Military law, Military lawyers, Military lawyer, Military personnel, Military discharges

Each branch of the military, as well as the Coast Guard and the Public Health Service, operates a records correction board. These boards are empowered by federal statute to correct a member's record where the member provides sufficient evidence of error or injustice. The boards may grant a broad range of relief depending on individual circumstances. The boards are composed of civilian members and report to the secretary of the military department concerned.

Applications to the correction boards must be submitted within 3 years of the discovery of the error or injustice. This time limit can be waived by the board in the interests and fairness and justice. For members on active duty, the 3 year period does not begin to run until he or she is discharged from active duty. The boards take approximately 10 to 12 months to process and decide a member's application.

The types of actions commonly presented to the corrections boards include: 1) challenges to adverse or unfavorable evaluation reports; 2) Letters of Reprimand; 3) unfavorable physical disability determinations; 4) non-judicial punishment (Captain's Mast, Office Hours, Article 15); 5) discharge characterizations and reenlistment codes; 6) debt disputes; 7) promotion delays and withdrawals; 8) retaliatory actions; 9) sexual harassment; 10) misconduct; 11) pay and grade disputes; and 12) ROTC or Academy disenrollment.

To ensure a member's chance of success, great care must be exercised when applying to the correction boards. All errors and injustices must be clearly identified, researched, and supported with objective evidence (wherever possible). All available information such as service records, official communications, e-mails, reports of investigation, evaluations, promotion recommendations, and witness statements must be obtained and carefully analyzed. Though not required, it is in the best interests of the member to retain the services of an experienced attorney. This is especially so where the case is complicated and/or the consequences for the member are serious, and where judicial review in federal court may be warranted.

A conscientious objector is a person who, because of his or her religious, moral, and/or ethical beliefs, believes that participation in warfare of any kind is wrong. A military member may apply for discharge as a conscientious objector when their beliefs developed and/or became "fixed and firm" after joining the military. (A person who held conscientious objector beliefs before entering the military is ineligible for discharge, unless he or she can show the beliefs became "fixed and firm" after enlisting or commissioning.) It does not matter how long a member has been in the military, and it is not necessary that a member be religious in order to qualify for discharge as a conscientious objector. The Supreme Court long ago decided that atheists and followers of non-traditional religions may qualify for discharge as a conscientious objector, provided all the criteria are met.

Some members begin to feel uneasy about their military service after joining the military. Some undergo religious conversions. Others, because of their education, family background, and personal experiences after entering the military (such as deployment to Iraq or Afghanistan), begin to question their participation in the military. A member becomes eligible for discharge once his or her opposition to warfare "crystallizes," in other words, "fixed and firm." Other criteria for discharge are that the member's beliefs are deeply and sincerely held.

To be considered for discharge as a conscientious objector, a member must submit a detailed application along with supporting evidence. Normally, a member who submits an application prior to mobilization or reassignment will be required to report as ordered. His or her application will be processed at the new duty station (which may include Iraq and Afghanistan). An investigating officer is assigned to the case, who conducts an informal hearing with the applicant to determine if the member meets the discharge criteria. The applicant also is required to be evaluated by a psychiatrist and interviewed by a chaplain.

Each branch of the military has a Discharge Review Board to consider applications for former service members who want to upgrade their discharge characterization. Former Marines must apply to the Navy Discharge Review Board. In reviewing applications, the review boards consider many factors such as the reason for separation; the accuracy and fairness of the discharge characterization; the applicant's conduct since discharge; and other mitigating factors.

Federal courts are authorized to review decisions of the military under certain circumstances (known as "judicial review"). Before seeking judicial review, the member normally must "exhaust all administrative remedies." What this means is that the member must pursue all avenues of relief provided by the military before going to federal court. The administrative remedies that must be exhausted will vary from case to case and will determine when judicial review is available.

For example, a member who has applied to the Board for the Correction of Military Records may obtain direct judicial review of the Board's final decision. If the applicable time limits have not expired (commonly six years from the "date of injury"), a federal court will review the Board's decision and may award the member relief such as reinstatement, back-pay and allowances, removal of adverse information, voiding or correcting evaluation reports, and referral to a Special Selection Promotion Board for promotion consideration. The relief available will depend on the circumstances of the case and the relief the member requested from the correction board.

There are other situations that permit a member to seek judicial review of military decisions. Such situations include but are not limited to: (1) breach of contract; (2) unlawful discharge from or retention on active duty; (3) the denial of applications for discharge as a conscientious objector; (4) involuntarily disenrollment from ROTC, West Point, the Air Force Academy, and the Naval Academy; and (5) deployment to Iraq or Afghanistan.

