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Servicemembers with less than 6 years of active duty do not rate a separation board when discharged under Honorable or General (under honorable) conditions. As a result, these servicemembers can be separated via “notification procedures” without a formal hearing. Even without a hearing, however, servicemembers can still fight to remain on active duty or request a fully Honorable discharge.
MJA has successfully helped servicemembers 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.
OVERVIEW
Servicemembers with less than 6 years of active duty do not rate a separation board when discharged under Honorable or General (under honorable) conditions. As a result, these servicemembers can be involuntarily separated from the military via “notification procedures” without a formal hearing.
Each branch of the military has its own regulations about administrative separation processing. The most common regulations governing the separation of enlisted servicemembers include:
These regulations typically require that servicemembers be advised of:
The separation authority is not bound by the recommendations of the initiating or intermediate commanders and has complete discretion to direct any type of discharge and characterization of service authorized in accordance with applicable regulations.
SERVICEMEMBERS’ RIGHTS
While servicemembers notified of separation via “notification procedures” are not entitled to a board hearing, they do have a few important rights. These include the right to:
Servicemembers are only entitled to hearing before an administrative separation board if they had more than 6 or more years of total active and reserve service on the date of initiation of recommendation for separation, or if the least favorable characterization of service they can receive is as Other Than Honorable (OTH) discharge.
REBUTTING A SEPARATION ACTION
Servicemembers notified of separation may submit written matters or statements on his/her own behalf in response to the proposed separation. The submission of a compelling written rebuttal is a servicemember’s best opportunity to terminate the separation proceedings or convince the separation authority to suspend the separation or award them a fully Honorable discharge.
Failure to timely respond to the notification, including failure to submit matters in rebuttal, will constitute a waiver of the servicemember’s rights. An extension will normally be granted until any documents requested by the servicemember have been provided, and the servicemember has a reasonable opportunity to respond to such documents.
Notably, if an intermediate commander considers additional unfavorable information outside that contained in the original separation action, servicemembers are normally allowed to rebut the additional material prior to the separation action being forwarded up the chain of command.
SEPARATION AUTHORITY ACTION
The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations.
After receiving a recommended separation action, the separation authority is required to determine if there is sufficient evidence to verify the allegations. If no sufficient basis for separation exists, the separation authority will disapprove the recommendation or take other appropriate action.
If a sufficient factual basis for separation does exist, the separation authority will determine whether separation is warranted and take one of the following actions: (1) Direct retention; (2) Direct separation for a specific reason (and designate the primary reason for separation, if more than one basis for separation is listed in the notification); or (3) Suspend separation.
If suspension of separation is directed, the separation authority may suspend execution of an approved separation for up to 12 months. The purpose of suspension is to give the servicemember the opportunity to show that he/she is able to behave properly and effectively perform their military duties. Once the probationary period is completed, the separation authority will cancel execution of the approved separation.
CHARACTERIZATION OF SERVICE
If separation is directed, the separation authority will determine the type of discharge certificate and character of service. Servicemembers separated via notification procedure must receive either an Honorable or General (under honorable conditions) characterization of service.
Characterization at separation will be based upon the quality of a servicemember’s service, including the reason for separation. An Honorable discharge is appropriate when the quality of the servicemember’s service 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.
In contrast, 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. “Entry-Level” separations are typically “uncharacterized”.
APPEALING AN UNJUST DISCHARGE OR CHARACTERIZATION OF SERVICE
Service members who believe they were improperly discharged from the military or received an unjust characterization of service 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 servicemembers 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.