On any given day in the U.S. Armed Forces, multiple servicemembers will get written notice from their unit telling them that they are getting kicked out for something they are accused of having done. This is known as administrative separation. Some assume that there is nothing you can do about this, but that is far from the truth. Here’s what happens and how you can fight an involuntary administrative separation for misconduct.
Individuals facing administrative separation have certain rights, based on their years of service and the specifics of their discharge. This is known as their level of due process, which depends on whether they have already vested a certain amount of time into their military careers. A service member may or may not be eligible to have a board hear their case. If command notifies a member that he is facing a potential General Discharge with an Other Than Honorable (OTH) characterization of service, that member has the right to take their case to a board. This is always true in OTH cases, regardless of their time in service. Also, if she have six year or more years of total service, that member generally have the right to a board hearing (some Coast Guard members will need eight years).
When notified of administrative separation, the member will be informed that he has the option of waiving that board. We highly encourage servicemembers to NOT waive this right. One exception is the “conditional waiver.” This is a special request that must originate from the servicemember. A conditional waiver offers to give up the right to a board in exchange for a specific characterization of service. The Separation Authority does not have to approve this request, and these offers should be made only after a careful evaluation of the case.
A service member facing administrative separation also has the right to be represented by an attorney. The member always has the right to represented by military defense counsel, at no cost. If a member is heading into a board hearing, we strongly recommend he considers retaining a civilian attorney experienced in military law. There are many reasons why it makes sense to hire private counsel, and every case is different, but at a minimum we encourage those facing separation to consult with experienced legal counsel who have successfully represented military personnel in the past.
Maybe the member’s only strategy at the board is to admit to wrongdoing but to hope for leniency and retention. These are the boards that are the easiest for uniformed counsel to handle. But not always.
A military member facing administrative separation also has the right to submit written evidence to the command to dispute the basis for separation and / or to argue for retention. If the member is not eligible for a board, this is the only option the member is entitled to use to try to save his career. Many think that this is an either-or option, meaning your choice is to submit matters OR ask for a board. That is not accurate: a member always has the right to submit matters to the Separation Authority, even if they assert their right to the board. This submission may be made at any time. We often author these responses for clients.
The process of administrative separation can take a long time. Often, members are informally “counselled” before they are formally “notified.” This is done to let the servicemember know that the command plans to separate them so that transition activity can be accomplished before a decision is made. This is known as the pre-separation process, which includes all the normal medical and administrative appointments required for someone leaving service. Once the pre-separation process is complete, things can move more quickly. In cases where a servicemember is not entitled to a board or the service member chooses to waive their board, then the entire separation process should be completed within 15 working days of notification. The process may take 30 working days in cases where the separation authority that processes the action is not located in the same geographical region as the servicemember. In cases where a board does happen, the process can take much longer due to the process of setting a board date, then preparing the board documents afterwards to be sent up for action by the Separation Authority.
The most important aspect of the administrative separation process is the board hearing. The board will consist of three members from the command. Typically, an enlisted member going through the board process will have a board consisting of two officers and one enlisted member senior in rank to them. This board is where that member finally gets the chance to call witnesses, present evidence, maybe even testify in their own defense, cross-examine government witnesses, and argue their side of the story.
In performing its duty, the board has to make several decisions. The specifics and the impact of these decisions can vary by which military service you are in, but generally the board asks three main questions: (1) whether the evidence shows you committed the offense alleged, (2) whether you should be retained, and (3) what characterization of service should be reflected for your discharge (IF you are to be separated). For Army cases, the board may also recommend suspensions of separations as well as rehabilitative transfers for a fresh start in a new unit. For Air Force cases, the board may give the unit commander the option of retaining a member recommended for separation for the purpose of rehabilitation.
The board is not bound by the initiating commander’s recommendation. It makes independent findings and recommendations which are then sent up to the Separation Authority. The member facing separation has a right to know the basis for separation and what evidence will be presented in the case. This evidence can be a documents, exhibits, live witnesses, or a mix of all. As the “Respondent” the member facing separation also has the right to present evidence. This can be evidence related to the basis for separation and/or items from the military record showing a history of good service.
Remember that each case is different, but one truth exists in all separation cases: if this is your career, you should not miss the chance to fight to save the job and benefits you have earned. Another thing to remember is that you don’t have to go through this alone. Start by getting some good legal advice. We strongly encourage you to contact an attorney with experience in these specialized military administrative matters.
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