Responding to GOMARs

Responding to GOMARs

Letters of Reprimand and General Officer Memorandums of Reprimand 

  1. What are Letters and Memos of Reprimand?

 A Letter of Reprimand (LOR) is an administrative warning, or censure, given to a Soldier for failure to comply with established standards or policies. A LOR may be filed either locally or in your permanent personnel file. Reprimands fall under the category of “unfavorable information.”

A General Officer Memorandum of Reprimand (GOMOR) is an LOR written by a general officer concerning a Soldier under his or her command. At the general officer’s discretion, a GOMOR may be filed locally or in the permanent file. A GOMOR may also be filed in the AMHRR (permanent) restricted file. See Army Regulation (AR) 600-37, Unfavorable Information, Chapter 7.

  1. What are the consequences of receiving a GOMOR/LOR?

Aside from the negative stigma associated with them, a locally filed GOMOR /LOR in a Military Personnel Records Jacket can be seen by the Soldier’s chain of command, but not by a promotion board, and it will be removed after a change of duty station or after 3 years, whichever is sooner.

A permanently filed GOMOR/LOR will remain in the performance portion of the Army Military Human Resource Record (AMHRR) and can be seen by Army Human Resources Command (HRC) and promotion boards. It will stay there through the Soldier’s career unless it is appealed for removal or transferred to the restricted portion of the AMHRR. Information in the restricted file of the AMHRR is not generally viewable by promotion or selection boards. Exceptions are DA selection boards, if the board president makes a specific written request; the CSM/SGM, SGM Academy, and CSM/SGM retention boards, and some government agencies may view restricted file material by written request. For more information on who may view restricted file material, see AR 600-8-104, para. 2-6 & 2-7.

Receiving a GOMOR may prevent you from being promoted. The negative information may also be addressed in your NCOER/OER. A negative NCOER and GOMORs may trigger a Qualitative Management Program (QMP) review. The QMP is designed to deny NCOs continued service on qualitative grounds if they do not meet retention standards for continued service. Reprimands issued as punishment under an Article 15 proceeding will be filed with the Report of Proceedings. For officers, a GOMOR can also be a later basis for separation.

  1. How do I Respond to a LOR/GOMOR?

Upon receipt of a reprimand, you will be notified of the opportunity to respond, and the date by which the response must be submitted. This response is referred to as “rebuttal matters.” We have included a sample form you can use to rebut a GOMAR below.

”Rebuttal matters should reply to the reprimand as denying the allegations or requesting that the reprimand be filed in a local or restricted file. You should address the underlying facts and provide mitigating evidence.

There are generally two strategies to rebut a reprimand: Extenuation and Mitigation, and Exculpatory Information. An experienced military attorney can help you understand these strategies and how to proceed in rebuttal.

(1) Extenuation and Mitigation: This means the recipient acknowledges the misconduct, but there are factors that minimize the seriousness of the act, and as a result permanent filing is too harsh.

(2) Exculpatory: Exculpatory means the recipient is arguing he or she did not actually commit the act giving rise to the reprimand. This is a rare argument since ordinarily reprimands are reviewed with great scrutiny by general officers and legal advisors before issuance.

You will usually have 7-10 days to prepare and submit your written statement. The time limit for submission of your rebuttal begins the day you receive the GOMOR/LOR, so act quickly to avoid missing the suspense date.

Attach supporting documents. If you have witnesses to certain events, list their name and units as fully as possible when they are mentioned, and obtain separate written statements from them. Enclose copies of favorable ratings, letters attesting to your character, and awards received.

After the final statement is complete, turn it into the officer who initiated the LOR in a sealed envelope or folder. Also make sure you keep a copy. If you cannot make the suspense (7-10 days), you can request an extension from the issuing authority.

  1. The Filing Decision

Once a rebuttal is timely submitted, the general officer will review all submitted materials and make a determination whether to file the reprimand permanently, locally, or discard it. If he or she believes permanent filing is still appropriate, the reprimand will be filed permanently. The general officer may also direct all rebuttal matters submitted by the Soldier be filed permanently with the reprimand.

  1. Can I Appeal a Letter filed in my Local File?

No formal process exists for removing an LOR from your local file. However, at any time you may request its removal by the commander who ordered the filing. Your appeal should be in memorandum format and include any supporting documentation.

  1. Can I get a Letter filed in my AMHRR removed or transferred?

Yes, to appeal or request removal, petitions must be addressed to Department of the Army Suitability and Evaluation Board (DASEB). AR 600-37, Chapter 7, outlines the procedures.

  1. How do I ask for removal?

Once a reprimand is filed, the DASEB presumes the reprimand to be administratively correct and filed based on proper authority. In order to successfully request a reprimand be removed from an AMHRR, an applicant must prove by clear and convincing evidence the document is untrue or unjust, in whole or in part. Typically, only applicants E-6 and above may appeal. Applications from Soldiers below the aforementioned ranks will only be considered as an exception to policy.

  1. How do I ask for it to be transferred to my Restricted File?

To transfer a reprimand from the Performance File to the Restricted File, an applicant is typically an E-6 or above. To successfully transfer a reprimand, DASEB requires the applicant to provide clear and convincing evidence the reprimand is untrue or unjust or evidence that the intended purpose of the reprimand has been served and transfer is in the Army’s best interest. At least one year must pass from the date of filing before DASEB will consider transfer requests.

