Administrative Responses, Rebuttals and Appeals

The Law Office of Will M. Helixon, with offices in Vilseck, Germany, and in Wiesbaden, Germany, have years of experience advising Soldiers on how to refute allegations alleged in Adverse Administrative Actions, including submitting rebuttals, responses, and appeals. Refuting allegations of misconduct by written a memorandum or brief with attachments including evidence, statements, and character letters, is the primary means to get one’s argument to the action authority.  This is especially true in the forums where the Soldier is not afforded the opportunity to present their case “in person” unlike an administrative board.  Adverse administrative actions describe those legal procedures and documents that initiate the following events: administrative responses, rebuttals, and appeals; administrative investigations; affirmative adverse administrative actions on behalf of Soldiers; centralized administrative boards; local administrative boards; and selection (promotion) and retirement boards.  These adverse administrative actions cover a wide range of topics, and covers virtually all military legal actions outside of courts-martial and some military justice matters, and include military justice, administrative law, civilian misconduct, legal assistance, and labor/employment law matters.  These matters requiring the Soldier to file rebuttals, responses, and appeals, are normally initiated by commanders at all levels: company, battalion, brigade, garrison, division, and include all of the convening authorities — Summary Court-Martial Convening Authority (SCMCA), Special Court-Martial Convening Authority (SPCMCA), and the General Court-Martial Convening Authority (GCMCA).

If you are facing an Adverse Administrative Action that requires the filing of a written rebuttal, response, and appeal, you should seek the advice of a military lawyer with a long history of assisting Soldiers draft such documents.

The military lawyers at the Law Office of Will M. Helixon have decades of real-word experience, both advising commanders who issued Adverse Administrative Actions, and Soldiers rebutting these actions with a well-reasoned, persuasive, and compelling response, rebuttal, and appeal. Our military lawyers routinely help Soldiers with such matters and look forward to assisting you to defend your rights, protect your reputation, and maintain your service in the U.S. military.

 

 

What Adverse Administrative Actions Require a Response, Rebuttal and Appeal?

Virtually all Adverse Administrative Actions short of a locally or centrally convened board afford Soldier the opportunity to reply with a written response, rebuttal, and appeal.  A partial list of the actions that require a written response, rebuttal, and appeal by the Soldier include the following: involuntary administrative separations or “chapter actions” for Soldiers with less than six (6) years of military service and not facing an “Other than Honorable” discharge; “findings of adverse information” resulting from command directed investigations into the Army Adverse Information Program (AAIP) database; rebuttals to bars to installation access (U.S. military bases) by otherwise authorized civilian personnel in Germany; appeals of CID titling decisions and entry into criminal records databases maintained by the U.S. Army and Department of Defense; hearings before the Defense Office of Hearings and Appeals (DOHA) appealing the revocation of a Soldier’s security clearance; Disability Evaluation System (DES) appeals, including Medical Evaluation Boards (MEBs) and Physical Evaluation Boards (PEBs); rebuttals and appeals of referred evaluations (OERs and NCOERs) including subpar ratings and relief for cause (RFC) evaluations; General Officer Memorandum of Reprimand (GOMOR) rebuttals; labor and employment adverse administrative actions including demotions, suspensions, and terminations of employment of civilian personnel; nonjudicial punishment hearings, also known as “second readings,” where Soldiers deny misconduct and are authorized a spokesperson (military lawyer) in a hearing before their commander; nonjudicial punishment appeals to “higher headquarters” after findings of guilt at an Article 15 hearing; rebuttals to the Qualitative Management Program (QMP) decisions to separate NCOs without an in-person board known as “QMP Boards” (paper proceeding only); responses to Letters of Intent (LOI) to revoke and Statement of Reasons (SOR) for revocation in security clearance revocation proceedings; and the appeal of Letters of Revocation (LOR) revoking a Soldier’s security clearance.  The military lawyers at the Law Office of Will M. Helixon have a wealth of experience representing Soldiers facing these and other Adverse Administrative Actions.  When your continued service is on the line, trust our military lawyers to do everything in their power to protect your interests and fearlessly advocate on your behalf.

 

 

What are Involuntary Administrative Separations or “Chapter Actions” that require a Response, Rebuttal and Appeal?

If a service member served less than 6 years on Active Duty, they are not entitled to an Administrative Separation Board if the characterization of service is Honorable or General under Honorable Conditions.  These administrative separations utilize the “Notification Procedure.”  The Notification Procedure does not require an Administrative Separation Board hearing, but rather accomplishes the involuntary separation of the service member with a “paper drill” only.  Basically, these Adverse Administrative Actions are the way the Army “fires” a Soldier, and separates them involuntarily from continued military service.  Service members are entitled to submit a written response, rebuttal, and appeal to this “Notification Procedure” involuntary separation for submission to the separation approval authority, usually the brigade-level commander, before any separation action is taken.

