Case Results – Administrative Separation Board – Sembach, Germany – No Misconduct – Retention – Warrior Law Team – Administrative Separation Board Lawyers

What are the roles of Administrative Separation Board Lawyers?

Administrative Separation Board Lawyers provide legal representation and counsel to service members facing potential administrative separation from the military. They navigate complex military regulations, build cases, and advocate for the best possible outcome for their clients during separation proceedings.

Administrative Separation Board Case Background

The Administrative Separation Board Lawyers with the Warrior Law Team provided a powerful and successful defense for an Army E-5 at a recent military separation board, where he faced serious allegations of domestic violence. The Warrior Advocate representing the NCO was the firm’s founder Will M. Helixon. The charges against him included accusations of strangulation and pouring urine on his pregnant wife during a heated verbal altercation that escalated into physical conflict. Despite the gravity of the allegations, after just 30 minutes of deliberation, the Administrative Separation Board determined, by a preponderance of the evidence, that the NCO had not engaged in any misconduct and decided to retain him in the service.

The Administrative Separation Board Lawyers fought this case on several critical fronts, each essential in securing the NCO’s exoneration. Will M. Helixon carefully exposed the flaws in the investigation, highlighting its inadequacies and inconsistencies. He expertly dismantled the credibility of the accusations, revealing the alleged victim’s exaggerations and misrepresentations of the facts. These strategic moves were crucial in casting doubt on the government’s case.

One of the most compelling moments came when Will successfully challenged a board member who, being pregnant herself, admitted she would hold the NCO to a higher standard because of his wife’s condition. This challenge was a legal argument and a moral stand, ensuring the NCO received a fair and impartial hearing by the Administrative Separation Board, a process that is crucial for any military member facing separation from the armed forces.

The Administrative Separation Board, composed of a Major, a Chief Warrant Officer 2, and a Master Sergeant, ultimately concluded that the evidence did not support the claim that the NCO had strangled his wife. They further recognized that any physical contact was likely in self-defense, a crucial point that Will had vigorously argued.

The outcome of this case underscores the importance of experienced military lawyers on the Warrior Law Team’s unwavering commitment to justice and their extraordinary ability to turn the tide in the most challenging circumstances. Their dedication ensured that a soldier’s career was not unjustly destroyed, reinforcing the principle that every service member deserves a fair and vigorous defense and an unbiased Administrative Separation Board hearing.

Government Case and Evidence at the Administrative Separation Board

The government’s case against the NCO was fundamentally flawed and fraught with weaknesses that became glaringly apparent during the Administrative Separation Board proceedings. Surprisingly, the government failed to present the most crucial piece of evidence—the alleged victim herself. She was not produced to testify before the Board, nor did the government possess a sworn statement from her. This glaring omission left their case solely reliant on secondary testimony and hearsay.

Instead of direct evidence from the alleged victim, the government’s case was built on the testimony of an MPI Investigator who conducted a brief and cursory “on-scene” interview with her and the statements of three patrol MPs at the scene. However, these statements, gathered after the fact, were mere echoes of the initial investigation, lacking the firsthand clarity that only the victim’s testimony could provide.

To compound the weaknesses in their case at the Administrative Separation Board, the government called the MPI Investigator and two of the responding MPs as telephonic witnesses. This remote testimony only further diluted the impact and reliability of the evidence, as the witnesses were not physically present to be scrutinized by the Board in real time. While the two MPs had PCSd to new duty locations, the MPI Investigator was in the local area but testified telephonically for the sake of his convenience. The lack of direct, in-person, compelling testimony from those who had interacted with the alleged victim on the scene left a significant void in the government’s case.

In the end, the government’s failure to produce the alleged victim or even a sworn statement from her rendered their case tenuous and unconvincing. The reliance on secondhand testimony of telephonic witnesses underscored the lack of substantive evidence, ultimately contributing to the Board’s decision to retain the NCO. This outcome highlights the importance of direct, credible evidence in Administrative Separation Board proceedings, especially when a service member’s career and reputation are on the line. The Administrative Separation Board Lawyers on the Warrior Law Team’s relentless advocacy and keen strategic insight exposed these critical deficiencies, ensuring justice prevailed.

