We’re often asked, how do you fight a military separation?
The answer to that will very much depend on how long that member has been in service for. Any member who has been serving for fewer than six total years as an enlisted person, or for fewer years, as an officer has much fewer rights and much fewer avenues of fighting a military separation. Generally speaking, those individuals with fewer than six years will only have the opportunity to ask in writing to the authority who can separate you, to not separate you, and to provide reasons and a memorandum with attachments. And underlining all the reasons why that service member either did not commit the misconduct and or why that member deserves a second chance. When people who have six years or more of combined service, including reserve time and how that’s calculated in active duty time, those individuals are given additional layers of due process, which includes the opportunity to appear before a board of individuals who are tasked with deciding whether or not misconduct happened, deciding whether or not, if they do believe misconduct happens, if it warrant’s separation.
And then if they do believe it warrant separation, what would be their recommendation regarding the characterization in that additional layer of due process at the board, the member has the right to be represented by an attorney. They can receive either their assigned, free military attorney. And they also can go out and hire private counsel, who does these, quite often, and is experienced in them. At that board, you can fight separation by providing evidence that underlines why that person did not commit the misconduct and also any potential extenuating circumstances highlighting that person’s entire career and all of the contributions that they’ve made. We look also at the investment the military has made to help understand for the board members, why it is that it would be a grave result in order to kick this person out, to fire them, to administratively separate them. So how a person can fight military separation very much depends on what layers of due process they are entitled to. And that varies based off of how long they’ve been serving.
Jocelyn Stewart is a UCMJ court-martial attorney who specializes in defense of allegations of sexual assault for all branches of the military worldwide.
Contact the Law Office of Jocelyn C. Stewart at 1-888-252-0927
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