  1. Where can I get more help?

GOMARs can be career ending! They should not be taken lightly. If you receive a GOMOR/LOR, you should immediately consult with an experienced military attorney. That attorney will help you request an extension, obtain evidence and other statements from witnesses, draft your response, and communicate with the command. At King Military Law, we are ready to help. 

King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

CONTACT KML

We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





    ROTC

    ROTC

    ROTC DISENROLLMENT

    Are you or a loved one facing ROTC or Academy disenrollment? Cadets and Midshipman may face this action if their military superiors believe that the Cadet or Midshipman breached their ROTC contract by doing one of a number of things, including committing misconduct, failing to uphold the honor code, or becoming unfit for military duty.

    ROTC

    If this happens to you or a loved one, you (they) are entitled to a hearing at which you may personally appear and present your case. The Air Force and Army call these “Disenrollment Hearings” while the Navy/Marine Corps refers to them as “Performance Review Boards.” Much like a very informal trial, you will hear the evidence collected against you and have the opportunity to present evidence in your defense. At stake at these hearings is your ability to receive a commission, the possibility that you may have to repay scholarship money already received, and the potential to be ordered to serve your active duty time as an enlisted member. 

    SHOULD I HIRE AN ATTORNEY TO ASSIST ME WITH ROTC DISENROLLMENT?  

    Probably. While an attorney’s speaking role at a hearing will be more limited than at a criminal trial, an experienced lawyer can GREATLY assist you in preparing for the hearing, to include:

    • File review, to ensure all relevant documents are included;
    • Drafting of a legal memorandum to provide to the hearing officer (or board) in advance of your hearing date. This will likely include all of the information your lawyer would offer at your hearing, to ensure the information is included;
    • Identify, speak with and help prepare witnesses to speak on your behalf, and finally;
    • Help prepare you for your critical statement to the board. 

    The rules and procedures and the standards used by the Services in making these determinations are complex. In addition to the steps outlined above, an experienced attorney can assist you in making sure you not only comply with them, but that you place the strongest package possible before the Board.  

    WHEN SHOULD I CONSIDER HIRING AN ATTORNEY TO ASSIST ME WITH ROTC DISENROLLMENT?

    As soon as possible! Some hearings may literally take place only a few days after you are notified that it will happen! For that reason, if you are concerned that you may face such a procedure, it’s vitally important that you obtain legal serves as soon as possible. 

    HOW DO I LEARN MORE?

    The services instructions on disenrollment hearings can be found here:

    Army Regulation 145-1;

    Navy Service Training Command Instruction 1533.2A

    Air Force Instruction 36-2011.

    Please also feel free to reach out to us at KML for a free consultation on these matters.  

    King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most 

    CONTACT KML

    We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





      Upgrading Discharges

      MILITARY DISCHARGE UPGRADES

      TENS OF THOUSANDS OF VETS MAY HAVE BEEN AWARDED LESS-THAN-HONORABLE DISCHARGES

      A recent news article discussed that tens of thousands of Vets will be receiving Department of the Army reviews of their military discharges since many may have received a discharge characterization that was less than they deserved. If you’re reading this section, you or a loved one may be in that same circumstance.

      WHY SHOULD I SEEK A MILITARY DISCHARGE UPGRADE

      Simple…you earned it. If you served sufficiently on active duty in our nation’s military, then Congress has mandated that the nation honor the sacrifice you (and your family) endured. The Veteran’s Administration (VA) is charged with providing these benefits and they include healthcare, educational assistance, housing, and many, many other valuable benefits. Even if you receive these benefits now, we recognize that the stigma and anxiety that comes with receiving less than an Honorable discharge is hard.

      AM I ELIGIBLE FOR A MILITARY DISCHARGE UPGRADE?

      It depends. The different avenues of receiving a discharge upgrade have time limitations and restrictions, a full discussion of which is not possible here. Just know that you should NEVER assume that you are not eligible. Look into it. Get help. MAKE SURE before you give up.

      HOW CAN I APPLY FOR A MILITARY DISCHARGE UPGRADE

      There are two different types of military boards that can review your discharge papers. One is the Discharge Review Board (DRB) and the other is the Board of Correction for Military Records (BCMR). Each board has different authority, timelines, restrictions, and limitations. This section will discuss the DRB. For a discussion about the BCMR, click here.

      First, you’ll want to request a copy of your military personnel and medical records, as well as copies of any trial records if you endured a court martial. DO THIS IMMEDIATELY, as retrieving these records can take months. You then apply to the DRB online or via mail at the addresses provided below. To be successful, packages must show that your discharge was “improper” or “inequitable.” Improper means factually incorrect or inconsistent with the law.

      Inequitable means inconsistent with the traditions and policies of the service. The “standards” or tests which the reviewers apply to your application are based upon federal law and must be considered carefully. A “well-built” application will thoroughly discuss and provide evidence as to ALL the reasons you believe you are entitled to an upgrade. Any reasons you leave out, you may lose, even if you or your lawyer raise them later on.

