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Blogs from February, 2024

  • Promotions in the United States Army are earned, not given, and are often the product of years of hard work and dedication. Given the sacrifices it takes to get promoted, there are few things more demoralizing to a service member than being involuntarily demoted.

    While administrative demotions are intended to be a force management tool to ensure a quality enlisted force, such demotions are often used to punish Soldiers for alleged misconduct when there is insufficient evidence for court-martial or after the Soldier refuses Article 15 punishment.

    Military Justice Attorneys (MJA) proudly defends the rights of Soldiers facing court-martial, separation, or other adverse actions, including administrative demotions. Call us today for a free consultation. 

    When Administrative Demotions Are Misused

    Administrative demotions can result in the loss of rank and cause Soldiers to lose thousands of dollars in pay and allowances, not to mention severely damaging their military career and retirement. While administrative demotions are supposed to occur only in rare circumstances, the Army has recently begun threatening to administratively demote Soldiers who lawfully refuse nonjudicial punishment under Article 15, UCMJ. This use of the Army’s involuntary demotion program deprives service members of important due process rights and can result in the reduction of multiple ranks—a severe punishment typically reserved for court-martial.

    Demotion Authority in the Army

    Army Regulation (AR) 600-8-19, Enlisted Promotions and Demotion, sets forth the Army’s policy regarding the voluntary and involuntary demotion of enlisted Soldiers not resulting from a sentence at court-martial or Article 15 punishment. Under this regulation, commanders at multiple levels have the authority to demote Soldiers with various ranks, from Private to Sergeant Major.

    The following table, found in AR 600-8-19, shows which commanders have demotion authority based on the Soldier’s rank:

    Not even retirement-eligible Soldiers are safe from involuntary demotion. Paragraph 7-3 of AR 600-8-19 states that the SECARMY or his designee “can demote an enlisted Soldier who has completed 20 or more years of Federal service creditable toward retirement, and is pending administrative separation for misconduct, before approval of the Soldier’s retirement.”

    Regardless of who the demotion authority is, Commanders have broad discretion and can even demote Soldiers multiple grades—the equivalent of a special court-martial punishment. Soldiers demoted multiple ranks may be entitled to a demotion board.

    Reasons to Demote a Soldier

    Administrative demotions of active-duty Soldiers are primarily intended to be a force management tool to place Soldiers at a rank commensurate with their skills and abilities.

    Common reasons for demotion in rank include:

    • Misconduct (para 7-3)
    • Civil Convictions (para 7-3)
    • Inefficiency (para 7-5)
    • Approved for Discharge (para 7-15)
    • Failure to Complete Training (para 7-16)
    • Unsatisfactory Participation (para 7-17)
    • Voluntary Demotion (para 7-18)
    • Return from Active Duty (para 7-19)
    • Other Reasons for Demotion (para 7-20)

    Apart from demotion at discharge, two of the most common reasons for involuntary demotions are misconduct and inefficiency.

    What is a Demotion for Inefficiency?

    In addition to misconduct, Soldiers may also be demoted for “inefficiency” under paragraph 7-5 of AR 600-8-19 if they are unable to perform the duties and responsibilities commensurate with their rank and MOS. Under the regulation, “inefficiency must be predicated on a pattern of acts, conduct or negligence that clearly shows the Soldier lacks the abilities and qualities normally required and expected of the Soldier’s rank and experience.”

    In determining whether a Soldier is inefficient, a Commander can consider allegations of misconduct. Soldiers may also be administratively demoted under this paragraph if they have “longstanding unpaid personal debts that they have not made a reasonable attempt to pay.” Administrative demotion for inefficiency is typically limited to Sergeants and above and to one grade unless a demotion board is convened.

    The Commander must meet certain requirements before initiating a demotion action for inefficiency. Specifically, the Commander must have evidence that the Soldier was counseled, and that rehabilitation was attempted and there must be a formal record of substandard performance during the period concerned. The evidence must establish a pattern of inefficiency rather than a single-time failure by the Soldier.

    Soldier’s Rights When Facing Demotion

    A service member has certain limited rights during the administrative demotion process. This begins with the Commander notifying the Soldier in writing of their intent to demote.

