If you fear for your immediate safety or are in danger due to domestic violence, do not wait—call 911 right away. Law enforcement can intervene to ensure your protection and help you access emergency resources, such as shelter or medical care. While seeking an Order of Protection is an important legal step, your first priority should always be your immediate safety and the immediate safety of your children. The police can also assist you in filing for an Order of Protection once you are safe. If you are ever unsure about your safety, don’t hesitate to call for help before taking any legal action 

Divorce can be a challenging process where emotions are heightened, especially when it involves concerns about safety or abuse. In Tennessee, one tool to ensure the safety of a party during a divorce is petitioning the court for an Order of Protection. For individuals in need of immediate legal relief from domestic abuse, stalking, or threats of harm, an Order of Protection offers crucial protections. 

What is an Order of Protection? 

An Order of Protection is a court-issued document designed to prevent an abuser from continuing harmful behavior. The Order of Protection can grant various protections, such as prohibiting the abuser from contacting or approaching you, giving you exclusive possession of your residence, awarding you temporary sole custody of minor children, ordering counseling or financial support, directing the care of pets, etc.¹  

However, these protections do not go into effect until the abuser has been served with a copy of the ex parte Order of Protection.² Once they have been served, if your abuser violates the order of protection, they can be arrested. 

Who can file for an Order of Protection? 

In Tennessee, any domestic abuse victim, stalking victim, or sexual assault victim who has been subjected to, threatened with, or placed in fear of, domestic abuse, stalking, sexual exploitation of a minor, sexual assault, or a human trafficking offense may file for an order of protection.³ 

It is important to note that anyone who has experienced sexual assault or stalking may file for a Petition for an Order of Protection, regardless of your relationship with the perpetrator.⁴ However, in order to meet the statutory requirements for an Order of Protection for domestic abuse, there must be a relationship between you and the abuser, i.e. current or former spouses, people who live together or have lived together in the past, people who are dating or have dated, people who have had sexual relationships with the other, relatives by blood or adoption or previous marriage, etc.⁵ 

Under Tennessee law, there are four categories as to what can constitute domestic abuse⁶ that would warrant an Order of Protection: 

1. Purposefully physically hurting or attempting to hurt someone physically (accidents do not count)  

2. Making the person fear physical harm or physical restraint, or physically restraining someone 

3. Maliciously damaging someone’s personal property 

4. Intentionally financially abusing⁷ someone, meaning behavior that is coercive, deceptive, or that unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which the person is entitled 

1. This includes using coercion, fraud, or manipulation to restrict a person’s access to money, assets credit, or financial information; unfairly utilizing a person’s economic resources to gain an advantage; or exerting undue influence over a person’s financial behavior or decisions, including forcing default on joint or other financial obligations, etc. 

How to File for an Order of Protection? 

To request an Order of Protection in Tennessee, a person must file a Petition for an Order of Protection in the county where the abuser lives, the county where the abuse occurred, or the county in which you live if your abuser lives outside of the state of Tennessee.⁸ It is important when filing to give the court as much information as possible regarding what you have experienced.  

Each county has slightly different procedures for filing a Petition. Generally speaking, this can be done at the county’s General Sessions’ Clerk’s Office. If it is after hours, your local police should be able to assist you in filing your petition. You can also retain an attorney and request that they file a Petition for an Order of Protection on your behalf. 
 

Should I wait to request an Order of Protection until after I have filed for a divorce? 

An Order of Protection can have significant implications during a divorce, particularly in cases involving children. If children are involved, the court may take into account any history of domestic violence when determining custody and visitation. Generally speaking, the longer you wait to file an Order of Protection, the more likely a judge will question why you waited. However, there are pros and cons as to when you should decide to file for an Order of Protection, and a skilled family law attorney can help navigate the complex process and protect your rights. 

Should I retain an attorney? 

Whether you are seeking an Order of Protection or defending yourself against one, retaining experienced legal counsel is critical. The stakes can be high in divorce cases, and this is especially true when domestic violence or allegations of abuse are involved.  

Additionally, it is important to note that statutorily, if you are successful in obtaining an Order of Protection, the Court will also order the abuser to pay your court costs, filing fees, litigation taxes, and attorney’s fees.⁹ 

If you’re considering filing for divorce in Tennessee and have concerns about domestic abuse or harassment, do not hesitate to seek legal advice. An Order of Protection may be an essential step in protecting yourself and your family.  Schedule a consultation with a trusted attorney today to discuss your case and explore your options. Taking this crucial step can help ensure that you have the support and guidance necessary to navigate the legal process and protect your interests. Contact Cole Law now at 615-490-6020. 