      WHAT CAN A DISCHARGE REVIEW BOARD DO?

      Generally, DRBs can upgrade the character of a discharge or change the reason for a discharge. However, DRBs cannot modify a discharge awarded at a General Court Martial, nor can a DRB change a discharge to or from medical retirement or medical discharge.  For those types of actions, the Vet would need to apply to the BCMR

      MAY I APPEAL THE DECISION OF A DRB?

      Absolutely. You may also ask for reconsideration of the DRB’s decision.  

      DO I NEED A LAWYER TO HELP ME?

      Probably not a bad idea. There are studies that show applicants with legal representation are far more likely to receive upgrades than those without. This is likely due to the complex requirements and standards involved. An experienced military lawyer will know how to address those standards, what kind of evidence supports it, and how to argue “improper” or “inequitable.” In addition, having a lawyer may help you get reconsideration of a denied DRB request. That said, the internet is FULL of helpful sites and “how to” guides that will assist you if you decide to “go it alone”. 

      But you shouldn’t need to spend a fortune to get a lawyer’s help. There are many Veteran’s Service Organizations (VSOs) and other Vet-focused groups that offer pro bono or low cost assistance with DRB packages. There are thousands of Vets seeking these services and resources are limited so you may be required to establish financial need. Also, depending on the complexity of your case, many experienced military lawyers will reduce their “standard” cost to assist you. At KML, we try to make our fees affordable to all who need us. In fact, if you feel like you need help but can’t afford it, please visit our Pro Bono Page.  

      We hope this information was helpful. Please feel free to reach out to us at KML if you think we can help.  

      DRB CONTACT INFORMATION

      Army
      Army Review Boards Agency
      251 18th Street South
      Suite 385
      Arlington, VA 22202-3531
      http://arba.army.pentagon.mil

      Navy/Marine Corps
      Secretary of the Navy
      Council of Review Boards
      ATTN: Naval Discharge Review Board
      720 Kennon Ave S.E., Suite 309
      Washington Navy Yard, DC 20374-5023
      secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx 

      Air Force
      Air Force Review Boards Agency
      SAF/MRBR
      550-C Street West, Suite 40
      Randolph AFB, TX 78150-4742

      Coast Guard
      Commandant (CG-122)
      Attn: Office of Military Personnel
      US Coast Guard
      2100 2nd Street S.W., Stop 7801
      Washington, DC 20593-7801
      https://www.uscg.mil/Resources/legal/DRB/

      King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

      CONTACT KML

      We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





        NJP / ART 15

        ARTICLE 15 / NONJUDICIAL PUNISHMENT

        WHAT IS ARTICLE 15 / NONJUDICIAL PUNISHMENT (NJP)?

        Article 15 of the Uniform Code of Military Justice (UCMJ) authorizes commanders to impose “Non-Judicial punishment” (NJP) for “minor” misconduct, such as petty theft, using marijuana, or showing up late for watch. The services use different terms for NJP, including “Article 15,” “Office Hours,” or “Captain’s Mast.” 

        WHAT ARE MY RIGHTS AT ARTICLE 15 / NJP

        At NJP, the commander acts as prosecutor, defense counsel, judge and jury. For this reason, and unless you’re embarked on a vessel, you have the right to refuse NJP and request a court martial instead. If you accept NJP, you have the right to a personal appearance before the commander, the right to remain silent, the right to be accompanied by a spokesperson, the right to be informed of the evidence against you, the right to examine that evidence, and the right to present matters on your own behalf.  

        WHAT ARE ARTICLE 15 / NJP HEARINGS LIKE?

        NJP hearings are usually formal and speedy. You will usually be in dress uniform and report to a formal location where your commander and your chain of will be waiting. The commander will read from a script that has you reporting and outlines the evidence against you. Sometimes witnesses will be called and you’ll then have the opportunity to speak. The commander will then announce his or her finding and impose a sentence. If you receive a sentence, it will begin immediately.

        WHAT KIND OF PUNISHMENTS MIGHT I RECEIVE AT NJP?

        The punishments meted out for an NJP offense depend upon the rank of the accused and the rank of the commander imposing it but generally are limited to restriction to certain specified limits, arrest in quarters, correctional custody, extra duties, forfeiture of pay, detention of pay and reduction in grade. Administrative separation from the service may follow NJP but is not a punishment awarded at NJP.  

        The accused may appeal NJP to the commanders higher authority. This must be done in a timely manner and be based upon grounds that the NJP was either unjust or disproportionate to the offense. If done properly, NJP appeals offer a real chance of having a conviction overturned or a sentence lessened.  

        SHOULD I HIRE AN EXPERIENCED MILITARY LAWYER TO ASSIST ME WITH NJP OR TO APPEAL NJP?

        You will likely be informed that you have the right to discuss the NJP with an attorney before accepting NJP and you should CERTAINLY do so. Your base legal office will have uniformed attorneys available to discuss the case with you. However, many of these offices have a policy preventing these attorneys from helping you decide whether you should accept NJP or refuse and request a court martial, limiting them to simply explaining your NJP rights to you.

        But you need more than that. Many times, NJP is offered because the evidence against you is not good enough to result in a court martial conviction. Instead, the commander decides to send the case to NJP because the rules of evidence that would help you at a court martial, don’t apply at NJP. This is especially true when the charges involve drug offenses.

