Representing American Service Members Facing Administrative Separation
Your military service is not only an incredible honor but also your livelihood if you are an active-duty service member who intends to serve the full term of your enlistment or beyond. Both enlisted military personnel and commissioned military officers faced with administrative separation must understand the value of experienced legal representation. It’s common for service members in this situation to believe they have no hope of fighting the charges they face.
At Aaron Meyer Law, our team is committed to providing the detail-oriented and aggressive legal representation you need when your military career and reputation are on the line.
How Does the Administrative Separation Process Work?
An Administrative Separation (ADSEP) Board is your Commander’s attempt to kick you out of the service and give you a less-than-honorable characterization of discharge. An Other-than-Honorable Discharge carries far-reaching consequences that are in many ways just as severe as a Dishonorable or Bad Conduct Discharge. Even a General Under Honorable Conditions discharge will take away your Federal Post-911 G.I. Bill and limit your employment opportunities.
Much like a jury, the three members of an ADSEP Board must vote and decide whether the government can prove the allegations they have made against you, whether they show you must be separated, what characterization of discharge you should receive, and whether that separation should be “suspended,” as in a year-long probationary period. You may hire your own private civilian defense attorney for this hearing.
The three members of the ADSEP board will typically include two commissioned officers of higher rank than your own and a high-ranking noncommissioned officer or senior enlisted member. If you are a minority service member or female, you have the right to request one of your ADSEP board members be a minority or female.
Commonly Cited Grounds for Administrative Separation
The military can potentially cite many violations of the Uniform Code of Military Justice to initiate administrative separation proceedings against an enlisted service member or commissioned military officer. Some of the most commonly cited grounds for administrative separation include:
- Failure to maintain health and weight standards for your position. Military service members are expected to maintain high physical fitness standards and a healthy weight. Service members who fail to meet physical fitness standards will typically need to complete a rehabilitative fitness program as a first corrective step. However, if their health and weight parameters interfere with their job duties or they fail to maintain their health and weight requirements after this first intervention, their commanding officer may move for administrative separation.
- Any documented pattern of misconduct. Misconduct has a relatively broad definition that can include many behaviors. If you commit any form of misconduct, you can expect a response from your commanding officer, up to and including notice of administrative separation.
- Substance abuse. The military branches offer several internal programs to help service members struggling with substance abuse, but severe drug abuse or illicit drug consumption can easily lead to administrative separation proceedings.
- Poor performance. All service members are expected to discharge their assigned duties to the best of their abilities, appear at all required formations on time and in full uniform, and participate in company activities as required by their commanding officers.
- Insubordination or failure to perform one’s duties. Refusing to follow a direct order from a superior enlisted member or superior officer is a severe infraction. Defending against a charge of insubordination often requires proving the refused order was unconstitutional or illegal.
- Diagnosis of a personality disorder. If a service member displays signs of a personality disorder such as depression, generalized anxiety disorder, or any other personality disorder, their commanding officer may refer them for psychiatric review. This can, in turn, lead to administrative separation proceedings.
- Serious misconduct, including physical assault or sexual crimes against another service member or a civilian. Unlike civilian criminal court, hearsay is admissible in ADSEP board hearings. Defending against this type of charge typically requires proving the charge was wrongful or fictional.
- Failure to adapt to military life. The military lifestyle is demanding, and if a newly enlisted service member cannot adapt to their new lifestyle, their commanding officer may consider these acceptable grounds for administrative separation.
Certain infractions, such as failure to maintain health and weight standards or poor performance, will typically lead to various actions that precede administrative separation proceedings. For example, your commanding officer may issue a nonjudicial punishment for an infraction, submit a negative performance evaluation, or send you a formal letter of reprimand. Depending on the nature of your infraction or alleged infraction, you may only experience one instance of such actions before you receive a formal letter notifying you that you are facing administrative separation.
Some of these issues entail more severe penalties than others. Still, the reality is that any motion to separate you involuntarily from the service can have a tremendous negative impact on your life. It is essential to understand your legal options and the value of legal counsel from an attorney who has substantial military law experience if you find yourself in this position.
Why You Need Legal Representation From a Military Administrative Separation Attorney
Facing any type of administrative discharge is likely to have severe consequences on your life. If you face unjust or wrongful charges, it is vital to fight as hard as possible to protect your livelihood, reputation, and future. Attorney Aaron Meyer can provide the legal counsel you need to navigate complex military court proceedings under an ADSEP board. We can help you salvage your military career and your reputation.
