Administrative Separation from the Military
Call our military defense lawyers to discuss your rights if you are facing an administrative separation from the military.
How to Win at a Military Discharge Board – Military Lawyer Tips
An administrative discharge could result in an:
- Honorable Discharge
- General Under Honorable Conditions Discharge, or an
- Other than Honorable Discharge.
An Honorable Discharge is given to military personnel who meet the standards of acceptable conduct and duty performance expected of military personnel.
A General Under Honorable Conditions Discharge is issued when significant negative aspects of the member’s conduct or performance outweigh positive aspects of their conduct or performance. A General Under Honorable Conditions Discharge characterization can jeopardize a member’s Montgomery G.I. Bill and other military benefits.
An Other than Honorable Discharge (OTH) characterization is given when a pattern of behavior, act(s), or omission(s) that are a significant departure from conduct expected of military members.
Administrative separation is often triggered by serious individual events, such as an abusive sexual contact allegation or a pattern of misconduct. If you face an administrative separation in the Army, Navy, Air Force, Marine Corps, or Coast Guard, call a military defense lawyer to discuss your legal rights and the administrative separation process. In addition, you should contact an experienced civilian lawyer with expertise in military law and administrative separations.
Your Rights at a Military Administrative Separations Board
- Consult with a military defense lawyer (military and civilian)
- Request a hearing before an Administrative Separation Board
- Present written matters to the Separation Authority in rebuttal to your proposed separation (can include character statements, copies of awards, a personal statement you write, etc.)
- Obtain copies of documents and discovery that will be forwarded to the Separation Authority
- Waive any of your rights after being afforded an opportunity to consult with a military defense lawyer (civilian, military, or both).
If you request an administrative separation board, you also have the right to
- Appear before an administrative separation board
- Be represented by a military defense lawyer (civilian, military, or both)
- Challenge voting members of the board or the legal advisor (for cause)
- Testify in your own behalf, subject to the provisions of Article 31 of the UCMJ
- Submit written or recorded matter for consideration by the administrative separation board
- Call witnesses at the administrative separation board
- Question any witnesses who appear at the administrative separation board
- Examine evidence presented by the administrative separation board
- Cross-examine witnesses appearing at the board
- Make a sworn or unsworn statement
- Present an argument before the board closes the hearing for deliberation
- Be provided with a copy of the report of the board and the endorsement
Administrative Separations in the Military
Administrative separations in the military are often more severe than one might assume. Unfortunately, the military often downplays what Administrative Separation means, but it could mean the end of your dreams if you are interested in a military career.
If you’re facing Administrative Separation processing, you must know your rights and fight for the best outcome possible. If your case is defended properly, you may be able to continue to serve in the military. Or, you may receive a more favorable discharge, such as an Honorable or General Discharge. However, a skilled military defense lawyer must handle an administrative separation carefully because an administrative separation can interfere with your post-service benefits and end your military career.
Administrative Separation Is Not a Court-Martial
While many court-martial lawyers are also familiar with defending clients in Administrative Separation cases, an Administrative Separation process is completely separate from being court-martialed. The differences between an administrative separation and a court-martial are essential because the relevant regulations and military law aren’t the same, even if there is some overlap. Not all of these differences are to your benefit, either.
Most notably, the burden of proof when facing an Administrative Separation Board is far lower than in a court-martial or civilian trial. This is because it is not punitive but instead an administrative proceeding. Not-punitive means it is not a criminal proceeding and will not result in a criminal conviction. That said, the board you’re facing is more than capable of taking action most would call “punitive” in nature. Most significant is the potential for an OTH discharge, which can affect post-service benefits. Administrative separation from the military may mean the end of your military career. Therefore, soldiers, Sailors, Airmen, Marines, and Coasties must take administrative proceedings seriously.
Facing an Administrative Separation Board
Most people recommended for discharge through the Administrative Separation process will face a board consisting of three members. The board will then decide at the hearing what to recommend to a separation authority.
