and the personal appearance hearing may increase the probability of a decision in the favor of the applicant.
Question: Do I need a lawyer to attend an appearance hearing? Answer: A lawyer is not required but you may have representation by an experienced advocate of your own choice and at your own expense. There are free advocacy groups that will represent you at the hearing. These Veterans service organizations are very experienced in preparing you for your hearing. Some include the American Legion, Disabled American Veterans, the Order of Purple Heart, and your local county Veteran Service Officer. These organizations require advanced notice to prepare for your hearings so you should contact them as early in the process as possible to make arrangements.

Question: What should I bring with me to my appearance hearing?
Answer: Bring a photo ID. Also bring any documents that support your issues such as your written statement and the documents that substantiate your claims, documents such as letters of reference, military documents pertinent to your case, references from employers, people who know you, any community involvement or work you have completed, school transcripts, resume, medical documents if they apply, etc. Any witnesses that will testify on your behalf should also bring photo ID.

Question: What other information can you tell me to prepare for my Personal Appearance Hearings?
Answer: The Army Discharge Review Board convenes administrative hearings. The hearing is not a court martial or a trial, but you do have certain rights. You may present documentary evidence or evidence material to your case, remain silent, present witnesses to speak on your behalf, or be represented by counsel. Hearings are in duration anywhere from one half hour to an hour. Some hearings last longer because there may be many issues that are to be presented. As the rules of evidence are relaxed, you may present evidence related or not related directly to your issues. The board consists of five officers of rank O-5 to O-6, each with a one vote count. An applicant must have a majority of the voting officers in order to receive the relief that is requested. The Board may vote to leave alone or change the character, reason, or authority of the discharge, but will not make it any worse than it already is.A typical hearing will be preceded by several formalities, a briefing to tell you what to expect, you will be sworn in, and then have an opportunity to make an opening statement of length of your choosing, or, if represented by counsel, for counsel to present your case for you. You will then be questioned by the Board, with each member asking questions to clarify or to determine facts and circumstances not fully known before hand.It is in your interest to have an idea of what you want to tell the Board before hand. Any additional evidence to be sent after the application has been submitted (or on-line signature page), should be sent by mail directly to our address (not by fax please) at least four weeks before the hearing is to be convened. This is a courtesy request and also one to your advantage, though not compulsory. Since there are many hearings scheduled the day of your hearing, the Board requires advance time to review and be aware of evidence that may potentially help your case or shed light on the issues.We have several briefings before the hearing, one by the Secretary Recorder in order to discuss administrative aspects of the case, and another briefing by the Board President to welcome and give you more information about the hearing process. Additionally, this FAQs letter is sent to your active e-mail address and/or an information letter about hearings is given during the Secretary Recorder's briefing.Dress or uniform for the hearing: There are no requirements for uniform or manner of dress. An applicant may choose dress in a manner that is appropriate to the occasion. An applicant should not dress in a military uniform if the applicant is no longer a member of the armed forces.

Question: On what does the Army Discharge Review Board (ADRB) base its decisions?
Answer: The ADRB bases its decisions on equity and propriety. Each case is evaluated independently based on its own merit and the evidence submitted by the applicant. The burden of proof rests with the applicant to provide evidence that the discharge was not proper or that the applicant was not given equal treatment.

Question: What is Equity?
Answer: Equal treatment; applying the rules and regulations equally to the same set of circumstances.

Question: What is Propriety?
Answer: An issue of Propriety involves whether or not the Army properly followed its own rules and regulations for your discharge.

Question: What is an "issue"?
Answer: An issue is a specific reason why the applicant believes the discharge received may have been improper or inequitable.

