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Federal Bar Association
Virginia State Bar
Department of the Army

Adverse Administrative Actions

Just some of the positive results, often with the assistance of or through the efforts of colleague, and Of Counsel, Wojciech Kornacki who does work with us on adverse actions such as Article 15s, reprimands, Boards of Inquiry, Administrative discharge actions, discharge upgrades, records correction, and cases before the Federal Court of Claims (for money, usually pay).

At a Army Board of Inquiry the client was being recommended for separation for testing positive on a urinalysis for MDMA, MDA, and cocaine. He elected to appear before the board and plead his case for a testing error or some other defect and argue for retention. After thorough preparation, the case was presented such that the board found in his favor and found no misconduct on his part. Thus he has been retained. He will now seek to have the GOMOR set aside based on the new evidence discovered during prehearing preparations.

We assisted the client in upgrading his OTH discharge for DUI and testing positive for THC and COC. The NDRB just upgraded it to HONORABLE.

We assisted the client with upgrading his son's GEN discharge for testing positive through vaping - the NDRB just upgraded it to HON and noted procedural error in separation (he said he wanted to speak with an attorney first, but the legal chief noted that he refused to sign his ADSEP notice (separation proceedings were supposed to be suspended for 2 days) he is thinking about requesting back pay.

A commander accused of sex related offenses will be retained on active duty long enough to reach retirement, will be retired and will retire in grade.

Client received a General Officer Memorandum of Record for creating a hostile work environment and toxic leadership and a referred evaluation. Mr. Kornacki developed evidence in mitigation, extenuation and rebuttal showing that the reprimand was not supported by reliable evidence. After the initial denial, he submitted an appeal with additional evidence and arguments. The Army Board for Correction of Military Records directed to expunge the reprimand, officer evaluation report and to allow the applicant to be considered by a special selection board.

Client received an investigation recommending Client for revocation of clinical privileges due to alleged clinical incompetence. Mr. Kornacki reviewed the investigation and found evidentiary gaps, improper assumptions, and arbitrary actions. After developing evidence in rebuttal and mitigation and extenuation and making additional submissions at each stage of the extensive administrative due process, the Credentials Function recommended reinstatement of clinical privileges.

Client received a statement of reasons for mishandling protected information and personal misconduct. Developed extensive evidence in rebuttal, mitigation, and extenuation, filed requests for additional documents, and identified additional arguments. Client was notified that Client would continue to have eligibility for access to classified information.

Board of Inquiry: An Army Officer was recommended for separation based on multiple allegations of misconduct, including permanent adverse information filed in the officer's personnel records. Conducted further investigation and developed strong evidence in rebuttal showing that the allegations of misconduct was not supported by the evidence. Presented this evidence during the board of inquiry hearing and made arguments for retention. After approximately 30 minutes, board members decided to retain the officer and found all allegations of misconduct unsubstantiated.

Court of Federal Claims: A wrongfully discharged Seaman who was denied his well-deserved retirement. Assisted the Seaman in filing petitions with the Board for Correction of Naval Records and Naval Discharge Review Board. When both boards denied relief, initiated litigation at the U.S. Court of Federal Claims. After making multiple legal filings detailing all the legal violations and oral arguments, the Court decided that the Seaman was denied due process during his separation proceedings.

GOMOR: An Army Officer received a General Officer Memorandum of Reprimand. Conducted further research identifying several AR 600-37 violations. Developed evidence in rebuttal showing that there was no misconduct, that the allegations were not reliable, and that the GOMOR proceedings violated the officer's due process rights. After the review of all the submissions and responses, the General decided not to make any permanent filing in the officer's personnel records.

Titling: Former Airman who was criminally investigated while on active duty experiences issues relating to the titling that prevented him from taking an advantage of different employment opportunities after his separation. Conducted legal research, reviewed the Airman's personnel records and prepared a comprehensive legal memorandum and opinion concerning federal military personnel law and titling. The Airman notified us that his titling issue has been favorably addressed and he can take an advantage of the employment opportunity.

BCNR: A Marine received permanent derogatory information in his personnel records. Conducted a comprehensive review and analysis of his records that included several investigations. Filed a thoroughly documented petition with supporting evidence. Approximately 6.5 months later the Board for Correction of Naval Records granted the requested relief and recommended to remove the derogatory information.

BCNR has been convinced to change a discharge characterization from "fraudulent enlistment" to "erroneous enlistment" and also the assignment of better codes. Here, the BCNR accepted the argument that the recruiter had made false statements at the time of enlistment. (Decision on file.

A senior officer's relief for cause from command terminated, no adverse actions, and other favorable actions taken.

