Military Members Guide to Administrative Separations and the Five Essential Actions Necessary to Prepare
Military Administrative Separations and Boards of Inquiry have been on the rise within the military services. For commanders, Administrative Separations offer a streamlined, low-cost means of separating Officers, Soldiers, Airmen, Marines, Sailors and Coast Guardsmen without going through the court martial process. Pursuing a court martial as a means of separating someone from the service means a process that will take many months and sometimes more than a year. The process is costly for the command in terms of money and manpower because the command must pay for the travel of both government and defense witnesses, and for expert witnesses, if necessary. The court martial process also requires the command to assign jurors and at least one bailiff, all of whom will lose a number of days of work to complete their assigned duties as court martial members.
A low cost and streamlined alternative that denies the service members the rights afforded during a court martial is an administrative separation, or the Board of Inquiry for officers. The administrative separation process does not obligate the command to pay for the travel of witnesses or to provide experts. In fact, the command must do little more than provide the respondent service member a notice that she or he will undergo an administrative separation. The notice advises that the service member has a right to military counsel and civilian counsel. It also advises the respondent service member that she or he has a right to submit evidence to the administrative separation board. Those constitute the fundamental rights at an administrative separation hearing. The respondent may call witnesses but, unlike a court martial, cannot compel the government to produce them and pay for them. The respondent has a right through his or her own lawyer to questions witnesses but does not have a right to confront the evidence against him or her. The hearsay rules does not apply. That means that the government can submit statements and summaries of statements without bringing the people making the statements into the hearing. Because there are essentially no rules, commands are increasingly opting to go this route because it allows commanders to separate service members with an Other Than Honorable (OTH) discharge without going through the more rigorous court martial process that affords service members extensive constitutional rights.
An administrative separation under Other Than Honorable conditions can result in substantial prejudice in life to service members. An OTH will deny a service member essentially all Veterans Administration benefits. It also results in the loss of veterans’ benefits from the various state veterans administrations. California, for example, affords the children of honorably discharged service members free college education at any state school. An OTH will result in the loss of that benefit. Illinois has the veteran’s scholarship which covers all tuition at any state university or college for honorably discharged members. An OTH will result in the loss of that benefit by Illinois veterans. It goes without say that service members notified that they will undergo an administrative separation hearing must take the notice with appropriate seriousness because it will have lifelong consequences.
Five Most Important Actions to Take in Preparing for an Administrative Separation Hearing
- Contact a Lawyer. A service member who receives notice of an administrative separation hearing must immediately contact a lawyer with experience in military law and military administrative procedures.
- DO NOT waive your right to the hearing. A common mistake committed by service members undergoing the administrative separation process is waiver of the right to a hearing under the mistaken belief that the discharge may be or will be upgraded later. That is a myth. Once the board is waived it becomes nearly impossible to upgrade the discharge. Moreover, there is no such thing as an automatic upgrade. Waiving the hearing means the service member will be separated with an OTH and without a hearing.
- Identify witnesses. Make a list of witnesses along with their contact information of people who can testify about the facts that are the basis of the separation or who can testify about your performance and conduct throughout your entire period of service.
- Review the Separations regulations. Separations hearing are governed by service regulations. It is critically important that the service member facing separation become familiar with the particular Chapter or Section of the regulation governing the Separations. Those regulations can be found at the following links
Army, National Guard and Reserves– Enlisted Administrative Separations AR 135-178
Navy (Officer and Enlisted) – MilPersMan 1900
Air Force. Air Force Reserve and Air National Guard – AFI 36-320
Marine Corps and Marine Corps Reserve (Officer and Enlisted) – Marine Corps Order 1900.16C
Familiarity with the regulations allows the service member to better assist the lawyer and to better understand the rights afforded to the service member.
- Continue or improve day-to-day performance – Administrative separation hearings frequently hinge on the questions of whether the respondent has continuing value to the service or has anything else to contribute. A decline of work performance or work performance that may be categorized as poor or merely average sends a message that the respondent does not care. In close calls, poor recent performance will result in the Board deciding to separate. At a minimum, good performance may be used to convince the Board to recommend that a separation be suspended if the government is able to establish that a basis for separation exists.