Pre-Clearing for Military Justice

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A common situation that causes military personnel to reach out to our office is the distressing experience of being told by their leadership that they are facing involuntary administrative separation… and then in the next breath hearing that same leader immediately say, “you need to start the clearing process.”  This can cause stress and confusion for servicemembers, particularly if they thought that everything was handled through a previous Article 15.  Getting told “you’re going to get kicked out” and then being pushed immediately into the clearing process can cause stress and confusion, and units often handle it in a way that just makes it worse.

We often get calls from alarmed service members who believe that something inappropriate might be happening.  They tell us that they never got any formal paperwork about them being separated, they don’t understand how they can be made to go through the entire clearing process if they have not had a board or even seen a document telling them they are getting kicked out.  The experience makes them feel isolated and can cause some to believe their unit is breaking rules or that the system is rigged against them.

The good news is that 99% of the time, nothing improper or illegal is happening.  The first notification that a unit is planning to separate a service member usually comes in the form of an informal or written counseling.  Following that, the military member goes through several pre-clearing appointments and the transition programs that ready personnel to move on to civilian life.  THEN, after all of that is done, the member gets the real, official notice that administrative separation has been initiated.

Here’s the thinking behind this process:  It takes a lot more to have a military service member leave the military—it definitely is not as simple as telling an employee at a civilian company “hey, clean out your desk, you’re fired.“  Lots of effort and detail goes into managing military personnel, from their medical care to their equipment.  All those things need to be addressed before someone can be separated, whether it is because they are leaving voluntarily (ETS retirement) or for other reasons beyond their choice (medical discharge, separation for misconduct, etc.).  To set things up for a smooth and quick departure after a separation has been approved, most units start the process ahead of time to get all the transition work done first.  Once that happens, the legal office will formally notify the service member that they are facing involuntary separation.

In addition to getting administrative work out of the way during this time, this delay serves to stack the deck in the command’s favor:  it gives the legal office time to prepare for a board or to get paperwork in order while you run around to different places checking off your clearing list.

We strongly encourage people to not waste this period of time.  At a minimum, you should use it as a chance to get some legal advice about your particular case.  Reach out early on to an attorney who is smart on military matters so you can learn more about the administrative separation process.  Furthermore, you may need to use that time to get your defense ready so you can beat the allegations, keep your job, and protect your career.  Getting a civilian defense counsel at this early stage is key because military legal defense offices (ADC for the Air Force, TDS for the Army, and DSO for all sea-services) do not have the time or authorizationto assist servicemembers before a formal notice of initiation for administrative separation has been made.

Getting counsel involved early might be the thing that saves your career.  It takes time to do the kind of legwork needed to effectively defend against involuntary separation. If you wait until the last minute, it makes it very hard for us to do the kind of fact checking, legal research, and case analysis necessary save your career.  Early contact with a civilian defense counsel might also create the opportunity to head off separation through direct advocacy to the command or the command’s legal advisor.

So, if you find yourself being told, “we’re going to separate you, so go start clearing!” don’t panic… but don’t miss the chance to help yourself either.  If you’re in this situation, contact us immediately


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