Question: What decisions can the Army Discharge Review Board make?
Answer: The Army Discharge Review Board (ADRB) may decide to upgrade the discharge characterization or determine that the current characterization is proper and equitable. If the Board votes to upgrade change the discharge characterization to General under Honorable Conditions or to Honorable, it may then decide whether to change the Reason, the authority, or the RE Code. For example, a decision might result in a change of character from Under other than Honorable Conditions (UOTHC) to General under Honorable Conditions or to Honorable, with no change to the reason, authority, or RE code. The Board may change a characterization from a Bad Conduct Discharge (BCD) to General under Honorable Conditions with no change of reason or RE code. The Board may change any characterization to fully Honorable with a change of reason to Secretarial Authority and change of RE code – or the Board may change the characterization to fully Honorable with no change to reason, authority, or RE code. The ADRB is not authorized to change the discharge issued by a General Court-Martial. The ADRB may consider only the characterization of the discharge issued by a Special Court-Martial. In such cases, the applicant should provide the Board ample evidence of post service good conduct and achievements with the application.

Question: If my discharge is upgraded, will I get a new DD Form 214 and how long will it take? Answer: Yes. The new DD Form 214 will be mailed to you from the Army Review Boards Agency approximately 120 days after the date of the decision by the ADRB.

Question: What will happen to my old DD Form 214?
Answer: In your military record, the old DD Form 214 will be voided and your new DD Form 214 will be put in its place. You may need to provide photo copies of your new DD Form 214 to other agencies. Never give away your original new DD Form 214.

Question: Can the Army Discharge Review Board downgrade my discharge?
Answer: No, a Board decision will not change a discharge to a lesser characterization. The ADRB may either upgrade a discharge or confirm the current discharge. However, if the DD Form 214 does not accurately reflect the discharge that was approved, the Board will direct correction of the DD Form 214 even if that would result in the appearance of a downgrade.

Question: Can the Army Discharge Review Board authorize me to return to active duty? Answer: No, the Army Discharge Review Board does not make decisions regarding return to active military service. For more information regarding requirements for return to active duty, you must contact your recruiter. You should provide your recruiter with your DD Form 214.

Question: There are several other parts of my DD Form 214 that I want to correct.
Answer: If you have issues with your discharge other than the characterization, reason or authority for the discharge, you must address those issues to the Army Board for Correction of Military Records (ABCMR). You may apply to the ABCMR online at http://actsonline.army.mil and send the signature page and evidence as instructed by the online program – or - you may print a blank DD Form 149 from this website under Army Board for Correction of Military Records application procedures, fill in the form and mail it with your evidence to the address shown on the reverse of the form.

Question: What are my chances that my discharge will be upgraded?
Answer: Each case is evaluated independently based on its own merit and the evidence submitted by the applicant. Your case will receive a complete and thorough evaluation and analysis before the Board members convene to review it. A decision is made based on a vote by the five Board members; only three favorable votes are needed to change the any aspect of the discharge.

Question: If my decision did not result in an upgrade or my discharge was not completely upgraded, what can I do to appeal it?
Answer: If you received a decision from a discharge records review records, you may apply for a discharge personal appearance review. For this, you must submit a new DD Form 293 requesting a personal appearance. If you received a decision from a discharge personal appearance review or you do not wish to apply for a personal appearance review, you may appeal the written discharge review decision by applying to the Army Board for Correction of Military Records (ABCMR). You may apply to the ABCMR online at http://actsonline.army.mil and send the signature page and evidence as instructed by the online program – or - you may print a blank DD Form 149 from this website under Army Board for Correction of Military Records application procedures, fill in the form and mail it with your evidence to the address shown on the reverse of the form.

Question: What if I move before I receive my decision?
Answer: Decisions are sent in writing by U.S. Postal Service (USPS) mail to the address you provided on your application. If you move before you receive a decision on your application, please provide your new address and phone number by email to ARBA_I@hqda.army.mil or by mail to Army Review Boards Agency, Discharge Review Board, 1901 South Bell Street, Arlington, VA 22202-4508. If your discharge is upgraded, your new DD Form 214 will be mailed separately from the records correction agency approximately 120 days after the decision is issued. The DD Form 214 will not be forwarded by the USPS so it is important that your address be up to date with the Board.

Question: What can you tell me about my benefits, such as Montgomery GI Bill (MGIB) and/or medical benefits?
Answer: You must contact a representative of the Department of Veteran Affairs (VA) in order for them to make a proper determination regarding any benefits to which you may be entitled. The Army Discharge Review Board does not make determinations regarding benefits. The VA web site http://www.va.gov/index.htm provides information on benefits and contact information for VA representatives.

