However, each of these actions have a “due process” element to them—that is, a requirement that before the entry into your service record book is completed and the consequences become permanent, you have a right to respond and ensure that your understanding of the facts is documented. Just as the Command may be setting you up for adverse action, this is a prime moment for you to ensure that the complete story is known and appropriately documented.
1. Counseling concerning the incidents of misconduct, whether or not it leads to any disciplinary actions;
2. Counseling concerning failures to be promoted due to immaturity, lack of leadership, or specific incidents that occurred during the promotion periods;
3. Counseling concerning alcohol or drug related incidents, including the offer and refusal of rehabilitative treatment;
4. Counseling concerning failures in job performance;
5. Counseling concerning potentially disqualifying medical or psychological conditions; or
6. Adverse Fitness Reports or Performance Evaluations.
What are the Consequences?
Military personnel law requires:
1. Service member’s conduct and performance be documented;
2. The individual counseled concerning their deficiencies; and
3. In some situations, opportunity be given to correct their deficiencies be given before adverse action can be taken.
When adverse information is placed into the permanent military record of a service member, the rules require that the service member be given an opportunity to make a written rebuttal to the adverse information. This opportunity is often waived, the entry becomes permanent, and the Command is permitted to move onto the next step of the administrative process uncontested.
This happens because service members waive the rights with the mistaken belief that there will be some time in the future to attack the decisions of their leaders and make their case before an impartial trier of fact.
This is not true.
The best time to begin to make your record and preserve your rights is NOW—right at the time that the adverse event occurs. It allows you to lock the facts in place and ensures that the record reflects your side. An accurate and compelling presentation of your side of the facts may assist in the presentation of your case in the present -- but most importantly will lend greater strength to any argument you make when and if a impartial trier of fact becomes involved in your case.
What should I do?
The worst thing you can do at this time is nothing.
Often, a service member may write a rebuttal in haste, frequently hand written and attached to the record. The writing is colored by emotion and the rapid pace of the process, and frequently fails to adequately document the entire picture while capturing the service member’s anger and frustration at the time. In the cold light of reflection, the words may create a picture that is not flattering to the service member or helpful to their case.
Unfortunately, the military attorneys on base are often precluded by both their case loads and their governing rules from assisting military members from preparing these types of responses to adverse administrative actions. This leaves the service member without apparent options.
Jeff Meeks and Bruce White have decades of experience in preparing these types of responses. They are experienced military lawyers who can assist you in accurately and professionally preparing your reply, with a clear eyed view toward your future case and the protection of your rights. Your time window in preparing these responses is frequently narrow.