 

 

What is the Army Adverse Information Program (AIPP) Requiring a Response, Rebuttal, and Appeal?

The Army Adverse Information Program (AAIP) is the repository or database for findings of adverse information relating to officers in the grade of O1 and higher resulting from command directed administrative investigations conducted pursuant to Army Regulation (AR) 15–6 (Procedures for Administrative Investigations and Boards of Officers) (1 April 2016) and DA Instruction 2023-03 (Army Adverse Information Program) (22 February 2023).

In the case of a command directed investigation or board that contains findings of adverse information regarding officers in the grade of O1 or higher, the approval authority will keep the original and a digital copy of the final report of proceedings, and the redacted version as provided to the officer for a period of 10 years.

In addition, the approval authority will comply with specific filing requirements set forth in other regulations or directives, to include requirements to synopsize and upload portions of the investigations into a centralized database (AAIP). Soldiers will be provided the opportunity to review the materials filed in the AAIP database, and reply in writing with a response, rebuttal, and appeal regarding the matters contained in the database. This information is routinely provided to Army Selection (promotion) Boards.

 

 

What is the Army Personnel Security Appeals Board (PSAB) requiring a Response, Rebuttal, and Appeal?

The Army Personnel Security Appeals Board (PSAB) is a centralized authority responsible for reviewing the adjudicative file of Soldiers whose security clearances have been revoked by an adjudicative agency for various reasons. As the final arbiter, the PSAB evaluates the revocation of security clearances for Soldiers. Upon receiving notice of a clearance revocation, Soldiers have the opportunity to challenge the decision by submitting a written response, rebuttal, and appeal to the PSAB. The PSAB carefully examines all the submitted materials and issues a final decision regarding the status of the security clearance revocation.

Alternatively, Soldiers may opt to request an appeals hearing before the Defense Office of Hearings and Appeals (DOHA), with the ultimate decision being forwarded to the PSAB for approval. If the Army PSAB concurs with the administrative judge’s written recommendation, the DoD Component PSAB may adopt the judge’s recommendation instead of providing a separate written determination. The individual will be promptly notified of the DoD Component PSAB’s final determination through their security professional. Generally, this notification occurs within 45 calendar days of a direct appeal or 30 calendar days from the receipt of the Administrative Judge’s recommendation. The DoD Component PSAB’s written decision will clearly identify each adjudicative guideline issue mentioned in the Letter of Denial (LOD) or Letter of Revocation (LOR) that remains unresolved following the appeal, along with the rationale behind the final outcome of the appeal process.

What is a Theater-Wide Bar to Military Installations in Germany Requiring a Response, Rebuttal, and Appeal?

A theater-wide bar to military installations in Germany is an action taken by the garrison commander to restrict a civilian from accessing any military installation within the country. Typically, garrison commanders have the authority to control access only to the installations under their direct command. Depending on the seriousness of the offense(s), a civilian may face the loss of various logistical support privileges. These can include the loss of commissary patronage, participation in Family & Morale, Welfare and Recreation programs, driving privileges, ration and fuel card privileges, postal services, and Army & Air Force Exchange Service sales facilities privileges. In cases of particularly egregious violations, individuals may be prohibited from entering one or more military installations or even face return back to the United States. An individual who has been denied access to a military installation in Germany as the result of a bar can submit a response, rebuttal and appeal to the bar and request reconsideration and access to post.

 

 

What is a CID Titling Decision Requiring a Response, Rebuttal, and Appeal?

The term “titling,” as defined by CID, refers to the decision made by an authorized official based on credible information regarding criminal activity. This decision involves adding the names of individuals, corporations, or other legal entities into the subject block of a CID Law Enforcement Report (LER). According to the AR 195-2 glossary (21 August 2020), credible information is information disclosed to or obtained by an investigator that, considering its source, nature, and overall circumstances, is sufficiently believable to indicate the occurrence of criminal activity. Such information would prompt a reasonable investigator, under similar circumstances, to further investigate the case and determine if a criminal act has taken place or may have occurred. It’s important to note that being “titled” simply means a Service Member’s name is included as a subject in a CID investigation. It is an operational decision by CID and not a legal or judicial determination. The act of titling does not imply guilt regarding the offense for which the subject is titled. If a Soldier wishes to object to titling, they have the option to file a response, rebuttal, and appeal through the CID chain of command, ultimately reaching the Board of Correction for Military Records, although the chances of success in such appeals are remote.