Question: If my discharge is upgraded, will I receive my Montgomery GI Bill (MGIB) or get the money I paid into it back?
Answer: Policies and procedures related to the Montgomery GI Bill are not under the purview of the ADRB. These questions should be addressed to a representative of the Department of Veteran Affairs (VA). The Army Discharge Review Board does not make determinations regarding benefits. The VA web site http://www.va.gov/index.htm provides information on benefits and contact information for VA representatives.

20 October 2009

Army Veteran Accused of Faking Paralysis

Jeffery W. Rush was discharged from active duty in 2004 after apparently being paralyzed from the waist down in an auto accident. Since the auto accident occured while he was on duty, he and his wife received over $200,000.00 in disability benefits. However, it now appears that his injury claims may have been just an attempt to avoid his deployment to Iraq.

On Monday, his wife, Amy L. Rush, pleaded guilty to federal charges admitting that she lied to receive state benefits and also that her husband's paralysis claims were a scam to commit fraud. Amy Rush is now cooperating with authorities. Her husband, however, has pleaded not guilty and is scheduled to go to trial on 1 December 2009. For more information see this News Article.

19 October 2009

Reserve Chapter Separation for Unsatisfactory Participation

UNSATISFACTORY PARTICIPATION
CHAPTER 13, AR 135-178

Pursuant to Chapter 13, AR 135-178, soldiers will be processed for discharge in the event that they are determined:

1. To be an unsatisfactory participant defined in Chapter 4, AR 135-91; and,

2. Attempts to have the soldier respond or comply with orders or correspondence have resulted in:

a. The soldier’s refusal to obey either verbally or in writing; or,
b. Second notice sent by certified mail refused, unclaimed or otherwise undelivered; or,
c. Verification of failure to notify of change of address.

What is an unsatisfactory participant under Chapter 4, AR 135-91? Definitions are important in this chapter: unsatisfactory participant, unexcused absence, and proper documentation of unexcused absences.

Soldiers who accrue more than 9 unexcused IDTs of the required 48 in any 12 month period are deemed to be unsatisfactory participants; or,

Soldiers who fail to complete the entire period of AT; or,

Soldiers who fail to report a change of address within 45 days of such change; or,

Soldiers who fail to comply with a second notice to complete and return official military correspondence within 45 days of the second notice.

Remember that an IDT is one four-hour drill period. If a soldier misses one day of drill, that is the equivalent of two IDTs.

Soldiers must be notified properly of their absences, notice sent after the fourth unexcused absence. At that point, the commander is required to determine why the soldier is missing drill and to take steps to resolve the problems.

Procedure:

An “Other Than Honorable” characterization of service is presumed, unless good reasons exist for a “General (under honorable conditions)”. The reasons to support a General discharge are outlined in Chapter 2, Section III, AR 135-178. Characterization of the discharge as “Honorable” will not be allowed unless recommended by board and record exceptionally meritorious.

Board procedures are required. However, notification procedure allowed if soldier has less than 18 years or more than 20 years AND that soldier’s service will be characterized by a general discharge.

Questions to be Aware of:

Was proper notice provided?
Does the chapter packet reflect the necessary documentation of the absences?
Did the commander become actively involved in resolving the soldier’s conflict that led to unsatisfactory participation?

17 October 2009

Court-Martial Weighed in Iraq Discipline Cases

MG Richard Nash now has to decide if SSG Bob Clements and SGT Enoch Chatman should face a court-martial for maltreatment of soldiers, including one soldier who committed suicide just four days after joining Clements' and Chatman's unit in Iraq. See October 7th post on PVT Keiffer P. Wilhelm.

The Article 32 hearing concluded last week in the case of both Clements and Chatman. It is unclear what the 32 officer's recommendation was to MG Nash. However, given the publicity behind this case, it is likely that Clements and Chatman will both face a general court-martial. Army Times Article

Ex-soldier Guilty of Contract Kickbacks

Former MSG Ronald Joseph Radcliffe pleaded guilty to bribery and conspiracy to commit money laundering yesterday in federal court. Star-Bulletin Article Radcliffe was the Army's supply NCO in Kirkuk in 2004. During that time, he steered several contracts to Turkish national Metin Subasi in exchange for receiving more that $37,000.00 from Subasi.

