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Appearing before the board of Naval corrections?

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drummin

Junior Member
What is the name of your state (only U.S. law)? Texas.

I am trying to decide between representation from 2 attorneys on a military matter. It involves a complaint under the whistle-blower regulations for reprisal actions.

I have gotten conflicting advice from the attorneys.

Both attorneys specialize in military law, and both advise going to the board of Naval Corrections to gain redress.

One attorney based near DC says we should request to appear before the board, and if this is granted, the fee essentially triples.

The other attorney based in Texas, claims that almost no attorney ever requests to appear before the board, due to the board very rarely inviting anyone to appear before them. Thus, the fee he quotes is flat and cheaper than the potential fee's I'd pay the DC based attorney if he appears before the board.

My question: Is my local attorney wrong in suggesting we don't bother requesting to appear before the board (for reasons perhaps of quoting me a cheaper fee to gain my business), or is the DC based attorney pushing for a request that may be ultimately fruitless in hopes of billing me triple?

Final question: What important questions should I be asking them to determine who is best suited to take my case?

Thank you for your time/opinions on the matter.
 


Zigner

Senior Member, Non-Attorney
What is the name of your state (only U.S. law)? Texas.

I am trying to decide between representation from 2 attorneys on a military matter. It involves a complaint under the whistle-blower regulations for reprisal actions.

I have gotten conflicting advice from the attorneys.

Both attorneys specialize in military law, and both advise going to the board of Naval Corrections to gain redress.

One attorney based near DC says we should request to appear before the board, and if this is granted, the fee essentially triples.

The other attorney based in Texas, claims that almost no attorney ever requests to appear before the board, due to the board very rarely inviting anyone to appear before them. Thus, the fee he quotes is flat and cheaper than the potential fee's I'd pay the DC based attorney if he appears before the board.

My question: Is my local attorney wrong in suggesting we don't bother requesting to appear before the board (for reasons perhaps of quoting me a cheaper fee to gain my business), or is the DC based attorney pushing for a request that may be ultimately fruitless in hopes of billing me triple?

Final question: What important questions should I be asking them to determine who is best suited to take my case?

Thank you for your time/opinions on the matter.
I would suggest that you interview at least 1-3 more attorneys.
 

OHRoadwarrior

Senior Member
I agree with Zigner. It appears nuances in your particular situation are such the two you consulted had divergent theories. More legal expertise is needed before proceeding.
 

drummin

Junior Member
Noted, although it isn't as easy as I thought it would be to find lawyers who specialize in military law and understand this process.

Another way of asking my question then:

Is anyone here familiar with the board of Naval Corrections, and in general does it matter appearing before the board, or is it simply an option that rarely gets executed and rarely has any bearing on their decision? This is essentially the two contrasting views I get from these 2 lawyers. One says it's a procedure that happens and has bearing, the other says it's a formality that is rarely executed and doesn't typically weigh on the outcome.
 

SHORTY LONG

Senior Member
Noted, although it isn't as easy as I thought it would be to find lawyers who specialize in military law and understand this process.

Another way of asking my question then:

Is anyone here familiar with the board of Naval Corrections, and in general does it matter appearing before the board, or is it simply an option that rarely gets executed and rarely has any bearing on their decision? This is essentially the two contrasting views I get from these 2 lawyers. One says it's a procedure that happens and has bearing, the other says it's a formality that is rarely executed and doesn't typically weigh on the outcome.
I may be off point but, i am curious to know How long have you been out of the Military? Were you given a court-martial? If so, which one and did you do a direct appeal from it?

Or were you administratively discharged? What type of discharge did you receive and FOR WHAT? Be advised about the DRB & BCNR:

they do not give a rats ass unless it is [bad] as to what you have done with your life since you have since been discharged! Their only concern is to correct a record that warrants such action, and post rehabilitation has <1% in making a favorable decision to obtaining an upgrade to a less than honorable discharge; and in essence, it boils down to this: Why did you do what you done when you did it at that time?
 

quincy

Senior Member
I may be off point but, i am curious to know How long have you been out of the Military? Were you given a court-martial? If so, which one and did you do a direct appeal from it?

Or were you administratively discharged? What type of discharge did you receive and FOR WHAT? Be advised about the DRB & BCNR:

they do not give a rats ass unless it is [bad] as to what you have done with your life since you have since been discharged! Their only concern is to correct a record that warrants such action, and post rehabilitation has <1% in making a favorable decision to obtaining an upgrade to a less than honorable discharge; and in essence, it boils down to this: Why did you do what you done when you did it at that time?
Off topic: It is good to see you back here, SHORTY LONG! :)
 

drummin

Junior Member
Honorable Discharge, and it is listed as a "force shaping" release IE sequestration. Been out about 2 months now.