    This notification of intent to demote must include:

    • The allegations for the proposed demotion;
    • The impact demotion would have on continued military service;
    • That SECARMY or another designee has determined that the Soldier committed misconduct in a specified grade;
    • That the Soldier could be demoted to any grade equal to or higher than the last grade satisfactorily served; and,
    • That the Soldier may consult with military or civilian counsel.

    Upon receiving the notification, the Soldier has the right to seek military or civilian counsel. Either alone or with legal counsel – the latter is recommended – the Soldier can submit written matters to rebut the allegations of misconduct and explain why a rank reduction should not be approved. With a persuasive rebuttal, a Commander can terminate the demotion process or limit any potential demotion to one rank.

    Soldiers are not given much time to respond to the notification of intent to demote, though. Usually, Soldiers serving on active duty under Article 10 must have at least 10 duty days to respond, while all other Soldiers are given no fewer than 30 calendar days to respond. Time can move quickly while serving in the U.S. Military, so any Soldier who is facing a potential demotion should speak with an attorney as soon as possible.

    What is a Demotion Board?

    When under review for a potential demotion, certain Soldiers, but not all Soldiers, may be entitled to a hearing before a demotion board. Paragraph 7-3.a.(6) of AR 600-8-19, paragraph 7-1, provides that a “demotion board is mandatory for Soldiers in the rank of CPL and/or SPC when they are administratively demoted more than one grade and for all NCOs (SGT through SGM) when administratively demoted for misconduct or inefficiency.”

    When required, demotion boards are typically convened within 30 days after written notice to demote is given to the Soldier. The demotion authority may extend the 30-duty day limitation for good cause. The Soldier is entitled to be represented by an attorney at the hearing, military and/or civilian, and must be given adequate time to prepare their case.

    A demotion board hearing is similar to a chapter board hearing and is composed of a three-member panel of officers and enlisted personnel who are senior in grade to the Soldier being demoted. At the end of the hearing, the board may recommend demotion, retention, or reassignment of rank.

    During the board hearing, the Soldier or their attorney can do the following to argue their position:

    • Call witnesses.
    • Present written evidence.
    • Present a statement on their own behalf.

    Appealing a Demotion

    Paragraph 7-3.a.(6) of AR 600-8-19 states that any demotion for misconduct “is final and may not be appealed.” Despite this general language prohibiting appeals, other portions of AR 600-8-19 provide Soldiers with the ability to appeal a demotion.

    AR 600-8-19, paragraph 7-11, provides that demotion appeals are “authorized but only to correct an erroneous demotion.” For example, the demotion action did not comply with the rule and had an insufficient basis. Additionally, Soldiers can appeal a demotion for inefficiency or misconduct “to correct an erroneous demotion on equitable grounds.” A determination of whether the Soldier is entitled to restoration of rank is based on the totality of the facts and circumstances for that particular case.

    If an appeal is authorized, the Soldier must submit it in writing within 30 duty days from the demotion date or the date of the memorandum notifying the Soldier that they will be restored to a former rank. USAR TPU Soldiers have 30 calendar days to appeal; ARNG Traditional Force Soldiers have 60 calendar days. Soldiers should consult with an attorney and confirm with their command the specific date that any appeal is due.

    For Soldiers in the rank of Staff Sergeant and below, the next higher authority above the demotion authority takes final action on any appeals. Appeals for Soldiers in the rank of Sergeant First Class through Sergeant Major are reviewed by the first General Officer in the chain of command. Review authority must direct restoration of rank if the demotion was “erroneous.”

    Demotion Defense from a Veteran Court-Martial Lawyer

    The Army’s use of administrative demotions is a devastating tool that can result in the loss of multiple grades—the equivalent of a special court-martial punishment. When this process is misused to punish Soldiers and deprive them of important due process rights, it’s only right for those Soldiers to stand up and challenge the demotion through rebuttals and appeals.

    Military Justice Attorneys (MJA) proudly defends the rights of Soldiers facing court-martial, separation, or other adverse actions. If you are facing administrative demotion, our military defense lawyers can tell you more about your rights and options, which could include appealing the demotion or arguing against it before a demotion board.

    Call us today at (843) 773-5501 for your free consultation.

    Administrative Demotions: How the Army Strips Soldiers of Rank