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Be Careful What You Ask For In Military Justice

I am (often) critical of legal advice the government provides to its commander client.

I was recently reminded that in the grey where command sometimes operates, the military client seldom does himself or herself any favors by filing complaints. Even when the command is not following process. At least not before speaking with a seasoned civilian defense counsel and definitely not against that counsel’s advice. Let me say that again – even if the command is not following a procedure that a regulation says they should, it MAY NOT be in the member’s best interest to speak up. AND NEVER BEFORE speaking with an experienced attorney who can wargame with the member what are the likely consequences of demanding a given procedure will be adhered to.

I’ll give an example.

In the world of military medical credentials, there are well defined procedures and several layers of outlined due process. There are so many steps, and yet sometimes and more often than is just, it is a slow march to an adverse clinicals action. [Not always but often]. This is particularly the situation when commanders can ignore findings that exonerate the member, can shrug off recommendations that credentials should be fully reinstated even after a summary suspension. Yes, that’s right. Even if the commander receives findings and recommendations that the medical provider did not commit misconduct and even if the findings state the provider did not fail to meet the standard of care. Just because.

Recently, a credentialed provider contacted me for help on an adverse medical credentials action.

The path to the formal action went something like this:

Provider performed a procedure. A minor and completely routine complication occurred. The issue was caught. No harm to the patient.

Supervisor told provider that the provider would take a break from those and other more complicated procedures for an undefined amount of time.

Provider got impatient.

Provider filed a formal Inspector General complaint.

Valid complaint? Technically yes. The supervisor had not followed procedure by failing to take formal action.

So, what’s the remedy to provider? Provider gets served with a lawful adverse medical credentials action. Seriously.

Provider is outraged by this. My response? “Seriously?”

This is a cautionary tale.

Provider is now in the unenviable position of having to justify provider’s actions on this and other cases the supervisor decided to throw into the gauntlet.

BEFORE filing a complaint of any nature against the command, no matter how righteous any military service member feels they are on a given “wrong” the command is committing, the member should NOT file a complaint BEFORE speaking with an attorney. There are consequences to demanding process. The member just might get it, and it may not be what the member would want.

Be careful what you ask for because you just might get it

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