By: Heather Tenney, Esq.
No Cadet or Midshipmen joins the Reserve Officers’ Training Corps (ROTC) with the thought that they will face disenrollment. However, many can fall victim to losing their future career and owing thousands of dollars because they fail to properly react to a possible disenrollment. While the disenrollment process varies between the branches and departments involved, each Cadet/Midshipmen is entitled to due process. It is of utmost importance when facing the issues of disenrollment that you know to how the process is handled, how to set yourself up for success, and what your rights are throughout, as the outcome will have a drastic impact on your life and your wallet.
In most instances when you are facing disenrollment, the process will start with an investigation. This investigation will likely be your first and best opportunity to influence whether you will be disenrolled. Much like a criminal investigation, the government is looking for evidence to support a basis for disenrollment and looking at whether you are the type of cadet/midshipmen, who should be disenrolled or deserves another chance.
Depending on your branch of service, usually, you will either have the opportunity to present matters to an Investigating Officer (IO) or a Board of Officers. They will be making findings and recommendations as to (1) whether the reasons for disenrollment have been proven; (2) whether you should be disenrolled, and (3) if you are disenrolled, whether you should be ordered to repay all the financial benefits you have received, or be subject to enlistment to repay the debt. Your job in this process is to question the evidence presented in the disenrollment packet and/or present your own evidence. Depending on the basis for disenrollment, your avenues of defense may be different. Below are some considerations for the most common disenrollment cases:
Failed Drug Tests
Discovering that you are accused of failing a urinalysis can be scary, and you may assume there is no chance that you will commission. But there are many ways to fight a disenrollment based on a failed drug test. First, be sure that you get an expert to review the findings of the investigation. Throughout our firm’s history of involvement in ROTC hearings, we have seen that these programs don’t always use the “gold standard” when it comes to testing. If there are issues with the testing, then that expert could serve as a witness at the hearing. Second, even if the test is valid and there were no lab errors, you may not recall using and that is because you may have “innocently ingested” a substance, had a drug interaction, or a medicine for which you have a lawful prescription that caused the failure. An expert witness may be helpful under these circumstances as well. Third, you may have used, but based on your character and other factors, you could show that you should get another chance.
Misconduct can range from allegations of criminal conduct to integrity/honor code issues, and can often seem like an insurmountable hurdle to a Cadet/Midshipmen. The first step is to look at the allegation and the evidence being used against you. Even though the Disenrollment Board is not a court of law, the government still has the burden to prove the allegations. What evidence they are using and whether you have your own evidence to rebut it are critical to your success. You will have the opportunity to present evidence, whether it be through witness testimony or submitting documents. You also have the right to challenge or question any opposing evidence or witness testimony that the government offers.
Even if the conduct did occur, during many ROTC disenrollment cases, the Investigating Officers and Boards look to see if these issues are a pattern of poor behavior, or if it is an isolated incident. If you can show that the conduct is unlikely to reoccur or was a minor misstep, then you can fight for a lesser form of discipline, and save your future military career. Getting character witnesses and showing your positive history are elements of this type of defense. Typically, we call this mitigation or extenuation. It does not mean that you did not do what you are accused of, but instead there may have been an explanation for why it happened, or evidence to show it will not happen again.
Failing to meet academic requirements is one of the leading bases for disenrollment, but does not have to end your career. Often, you will be given an opportunity to improve your GPA by going on academic probation, but even if disenrollment is initiated, there are options to rebut and mitigate. Seeking a new major, working with your professors to bolster grades/obtain extra help, and even looking to see if there is a physical or medical basis for the academic issues are all potential areas to explore in defense of a disenrollment recommendation. At Tully Rinckey, we have beaten many a case in the past where programs fail to adhere to their own probationary requirements, so it is important to be mindful of your programs guidelines before your hearing.
If your reason for disenrollment is for failing to meet certain physical requirements, there are usually two main areas to attack. At Tully Rinckey, we review the regulations or instructions that control the administration of the test to ensure that the program complied with all the required rules, obligations and your rights. We have responded to many cases where there were procedural deficiencies with the testing and our clients were permitted to retest, and were able to pass and commission. Additionally, if there are medical reasons which caused or contributed to your PT Test failure, that can be a strong argument against disenrollment. Under these circumstances, having medical documentation and expert opinions will be crucial.
As discussed above, medical conditions can be a basis for disenrollment and they can also be a defense to certain other types of disenrollment. An important issue to be aware of when it comes to medical conditions is making sure that you disclose any possible medical issue that existed prior to ROTC or anything that arises during ROTC. In most cases, if you are disenrolled from ROTC based on medical disqualification, you will not be ordered to repay the government for your educational benefits. However, if the government learns that the condition pre-dated ROTC or that you did not disclose something during ROTC, they may treat the disenrollment as an integrity violation and seek to hold you accountable. Medical documentation, expert medical options and strong advocacy are the keys to a successful defense when it comes to medical disenrollment.
In the end, the most important thing you can do when facing disenrollment charges is not to give up and waive your hearing. Even if you believe that you have done what you are accused of, remember that is not all the IO or Boards consider. You have the opportunity to argue for another chance. Moreover, you can have someone help you to develop the best strategy, review and cultivate the evidence, and even advocate for you. Having a knowledgeable attorney is beneficial and is permitted, often, even at the actual hearing itself. Additionally, counsel can provide written legal arguments for the Board and approval authority’s consideration. With counsel, you can give yourself every advantage needed to disprove the allegations, mitigate, and save your military career. Moreover, if the recommendation from the hearing is for disenrollment, there are multiple levels of appeal, and by submitting a well written appellate brief addressing all the legal errors, you still have a chance to get your disenrollment overturned.
In all disenrollment actions, it is important to stay abreast on what policies and procedures your ROTC program operates under to ensure that you are having your case properly handled. With the consequences of disenrollment being so financially and professional detrimental, it is essential that you give yourself every advantage.
Heather Tenney, Esq. is a Partner in Tully Rinckey PLLC’s Albany, NY office and former Judge Advocate with U.S. Army Judge Advocate General’s Corps (JAG), who represents officers and enlisted service members in complex legal matters, including courts-martial, and adverse command actions against troops such as administrative separations, Article 15 matters, and other forms of non-judicial punishment. She can be reached at email@example.com or at (518)218-7100.
*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, policy or position of this publication.