WHAT IS AN ADMINISTRATIVE SEPARATION BOARD?

If you are suspected of committing certain offenses, or your commander believes you lack the potential for further service, you may be processed for military separation or military discharge, prior to the end of active obligated service (EAOS) date. This process is known as “administrative separation” for enlisted personnel. (Officers are administratively separated via a process known as a Board of Inquiry. Click here for information on BOIs). The services vary slightly on how this process takes place but, generally the following information applies:

WHAT RIGHTS DO I HAVE IF I’M BEING PROCESSED MILITARY SEPARATION

If you face military discharge or military separation, you  have the following rights:

• The right to consult with a military attorney. You can consult with an active duty military attorney at your local base legal office at no cost or you may hire an experienced military civilian attorney;
• The right to submit statements in your own behalf ,You also have the right to obtain your military records;
• The right to obtain copies of documents which your commander will forward in support of the separation recommendation;
• The right to a hearing if the commander seeks a discharge characterized as under “Other Than Honorable ” Conditions (OTH) OR if you have over 6 years of service in the military.
• If you have a hearing, you have the right to an attorney to represent you that hearing. Again, this attorney can be an active duty attorney or you may hire experienced military counsel. For more information on making this decision, click here.

WHAT ARE THE TYPES OF DISCHARGES AT AN ADMINISTRATIVE SEPARATION BOARD?

If you are processed for military separation or military discharge prior to your EAOS, you will receive one of the following discharge characterizations:

• Honorable Discharge is the best discharge you can receive from the service. An honorable discharge will be given for proper military behavior and proficient performance of duty. If there is no derogatory information in your military record, you should receive an honorable discharge.
• General Discharge (also called “General, Under Honorable Conditions”) is usually given to someone who had nonjudicial punishments (Article 15s), but not for serious infractions. A general discharge indicates that you had problems while you were in the military and may cause prejudice in civilian life. However, because it is under honorable conditions and is still considered “good paper,” most employers probably will not press the issue. You will be eligible for all VA benefits with a General discharge with the exception of education benefits, such as the 9/11 GI Bill, for which the VA requires an Honorable discharge (along with a minimum amount of service) in order to receive.
• Under Other Than Honorable Conditions (OTH) will deprive you of most of the benefits you would receive with an Honorable discharge and may cause you substantial prejudice in civilian life. Therefore, before you can be given an OTH, and regardless of how few years of military service you may have, you have the right to have your case heard by an administrative separation board.

WHAT OPTIONS DO I HAVE IF I’M BEING PROCESSED FOR SEPARATION?

The Separation Authority, usually your Company, Battalion or Ship Commanding Officer (or General or Flag officer depending on the reason for separation and the proposed characterization of discharge) decides whether you should be separated and, if so, what type of the discharges described above that you should receive. If you have less than six years of total active and reserve military service, and you are not being considered for an OTH discharge, you are not eligible for an Administrative Separation Board, so the only way you can provide input into what sort of discharge you receive is to submit statements in your own behalf. These statements can be yours, or from people with whom or for whom you have worked. You should seek the assistance of an experienced military lawyer prior to submitting these statements, since, if done right, they can have a significant impact on the character of your discharge.

WHAT RIGHTS DO I HAVE AT AN ADMINISTRATIVE SEPARATION HEARING?

Again, if you have six years or more years of active and reserve military service OR the commander is seeking an OTH, you have the right to a board hearing before the commander takes action. This board normally consists of a panel of three people, usually two officers and a senior enlisted member. The Board is much like a trial, where the government is represented by a military legal officer, and you are represented by a military lawyer. Both sides can call witnesses and present evidence, including your military records. Once the evidence has been presented, your military attorney can argue on your behalf. The board then votes to determine if (a) you committed the reason for separation; (b) if so, should you be separated, and (c) if so, what the characterization of service should be. The Separation Authority makes the final decision, but cannot do anything less favorable to you than the Board recommended.

Again, you have the right to be represented by an active duty military lawyer at no cost to you. You could also hire a civilian military lawyer, at no cost to the Government. You may make a statement to the Board or chose to remain silent.

You may submit a Conditional Waiver. A Conditional Waiver is a document you send to the Separation Authority agreeing to give up your right to a Board hearing in exchange for a better type of discharge (usually a General discharge). If the Separation Authority agrees, there is no hearing, and you are separated from that better type of discharge. If not, you still have the right to a Board. In any case, you also have the right to consult with a military lawyer to decide what option is best for you. This is why it is very important to get an experienced military attorney before making this decision. At King Military Law, we often recommend our clients fight the government at a hearing as this can often result in the Board voting to retain you on active duty.

The Administrative Separation process could result in your losing important military benefits, veterans benefits as well as adversely impacting your life after service. For those reasons, take the process seriously, fight every step of the way, and make sure you are assisted in that fight by an experienced military attorney.

At KML, we are available to you 24/7. Please call us if you think we can help.

King Military Law: Decades of Experience in YOUR Corner–When Experience Matters Most