Direct Examination of the MPI Investigator at the Board

During the government’s direct examination of the MPI Investigator, his testimony revealed significant gaps and questionable judgment that weakened the government’s case. He admitted that he did not obtain a sworn statement from the alleged victim, citing concerns for her medical condition as the reason. According to his account, he prioritized sending her to the hospital for evaluation over securing her testimony despite the gravity of the allegations and lack of significant physical injuries.

Before the ambulance arrived, the alleged victim allegedly recounted a harrowing sequence of events to the MPI Investigator. She claimed that her husband had locked himself in their study. When she attempted to enter, he eventually opened the door and, in a disturbing act, poured a bottle of urine over her head—a bottle he had apparently used while inside the study. She further alleged that he then grabbed her by the throat for 2-3 seconds, placed his hand over her mouth to silence her screams, and subsequently covered her face with clothes to keep her quiet. A second MP patrol officer, present during this conversation, corroborated most of these details in his testimony, aligning almost entirely with the MPI Investigator’s account.

However, the credibility of this testimony was called into question when the alleged victim mentioned that the entire altercation should have been captured on camera. She explained that their home was equipped with four surveillance cameras, which were always recording in an attempt to capture paranormal activity. She even consented to the MPI Investigator taking the SD cards from these cameras as evidence. Yet, in a revealing omission, the MPI Investigator failed to collect this potentially critical evidence, again citing his concern for her medical condition.

Instead of securing the footage that could have either substantiated or refuted the allegations, the Investigator simply testified that the alleged victim was expected to come into the MPI office at a later time to provide a formal statement and the SD card. This decision not only undermined the integrity of the investigation but also left a gaping hole in the government’s case—a hole that the defense would later leverage.

This testimony exposed the flawed handling of the investigation and raised serious doubts about the thoroughness and objectivity of the evidence collection process. The failure to secure a sworn statement or obtain the surveillance footage, despite the alleged victim’s consent, significantly weakened the government’s narrative. The defense highlighted these deficiencies, casting doubt on the reliability of the government’s case and strengthening the argument for the NCO’s innocence.

Additional Evidence from the Government’s Direct Examination

The testimony of the second MP patrol officer added another layer to the case, further complicating the government’s narrative. He recounted how he interviewed the NCO at the scene, noting that the NCO was cooperative and willing to speak with him. During this initial conversation, the NCO admitted that he and his wife had gotten into an argument that escalated into a physical confrontation, emphasizing that this was the first time anything of this nature had ever occurred between them. However, the MP abruptly halted the interview, informing the NCO that he would need to take him to the station, formally advise him of his rights, and then continue the statement.

Upon arrival at the station, the NCO was read his rights in connection with domestic violence allegations, including strangulation. It was at this point that the NCO expressed his desire to give a full statement but requested to speak with a lawyer first. He assured the MP that he would return to provide a statement after consulting with legal counsel.

Following this, the NCO was issued a Military Protective Order (MPO), which prohibited any contact with his wife and required him to move to the barracks. He remained there for an extended period of four months, during which time the MPO was neither reviewed nor revised, effectively isolating him from his family without any re-evaluation of the circumstances.

The MPI Investigator’s subsequent actions—or lack thereof—further weakened the government’s case. Over the following week, despite the gravity of the accusations, the Investigator failed to make meaningful contact with the alleged victim. He testified that in the weeks that followed, he made only two phone calls during the day and attempted three visits to the apartment, also during daytime hours. Each time, the alleged victim did not answer the phone or the door. Without obtaining any further statements or evidence from her, the Investigator decided to close the case and forwarded his findings to the unit JAG.

This chain of events reveals significant procedural shortcomings and raises questions about the thoroughness and dedication of the investigation. The NCO, willing to cooperate but rightly cautious to seek legal advice, was effectively silenced and isolated for months under an MPO that went unchallenged. Meanwhile, the alleged victim remained out of reach, with minimal effort made to secure her statement or clarify the details of the incident.

The combination of these factors—the NCO’s interrupted statement, the prolonged and unreviewed MPO, and the lackluster follow-up by the MPI Investigator—paints a picture of an incomplete and unconvincing investigation. The defense highlighted these critical flaws, casting serious doubt on the government’s ability to meet the burden of proof and further supporting the argument for the NCO’s retention.

