ADMINISTRATIVE SEPARATION BOARDS – ENLISTED MEMBERS
An administrative separation board is the process required when the command desires to separate an enlisted service member when the enlisted member has either more than six years of total combined (reserve and active) service or when the command wishes the member receive an Other than Honorable characterization of service.
In most scenarios, an administrative separation board comes after the servicemember has already received a prior action that has been filed in one’s official record, whether in the form of nonjudicial punishment (known in some branches as Article 15, NJP, or Captain’s Mast), from an officially filed letter of reprimand, or from a negative evaluation. The administrative separation board consists of three members that hear evidence to decide if misconduct occurred, and if misconduct occurred (by a preponderance of evidence, or 51% or greater), they decide whether the servicemember should be permitted to stay in service. If the administrative separation board recommends separation, the board must also make a recommendation as to what the characterization should be, i.e. Honorable, General, Under Honorable Conditions or Other Than Honorable.
As the drawdown impacts the various branches more and more, there is an increase in the number of administrative separation boards that are initiated by the command; there are also a rising number of boards that are being initiated by Human Resources Command, or the branch-specific equivalent. These boards are springing up as a result of the previous “bad paper” even though the command did not elect to initiate separation before.
The Characterization of Service can have lasting effects in many areas of civilian life, including one’s ability to obtain meaningful employment. Characterization of service can also deny the member federal and state tuition assistance for college. The notion that the member can easily obtain an upgrade to their discharge is inaccurate; upgrades to discharge are increasingly difficult to obtain and the service boards presume that the characterization from the original discharge is correct and just.
Boards of Inquiry – Officers
There has been a significant increase in the numbers of boards initiated against officers. A board of inquiry (BOI) is the process by which a commissioned officer can be eliminated from the service administratively. A board of officer can be initiated by the command’s action, but can also be initiated by the centralized personnel resources section of the branch of service. The Army’s Human Resources Command (HRC) and other branch equivalents initiates an elimination proceeding against an Officer that is found to have “bad paper” in the Officer’s official file. Examples of “bad paper” that would generate an elimination action include letters of reprimand (GOMOR), a relief for cause evaluation report, or any “referred” evaluation report that includes derogatory information.
Once an Officer receives notification of an elimination action, they have several options of how, if at all, to respond. The Officer can submit a resignation in lieu of elimination; the Officer can also respond in writing to the underlying allegations to request that the elimination action be rescinded; and the Officer can request, if the written matters do not convince the initiating commander to rescind the action, the Officer can opt for personal appearance and counsel’s representation at the board of inquiry. In most cases, the Officer has only thirty (30) calendar days to respond to the initial notification of elimination proceedings. Typically, after notice that a board will be convened, the board must occur within ninety (90) days.
The rights to counsel before a board of inquiry closely mirror those for a court-martial: the right to detailed (assigned) military counsel at no cost, the right to hire civilian counsel at the Officer’s cost, and the right to both working on the case. Unlike courts-martial, an Officer will not typically receive two detailed military attorneys like he would at a court-martial if he does not hire civilian counsel.
There are many strategies to combating elimination at a board of inquiry. Strategies vary according to the overall goal of the Officer. In some cases, the Officer has already acknowledged that he or she committed the underlying misconduct so that the goal at the board is to convince the members that the misconduct does not warrant elimination. In cases where the Officer has not acknowledged guilt and will not acknowledge committing the misconduct (whether because the Officer did not commit it, does not wish to admit it, or the evidence is not strong enough to convince the Officer that he or she should admit to it), the goal is to undermine the government’s evidence to appeal to the members for a finding of “no misconduct.”
The required finding of the members at a board of inquiry or enlisted administrative separation is first to determine if by a preponderance (more likely than not) of the evidence the misconduct was committed by the “respondent.” The “respondent” is the term for the person facing elimination or separation. If the board concludes the respondent committed the misconduct, next the board must make a finding as to whether or not the misconduct warrants separation. If the board finds that elimination is warranted, then the board votes to determine the characterization of service.
The methods of fighting elimination are many and varied, and a defense is only as limited as the imagination and devotion of the counsel representing the respondent. There are no rules of evidence at a board of inquiry or administrative separation and it is incumbent on the attorney to leverage as much evidence against the government’s counsel (called the recorder) as possible.
Despite the truncated rights a member has in administrative processes when compared to those involved at courts-martial, Congress has required the military to establish due process rights in all administrative procedures. Unfortunately, while Officers and enlisted members are entitled to advice and representation from appointed military lawyers, these actions are labeled “priority 2 and 3 actions” and are put behind the court-martial duties of military defense lawyers. Ms. Stewart makes your career of the highest priority when you hire her as your attorney.