What is an Administrative Separation Board?
An administrative separation board is the process required when the command desires to separate an enlisted service member and that member has either served six or more years as of the date the board is initiated, or the command wants to pursue characterizing the members’ service as Other Than Honorable (OTH). The member facing separation is known as the respondent.
When Does an Enlisted Member Face Administrative Separation?
In many cases, an administrative separation board occurs after a servicemember has already received some form of prior disciplinary action recorded in their official file. This could be nonjudicial punishment (like Article 15, NJP, or Captain’s Mast), an officially filed letter of reprimand, or a negative evaluation.
Who Sits on an Administrative Separation Board?
An administrative separation board, as it is known for enlisted members, is composed of three members who assess evidence to determine if misconduct occurred. Typically, the members who sit in judgment are two officers and a senior enlisted member like an E-8 or E-9. If the enlisted person the command is trying to separate (the respondent) represents a minority, then that member can also request that a minority member sit on their board, but the minority need not be the same minority as the person facing separation.
How Does the Administrative Separation Board Decide?
These members vote by secret written ballot and 2/3 members must reach a concurrence.
If the board members find it is more likely than not that the noticed misconduct, known as a preponderance of evidence (more than 51% likelihood), they then decide whether the servicemember should be separated from service. It is important to know that even if the member was found “guilty” at NJP, the board still must separately decide if the evidence supports the misconduct. The same is true for any letter of reprimand where the rebuttal was ignored, and the letter was officially filed.
If they recommend separation, the board also suggests a characterization of service: Honorable, General (Under Honorable Conditions), or Other Than Honorable.
Is the Military Increasing the Number of Administrative Separations?
As the military drawdown affects various branches, there’s a growing number of administrative separation boards initiated by command and the Human Resources Command, PERS, or branch-specific equivalents. These boards can stem from previously filed “bad paper,” even if the command did not initiate separation at the time of the initial misconduct.
Why Administrative Separation Boards are Important?
Whether a member is retained to retire or to continue working toward a vested retirement decides lifelong benefits and pension. Similarly, the characterization of a person’s military service has a lasting impact on civilian life, affecting employment opportunities and access to federal and state tuition assistance for college.
Can’t I Just Upgrade My Discharge Later?
The belief that one can easily upgrade their discharge is inaccurate; obtaining upgrades is increasingly difficult, as service boards typically presume the original characterization is correct and just. It is never automatic to upgrade a discharge, and because of what the law calls the “presumption of regularity,” it is an uphill battle. This makes it all the more important to win at the board level.
Resources to Prepare Members Facing Administrative Separation
While the process can seem to many like a “kangaroo court” because there are very few rules of what evidence is admissible in an administrative separation board, we find that we prefer to flex the rules to benefit our client, the respondent. Given the number of members we have represented over several decades, we have fine-tuned our evidence packets. For more information about gathering evidence to present at an administrative separation board, please review this post.
Witnesses and Memoranda for an Administrative Separation Board
In addition to presenting documentary evidence, members facing separation should also vet potential witnesses for testimony or for authoring memos in support of the member’s retention. Fact witnesses and character witnesses matter. For more about how we help vet who should testify and who should write a memo, please read our detailed post.
Options in Addressing the Board Members
Administrative separation boards offer three options to the respondent facing separation: 1) Testify under oath; 2) Remain silent; or 3) Provide an unsworn statement. Each option has benefits and consequences, and from decades of advising hundreds, even thousands of service members facing this process, we know that each case is unique and how to help guide the respondent to this critical decision. For more information about the three choices given to every administrative separation respondent, take a look at this post.
No Need to Go it Alone
The deadlines to respond to administrative separation come quickly. While every service member is entitled to free uniformed legal counsel, each is also able to privately hire experienced civilian counsel. Private counsel is not limited by the legal triage inflicted on the uniformed counsel. We don’t need to wait to start preparing your defense. Schedule a consultation so you can be prepared when your command attempts to take away your military career.