Cross Examination of the MPI Investigator

During cross-examination, the MPI Investigator’s testimony raised significant concerns, revealing a series of decisions and rationales that were difficult to believe and undermined the investigation’s integrity. The following points from his testimony were particularly troubling:

• • Strangulation Referral: The Investigator testified that he did not refer the strangulation allegation to CID because it did not meet a so-called “5-second rule”—a guideline he claimed required the NCO’s hands to be around the alleged victim’s neck for at least five seconds for the act to be considered strangulation. This arbitrary standard, unsupported by policy or medical expertise, cast doubt on the seriousness of the investigation.
  • Consciousness Requirement: He further justified not referring the case to CID by stating that the alleged victim did not lose consciousness during the altercation. This reasoning ignored the reality that strangulation can have serious, life-threatening consequences even without causing a loss of consciousness. Such a narrow interpretation of the incident minimized the potential severity of the allegations.
  • SD Card Evidence: The Investigator admitted that he chose not to collect the SD cards from the home’s surveillance cameras, despite the alleged victim’s consent, because he claimed to be more concerned about her health. This decision not only neglected a critical opportunity to gather direct evidence but also contradicted standard investigative procedures.
  • Limited Contact Attempts: His testimony revealed that he made no attempts to contact the alleged victim after work hours, citing ignorance of her job as a teacher and his office’s understaffing and overwork. This lack of diligence in following up with a critical witness highlighted a troubling gap in the investigation’s thoroughness.
  • Investigation Closure: The Investigator claimed that he was compelled to close the investigation within 30 days due to the mandatory time limit on MPI Investigations. This rigid timeline, coupled with his minimal efforts to gather evidence, suggested that the investigation was more focused on procedural compliance than on uncovering the truth.
  • Re-Interview of the NCO: He testified that he did not re-interview the NCO because the NCO had expressed a desire to consult with a lawyer before giving a statement. While respecting the NCO’s rights, the Investigator made no apparent efforts to pursue the matter further once legal counsel was involved, effectively stalling a critical aspect of the investigation.
  • Magistrate Authorization: When questioned about why he did not seek a magistrate’s authorization to obtain the SD cards, the Investigator responded that magistrates were “impossible to reach.” This excuse demonstrated a lack of persistence and resourcefulness in securing potential evidence.
  • Legal Advice: The Investigator also admitted that he did not seek legal advice during the investigation, claiming that the on-call JAG was as difficult to reach as a magistrate. This lack of legal consultation further weakened the credibility of the investigative process.
  • Failure to Canvass Neighbors: Finally, the Investigator confessed that he did not canvass the neighbors in the stairwell, missing an essential step in gathering witness testimony that could have provided additional context or corroborated the alleged events.

These admissions, taken together, created a troubling picture of an investigation riddled with shortcuts, questionable judgments, and missed opportunities. The Investigator’s explanations for these lapses strained credibility and suggested a lack of commitment to uncovering the truth. The Separation Board Defense Lawyers effectively used this testimony to highlight the inadequacies and inconsistencies in the government’s case, casting severe doubt on the validity of the charges against the NCO and further solidifying the argument for his retention.

Defense Law Enforcement Witness

Having conducted hundreds of domestic violence investigations throughout his career, Will immediately recognized that much of the MPI Investigator’s testimony was either incorrect or simply untrue. This realization prompted him to take decisive action. He requested an extended lunch break and reached out to another MPI Investigator from a different jurisdiction in Germany, someone he had collaborated with on several previous cases. After discussing the details with him, the MPI Investigator agreed to testify at the Board about standard procedures in MPI Investigations. His testimony was vital and brought much-needed clarity to the case. Here are the key points he made:

• • No “5-Second” Rule: He unequivocally testified that there is no such thing as a “5-second” rule for determining strangulation. The idea that hands must be around the neck for a specific duration to qualify as strangulation is entirely unfounded.
  • CID Consultation for Strangulation: He emphasized that all strangulation cases should be promptly discussed with CID. Whether or not the criteria for strangulation are met should be a decision made in consultation with CID, not based on arbitrary thresholds by MPI Investigators solely.
  • Consciousness Not a Requirement: The Investigator clarified that a person does not need to lose consciousness for a case of strangulation to warrant a referral to CID. Strangulation can cause serious harm even without loss of consciousness, and such cases should be treated with the utmost seriousness.
  • Importance of Collecting Evidence: He criticized the decision not to take the SD cards that night, pointing out that, with the alleged victim’s consent, the Investigator should have secured them immediately. This failure to collect available evidence was a significant lapse in procedure.
  • Seeking Magistrate Authorization: He explained that if the alleged victim did not bring the SD cards to MPI the following week, the Investigator should have sought a magistrate’s authorization. It’s a standard procedure to obtain known evidence, particularly when there is no evidence of a crime, but the potential for relevant information exists.
  • Availability of On-Call Magistrates: The Investigator testified that on-call magistrates are available 24 hours a day, albeit sometimes challenging to reach after hours. However, this does not excuse the failure to seek their assistance when necessary, and they are always available during standard business hours.
  • Common Practice of Seeking Magistrate Authorizations: He stated that it is common practice for investigators to seek a magistrate’s authorization when they cannot obtain evidence through consent. This is a critical step to ensure that all relevant evidence is secured.
  • Past Experience with Magistrate Authorizations: He confirmed that he had personally sought magistrate authorizations in the past, underscoring that it is a routine part of thorough investigative work.
  • On-Call JAG Availability: He clarified that law enforcement always has a 24-hour on-call JAG available. While reaching them after hours may be more challenging, they are generally easy to contact during business hours, and the unit’s JAG is always accessible during those times.
  • Reapproaching the NCO for a Statement: The Investigator stressed that the standard protocol is to reapproach the NCO for a re-interview, especially when the individual is willing to give a sworn statement after consulting with a lawyer. This is a critical follow-up step that should not be overlooked. He noted that the typical time allotted for follow-up with a witness who wants to speak to a lawyer is two weeks.
  • No Arbitrary Time Limits: He debunked the notion that MPI Investigations are subject to a strict 30-day time limit. He made it clear that investigations should remain open and active until all investigative leads and activities have been thoroughly pursued, even if it takes several months to complete.

This testimony was crucial in dismantling the credibility of the original MPI Investigator’s claims. By presenting these facts, the defense highlighted the numerous procedural missteps and oversights in the investigation, reinforcing the argument that the case against the NCO was built on shaky ground. The testimony of this experienced Investigator highlighted the standard practices that should have been followed, further validating the defense’s theory and casting serious doubt on the integrity of the government’s case.

Testimony of the Respondent (the NCO)

Will then called the NCO to provide a sworn statement, which would prove instrumental in the case. In his detailed and forthright testimony, the NCO revealed the following critical points:

• • Willingness to Cooperate: He made it clear that he was ready to give a complete statement immediately after consulting with a lawyer. However, he was never approached again about making a statement in the eight months that followed the incident, a significant oversight in the investigation process.
  • Attempts to Provide a Statement: Will had reached out multiple times to the JAGs, offering to facilitate his statement. These communications, attached as an exhibit, show the NCOs consistent willingness to cooperate with the investigation, further undermining any claims of non-cooperation.
  • Marital Tensions: The NCO explained the root of the conflict, which stemmed from his wife’s anger over his viewing of pornography. In retaliation, she changed the password to his Google account, blocking his access to emails and the internet. She also converted his phone to a “child-protected” mode, severely restricting his access and monitoring his activities. This hampered his ability to communicate with his section and complete his military duties.
  • Locked in the Study: On the day of the incident, after researching how to regain control of his accounts, the NCO locked himself in the study to make the necessary changes. Enraged by this, his wife attempted to break down the door, escalating the situation.
  • Threats and Escalation: His wife’s anger intensified, leading her to threaten divorce and to call the MPs. After hours of failed attempts to enter the study, she resorted to using a hammer to break off the door handle. When this did not work, she employed a screwdriver and hammer in a desperate attempt to gain access.
  • Confrontation: When the NCO finally let her in, he tried to calm her down, but the situation quickly escalated. His wife grabbed a beer bottle containing urine, which he had used while locked in the study, and hurled it in his face before pouring it onto his computer. In an attempt to stop her from destroying the computer, he grabbed the beer bottle.
  • Physical Attack: The situation turned even more violent when she took the hammer and struck him in the chest, then threatened him with it (a picture of the bruise was introduced). Fearing for his safety, the NCO used his hands to push her away, moving her out of striking distance.
  • Further Assault: Undeterred, she began kicking and hitting him, escalating her attack by spraying disinfectant directly into his eyes, temporarily blinding him. As he struggled to regain his vision, she called the MPs. Disoriented and desperate to avoid further conflict, the NCO went outside to await their arrival.