1 T.C.A. § 36-3-606

2 T.C.A. § 36-3-611

3 T.C.A. § 36-3-602

4 T.C.A. § 36-3-601(11)-(12)

5 T.C.A. § 36-3-601(5)

6 T.C.A. § 36-3-601(1)

7 T.C.A. § 36-3-601(6)

8 T.C.A. § 36-3-602(c)

9 T.C.A. § 36-3-117

Cole Law is proud to announce that Managing Shareholder Andy Goldstein has been selected to the Super Lawyers 2023 Mid-South Rising Stars list. Each year, no more than 2.5 percent of lawyers in Tennessee are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Many current or former service members and their current or former spouses are generally aware of the Uniformed Services Former Spouses’ Protection Act. However, from my experience in working with military family law matters, it is an area of law that many people misunderstand. The purpose of this article is to help members and former spouses better understand their rights and obligations under the “USFSPA”.

The Uniformed Services Former Spouses’ Protection Act is a federal law codified at 10 U.S.C. § 1408, et. seq. The Act gives state courts the authority to treat disposable retired pay as property of the member and spouse in divorce. In the definitions section of the Act, the law specifies that only “disposable retired pay” as defined in the act is divisible. The Act prescribes important limitations, i.e. it only applies when the spouse or former spouse was married to the service member for at least ten years during which time the member performed at least ten years of service creditable for retired pay. The law does not authorize courts to order any member to apply for retirement at any specific time. All payments under the USFSPA cannot exceed 50 percent of the disposable retired pay of a member. If there is more than one court order, they are satisfied on a “first-come, first-served basis”.

Disposable Retired Pay

Disposable retired pay is retired pay minus any overpayments, disability pay including VA disability, and Survivor Benefit Plan payments. It is defined in 10 U.S.C. § 1408(a)(4)(A) as: “[T]he total monthly retired pay to which a member is entitled less amounts which— (i) are owed by that member to the United States for previous overpayments…; (ii) are deducted from the retired pay of such member as a result of forfeitures of retired pay ordered by a court-martial or as a result of a waiver of retired pay required by law in order to receive [VA Disability pay]…; (iii) in the case of a member entitled to retired pay under chapter 61 of this title [10 USCS §§ 1201 et seq.], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member’s disability on the date when the member was retired (or the date on which the member’s name was placed on the temporary disability retired list); or (iv) are deducted because of an election under chapter 73 of this title [10 USCS §§ 1431 et seq.] to provide an annuity to a spouse or former spouse [commonly known as Survivor Benefit Plan or SBP].

Another important point to understand is that the USFSPA does not require the former servicemember to calculate payments for child support, alimony, or division of property. Instead, the Secretary must be served with an applicable court order, and then the Defense Finance Accounting Service (“DFAS”) will make the required payments “from the disposable retired pay of the member to the spouse or former spouse…”

Example 1

By way of example, suppose a military servicemember served twenty years and retired. He was married for twelve of those years to his former wife. In their Tennessee divorce, the former wife was awarded a percentage of the servicemember’s retirement benefits. It is phrased that she is awarded a percentage of disposable retirement benefits calculated as 120 months divided by total months of creditable service (240 in this example) at the rank the servicemember held at the time of divorce. The increased pay due to increased rank after divorce does not go to the former spouse. In this scenario, his monthly retirement pay is calculated by DFAS as $4,400 per month including $400 in VA disability and $300 in SBP. He therefore has disposable retirement pay of $3,700. DFAS determines the solution to the formula is $1,600. Thus, the former spouse will receive a monthly payment of $1,600 and the former servicemember will receive a monthly payment of $2,800.

Example 2

As a second example, a military servicemember retired after twenty-six years of service. She was married for nine years to her former husband. Since the marriage did not last for ten years of creditable service, there is no reason to continue the analysis here as the USFSPA does not apply. Any state court order that divides her retired pay between her and her former husband is in error and superseded by the USFSPA.

Example 3

As a third example, a military servicemember retired after twenty-four years of service. He was married for eighteen years of service to his former wife. The former servicemember was medically retired by the military and is awarded 100% disability from the VA. DFAS calculates his retirement benefits as $6,000 per month including $6,000 in disability payments. Thus, this servicemember has $0 in disposable retirement pay. Under USFSPA, the former spouse cannot receive any payments from DFAS even if a valid court order was served on DFAS. The former spouse has no redress available through DFAS. She could, however, have received alimony in the divorce separate from her former husband’s retirement benefits.