Once an individual is titled in a Law Enforcement Report by CID, their information is indexed in various criminal records databases. The initial database for this indexing is the Defense Clearance and Investigations Index (DCII), which occurs when the subject is titled, even before the investigation is completed. The second database where the individual’s information is indexed is the U.S. Army Crimes Records Center (CRC). Once indexed in the CRC database, the criminal records (CID LERs) can be shared with other law enforcement agencies upon request and are also included in the National Crime Information Center (NCIC). Entries in both the DCII and the U.S. Army CRC are retained for a period of forty (40) years. It’s worth noting that other MCIOs (Military Criminal Investigative Organizations) have their own databases of criminal records, which are covered in their respective investigative regulations and instructions.

What is the Integrated Disability Evaluation System (IDES) Requiring a Response, Rebuttal, and Appeal?

The Integrated Disability Evaluation System (IDES) is utilized by the Department of Defense (DOD) to assess the fitness for duty of Service members. If a Service member is determined to be medically unfit, the IDES provides them with a proposed VA disability rating prior to their separation from service. This proposed rating gives the Service member an estimate of the compensation and benefits they may receive from the VA. Throughout the IDES process, dedicated Physical Evaluation Board Liaison Officers (PEBLO) offer guidance to Service members, ensuring they are well-informed about their options and the important decisions they, or their families, need to make. Additionally, VA Military Service Coordinators assist Service members in filing their VA benefits claim before separation, expediting the process of receiving benefits soon after leaving the service.

The initial step in this process involves the referral to a Medical Evaluation Board (MEB). The MEB is designed to determine whether a Service member’s long-term medical condition allows them to meet the required medical retention standards according to military service regulations. It also serves as an opportunity for military physicians to accurately document the care and treatments received prior to the MEB referral, as well as any limitations in duty resulting from the condition.

If the MEB determines that the Service member does not meet the retention standards for their military occupational specialty/classification, they will be referred to a Physical Evaluation Board (PEB). The Service PEBs are administrative boards responsible for assessing whether a Service member’s injury impedes their continued performance in the military. During this stage, the Service member has the opportunity to review and provide comments on the medical and non-medical information presented to the PEB. It is crucial for the Service member to provide comprehensive and accurate information regarding existing medical conditions, particularly if they have received treatment from non-military or civilian care providers, as well as any relevant administrative actions. The PEB determines several factors, including fitness or unfitness for military service, eligibility for disability compensation, disability codes and percentage rating, the disposition of the Service member’s case, and whether the injury or illness is combat-related. Throughout the IDES process, Service members have the right to submit responses, rebuttals, and appeals at various stages to ensure their voice is heard.

What is a Performance Evaluation (OER, NCOER) Requiring a Response, Rebuttal, and Appeal?

A performance evaluation (OER, NCOER) appeal is a formal request made by a Soldier to revise their rating based on errors or injustices found in the evaluation report. If a Soldier strongly believes that their performance and potential were inaccurately or unfairly assessed, or if the report contains administrative errors, they may consider filing an appeal. Furthermore, evaluations that were not prepared in accordance with the applicable Army Regulation (AR 623-3) at the time may also be eligible for appeal.

It is important for Soldiers to understand that simply being dissatisfied with receiving a positive report (even one with entirely favorable comments) because they believe it should be better makes it challenging to successfully challenge the judgment of rating officials. To do so, they would need to present “clear and convincing evidence” demonstrating that they deserve a higher evaluation. Even if successful, the remedy would likely involve removing the portions that were proven inaccurate or unjust, rather than raising the scores or block placements.

When considering what to appeal, Soldiers should evaluate their ability to gather substantial evidence in support of their claim early on. A self-authored statement alone is insufficient as evidence to prove an inaccurate, unjust, or administratively flawed evaluation report. It’s important to remember that the report, as accepted by the Department of the Army, is presumed to be correct until proven otherwise. During the process of challenging a performance evaluation, Soldiers have the opportunity to provide a response, rebuttal, and appeal, presenting their case with supporting evidence.

 

 

What is a General Officer Memorandum of Reprimand (GOMOR) Requiring a Response, Rebuttal, and Appeal?

A General Officer Memorandum of Reprimand (GOMOR) is an official document or letter of reprimand within the United States Army. It is signed by a General Officer and serves to document cases of misconduct or substandard performance by a soldier. Considered a significant administrative action, a GOMOR can have a lasting impact on a Soldier’s military career. Unlike other branches of the military that have their own forms of administrative censures, the GOMOR is unique to the Army. It is essential to understand that a GOMOR itself is not a form of punishment; rather, it is an administrative tool that enables Army leadership to address instances of misconduct or substandard performance promptly and effectively.  Once notified of the GOMOR and the intended filing determination, the Soldier is permitted to submit a response, rebuttal and appeal to the GOMOR, arguing that it should be rescinded or filed in the local file.

