Ask the Lawyer: Facing disciplinary action? Be sure to weigh options - Military Law, Military Law Advice, Ask a Lawyer - Army Times

Ask the Lawyer: Facing disciplinary action? Be sure to weigh options

Sometimes a service member and the command are on opposite sides of an administrative action with implications for career advancement — Article 15s (nonjudicial punishment), administrative separation proceedings, adverse evaluation reports or being the subject of a command investigation.

In these situations, the service member often feels helpless and without recourse. But the member has a number of options, each with its own implications and limitations.

Among those that may be available are an Article 138 complaint, inspector general’s complaint, whistle-blower complaint, Article 15 appeal, congressional inquiry, Board for Corrections, or even supporting an investigative report by the news media.

Not all of these options are available at all times. For example, if you’re facing an Article 15 or a pending court-martial, many of the complaint processes listed above are not available until after adjudication has occurred, because the complaint and the subject matter of the legal situation are the same.

If there is an issue developing, it’s better to exercise your rights before any disciplinary action begins. However, you should make sure that an expert reviews any documentation or statements before you submit them — they could, and typically will, be used against you.

For example, the tone of the submission may be perceived as disrespectful and lead to additional charges, or deprive you of leniency you may have had before the submission statement.

Using the press may look attractive when no other options seem available. But a journalist’s job is to present a balanced report reflecting all parties involved, and contacting a reporter without a media strategy can result in a negative portrayal of your case. I’ve even seen negative media attention be used against service members during adjudication.

There are also specific rules that govern and restrict a military defense counsel’s ability to communicate with the media while a matter is pending, which may limit the effect of the information.

Many of these options can be effective and provide a record that will create a successful appeal or clemency in the future. Sometimes the initial battle is simply unwinnable, and long-term consequences must be considered. But thoughtful, strategic decision-making can result in the removal of adverse material from a service member’s record and initiate remedial action to restore the member to his previous status.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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