United States Supreme Court Cases

The United States Supreme Court has on at least two occasions decided disputes involving the payment of military retirement benefits pursuant to the USFSPA. In Mansell v. Mansell, the Court discussed the issues as follows: “[T]he language of the Former Spouses’ Protection Act. Section 1408(c)(1) of the Act affirmatively grants state courts the power to divide military retirement pay, yet its language is both precise and limited. It provides that ‘a court may treat disposable retired or retainer pay . . . either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.’ § 1408(c)(1). The Act’s definitional section specifically defines the term ‘disposable retired or retainer pay’ to exclude, inter alia, military retirement pay waived in order to receive veterans’ disability payments. § 1408(a)(4)(B). Thus, under the Act’s plain and precise language, state courts have been granted the authority to treat disposable retired pay as community property; they have not been granted the authority to treat total retired pay as community property… we hold that the Former Spouses’ Protection Act does not grant state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veterans’ disability benefits.” 490 U.S. 581, 588-95, (1989).

The United States Supreme Court once again addressed this issue in the case of Howell v. Howell, whereupon the Court stated: “State courts cannot ‘vest’ that which (under governing federal law) they lack the authority to give. Cf. 38 U.S.C. §5301(a)(1) (providing that disability benefits are generally nonassignable)…we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contingency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support.” 137 S. Ct. 1400, 1405-6 (2017). Together these cases show that state courts may not award disability retirement pay to former spouses as a result of the definitions in the USFSPA.

Note from the Author

Harnessing my fourteen-year career in the military and my experience as an attorney, I take pride in providing value to servicemembers, former servicemembers, military spouses, and former military spouses. I enjoy deciphering the interaction and nuances of family law and military law in Tennessee. If you have additional questions, I encourage you to explore these practice areas on our website or call Cole Law at 615-490-6020 to arrange a consultation with me.

Many service members understand the frustration of being wrongfully denied disability compensation from the Veterans Administration. In my experience I have observed veterans who became frustrated with the process and ultimately gave up. This is most unfortunate. If you have suffered an injury or illness due to your military service, you should be compensated under federal law. However, the failure of many service members to understand the VA system can cause self-inflicted problems.

I recommend the following five best ways to present persuasive disability evidence as an effective strategy:

1. Recognize your mission and ensure that everything you submit helps further your mission.
2. Tie your evidence to your military service.
3. Use the power of narrative to paint a compelling picture.
4. Understand the role of the VA claims examiner.
5. Use overwhelming firepower by finding multiple sources to support each of your claims.

Recognize Your Mission

Preparing for a VA case is like preparing for a military mission. The most junior soldiers have simple tasks in preparing for a mission, usually checking that they have all assigned equipment and that their weapons are functional and their vehicles are operational. At the strategic level, there is immense planning that occurs before military operations are conducted. The logistical and personnel challenges to move an army into a theater of operations is immense. Yet the individual soldier does not have to be concerned with all of that; he just focuses on his role to accomplish the mission. The military decision-making process starts with Step 1: Receive the Mission.

Now if you are a veteran applying for VA disability, your mission is to achieve the highest disability rating that your case warrants. You are not expected to know what disability percentages your disabilities warrant when first applying for VA disability. Instead, you should focus on applying for disability for every illness or injury that you are currently suffering from that was caused or aggravated during your time in service.

Tie Evidence to Your Military Service

The most persuasive disability evidence is that which is clearly tied to your military service. Let’s say, for example, that you were a paratrooper, injured your knee during a jump, and had no previous history of knee pain before entering the military. However, after the jump your military medical records documented time at sick call, surgeries, physical therapy, etc. These medical records are solid evidence that your injury was service connected.

Use the Power of Narrative

Do not forget the power of narrative. Storytelling is essential to the human experience. Write your VA injury statements in a way that tells a story. For example, “I was training for the Army 10 miler team in Germany and running significant miles each week. After the race, I suffered from runners’ knee in my right knee for several weeks and went to sick call.” This short narrative paints a picture of what happened and will help the VA examiner visualize the humanity in what occurred.

