What is an administrative separation board?

For career military men and women, an involuntary discharge can be a more severe punishment in the long run than going to the brig. If you are facing involuntary separation or discharge as a disciplinary action, you face the loss of your career, reputation, pay and future benefits. An involuntary separation often results in an other-than-honorable characterization and can haunt you forever.

A Lawyer With Administrative Separation Board Experience

Phillip Stackhouse is a military defense lawyer. In 2006, he retired after 22 years as a Marine Corps officer. As a JAG officer, he often participated in administrative separation boards and witnessed what could happen to good men and women without knowledgeable defense counsel. He found it difficult to watch careers that could have been saved had the service member hired an experienced attorney.

Our attorney started his own law practice with the goal of protecting the rights of our U.S. service members facing all military legal proceedings, including administrative separation board investigations.

Involuntary Separation Can Cost You Greatly

For enlisted personnel, a command investigation may result in the convening of an administrative separation board to verify whether misconduct or nonperformance warrants involuntary separation as a possible consequence.

You need representation the day you receive the notice that an investigation is underway. Time is of the essence. Preparation is an important part of what it takes to protect your rights. Even if you have already made a statement admitting guilt or involvement in an incident, we still may be able to improve your outcome of the proceeding.

For officers, being notified of a board of inquiry is the first step of the process to determine whether you will be allowed to remain on active duty, and with your career on the line, you need an experienced defense attorney’s help.

Contact Us

If you are facing an administrative separation board, you need an experienced representation. We have help clients from MCAS Miramar, throughout California and worldwide. To schedule a free initial consultation, call our San Diego office at 760-456-5386 or use our online contact form.

Military members may be involuntarily separated from the military by administrative discharge. The bases for administrative discharges are varied, and can range from minor misconduct to medical issues to convenience of the government. While an administrative discharge from the military is less severe than a court-martial, it can still have lifelong, significant effects upon one’s employability, eligibility for Veterans’ Benefits, and social standing. At JAG Defense, our Military Attorneys have represented hundreds of military members facing administrative discharge processing. If you have been informed that you are being considered for administrative discharge from the military, we encourage you to call JAG Defense for a consultation about your case and how our attorneys can help.

Administrative Discharge Overview

There are two different processes for administrative discharge: Notification Processing or Board Processing.  Most cases are processed using notification procedures, where the notification and the member’s response are limited to writings.  If a member is entitled to have his/her case heard by an administrative discharge board, however, board procedures are used.

A member recommended for discharge (Respondent) must be offered a hearing by an administrative discharge board if the command seeks to characterize the Respondent’s service as Under Other Than Honorable Conditions (also known as “UOTHC” or “OTH”).  In addition, there are other criteria that entitle a Respondent to a board hearing, though these criteria differ slightly from service to service.  Some examples of the criteria that would automatically entitle a Respondent to a board hearing are:

• Rank: If the member is a noncommissioned officer at the time discharge processing starts;
• Time In Service: If the member has a certain number of years of total service at the time discharge processing starts (this number varies service to service); or
• If the reason for the administrative discharge is in the interest of national security.

An administrative discharge board is comprised of three (3) members senior in rank to the Respondent, a Legal Advisor (typically a JAG), and a Recorder, who serves as the “prosecutor” and represents the command.  Board proceedings are administrative in nature and the board is not bound by formal rules of evidence.  Thus, the board may consider information which might not be admissible at a court-martial.  Further, the board’s decisions are based upon a preponderance of the evidence presented, rather than beyond a reasonable doubt.

At an administrative board, the Respondent has a variety of rights. These include:

• The right to appear in person before this board, with or without counsel;
• The right to challenge any voting member of the board for cause; that is, by showing that the member cannot render a fair and impartial decision;
• The right to submit an oral or written statement on the Respondent’s own behalf.  The Respondent may also testify on his/her own behalf; or the Respondent may remain silent;
• The right to request the attendance of witnesses at the hearing;
• The right to submit any answers, depositions, sworn or unsworn statements, affidavits, certificates, or stipulations; and
• The right to question any witness who appears before the board, or have counsel question the witnesses on behalf of the Respondent.

When the administrative board convenes, the board considers all the evidence, both for and against the Respondent.  In closed session deliberations, the board members then vote upon the following decisions:

• Findings of fact as to whether each allegation set out in the notification memorandum is supported by a preponderance of the evidence (more likely than not);
• A separate finding with regard to each allegation set out in the notification Memorandum;
• Findings as to whether a basis for discharge exists;
• A recommendation to discharge or retain;
• A recommendation concerning the characterization of service if the board recommends discharge (HON, GEN, or UOTHC/OTH); and
• A recommendation concerning Probation and Rehabilitation if the board recommends discharge (if member is eligible).

These findings of fact and recommendations are forwarded to the Respondent’s chain of command.  Generally, the board’s findings of fact and recommendations are binding upon the chain of command, although there are some service-specific exceptions.

Contrary to popular belief, one’s discharge or discharge characterization is not automatically upgraded after six (6) months.  While there are procedures in place whereby one can request relief from the Discharge Review Board or the Board for Military Corrections, as a general rule, one’s military discharge basis and characterization will likely follow them for the rest of their life.  For that reason, it is imperative that a military member facing administrative discharge is represented by a lawyer experienced in military law and discharge board litigation.

If you have been notified that your command seeks to administratively discharge you from the military, please contact JAG Defense for a consultation about your case.

When separation is contemplated the service member is afforded certain rights. At the outset of the process, service members are notified of these rights in writing.

This notification includes:

• The factual basis of the proposed separation
• The least favorable discharge being considered
• The right to obtain copies of the documents being forwarded in support of the proposed separation
• The right to submit statements
• The right to counsel
• If he or she qualifies for one, the right to an administrative board, a hearing to contest the separation or the type of discharge sought

If a service member is not entitled to an administrative separation board, the member may still submit letters and evidence on his or her behalf to prove suitability for continued service.

Retirement benefits and veteran’s benefits can be substantial. There are a number of ways in which injustices can occur during the separation or retirement process. There are also a number of ways in which counsel can help protect you before the injustice occurs.

Make Sure You Have Knowledgeable Counsel

In separation and retirement cases, it is extremely valuable to have counsel who has handled federal litigation involving separations and retirements. This is particularly true in cases involving involuntary actions.

Issues of whether retirements or separations are voluntary or involuntary have been the subject of extensive litigation in the federal courts.

In presumptively voluntary separation cases there are ways to rebut the presumption of voluntariness that attaches upon discharge. Common methods of rebuttal include coercion, government misrepresentation of facts, attempts to withdraw the retirement, time pressures, and mental competency. It is often a question of whether the decision-making process was reasonable and a free choice. Kim v. U.S. 47 Fed. Cl. 493, 501 (2000). A lack of information can be a factor that courts consider.

The bottom line is that the stakes are high in separation and retirement cases. It is worth your time to schedule a consultation with our military criminal defense lawyers. Call (757) 401-6365 today.