If you have rehabilitative potential and a desire to continue serving Honorably, you have more than a fighting chance. Do not just give up and accept Separation as a foregone conclusion. The mere appointment to an ADSEP board does not mean that you must be separated. Far from it. If your misconduct truly made you unsalvageable, you would be at a Court-Martial.
You need an attorney like Aaron Meyer to package and demonstrate to the Members of your Board why you will not disappoint them or the Service when you are retained. Aaron Meyer has retained 20 Servicemembers at their Administrative Discharge hearings. He has obtained Honorable and suspended discharges for 8 other clients.
Aaron Meyer has achieved the retention of individuals after drug use, allegations of domestic violence, DUI, unauthorized absence, steroid distribution, spice distribution, civilian court convictions for gang-related activity, statutory rape, and assault, among others. In some cases, he showed that the allegations were simply false and had the ADSEP dismissed with “no basis.” Aaron Meyer has even successfully filed motions in ADSEP boards regarding improper appointment or lack of access to evidence and had the ADSEP “adjourned.” Servicemembers sent to ADSEP boards are entitled to due process, and Aaron Meyer makes sure they receive it.
Any respondent facing an ADSEP board hearing should know the value of researching their rights, collecting evidence, and gathering witness statements on their own behalf. However, it is crucial for any service member in this position to acknowledge the impact an experienced military administrative separation attorney can provide in this situation. An attorney with extensive experience in military law can help you approach your ADSEP board hearing better prepared and more likely to avoid the penalties of administrative separation.
Navigating Your ADSEP Case With Confidence
The first stage in any ADSEP case is receiving a formal notice that the military intends to initiate involuntary separation proceedings against you. At this point, it’s vital to retain legal counsel as soon as possible from an experienced military administrative separation attorney.Depending on how your commanding officer characterizes the charges against you, your service length up to this point, and your pay grade, you may have multiple options for defending yourself.
The ADSEP board must complete four key functions during a service member’s involuntary separation proceedings:
- The ADSEP board must determine whether available evidence indicates that misconduct did occur. Your military administrative separation attorney will likely seek to challenge the evidence and seek a “no basis” ruling that has your case effectively dismissed, if possible.
- If the ADSEP board determines that misconduct did occur, it must then decide whether the accused service member should be retained or separated from the service. It is possible in some cases for the respondent to undergo the ADSEP board hearing process and have the ability to remain in the service under certain conditions.
- If the ADSEP board decides that misconduct did occur, it must then decide how to characterize the service member’s service. This is where the distinctions of “dishonorable,” “less than honorable,” or “other than honorable” may come into play.
- Finally, if the service member is eligible for military retirement, the ADSEP board will decide what pay-grade the service member should receive as the basis of their retirement.
Note that not every service member may be eligible for an ADSEP board. You can expect an ADSEP board if your command notifies you that you may receive an other than honorable discharge or if you have completed more than six years of active duty military service. While a dishonorable discharge may be many service members’ idea of a worst possible outcome, it is vital to remember that an other-than-honorable discharge carries severe consequences, including automatic demotion to an E-1 rank, loss of your VA benefits, and more.
Your Rights in an ADSEP Board Case
Attorney Aaron Meyer encourages every service member to understand the value of legal counsel when facing an administrative separation. The situation may appear hopeless at first, but the reality is that any service member facing an ADSEP board has several legal rights. Your military administrative separation attorney can help you take full advantage of these rights while helping you navigate your case with greater confidence:
- You have the right to due process, and the burden of proof rests entirely on the government recorder assigned to your case. This means you have the advantage of the benefit of the doubt and essentially have no obligation to produce any evidence to prove your innocence. If you decide not to provide any evidence, this fact cannot be used against you.
- Your military administrative separation attorney can file a “Bill of Particulars” that demands the government provide a clear explanation of the factual allegations it asserts in your case to justify your separation. This filing could potentially reduce the chance of encountering surprise evidence and will help you prepare a more robust defense.
- You have the right to submit a request to the ADSEP board for bifurcation if the Notice of Separation the government submits fails to recite allegations the government intends to offer against you. This means the government cannot submit additional “unnoticed” evidence until and unless all underlying bases and the ADSEP board’s separation recommendation are fully met by the standard of “a preponderance of the evidence.”
- You may appear before the ADSEP board with legal counsel, or you may face the board on your own. While you have the right to approach the ADSEP board without legal counsel, it is best to have an attorney assist you with your ADSEP board proceedings.
- Once served with a notice that the military intends to initiate involuntary separation proceedings, you become the respondent to these proceedings and have the right to submit a written statement on your behalf.
