When the military investigates a servicemember for alleged misconduct or other issues, one option is to initiate an involuntary separation action (also known as administrative separation). This is essentially the military’s version of firing someone. Servicemembers are often entitled to have their cases heard before an administrative separation board.
Your retirement, benefits, and reputation could be on the line if you are facing administrative separation. But you have the chance to present your side of the story. The Colorado Springs attorneys of Court Martial Law Division – A Division of Aviso Law LLC can assist you.
Administrative Separation Versus Court-Martial
Administrative discharge
Sometimes called administrative discharge, administrative separation is a process to remove a servicemember (or separate them) from the armed forces due to misconduct, poor performance, or administrative reasons. These are typically cases in which the servicemember’s behavior does not rise to the level of a military crime.
The main objective of administrative separation is to safeguard the integrity of the military, maintain order, and promote good conduct in its ranks by removing members who do not measure up to its standards. A proceeding may lead to different discharge statuses, including:
- Honorable
- General Under Honorable Conditions
- Other Than Honorable (OTH)
These are also known as characterizations of service. The type of discharge can significantly impact a Colorado Springs servicemember’s life. It may negatively impact their reputation, access to veteran’s benefits, future employment opportunities, and much more.
Court-martial
A court-martial, on the other hand, is like a criminal trial for alleged violations of the Uniform Code of Military Justice, or UCMJ. These can include minor infractions or more serious ones like assault or treason. There are three types of court-martial:
- Summary court-martial: This is the least severe type of military trial and is reserved for minor infractions. The proceedings are relatively informal and result in fairly minor punishments.
- Special court-martial: Next in terms of severity is the special court-martial. Although these trials usually involve misdemeanors, potential consequences can include up to a year in jail, forfeiture of a portion of military pay, and a bad-conduct discharge.
- General court-martial: At the most serious level is the general court-martial, akin to a felony trial. Conviction can result in life imprisonment, dishonorable discharge, and, in some cases, the death penalty.
What Is the Process Involved With Administrative Separation?
Administrative separation is usually most appropriate for servicemembers in Colorado Springs who have committed minor infractions, shown poor performance on the job, or demonstrated behavior that is not consistent with established military values. Examples include:
- Disciplinary violations
- A repeated pattern of tardiness
- Failure to meet physical fitness criteria
- Substance abuse
- Insubordination or failure to perform duties
A servicemember’s commanding officer will initiate administrative separation proceedings. Servicemembers with at least six years of service (or eight for Coast Guard) are entitled to a board hearing. They are also entitled to one if the command is recommending OTH.
The board makes independent findings and recommendations. These are then sent to the servicemember’s command for final approval. However, the board is required to notify the servicemember as to its justification for the proposed separation.
During the board proceeding, officers will ask a number of questions such as:
- Did the alleged misconduct (the basis of separation) occur?
- If so, does the misconduct warrant separation?
- If it does, what is the recommended characterization of service?
- If the servicemember is entitled to retirement, what should be the pay grade?
The board can also recommend an alternative route for the servicemember, such as a rehabilitative transfer. The evidentiary standard for the hearing is preponderance of the evidence, which means it is more likely than not that the misconduct happened.
Not all servicemembers in Colorado Springs qualify for a board, but they should still respond to the proposed separation. In lieu of a hearing, these members would present their case and their explanation of the alleged facts in writing.
What Is the Expected Timeline of Administrative Separation?
If a board is not required, or a servicemember waives their right to one, administrative separation can take as little as 15 days. When a board is involved, the timeline can take up to about 50 days. In rare cases the entire procedure may take up to a year.
How Does a Military Attorney Assist the Servicemember?
Retaining legal counsel to help handle your administrative separation is important. The outcome of the procedure can have lasting effects for your personal and professional life. Our Colorado Springs military attorney represents servicemembers in administrative separations by:
- Helping the servicemember understand their rights and the potential outcome of the separation
- Explaining the various characterizations of service and which one is most likely
- Discussing the substance of the alleged misconduct or other basis for separation
- Examining and potentially challenging the evidence against the servicemember
- Gathering evidence, including witness statements, to argue on behalf of the servicemember
- Presenting the servicemember’s case to the board and explaining why the member should not be separated
- Seeking the best possible characterization of service if the decision is separation
- Representing the servicemember’s interests in the event a board is not required or the member waives it
- Fighting to protect the servicemember’s military benefits and professional reputation at all stages
There is a lot riding on the outcome of your administrative separation. You cannot afford to face the military’s proceedings without having experienced military counsel in your corner. Learn more about administrative separation boards by connecting today with Court Martial Law Division – A Division of Aviso Law LLC.