Recognize the Role of the Claims Examiner

Another important doctrine when preparing for military operations is to think like the enemy. This is so central to army doctrine that one of the primary staff positions is intelligence, where the primary focus during the planning cycle is to help the commanders and staffs understand the tactics, capabilities, and vulnerabilities of the enemy forces.

An understanding of what the VA examiners do is of similar value. VA examiners look at hundreds of applications each week. They see some that are poorly worded or illogical. They can be overwhelmed with their caseload. Many of them are patriotic, hard working Americans that take their role very seriously. Most of them do not have a significant science or medical background. Thus, if your disability is unusual, you will want to ensure you frame your medical evidence in a way that you think a layperson will understand.   

Use Overwhelming Firepower And Present Multiple Sources to Support Each Claim

Overwhelming firepower is a key component of many military operations. In the field artillery, we focus on massing indirect fire at critical points to destroy, neutralize, or suppress the enemy. The most effective modern military attacks include direct fire, indirect fire, close air support, naval gunfire, and whatever other weapons are available.

You can use a similar strategy to ensure that your evidence supports your disability claim. For example, suppose you are claiming PTSD. You should gather medical evidence from a treating physician to prove you have been injured and the extent to which that injury impacts your life. You could support this medical evidence with affidavits of knowledge from family or coworkers that testify to their observations of the impact your PTSD has on you. You can further support your claim by having your treating physician fill out a VA survey regarding your PTSD. Now, instead of a single piece of evidence regarding your disability claim, you have five data sources that all show  you should be given a high disability rating percentage.

In Conclusion:  The Road to Success

Keep these “5 Best Ways to Present Persuasive Disability Evidence” in mind as you work with the VA claims process, and you will give yourself the best chance of success. If you feel you are in beyond your depth and need some help, reach out! There are many organizations that volunteer to help veterans with VA cases.

Military Law Attorney Paul E. Tennison has over fourteen years of military experience, including time spent as a commissioned officer in Korea, Germany, and Poland. Paul understands the struggles that service members and veterans face when dealing with the VA. He has been personally involved in many cases where the VA ignored relevant evidence at the regional office level, and those are issues that Paul focuses on in VA appeals where he provides significant value to veterans. If you have been dealing with a difficult VA case, contact Paul at Cole Law Group in Nashville 615-490-6020 to learn how he can help you.

I was unaware of the traditions of military challenge coins until I arrived at West Point. As a cadet at the United States Military Academy, I often interacted with Army officers and senior non-commissioned officers who had on their desk or in their office a large collection of military challenge coins. I would sometimes recognize the unit insignia of a well known Army unit or a combat operation or training center that was displayed on a specific coin.

I distinctly remember the first time I was personally awarded a military challenge coin. As a cadet, I volunteered to be on the Color Guard during my sophomore year. As part of my Color Guard duties that year, I often carried general officer flags during parades. One day, as I was performing that duty for the Commandant of Cadets, Brigadier General Robert L. Caslen, the General surprised me by shaking my hand and thanking me for doing an excellent job in performing my duties. He presented me with a coin bearing one star and the West Point insignia that to this day is the military challenge coin of the highest rank that I have been awarded.

I received three more coins while at West Point. Two were awarded during my cadet troop leadership training experience at Fort Hood, Texas, with the Regulator Battery with the 3rd Squadron, 3rd Armored Cavalry Unit, while the last one was granted following a three week internship with the US Army Research, Development, and Engineering Command in Orlando, Florida.

I received five coins during my 2.5 years with the 2nd Infantry Division at Camp Casey and Hovey Korea. Four of those coins were awarded during my time as a company fire support officer at the First Tank Battalion, 1-72AR. The fifth was granted during my service as a fire direction officer, platoon leader, or personnel officer for the first battalion fifteenth field artillery regiment “First to Fire!” During my 1.5 years in Vilseck, Germany with the 2nd Cavalry regiment, I did not receive any coins.

During my time with the Tennessee Army National Guard from 2015 until the present, I added seven coins to my collection. I was awarded the coin of the 278th ACR by COL H. Warner Holt, II in 2016. COL Holt told me on numerous occasions that he was glad to have me as a part of the unit and helped me feel welcome in the TNARNG. I enjoyed working with COL Holt during his time in command. I was awarded the Regimental Fires Squadron coin by LTC John King in a ceremony where I was recognized as the Squadron Officer of Annual Training at Fort Hood, TX in 2017. Several of my Soldiers later told me that was the only time they remember someone assigned as the logistics officer (S-4) to have been recognized by the Squadron leadership for outstanding performance.