Chaplains get Into Trouble

Over the years we have represented a number of military chaplains. The issues seem to focus not on their skills and proficiency as a servant but on their officer-ship and leadership. Confusion, dissension, and alleged poor leadership can lead to adverse actions: nonjudicial punishment, detachment for cause, and loss of promotion. The case just completed, of a command chaplain involved allegations of creating a toxic work environment within the RM program aboard a command. The client received NJP and was detached from the unit. Despite a senior level recommendation for retention and mentoring, a board of inquiry (BOI) was directed. After lengthy debate and a robust support package the Board found no misconduct, which means the client will be retained and will have a chance to at least complete enough service for retirement. A prior similar case of a command chaplain involved not just allegations of creating a toxic environment but of discrimination toward other denominations. The BOI did find poor performance but recommended forced retirement in grade.

(Do you know what compassion fatigue is? Do you know some of the signs and symptoms of compassion fatigue? If you do, do they apply to you? If they apply to you--please reach out and get help now. The caring professions can suffer from compassion fatigue and it can affect personal performance, professional and personal relationships, and if left to fester can lead to adverse actions.)

Grade Determination Board

Grade Determination Boards determine retirement ranks for Servicemembers. Recently, a Client notified us that the Army determined that he could retire in his current rank. Representation started when the Client for assistance in providing responses and submissions to this Army Grade Determination Board. Co-counsel Mr. Kornacki developed persuasive evidence to show that there was no misconduct of any type and that the had Client served honorably and faithfully in his current rank. The Army reviewed the evidence submitted and it agreed.

Elimination Board

Co-counsel Mr. Kornacki represented an officer during an elimination board hearing. Despite substantial evidence to the contrary, the Board recommended elimination with a general discharge under honorable conditions. Mr. Kornacki filed an appellate brief identifying numerous legal errors and regulatory violations. After making additional submissions the Client was advised that he could retire approximately 8 months later.

Enlistment Contract Termination

The Client contacted us because he wanted to terminate his enlistment contract after realizing that some of the information that he received before he signed it turned out to be different after he signed it. Mr. Kornacki drafted the appropriate documentation and obtained the necessary evidence to show the discrepancies. In addition, to increase the Client's chances of success, he also developed additional evidence showing hardship under AR 135-178. After several months the Client was discharged.

Processed for Elimination?

There are many ways that the military will "fire" someone for bad performance, misconduct, or some other personal failure. Be alert, you have rights.

There are many ways the military will take an adverse action against someone at a forum lower than court-martial. Be alert, you have rights, do not waive them until you have talked to a military defense lawyer.

Some Recent Successes, More Below

Our Client was proposed for debarment based on allegations of mischarging time in the amount greater than $50,000. Mr. Kornacki was able to develop persuasive evidence to show present contractor responsibility and to rebut some of the allegations against our Client. In addition, Mr. Kornacki assisted the Client in preparing for an in-person meeting. After the presentation of the case, and submission of the evidence, the Federal Government decided to terminate the proposed debarment.

Our Client’s ability to access classified information was revoked based on multiple allegations of misconduct. Based on our legal research and in-depth factual development, our Client submitted detailed and comprehensive on-point responses rebutting some of the allegations, as well as mitigating and extenuating others. Shortly thereafter, our Client was notified that his access was reinstated.

An Army Officer received a General Officer Memorandum of Reprimand (GOMOR) based on allegations of physical abuse. After presenting persuasive evidence in mitigation, extenuation, and rebuttal, it became apparent that the allegation was false and totally inconsistent with otherwise outstanding military service. The GOMOR was filed locally.

Former Army enlisted was discharged with a general characterization of service for misconduct. Based on Mr. Kornacki’s evidence development, Client preparation, submissions and the presentation, the Army Discharge Review Board upgraded the characterization of service to “Honorable.”

An Army NCO was accused of misconduct relating to an Article 112A. The unit proposed him for an administrative separation board. Mr. Kornacki was able to effectively negotiate with the unit to allow the NCO to continue to serve without the board.

The Army discharged a Soldier with a general characterization of service for misconduct related to controlled substance distribution on base. During the Army Discharge Review Board’s hearing, Mr. Kornacki introduced additional evidence to show that there was no distribution. The Board decided to upgrade the Soldier’s characterization of service to “Honorable.”

An Army Reserve NCO was proposed for debarment. Mr. Kornacki was able to develop evidence in mitigation and extenuation to show that the conduct in question would not occur again. After the personal appearance hearing, the Army decided to terminate the debarment action against the NCO.

An Army Officer’s personnel records were incorrect due to allegations of misconduct. Mr. Kornacki developed evidence in rebuttal and extenuation and conducted legal research. Based on the submission, the U.S. Army Criminal Records Center partially corrected the records.