This separation authority has the final say over your discharge but will almost always follow a given board’s recommendations. That said, the authority can override the recommendation if they deem it appropriate. Each military branch is different, so consult with a lawyer for how your branch handles board recommendations. In some situations, the board recommendation is binding. In other situations, the board’s recommendation is simply a non-binding suggestion.
It is the job of you and your military defense lawyer to present an argument as to why the recommended discharge is inappropriate. You can also present evidence to the board, although you are responsible for gathering that evidence yourself.
Not everyone will face an Administrative Separation Board, in which case your options are extremely limited. However, this is somewhat rare. Most Administrative Separation recommendations are for OTH discharges due to alleged misconduct.
If a commanding officer recommends you for general discharge, you won’t be able to present your case to an Administrative Separation board unless you have over six years of service. However, a recommendation of OTH always warrants being able to face aboard. It is also possible to waive your hearing and instead submit written matters to the appropriate separation authority. Finally, you can also wholly waive the process and accept an OTH characterization.
Waiving an administrative separation board
Waiving your board is sometimes the best decision for one’s case but should only be done at a legal professional’s recommendation. For example, a hearing can sometimes make it difficult to get your discharge upgraded later.
Potential Results of an Administrative Separation
Once one understands that Administrative Separation proceedings are different from courts-martial, the next logical question is what is at stake in these proceedings. At a basic level, the Administrative Separation process is one meant to decide if you should be discharged from service and, if so, what type of discharge. It is not possible to receive a Dishonorable Discharge (DD) or Bad-Conduct Discharge (BCD) through Administrative Separation; the worst charge possible is an Other Than Honorable Discharge (OTH).
Moreover, it is not possible to be sent to the brig, put on restriction, lose pay, or lose rank due to Administrative Separation. The only caveat to this is that an OTH discharge might bar you from certain benefits, which some might argue could indirectly be described as “losing pay.” The most common benefit lost through an OTH discharge that might cause a significant burden is that you become ineligible for the GI Bill. By extension, this means an OTH discharge can bar one from higher education (or at least significantly increase its cost).
That said, not all discharges as a result of Administrative Separation are OTH discharges. It is also possible to receive an Honorable Discharge or General Discharge. If you are discharged, the nature of your discharge will be dependent on the initial basis for your Administrative Separation and the quality of your defense.
If you have been in the service for less than 180 days, it is also possible to receive an “Entry Level Separation” and thus receive no characterization of your service. Except for receiving an Honorable Discharge, being discharged will almost always bar you from reenlisting with your chosen military branch or enlisting in any other.
Who Receives What Discharges?
Most service members facing Administrative Separation can expect either a General or OTH discharge. An early, forced Honorable Discharge is relatively rare due to the nature of the process. General Discharges are often the result of a failure to meet the demands of the military but while still making an “honest and faithful” attempt to meet those demands.
General Discharges are handed out to those who perform poorly or receive an unusual amount of disciplinary infractions. It is not a “good” discharge but leaves the service member with most of the benefits one receives from an Honorable Discharge.
An Other Than Honorable (OTH) Discharge tends to be the result of more serious misconduct. One of those most common causes of OTH Discharges is drug possession, where it is explicitly stated in military guidelines the processing should usually result in OTH characterization.
An exemplary record or unusual circumstances has the potential to raise the level of one’s discharge, depending on what the board deems is appropriate. One example might be a decorated military service member facing processing that normally results in a General Discharge. In that scenario, the board may rule that the individual should be discharged but still receive an Honorable Discharge.
Your Administrative Separation Defense Lawyers
Many military defense lawyers approach Administrative Separation proceedings as if they are a court-martial. Even well-intentioned lawyers have confidently represented clients only for both they and the client to be blindsided by the fact that boards often make decisions on minimal evidence or testimony.
It’s important to find a well-reviewed military law firm that has experience with the Administrative Separation process. On a basic level, a good defense at a court-martial is not the same as a good defense when facing Administrative Separation.