        Therefore, you need a lawyer who can help you understand not only what will happen if you accept NJP, but what will happen if you refuse NJP. If your local base legal office can’t help you with this, an experienced civilian military attorney can assist you with this decision for little cost. 

        NJP APPEAL

        You should also seek out legal advice for your NJP appeal package. These packages should never be overlooked or simply “cut and pasted.” Commands may skip procedural steps, rely upon flimsy evidence, or impose an unlawful sentence, all factors that might result in your NJP being overturned. Having an experienced military attorney help you with your package could make a world of difference. Considering that NJP may “kill” your career or even result in the service processing you for early separation, you should ensure that you do everything to protect yourself.

        At King Military Law, we have decades of experience in dealing with NJPs at all levels, from defending servicemembers at NJP, to advising commanders on NJP procedures, to filing appeals and even acting as the appellate officer’s legal advisor. We’re available to you 24/7. Please give us a call for a free consultation if you think we can help.

        King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

        CONTACT KML

        We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





          Security Clearance Issues

          SECURITY CLEARANCE DENIAL, SUSPENSION OR REVOCATION

          SECURITY CLEARANCE “SELF REPORT”

          As you may know, the government requires that those who hold a security clearance “self report” when something “derogatory” happens.

          WHAT IS A DEROGATORY INFORMATION?

          Anything may be considered derogatory, but here are common examples:

          -Foreign Contacts: Contact with individuals of any foreign nationality, either within or outside the scope of your official duties, in which illegal or unauthorized access to classified or otherwise sensitive information is sought, personal concern that you are a target of an attempted exploitation, all close and continuing relationships between SCI-cleared individuals and foreign nations.

          -Loss or Compromise of Classified Information.

          -Financial Problems: Filing for bankruptcy, garnishment of wages, having a lien placed on your property for failing to pay a creditor, eviction from a residence for failure to pay rent, or simply your inability to meet all your financial obligations.

          -Arrests: Any arrest, regardless of whether or not charges were filed. This is the most common reason clients seek assistance from KML. The government also expects you to self-report certain involvement with the legal system, such as being sued.

          -Psychological or Substance Abuse Counseling: This one is a bit tricky as counseling for certain situations need not be reported (e.g., you sought the counseling on your own initiative to help you cope). Counseling must be reported if you were advised to seek counseling because of work performance or other undesirable behavior.

          If you feel like you are in a situation that may require a self-report, please reach out to an experienced security clearance attorney as soon as possible since the government expects that these events are reported immediately.

          WHAT HAPPENS AFTER I SELF-REPORT?  

          The procedures that follow a self-report vary depending on department and your status (Contractor, GS Employee, Active Duty, etc.). Generally, your security manager will determine if a report to the DoD Central Adjudication Facility (DoDCAF) is warranted. Simultaneously, your employer will determine if temporarily suspending your access to classified material is warranted. If so, you may be reassigned to duties that do not require such access while awaiting DoDCAF action. This is a temporary decision that can only be reversed by DoDCAF. A suspension will likely initiate an investigation to determine if your eligibility should be revoked. After the investigation is complete, the DoDCAF will evaluate all of the data in accordance with adjudicative guidelines and the “whole person” concept. If a determination is made to reinstate, the suspension is lifted. If a decision is made to revoke, you’ll receive a LOI (SOR) and will have the right to appeal, the procedures for which are outlined in detail here.

          DENIAL OF SECURITY CLEARANCE

          If you’re a DoD contractor, DoD employee or active duty military member, you will need to have a favorable back ground investigation and perhaps a security clearance to perform your duties or to assume new duties. A denied or revoked clearance could result in loss of job, missed promotions and even separation from active duty. It’s important to understand what goes in to the process and how to improve your chances. For adjudicative factors and more information, click here.

          When a case contains significant unmitigated derogatory information,  adjudicator issues either a “Supplemental Information Request” (SIR) or a “Letter of Intent” (LOI) to revoke or deny your eligibility. The LOI is a preliminary decision and will contain a “Statement of Reasons” (SOR) detailing the issues that are the basis of the decision. The LOI contains instructions on how to request a copy of the investigative file and adjudicated guidance (SEAD-4) to assist with mitigating the derogatory information.

          FEDERAL CONTRACTORS

          Federal contractor personnel can and should submit a written rebuttal to the SOR and request the DoDCAF reverse their preliminary decision to revoke or deny. If the applicant doesn’t submit a rebuttal, DoDCAF will make the revocation or denial of eligibility final. If the applicant rebuts the SOR without hearing, DOHA sends the applicant a File of Relevant Material (FORM) that will be presented to an Administrative Judge (AJ) for a clearance decision based on the written record. It is possible that DOHA could grant the clearance after reviewing the applicant’s response to the SOR, thus obviating the need to present the case to an AJ. If not, the applicant can submit a written response to the FORM, which will also be presented to the AJ. If the applicant requests a hearing, the applicant (with or without an attorney) may present witnesses and other evidence at the hearing, may cross-examine witnesses and challenge evidence presented by the government. The AJ makes a written decision and a copy is sent to the applicant. DOHA then grants or denies the clearance in accordance with the AJ’s decision. If the clearance is denied, the applicant is notified in writing and advised of their right to appeal the decision.