What is a Nonjudicial Punishment (Article 15) Hearing or “Second Reading” Requiring a Response, Rebuttal, and Appeal?

Nonjudicial punishment (NJP), also known as “Article 15” in the Uniform Code of Military Justice (UCMJ), is an administrative disciplinary measure utilized in the military for addressing minor offenses committed by military personnel. In the Navy and Coast Guard, it is commonly referred to as “Captain’s Mast,” while in the Marine Corps, it is known as “Office Hours.” Regardless of the specific terminology used within each service, NJP provides commanders with a means to address disciplinary issues without resorting to a full legal process, such as a court-martial. Service members have the right to be represented by a spokesperson during the NJP proceedings, and they also have the option to hire a civilian military lawyer for this role. During the “second reading” of the Article 15, the Soldier is afforded the opportunity to submit relevant matters, including a response and rebuttal to the allegations presented in the packet.

What is a Nonjudicial Punishment (Article 15) Appeal Requiring a Response, Rebuttal, and Appeal?

A service member has the option to appeal Nonjudicial Punishment if they perceive the punishment to be unjust or disproportionate to the offense, as stated in MCM, Part V, paragraph 7a, Uniform Code of Military Justice, Article 15, paragraph (e). The appeal can encompass either the findings, the punishment, or both. It is within the service member’s rights to claim that the punishment is unjust on the grounds of innocence, indicating that the offense was not committed. While stating reasons for the appeal is not mandatory, the service member has the opportunity to do so. For instance, in the Army, the appeal may include one or more of the following points: (1) the service member believes they are not guilty based on the available evidence, (2) the imposed punishment is unduly severe, or (3) a specific punishment should be mitigated or suspended.

 

 

What is the Qualitative Management Program or a QMP Board Requiring a Response, Rebuttal, and Appeal?

The Qualitative Management Program (QMP) is a force management and reduction initiative implemented in the U.S. Army to identify and separate Noncommissioned Officers (NCOs) who do not meet the necessary requirements for continued service. The QMP aims to uphold the standards and values of the NCO corps and the Army ethic. The criteria for separation under the QMP encompass several factors, including: 1) engaging in moral or ethical conduct that contradicts the principles of the NCO corps and the Army; 2) demonstrating an inability to perform NCO duties effectively in their current grade; 3) exhibiting a consistent decline in efficiency and performance over an extended period, as evidenced by NCO evaluation reports or failure to meet requirements in NCOES courses; 4) displaying a pattern of recent or ongoing disciplinary issues, as indicated by conviction in court-martial, nonjudicial punishment, or administrative reprimand (GOMOR); and 5) other factors, such as the imposition of a field commander’s bar to reenlistment, failure to meet physical fitness standards, or non-compliance with the requirements of the Army Body Composition Program (ABCP). Each fiscal year, a MILPER message is disseminated to outline the specific procedures and guidelines for the Qualitative Management Program (QMP) during that period.  Soldiers are permitted to submit a response, rebuttal, and appeal to the QMP before the board meets for consideration during their deliberations.

What is a Letter of Intent (LOI) to Revoke and Statement of Reasons (SOR) for a Security Clearance Revocation Requiring a Response, Rebuttal, and Appeal?

The Letter of Intent (LOI) serves as a formal notification from the adjudication facility (DCSA CAS) informing the Soldier that their security clearance is under review and that there is an intention to revoke it. The LOI to revoke must be accompanied by or include the Statement of Reasons (SOR), which outlines the specific grounds for the proposed revocation of the Soldier’s security clearance. The LOI should encompass the following: (a) a concise summary of the security concerns and supporting adverse information; (b) clear instructions on how to respond to the SOR; (c) a copy of the relevant adjudicative guidelines; and (d) a comprehensive list and description of the information upon which the unfavorable national security eligibility determination is based.

The Statement of Reasons (SOR) for revocation of a security clearance is a document prepared by the adjudication facility (DCSA CAS) that presents the specific justifications for the intent to revoke the Soldier’s security clearance. The SOR must clearly articulate the foundation for the proposed unfavorable national security eligibility determination.

