What Is a Military Letter of Reprimand?

A military letter of reprimand (LOR) is an administrative censure given to a servicemember for alleged failure to comply with military rules or regulations. A letter of reprimand is a serious matter, and servicemembers subject to receiving one should carefully consider their options. A letter of reprimand is important because this letter might stay in a servicemember’s file and impact the ability of that servicemember to be promoted, selected for new training and assignments, or lead to administrative discharge in some circumstances.  Any servicemember that is committed to the military as a career could find an LOR in their record to be seriously problematic.

Letters of reprimand are often issued by General Officers and may sometimes be referred to by the acronym ‘GOMOR’ for General Officer Memorandum of Reprimand.

Service Regulations

In the Army, letters of reprimand are governed by Army Regulation 600-37. In the Air Force, letters of reprimand are governed by AFI 36-2907. The Navy and Marine Corps use nonpunitive letters of concern and letters of instruction. More information regarding these may be found in the Rules for Courts Martial (R.C.M. 306) and JAGMAN (Chapter 1).

The Army GOMOR Process

For this article, I will use the Army structure to describe the LOR process. The same principles generally apply across each branch of service, even though the details of how each service implements them does vary. Therefore, a savvy servicemember dealing with a letter of reprimand should carefully read the letter, review the service regulation that governs the letter, and consult with an experienced military law attorney.

According to AR 600-37, a letter of reprimand may be filed locally or filed in the performance portion of the soldier’s permanent Army Military Human Resource Record. If the reprimand is filed locally, it will remain for up to three years or until the soldier is reassigned to a new command, whichever occurs sooner.

Upon receiving an LOR, the first step is for the soldier to carefully read the letter. The letter will state the deadline for the soldier to respond, which is often 7-10 days from receipt. The soldier’s response is critical, because the Commander that issued the letter can still decide at this point not to file the letter or place the letter in the local file.

The soldier’s statement should address the underlying facts and argue for a particular filing determination. If the letter is permanently filed, the soldier’s statement will be included.

LOR Response Strategies

The primary strategies for a soldier’s response are to deny the allegations, explain in a different way what happened, or mitigate the concerns in the LOR.

• Deny the allegations. Denying the allegations shows that the allegations are factually not true. This may include witness statements and other documentary proof such as emails, text messages, photographs, etc.
• Explain in a different way what happened. Here the soldier is not admitting to the conduct as characterized, but also not denying there is any validity to what occurred. This may include supporting evidence as well.
• Mitigate concerns in the LOR. This entails the soldier admitting to having violated a rule, regulation, or order, apologizing for the violation, and asking for a second chance. It would be wise for the soldier to include acceptance of resulting punishment and indicate that the soldier has already begun remedial measures to address the issue.

In all those strategies, the soldier should consider including favorable information, such as copies of good evaluation ratings, sworn letters attesting to the character and performance of the soldier, and awards previously received.

When drafting a response to an LOR, the soldier should write the statement in memorandum format. It would be wise to work with a team to edit and refine the statement prior to submitting.

After an LOR has been filed-Appeal Options

There is no formal process to seek removal of an LOR from the local file. However, a soldier may request removal by the Commander that issued it with an appeal in memorandum format through the chain of command.

If an LOR has been permanently filed, a soldier may seek removal to the restricted portion of the OMPF through the procedures described in AR 600-37. Unfortunately, for a soldier considering an appeal, this is not easy to accomplish. Once an LOR has been permanently filed, the Army presumes it is administratively correct. The soldier is required to prove by clear and convincing evidence that the allegations are untrue or unjust thereby warranting removal.

Conclusion

If you are a servicemember dealing with a letter of reprimand, I encourage you to leverage the information provided in this article and reach out to a Nashville military law attorney to explore your best strategy today. Our team of military law attorneys at Cole Law Group are ready to assist. Contact us at 615-490-6020.

Grayson v. Grayson Tennessee Court of Appeals

A recent Tennessee Court of Appeals case spent significant time analyzing and discussing United States Department of Defense Financial Management Regulations regarding military retirement benefits in divorce. Grayson v. Grayson, No. E2020-01339-COA-R3-CV, 2021 Tenn. App. LEXIS 354 (Ct. App. Sep. 3, 2021).

Grayson v. Grayson Facts

In the original Grayson divorce, the husband was in the military, and not yet retired at the time husband and wife divorced in 2011. Husband later retired in 2018 and wife was unable to receive any of the retirement funds which she believed she was entitled to due to the “deficient award language contained in the 2011 order.” Grayson, *1.  The Defense Finance and Accounting Service (“DFAS”) sent wife a letter letting her know that the 2011 order failed to provide DFAS a method they could use to calculate the retirement pay distributed to wife. After receipt of that letter, Wife went back to the trial court and attempted to solve the problem by having the court issue a new Military Retired Pay Division Order. The Husband appealed.