An Army NCO was accused of sexual harassment. The unit proposed him for a separation board. Based on Mr. Kornacki’s presentation of evidence, witness testimony and development of facts in mitigation, extenuation and rebuttal, the 2 officers and 1 senior NCO unanimously recommended retaining our Client.

An Army Officer received a general discharge. Based on Mr. Kornacki’s research, fact collection, and case presentation at the Army Discharge Review Board (ADRB), the majority of the field grade officers presiding at the ADRB recommended upgrading our Client’s discharge to ‘Honorable.

An Army instructor was found 'unsuitable' and not allowed to teach. Mr. Kornacki worked with our Client to develop evidence in mitigation, extenuation, and rebuttal which was submitted through the Army channels. Shortly thereafter our Client was advised that the board found him 'suitable' and recommended to the Army HQ that our Client is allowed to continue to teach.

An Army Reserve NCO with over 20 years of service tested positive for drug use. The unit proposed him for an administrative separation board. Our in-depth preparation and submission detailing his entire service record, and listing multiple facts in mitigation and extenuation persuaded his GCMCA commander to allow him to retire and avoid the separation board altogether.

A well-prepared package from an experienced military lawyer can help you avoid the worst.

An AR 15-6 investigation found that an Active Duty NCO sexually harassed another person. The client had about 15 years of service. The unit proposed him for an administrative separation board. Our detailed preparation and investigation of the matter revealed new facts during the board hearing. Based on our argument, the Board members consisting of three officers found misconduct but voted to retain the NCO.

A well-prepared presentation by an experienced military defense lawyer can be value added to your defense team.

A Sailor lost his clearance after receiving non-judicial punishment because the Sailor violated multiple articles of the Uniform Code of Military Conduct, including absence without leave, violating a lawful order, poor performance, and other misconduct. We developed substantial evidence in mitigation, extenuation, and rebuttal on the Sailor's behalf and submitted well-documented responses to the statement of reasons. The Sailor recently was told that his clearance was restored.

A well-prepared rebuttal by an experienced military lawyer can improve your chances of success. In a security clearance case, a strong argument about "mitigating factors" can make your case.

Recently a senior officer was given a letter of reprimand for an alleged sexual assault. He was then automatically ordered to show cause why he should not be involuntarily discharged with an other than honorable conditions discharge. In exercising his rights we prepared and litigated a case before a Board of three colonels. The Board did find misconduct, but they found that the officer should be retained. This was a case where solid preparation set the case up for success.

Below we show some of the clients and cases we have dealt with as examples of how we can help you. Largely due to the excellent work of Mr. Kornacki we have been able to assist many servicemembers with adverse actions or other administrative matters that have not resulted in a court-martial. Mr. Kornacki has developed his skills and technique for a niche area of military law. Here is a selection.

Barred From a Base, Contracting, or . . .

Mr. Kornacki has once again effectively assisted a client to rebut a proposal to bar him from dealing with or contracting with any government agency. The support here consisted of preparing a written submission and personal presentation. Mr. Kornacki has also been able to advise and assist those who have been barred from a base for various reasons.

Effective Representation to Waive a Recoupment

DFAS wanted to recoup f $156K because he was disenrolled from ROTC. Working with the client and on the specific facts of this case, Mr.Kornacki was able to convince the Board that the client had not committed misconduct, thus no misconduct related disenrollment. The consequence was that the recoupment action was waived. Keep in mind that not every case is the same and so there can be no guarantee of a similar result.

$210,000.00 for an Academy Education?

Academy cadet separated for alleged military deficiencies. After extensive correspondence and argument, the Secretary has ordered an honorable discharge separation, characterization of the separation as 'not medically qualified," and most importantly, directed there be NO recoupment.

Mr. Kornacki has successfully represented at former military member before the Army Discharge Review Board and an Honorable Discharge has been substituted to characterize the clients prior military service.

Mr. Kornacki recently assisted an E-8 accused of assault, drug use, and drug possession. He was able to work with military counsel and obtain a favorable special court-martial pretrial agreement. No punitive discharge was adjudged. We were recently advised that the Service will allow him to complete his needed 20 years of service and retire, albeit it one pay-grade lower than expected.

Administrative Actions for an Officer can be Complex and Involve Multiple Avenues of Redress

An Army officer received a GOMR. We were able to help keep that officer's security clearance. After that, we were able to help successfully terminate a field directed show cause for retention board, as well as persuade DFAS not to recoup a debt for alleged fraudulent BAH received. The latest event is the DASEB has found the GOMR to be unjustly imposed and ordered it removed from the files.

