OK, let’s pick up where we left off yesterday. So you have searched your records and memory and made a list of anything and everything that could be considered “derogatory” whatsoever. Now you will organize that list where the derogatory information is listed in the following order: Anything that your employment was terminated for… Anything that you received a disciplinary action for (ie. Suspended from work, reduction in pay, stuff like that)… Anything that you received a written warning for… Anything that you received a verbal warning for… Anything that you actually did, somebody knew your did it, but nothing as far as you know was done about it… Anything that you actually did, but as far as you know, nobody knew you did it… And finally, anything that you did not do, but you think somebody may have accused you of it (ie. somebody was trying to do evil on you)… NEXT, you need to then take this derogatory information and break it down into two cases, the case against you, and the case that supports you. You must honestly look at the evidence on both sides, you must know what the other side said against you, treat it like a court case. What is the prosecution’s evidence against you, and what is the evidence that supports your position. Now after that, you must set your mind in reality mode, the evidence against you will be considered true and the burden will be on your to prove it false or that it is not reliable or that it is not sufficient to make an adverse decision against you. So you must now conduct your own investigation… In that investigation you need to discover the essential facts, and facts are (1) WHO, (2) WHAT, (3) WHEN, (4) WHERE, (5) WHY, and (6) HOW… So what do I mean by this, a good explanation is to use it in the concept of a Threat Statement… So here is a scenario: Mohammad Afghan Iraqi is riding his motorcycle to work in the early morning on 23 July 2012. As he is going through the Wadi in next to the River Sind in Tani District, Khost Province, Afghanistan, two people dressed in traditional Afghanistan Clothing (Tan Colored Jamay with Black Turbans) jumped out from behind some trees and begun shooting at Mohammad Afghan Iraq, of which in response Mohammad Afghan Iraqi accelerated his motorcycle and escaped the ambush… So what are the facts? WHO: who is involved in this incident?… (1) Mohammad Afghan Iraqi, and (2) x2 unidentified people wearing traditional Afghanistan Clothing… WHAT: What was the incident?... Ambush… WHEN: When was the incident?... Date – 23 July 2012… Time – Early Morning… WHERE: Where did the incident occur?... Afghanistan, Khost Province, Tani District, Wadi next to the River Sind… WHY: Why did this incident occur?... This would be speculation, but a reasonable suspicion could be argued that Mohammad Afghan Iraqi was being shot at because he is employed by or on behalf of the United States Government… HOW: How did this incident occur?... Two People jumped out from behind some trees and shot at or in the direction of Mohammad Afghan Iraqi as he was driving through the wadi… OK, so let’s now talk about Direct Evidence and Circumstantial Evidence… Direct Evidence is that evidence that “directly” establishes a fact. It can take the form of witness testimony (which can also be a written statement), Photographs, Audio Recordings, Forensic Evidence such as Fingerprints or Blood Samples that have been evaluated in a Laboratory. The list of this can go on and on and on… Circumstantial Evidence is that evidence that is not Direct, but will have a tendency to establish a fact. Direct Evidence is always stronger than Circumstantial Evidence… So an example of Direct evidence can be demonstrated by the following example. YOU made a nice Rice Pilaf and told the American Soldier to not touch it until it was time for everyone to eat. You leave the room for whatever reason and when you returned you saw the American Soldier eating the rice right out of the cooking pot. Your personal observation of the American Soldier eating the rice is Direct Evidence that the American Soldier was eating the Rice. Your Witness Statement, either in person or in writing is what is known as “testimony”… So an example of Circumstantial Evidence can be demonstrated by the following example. You made a nice Rice Pilaf and you told your Child to not touch it until it was time for everyone to eat. You leave the room for whatever reason and when you returned, you found the lid was off from the cooking pot, and their was rice on your Child’s mouth and clothes. Now this would be Circumstantial Evidence that your Child ate the Rice. Now once again, your Witness Statement, either in person or in writing is what is known as “testimony”… So let’s continue, pay attention to what I’m saying, this will soon make sense as I keep teaching you this information… OK, so now we will talk about the concept of Exonerating, Extenuating, and Mitigating Evidence and Circumstances… Exonerating Evidence is that Evidence that proves that your are Innocent of a Charge of Misconduct… Extenuating Evidence is that Evidence (or a Circumstance) that proves that you are not guilty of the Charge of Misconduct, but may be guilty of a lesser offense… Mitigating Evidence is that Evidence (or a Circumstance) that shows that while you may be guilty of a Charge of Misconduct, nonetheless you should not be punished for it or your punishment should be reduced… So let me explain it this way, pay close attention… Let’s say that you were accused of missing work and you were fired for it. You would want to first determine the date(s) that you were accused of missing, and let’s say that you found evidence (personnel rosters, pay time-sheets, newspaper articles, or witness statements from the Soldiers you worked with) that says that you were at work on that day. That would be Exonerating Evidence that would show that you were innocent of the charge of misconduct… Now let’s say that you were fired from your job because you missed five days of work. You claim that you were authorized the leave from work, but GLS or MEP says that you were not authorized leave from work. It is now your word against theirs (both parties testimony is direct evidence, but remember, the Embassy and SIV Screening cell will believe MEP or GLS before they believe you in this case)… Now you conduct your own investigation, and in your investigation you check your email, and you find the email where you submitted your leave request and the email reply from GLS or MEP that says that your leave was approved… Now that email from