I spoke with my Attorney and he said the only way the Army can extend your ETS is if they are thinking of a court martial. The investigation is still with CID and not even with Legal at this point. My Attorney told me to wait to my ETS date and show up at the transition office and "play dumb" hoping they will realize the Army can't extend me at that point and will have to let me ETS. He also said since I have a one year MSO that the Army can continue the investigation and when they are done call me back to present me with their findings. I am a MAJ in the Army and have 12 years in service. The investigation is for an article 132 however, there are no findings or evidence that CID can produce. What do you think I should do? ride out the next 4 weeks and then just start clearing?
correction. I am being investigated for alleged article 112a not 132. please update advice.
Military Law Attorney
It's a tad more complicated and as an officer, it doesn't really matter that you have an ETS or MSO. If they claim that the alleged offenses occurred while you were on active duty, they can recall you to AD for purposes of a court-martial. The only way that a commissioned officer can completely sever military jurisdiction is to resign their commission, but it wouldn't be accepted until after the MSO expires. Getting your DD 214 as a commissioned officer only means that your active duty service has stopped. If the Army "flags" you, you're automatically extended. Don't worry about what CID can or cannot produce, as you can't change that now without risking obstruction of justice charge(s). Since you mentioned that this investigation was for alleged Art. 132 offenses, there's more bad news unfortunately. The Army could turn this investgation over the the Justice Department for prosecution. I'm working on a case with an officer from Ft. Drum, who ETS'd and Justice has taken over the 132 allegations. Under the circumstances, and since this is a public forum, I'm not going to give you any advice other than to retain a lawyer with significant military and criminal law experience. Contact me privately if you want to discuss this in more detail. Good Luck in any event.
Military Law Attorney
Your attorney is correct. They can extend you if they "have an eye toward prosecution." It's not a bad idea to try to out process, but be warned the only way to actual have them lose jurisdiction is to get your DD214, Final Accounting of Pay, and actually depart the installation. They may still be able to being you back from an inactive reserve status, but that would take Secretarial approval, and is unusual.
Bottom line, they're not going to let you go. If they are serious enough to be taking this action, you're facing something pretty serious. I strongly recommend looking for an lawyer with experience defending military fraud cases.
I would be more than happy to provide a free consult. Feel free to call anytime.
Andrew Cherkasky of Cherkasky Law, LLC is an Illinois attorney focused on military & criminal defense. The advice given does not form an attorney-client relationship. The advice above is intended to educate on general legal principles and theories and should not be considered state specific advice. Please call anytime, day or night, to discuss further, 703-314-6475.
You can be extended for the purposes of investigation and potential court-martial.
Once you reach your ETS you should object to being extended.
Once past the ETS you cannot be held on active duty for administrative separation actions or Art. 15; yes at that point it has to be with a view to court-martial.
Be careful about how you clear - clients have ended up with new charges of false official statements because of something said or done during the clearing. Give me a call - its a free initial consult - done a lot of these cases since the "witch hunt" started about five years ago for those on TDY.
www.court-martial.com; www.court-martial.us.com; email@example.com 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.
AR 27-10 also staes that the preferral of charges serves as an extension beyond ETS. BLUF: I have never had a client clear in lieu of charges. I have done a number of these cases. Feel free to call and discuss.
This post is for information purposes only and does not constitute legal advice, nor does it establish an attorney client relationship with Mr. Cassara.
Military Law Attorney
I agree with the advice of my colleagues. BLUF: You need to consult an experienced military law attorney. Additional information is available on my website. Feel free to call me to discuss the specifics of your case and the options you have moving forward. The consultation is confidential and free of charge. Best of luck.