Based upon his guilty plea, Radcliffe faces a maximum prison term of 15 years for bribery and 20 years for conspiracy and maximum fines of $250,000 and $500,000, respectively. Radcliffe will be sentenced next February.

Army's Tests of Body Armor Flawed

According to the Associated Press, the U.S. Army made "critical mistakes in tests of a new body armor design." MSNBC Link The AP cites a report from the Government Accountability Office (GAO) that concluded the Army deviated from established testing standards when selecting a new type of bullet-blocking plate for its ballistic vests. According to the GAO report, had the proper testing standards been observed, several of the designs that passed would have failed.

The GAO report is calling for an outside review by ballistics experts of the Army's testing standards. The Defense Department has apparently rejected this idea. Given the Defense Department's opposition to an external review, the GAO has turned to Congress to make its case. It appears that the GAO is being heard because last Friday, Representatives Neil Abercrombie and Roscoe Barlett sent a letter to Army Secretary John McHugh urging him to follow the GAO's recommendations.

The Army is not currently fielding the bullet-blocking plates. Instead, they are being stored until needed to meet future demands.

16 October 2009

Army Lawyer Facing Child Porn Charges

The Army Times is reporting that MAJ Daniel A. Woolverton, U.S. Army, was scheduled to appear in court today in the Eastern District of Virginia. Army Times Link According to the article, court documents indicate that Woolverton faces one count of production of child pornography and two counts of distribution of child pornography.

Reserve Chapter Separation for Misconduct

SEPARATION FOR MISCONDUCT
CHAPTER 12

This information paper provides general information on Chapter 12, AR 135-178, Separation for Misconduct. AR 135-178 contains more specific information. Please consult with a Trial Defense Service (TDS) attorney for any additional questions. A TDS attorney will be provided free of charge to you to help you during this process.

I. Basis for Separation. Chapter 12 permits discharges for five types of misconduct: (a) minor disciplinary infractions; (b) pattern of misconduct; (c) commission of a serious offense; (d) abuse of illegal drugs; and (e) civil conviction. A TDS attorney’s review of your discharge paperwork can ensure your commander satisfied the required grounds for separation under this chapter.

A. Minor Disciplinary Infractions (paragraph 12-1a). Requires evidence of a pattern of misconduct consisting solely of two or more minor disciplinary infractions. Commanders determine what type of behavior qualifies as a minor disciplinary infraction. Requires at least one formal counseling under paragraph 2-4 followed by a reasonable opportunity to overcome the deficiency. Reassignment required if practical, at least once to a unit within commuting distance, unless reassignment restricted or waived.

B. Pattern of Misconduct (paragraph 12-1b). Requires evidence of a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes violations of the UCMJ, Army Regulations, civil law, and/or military customs and traditions. Requires at least one formal counseling under paragraph 2-4 followed by a reasonable opportunity to overcome the deficiency. Reassignment required if practical, at least once to a unit within commuting distance, unless reassignment restricted or waived.


C. Commission of a Serious Offense (paragraph 12-1c). Requires evidence of a specific military or civilian offense that warrants discharge and authorizes a punitive discharge under the UCMJ. A punitive discharge must be authorized for conviction of the same or a closely related offense.

D. Abuse of Illegal Drugs (paragraph 12-1d). Abuse of illegal drugs is serious misconduct and any soldier identified as using illegal drugs must be processed for separation, unless the soldier voluntarily self-referred into the Army Substance Abuse Program (ASAP) under AR 600-85.

E. Civil Conviction (paragraph 12-1e). Requires evidence of a conviction or determination of guilt by civil authorities, to include juvenile proceedings, which warrants discharge. Requires a sentence by civil authorities of 6 months or more (without regard to suspension or probation), or authorization for a punitive discharge for the same or a closely related offense under the UCMJ. Failure to initiate a discharge action under this paragraph within 2 years of the conviction creates a rebuttable presumption that the commander determined retention is in the best interests of the Army. Appeals do not halt or delay the separation process. However, unless you request immediate discharge, the separation authority recommends immediate discharge as an exception, or the commander believes your presence is detrimental to good order and discipline or you present a threat to the safety and welfare of the unit, execution of an approved discharge under this paragraph must be withheld until: (1) you indicate in writing you will not appeal; (2) the time to appeal expires; or (3) until final action is taken if an appeal was made. Special procedures exist for civil court cases in foreign countries and are discussed in paragraph 12-3.