GLS or MEP saying that your leave was approved is both Direct Evidence and Exonerating Evidence that the Charge of Misconduct (missing work) was erroneous. Thus this is exactly what would be submitted in a Rebuttal/Appeal to a COM Denial if the COM Denial was based upon being fired (derogatory information) for missing work on whatever day was in question… OK, so let’s look at another example that I have seen in reviewing a COM Denial. So Mohammad Afghan Iraqi was given an authorized leave for 5 days. Now Mohammad Afghan Iraqi got married to his for love wife (Bibi Iraqi Afghan). Now he was in Kabul, and she was in Baghdad, so he traveled to Baghdad for their Wedding. So he called “Pamir Travel” in Freemont California and talked with my good friend Hashmat, and Hashmat got him a plane ticket to fly from Kabul to Baghdad on DAY 1 with a return flight on DAY 4, giving Mohammad Afghan Iraqi all of DAY 5 to get back to FOB Kick Some Taliban Ass in Nowhere Province. So Mohammad Afghan Iraqi fly’s from Kabul to Baghdad as planned, gets married on DAY 2, has a big party in DAY3, and goes to the Airport on DAY 4, but the plane got blown up by the Mahdi Militia so there is no plane to fly back to Kabul on… Now Mohammad Afghan Iraqi calls my good friend Hashmat with Pamir Travel in Freemont California and Hashmat gets him booked on the next flight from Baghdad to Kabul, but that flight will not depart until DAY 5… Now Mohammad Afghan Iraqi fly’s from Baghdad to Kabul on DAY 5 and immediately begins his travel from Kabul to FOB Kick Som Taliban Ass in Nowhere Province, but he does not arrive until DAY 6… and his GLS or MEP Supervisor is a Dick and fires him on the spot… Well he submits his SIV Application packet and his COM is Denied because he was fired for missing work… So Mohammad Afghan Iraqi does some Detective work and starts finding his evidence, and what he gathers is (1) his Marriage Certificate, (2) newspaper article that his plane in Baghdad was blown up by the Mahdi Militia, (3) His travel plans (also known as a travel itinerary) that showed he was scheduled to fly back to Kabul on DAY 4, and its rebooking, thank you Hashmat from Pamir Travel in Freemont California, and several witness statements from people that stated that he arrived on DAY 5 in Kabul and immediately begun traveling from Kabul to FOB Kick Some Taliban Ass in Nowhere Province… So in this case Mohammad Afghan Iraqi did in fact miss work, BUT, his absence from work was as no fault of his own (ie. the Mahdi Militia blew up the airplane) and he made every attempt possible to return to work as quickly as he possibly could (evidence is the travel itinerary and witness statements, and proof of reason for the taking of leave is his marriage with such proof of that being the marriage certificate)… so this would be a case of an EXENUATING Circumstances, and that the Employment Termination was in error because there was no actual misconduct perpetrated by Mohammad Afghan Iraqi when the totality of the circumstances is considered… That leaves us to the situation in which the concept of Mitigating Circumstances is considered. So let’s say that Mohammad Afghan Iraqi was fired from his job because he punched CPT America in the nose. Now he submits his SIV Application Packet and 6 months latter he gets that dreaded COM Denial Notice saying that his COM was Denied because of Derogatory Information (and while it did not say what the derogatory information was, the only thing that memory returned was that CPT American Punch in the nose incident)… Well Mohammad Afghan Iraqi kept all of his documents and somehow managed to contact our favorite overworked and underpaid SIV Supporter, and then explained that he only punched CPR America in the nose because CPT America walked up to him while he was praying and kicked some dirt in his face and said that all Muslims are Terrorists or something else that was insulting. Well our good friend the SIV Supporter then conducts some research and finds a person in the unit (by looking at the signature block on one of Mohammad Afghan Iraqi LOR’s) and giving that person a call, and in that call that person says that CPT America did in fact kick dirt in Mohammad Afghan Iraqi’s face while he was praying and then after that he punched CPT America in the nose. He then tells SIV Supporter that he is not willing to write a statement because he still works for CPT America, but he gives SIV Supporter the names of everyone who witnessed the incident, of which SIV Supporter contacts them, and as it turns out, three of them are no longer in the unit and are more than willing to write witness statements in support of Mohammad Afghan Iraqi. After obtaining these witness statements, Mohammad Afghan Iraqi then writes his own statement saying that he only punched CPT America because CPT America kicked dirt in his face while he was praying and said an insult to him for no reason. Thus the statement of Mohammad Afghan Iraqi and the three Soldiers prove that CPT America kicked dirt in Mohammad Afghan Iraqi’s face while he was praying and that CPT America insulted him for no reason. Now while Mohammad Afghan Iraqi should not have punched CPT America in the nose, CPT America also should not have done what he did either, and thus under the totality of the circumstance, Mohammad Afghan Iraqi’s misconduct should be forgiven because it would not have happened but for the misconduct of CPT America, and thus there was Mitigating Evidence or Mitigating Circumstances… So where am I going with this… To prepare your Rebuttal/Appeal, or if in a resubmission, you should be able to explain any possible Derogatory Information by way of (1) Exoneration, (2) Extenuation, or (3) Mitigation… and in making that preparation, you need to do some Detective Work to discover and obtain your evidence, and then to explain your evidence in such a manner as to overcome any possible disqualification that may be asserted based upon such claimed “derogatory information”… OK, I am an old man and my eyes have once again grown tired… in my next post we will continue with this series of discussion… your homework for tonight is to read this post 10 times and to think long and hard about the concept of: DISCOVER THE EVIDENCE (Become a Detective/Investigator) FACTS (Who, What, When, Where, Why, and How) ORGANIZE YOUR EVIDENCE (Is It Direct or Circumstantial Evidence) EMPLOY YOUR EVIDENCE (Is it EXCULPATORY, EXTENUATING, or MITIGATING)
Posted on: Sat, 27 Jul 2013 18:01:30 +0000
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