Skip to main content
Philip Douglas Cave
Avvo
Pro

Philip Cave’s Answers

1,910 total


  • When being in the National Guard is your civilian job required to pay you for your Advanced Training away from your job?

    Going to Fort Irwin for three weeks. will only earn 1500 for a month. My civilian job pay is better than my Military Job missing School days as well that i pay for.

    Philip’s Answer

    Under the various federal laws the prime protections relate to keeping your job, possibly keeping promotions, and allowing for "military leave." There is no requirement to make up the differences in pay. Those companies that do are doing that voluntarily.

    More information can be found the the ESGR.

    See question 
  • If a retainer was paid but a request for funds to be refunded before any work was done, what would be refundable?

    I paid a lawyer a partial retainer, but he never started work on the case before I requested the funds back I was at the time 3 days later was told they used it to pay their light bill and they would have it to me this weekend and when I contacted...

    Philip’s Answer

    You should ask for a specific accounting of actual time spent on your case.
    You should go to their office or do it in writing.
    What is and what is not a "retainer" can be confusing. You need to clarify that, and perhaps that in the written agreement you had for representation.
    Most states allow a lawyer to deduct from a refund for work actually already performed. Sometimes this is referred to as a quantum meruit fee.
    If it is in a trust account---which you need to clarify--then it should be available for quick distribution. that's the whole point of a trust account.
    Note, this is what I'm familiar with in the various jurisdictions I'm licenced in. Each state can have some variations.
    Each state Bar has some procedure for fee disputes, which you can usually find out about on their website.

    See question 
  • What is the difference between a military extraordinary appeal and a federal court appeal?

    If I want to appeal a decision from the Board of Military Corrections, which one do I need to use? What would be the next step? How it works?

    Philip’s Answer

    You will be filing with either the federal district court or the court of claims. It depends on whether you are appealing for money under a statute that would provide money to him--for example for backpay, or if you are filing because of due process or administrative procedures act claims.

    See question 
  • Military ex-husband - regulations and do have to pay his fees?

    I need to go back to family court and my ex-husband is active duty in the military. Are there specific regulations I need to know about? He's out of state. I read somewhere that I could be held responsible for his fees?

    Philip’s Answer

    This would not be something the military has any interest or involvement in.
    The only "regulation" that might be involved is those relating to division of his retirement check if it's a part of the divorce decree.

    See question 
  • What is the difference between the federal district court and the federal circuit court? When do you go to either one?

    If a military appeal is denied in the federal court of my state, can I appeal it in the federal circuit court? Or do I have to go to the supreme court? What about the court of appeals? I am very confused between all of these courts.

    Philip’s Answer

    The question is a little unclear.
    Was the person convicted at a court-martial?
    If so, the appeal goes to the (Service) Court of Criminal Appeals.
    Then it can go to the Court of Appeals for the Armed Forces.
    And in some very limited circumstances, the U.S. Supreme Court.

    If for some reason this was a federal district court case--the trial court--then the next and first level of appeal is to the U.S. Court of Appeals which covers that state, and then the U.S. Supreme Court.

    See question 
  • Is a soldier wife entitled to retired soldiers money ?

    Husband is a retired as assistant principal and retired soldier...will I be entitiles to both as well ?

    Philip’s Answer

    It depends what your divorce decree said about his retirement. Look at the divorce decree.

    Military retirement is considered a property of the marriage in almost all states now. This property is divided at the time of divorce. How much the person is entitled to depends on the number of years married and the number of years the marriage overlapped his time in service. There is a calculation done to determine the "marital share." This all should have been done at the time of divorce. Further, there were some legal requirements needed to be followed to make a claim. There's more information at these links below.

    I suspect the civilian retirement is also deduced from the divorce decree. if you were divorced before he began his civilian employment I suspect you have no rights to a division of that property.

    See question 
  • How to get proof of Army Article 15?

    In 2010, while on active duty, I was apprehended by CID for possession. I received a Field Grade article 15 and loss of rank. There was no court martial and I stayed in the military for several more years. Recently, a background check by the PA De...

    Philip’s Answer

    Go to www.nara.gov

    There is a link to get military records. It's possible the record is in there.

    Also, there is a way to get the CID to correct the record. It's taking them several months to respond to FOIA/PA requests even if made on line.

    See question 
  • When my son was 12 he shoplifted. He was held for 10 minutes and released to me.. That was in 2010.

    He now wants to join the Marine Corps. He has been disqualified because the background check came back as a felony. The item he took was less than 20.00. Shouldn't it have been a misdemeanor? Can this be changed now? Even if he doesn't join ...

    Philip’s Answer

    Agree with Mr. Green and Mr. Cassara.

    There is likely more to this. In other words, what else is in the record.

    I will say that occassionally someone else's info gets in the wrong record.

    If he was held for 10 minutes and there's no conviction, where does that "record" come from?

    See question 
  • Can a superior officer with a Letter of Instruction issue a Non-punitive Letter of Reprimand? Or is this from higher command?

    Wondering if an LOI gives authority to a senior, superior officer to issue a Non-punitive Letter of Reprimand.

    Philip’s Answer

    Are you Navy or Marine?

    The answer is yes, but usually the better practice and judgment is to have the senior issue the NPLOC. It just looks better all around.

    See question 
  • Can a DACA receipient join the military?

    Can a DACA receipient join the military? If so what branch? I'll like to join the Navy or Army (I prefer the navy) but I'm not sure if it's possible. And if my husband is a marine is it possible to get stationed with him?

    Philip’s Answer

    Not currently.

    Should you join, then they do have provisions for co-location of spouses. It's not guaranteed but they do make an effort.

    See question