With the military's need for order and good conduct among its ranks, it is necessary that they have some way of enforcing order and determining whether or not certain service members are still fit to serve. Those who are not fit may be faced with involuntary separation from their branch through a process called administrative separation.
In civilian terms, your commander is, in effect, trying to fire you, which has the effect of ending your military career. However, even when it may seem like your command is against you, you have powerful rights to fight back. It is important that you utilize these rights so that you can be retained or receive a favorable military discharge (honorable or under honorable conditions), because the consequences can have a drastic impact on your life after the military.
An honorable discharge is the best available characterization of service. An under honorable conditions (general) discharge is the second-best discharge the military gives, which causes you to forfeit education benefits. An other than honorable (OTH) discharge is the lowest possible administrative discharge, which deprives you of most of the benefits you would receive with an honorable discharge, such as GI Bill and Department of Veterans Affairs compensation benefits, and may cause you substantial prejudice in civilian life.
There are many different reasons on which your command could base your separation, including:
- An officially filed memorandum of reprimand;
- Substantiated nonjudicial punishment;
- A pattern of misconduct or minor disciplinary infractions;
- Drug and alcohol abuse;
- A civilian criminal conviction;
- Physical fitness or weight issues; and
- Substandard duty performance.
If your command seeks to separate you, your rights will depend on how many years of service you have and possibly the characterization of service that is recommended.
If you have more than six years of total service (eight if in the U.S. Coast Guard) or the command is recommending an OTH, you will qualify to have your case heard by a board of officers and senior noncommissioned officers, if enlisted. The board is not bound by your commander's opinion of the case and makes independent findings and recommendations, which then are sent to your senior command for final approval. The board is required to notify you ahead of time as to the basis for the proposed separation so there are no surprises.
This board is charged with answering three questions by a preponderance of the evidence: Did the misconduct (or basis of separation) occur; if yes, does the misconduct (or basis for separation) warrant separation; and if yes, what is the recommended characterization of service? The board also may recommend suspensions of separations as well as rehabilitative transfers for a fresh start in a new unit.
If you do qualify for a board, it is important that you know what evidence is favorable to present from your military record, as well as how to disprove/mitigate your command's allegations against you. Almost anything can be presented as evidence, and it will be your responsibility to gather it. Things like witness testimony, academic record or character statements from your supervisors might be a good place to start, but this is in no way an exhaustive list of things you should prepare before facing a board. If you choose not to gather evidence, or if any supporting evidence doesn't exist, the board almost always will side with your command. A board should be waived only under very rare circumstances.
If you don't qualify for a board, you still will be able to respond to the separation, but your response will be in writing. You must still present your side of the story in a manner that is professional, cogent and persuasive to a commander who likely knows nothing about you except for the negative paper in your separation packet.
Whatever path you choose to fight your administrative separation, it is important that you don't give up and know you are not alone. Understanding your rights and how best to fight back against your command's allegations goes a long way in keeping you retained or getting a better discharge designation.
Don't waive your board. You've already put the time and effort into building your career in the military, so don't be afraid to put in the work to save it.
Stephen Jewell, a senior associate, practices military law in Tully Rinckey PLLC's office in Austin, Texas.
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