          DOD CIVILIAN EMPLOYEES AND ACTIVE DUTY MILITARY MEMBERS

          DoD civilian employees and military personnel can submit a written rebuttal to the SOR, but they are not entitled to a hearing. If the applicant doesn’t rebut the SOR, DoDCAF will deny the clearance. If they submit a rebuttal to the SOR, the adjudicator will decide to grant or deny the clearance in light of information submitted in the rebuttal. If a decision is made to deny a clearance, the applicant receives written notification of their right to appeal the decision, including a right to a “Personal Appearance” before a DOHA AJ. For a full discussion on security clearance appeals, click here.

          SHOULD I HIRE AN EXPERIENCED LAWYER TO ASSIST ME WITH MY SECURITY CLEARANCE MATTER?

          You should certainly consider it. One review of 500 security clearance cases where an SOR was issued, showed that applicants with attorneys were granted clearances 60% more often than those who represented themselves. An attorney who has experience representing clients in security clearance matters can help you navigate the pitfalls of the process, identify potential problems, help gather evidence to mitigate them, and ensure your package is as strong as possible. At King Military Law, we’ve worked security clearance issues from both sides of the fence, building comprehensive insight into the process. We know what works, what doesn’t, and why. Please reach out if you think we can help.

          King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most 

          CONTACT KML

          We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





            Military Appeals

            COURT MARTIAL APPEALS

            WHAT IS A MILITARY APPEAL?

            Perhaps you’ve just been notified that you are under investigation or face Article 15 / NJP punishment. You may be looking for an attorney to assist right away but you should also consider what happens if you’re convicted. Appeals are an opportunity for a “second chance” but all too often clients don’t know about them or don’t know how to exercise these rights. Don’t make that mistake.  

            The appellate process will depend upon at which “forum” you were convicted.  

            ARTICLE 15 / NJP

            If you were convicted at Article 15 (also known as Office Hours, Captain’s Mast, or NJP), you have the right to appeal to the next higher level of command and—if you request it—the command may have to delay some of your punishment until the appeal is decided. The next higher commander can take any action, including overturning your conviction. This is an important opportunity to have someone else look at your conviction and some action by the higher commander is not unusual, provided your appeal is done right.  

            COURT MARTIAL

            Next, if you are convicted at a court martial, you may have the right to appeal to a higher court. The military justice process is FAR from perfect. Investigators violate the constitution, judges make mistakes at trial, Commanders abuse their discretion during the course of your trial. These types of mistakes (and more) may be reviewed on appeal and can result in a “second chance” for you or a loved one. In fact, an aggressive, successful appeal could result in your conviction being overturned entirely, meaning it would be as if it never occurred. You get your life back, you get back pay from the time your pay stopped, and you get reinstated on active duty with the chance for immediate back-promotions. It happens! 

            Read opinions here and here to see why having a good appellate lawyer is so important, even if you plead guilty to the charges.  

            But notice we say, “MAY” be reviewed on appeal. That review will generally not happen if your lawyer did not “preserve” the issues at the court martial. That’s why it’s so important that you have a trial lawyer who understands the rules of appellate procedure. Even better is that you understand the basics yourself.  To help you, we spend a little time here explaining how the process works.  

            First, the rules for appeal generally permit your lawyer to raise issues that were “properly preserved” at trial. This requires that your trial lawyer make the proper objections, at the proper time, during trial to “preserve” the issue for appeal. If they don’t, that issue may be deemed “waived” on appeal. Sadly, few trial lawyers have extensive appellate experience so many issues end up “waived” as a result. Make sure you hire a trial attorney with appellate experience–the more experience the better! Otherwise, you might lose this important “second chance.”   

             [Don] has mastered the art of . . . military justice . . . thorough grasp of rules, procedures, and [criminal law] processes. One of the preeminent experts in this field.” Supervising Military Judge, 2012

            CLEMENCY

            Your appellate rights depend upon the type of court martial (Summary, Special, or General) and the sentence you receive. Generally, your first opportunity for appellate relief begins immediately after your trial. Your lawyer will be able to point out any errors or mistakes made at the trial level in a “clemency” submission to the convening authority (the convening authority Is the commander who ordered your trial). Depending upon the charge and the sentence, the convening authority may be able to set aside your conviction or disapprove your sentence. This should be considered your first opportunity at appeal and should be aggressively pursued. As the legal advisor for several of these commanders, Don can help explain why a thorough clemency submission can make an enormous difference. But they have to be done correctly and tailored to the commander and the circumstances. These submissions should NEVER be “boilerplate.”     

            “Routinely sought out by other counsel for comprehensive knowledge of post-trial and clemency [strategies].” Commanding Officer, 2000

            JUDGE ADVOCATE REVIEW

            Another opportunity for appeal (again, depending upon the type of court-martial and the sentence awarded) is a review by the Office of the service’s Judge Advocate General. This is also an important opportunity for getting your conviction set aside or your sentence reduced and your lawyer should be all over this. Make sure they are!

