Disability Separation to Admin Separation

Sorry for the confusion. What I mean was in order to be sent home awaiting orders the command has to agree with it. Since his command is being difficult with his situation and pending UCMJ, they don't seem like they would be helpful or receptive to this idea. However, he could always ask for it and since he is "falling asleep" at work and his medical condition is interfering with daily operations, they might ultimately grant him the home awaiting orders for unit moral/effectiveness, etc.
 
Sorry for the confusion. What I mean was in order to be sent home awaiting orders the command has to agree with it. Since his command is being difficult with his situation and pending UCMJ, they don't seem like they would be helpful or receptive to this idea. However, he could always ask for it and since he is "falling asleep" at work and his medical condition is interfering with daily operations, they might ultimately grant him the home awaiting orders for unit moral/effectiveness, etc.

See I knew that's what he was saying.... LOL... Good Luck ;)
 
What about refusing to sign the Art 15? Won't they have to make a choice between dropping it or going for a court martial which they would have to present prrof?
 
Too late. I received it months ago and my not-so-great ADC didn't offer any help...
 
What about refusing to sign the Art 15? Won't they have to make a choice between dropping it or going for a court martial which they would have to present prrof?


That is the answer- you can refuse the Art. 15 and demand court-martial.

Now, this can be "high stakes poker." If you lose on the bet that the a panel or Military Judge won't find you guilty, you could face hefty punishment and loss of benefits.

That said, in some cases this is a good bet. I spent a little more than 3 years as an active duty military prosecutor (Senior Trial Counsel) for a two star Command. There are a lot of issues that come into play in the decision to charge and prosecute cases. A HUGE issue can be the fact that the government has the obligation to pay for (some if not all) of your requests for favorable witnesses (including character witnesses). Assuming that the command really thinks this is something worth fighting out, a good technique is to ask for witnesses who are in distant commands or deployed. This can be hugely expensive to provide and if there are several witnesses, sometimes you can get the command to "fold." (I have been on the losing side of this argument as a prosecutor; sometimes the case just is not worth flying people in from around the world). This will likely cause them to think twice about pursuing BS charges because of the expense. Furthermore, many military judges are alert to BS charges (for example, in the Army's Third Judicial District, it was stated more than once that if a member deployed or had a good record, essentially any type of punitive discharge was "off the table" and the punishments were quite light for those who were convicted, barring facts that were clearly deserving...now, this is a really fact specific and jurisdiction specific type of analysis and the ADC/TDS/military defense counsel should have the best insight on how things go in the specific commands). Even if the command goes for broke and decides to try to prosecute the case, they have to prove the charges beyond a reasonable doubt. Sometimes, especially in cases that are clearly bogus, it makes sense to skip a panel and ask the military judge to decide the case. In cases that turn on legal issues, sometimes this is a good bet. However, going back to the original issue of demanding a court-martial, most Judge Advocates would advise the command against pursuing bogus cases. And if the case is bogus, most times the member would prevail. Again, this is high stakes poker and a bad decision can be crushing. But, most times, I think the military justice system gets BS cases right and throws them out (either by not charging in the first place, or by acquittal).

It seems like this option is not on the table in the posters situation because the Art. 15 already happened. I just point out that demanding court-martial, if the facts are right, can be a viable option. Also, again, I can't stress enough that the decision to demand court-martial when the command initiates an Art. 15 should only be made with qualified legal advice from an experienced attorney.
 
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