The government chose not to cross-examine the NCO, but the Board engaged him with questions for about 30 minutes. Will’s preparation for his testimony was brief but focused on one critical principle: the importance of telling the truth, even if it seemed like it might not help his case. Will assured him that he would address any issues during the re-direct examination, emphasizing that honesty was his most potent defense.

The NCO’s testimony provided a vivid, detailed account that challenged the government’s narrative and created a picture of a man trapped in a volatile situation, doing his best to de-escalate and protect himself. His steadfast truthfulness under scrutiny resonated with the Board, bringing a new level of clarity and credibility to his defense.

Defense Closing Argument

In his closing argument, Will honed in on five pivotal points that were crucial to the defense: the motives behind the alleged victim’s potential exaggeration or misrepresentation of the events on the night in question, the glaring inadequacies of the investigation, the steps that should have been taken but weren’t, the commendable actions of the NCO since the incident, and the compelling reasons why the NCO’s version of events is the most credible and logical explanation of what transpired.

Motives for Misrepresentation

Will began by exploring the possible motives that could have driven the alleged victim to distort or exaggerate the facts:

• • Revenge or Retaliation: She may have sought revenge for his viewing of pornography and his attempts to regain control of his electronic devices, using the incident as an opportunity to assert dominance and punish him.
  • Mental Health Struggles: Anxiety, stress, or other mental health issues could have distorted her perception of reality, leading her to make accusations not grounded in factual events but rather in her subjective fears and insecurities.
  • Attention-Seeking: It is possible that she was seeking attention or sympathy from her unit, friends, family, or the broader community, using this incident to garner support or validation.
  • Manipulation: Her actions may have been part of a broader pattern of manipulation aimed at controlling his behavior, much like she attempted to do with his phone and internet access.
  • Misinterpretation or Exaggeration: Her account of the events could have been a misinterpretation or exaggeration, influenced by a skewed perception of what actually happened.
  • Social Pressures: Training from the Family Advocacy Program, which can sometimes label even raised voices as “emotional abuse,” might have influenced her to see the situation through an overly sensitive lens, leading to accusations that don’t reflect the true nature of the incident.
  • Ending the Relationship: She might have been looking for a way to drive a wedge between them, potentially seeking to end the relationship by creating a situation that would cause him significant personal and career difficulties.
  • Fear of Legal Consequences: Concern about facing legal trouble with German authorities or the civilian misconduct board could have prompted her to shift blame or exaggerate the situation to protect herself.

Investigation Failures and What Should Have Been Done

Will then emphasized the critical failures in the investigation, highlighting what should have been done but was not:

• • The government’s failure to secure the alleged victim’s testimony, whether in person or telephonically, left a void in their case that could not be filled by secondary witnesses or hearsay.
  • The investigators’ negligence in not obtaining a sworn statement from her from the outset further weakened the credibility of the prosecution’s narrative.
  • The investigators failed to secure the video evidence that corroborated the NCO version of the events.

The NCO’s Actions and Credibility

Turning to the NCO, Will underscored his exemplary behavior since the incident:

• • Despite having the right to remain silent, he chose to testify, a courageous decision demonstrating his commitment to truth and transparency.
  • By testifying, he subjected himself to rigorous cross-examination not only by a trained government lawyer but also by a field grade officer, warrant officer, and senior non-commissioned officer on the Board—a level of scrutiny that further attests to his integrity and honesty.

The Plausibility of the NCO’s Account

Finally, Will laid out why the NCO’s version of events made the most sense:

• • His account was consistent, logical, and supported by the facts as they knew them.
  • The government failed to produce any evidence that definitively contradicted his testimony or proved the alleged misconduct by a preponderance of the evidence.
  • The NCO’s right to self-defense was clearly evident in the situation, and nothing presented by the prosecution negated this right.

Detailed Military Counsel (TDS) Involvement

While Will expertly conducted every aspect of the defense case as one seasoned Administrative Separation Board Lawyers on the Warrior Law Team—ranging from voir dire and the opening statement to the cross-examination of government witnesses, direct examination of defense witnesses, and the closing argument—the involvement of the military detailed counsel was nothing short of indispensable. The TDS attorney served as a vital “second set of eyes” throughout the proceedings, offering strategic insights that enhanced the overall defense.