Before my deployment to Poland I was at Fort Bliss, TX, for mobilization. While there, I was able to catch up with my friend LTC Brad Fausnaugh. Brad and I had served together in Germany with the Field Artillery Squadron of the 2nd Cavalry Regiment. Brad told me he wished me the best of luck on my upcoming deployment and presented me with the coin of the 2-3 Field Artillery. While in Poland I received a coin from the Romanian Blue Scorpion Air Defense unit and a coin for Operation Atlantic Resolve that shows where US Military bases in Poland were in 2019.

The coin that I am most proud of bears my name and that of my teammate, 1SG Dustin Dunn. During our Poland deployment, 1SG Dunn and I decided to purchase coins to commemorate the deployment for our Battery. We picked a design that turned out to be an excellent symbolism of our deployment, and the significance of the coin is very meaningful to me. On the front appears the crossed cannons of the field artillery with a red background, as red is the traditional branch color of the Field Artillery. The Bulldog at the center of the coin is the Battery mascot. The script on the front states BRAVO BATTERY TF2 eFP POLAND and the Field Artillery motto, KING OF BATTLE. On the backside of the coin, the Battle Group Poland logo is featured which includes a map of Poland overlayed with the flags of our four allied nations that worked together in the Battle Group: Croatia, Romania, the United Kingdom, and the United States. During a ceremony in January 2020, we awarded these coins to each Soldier in the Battery in recognition of their contribution to the success of the BULLDOG Battery mission in Poland.

The final challenge coin in my current collection was received on September 12, 2020. LTC John King awarded me with the Regimental Fires Squadron coin as he thanked me for my leadership of the Bulldog Battery over the past thirteen months. September 12 marked the successful completion of my second command of a field artillery battery in the Tennessee Army National Guard. I will forever be proud of the fact that I commanded 105 Soldiers in a forwarded deployed training mission and brought every Soldier back home safely to Tennessee.

After 10 years of service in the Army, I can look at each of my sixteen coins and be reminded of my experience in the Army. Examining them helps me remember and reflect on my time as an Army officer. Being introspective I can examine what I learned from each of these experiences, whether it be perseverance through adversity or the ability to learn from mistakes. Overall, I am quite thankful that I have been able to travel and grow as a leader in the Army. Being stationed in Korea, Germany, and Poland has greatly affected my world view and helped broaden my perspectives. Having successfully finished my time as a company grade officer, I look forward to future challenges and giving my best effort to each mission for which I am assigned. Perhaps I will continue to add to my military coin collection during the remainder of my service in the Tennessee Army National Guard.

Note:  Robert L. Caslen Jr. would later command the 25th Infantry Division and was promoted to LTG as the Superintendent of West Point. Caslen retired from the Army in 2018.  On July 19, 2019, Caslen was selected as President of the University of South Carolina, a position he currently holds.

The US Military’s Reserve Officers’ Training Corps is a system through which many college students can pursue an undergraduate education while conducting military training that prepares them for a period of service as a commissioned military officer. According to the US Army, “The overall mission of the Army ROTC Program is to produce commissioned officers in the quality, quantity, and academic disciplines necessary to meet active Army and reserve component requirements.”¹ Army ROTC includes a chain of command starting with a Commanding General and going down through a Battalion Commander and Professor of Military Science (PMS) to individual cadets.

Enrollment in ROTC is voluntary. Some students will take ROTC classes because it interests them, yet have no obligation to continue military service. Other students, such as ROTC scholarship recipients, will be required to sign a contract at the commencement of their scholarship. The goal of many ROTC cadets is to graduate from their respective colleges and secure a commission as an officer in the US Military at approximately the time of their college graduation.

Can I Disenroll From the Army ROTC?

The US Army lists 16 different reasons a cadet may be disenrolled from ROTC. A scholarship or a non-scholarship cadet may be dismissed for one of the following:

• To receive an appointment or enter into an officer training program other than ROTC
• To receive training under an Army Medical Department program
• At cadet’s own request
• Withdrawal or dismissal from the attending academic institution
• Medical disqualification
• Failure to maintain required GPA
• Personal hardship
• Height/weight or physical fitness test failures
• For being an approved conscientious objector
• Dismissal from advanced camp training
• Positive drug urinalysis or alcohol abuse
• Misconduct
• Inaptitude for military service
• Undesirable character
• Indifferent attitude
• Breach of contract.

