ROTC Disenrollment Notice and Rights
The post includes a portion of an episode of the Military Justice Today podcast related to ROTC disenrollments, and specifically the process of being notified, rights of the accused at the Board, and need for preparation prior to. For additional information, please listen to the full podcast episode here.
0:18:33.2 Matt: Let’s talk about the process. We had a whole episode that we’ve done previously on parents. I think this would be… Everybody wants to know about this, but I think parents especially. What is the process of somebody who’s accused of misconduct.
0:18:47.4 Mickey: So it varies from service to service. But generally speaking, the process is the same in this regard. You’re gonna be notified. You’re gonna be notified by your PMS that they are moving forward with a disenrollment. In the Navy and Marine Corps they call it, I believe it’s a Performance Review Board is basically the same thing. Now, what that means is, is you’re under investigation, they are going to investigate whatever allegation is against you, and then that PMS or PNS is gonna take that investigation and make a recommendation to the brigade commander who will then initiate the disenrollment proceedings if he sees that that’s what should happen.
0:19:26.9 Matt: Okay.
0:19:28.6 Mickey: What will happen also is you’re gonna get what’s called a leave of absence in the army. It’s basically a flag saying. “Hey, you’re not allowed to come to any more of the courses until this whole thing is figured out and you’re not gonna get paid anymore ’cause you’re getting a stipend while you’re in that program.” So they’re gonna put a cease to that, and then during that time while you’re being investigated, that’s when you typically, you and your lawyer start gathering all the evidence.
0:19:55.3 Matt: Okay.
0:19:55.9 Mickey: And you have an opportunity to meet with this investigator, right? Before they make a decision, whether or not to send it to a hearing, you have an opportunity to meet with the investigator and that might be in your best interest or it might not be. It just depends on the case. The one thing I’ll say, if you’re in the Air Force ROTC, that is the only opportunity you’re going to have to make your case. Is to meet with that investigator, you don’t get a hearing like that, is it.
0:20:18.8 Matt: Really. That’s just in the Air Force.
0:20:20.3 Mickey: That’s just in the Air Force.
0:20:21.0 Rob: I find that to be just so shocking, I really… I think it just shows… It’s so shocking they can force you to pay back hundreds to thousands of dollars in some cases, and you don’t even get an opportunity for a hearing. But I know that’s the way it is.
0:20:33.9 Matt: Yeah.
0:20:33.9 Rob: I just don’t think it’s very fair.
0:20:35.2 Matt: So in the Air Force, you would just make your case to that investigator?
0:20:40.2 Mickey: You have five days to do it.
0:20:41.5 Matt: Wow.
0:20:42.3 Mickey: They notify you. You’ve got five days later, you meet with that investigator so.
0:20:45.0 Matt: How long does it normally take outside of the Air Force, the process of gathering evidence and…
0:20:49.7 Mickey: Oh, months, generally speaking, once you’ve been notified or you let your investigation, it takes a long time for that to happen and get up through the chain. Gives you a lot of time to prepare.
0:21:00.3 Matt: Yeah.
0:21:00.4 Mickey: To gather the evidence and then if they decide that they wanna go forward, that also takes a good bit of time to set up the Board because that follows generally the same procedures as an administrative hearing.
0:21:12.2 Rob: Yeah, they’re very similar at that point with obviously one big difference when you get to the hearing.
0:21:16.1 Matt: Similar to a separation board that you would have if you were…?
0:21:18.5 Mickey: Well, I want Rob to talk about the biggest difference. This is just crazy to me.
0:21:22.6 Rob: Yeah. When you’re in the army and you’re notified of separation, you have the right to this Board, and it is really a mini-trial, you have a right to the board, you have a right to an opening statement, closing arguments, present evidence, cross-examine, basically what your attorney can do for you at a separation Board. At an ROTC disenrollment board however, much like a Title IX board, the attorney doesn’t have the right to litigate on your behalf, the person being accused – the client for us – has to represent themself. Now, the attorney can be there and our job is to prep the case like we were litigating.
0:22:00.7 Rob: We literally have to write opening statements and cross-examinations and practice it with our client over and over again, kinda like we’re back in law school and we’re helping out folks to moot court, but the attorney doesn’t have a right to talk, which to me, I think is absurd. I think number one, I think it’s biased, I think it’s unfair. I think that it’s a miscarriage of justice because like Mickey said, if you’re kicked out of the ROTC program, you might have to pay back a lot of money.
0:22:30.0 Mickey: Yeah.
