In this era of military downsizing, a reprimand for an officer or senior enlisted service member can be a career killer. For officers, a reprimand in any branch can lead to promotion problems and grade review boards at retirement. For an enlisted member, a reprimand can create retention issues.
Each of the branches has very different reprimand appeals procedures. So it's important to work with an attorney with knowledge of the process.
Army Regulation 600-37 - Unfavorable Information
Navy and Marine Corps JAGINST 5800.7F - See paragraph 0105
AFI 36-2907 - Unfavorable Information File
This discussion is about non punitive letters of reprimand. In all branches of service, the authority to issue a reprimand resides with the immediate commander, school commandant, or any general officer or officer with general court-martial convening authority. It should be noted that the Navy and Marine Corps are not as liberal as the other branches in imposing non punitive letters of caution. The Navy and Marine Corps also have different filing standards - they are usually locally filed as a matter of practice.
After a commander decides to impose a reprimand, each branch of a service has a referral process in which the member is afforded the right to respond to the reprimand. It is important to consult with counsel at this stage. Often, inexperienced military counsel advise members to accept responsibility for any alleged misconduct - regardless of whether they are in fact responsible for the allegations. "Falling on your sword" is not always the best course of action. It is prudent to at least discuss the consequences. If you are not guilty of alleged misconduct and you accept responsibility, the appeal will become more difficult.
The first stage in a reprimand appeal is to request the immediate commander to consider either not imposing a reprimand or filing the reprimand locally. Lawyers can assist in analyzing the facts, law, regulations, and drafting persuasive memorandum to facilitate local filings or better.
Generally, the regulations provide that unfavorable information be based on substantiated information. Those terms are not well-defined. The standard of proof is a preponderance of the evidence. This can sometimes lead to problems downstream when a Board of Inquiry or other board finds the allegations unsubstantiated.
The next stage in appealing a reprimand is to petition to the various Board for Correction of Military Records or Board for Correction of Naval Records. In the Army, the first level appeal would be to the Department of the Army Suitability Evaluation Board.
The firm always advises a free consultation on a reprimand issue. Often the audience for a reprimand appeal can be broad. Your intended audience could conceivably include:
-The Board for Correction of Military Records
-Human Resources or Personnel Command
-A potential Board of Inquiry
With so many potential audiences, using appropriate language is critical. Lawyers are also valuable in obtaining character letters and handling witnesses. Most importantly, our vast well of experience and knowledge can be helpful in analyzing the law and evidence to determine whether the reprimand was appropriate in the first instance.
The bottom line is that a consultation does not cost anything, but the consequences of a reprimand can be expensive over the long term when retirement and promotion issues are factored into the analysis. Feel free to give us a call, we are happy to discuss issues related to reprimands and collateral consequences.
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