CC Pam 145-4, PMS Guide for Enrollment, Retention, and Disenrollment is a good reference to better understand why cadets should or should not be disenrolled. That regulation describes what actions ROTC Battalion Commanders and PMS should take when disenrollment is required, including information on how to notify cadets and appoint a board of officers when necessary.²

Can I Appeal A Dismissal From the Army ROTC?

The US Army gives cadets the right to appeal their dismissal to a panel of officers.³ Importantly, each cadet has a right to appear personally before the board or officer when considered for disenrollment. A cadet may be assisted in this hearing by any “reasonably available military officer” or by a civilian attorney at the cadet’s expense. The Army limits an attorney’s representation in such an appeal by stating: “The counsel may not represent the cadet at the hearing, although counsel may be available to give advice.”⁴ The purpose of the board is to allow the cadet to present his or her case and allow the officer or panel of officers to recommend an outcome to the Commanding General of US Army ROTC Cadet Command (ROTCCC) for a final decision.

What Is the Appeal Process for An Army ROTC Disenrollment Decision?

The appeal strategy will differ based on the reason for the disenrollment cited by the Army. For example, if disenrolled for a height/weight or physical fitness test failure, the cadet should read the Army Regulation that specifies the Army’s Weight Control Program and Physical Fitness Test requirements. The regulations specify what actions are required to remediate failures. Thus, a cadet that fails one of those only one time, should not be subject to dismissal. Some Professors of Military Science who are good at their job will only dismiss ROTC cadets that clearly failed to comply with Army regulations. Others may be a bit trigger happy on the dismissal decision and not follow the requirements of all applicable regulations. Pointing out that the Army has failed to follow the appropriate regulations in the specific case of the cadet at issue is a successful appeal strategy in many cases.

An appeal will proceed like a court hearing, except a cadet may not have an attorney advocate on his/her behalf. Most cadets should prepare an opening statement arguing why the Army’s decision to dismiss is erroneous. A cadet may then call favorable witnesses to testify on his/her behalf. After the witnesses testify, the cadet should use a closing argument to discuss why the evidence presented shows that the Army’s decision to dismiss is erroneous.

After the hearing, the Officer or panel of Officers presiding will write a memorandum of record to the Cadet Command with a recommendation. This recommendation will next be forwarded to the Cadet’s PMS for a recommendation. Ultimately, the Commanding General of ROTCCC or his designee will make a final decision on whether the Cadet is disenrolled. The Commanding General’s decision is final. There are no further rights to an appeal.

What Are the Potential Outcomes of An Army ROTC Disenrollment Appeal?

Army scholarship ROTC cadets may have a huge amount at stake during appeals. Disenrollment may mean owing the Army all scholarship payments here-to-fore received, which could be hundreds of thousands of dollars. Additionally, disenrolled scholarship students may be involuntarily ordered to active duty within 60 days after they have or would have completed their baccalaureate degree requirements. A successful disenrollment appeal will result in continued cadet status and the potential to commission as an Active Army, Army Reserve, or Army National Guard Officer.

Summary

A military law attorney can be of value to you in a potential ROTC dismissal appeal. Nashville Attorney Paul Tennison has served our country for over a decade as an active duty Army and Army National Guard officer. Paul has successfully represented Tennessee service members in numerous military law matters, including ROTC dismissal appeals. If you need an experienced attorney to advocate for you, call Cole Law today at 615-490-6020 to explore how Paul Tennison can help you navigate, litigate, and/or resolve your military law matter.

References

Army Regulation 145-1

US Army Cadet Command Regulation 145-1

US Army Cadet Command Regulation 145-9

CC Pam 145-4, PMS Guide for Enrollment, Retention, and Disenrollment

_______________________________

¹ Army Regulation 145-1 paragraph 1-5.

² CC PAM 145-4 paragraph 6-2.

³ AR 145-1 paragraph 3-43(b).

⁴ Id.