- You have the right to testify on your own behalf during your ADSEP board proceedings. While you may want to take advantage of your Fifth Amendment right to remain silent, an attorney can advise you whether it would be in your best interests to speak up on your own behalf. In some cases, it may be possible to avoid involuntary discharge by simply arguing your side of the case or clarifying a misunderstanding that led to your administrative separation notice.
- You have the right to call witnesses to testify on your behalf before the ADSEP board. An attorney can help you determine which witnesses are most likely to provide valuable testimony in your favor. This is an especially valuable right in a case revolving around hearsay. If you have been falsely accused and someone else witnessed the event in question, they may be able to provide testimony that clears your name and sheds light on the truth of the matter.
- Before taking any evidence, your attorney has an absolute right to ask the ADSEP board specific questions to ensure the board members can be fair and impartial. If your attorney discovers clear evidence that any board member may have an unfair bias against you for any reason, your attorney can move to have that board member removed from your ADSEP board for cause.
- Your attorney has the right to cross-examine all witnesses during your ADSEP board hearing. You may also have your attorney question any witness called into the case on your behalf.
- You and your attorney have the right to submit evidence to support your defense. This may include sworn or unsworn statements, affidavits, certificates, depositions, video evidence, and social media posts. Depending on the nature of your case, you may have access to more evidence than you initially realize, and an experienced military administrative separation attorney can help you discern which evidence will be most supportive of your defense.
An experienced military administrative separation attorney like Aaron Meyer can help you take full advantage of your legal rights, challenge the validity of the evidence presented against you, and assist you in gathering available exculpatory evidence. As you work toward securing legal counsel before your ADSEP board hearing, take time to start compiling your defense file on your own.
How to Prepare for an ADSEP Board Hearing
It is essential to be as proactive as possible once you receive notice that the military intends to separate you from your position. Do not give up hope, and do not undervalue the impact an experienced private defense attorney can have on your case. While you arrange legal representation, take time to gather evidence to prove your innocence or challenge the evidence against you. Remember, you have the right to due process, meaning the burden of proof in your case rests entirely on the government and your accuser. While you do not necessarily need to gather exculpatory evidence, doing so can significantly improve your defense.
Try to identify other service members, past coworkers, and other individuals who know you and can provide character references or act as witnesses in your support. It’s also vital to compile your career file, including any documentation related to your service that will help you prove that you deserve retainment or disprove allegations of poor performance, misconduct, or insubordination. For example, suppose a commanding officer has unfairly initiated administrative separation proceedings against you out of personal spite, such as a grossly exaggerated negative review. In this case, your career file could contain evidence that disproves this allegation and helps clear your name.
As the name suggests, an ADSEP board is administrative. It is not a criminal proceeding, but you have the right to defend yourself by hiring a military criminal defense attorney. While the government has the burden of proving its case against you, do not take this as a sign that passivity will work in your defense. Take the initiative by hiring an experienced military administrative separation attorney who can help you compile the strongest possible defense.
What to Expect From Your Attorney
When you hire a military administrative separation attorney like Aaron Meyer to represent you before an ADSEP board, you can expect your attorney to conduct a thorough review of the charges against you, the documentation the ADSEP board has submitted pertaining to your case, and your complete military career file.
Your attorney will help you understand your available defenses, highlight weaknesses in the ADSEP board’s case, and identify any potential biases or conflicts of interest that may exist among the board’s three members. Your attorney’s priority will be to ensure the ADSEP board is fair and impartial before determining the validity of the charge filed against you. Next, your attorney will help you take full advantage of your constitutional rights as they apply in your case.
If it is impossible to prevent administrative separation, there is still hope. Your attorney can provide a valuable service by arguing in favor of you retaining the highest possible pay grade if you qualify for retirement. Depending on the nature of your case, your military administrative separation attorney can help you secure the best possible characterization of service that your case allows and potentially help you avoid the long-term penalties of a dishonorable or other-than-honorable discharge from your military career.
Find Your Legal Counsel Today
Attorney Aaron Meyer believes in comprehensive and aggressive defense representation for every service member who comes to our firm in the face of administrative separation. Many service members in this position feel hopeless and uncertain about the future. Rest assured that Aaron Meyer Law will exhaust every available defense in your case. Aaron Meyer will pursue a “no basis” vote whenever possible and help you understand the potential effects of a retention vote or maximized discharge.
The stakes are too high for you to simply lay down at this time. Your career, good name, and lifelong characterization of military discharge are at stake. A fair shake is possible with the right advocate on your side. To find out how Aaron Meyer will start attacking your case, call us today at 949-732-1419 or fill out the form below for a free consultation.