            MILITARY COURTS OF APPEAL

            The final course of appeal to discuss is to the military appellate courts. If the court martial was a Special or General, and the sentence was severe enough, your case will automatically be appealed. During this appeal, you will get a new active duty military lawyer to represent you. The process is different than your court martial, as an appeal is basically a review of the record of your trial, with no evidence or courtroom appearances required. Instead, if your case goes this route, you’ll likely get a call from a uniformed appellate attorney who will let you know that they’ve been assigned to represent you. That attorney will then review the record of your trial to identify any of the issues written about above. 

            APPELLATE PROCESS: EXPERIENCE MATTERS!

            Because it will be this lawyer alone reviewing your case, it’s critically important that that lawyer have experience in this area. The appellate defense divisions have fantastic attorneys, some with significant experience. BUT YOU NEED TO MAKE SURE OF THIS! As a Senior Military Appellate Judge, Don saw FAR too many cases where inexperienced counsel missed very important issues. If this happens, those issues will likely never be considered and you’ll never be the wiser. To help avoid this trap, make sure your attorney has as much experience as possible! Ask the attorney how long they’ve been an attorney, how any military appeals they have done, etc. Know your lawyer’s qualifications.

            Once the record has been reviewed, and if your attorney identified any issues, your attorney will produce a “brief” which is a document that sets forth the issues the attorney identified, the lawyer’s argument as to why the issues should make the court take action, and the lawyer’s argument about what that action should be. This is where advocacy, or persuasive writing, is crucial. These recommendations can range from modifying your sentence (like disapproving the Dishonorable Discharge), to disapproving your sentence and ordering a new sentencing rehearing, to overturning the conviction entirely, without the possibility of you being retried. If your case is automatically appealed, the appellate courts cannot make your sentence more severe—it may only reduce or eliminate it. As you can see, this “second chance” can mean the world to you or a loved one.

            Once the attorney submits this brief, a government appellate attorney drafts a response and both documents go to the appellate court where a panel of three judges make the decision. Frequently, one side or the other may request oral argument or the court may even order it without the parties’ request. If an oral argument is ordered then the parties will argue the case live before the court (likely in Washington D.C.), but it is only a hearing…no testimony or evidence is involved.

            The law also requires the appellate court to review the record independently to ensure that the court is itself convinced of guilt beyond a reasonable doubt. Once the panel makes a decision, the decision is returned to the parties. At that point the parties can request that the panel reconsider its decision, or even that the panel send the decision to the entire court composed of approximately nine judges for reconsideration by the entire court. However, these requests for reconsideration have timelines and can only be granted if certain steps are taken first. Again, a reason why your appellate attorney MUST ABSOLUTELY know what he or she is doing. Miss a step or a timeline and you miss this chance.  

            COURT OF APPEALS FOR THE ARMED FORCES

            If the appellate military court upholds your conviction, then your attorney may seek review by the next higher court, known as the Court of Appeals for the Armed Forces (CAAF). The CAAF is composed of civilian judges. Appeals to this court are largely “discretionary,” meaning the court may decline to permit the appeal. Therefore, your appellate attorney must know exactly what the CAAF is looking for before you request an appeal to this court.

            UNITED STATES SUPREME COURT

            Finally, you may attempt to appeal your case to the U.S. Supreme Court (USSC).  Like CAAF, the USSC has discretion on what cases it will allow and only a tiny fraction of military cases that are appealed to USSC are accepted. 

            ALL WRITS ACT

            When all other avenues are exhausted, you have the right to file certain Writs. Writs are another name for an appeal and are generally applicable only in extraordinary circumstances when no other opportunity for relief is available (for example, all of your appeals are exhausted but you experience unusual punishment in prison.) There are two types of writs:

            Writ of Habeas Corpus. This writ is only available to service members still in confinement.

            Writ of Mandamus. This type of writ is available to all convicted service members but three prerequisites are required: (1) a clear right to the relief sought; (2) a plain duty on the part of Government to do the act in question; and (3) there is no other adequate remedy available.

            BUT BE CAREFUL: A service member may only bring a writ if the service member “preserved” the error by raising it during his trial or appeal. This is yet another reason you select an attorney for trial who understands these requirements and takes action to preserve the necessary issues should they be needed later.  

            BE INFORMED!

            Learn all you can about these courts and their procedures. To help you do so, we’ve provided links here where you can read the rules yourself and formulate any questions for your attorney.

            CALL US TO SEE IF WE CAN HELP

            We hope this information has helped better inform you and assists you in making important decisions. Don’t discount the importance of an appeal! When done right, it may give you your life back. If you have questions, please give us a call for a free consultation and let us see if we can help.    

            King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most 

            CONTACT KML

            We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





              Court Martial

              MILITARY COURT MARTIAL

              WHAT IS A MILITARY COURT MARTIAL?

              If you’re facing a military court martial, the process can be confusing and scary. One of the ways to deal with the uncertainty is to become well-informed about what you face. Therefore, we’ve created a page that explains the court martial process in an effort to help you or your loved ones understand what you face and better inform you about the process. Click here to get answers about the court martial process. Click here to learn about the consequences of a court martial conviction.  