During the Board, the TDS attorney played a crucial role by continuously passing notes to Will, suggesting additional questions and highlighting points that needed to be addressed during cross-examination. Recognizing the value of this collaboration, Will would pause the proceedings to consult with the TDS counsel before concluding his cross and direct examinations. These consultations frequently led to further probing questions that might have otherwise been overlooked, significantly strengthening the defense’s position.

Moreover, in preparation for the closing argument, Will carefully reviewed key portions with the TDS counsel, actively seeking their input. This collaboration proved invaluable, as it brought to light additional compelling points, particularly regarding potential motives for the alleged victim to exaggerate or misrepresent the truth. The result was a more nuanced and persuasive closing argument that resonated strongly with the Board.

Will’s insistence on having a military detailed counsel appointed to the case was akin to the necessity of a co-pilot in a commercial aircraft. The TDS counsel’s contributions were not just supportive; they were critical to the successful representation of the NCO. This partnership underscored the importance of teamwork and collaboration in legal defense, ensuring that no detail was left unexamined and that every possible angle was explored to secure the best possible outcome for the client in the complex world of military law.

Conclusion

Will concluded by reiterating that the NCO’s account was not only plausible but the most likely version of events, given the evidence—or lack thereof—that was presented. The government had not met its burden of proof, and the inconsistencies in their case only served to reinforce the validity of the NCO’s defense.

In the end, the Board agreed, acknowledging the strength of the defense arguments and the lawfulness of the NCO’s actions. Justice was served, and the NCO was rightly retained, a testament to the truth prevailing over assumption and misrepresentation.

Lessons Learned from this Board

• • Cultivate Reliable Law Enforcement Allies: It is invaluable to have trustworthy law enforcement agents ready to testify about proper investigative procedures. Their expert testimony can decisively counter any flawed or biased investigative practices presented by the government.
  • Critically Analyze the Investigation: Always scrutinize how the investigation was conducted, thoroughly identifying its shortcomings and gaps. A detailed understanding of the investigation’s weaknesses can be essential in undermining the government’s case.
  • Balance in Client Preparation: Ensure your client is well-prepared for cross-examination without being over-prepared. Over-preparation can make testimony seem rehearsed, while the right balance ensures authenticity and credibility.
  • Client Testimony in Sensitive Cases: In cases involving domestic violence or sexual misconduct, your client must be prepared to testify under oath. Their testimony provides a necessary counter-narrative that challenges the government’s account and offers the Board a complete perspective.
  • Respectfully Counter the Alleged Victim’s Account: When addressing the alleged victim’s version of events, explain why her account may be flawed without casting blame or directly calling her a liar. Emphasize that the truth remains unclear because she did not testify, leaving her narrative unchallenged.
  • Adaptable Cross-Examination: Be ready to cross-examine government witnesses thoroughly but stay flexible. When witnesses provide unexpected or strange responses, seize the opportunity to delve deeper, even if it means departing from your prepared questions. Effective “freestyling” can expose critical inconsistencies.
  • Assertive Yet Reasonable Approach: Maintain firmness in your advocacy without becoming overbearing. Being assertive is essential, but avoid appearing unreasonable or difficult merely for its own sake. A measured approach enhances your credibility before the Board.
  • Request Time for Additional Investigation: Don’t hesitate to ask for additional time to investigate new leads or unexpected testimony that arises during the Board. This flexibility can uncover critical evidence or insights that might otherwise be missed.
  • Highlight Government Failures: Clearly articulate how the government failed to take necessary steps that could have established your client’s innocence, such as not securing the SD cards. Underscore these omissions as significant flaws in the government’s case.
  • Conduct Thorough Voir Dire: Always conduct a comprehensive voir dire of the Board members and be prepared to challenge those who display bias or seem predisposed to a particular outcome. Ensuring an impartial Board is crucial to a fair hearing for your client.

These lessons reinforce the importance of strategic planning, adaptability, and commitment to justice in defending your client. Each point serves as a guide to navigating complex cases with integrity and effectiveness, ensuring that every possible advantage is leveraged to pursue a just outcome.