A military discharge upgrade can be an important step in the life of a veteran who believes that he or she received a lower discharge than what was deserved. Various federal and state benefits are available only to veterans who were discharged at an acceptable level. The best discharge is an Honorable discharge, which should enable the veteran to access all benefits. General Discharge Under Honorable Conditions is the second highest level. Other Than Honorable Conditions Discharge is the third level, while a Bad Conduct Discharge is the fourth. Dishonorable is the lowest level of discharge and is reserved for those convicted of serious crimes while in the military. Veterans who receive a Dishonorable Discharge forfeit all benefits, cannot lawfully possess a firearm, and forfeit their right to vote. For more information about types of military discharges, you should refer to this article.¹

Fortunately, U.S. federal law allows veterans to request a higher-level discharge through one of two record-correction boards. Within 15 years of discharge, veterans may apply to a Discharge Review Board (DRB) using form DD-293. Importantly, DRBs may not make a discharge worse nor can they overturn a court-martial decision. If a discharge occurred more than 15 years ago, a veteran can apply to the Board for Correction of Military Records (BCMR). Veterans should apply to the BCMR within 3 years of discovering the error or injustice they are asking the board to fix using form DD-149. BCMRs also cannot make a discharge worse or override a court-martial conviction.

What Evidence Must I Include In a Discharge Upgrade Request?

If you are a veteran who wants to upgrade your military discharge, you must first determine which board to apply to. Then you need to request your military records. One way to request this information is through filling out form SF180.²  You may also use DD Form 2870 to request medical and dental records. VA form 10-5345 and 10-5345a allow disclosure of medical or dental records kept by the VA.

If you believe that your discharge may be related to PTSD or TBI, you should include additional information with your discharge upgrade application to make it stronger. The “Hagel Memorandum” in 2014 created supplemental guidance about discharge upgrade requests related to PTSD.³ You should include a medical diagnosis or evaluation from a medical professional. You should also gather additional evidence that documents your mental health issues, such as other medical records, police records, or letters from friends or family about how they have observed firsthand your struggles with symptoms of TBI or PTSD.

In your application you will need a narrative to support your request. To make this narrative persuasive, you should draft it in the language used by the record-correction boards. The DRBs review whether or not a discharge was proper and equitable. The board assumes the discharge was proper unless the military made an error of fact, law, procedure, or discretion in deciding your discharge, which might create substantial doubt that you would have been awarded the same level of discharge if that error had not been made. A discharge is also seen as improper if there has subsequently been a change in policy (i.e. the repeal of don’t ask, don’t tell) that requires a different discharge. The BCMRs can act to correct an error or remove an injustice. Thus, you should explain any errors made during your discharge process and why the outcome would have been more favorable had the errors not occurred. Injustice may include a major change in relevant legal policy.

You should include several (five or more is a good rule of thumb) character reference letters from family, friends, co-workers, those you served with in the military, teachers, classmates, spiritual leaders, or anyone else who can support your story of good conduct while in the military and/or in your civilian community after your discharge. These character reference letters should be personalized by each letter writer. I suggest that you generate a draft letter for each person you ask to write a letter of recommendation. Include a note that you would like them to personalize the letter, and that you are just providing a draft letter as a framework to help them get started. It is important that these letters show evidence of your good conduct, such as good performance reviews, participation in community and charity work, awards, achievements, and your educational advancements. The letters should also include any firsthand knowledge of applicable errors or injustices in your record. The strongest letters are those that portray you in a positive light, include information regarding a long personal relationship with you the applicant, and are persuasively written to convince the board that your discharge should be upgraded.

Once you have gathered all the pertinent evidence to support your application, you should mail it to the appropriate DRB or BCMR for your branch of service. You can find the current website for each branch here.⁴ These pages will include the correct mailing address where the application may be sent.

How Can A Military Law Attorney Help With My Discharge Upgrade?

Navigating the discharge review process is complicated and is often best done with the help of legal assistance.  A military law attorney can help you understand what rules apply, brainstorm your best arguments, help you compile all relevant supporting documents, work with you to draft a compelling narrative statement, help draft character reference letters, and be your supportive ally.

If you are a veteran who would like to apply for a discharge upgrade, call us today at (615) 490-6020 and speak with Nashville Military Law Attorney Paul Tennison about your case.

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¹ https://va.org/forms-of-military-discharge

² See https://www.usa.gov/military-records for options on how to request your military records.

³ https://dod.defense.gov/News/Article/Article/603172/hagel-issues-guidance-for-veterans-discharge-upgrade-requests; https://archive.defense.gov/news/osd009883-14.pdf

⁴ Army: https://arba.army.pentagon.mil/adrb-faq.html; Navy (includes Marine Corps): https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx ; Air Force https://www.afpc.af.mil/Separation/Discharge-Review-Board; Coast Guard: https://www.uscg.mil/Resources/legal/DRB