The issue is I was released particularly by one individual's choice after I participated in an official complaint against him. IE, reprisal. Inexplicably, his superiors (and this is in writing by their own admission) failed to take that into account and did not counter his decision. By removing me from the program, I was then selected to be released due to sequestration measures.

There was only a one month period between my active participation in his official complaint and his endorsement to remove me from a coveted program mere days from training completion. My redress i'm pursuing is to return to the program and finish. As for the case, it can be proven that he was well aware I had spoken out against him in official complaint statements, and that his reasoning for justifying the termination was based solely on his opinion, as I had met all published requirements of the program (IE, did not fail the programs tests or exercises), and some of his opinions make claims that are not backed up by any written documents or witnesses that he can produce.

Therefore, the advice I've received is to take this to the board of corrections. Does this sound like the right direction?

Of course, I could also go the IG complaint route, but the way I see it, this only serves to bring consequences to this individual, and would not necessarily return me to my program...nor does the IG have a nice record lately for siding with the individual member over the command.

Thoughts?
 

OHRoadwarrior

Senior Member
It appears the issue has already been reviewed and approved by his superiors. I don't see their not considering it as grounds to consider you untouchable as worth the effort.
 

SHORTY LONG

Senior Member
Honorable Discharge, and it is listed as a "force shaping" release IE sequestration. Been out about 2 months now.

The issue is I was released particularly by one individual's choice after I participated in an official complaint against him. IE, reprisal. Inexplicably, his superiors (and this is in writing by their own admission) failed to take that into account and did not counter his decision. By removing me from the program, I was then selected to be released due to sequestration measures.

There was only a one month period between my active participation in his official complaint and his endorsement to remove me from a coveted program mere days from training completion. My redress i'm pursuing is to return to the program and finish. As for the case, it can be proven that he was well aware I had spoken out against him in official complaint statements, and that his reasoning for justifying the termination was based solely on his opinion, as I had met all published requirements of the program (IE, did not fail the programs tests or exercises), and some of his opinions make claims that are not backed up by any written documents or witnesses that he can produce.

Therefore, the advice I've received is to take this to the board of corrections. Does this sound like the right direction?

Of course, I could also go the IG complaint route, but the way I see it, this only serves to bring consequences to this individual, and would not necessarily return me to my program...nor does the IG have a nice record lately for siding with the individual member over the command.

Thoughts?
Take a look at these and this may indeed answer unresolved questions, afterwards, post back and we will go from there. However, after a quick glean of them, it appears Uncle Sam is cutting back.

http://www.military.com/daily-news/2014/03/13/air-force-halts-force-shaping-to-reassess-options.html

http://www.af.mil/News/ArticleDisplay/tabid/223/Article/475090/additional-fy14-civilian-workforce-shaping-now-parallel-with-military-programs.aspx

On a side note: Hello Quincy! Thank you for your time and kindness; not sure due to medical issues (not real serious) how long i will be aboard! :)

All my brothers who have replied to your post, my personal thanks, right on!
 

drummin

Junior Member
The issue of reprisal was not reviewed or addressed.

The only decision brought forth was to approve, or deny my release from the program. I am arguing the underlying mechanism to remove me was reprisal, and that accusation I made was not addressed or considered by the approving authority.

This happened at a very local level (base level, never left the gate). My thought here, is it then should be brought up the chain. However...at this stage the only people I can bring the issue to is either the IG, congressional representative, or the board of corrections. The only ones who can grant the redress, is the board.

Edit: Not to say I'm untouchable or should be. The counter to my argument is yes, had I never complained, this individual would still have the right to remove me, and his opinion of me could very well be true. Instead, I present the view that he had several opportunities to remove himself from the situation by transferring me (as I requested in the past), or providing evidence/documents/witnesses to substantiate his position in a way that was not 100% based on his subjective opinion without physical substance. Instead to say he "judged" me as unfit based on his opinion, when the scores and data from training say I met or exceeded the published standards, and when I did not meet any criteria for removal, speaks to reprisal action in my view.

If his opinion of me was true, then it stands that a competent commander at another unit would have made the same choice, and probably with something more concrete.
 
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ERAUPIKE

Senior Member
From the BCNR website, "Except in those unusual cases where a personal appearance is granted, the Board bases its decision on the evidence contained in the application and appropriate naval records. The burden is on the applicant to submit substantial evidence to support the existence of an error or injustice."

You will need to provide some evidence of your claim in order to reverse this decision in your application. Do you have anything other than your theory that another commander may not have released you from the program?
 

drummin

Junior Member
From the BCNR website, "Except in those unusual cases where a personal appearance is granted, the Board bases its decision on the evidence contained in the application and appropriate naval records. The burden is on the applicant to submit substantial evidence to support the existence of an error or injustice."