III. Effects of Initiation of Separation Proceedings. Initiation of a separation under Chapter 12 requires suspension of favorable personnel actions per AR 600-8-2. If separated you could receive one of three types of discharges: Honorable, General (Under Honorable Conditions), also called a General discharge, or a discharge Under Other Than Honorable Conditions, also called an OTH. An Honorable discharge is the best discharge available from the service. A General discharge is the second best discharge the Army gives, but it is also “good paper.” An OTH discharge deprives you of most of the benefits you would receive with an Honorable discharge and may cause you substantial prejudice in civilian life. Generally, a Chapter 12 discharge will be an OTH, however, characterization as General (under honorable conditions) may be received. An Honorable discharge is only authorized if: (1) your record is otherwise so meritorious that any other characterization would be inappropriate; (2) the sole evidence of misconduct is command-directed urinalysis results; or (3) an administrative separation board recommends separation with an Honorable characterization of service.

IV. Actions and Rights after Initiation of Separation Proceedings. Your commander will forward a full report of the recommended proceedings through intermediate commanders, if any, to the Separation Authority. Intermediate commanders may disapprove the recommendations and direct reassignment, or approve the recommendations and forward the report to the Separation Authority. The Separation Authority, a general officer, ultimately determines whether you should be separated, and if so, what type of discharge you receive. You are entitled to copies of all documents forwarded to the Separation Authority.

A. If you have less than 6 years of active and reserve military service, and you are not being considered for an OTH discharge, you are not entitled to a board but may submit statements in your own behalf. Such statements may be from you, or individuals you work for or with, or in the event of abuse of illegal drugs, from counselors or treatment providers. The statements should discuss your duty performance, potential, reasons for retention, successful rehabilitation, and any significant contributions you made. The statements may ask that you be retained or given an Honorable discharge, and should be submitted to your commander to be forwarded to the Separation Authority.

B. If you have 6 or more years of active and reserve military service, or you are being considered for an OTH discharge, you have two options:

1. Proceed before an administrative separation board. A board normally consists of two officers and one senior enlisted. You are entitled to representation at a board by a detailed TDS attorney, or you can hire a civilian attorney. You may make a statement to the board. If you proceed to an administrative separation board, the Separation Authority may approve the recommendations of the board or modify the recommendations. However, the Separation Authority may not authorize a characterization of service less favorable than that recommended by the board and may not direct discharge if the board recommends retention.

2. Submit a conditional waiver. A conditional waiver informs the
Separation Authority you agree to waive your right to a board on the condition you receive a better discharge than what is recommended. If the Separation Authority agrees, you receive the better discharge, and if your proposal is turned down, you retain your right to a board.

V. Special Considerations. If you have more than 18 but less than 20 years of qualifying service for retirement pay, HQDA must approve your discharge under Chapter 12, and you may not waive your right to a board hearing or your right to representation by counsel at board hearings. If you have served less than 180 days of continuous active service, and qualify for entry level status, any discharge you receive under Chapter 12 will be uncharacterized unless an OTH discharge is warranted.

15 October 2009

Reserve Chapter Separation for Unsatisfactory Performance

UNSATISFACTORY PERFORMANCE SEPARATION UNDER CHAPTER 9, AR 135-178

What is the basis for this chapter?
The command may initiate separation of a soldier under the guidance set forth in chapter 2, section 1, if the soldier is unqualified for further military service due to unsatisfactory performance. Chapter 2, section 1 provides the command general guidelines on separation and characterization of service. Such guidance includes whether or not there is the potential for rehabilitation and further useful military service; the seriousness of the circumstances forming the basis for separation; the likelihood of continuation or recurrence of the circumstances forming the basis of separation and the soldier’s entire military record. Chapter 2, section 1 also requires commanders to identify soldiers who may be candidates for early separation and utilize counseling, retraining and rehabilitation before starting separation action.