              When you need help, experience matters. Whether you need a plumber, a mechanic, or a surgeon, the more experience the better. This is even more critical when hiring an attorney to help you fight at a court martial. If you’re facing a court martial, get as much experience on your team as you can. 

              “[Don] has mastered the art of . . . military justice . . . thorough grasp of rules, procedures, and [criminal law] processes. One of the preeminent experts in this field.” Supervising Military Judge, 2012

              Don has 25 years as an active duty JAG working exclusively in jobs pertaining to courts martial. Learn more about Don’s experience here.  

              King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most 

              CONTACT KML

              We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





                Clemency and Parole Boards

                MILITARY CLEMENCY AND PAROLE BOARD

                MAY I SEEK CLEMENCY OR PAROLE?

                If you or a loved one have been convicted at a court martial, you may be able to seek clemency or parole. Right after trial, your trial attorney should have sought clemency from the convening authority who ordered your court martial. 

                However, you may also be able to apply for clemency or parole from your service Clemency and Parole Board. Eligibility depends upon certain criteria. For example, if you were sentenced to less than a year of confinement, you’ll not likely be eligible. If you were sentenced to at least one year but less than 10 years, you’ll likely be eligible for clemency after serving nine months of your sentence. To learn more about eligibility for clemency and parole, click here

                HOW DO I SEEK MILITARY CLEMENCY OR PAROLE?

                To “petition” for clemency or parole, you need to submit a petition to the clemency and parole board for your service. You’re strongly encouraged to seek legal assistance in submitting your petition.     

                Normally, a board consists of five senior military officers who evaluate requests for clemency, parole, reduced penalties, supervised release, or restoration to duty. You’re not normally permitted to appear before a board but the parole boards for the Army and the Navy may allow your family or friends (or your attorney) to appear on your behalf. The boards make recommendations to the Service Secretary for your branch of the service, who all make the final decision.

                Along with the packet you (or your attorney) submit, the board generally considers the following:

                • Your crime and the circumstances surrounding it;
                • Your life circumstances prior to entering service
                • The social support you will have upon release;
                • Your military service history;
                • Your conduct in prison, such as whether you have pursued education;
                • Rehabilitation (e.g., have you accepted responsibility for your crime and participated in rehabilitation programs while incarcerated);
                • Any restitution you’ve paid;
                • Relevant psychiatric information;
                • Any recommendation from the judge who convicted you;
                • Statement by the victim, if any.

                If you are granted parole, you will be released subject to the approval of the U.S. Probation Officer in your home state. During parole, you will be required to comply with conditions of release and can be returned to prison if you violate these conditions.  

                SHOULD I HIRE AN EXPERIENCED MILITARY LAWYER FOR CLEMENCY AND PAROLE?

                At King Military Law, we believe in ensuring our clients have all the information they need to make important legal decisions. To that end, we include below contact information and links to all of the services’ Clemency and Parole Boards. We encourage you to go to the relevant site and learn as much as you can. This information might enable some to file their own request for clemency without the expense of an attorney, BUT BE CAREFUL! It’s not an easy process. Therefore, we encourage clients to at least speak to an attorney experienced in this process. At King Military Law, we’re happy to offer a free consultation to help you make decisions. We hope this helps.  Good luck! And please give us a call if you think we can help.

                HOW DO I REACH THE MILITARY CLEMENCY AND PAROLE BOARD?

                Here are the points of contact for the Boards of Clemency and Parole:

                Air Force

                U.S. Air Force Clemency and Parole Board
                1535 Command Drive EE
                Wing 3rd Floor
                Andrews AFB, MD 20762
                Phone: 240-857-5329
                Fax: 240-857-1814

                Army

                Army Clemency and Parole Board
                251 18th Street South, Suite 385
                Arlington, VA 22202-3531
                Phone: (703) 571-0532 or (703) 571-0538
                Fax: (703) 601-0493
                http://arba.army.pentagon.mil/Clemency-Parole.cfm

                Navy, Marines and Coast Guard

                Naval Clemency and Parole Board
                720 Kennon St SE, Suite 309
                Washington Navy Yard
                Washington, DC 20374-5023
                E-mail – ncpbmailbox@navy.mil
                Phone: (202) 685-6338 or (202)-685-6452
                Fax: (202) 685-6629
                www.donhq.navy.mil/corb/ncpbmainpage

                King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

                CONTACT KML

                We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





                  BOIs

                  MILITARY OFFICER SEPARATION BOARDS

                  WHAT IS A BOARD OF INQUIRY?

                  Boards of Inquiry are the statutory method used by which the military services separate or “eliminate” an officer from military service.

                  The process differs slightly in each service but essentially begins with a report of misconduct or substandard performance. The officer is notified, or ordered to “show cause” for retention, and a local commander convenes a Board of three officer, all senior to the officer notified. The Board then convenes a hearing at which the service is represented by a government attorney who will present evidence as to why the officer should be separated. If you are ordered to “show cause,” you have a right to be represented by an active duty military attorney free of charge at this hearing. You also have a right to hire experienced military counsel to represent you.

                  Click here for information to help you decide if you should hire an experienced military attorney.

                  WHAT DO BOARDS OF INQUIRY DO?

