I am in the Air Force and have been served Involuntary Discharge paperwork. The reason for being discharged was for supposedly putting a video of my ex girlfriend on the internet. I was contacted months ago by detectives and gave them a statement and even let them look through my phone and computer to clear all charges. Recently all charges have been dropped against me due to lack of evidence.
Somehow the Air Force was notified. I was called into the commanders office. He told me he talked to the detective and he stated that she thought I did it, but just couldn't prove it. If I am discharged is there any legal action I can take against the Police Department? Or the Air Force? Can I sue for defamation of character and loss income?
I have a clean AF record with zero prior discrepancies.
Military Law Attorney
You cannot sue the AF.
If being processed for discharge you should exercise your rights. I believe you asked a similar question earlier about discharges.
If you are discharged then you should petition the Air Force Discharge Review Board, and potentially the AF BCMR.
You will not be able to successfully sue the police. It sounds like they did what happens in many situations. They investigated, didn't think they could make a case stick in the civilian court, and so turned it over to the military. The AF will prosecute someone at court-martial on the same or similar evidence.
And you should be exercising your rights to silence under Art. 31, UCMJ, whenever they try to talk to you about this.
And finally, make an appointment with the local ADC.
Military Law Attorney
It is not uncommon for the military to prosecute people that the civilians don't. Police (whether military or civilian) can interview whomever they feel necessary to complete an investigation. Like Mr. Cave says, the best thing is to say nothing and exercise your rights to fight the discharge.
Criminal Defense Attorney
You will not have any grounds to sue the police or the Air Force. Police departments typically notify military units when a military member is under investigation in the civilian community, there is nothing legally wrong with this. Keep in mind that the civilian police were investigating you for a crime. The fact that the case was "dropped," does not mean that there was no evidence against you. It may only mean that the prosecuting attorney did not believe there was sufficient evidence to prove your guilt beyond a reasonable doubt. Or, it may mean the civilians waived jurisdiction in favor of the Air Force by agreement.
The standard of proof in an involuntary discharge proceeding is much less than that needed in a criminal proceeding. Whereas proof beyond a reasonable doubt is needed in a criminal proceeding, a misconduct discharge only requires proof by a preponderance of evidence. That is, the evidence need only be sufficient to show that it is more likely than not that you committed the alleged misconduct. Nevertheless, you should exercise your rights in the discharge process, not least of which is the the right to legal counsel. The Air Force will provide you with an Area Defense Counsel (ADC) for a misconduct discharge. If you have six or more years of service, you are entitled to a hearing before a board of officers. If you have less than six years, you will be entitled to a board if your command recommends an under other than honorable conditions discharge (UOTHC). If you have a right to a board hearing, avail yourself of the right. It will be the only real opportunity you will have to challenge the evidence against you and save your career.
Law Office of Stephen P. Kelly (508) 983-1479--Criminal Defense, Military Law, Divorce & Family Law, Appeals. DISCLAIMER: Answers to posted questions are for general interest only and do not constitute legal advice. No attorney-client relationship is established by virtue of any answer posted by the attorney.
You have repeatedly posted your scenario over the last several days and repeatedly received the same kinds of responses from a dozen lawyers with decades of criminal and military experience.
Based on your posted facts, you have NO case against the Police, the City, the Department of Defense, the Air Force, the courts, the local sheriff, even the girlfriend---NO ONE.
Recommend you stop looking in the rearview mirror and look forward--IF you are separated make sure you exercise your rights and do everything possible to ensure you receive an honorable discharge--anything less will impact you for years to come.
BTW, your command hasn't yet taken action near as I can tell--if you were a stellar performer your command would likely NOT move to separate. You MAY be able to affect that process by sitting down with your senior enlisted advisor, your XO, your CO and indicating your desire to stay in the AF, move ahead with your professional and personal development. That is the best place, maybe the only place you will have a significant ability to influence the process. Of course as many have already told you--seek the advice of your legal service office if the command moves to begin the separation process.
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