Defending Those Who Defend Us®
  • Administrative Separations Part III: Fighting Officer Separations

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    When an officer is recommended for involuntary separation based on performance, misconduct, or mental or physical ability, the matter is evaluated by an administrative separation board, also known as a “Board of Inquiry”, “Show Cause Board”, “Elimination Board” or “Board of Officers”. A separation board affords the officer the opportunity to fight for retention in the military.

    MJA has successfully defended servicemembers from every branch of the military facing administrative separation. If you have been notified of involuntary administrative separation and want to fight for your career, contact us today for your free consultation.

    AUTHORITY

    Each branch has its own regulations governing officer separations. The most common regulations for active duty officers include:

    These regulations typically require that an officer facing administrative separation be advised of:

    • The specification allegations on which the proposed action is based;
    • The specific provisions authorizing separation;
    • Whether the proposed separation could result in discharge, release from active duty to a Reserve Component, or release from custody and control of the military;
    • The least favorable characterization of service he/she could receive; and
    • The type of discharge and character of service recommended by the initiating commander and that intermediate commanders may recommend a less favorable type of discharge and characterization of service than that recommended by the initiating commander.

    The separation authority is not bound by the recommendations of the initiating or intermediate commanders. The separation authority may generally not, however, issue a type of discharge or characterization of service less favorable than that recommended by the separation board.

    ELIGIBILITY

    Officers facing involuntary administrative separation are only entitled to a board hearing when they have more than 6 years of “active commissioned service” or face the possibility of receiving an Other than Honorable (OTH) characterization of service.

    Officers with less than 6 years of active commissioned service are considered “probationary officers” do not rate a board hearing. As such, these officers can be separated via “notification procedures” with an Honorable or General (Under Honorable Conditions) discharge.

    The requirement of 6 years of “active commissioned service” is particularly critical for officers who were prior enlisted. The officer’s prior enlisted service does not count toward their active commissioned service time.

    OFFICER’S RIGHTS

    Officers facing involuntary administrative separation are entitled to numerous rights, including the right to:

    • Consult with military or civilian counsel;
    • Obtain copies of documents that will be sent to the separation authority supporting the proposed separation;
    • Have a hearing before an administrative separation board (nonprobationary officers only)
    • Present written statements instead of board proceedings;
    • Request appointment of a military counsel for representation;
    • Retain civilian counsel at no expense to the Government; and to
    • Waive the above rights in writing. This includes the right to submit a conditional waiver of the right to have a case heard before an administrative separation board.

    A conditional waiver may be submitted when an officer wants to waive his/her right to a hearing before an administrative separation board contingent upon receiving a favorable characterization of service.

    For example, an officer who is facing a potential discharge under other than honorable (OTH) conditions could elect to waive his/her separation board contingent upon receiving an honorable discharge. The separation authority may approve or disapprove a conditional waiver.

    Officers may also be given the opportunity to voluntary resign or retire, depending on the specifics of their case.

    SEPARATION BOARD HEARING PROCEDURES

    Separation boards are comprised of at least three members who are typically in the grade of O-5 or above. These members must be unbiased and senior in grade to the officer facing separation.

    Officers having the following rights at a hearing, which may be exercised by them or their attorney:

    • To appear in person, with or without counsel;
    • To submit any written evidence to the board for consideration;
    • To request the attendance of witnesses;
    • To question any witness who appears before the board;
    • The challenge any voting member of the board for cause; and
    • To present argument before the board closes the case for deliberation on findings and recommendations.

    Officers are not required to testify at the board hearing and may choose to remain silent, given a sworn statement subject to cross examination, or give an unsworn statement.

    BOARD FINDINGS AND RECOMMENDATIONS 

    After hearing all the evidence, the board will determine whether each allegation in the notice of separation is supported by a preponderance of the evidence. If the basis is satisfied, the board must then determine whether the officer should be separated or retained in the military. If separated, the board must determine the appropriate characterization of service.

    Characterization of service will be based upon the quality of an officer’s service, including the reason for separation.

    • An Honorable discharge is appropriate when the servicemember generally has met the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.
    • A General (under honorable conditions) discharge is appropriate when a servicemember’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
    • An Other-than-Honorable (OTH) discharge may be issued for when a servicemember’s conduct constitutes a “significant departure” from the conduct expected from a military member.

    If a board recommends separation, it may also recommend that the separation be suspended. A recommendation for suspended separation is not binding on the separation authority.

    SEPARATION AUTHORITY ACTION

    After the board is complete, the case goes to the separation authority for review and action. The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations.

    The separation authority’s action will depend on the board’s findings and recommendations. For example, when a board recommends separation for misconduct, the separation authority may direct separation of the servicemember or disapprove the recommendation.

    While a separation authority can disapprove a recommendation for separation and direct retention a servicemember, separation authorities are not permitted to direct discharge if a board recommends retention. Neither can a separation authority issue a discharge characterization of less favorable character than that recommended by the board.

    APPEALING AN UNJUST SEPARATION

    Officers who believe they were improperly discharged from the military or received an unjust characterization may file an appeal to the appropriate Board for Correction of Military Records or Discharge Review Board. These boards have the authority to correct errors or injustices relating to a discharge or to upgrade a characterization of service, among other powers.

    CONTACT MJA TODAY

    MJA has successfully helped officers fight unjust separation actions. If you have been notified of administrative separation and want to fight for your career, contact us today for your free consultation.

     

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