What are the criteria for Chapter 9 Unsatisfactory Performance?
Commanders may initiate separation of a soldier for unsatisfactory performance if the following have been clearly established:

a) A soldier will not develop sufficiently to participate satisfactorily in further training or
become a satisfactory soldier or the seriousness of the circumstances surrounding the basis for separation is such that retaining the soldier would adversely impact military discipline, good order, and morale.


b) It is likely the soldier will be a disruptive influence in present or future duty assignments.


c) It is likely that the circumstances forming the basis for separation will continue or recur.


d) The ability of the soldier to perform duties effectively in the future, including potential
for advancement or leadership, is unlikely.

Is the command required to attempt a rehabilitative reassignment?
Yes, IAW para. 2-4, the counseling, retraining and rehabilitation are prerequisites for initiating separation action for unsatisfactory performance. Para. 2-4d. however, allows the officer exercising separation authority to waive the rehabilitation reassignment requirement if it determines one of the following:

a) Reassignment is not feasible because there are no units available within a reasonable commuting distance of the soldier's residence.

b) Further duty of the soldier would create serious disciplinary problems, or create a hazard to the mission or to the soldier, or would seriously affect unit readiness.

c) Further duty of the soldier would be inappropriate because the soldier is resisting all
rehabilitation attempts or that rehabilitation would not produce the quality soldier the ARNGUS or USAR desires.

Can the command choose to separate a soldier under this chapter instead of Chapter 12, Serious Acts of Misconduct?
No. If a soldier has committed serious acts of misconduct s/he must be separated under Chapter 12, the command may not seek to discharge the soldier under this chapter in an effort to avoid penalties.

Does this chapter apply to pregnant soldiers?
Yes. A pregnant soldier may be separated under this chapter if the soldier’s substandard duty performance is not attributable solely to the condition of pregnancy.

What is the appropriate characterization of service?
The service of soldiers discharged under this chapter will be characterized as honorable or general under honorable conditions.

14 October 2009

Bar to Reenlistment

1. WHAT IS A BAR TO REENLISTMENT?

a. A bar is an administrative action which prevents a soldier from serving in the Active Army beyond ETS.

b. A bar is initiated when a soldier does not measure up to the high moral character, personal competence, and demonstrated adaptability required for reenlistment, but immediate separation from the service is not considered warranted. The bar is intended to put the soldier on notice that he/she is not a candidate for reenlistment, and that he/she may be a candidate for separation (if the circumstances which led to the bar are not overcome).

c. Army Regulation (AR) 601-280, Chapter 8 is the controlling regulation. You should be aware that this regulation might be supplemented locally. In any event, check at your local MOS Library.

2. WHAT CRITERIA ARE USED IN EVALUATING THE SOLDIER?

a. Soldiers should be evaluated under the "whole person" concept as set forth in AR 601-280, paragraph 3-7. Factors considered in this concept include patterns of disciplinary incidents, recent conduct and performance, aptitude, and potential for future service.

b. Normally, bars will be initiated on soldiers who are:

(1) UNTRAINABLE. These are soldiers who cannot perform the basic tasks of their PMOS. Examples include failure to achieve individual weapons qualification, failure to pass the APFT, and substandard evaluation results.

(2) UNSUITABLE. These are soldiers who have aptitude for continued service, but demonstrate a lack of desire or interest in meeting reenlistment standards. Examples of unsuitable conduct are: substandard personal appearance or hygiene, debt/financial problems, Article 15 punishments, shirking duties, apathy, frequent difficulties with fellow soldiers, and causing trouble in the civilian community.

(3) SINGLE SOLDIERS/IN-SERVICE COUPLES WITH DEPENDENT FAMILY MEMBERS. These are soldiers who fail to file approved family member care plans as described in AR 600-20, Chapter 5.

3. WHO INITIATES THE BAR?

The bar can be initiated by any commander in the soldier's chain of command. Normally, it will be initiated by the company, battery, troop or detachment-level commander.