0:22:30.7 Rob: Or give up two years of your life. An attorney should be able to argue for you because there’s enough at stake where the attorney should be able to do it for you, that’s the purpose of hiring an attorney. But the RTC Boards don’t allow it to happen, just like the Title IX Boards don’t, and I think in both cases, it’s a miscarriage of justice.
0:22:48.9 Matt: I think that’s shocking too. What if you had somebody who was absolutely petrified to get up and talk in front of…
0:22:53.9 Rob: Doesn’t matter.
0:22:54.3 Matt: Even two or three people.
0:22:55.1 Rob: It doesn’t matter.
0:22:55.6 Matt: And which I’m sure you probably have seen.
0:22:56.8 Rob: And sometimes we have cases on the ROTC level that are serious cases. I mean sexual assault allegations, we get those all of the time.
0:23:05.1 Mickey: Yeah.
0:23:05.2 Rob: And we’ve got some 18, 19, 20-year-old kid who doesn’t know the first thing about the law, trying to litigate on his own behalf. If he doesn’t have an attorney or she doesn’t have an attorney, first of all I don’t know how they do it, and then with the attorney, our job is to get them prepped, get them ready, we go over it, go over it, go over it. Practice it, practice it, practice it. And plus, I think having the attorney there ensures the Board is not gonna take advantage of your client, right?
0:23:31.0 Matt: But what if they tried to. What could you do?
0:23:33.1 Rob: The attorney could stand up for the client, just not on the record, right?
0:23:36.9 Matt: Understood.
0:23:37.5 Rob: And we’re not gonna do that.
0:23:38.7 Mickey: There’s a review process, everything gets routed and back up through because you have the Board, they make a recommendation, so their word isn’t final, this is what’s so crazy to me. So they make a recommendation about what should happen to this cadet or midshipman if you’re in the Navy. So, that recommendation could be retain them, let them go on let them commission, or it could be disenrollment. That gets routed through the legal shop all the way up to the main command and it’s usually a two-star command, right? In the Army, it goes up to Cadet command at Fort Knox, at the Navy it goes all the way up to the… I think it’s SECNAV, the Secretary of the Navy, but it’s delegated down a little bit… The Air Force, it goes up to the AFROTC commander. They have the ability, because you’re not even in the military to override whatever the Board says, so before when we were talking about…
0:24:33.6 Matt: Either way?
0:24:34.1 Mickey: Either way.
0:24:34.5 Matt: Over ride it either way?
0:24:35.6 Mickey: Either way. So if the board said that the misconduct did not happen, right? If they say the sexual assault did not happen, retain him, commander come back say, “I don’t care, kick him out.”
0:24:44.9 Matt: Just off the evidence they received.
0:24:46.8 Mickey: Yeah. So it’s very important that not only do you do a great job at the Board, but then you also have a good prep, like a good package or whatever that goes up to that commander. I have not seen that happen though, typically what you see is just the opposite, you get a guy who maybe they showed up late to classes a couple of times, they recommend disenrollment and obviously the guy is remorseful, he’s got a good track record. He’s got good PT. Whatever. And then the commander will give another chance.
0:25:19.8 Matt: So you see it get flipped that way?
0:25:21.4 Mickey: I see it get flipped that way.
0:25:21.9 Matt: In favor of the cadet.
0:25:23.7 Rob: Yeah. I haven’t seen a sexual assault that was unfounded, kicked the guy out anyway, right? I haven’t seen that happen, so that’s why it’s so important to win that Board.
0:25:33.3 Mickey: Those Boards, like Rob said, those Boards, when it’s not you litigating and you’re sitting there watching your guy and you know what kind of question to ask that witness, right?
0:25:42.9 Rob: Yeah, that’s hard.
0:25:43.8 Mickey: It’s tough.
0:25:44.5 Rob: That’s hard.
0:25:45.0 Matt: I just can’t imagine. I mean my guess is that they want responsible people serving, and so maybe that’s one more task, but it just seems odd that you would ask somebody to do that without really having any training outside of some prep with their attorney beforehand.
0:26:04.0 Rob: It’s not right. I mean, I don’t think it’s right, just like I don’t think it’s right that you can expel somebody under Title IX from a university on a sexual assault allegation, and they don’t have a right to have an attorney litigate for them. These things carry long, long-term consequences for the people that are involved. And it’s one of the things that quite frankly, bothers me an immense amount. These people need voices, but I do think they stand a much better chance if they hire the right attorney to get them ready… The right team, right? One of the things that Mickey does at our firm is he heads up this part of the firm, and we get our investigator on it. We typically have one of our associates or one of our paralegals also help out. We put together a very nice packet for these folks, and put them in as good a position as we can to help them succeed because there’s a lot on the line.