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Questions Answered by Philip D. Cave
1 Answer | Asked in Military Law for North Carolina on
Q: Each member of the Military swear an indivdual oath to "Protect and Defend the Constitution against all enemies, foreign

What constitues the 'trigger' which brings that Oath to bear?

Philip D. Cave
Philip D. Cave answered on Apr 7, 2015

The taking of the oath.

From then on you are committed to protect and defend THE CONSTITUTION of the US, not the flag, not the country, not the President, but the founding document upon which the American form of democracy is based upon.

1 Answer | Asked in Military Law for Utah on
Q: Is it legal for signed military doccuments to not be sent up the chain of command?

I was supposed to receive a general discharge from the military, but my CO never sent my paperwork up and now im facing a dishonorable discharge. Is there anything i can do to recieve the innitial discharge?

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

If you are facing a DD, that means you are pending general court-martial for some serious allegations.

Yes, an administrative elimination can be stopped if he intent is to conduct a court-martial or other disciplinary action.

If instead of a GD they are now seeking an OTH, then you...
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1 Answer | Asked in Military Law for Georgia on
Q: I am in the army and today during room checks my sergeant through several items of mine onto

The ground cause damage to them. These items were two video game disc. One being an older game that had great sentimental value to me and the other an newer more expensive one. When I brought it up to my commander he made it seem like my fault. After I expressed my disagreement he told me that the... Read more »

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

You could file a complaint under Article 139, UCMJ, for damage to the property.

See here. https://www.law.cornell.edu/uscode/text/10/939

The complaint should be addressed to the CO and in writing, explaining in detail what happened and the cost of replacement.

If the CO...
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1 Answer | Asked in Military Law on
Q: What you do when you are being belittle, career threatened, and verbally abused by a Senior Enlisted at your command?

Other Officers and Senior Enlisted stand around and do nothing

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

1. Discuss it with the leadership. Start with the individual, then the first sergeant, then the open door policy to the commander.

2. If that doesn't work you can try an IG complaint, contact your Congressperson.

1 Answer | Asked in Military Law for Nevada on
Q: Finally getting my military records I find documents that have been forged in my name dated before and upon my discharge

Does that means my records have been violated?

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

If you can prove it with solid evidence, you may be able to get the Board for Correction of Military Records to put them straight. This is important if the current records affect your employment or benefits.

1 Answer | Asked in Military Law for Colorado on
Q: So my husband has been sexting and on facebook with another girl but he has not sent nudes can he still get in trouble?

Husband talks about being with her eating her out and all that but no nudes he sent can military still punish him

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

He needs to stop -- NOW.

There are quite a number of cases going on to do with on-line activity such as this. Whether he ultimately gets in trouble or not, it's not healthy for your relationship and his commanders may not look at him as a good Soldier/ so it might affect his career.

1 Answer | Asked in Military Law for Alabama on
Q: I received a general under honorable conditions discharge from the USAF and I had a question about upgrading for

Injustice I received a general under honorable conditions discharge from the USAF and I had a question about upgrading for injustice

during the process my commander broke my constitutional rights, will this help me in getting an upgrade?

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

Maybe.

One of the things they look at in the upgrade process is whether there have been significant procedural errors showing the process was unfair. So maybe you have a case to prove an inequity.

NOTE NOTE NOTE.

You have 15 years from date of discharge to apply. This is a...
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1 Answer | Asked in Military Law for North Carolina on
Q: If a soldier owns a business, are they required to report that they own the buisness to their commander?
Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

Each Service has their own regulation regarding "off duty employment."

Check your unit admin for the regulation on "moonlighting" or "off duty employment."

Generally it can't interfere with military duties.

There are also some potential ethics regulation issues about...
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1 Answer | Asked in Military Law for Texas on
Q: If you commited a felony while active duty. Get out with benefits, do you & your family loose all military benefits?

Arrested after out of military but commited crime while still a soldier and active duty.

Philip D. Cave
Philip D. Cave answered on Apr 2, 2015

You military benefits are based on the discharge you received, independent of the conviction.