                  During the hearing, the board must answer three questions. First, does the preponderance (e.g., 51 percent) of the evidence support the reason for separation? If so, does that reason merit separation from the military? If so, what type of discharge should you receive. If you’re eligible for retirement, the Board will likely be ordered to make a “retirement grade determination,” which is a recommendation as to whether you should be retired at a lower rank than the one you then held.  Most of these decisions are simply recommendations to the Separation Authority (usually a General or Flag officer) or even to the Service Secretary.

                  THESE HEARINGS ARE REAL CHANCES TO CONVINCE THE BOARD THAT YOU SHOULD BE RETAINED IN THE SERVICE AND SHOULD NOT BE DOWNPLAYED OR WAIVED WITHOUT CONSULTING AN EXPERIENCED MILITARY ATTORNEY!

                  SHOULD I HIRE AN EXPERIENCED MILITARY LAWYER TO HELP ME AT A BOARD OF INQUIRY?

                  The BOI process can have dramatic impacts on your career and your future as a civilian. For this reason, we encourage you to obtain experienced counsel to assist you BEFORE you make any decisions. After participation in hundreds of BOIs over two decades as an active duty attorney, either as the government attorney, the officer’s defense attorney, and as the Separation Authority’s attorney, Don will explain that EXPERIENCE MATTERS! As an active duty O-6 JAG, Don sat on the working group that created and recommended the Navy’s latest BOI procedures. He knows what the Separation Authorities care about, what the Board members care about, and how to persuade them all.

                  “My top Captain across all designators and commands. Best JAG I have ever known!” Navy Rear Admiral, 2019

                  And you need experienced counsel NOW! Click here to read about why it is so important to get counsel as soon as you can.

                  At King Military Law, we know what’s on the line. We understand the importance of thorough, meticulous preparation and we’ve mastered the art of winning. Please give us a call if you think we can help.

                  King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

                  CONTACT KML

                  We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML





                    BCMR

                    BOARDS OF CORRECTION OF MILITARY RECORDS

                    WHAT ARE BOARDS OF CORRECTION OF MILITARY RECORDS?

                    The military makes mistakes—simple as that, and these mistakes can have an enormous impact on your career or life after service. Your eligibility for VA benefits, disability, even holding certain jobs or attending certain schools can be impacted. Fortunately, you may be able to do something about this.

                    WHAT CAN BOARDS OF CORRECTION OF MILITARY RECORDS DO?

                    If you feel as if your military records contain errors or unjust derogatory information, there are avenues available to correct that information. Each service has an office dedicated to reviewing requests to correct military records. These corrections can include upgrading discharges, determining medical retirement eligibility, erasing Article 15 / NJP actions, modifying evaluation reports, etc. In fact, all branches of the military consider you to have a strong case for a discharge upgrade if you can show your discharge was connected to any of these categories:

                    • Mental health conditions, including post-traumatic stress disorder (PTSD)
                    • Traumatic brain injury (TBI)
                    • Sexual assault or harassment during military service (at VA, we refer to this as military sexual trauma or MST)
                    • Sexual orientation (including under the Don’t Ask, Don’t Tell policy)

                    But correcting a military record is a complex process with various authorities and jurisdictions that have different legal standards, time limits, and evidentiary rules that make the process confusing.

                    What’s more, you have a limited number of opportunities to appeal to these boards, so you must make the most of every opportunity.

                    At King Military Law, we believe in ensuring our clients have all the information they need to make important legal decisions. To that end, we include contact information and links to all of the services Boards of Correction below. We encourage you to go to the relevant site and learn as much as you can. This information might enable some to file their own request for a military record change without the expense of an attorney, BUT BE CAREFUL!

                    As mentioned, you may only get one shot at it. Therefore, we encourage clients to at least speak to an attorney experienced in this process prior to submitting a request. At King Military Law, we’re happy to offer a free consultation to help you make these decisions.

                    We hope this information was helpful. Good luck! And please call us if you think we can help.

                    HOW DO I REACH THE BOARD OF CORRECTION OF MILITARY RECORDS?

                    Here are the links and contact information to the different Boards:

                    U.S. Army Review Boards Agency (ARBA)
                    251 18th Street South, Ste. 385
                    Arlington, VA 22202-3531
                    http://arba.army.pentagon.mil/

                    U.S. Navy & U.S. Marine Corps Board for Correction of Naval Records
                    701 S. Courthouse Road, Building 12, Suite 1001
                    Arlington, VA 22204-2490
                    Phone: (703) 604-6884/(703) 604-6885
                    https://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx

                    U.S. Air Force Board for Correction of Air Force Records
                    SAF/MRBR 550-C Street West, Suite #40
                    Randolph AFB, TX 78150-4742
                    https://www.afpc.af.mil/Career-Management/Military-Personnel-Records/

                    U.S. Coast Guard Department of Homeland Security
                    Office of the General Counsel Board for Correction of Military Records
                    245 Murray Lane, Stop 0485
                    Washington, DC 20528-0485
                    Phone: (202) 477-4099
                    https://www.uscg.mil/Resources/Legal/BCMR/

                    King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most

                    CONTACT KML

                    We try very hard to respond immediately. However, if you need emergency assistance (you are currently in police custody, etc.), please feel free to text us at our phone number informing us of that fact. Thanks, KML