4. WHAT PROCEDURES ARE FOLLOWED?

a. The bar is initiated by preparing DA Form 4126-R, Bar to Reenlistment Certificate. The commander must include on the form his basis for initiating the action, the number and dates of any courts-martial and Article 15 punishments, and total active service computed as of the date of the initiation of the bar.

b. The form is then referred to the soldier. The soldier should be provided all the paperwork that constitutes the basis of the bar (e.g., counseling statements, statement of third parties, investigative reports). The soldier has seven days to respond. The soldier may attach relevant documents (e.g., letters of commendation, witness statements, investigative reports, etc.) to the response. An extension may be granted by the commander who initiated the bar.

c. The form along with the soldier's response are then forwarded through the chain of command to the approving authority. Each commander must personally endorse the bar certificate. Any commander who does not believe that the bar is warranted may disapprove the action and return it to the initiating commander.

d. The approval authority is determined by the soldier's total active service as of the bar initiation date.

(1) Less than 10 years Federal service: the first commander in the rank of LTC or above, in the soldier's normal chain of command or the commander exercising Special Court-Martial Convening Authority (whichever is in the most direct line to the soldier);

(2) 10 to 18 years of active Federal service, those with more than 20 years of active Federal service, and those where action is taken to extend the soldier to complete 20 years of active Federal service: the first general officer in the soldier's chain of command, or the commander exercising General Court-Martial Convening Authority, whichever is in the most direct line to the soldier;

(3) 18 years of active Federal service but less than 20 years of active Federal service and who are not extended to attain retirement eligibility: HQDA. Those bars are forwarded to the Commander, U.S. Army Enlistment Eligibility Activity, in St. Louis.

e. The commander initiating a bar may not approve it. If the initiating commander normally would be an approving authority, then the next level approving authority must act on the bar. For example, a bar initiated by an 0-5 commander must be approved by a general officer (or General Court-Martial Convening Authority, as appropriate).

f. Once approved, the bar certificate will be placed in the soldier's personnel records, and the remark "not recommended for further service" entered on his/her DA Form 2-1.

5. CAN AN APPROVED BAR BE APPEALED?

a. In most cases, yes. A soldier normally has seven days from the date he/she is informed that the bar has been approved to submit a written appeal. The commander who initiated the bar may grant an extension. The appellate authority is the next superior commander (that is, the next higher approval authority). Appeals are submitted to the initiating commander and forwarded with endorsements through the chain of command.

b. If the barred soldier has less than 10 years of active Federal service at ETS, the approval/disapproval authority is the first general officer in the soldier's normal chain of command, or the commander exercising GCMCA, whichever is in the most direct line of the soldier.

c. If the barred soldier has more than 10 years of active Federal service at ETS, the approval/disapproval authority is the Commander, U. S. Army Enlistment Eligibility Activity (USAEEA).

d. Bars to reenlistment approved by the Commander, USAEEA, may not be appealed.

6. WHAT HAPPENS AFTER THE BAR IS FILED?

a. When the certificate is approved, the custodian of the soldier's personnel records will place a signed copy in the soldier's MPRJ where it will remain permanently. The remark "not recommended for further service” will be entered on the soldier's DA Form 2-1.

b. Approved bars will be reviewed by the soldier's unit commander at least each three months and 30 days before the soldier's scheduled departure from the unit or ETS.

c. If the unit commander feels the bar should remain in effect, he will notify the custodian of the soldier's records who will note the following on the soldier's DA Form 2-1: "Bar to reenlistment reviewed; not recommended for removal, (date).” The soldier will be notified of the review and the decision of the commander.

d. If the unit commander feels that bar should be lifted, he/she will prepare a recommendation and forward it through the chain of command to the commander who approved the bar. That commander may order it withdrawn. If withdrawn, the certificate will be removed from the MPRJ, remarks on the DA Form 2-1 deleted, and the soldier will be permitted to reenlist, if otherwise qualified.

e. If the commander does not recommend removal after the second three-- month review, he or she will initiate separation action under AR 635-200. There is an exception to this rule for soldiers who have more than 18 years active Federal Service and will have 20 or more years of service at ETS. These soldiers may be allowed to remain on active duty until retirement eligibility is attained.