Appeal Outcome

The Court of Appeals vacated the trial court’s orders and remanded the case to the trial court, further directed the court to incorporate language compliant with DoD regulations with sufficient findings of fact and conclusions of law to enter a formula award or hypothetical retired pay award. On Appeal Husband argued the trial court lacked jurisdiction to modify the July 21, 2011 Order years later. The Court of Appeals dispensed with this argument as Tennessee Rule of Civil Procedure 60.01 allows for the correction of an error of wording in court Orders and is not time limited. The Court of Appeals reasoned that the trial court’s intention was to correct errors in the previous order language in accordance with what is authorized in Rule 60.01. Husband further argued the trial court’s order ambiguous as DFAS could read it to determine that wife is awarded 50% of his retirement pay instead of 50% of his retirement as of the date of divorce as the trial court intended. The Court of Appeals agreed with this argument and remanded the trial court’s order with further instructions for the trial court to make findings of fact, conclusions of law, and follow the correct DoD Regulation guidance.

Discussion of DoD Regulations

The most important part of the Court’s ruling for those interested in military and family law issues in Tennessee is the section that discusses DoD Regulations.¹ (pages 20-27) As the Court of Appeals explains, the relevant DoD Regulations “provide that trial courts may ensure that a former spouse is awarded a portion of the military member’s retirement pay without benefiting from the military member’s post-divorce promotions and acquisition of years of creditable service by either expressing the retired pay award as a formula award or a hypothetical retired pay award.” Grayson, *22.

A formula award computes the former spouse’s property interest in the member’s military retired pay as a multiplication of the percentage of the former spouse’s share provided by the court order multiplied by the length of the parties’ marriage during the member’s creditable service as the numerator and the member’s total creditable service toward retirement as the denominator. An example formula award provided by DFAS shows that where the former spouse was awarded 50% of the member’s military retired pay and the couple was married for 144 months during the member’s military service and the member later retired with 240 months of service, DFAS would multiple 144/240 x .5. 144/240 =.6. .6 x .5 = .3. In this example, the former spouse would be awarded 30% of the member’s retirement benefits.

A hypothetical award calculates the award “as though the member had retired at the time of the court order dividing military retired pay or some other date prior to the member’s actual retirement.”² For a hypothetical award, the trial court must provide (1) the percentage the former spouse is awarded, (2) the hypothetical years of creditable service, (3) the hypothetical retired pay base (high-3), and (4) the hypothetical retirement date. DFAS provides an example way Court’s should format this as: “The former spouse is awarded     percent of the disposable military retired pay the member would have received had the member retired with a retired pay base (high-3) of     and with     years of creditable service on    .”³ DoD provides this example:

The court order awarded the former spouse 50 percent of the disposable retired pay the member would have received had the member retired with 17 years of creditable service, a retired pay base of $2,200.00 per month, and a hypothetical retirement date of June 1, 1999. The member actually retired on June 1, 2002, with 20 years of creditable service, a retired pay base of $2,400.00 per month, and an initial gross retired pay of $1,200.00 per month (2.5% x 20 years = 50%; 50% x $2,400.00 = $1,200.00). First, the designated agent will calculate the member’s hypothetical retired pay multiplier, which in this example is 42.5 percent (2.5% x 17 years = 42.5%). Next, the designated agent will calculate the hypothetical retired pay amount, which in this example is $935.00 per month (42.5% x $2,200.00 = $935.00).⁴

DoD Financial Management Regulation 7000.14-R provides further relevant examples such as an example court order language for a retired member, active duty formula, and reservist formulas in Figure 29-1.

If you need help ensuring that your military retirement benefits are properly distributed to you in a divorce in Tennessee or are being properly paid after a Tennessee divorce, call Cole Law Military Attorney Paul Tennison at 615-490-6020 for a consultation regarding your potential military divorce case.

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¹See Dep’t of Def. Fin. Mgmt. Reg., DoD 7000.14-R, Vol. 7B, Ch. 29 (June 2021).

² Id. 290608.

³ Id. Figure 29-1.

⁴ Id. 290608.

VA disability law can be daunting for many eligible veterans who want to submit a VA disability claim or wish to appeal a negative disability determination. One of the main concepts that is difficult for service members to understand is which injuries or illnesses VA disability will cover. The answer is “only those disabilities that the applicant can prove are service connected.”¹

What Is Considered a Service Connected Injury?

