Q. I want to retire after more than 20 years of service. I got in some trouble a few months ago and am wondering: Will that affect my retirement?
A. In this era of military downsizing and belt-tightening, you will want to watch out for the government's attempts to retire you at a lower grade level. By taking such an action, the government can cost you thousands of dollars in pension benefits over your lifetime.
Each branch of the military has its own way of making such grade determinations. Branch boards or other entities must weigh in on whether the member's service at the highest grade held was satisfactory.
Under Army Regulation 15-80, for example, service in the highest grade is unsatisfactory when it results from a terminal leave promotion, as in an honorary promotion; when the grade was lowered for misconduct; or when "[t]here is sufficient unfavorable information to establish that the soldier's service in the grade in question was unsatisfactory."
Service members need to be especially wary of that last point. That's because the grade determination review board's examination is not limited to information in the service member's official military personnel file — evidence of a civilian arrest or other negative information is fair game for consideration by the board.
If the military does use such non-OMPF information to argue for an unsatisfactory determination, the service member usually must be given the opportunity to review it, and, with the help of a military law attorney, submit a written response. The service member also can submit information not in his or her OMPF to the board to support the application for a satisfactory determination.
Such non-OMPF information could include supporting statements from nonmilitary personnel. The applicant's military law attorney also will want to include supporting statements from peers and commanders as well as documentation highlighting service achievements.
Service members looking to retire should not let the government get away with making mountains out of molehills just so it can save a few bucks. As AR 15-80 states, "One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade." The Navy's OPNAV Instruction 1811.3A also supports this approach, noting that one of the factors on which satisfactory determinations can hinge includes "[t]he nature and severity of any misconduct."
Service members coming up on 20 years of service or longer and who are concerned about efforts by the government to reduce their retirement rank should consult with a military law attorney. An attorney can help fight the government's attempt to retire him or her at a lower grade level by preparing matters for submission to a grade determination review board in support of the service member's application for retirement at their highest rank achieved.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.