7. WHAT ARE SOME OTHER PRINCIPLES THAT APPLY TO BARS?

a. The fact that a soldier has served honorably for a number of years does not preclude his commander from initiating a bar, if otherwise appropriate.

b. Separation actions may be initiated regardless of whether a bar has been imposed.

c. A bar may be initiated even though the soldier was considered for administrative separation and retained.

d. Normally, bars should not be initiated against a soldier who has been in a unit less than 90 days or who is in the last 30 days before a PCS or ETS. When bars are initiated during these periods, commanders must prepare a certificate explaining the timing of the action.

e. Soldiers who believe that they cannot overcome a bar may apply for voluntary separation under the provisions of AR 635-200, paragraph 16-5. This option, however, is not available to first-term soldiers.

f. Questions or assistance in drafting a response to a bar action should be directed to your legal assistance office. A legal assistance attorney can help you at no cost to you. Prior to your appointment with a legal assistance attorney, prepare a rough draft of your rebuttal. This will help the legal assistance attorney in preparing your rebuttal.

07 October 2009

4 Soldiers Will Face a Court Martial in Another Soldier's Suicide

The Norwalk Reflector is reporting that four Army soldiers will face court-martial in relation to the suidice of PV2 Keiffer P. Wilhelm. Norwalk Reflector Link

The soldiers have been charged with cruelty and maltreatment of subordinates, among other charges which apparently let to Wilhelm taking his own life. Wilhelm died August 4, 2009, of a gunshot wound to the head in Maysan province in southern Iraq. His unit is part of the first brigade to deploy to Iraq for the new U.S. mission to train Iraqi security forces.

The military identified the four accused soldiers as SGT Enoch Chatman, SSG Bob Clements, SGT Jarrett Taylor and SPC Daniel Weber of B Troop, 2nd Squadron, 13th Calvary Regiment from Fort Bliss, Texas.

03 October 2009

Chapter 5-13 - Separation for Personality Disorder

1. WHAT IS THE BASIS FOR A CHAPTER 5-13? Soldiers who have a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with their ability to perform duty. (Exceptions: compact exhaustion and other acute situational maladjustment.) Action will be taken to separate a member when it is clearly established that:

a. The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.

b. The diagnosis of personality disorder must conclude that the disorder is so severe that the soldier's ability to function effectively in the military environment is significantly impaired.

2. WHAT MUST THE COMMAND DO BEFORE THEY CAN INITIATE A CHAPTER 5-13 FOR PERSONALITY DISORDER? The following must take place, unless waived under special circumstances.

a. The soldier must be formally counseled in writing at least once prior to initiation of the chapter action, and this counseling must include:

1. The reason for counseling.

2. The fact that separation action may be initiated if the behavior continues.

3. The type of discharge that could result from the possible separation action and the effect of each type.

b. The soldier must be given a reasonable amount of time to rehabilitate.

c. The soldier must be diagnosed as having a personality disorder by a qualified physician.

3. PROCEDURES. The unit commander forwards the packet to the intermediate commander, who can either disapprove the unit commander's discharge request and direct reassignment, or forward the packet recommending approval.

4. WHAT ARE YOUR RIGHTS?

a. You have the right to consult with consulting counsel within a reasonable time, or civilian counsel at your own expense.

b. You have a right to submit statements on your own behalf.

c. You have a right to obtain copies of documents which your commander will forward in support of his separation recommendation.

d. If you have six or more years in the active service you have a right to an Administrative separation Board.

e. You have a right to waive the above rights in writing. Failure to respond in seven days (not signing the form) means you give up all your rights.

5. TIMING OF SEPARATION: You will be separated as soon as possible. Note: Any misconduct committed after discharge is approved, but before separation (approximately 10 working days after approval by the separation authority), can still be prosecuted.

6. TYPE OF DISCHARGE:  The discharge will be characterized as honorable unless an entry-level separation is required (less that 180 days of service).  In the very unlikely event that you have been convicted of an offense by general court-martial or by more than one special court-martial in the current enlistment, period of obligated services, or any extension thereof, you can received a general, under honorable conditions discharge.