United States v. Officer: Our client’s security clearance is pulled because of adverse information relating to debt and other misconduct. The alleged misconduct is based on an administrative investigation. Our in-depth investigation and detailed explanation allow our client to regain his top secret security clearance.

United States v. Federal Employee: Our client’s security clearance is pulled with over 10 reasons listed. Through our detailed fact analysis, and thorough investigation, we were able to directly rebut, mitigate, and extenuate each of the reasons. The end result is that our client is granted his top-secret security clearance back and is allowed to return to work in the same organization, but at a different location.

United States v. Agent: Our client who is also an investigative agent is investigated by military criminal investigative services for misconduct. After our initial case investigation and fact analysis, we are able to establish that no misconduct has occurred. Several months later, the investigation against our client comes to an end, and our client can move on.

United States v. Enlisted: Our client is offered an Other Than Honorable discharge for multiple misconduct relating to his unexcused absences in the unit. After persuasive negotiation with the legal representative for the chain of command, our client is offered a general discharge under honorable conditions.

United States v. Federal Employee: Our client’s employer pulls his top-secret security clearance based on several allegations of misconduct. Our investigation in the case reveals strong rebuttal, mitigation and extenuation case on behalf of our client. We are impeded in preparing responses due to limited access to the relevant records but develop other evidence. Following thorough and comprehensive responses to the security office, our client informs us that the top-secret security clearance has been restored.

State Agency v. Former Servicemember: Our client is notified of allegedly withholding information in his employment application relating to UCMJ matters while on Active Duty. After submission of our legal memorandum analyzing the UCMJ matters and showing that they were, in fact, administrative matters, our client is allowed to work.

United States v. Officer: Our client receives a General Officer Memorandum of Reprimand for allegedly assaulting another officer while deployed. After receiving and collecting statements from approximately 25 witnesses and unit members, and pointing out evidence from an investigation showing that our client was in fact not the aggressor, the CA filed the letter locally.

United States v. Federal Employee: Our client received abarmentaction which affected our client’s ability to work. Our review of the evidence established multiple reliability and credibility issues. We worked with the client to document the issues. We prepared our legal memorandum pointing out all the issues, and after consideration by the chain of command, the barment was removed.

United States v. Enlisted: Our client is investigated by CID for sexual crimes after allegedly having sex with a drunk female Soldier on Active Duty. Early investigation of the case by the defense team allowed us to find digital evidence proving knowing consent. After several months of the ongoing CID investigation, and several discussions with the prosecution, our client was allowed to continue his military career.

United States v. NCO: Our client is found guilty of multiple assaults, drug use, and other misconduct. After our presentation of his case during a court-martial, he is retained, loses one rank, receives a written reprimand and no confinement.

Civilian v. Officer: Our client is owed debt an Active Duty member. After documenting the debt, applying the military law, and telephonic conference with the commander, the unit takes an immediate action and our client’s debt is satisfied in full.

United States v. NCO: Our client receives potentially career-ending non-judicial punishment for fraternization. The concern is that our client could be recommended for separation or barred from re-enlisting. On an appeal, through in-depth fact investigation, we are able to show to the CA, that this case was everything but ‘fraternization.’ The CA acquits our client of the charge.

United States v. Enlisted: Our client is denied video recordings relating to his alleged misconduct after we filed a FOIA request. After carefully documenting the reasoning, and applying the law, the denial is overruled on an appeal, and the initial FOIA authority is working to obtain the material.

United States v. Enlisted: Our client receives a punishment under Article 15 for assaulting an NCO, multiple failures to report for duty, violation of a general order, and other misconduct resulting in losing 3 ranks, forfeiture of pay, restriction, and extra duty. On an appeal, we are able to document our client’s medical history and how his combat-related physical and mental injuries affected his behavior. Our client advised us that he regained 2 ranks after the superior authority reviewed our appeal.

Client Reviews
Many years after retiring from the USN, I suddenly found myself in a very unwelcome legal matter with the Navy. It was a total shock and I was very concerned as to the impact this would have on me and my family. Philip was so helpful, truly a calming force, and his legal help was invaluable to me, I am so thankful that I availed myself of his services! Rob
Phil Cave has helped me through NJP and restoration of my security clearance. He even came to visit me in Spain. I never thought I would work again and he certainly through with advise and guidance that we're exactly spot on. He is my hero and thanks to him I gave my life back... Bryan
Mr. Cave saved my military retirement! His promise to me from day one was that he would fight as hard as he could he right the wring that had been done to me. And he did! I am so very thankful and grateful to him. He genuinely cared about me and made my case his priority. He used all his experience and knowledge to put forth a good defense. I am very pleased with him and will recommend him to anyone in need of an attorney. Crystal