Military Separation Boards: An Overview

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:

• Board of Inquiry – A board of inquiry is often used as an alternative to a court-martial for officers who are faced with misconduct or other service related issues. A Board of Inquiry has other names, depending on the Service Branch, such as “Show Cause Hearing”, or Elimination Board. This type of Board may recommend an Other Than Honorable (OTH) Characterization of Service.   
• Administrative Separation Board / Chapter Board – Enlisted members recommended for involuntary discharge with an OTH are also entitled to an administrative separation board. At this hearing, the service member has the opportunity to argue their case against being discharged based on performance, misconduct, mental or physical ability, or other issues. The board may recommend an Other Than Honorable Characterization of Service.
• Withdrawal of Federal Recognition Board (WOFR) – Commissioned and warrant officers serving the Army National Guard may be subject to involuntarily administrative proceedings, similar to a Board of Inquiry, if the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition.
• Discharge Review Boards – Service members who have already been discharged or separated (not including a General Court-Martial punitive discharge) can appeal their separation decision to the Discharge Review Board, or a Military Correction Board.

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:

• Honorable – An Honorable discharge is awarded when a military member meets the standards of acceptable conduct and performance of duty for military personnel. If the service member reaches the end of their enlistment period or contract there is a strong presumption that the service member served honorably.
• General (Under Honorable Conditions) – a general discharge is appropriate when significant negative aspects of the member’s conduct outweighs positive aspects of their military service. Service members awarded a general discharge are often not allowed to reenlist or enter a different branch of the military service, but may be entitled to certain VA medical benefits given that their service was under “honorable conditions.”
• Other Than Honorable (OTH) – an OTH discharge results from a pattern of behavior or acts that are a significant departure from conduct expected of military members. Service members who received an OTH should expect to lose some or all of their military benefits.

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:

• • A Sergeant First Class (E-7) in the United States Army retained MJA to defend against multiple false allegations involving a junior Soldier. After refusing to accept Article 15 punishment, the Soldier was taken to a Chapter Board. During the Board, MJA effectively cross-examined the government’s witnesses, including the alleged victim, exposing numerous inconsistencies in their prior statements and a sinister motive to fabricate among the government witnesses. After 30 minutes of deliberation, the Board members unsubstantiated the allegations of sexual harassment and fraternization and recommended the Soldier’s retention in the United States Army. 
  • A Lieutenant Commander (O-4) in the United States Navy accused of sexual harassment and several other serious violations of the UCMJ hired MJA after being detached for cause (DFC) and offered NJP. The LCDR refused NJP and demanded trial by court-martial. After many delays and months of waiting, the Navy sent the officer to a BOI instead. MJA successfully defended the LCDR against all charges and allegations brought forward as the basis for the DFC and NJP. The BOI found “NO BASIS” for any of the alleged misconduct and retained the LCDR in the Navy. 
  • A Gunnery Sergeant (E-7) in the United States Marine Corps was notified of administrative separation after testing positive on a urinalysis. MJA was retained to defend the Marine. At the board hearing, MJA and detailed defense counsel admitted documentary evidence and testimony that the positive urinalysis was the result of an innocent ingestion. The Board found “NO BASIS” for the alleged drug abuse and retained the Marine on active duty. 
  • A Master Sergeant (E-7) in the United States Air Force was investigated for 15 months by the Air Force Office of Special Investigations (OSI), Family Advocacy Program (FAP), and Child Welfare Services (CWS) for false allegations of sexually assaulting a minor. After a week-long administrative discharge board with eight Government witnesses, the board members found “NO BASIS” for the alleged misconduct and retained the Master Sergeant on active duty.
  • A Specialist (E-4) in United States Army unjustly accused of abusive sexual contact and assault with intent to commit rape hired MJA after being targeted as the subject of a CID investigation. MJA advised and represented the SPC through the investigation and resultant command determination to forgo court-martial. After many delays and months of waiting, the Army sent the Soldier to an administrative separation board instead – an “easier” path for the Government to secure accountability given its lower standard of proof and ability to prosecute with hearsay alone. MJA successfully defended the SPC against all charges and allegations, resulting in the Board finding “NO BASIS” and voting to retain the SPC in the Army. 
  • A Lieutenant Commander (O-4) in the United States Navy was required to show cause for retention in the naval service for alleged misconduct and substandard performance of duty following a state-court conviction for Driving While Intoxicated. At the BOI, MJA submitted extensive written matters in defense and called multiple character witnesses who testified the LCDR should be retained on active duty. The BOI unsubstantiated the allegation of substandard performance of duty and retained the officer in the naval service. 

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.