During my experience representing disabled veterans, it has become apparent to me that many VA disability claims are denied because the VA has determined the injury or illness is not service connected. Service connected means “an injury or illness that was incurred or aggravated during active military service.”² In VA decision letters language similar to the following is often used:

To establish direct service connection for a claimed injury or illness, objective evidence must show a diagnosis of a current disability that is related to a disease or injury incurred in or aggravated during active service; or that manifested itself to a compensable degree within one year from the date of discharge.³ The VA examiner will determine that a claimed injury or illness is service connected if the examiner opines that the disability is at least as likely as not (50% probability or greater) caused by or a result of active military service.

Hypothetical Example

The following hypothetical scenario may be helpful to illustrate the true significance of the term service connected injury. Let’s say that Veteran Smith served eight years on active duty in the army. Smith had a history of seeing military doctors occasionally for various minor injuries and illnesses. One day, Smith damaged his right knee while executing a parachute jump during his service. Upon leaving the military, his right knee became much worse.  He is now required to wear a knee brace on occasion and has stopped running due to pain in his right knee.

Smith also has other injuries or illnesses that could be the result of military service. When he left the Army, Smith considered himself healthy so he did not apply for VA disability. However, recently Smith’s injuries have made performing his job much more difficult, and he is not sure he can continue working in his current physical condition. Smith’s additional health problems include difficulty sleeping, lower back pain, and ringing in his ears (tinnitus). He is considering applying for VA benefits yet is unsure which benefits may be service connected.

As a first principle, Smith should apply for VA disability for all current injuries or illnesses that he believes could be related to military service. Under this hypothetical, Smith can apply for disability based on four conditions: right knee pain, sleep difficulty, lower back pain, and tinnitus. After applying for VA disability benefits, Smith will be scheduled for examination by a VA doctor in order to confirm current diagnoses. It is the VA examiner’s duty to determine which are service connected.

Smith’s right knee pain should be found as service connected based upon the fact that he was injured in the parachute jump and military medical records should support that claim. Regarding sleep disfunction, the VA would likely want Smith to engage in a sleep study to confirm that this is currently an issue. Based upon our hypothetical, it is questionable whether Smith’s lower back pain is related to military service. Parachute jumping is obviously a dangerous activity which may cause many problems such as lower back pain. However, is there evidence that Smith suffered any lower back pain during his time on active duty? There will likely be sufficient evidence to support tinnitus as service connected if Smith was exposed to loud noise as a result of his military service. Most military service members are exposed to loud noise during their time in service and recent litigation has highlighted the problem. ⁴

How Can I support My Claim for a Service Connected Disability?

The best support for a service connection disability is a record of treatment while on active duty for an issue related to the claimed injury or illness. In Smith’s case, that is the service connection of the parachute accident in which he injured his right knee. The most difficult claim for him to establish as service connected in the above scenario would be his difficulty in sleeping, especially if he was never seen by a military medical provider for that complaint during his time on active duty and can produce no military medical documentation as evidence. Veterans may also use affidavits of knowledge provided by someone that has direct knowledge of the veteran’s medical issues based on serving or interacting together to provide lay evidence of current injury or illness or the first occurrence of the injury or illness.

Can I Apply for Service Connected Disability Benefits After I Am Discharged?

Earlier in this article I referred to language that is typical in a VA decision letter. It is pertinent to note that the VA requires objective evidence that shows a current disability is related to a disease or injury that occurred during or was aggravated by active service  or that presented itself within one year from the date of discharge. Thus, military service members who are nearing the completion of their time in service should strongly consider a full medical examination within one year of the completion of their service. If this examination shows a current injury or illness that is connected to military service, such a diagnosis may provide support for the applicant to apply for VA disability. Veterans may apply for VA disability at any time. There is no statute of limitations for VA disability. Additionally, veterans that are denied disability claims may reopen the denied claim by submitting new and material evidence to the VA. ⁵

If you need help in filing a service connected disability claim or want to appeal a negative disability determination, call Cole Law Military Attorney Paul Tennison at 615-490-6020 for a consultation regarding your potential VA disability case. ____________________________

¹ See https://www.va.gov/opa/publications/benefits_book/benefits_chap02.asp

² Id.

³ See 38 CFR §§ 3.303, 3.304, 3.400.

⁴ See https://taskandpurpose.com/news/3m-earplug-defective

⁵ 38 CFR § 3.156 – New evidence.

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.

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