Unfortunately, there are many ways for a military career to end involuntarily. Of course, the worst possible case would be a service member facing general court martial and a Dishonorable Discharge. However, the court martial process is reserved for the most severe violations of the Uniform Code of Military Justice (UCMJ) and is judicial in nature. If a commander wishes to remove a service member under them from military duty via nonjudicial means, administrative separation is more likely. As a result, it is vital to not only understand the differences between the terms “discharge” and “separation,” but also what each method of involuntary removal from service can mean for a service member.
Why Is Administrative Separation Significant?
Some service members are involuntarily removed from service due to forces beyond their control and at no fault of their own. For example, if a soldier is seriously wounded and is unable to resume their duties after recovery, they may receive a medical discharge and their enlistment period will end earlier than anticipated. However, if a service member is involuntarily removed from the military through administrative separation proceedings, this typically indicates the service member has engaged in some type of misconduct.
While a court martial is analogous to criminal prosecution in the civilian world, an administrative separation is essentially the military equivalent of being fired from your job. This situation may not be as severe as a court martial, and the penalties may not be as harsh, but the effects of an administrative separation can be felt for several years. It is worth knowing your options for potentially overcoming the situation and retaining your position within the military.
Characterization of Service
When your commanding officer decides to initiate administrative separation proceedings against you, the process begins with a formal written notice. This notice will let you know that the military seeks administrative separation and will provide the characterization of your service. This is perhaps the most crucial element of the process as your characterization of service will dictate what military benefits you can still claim, if any, as well as potential ramifications for your civilian life.
- “Honorable” characterization is the best-case scenario. This characterization means that you fulfilled your duties to the best of your ability and did not engage in any conduct unbecoming of a military service member. If you are issued a notice of administrative separation with an Honorable characterization of service, this probably means the reason behind your separation is not any specific wrongdoing or violation of the UCMJ. For example, if you served honorably and were wounded, you may be administratively separated before your enlistment period has ended. Any service member who completes their term of enlistment and leaves the military will undergo voluntary administrative separation proceedings.
- “General Under Honorable Conditions” means that the service member has significant negative marks on their service record but has not violated the UCMJ or qualified for judicial removal from service. An individual separated from the military under this characterization may still be allowed to claim VA benefits, but they may not reenlist in another branch of the military. While this may seem like it is simply a step below “Honorable,” the reality is that this characterization of service is undesirable. It exists well below “Honorable” and indicates that the service member did not perform up to their expectations for their position or engaged in some form of misconduct.
- “Other Than Honorable” is the one of the least desirable characterizations of service, second only to Dishonorable Discharge when it comes to the negative impact it can have on the service member’s future civilian life. This characterization means the service member engaged in unacceptable conduct. Conduct may include any action that endangered United States national security, actions that endangered other members of the Armed Forces, a violent crime, or a violation of a position of trust within the military.
The only way a service member can receive a Dishonorable Discharge is if they violate the UCMJ and are convicted in general court martial proceedings. It is also important to note the distinction between an administrative “separation” and an administrative “discharge.” The term “discharge” indicates that the service member’s contract with the military has concluded and they have no more service obligation. “Separation” means the service member may have an unfulfilled service obligation.
The Involuntary Administrative Separation Process
It is important to note that most administrative separation proceedings involve involuntary separation. A voluntary administrative separation occurs when a US service member completes their term of service and leaves the military. Involuntary administrative separation is a nonjudicial, yet formal, process of removing a service member from the military. The process begins with the aforementioned notice of administrative separation and continues with separation proceedings.
After the service member receives this notice, they have the right to consult with a military lawyer free of charge, or they may seek outside counsel from a civilian attorney at their own expense. The service member can submit a statement in response to the notice, offer evidence to contradict the notice, or coordinate witness testimony if applicable to the situation. Once the service member (called the “Respondent” in administrative separation proceedings) files their legal package with the administrative separation board, the voting members of the board must consider and vote on several matters before the Respondent can be separated or retained in service to the military:
- They must consider the grounds on which the administrative separation was initiated and whether it qualifies for administrative separation. In administrative separation proceedings, the standard used is “preponderance of the evidence,” not “beyond a reasonable doubt” as it would be in court martial proceedings. As the lowest possible burden of proof, preponderance of evidence simply means that the board must be convinced there is more than a 50% likelihood the claim is true.
- The voting board must determine if corrective or rehabilitative action is warranted to allow the service member to remain in service to the military. In some cases, a commanding officer may believe a service member in their command needs to be removed from the military, but the members of the voting board handling their administrative separation proceedings see things differently.
- The board, should they decide on separation, must determine the characterization of service for the Respondent. The three possible options are “Honorable,” “General Under Honorable Conditions,” and “Other Than Honorable.”
- If the board decides that rehabilitation is a possibility, they must decide what type of rehabilitation is necessary and the timeframe in which the service member must complete it.
- If the service member has a record of previous nonjudicial or judicial proceedings within the military, the voting board must evaluate these records to determine if a pattern of behavior is present that warrants administrative discharge.
The Respondent will have the opportunity to testify on their own behalf, and the Respondent or their legal counsel may call witnesses to testify on the matter. The Respondent or their counsel may question any other witnesses brought forth to testify as well.
Potential Consequences of Administrative Separation
The consequences of administrative separation extend beyond the end of your military career. Depending on which factors prompted your administrative separation proceedings, you may face additional penalties, including the loss of military benefits. When a service member receives a Dishonorable Discharge or Bad Conduct Discharge in court martial proceedings they are barred from claiming any military benefits. However, when a service member is administratively separated, their ability to claim benefits is typically left to the discretion of the voting board handling their separation proceedings.
Alternatively, the voting board may determine that the service member served honorably or that the reason for their separation was beyond their control and their service was otherwise honorable. In this case, the service member may be able to claim most of the military benefits typically afforded to service members discharged under Honorable conditions or General Under Honorable conditions.
It is also possible for your administrative separation to affect your civilian life. For example, if you are unable to claim VA benefits due to misconduct on your military record, this could prevent you from getting a job or securing financial aid for college education.
Why Do I Need an Attorney for Administrative Separation?
A service member may face administrative separation for a wide range of reasons, including pregnancy or childbirth, the development of a disability or medical condition that prevents them from completing their duties, or other factors beyond their control. However, when a service member faces involuntary administrative separation, they should know their rights when it comes to fighting these proceedings if they wish to remain in the military. While a military lawyer may help free of charge, they typically handle many cases at a time and may not be able to provide the same degree of individualized attention your case would receive from a private military defense firm.
At Aaron Meyer Law, we strive to ensure our clients’ rights are protected in every case we accept. If you face involuntary administrative separation from the military and believe this decision is unfair or unjust, we can assist you. Our team will help you craft a compelling legal package to deliver to the voting board handling your administrative separation proceedings and guide you through every phase of your case. If you are ready to speak with an experienced and reliable military defense attorney, contact Aaron Meyer Law today to learn more about how our team can help you.