Appeal Against Military Disciplinary Action | A Noncommissioned Officer Who Received a Military Disciplinary Action Obtains Revocation of the Disposition Through an Appeal

The basic procedure for responding when an unjust disciplinary action has been imposed in the military is as follows.

1. Receipt of the disciplinary notice
→ Receiving the disciplinary resolution, the statement of grounds for the disposition, and similar documents, and then reviewing and examining them

2. Submission of the letter of appeal

→ Submission within 30 days from the date of receiving the disciplinary notice

3. Examination by the appeal review committee
→ Review of the grounds for appeal (procedural violations, violations of the principles of proportionality and equality, and the like)

4. Notification of the decision
→ A final decision of one of “dismissal,” “mitigation,” or “revocation”

The attorney submitted a printout of the completion results showing that the client had in fact completed all gender-sensitivity training in the past.

On this basis, the attorney emphasized that “the client had no reason to complete the training improperly,” and this served as key evidence demonstrating the absence of any intent to violate his duty.

The resolution of the disciplinary committee stated that “there is no evidence to overturn the point that the client had explicitly declined the offer.”

The attorney pointed out that this meant the disciplinary action itself had been imposed in a state of insufficient evidence.

In other words, the argument was that imposing a disciplinary action even though the existence of the grounds for discipline had not been proven was procedurally unlawful.

Relying on Supreme Court Judgment 98Du6951, the attorney argued that “imposing a disciplinary action that is excessive relative to the degree of the misconduct violates the principle of proportionality, and failing to apply a consistent standard to conduct of the same degree violates the principle of equality.”

The attorney went on to emphasize that imposing a disciplinary action on the client, who had declined an improper offer to record course completion and was not the person actually in charge of the training, was a clear imbalance.

If the disciplinary action were upheld, the client faced a situation in which he could suffer substantial disadvantages, such as forfeiture of his honorable discharge allowance and ineligibility for the award of a decoration.

The attorney presented this as a factor in assessing the substantive proportionality of the disciplinary action, emphasizing that the disciplinary outcome was excessive relative to the minor nature of the conduct.

The attorney experienced in military matters prepared the letter of appeal in accordance with the disciplinary regulations (the Military Personnel Management Act, the Military Criminal Act, and the like), and the administrative law attorney logically structured the statement of grounds for the appeal around the deviation from and abuse of discretionary power, violation of the principle of proportionality, and insufficiency of evidence.

In addition, they appeared in person before the appeal review committee, presented oral arguments, and actively explained the client's innocence.

A military disciplinary action can determine a service member's career and honor.

As in this case, if there is a violation of the principle of proportionality, insufficiency of evidence, or a procedural violation, one can be adequately relieved through an appeal against the disciplinary action.

In particular, where an attorney experienced in military matters and an administrative law attorney work together to combine proof of the facts, legal argument, and oral advocacy at the appeal review, there is a strong possibility of obtaining a decision revoking the original disposition for an unjust disciplinary action.

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