Service members who do not follow the military’s regulations or code of conduct could find themselves facing profound consequences such as a permanent separation from their branch of the military.
The ability to appear in front of a Board applies only in certain circumstances. However, all Service Members have some due process rights to respond. To provide the most persuasive response, it is imperative to find and retain knowledgeable legal representation to have any chance at staying in uniform.
What is an Administrative Separation Board?
An Administrative Separation Board is available to Service members who are facing an Under Other Than Honorable characterization of service or has a certain number of years in service. This is service dependent. A board is a hearing and it consists of three Senior Leaders who are tasked with evaluating the evidence and then deciding the following: 1) did the alleged misconduct occur; 2) if so, should the Service member be separated; and 3) if yes to both previous questions, what characterization of service should they receive.
Unlike the court-martial process, administrative separation is administrative and not punitive. Consequently, the standard of proof for the Government is far less – preponderance of the evidence rather than beyond a reasonable doubt.
Unlike the court-martial process, administrative separation is administrative and not punitive. Consequently, the standard of proof for the Government is far less – preponderance of the evidence rather than beyond a reasonable doubt.
The administrative separation process
Service members will learn of the military’s plan to separate them from their duties through a formal notice. Upon receiving a formal notice, military personnel should promptly find legal counsel to defend themselves. Then, the board date will be set. The board is where the Government has to prove their case.
It is also the opportunity for the Servicemember to offer evidence and bring in their own witnesses to defend against the allegations and prove military character. One of the rights at the board is the ability to cross-examine and witness the Government cals.
Then the board will assess the evidence presented by both sides and make its findings and recommendations. The board deliberates in a closed session outside the presence of any other party. Once they have answered the three questions in order, they will call the parties back on the record and announce their decision.
It is also the opportunity for the Servicemember to offer evidence and bring in their own witnesses to defend against the allegations and prove military character. One of the rights at the board is the ability to cross-examine and witness the Government cals.
Then the board will assess the evidence presented by both sides and make its findings and recommendations. The board deliberates in a closed session outside the presence of any other party. Once they have answered the three questions in order, they will call the parties back on the record and announce their decision.
What are the consequences of a separation?
Separation from the military for any other reason than the end of the expiration of term of service or retirement could affect VA benefits as well as the future possibility of reenlisting. It could affect things such as taking advantage of the Post-9/11 GI Bill, VA Home loans, amongst others. It is important to speak to a VA accredited attorney to fully understand the consequences.
The Fight
The administrative separation process can be daunting and Servicemembers do not need to fight this battle alone. With guidance from experienced and accomplished military lawyers, personnel can build a case to defend their career and their hard-earned benefits.