With the military’s need for order and good conduct amongst its ranks, it is necessary that they have some way of enforcing order and determining whether or not certain servicemembers are still fit to serve. Those who are not fit may be faced with involuntary separation from their branch through a process called Administrative Separation. In civilian terms, your commander is, in effect, trying to fire you, which has the effect of ending your military career. However, even when it may seem like your command is against you, you have powerful rights to fight back. It is important that you utilize these rights so that you can be retained or receive a favorable military discharge (Honorable, or Under Honorable Conditions), since the consequences can have a drastic impact on your life after the military.
An Honorable discharge is the best available characterization of service. An Under Honorable Conditions (General) discharge is the second-best discharge the military gives, which causes you to forfeit education benefits. An Other Than Honorable (OTH) is the lowest possible administrative discharge, which deprives you of most of the benefits you would receive with an Honorable discharge, such as GI Bill and VA compensation benefits, and may cause you substantial prejudice in civilian life.
There are many different reasons that your Command could base your separation on, including:
• An officially filed memorandum of reprimand;
• Substantiated nonjudicial punishment;
• A pattern of misconduct or minor disciplinary infractions;
• Drug and alcohol abuse;
• A civilian criminal conviction;
• Physical fitness or weight issues; and
• Substandard duty performance.
If your Command seeks to separate you, your rights will depend on how many years of service you have and possibly the characterization of service that is recommended. If you have over six years of total service (eight if USCG) or the Command is recommending an OTH, you will qualify to have your case heard by a board of officers and senior noncommissioned officers, if enlisted. The board is not bound by your commander’s opinion of the case and makes independent findings and recommendations which are then sent to your senior command for final approval. The board is required to notify you ahead of time as to the basis for the proposed separation so there are no surprises. This board is charged with answering three questions by a preponderance of the evidence: (1) Did the misconduct (or basis of separation) occur; (2) If yes, does the misconduct (or basis for separation) warrant separation; and (3) If yes, what is the recommended characterization of service? The board may also recommend suspensions of separations as well as rehabilitative transfers for a fresh start in a new unit.
If you do qualify for a board, it is important that you know what evidence is favorable to present from your military record as well as how to disprove/mitigate your Command’s allegations against you. Almost anything can be presented as evidence, and it will be your responsibility to gather it. Things like witness testimony, academic record, or character statements from your supervisors might be a good place to start, but this is in no way an exhaustive list of things you should prepare before facing a board. If you choose not to gather evidence, or if any supporting evidence doesn’t exist, the board will almost always side with your Command. A board should only be waived under very rare circumstances.
If you don’t qualify for a board, you will still be able to respond to the separation, but your response will be in writing. You must still present your side of the story in a manner that is professional, cogent, and persuasive to a commander that likely knows nothing about you except for the negative paper in your separation packet.
Whatever path you do choose to fight your administrative separation, it is important that you don’t give up and know you are not alone. Understanding your rights and how best to fight back against your Command’s allegations goes a long way in keeping you retained or getting a better discharge designation. Don’t waive your board! You’ve already put the time and effort into building your career in the military, so don’t be afraid to put in the work to save it.
Stephen, a Senior Associate, practices military law in Tully Rinckey PLLC’s Austin office. He zealously represents clients through all stages of courts-martial and administrative separation hearings, as well as advising clients on issues involving pre-trial investigations, Article 15s, and other adverse actions. He can be reached at email@example.com or at (515) 225-2800.
*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, policy or position of this publication.