Many circumstances can trigger a service member’s discharge from the Armed Forces. While most of the time this will simply be the end of an enlistment contract, there are other situations where a service member’s military career is cut short due to allegations of misconduct or substandard performance of duty.
When this occurs, the military will often refer the case to an administrative separation board (or “chapter” board, as referred to in the Army) to determine whether separation from active duty is warranted and, if so, what characterization of service the military member will receive.
MJA has successfully defended service members facing investigation, administrative separation, and discipline for the most serious offenses under the UCMJ. Our experienced and aggressive attorneys know how to win and will aggressively fight for you. Call us today at (843) 473-3665 for a free consultation.
TYPE OF MILITARY SEPARATION BOARDS
There are a few types of military separation boards depending on the facts and circumstances of the service member in question. If you have been notified by your command that you are the subject of a separation or discharge board, the following should help you understand what to be prepared for:
An administrative separation board is extremely important as it is the service member’s last chance to stay in the military. Thankfully, service members don’t have to face this alone and can be represented by either a military or civilian attorney.
CONDUCT WARRANTING SEPARATION ACTIONS
Almost any type of misconduct or substandard performance of duty can trigger administrative separation processing. Administrative separation boards, however, are typically reserved for conduct which the commander believes warrants an OTH discharge or for service members with more than 6 years of creditable service.
Some of the most common grounds for involuntary separation of a service member include drug or alcohol abuse, sexual harassment, sexual assault, fraternization, failure to obey orders, substandard performance of duty, adultery, or a pattern of minor disciplinary infractions.
Both “serious” and “minor” offenses may be resolved at administrative separation hearings. A “serious offense” is any violation of the UCMJ (or a comparable civilian offense) for which a punitive discharge would be authorized under the UCMJ. “Serious offenses” not taken to court-martial are almost always resolved at administrative separation boards.
For administrative separation to occur for a “minor offense”, the government must often prove a pattern of misconduct consisting of two or more minor disciplinary actions. Your commander will determine what constitutes a minor disciplinary infraction. There needs to be a pattern of misconduct consisting of discreditable involvement with military authorities. Discreditable contact includes violations of the UCMJ, regulation or orders, State penal codes, and/or other military customs and traditions.
ADMINISTRATIVE SEPARATION BOARD PROCESS
If you have been told by your command you are being administratively separated, or are already in receipt of paperwork officially notifying you that administrative separation has been initiated, you need to understand what command action is likely to occur.
The first and most critical issue is whether or not you are entitled to a board hearing. Service members are entitled to an administrative separation board hearing in two circumstances: (1) if the command is recommending an Other Than Honorable characterization of service; (2) if the service member has 6 or more years of creditable service.
In either of those instances, an administrative separation board must be convened to review the evidence from both the government and the defense. The hearing is an adversarial one, with opening and closing arguments, and cross examination of witnesses.
The board consists of three service members who are senior to the “respondent” (service member facing administrative separation). The board members must decide, by majority vote, whether the government has proven by a preponderance of the evidence that the respondent committed the misconduct.
If the board does substantiate the misconduct, they also need to decide, by the majority, to either separate or retain the service member. If the board votes to separate, then the board must decide the characterization of service (described below).
CHARACTERIZATION OF SERVICE
When you’re put under administrative separation, you’ll be notified in writing. In the written notice, you’ll learn the basis for your separation and the recommended characterization of service. The recommended characterization of service is important because it could potentially impact your ability to avail veterans’ benefits later on.
There are three different characterizations of service that a board can recommend:
A veteran’s characterization of service is extremely important and has life-long consequences. A service member who receives anything less than a fully-honorable discharge should expect to experience substantial prejudice in the civilian world.
HOW AN EXPERIENCED ATTORNEY CAN HELP
Whenever appearing before any type of military separation board, you have a right to legal representation. Your attorney will dig deep into the command’s case against you to find weakness and unfounded arguments. An experienced military will conduct his/her own investigation to unearth evidence to support the defense theory of the case. All potential evidence will be evaluated and witnesses called on your behalf at your board. Be sure to have any documents, photographs, or testimony that the command hasn’t included in their separation package, as it could help your case.
Our military separation defense lawyers will also ask hard questions during cross-examination of witnesses to expose facts and raise doubts about the allegations against you, as well as present your military record in a positive light. You should be prepared to make your own statement to the board to help avoid separation from service. You can use this time to set the record straight. Your lawyer will help you prepare before the hearing to present your facts in the most effective manner.
MJA KNOWS HOW TO WIN
Results matter. MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Our attorneys have successfully defended officers and enlisted members facing administrative separation. Here are just a few examples:
CONTACT MJA TODAY
When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have successfully defended service members facing investigation, administrative separation, and discipline for the most serious offenses under the UCMJ and will aggressively fight for you. Call us today at (843) 473-3665 for a free consultation.