Posted on Nov 1, 2022
How can someone stop an unlawful chapter action and discrimination against enlisted soldier?
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How can a commander initiate an admin chapter for the same charges that the SM was found not guilty of and was acquitted in a general court martial. Even though the following reference from the clearly states that, still the staff judge advocate's team is supporting her action. I complained to IG, TDS, and even emailed CG himself. But the legal team is not backing down. I am being discriminating against just because I went to GCMC and that I was in the MEB process and that I proved them wrong. Mostly importantly being the only soldier from Afghanistan.
Army Regulation 635–200
Active Duty Enlisted Administrative Separations
1–18. Restrictions on administrative separation and board hearings
b. Separation per this regulation normally should not be based on conduct that has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted. Accordingly, administrative separations under the provisions of chapters 11, 13, and 14 and AR 380–67 are subject to the following restrictions. No Soldier will be considered for administrative separation because of conduct that— (1) Has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof.
Army Regulation 635–200
Active Duty Enlisted Administrative Separations
1–18. Restrictions on administrative separation and board hearings
b. Separation per this regulation normally should not be based on conduct that has already been considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted. Accordingly, administrative separations under the provisions of chapters 11, 13, and 14 and AR 380–67 are subject to the following restrictions. No Soldier will be considered for administrative separation because of conduct that— (1) Has been the subject of judicial proceedings resulting in an acquittal or action having the effect thereof.
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DoD Legal Services8103: Judge Advocate or Judge Advocate General Career Counselor Career Advice
Edited 2 y ago
Posted 2 y ago
Responses: 5
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There's really not enough information here for anyone to give much advice, it's called cherry picking advice when you only give enough information for another to come to the conclusion you are seeking. We don't know what you were charged with, what you're command is attempting to separate you for, or how your MEB is a contributing factor.
Also, charges being dropped does not equal an acquital in the justice system. An acquital is when charges go forward and you are found unable to be convicted. Having charges dropped does not equal being found not guilty.
Also, charges being dropped does not equal an acquital in the justice system. An acquital is when charges go forward and you are found unable to be convicted. Having charges dropped does not equal being found not guilty.
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COL Randall C.
SPC (Join to see), as SFC (Join to see) pointed out, there is a distinction between a judicial action going forward and a judicial action being aborted.
In all cases, the restriction on an administrative separation is contingent upon a judicial action proceeding until there is a finding. If the charges are dropped/withdrawn, then there is no finding of guilt or innocence.
- "...considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted".
Based on your comments, I assume that the chapter is either for unsatisfactory performance (chapter 13) or misconduct (chapter 14). You should be notified regarding a separation board/hearing. Make sure you talk to legal counsel so they can go over all your options and help you present your case at the board.
In all cases, the restriction on an administrative separation is contingent upon a judicial action proceeding until there is a finding. If the charges are dropped/withdrawn, then there is no finding of guilt or innocence.
- "...considered at an administrative or judicial proceeding and disposed of in a manner indicating that separation was not warranted".
Based on your comments, I assume that the chapter is either for unsatisfactory performance (chapter 13) or misconduct (chapter 14). You should be notified regarding a separation board/hearing. Make sure you talk to legal counsel so they can go over all your options and help you present your case at the board.
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SPC (Join to see)
Sir: It wasn't aborted or forwarded, and the charges were not dropped or withdrawn. This is the exact words on my acquittal:
The court-martial resulted in a full acquittal.
Any post-trial action by the convening authority:
No action taken.
Any ruling, order or other determination of the military judge that affects a plea, a finding, or the sentence:
The accused having been arraigned; the proceedings were terminated on 2 March 2022. The accused was found not guilty of
the charges and specifications. All rights, privileges and property of which the accused may have been deprived by virtue of
these proceedings will be restored.
The court-martial resulted in a full acquittal.
Any post-trial action by the convening authority:
No action taken.
Any ruling, order or other determination of the military judge that affects a plea, a finding, or the sentence:
The accused having been arraigned; the proceedings were terminated on 2 March 2022. The accused was found not guilty of
the charges and specifications. All rights, privileges and property of which the accused may have been deprived by virtue of
these proceedings will be restored.
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SGM Erik Marquez
SPC (Join to see) - That the trial by CM did not require administrative separation has no connection to the regulation supports an administrative separation for cause based in specific issues.
So look at AR_635-200-000, https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30496-AR_635-200-000-WEB-4.pdf in the chapter for the separation you are being looked at for.
Read "Basis for separation", "Separation policy", and "Counseling and rehabilitation requirements". If you feel the separation type specifies something that does not line up with your situation... then you have something to address
So look at AR_635-200-000, https://armypubs.army.mil/epubs/DR_pubs/DR_a/ARN30496-AR_635-200-000-WEB-4.pdf in the chapter for the separation you are being looked at for.
Read "Basis for separation", "Separation policy", and "Counseling and rehabilitation requirements". If you feel the separation type specifies something that does not line up with your situation... then you have something to address
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SFC (Join to see)
SPC (Join to see) is it the same charge? You haven't told us exactly what charges were dropped or the specifications of your chapter. The command can still separate you for other reasons connecting you to misconduct, even if the bar isn't high enough for a court martial.
The answer here is quite simple. You're going through an MEB, the commander can initiate a separation request if they choose. If the separation is for the same reason as your acquittal, the CG will select the MEB separation. If it's for a different, authorized reason, the CG may elect to separate you administratively. Your Commander cannot separate you, but as you read in the separation regulation, both processes continue simultaneously and are presented to the CG for their decision.
The answer here is quite simple. You're going through an MEB, the commander can initiate a separation request if they choose. If the separation is for the same reason as your acquittal, the CG will select the MEB separation. If it's for a different, authorized reason, the CG may elect to separate you administratively. Your Commander cannot separate you, but as you read in the separation regulation, both processes continue simultaneously and are presented to the CG for their decision.
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