It should strive to be as thorough and detailed as permitted by national security regulations, including Section 552 of Title 5, U.S.C. (FOIA), and DoD 5400.11-R (Privacy Act). The SOR should explain each security concern, provide specific factual details that trigger each concern, identify the corresponding adjudicative guideline(s) applicable to each concern, and outline both disqualifying conditions and mitigating conditions associated with each cited adjudicative guideline. It is crucial for the Soldier to exercise their right and submit a response, rebuttal, and appeal in defense of their security clearance when faced with both the LOI and the SOR.

 

 

What is a Letter of Revocation (LOR) Regarding a Security Clearance Requiring a Response, Rebuttal, and Appeal?

A Letter of Revocation (LOR) serves as official notification to a Soldier that their current security clearance has been revoked by the adjudicative facility (DCSA CAS).

When a favorable determination cannot be reached, DCSA CAS will provide the individual, through the appropriate Component or command security office, with a written LOR. This letter will state the final determination for each adjudicative guideline presented in the statement of reasons (SOR) accompanying the letter of intent (LOI) to revoke the security clearance. The LOR will clearly explain whether each guideline was mitigated or unmitigated, along with the reasons for denying or revoking national security eligibility. Additionally, the LOR will include comprehensive instructions on how to proceed with the appeals process.

DCSA CAS is committed to promptly providing the written LOR to the individual, taking into account individual circumstances. The LOR will be issued within 60 calendar days from the date of receiving the individual’s reply to the SOR and LOI, assuming no further information is required to render the national security eligibility determination. In cases where the individual fails to respond to the SOR and LOI, the LOR will contain all the relevant security concerns, adjudicative guidelines, mitigating factors outlined in the SOR and LOI, as well as the reasons for denying or revoking national security eligibility.

Soldiers who receive an LOR have the opportunity to appeal the unfavorable determination. This can be done in writing before the PSAB or by appearing in person before DOHA, where they can present pertinent witnesses, documents, materials, and information to support their case.

How can the Law Office of Will M. Helixon Assist a Soldier Drafting a Response, Rebuttal, and Appeal to an Adverse Administrative Action?

In most Adverse Administrative Actions, there is always some degree of due process.  Whether it is being provided notice of a board hearing and the right to personal appearance where they can cross-examine witnesses, or whether the Soldier is limited to reviewing the evidence against them and providing a written response, an adverse administrative action will not take place without any notice to the Soldier.

When faced with an action that could result in an involuntary separation, the filing of “bad paper” in one’s official file (AMHRR), or reduction in rank, it is critical that the Soldier seek the sound advice of experienced military lawyers.

At the Law Office of Will M. Helixon we stand ready to apply our years of collective experience in responding to your Adverse Administrative Action to assist you in developing a fact specific and carefully tailored response to your situation.  Knowing how to respond is what we do, day in and day out. If you want an experienced, dedicated, military attorney, who has decades of experience working on military law issues including handling Adverse Administrative Actions, contact one of the military lawyers at the Law Office of Will M. Helixon for an immediate consultation.  We will analyze your case, and develop the best possible response to keep you in the Army at your current rank with your continued entitlements and benefits of military service.  When your retirement, worth millions of dollars over your lifetime, is on the line, don’t gamble on your legal representation.  Call the Law Office of Will M. Helixon today.  Will M. Helixon and John Caulwell, with over 45 years of combined military experience, are ready to assist you today.  We will develop a strategy to keep you in the fight, and serve our nation, until you decide it is time to retire.  Control your own destiny.  Call us today.

 

 

More about the Law Office of Will M. Helixon.

Will M. Helixon established the Law Office of Will M. Helixon in February of 2016.  Originally headquartered in Kansas City, Missouri, the firm’s original mission was to defend members of the military in courts-martial, adverse administrative proceedings and other criminal proceedings. Today, the firm has worked as military lawyers in multiple complex and high-profile military cases.  The firm now handles most military matters, including medical issues involving the MEB/PEB process, adverse administrative matters, military justice matters including Nonjudicial Punishment, Administrative Separation Boards, and Boards of Inquiry, and legal assistance matters, including rebutting GOMORs, responding to QMP Boards, fighting attempts to revoke Soldier’s security clearances, and submitting matters for the correction of military records.  The firm also assists officers navigate the minefield of findings of adverse information (AAIP) in AR 15-6 Investigations (command directed investigations), Selection Boards (Promotion Boards), Special Selection Boards, and Special Selection Review Boards (SSRB).  No longer in Kansas City, the firm now has European offices physically located in Vilseck, Germany and in Wiesbaden, Germany.  Call us today to assist with your legal issue in Europe, Germany, or the United States.  All military lawyers at the Law Office of Will M. Helixon maintain licenses to practice before all military trial courts.