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Administrative separation for Domestic Violence Article 128b

 In ARTICLE 128, Blog, Board of Inquiry, GOMOR, Investigations, Separation Board

We have had several GOMOR responses and separation boards for service members accused of domestic violence. The military is generally restricting their court-martial efforts to cases of sexual assault, so adverse administrative action like non-judicial punishment, GOMORs, and AdSep or Boards of Inquiry, is how the services are dealing Article 128b accusations. You might think that an Article 15 or Captain’s Mast punishment or a GOMOR might be the limit of the military’s retribution for domestic violence accusations. When an investigation is complete, service members often face Article 15 for Article 128b or a GOMOR for Article 128b. This is especially true when the investigation finds the accused committed the violation, but there is not enough evidence for a court-martial. However, the services have policies that require mandatory separation processing to founded acts of domestic violence. As an example, “g. Paragraph 1004(f) of the MARCORSEPMAN requires mandatory separation processing for all Marines, including officers, who have been determined to have committed domestic, intimate partner, and immediate family member abuse. Although the triggering language is vague, “determined to have committed,” means a “substantiated” allegation.” This means should a command investigation find a Servicemember has violated UCMJ Article 128b Domestic Violence, the command must begin mandatory separation processing.

Mandatory separation processing is not the same as mandatory separation. This means that the command must start the process of attempting an AdSep Article 128b to separate the service member from the military. The service member has certain rights they can retain prior to separation. As an example, should the command seek an Other Than Honorable discharge, the service member has a right to defend themselves when faced with an Administrative separation board for Article 128b or a Board of Inquiry with the assistance of a detailed attorney.

We recently had two Boards of Inquiry in the last 12 months where command investigation findings indicated the accused may have committed domestic violence. However, command investigators are not experienced investigators, and both investigation reports were greatly flawed. We won both of the Article 128b Boards by focusing on the flaws in the investigation reports and on the excellent character of the accused. Both board panels found that the officers did not commit Article 128b Domestic Violence.

Factors that increase risk to the accused.

Domestic Violence charges often stem from a 911 call. When the police arrive, the parties involved often give statements. This can be a mistake for those who are accused and often for the alleged victim who might have called 911. If in the heat of an argument, the alleged victim called 911, but did not intend to accuse their spouse of domestic violence, their statement may look very much like they are accusing their partner of domestic violence. Also, the accused may think they are telling their side of the story, but instead they are confirming facts for investigators to help build their case against the accused. Individuals involved in altercations have the right to remain silent. The accused should always retain their right to speak to an attorney before making any statements to anyone.

When the investigation is underway, it is best for the accused to have already retained an attorney to guide them through the investigation. Retaining an attorney can protect you from making things worse in your interactions with the command, investigators, or witnesses.

What to do in the initial phases of administrative punishment for Article 128b Domestic Violence

When an investigation finds that the accused likely committed Article 128b Domestic Violence, the command will move forward with some type of administrative punishment before beginning mandatory separation proceedings. However, if the accused is a field grade officer or senior NCO, they may have the opportunity to respond to the findings with a legal analysis prior to the command levying administrative action. When the investigation is complete, an experienced military attorney can analyze the investigation findings and respond to the command. The response can point out legal insufficiency, flaws, or bias that may be present in the report.

After the investigation is complete, the command will decide whether to take administrative action against the service member like an AdSep Article 128b. In both BOI cases mentioned above, the officers received either a GOMOR for 128b or an Article 15 for 128b prior to being notified about separation proceedings.  The service member will have an opportunity to make a statement at Captain’s Mast for Article 128b, Article 15 for Article 128b hearing, or in a response to a GOMOR for Article 128b. These adverse actions, like a GOMOR Article for 128b, are how the command administratively punishes the service member. Commanders expect service members to take responsibility for their actions in their statements at these proceedings. To encourage a local filing of this administrative action, service members may feel compelled to take responsibility to appease the commander. Often this is a mistake. To take responsibility for the action you are essentially admitting guilt. Plus, there may be no local filing opportunity for the action simply because of the nature of the accusation. The government is likely to begin an Administrative separation board for Article 128b anyway. Then the command’s legal representatives will use your statements at these proceedings against you at an AdSep Board for Article 128b or a Board of Inquiry for Article 128b.

If you are accused of Article 128b Domestic Violence, contact us here or give us a call at 757-504-2815 to discuss the merits of your case.

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