Facing an Administrative Separation board isn’t easy. But, generally speaking, you are trying to convince three military professionals your word is better than that of a superior officer. Without professional legal help from a skilled military defense lawyer, this is almost impossible. While a legal professional can’t erase misconduct or pre-conceptions many officers have about lower-ranking servicemen, there are still strategies they can employ to better your odds.
Our firm’s approach is (generally speaking) to convince an Administrative Separation Board that our client is a valuable asset to the military. We feel it tends to be the best approach in a hearing whose outcome is not decided purely by law and regulation.
Whether sworn or unsworn, client testimony can do a great job of showing a military service member’s value, even if they look bad on paper. In addition, it will allow a person to be retained or to leave with an Honorable Discharge in many cases.
Differences Between the Military Branches
While every branch of the military has its own guidelines for Administrative Separation, the general procedure tends to be the same. Most differences are in the availability of information in a manner easy to consume to the public.
The U.S. Air Force appears to have very little information on the process online, although they do publish important memorandums when guidelines are changed or the process otherwise altered.
The U.S. Marines have a thorough guide on the process, an explanation of one’s basic rights, and a lot of very useful information worth reading if you face an Administrative Separation. Most of this advice applies even to those in other branches.
Pitfalls of the Administrative Separation Process
Despite the military’s strides towards a more just tomorrow, there are still undeniable issues with the modern Administrative Separation system. For instance, one known issue with the process is it can be petty and highly political. When the military is scaling back, it’s well understood that more officers are discharged over minor misconduct or misconduct years old.
It is also a system that is easy for commanding officers to bypass if they recommend a General Discharge. Lower-level military service members who haven’t been in the military for over six years have little recourse if this occurs. The fact that the burden of proof is more or less on the defense is also controversial. It makes the system easier to abuse and/or otherwise wield arbitrarily against servicemembers.
No system is perfect, and it’s worth noting that without Administrative Separation, the military would likely still need a way to discharge members deemed unfit for service but who have not committed serious offenses.
Fighting Administrative Separations in the Military
If you need a legal team with experience confronting administrative separations in the military, consider González & Waddington. Our team has the experience you need to build a solid defense before an Administrative Separation board.
Marine Corps References:
- Marine Corps Separation & Retirement Manual (MARCORSEPMAN)
- Board for the Correction of Naval Records (BCNR)
- Navy Discharge Review Board (NDRB)
Below is a transcript from the video: How to Win at a Military Discharge Board – Military Lawyer Tips
It’s no secret that the military is scaling back. One of the kinds of dirty ways that they’re doing this is they’re using human resources command to flag anyone who has any misconduct in their background. It could be something from four or five years ago that’s very petty. So those officers on senior listed are being flagged and sent off aboard. And a lot of these boards are being mishandled by defense attorneys because they go in there thinking it’s a court-martial and say, Hey, the government has to prove everything. We’re just going to sit back. That doesn’t work.
You have to come into the case ready to prove that your client should be retained. I find that in many of these cases where the accused goes into it, or the respondent, they’re called in aboard, and they sit there and feel that it’s the government’s burden, you will most often lose those cases. So I believe that you have to have your client testify whether it’s unsworn or sworn to present themselves in the best way possible, and convinced that board that you were an asset to the military, that you are currently an asset to the military, that that that mistake you made does not define who you are and the character that you can be trusted, and that you will continue to be an asset to the military and should be retained or allowed to get out with an honorable discharge, depending on your circumstances.
Military Justice Attorneys
The UCMJ forms the backbone of the military’s legal system and applies to all active duty, national guard and reserves, and retired armed forces personnel across all branches. If you or someone close to you has been charged with a crime under the UCMJ, you must turn to military defense lawyers for help right away. Find a ferocious court-martial defense counsel at Gonzalez & Waddington. As a former member of the US Army’s Judge Advocate General’s Corps (JAG), military defense lawyer Michael Waddington has a proven track record of defending US armed forces personnel in court-martial and administrative matters.
