Administrative separations are less severe than courts-martial. The military uses administrative separations to handle minor situations, including minor misconduct, medical discharges, fraudulent entry into military service, and unsatisfactory performance. Sometimes referred to as involuntary discharge, a commander cannot typically begin proceedings without making reasonable disciplinary and retraining efforts to rehabilitate the service member. The initial step in the discharge process requires first notifying the service member of pending proceedings.
Experienced U.S. Military Involuntary Discharge Defense Attorney
There are two types of administrative separations: notification processing and board processing.
Notification Processing
Notification processing is used where the service member has less than six years of service and the least favorable characterization of service they can receive is "General Under Honorable Conditions". The notification process is limited to a written process wherein the command notifies the service member of their intent to discharge the member and the reasons for discharge. After receiving notification, the service member can meet with an attorney, write a statement and submit evidence on his behalf if he or she believes that discharges is not warranted in their case.
Board Processing
Board processing is used in all other instances. A service member is entitled to appear before the board if the military is seeking Other-than-Honorable discharge, the service member is an officer, the service members' length of time in service is greater than six years, and if the reason is a matter of national security. The board consists of three officers, a legal advisor and a recorder. Unlike a court-martial, a board processing has no formal rules of evidence and decides the facts by preponderance of evidence. Preponderance of evidence means the offense more than likely occurred. During the hearing, the service member can have the counsel represent him, bring witnesses, question witnesses brought against him, and challenge a member of the board.
At the conclusion of both the processes, the board makes several decisions including whether alleged misconduct has occurred. If misconduct is found to have occurred, a recommendation is made concerning whether separation is warranted, and if separation is warranted, then the type of characterization of service as either Honorable, General, or Other-than-Honorable. If the board recommends an Other-than-Honorable characterization, a judge advocate will review the proceedings. The board's recommendations are forwarded to the service member's chain of command.
Contrary to popular belief, the service member's discharge will not automatically upgrade six months after your administrative separation.
Service members are entitled to representation before an administrative board by an appointed military attorney at no charge. Unlike a court-martial, military members do not have a right to request representation by a specific military attorney. Military attorneys assigned to represent service members at administrative boards are typically the most junior attorneys in the office. In turn, these officers give these cases the least amount of their time and attention. This is because separation boards are seen as less important than courts-martial, as military rules of evidence do not apply, and the board cannot award confinement or a punitive discharge.
An Administrative Discharge Has Serious Long-Term Consequences
This approach is unfortunate, because separation boards have lifelong consequences every bit as serious as a court-martial conviction. Not only will you lose your job, but an Other-than- Honorable Discharge deprives a service member of almost all veterans' benefits, including your G.I. Bill, VA loan, eligibility for student loans and other government programs. It will also make it extremely difficult for you to obtain employment in the future. In fact, one study found that employers were less likely to hire a service member who had "Other-than-Honorable Discharge" than they were a service member with a court-martial conviction and Bad Conduct Discharge. For senior military members, an administrative discharge represents not only these losses, but also the loss of the retirement that you have spent your entire military career earning.
I am military defense attorney Charles Swift of Swift & McDonald, P.S., in Seattle, Washington. During my career as a military lawyer, I took a different approach. For me, administrative boards were as important as any court-martial. I prepared every bit as hard for a board as I did for a court-martial. What I found was that quality advocacy matters most when it came to a board. My clients who were facing separation for reasons ranging from failure of the command urinalysis to family advocacy failure for child abuse were repeatedly found not to have committed misconduct. I cannot guarantee an outcome in your case, but regardless of the allegations, I stand ready to aid you in protecting your career and your future.
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From offices in Seattle, the firm represents clients in civilian criminal matters and military family law matters throughout Washington State. Mr. Swift represents clients in military law matters at U.S. bases around the world. Contact the law firm of Swift & McDonald to arrange a free initial consultation with an experienced lawyer today. Call toll free 800-391-7308.