If you got an Honorable then you get all of your benefits. A general you get most, except education and home guarantee. With an OTH its harder to have any benefits.

1 Answer | Asked in Military Law for Georgia on
Q: My company is about to make its first million. Can I get out of the Army earlier so I can put in more time and effort?

A friend of mine, and I started a company. As I am in the Army, he is doing most of the work, and I am doing my best based on the time I have, and mostly online related stuff. Our company would be hitting it's first million dollars soon (hopefully in a few months), and I would love to fully be... Read more »

Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

No. You do not have the kind of reason that would warrant an early termination of your contract. Early outs are for hardship, or as another example to go to school if you are within a few months of your EAS.

2 Answers | Asked in Military Law for Florida on
Q: Can that Article 15 come out of my OMPF and can I get my rank back?

I recieved a feild grade article 15 which took one grade from me E6 to E5 and was filled in my ompf restricted file for an infraction which I provided documents proving I did not commit the crime. I was sentenced to a seperation board on Dec. 6 which I won and recieved Retention due to lack of... Read more »

Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

Not at this point unless you can persuade the Army Board for Correction of Records to remove it. You have three years from the date of imposition to apply.

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2 Answers | Asked in Military Law for Georgia on
Q: Hello I have a few questions. It is authorized to use your military email account to conduct personal business?
Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

No.

The prohibitions are similar to what they used to be many years ago when all we had were desk phones.

You can use government email to make checks on kids, family member undergoing an emergency, perhaps to say you'll be home late. But personal use of email is intended to be for...
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2 Answers | Asked in Military Law for Florida on
Q: My best friend was discharged from the Marines because he said he was a drug addict. But he told me he lied about it.

My best friend was recently discharged from the Marines because he said he was a drug addict. He got a other than honorable with a RE4B (He told me it means he cant reenlist). However, he recently confessed and told me that he lied about taking drugs so he can leave to be with his fiancee. However,... Read more »

Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

He can't reenlist because he got an "Other Than Honorable" and because of the RE code.

He will not be reenlisted for that reason.

Also, if they believed him that he lied, then they will not want to reenlist him because he lied to get out.

Suggest he move on and learn from...
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2 Answers | Asked in Military Law for Washington on
Q: Ive signed my dd214, cleared post & unit.. can the army legally call me back to sign an ncoer?
Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

They should mark the report as unavailable for signature.

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2 Answers | Asked in Military Law for Washington on
Q: Field grade article 15 for positive UA of THC, doesn't smoke but have been around in-laws that are heavy smokers

What advice do you have for me. I'm stationed in a state that is legal for marijuana to purchased and utilized as long as you have a medical card for it. I don't know how else you can prove that I'm innocent of this type of conduct without bringing my husband's relatives in it. I have never had a... Read more »

Philip D. Cave
Philip D. Cave answered on Apr 5, 2015

The issue of testing positive due to being around those who smoke marijuana has been studied extensively. There is no credible research to support the idea that a person can test positive from being around family members who smoke marijuana. This has been tried and litigated in courts-martial... Read more »

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2 Answers | Asked in Military Law for Illinois on
Q: Can military retirement benefits be taken away after serving twenty plus years and receiving an honorable discharge
Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

A very imprecise question.

Where you retired, and got a DD214 with an HD. If so, the only way that normally you lose retirement is if you are recalled to active duty for the purpose of prosecution at court-martial for conduct which happened while you were on active duty.

Can a...
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2 Answers | Asked in Military Law for Oklahoma on
Q: Is anyone working on the military's Mandatory Supervised Release program?

Currently incarcerated on "parole" without a court order under the military Mandatory Supervised Release Program. Pursuing relief via Habeas Corpus, but am having to go in forma pauperis / pro se. Let me know if you are interested, even academically.

Philip D. Cave
Philip D. Cave answered on Apr 1, 2015

When in MSRP it is very similar to parole.

There is a question whether it is sufficient for habeas purposes.

But it depends what you are challenging.

The Court of Appeals for the Armed Forces has decided a case some time ago that states MSRP is not punishment and the...
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