American Servicemembers need to know their rights. American Service members have the right to be defended by criminal defense lawyers, so don’t wait to retain court-martial counsel like Gonzalez & Waddington, Attorneys at Law. Instead, call the relentless military attorneys to arrange a free case review.
Our military attorneys can manage your accusations and protect your reputation. Whether you are facing accusations such as Sexual assault, Death or Injury of an Unborn Child, Sexual Assault of a Child, Accessory After the Fact, or Leaving the Scene of a Vehicle Accident, Gonzalez & Waddington can help.
Our ferocious civilian military defense lawyers can defend the US military in both punitive and non-judicial cases. If American Military service members are facing a court-martial and administrative, our military defense lawyers can defend them. In addition, our ferocious military attorneys can protect your career if you are accused of a crime such as Death or Injury of an Unborn Child, Sexual Assault, Title IX Sexual Misconduct Allegations, or Murder.
In all UCMJ, possible charges are determined by the JAG prosecutors and the chain of command, not by the police. Gonzalez & Waddington are distinguished in criminal defense by their complex knowledge of the law, and we take the time to understand every aspect of a case to achieve beneficial results for our clients. Our hard-core court-martial defense attorneys at Gonzalez & Waddington are heavily invested in criminal defense cases, and we are committed to protecting the interests of our clients. Military JAG prosecutors by the military.
US MILITARY’S LIMITED USE POLICY
What is Limited Use?
Under the limited use policy, the results of the following tests may not be used as a basis for an Article 15 or court-martial or to determine the “character of service” in an administrative separation action. AR 600-85, para. 10-14c.
Competence for Duty Tests. AR 600-85, para. 10-12a(1).
Medical Tests. The limited use policy would apply to tests obtained as a result of a Soldier’s emergency medical care for an actual or possible drug overdose unless such treatment resulted from apprehension by military or civilian law enforcement officials. AR 600-85, para. 10-12a(3).
If drug use discovered during a limited use test is introduced during an administrative separation, the Soldier must receive an honorable discharge.
The limited use policy does not preclude the use of limited use tests in rebuttal or initiation of disciplinary action based on independently derived evidence. AR 600-85, para. 10-12d(1).
A fitness for duty urinalysis or medical test may serve as the basis for administrative action, including requesting a second urinalysis. In the case of the United States v. Williams, 35 MJ 323 (CMA 1992), the exclusionary rule did not preclude the admission of the accused’s incriminating statements or consensual second urinalysis even though the questioning and the request for the second urinalysis were based upon prior positive fitness for duty urinalysis. The taint from the fitness for duty urinalysis was sufficiently attenuated.
The limited use policy does not apply to the types of tests listed below. These tests may be used at courts-martial, Article 15 proceedings, and administrative separations:
- Probable cause tests.
- Consent tests.
In the case of the United States v. Avery, 40 MJ 325 (CMA 1994), the accused was not entitled to the protection of Air Force limited use policy, which precludes the use of certain evidence derived from a service member’s voluntary self-identification as a drug abuser. The accused voluntarily consented to a urinalysis after his wife revealed his drug use to his chain of command. The accused never admitted to using drugs.
Medical tests are not covered by the limited use policy described above.
Obtained as a result of Soldier’s emergency medical care for an actual or possible drug overdose, where the treatment resulted from apprehension by military or civilian law enforcement officials. AR 600-85, para. 10- 12a(3).
Routine tests directed by a physician are not the result of suspicion of drug use and are not taken in conjunction with ASAP. AR 600-85, para. 10-12a(3).
Command Directed Tests. Be wary of the term “command directed” urinalysis. The ability or inability to use the test results for UCMJ or separation purposes depends on the type of test, not on whether or not it is labeled command directed. In the case of the United States v. Streetman, 43 MJ 752 (AF Ct. Crim. App. 1995), the accused was convicted of marijuana use. The court held that the letter reissuing the original inspection order but labeled as “Commander Directed” (Air Force equivalent to fitness for duty) and ordering accused to submit to drug testing did not transform prior legitimate random urinalysis inspection into fitness for duty test that would preclude the admission of drug test results.