You will need to provide some evidence of your claim in order to reverse this decision in your application. Do you have anything other than your theory that another commander may not have released you from the program?
Frankly, this is where I'm not sure if I have anything solid. Definitely no smoking gun I think. But I'm no lawyer, so I don't know if I have enough or not.

What I have is:
He signed follow-on orders before I complained, since I was so close to graduation and the funding was required that far out. After I complained, he then argues that he didn't think I was cut out for the job. This seems very contradictory.

His own performance evaluation of me (albeit a few months prior to this mess) was just fine, grading me as an average performer.

In a meeting I wish I had recorded, he flat out threatened to get rid of me, or at the very least ruin my career, for talking out against him in the official statement.

I then requested 2 transfers that were low-impact (just to the building next door, a unit that performed the same training). This commander failed to forward my requests, instead denying them on the spot. This was during and after the complaint. I felt it was a textbook situation for a transfer, and received no quantifiable reason for it being denied.

The final piece of evidence I have, is he made the case that I was just not cut out for this job. Then 2 weeks later, he graduates 3 individuals with grades and performance evaluations well below mine.

Keep in mind I had passing grades, passed all tests, lessons and exercises, and was a model citizen (IE no discipline issues, letter of caution, citations, arrests, misconduct etc...a real boring guy) So I was let go by his sole opinion, and a very generalized one at that.

I guess if I'm being frank, I don't think this is much really. I guess what I'm trying to do, is use reason and logic with the board to show that he shouldn't have been in a position to do that. It would be one thing if I did not meet the published sanctioned guidelines for non-grad. It's another if I was considered a good and passing cadet, then I participate in an official professional complaint against you, and then you decide I'm not cut out for the job that I was trained for and passed all exams for. Better yet, if you feel that's true after what was done, you transfer me to have another commander make that call, and not put yourself in a position to look like your reprising.

Well like I said, not sure if that's anything to take to the bank. I'm being realistic and guessing no...but I'm no lawyer.
 

ERAUPIKE

Senior Member
Frankly, this is where I'm not sure if I have anything solid. Definitely no smoking gun I think. But I'm no lawyer, so I don't know if I have enough or not.

What I have is:
He signed follow-on orders before I complained, since I was so close to graduation and the funding was required that far out. After I complained, he then argues that he didn't think I was cut out for the job. This seems very contradictory.
It might seem that way. Can you show that this is not a normal practice for individuals that are processed through this program?

His own performance evaluation of me (albeit a few months prior to this mess) was just fine, grading me as an average performer.
Average performer, that sounds more like a training eval to me. Standard boiler plate evaluations submitted for students not yet in the fleet.

In a meeting I wish I had recorded, he flat out threatened to get rid of me, or at the very least ruin my career, for talking out against him in the official statement.
If the two of you were the only people in this meeting and he is not willing to verify your version, it never happened.

I then requested 2 transfers that were low-impact (just to the building next door, a unit that performed the same training). This commander failed to forward my requests, instead denying them on the spot. This was during and after the complaint. I felt it was a textbook situation for a transfer, and received no quantifiable reason for it being denied.
It was denied because you don't get to dictate where you receive your training in the military. The commander has every right to deny requests on the spot based on his own judgement. This is not evidence that will help your case in any way.

The final piece of evidence I have, is he made the case that I was just not cut out for this job. Then 2 weeks later, he graduates 3 individuals with grades and performance evaluations well below mine.
Do you have access to these grades and performance evaluations? What were the requirements that were set forth for graduation from the program?

Keep in mind I had passing grades, passed all tests, lessons and exercises, and was a model citizen (IE no discipline issues, letter of caution, citations, arrests, misconduct etc...a real boring guy) So I was let go by his sole opinion, and a very generalized one at that.
The instructor that is paid to evaluate potential candidates for service in the fleet decided that you weren't fit for that job. Do you think that maybe your constant requests for transfer, official complaints (which I would be interested in hearing more about), and seemingly inconsolable issues with your command may have played a key role in your removal from the program.

I guess if I'm being frank, I don't think this is much really. I guess what I'm trying to do, is use reason and logic with the board to show that he shouldn't have been in a position to do that. It would be one thing if I did not meet the published sanctioned guidelines for non-grad. It's another if I was considered a good and passing cadet, then I participate in an official professional complaint against you, and then you decide I'm not cut out for the job that I was trained for and passed all exams for. Better yet, if you feel that's true after what was done, you transfer me to have another commander make that call, and not put yourself in a position to look like your reprising.

Well like I said, not sure if that's anything to take to the bank. I'm being realistic and guessing no...but I'm no lawyer.
You may want to explain the "official complaint" you entered. It may shed some light on wether there was any reprisal by your instructor.
 

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