Since 9/11 and the start of the conflicts in Iraq and Afghanistan, thousands of reservists and National Guard members have been ordered to perform involuntary extended active duty. In many cases, family, economic, or medical conditions may qualify a member for delay in reporting for active duty, or for exemption from active duty and discharge.

A member who is ordered to perform involuntary extended active duty may apply for a delay or exemption. The procedures for doing so vary according to the military department. Army reservists, who comprise the majority of reservists called to active duty, may apply to the Delay and Exemption Board at HRC-St. Louis. While the application process appears straight forward, there are many pitfalls to be avoided. A member must be very careful to document and explain all aspects of his or her claim for delay or exemption.

If a member's application for delay or exemption is denied, he or she may appeal the decision. Once again, great care must be exercised in preparing an appeal. A member considering requesting a delay or exemption is well advised to obtain qualified legal assistance before doing so.

Members of the Naval Reserve, Marine Corps Reserve, and the National Guard also may apply for exemption from involuntary active duty and discharge. Application is made through the member's chain-of-command. The grounds for obtaining an exemption or discharge are similar to those for Army Reservists. Normally the member must demonstrate severe personal hardship and/or dependency or the existence of a medical or mental health condition preventing mobilization and deployment.

Military personnel who are injured or suffer serious illness while on active duty may be referred by a commander or physician for possible disability evaluation processing. The first step in the process is to undergo a Medical Evaluation Board (MEB). The MEB reviews the member's records and determines whether the member may have a condition that renders him or her unfit to perform their duties. If such a condition is found, the member is referred to an Informal Physical Evaluation Board (IPEB).

The IPEB determines whether or not the member is medically fit for duty. If found fit, the IPEB returns the member to duty. If found unfit, the IPEB establishes the disability rating, which can range from 0% to 100% disabled. If a member receives a rating of less than 30%, he or she is medically discharged with severance pay. If rated 30% or higher, the member is placed on either the Temporary Disability Retired List or the Permanent Disability Retired List, depending on whether the board concludes that the condition may or may not improve with time and further treatment.

If a member is dissatisfied with the IPEB's decision, he or she may request a formal hearing at which he or she appears before the board. This is a crucial right and a crucial decision! It should never be waived without consulting first with experienced legal counsel such as Mr. Toney. If you request a formal hearing, you are entitled to representation by a military lawyer at no charge. You also may hire a civilian lawyer instead. Depending on the facts of your case, hiring an experienced civilian lawyer may be a wise investment. Military disability lawyers handle a large number of cases and often will meet with a member only once, sometimes on the morning of the hearing. They may not have the time and resources required to fully develop and present your case.

Mr. Toney provides comprehensive assistance in the MEB-PEB process. He carefully and thoroughly researches each medical condition as well as the applicable regulations and rating standards. Where necessary, he consults with medical professionals, including psychologists and psychiatrists, and may have the professional testify before the board. The consequences of the PEB's decision for every disabled veteran are truly profound. It is far better to invest the time and resources necessary to obtain the best rating you possibly can the first time-around. Once a PEB has made a final decision, it is extremely difficult to get it changed.

ROTC & Military Academy Disenrollment

ROTC and Academy cadets may be disenrolled for misconduct, poor academic performance, honor code violations, and other reasons. The procedures that must be followed differ according to the military department involved. In all cases, the cadet will be the subject of investigation and will be afforded an opportunity to challenge his or her disenrollment through restricted hearing procedures. For Academy cadets charged with honor code violations, a hearing before an Honor Board normally occurs.

In addition to destroying a cadet's prospects for serving as a commissioned officer, involuntary disenrollment can have extremely harsh financial consequences. In many cases cadets are required to reimburse the government for tuition and scholarship monies he or she has received. For Academy cadets, the amount of money the government will try to collect can range from $35,000 to well over $100,000.00. For ROTC cadets, repayment of monies will depend on whether the cadet was a scholarship recipient.

Cadets who are involuntarily disenrolled also may be required to perform active duty for two years in an enlisted rank in lieu of repaying the government for its costs. The decision to require repayment in lieu of active duty service will depend on the circumstances of the case and the recommendation of the commanding officer. ROTC cadets who were not scholarship recipients in most every case will be required to perform 2 years of active duty service.

A cadet facing investigation and/or involuntary disenrollment should immediately seek qualified legal assistance. The military often-times fails to adhere to its own disenrollment procedures, to respect the rights of cadets, and to conduct an impartial investigation and/or hearing. As a result, cadets sometimes are unjustifiably and unlawfully disenrolled.

A cadet who is voluntarily disenrolled and asked to repay the government for his or her educational expenses may challenge the disenrollment and alleged debt under a federal statute, 10 U.S.C. § 2005, by asking the Secretary of the military department concerned to investigate the lawfulness of the debt. If the cadet did not previously obtain legal assistance, he or she would be well-advised to do so at this stage of the process.