Administrative Separations Part I: Fighting Notification Procedures

Servicemembers with less than 6 years of active duty do not rate a separation board when discharged under Honorable or General (Under Honorable Conditions). As a result, they can be involuntarily separated from the military via “notification procedures” without a formal hearing. Even without a hearing, however, servicemembers can still fight to remain on active duty.

MJA has successfully helped servicemembers fight unjust separation actions. If you have been notified of administrative separation and want to fight for your career, contact us today for your free consultation.

OVERVIEW

Each branch has its own regulations governing administrative separation processing. The most common regulations governing the separation of enlisted servicemembers include:

Air Force – AFI 36-3208 (Administrative Separation of Airmen)
Army – AR 635-200 (Active Duty Enlisted Administrative Separations)
Coast Guard – COMDTINST M1000.4 (Military Separations)
Marine Corps – MCO 1900.16 (MARCORSEPMAN)
Navy – NAVPERS 15560D MILPERSMAN

These regulations typically require that a servicemember facing separation be advised of:

Whether the proposed separation could result in discharge, release from active duty to a Reserve Component, or release from custody and control of the military;
The least favorable characterization of service he/she could receive; and
The type of discharge and character of service recommended by the initiating commander and that intermediate commanders may recommend a less favorable type of discharge and characterization of service than that recommended by the initiating commander.

The separation authority is not bound by the recommendations of the initiating or intermediate commanders and has complete discretion to direct any type of discharge and characterization of service authorized in accordance with applicable regulations.

SERVICEMEMBERS’ RIGHTS

While servicemembers notified of separation via “notification procedures” are not entitled to a board hearing, they do have a few important rights. These include the right to:

Consult with military or civilian counsel within a reasonable time;
Submit statements in their own behalf; and
Obtain copies of documents that will be sent to the separation authority supporting the proposed separation.

Servicemembers are only entitled to hearing before an administrative separation board if they had more than 6 or more years of total active and reserve service on the date of initiation of recommendation for separation, or if the least favorable characterization of service they can receive is as Other Than Honorable (OTH) discharge.

Failure to timely respond to the notification, including failure to submit matters in rebuttal, will constitute a waiver of the service member’s rights. An extension will normally be granted until any documents requested by the servicemember have been provided, and the servicemember has a reasonable opportunity to respond to such documents.

REBUTTING A SEPARATION ACTION

Servicemembers notified of separation may submit written matters or statements on his/her own behalf in response to the proposed separation. If an intermediate commander considers additional unfavorable information outside that contained in the original separation action, then servicemembers should be allowed to rebut the additional material prior to the separation action being forwarded up the chain of command.

The submission of a compelling written rebuttal is the Soldier’s single best opportunity to terminate the separation proceedings or to convince the separation authority to suspend the separation or discharge the servicemember with a fully Honorable discharge.

SEPARATION AUTHORITY ACTION

The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations. After receiving a recommended separation action, the separation authority is required to determine if there is sufficient evidence to verify the allegations. If no sufficient basis for separation exists, the separation authority will disapprove the recommendation or take other appropriate action.

If a sufficient factual basis for separation does exist, the separation authority will determine whether separation is warranted and take one of the following actions: (1) Direct retention; (2) Direct separation for a specific reason (and designate the primary reason for separation, if more than one basis for separation is listed in the notification); or (3) Suspend separation.

If suspension of separation is chosen, the separation authority may suspend execution of an approved separation for up to 12 months. The purpose of suspension is to give the servicemember the opportunity to show that he/she is able to behave properly and effectively perform their military duties. Once the probationary period is completed, the separation authority will cancel execution of the approved separation.

CHARACTERIZATION OF SERVICE

If separation is directed, the separation authority will determine the type of discharge certificate and character of service. Servicemembers separated via notification procedure must receive either an Honorable or General (under honorable conditions) characterization of service.

Characterization at separation will be based upon the quality of a servicemember’s service, including the reason for separation. An Honorable discharge is appropriate when the quality of the servicemember’s service generally has met the standards of acceptable conduct and performance of duty for military personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

In contrast, a General (under honorable conditions) discharge is appropriate when a servicemember’s military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. “Entry-Level” separations are typically uncharacterized.

APPEALING AN UNJUST DISCHARGE OR CHARACTERIZATION OF SERVICE

Service members who believe they were improperly discharged from the military or received an unjust characterization may file an appeal to the appropriate Board for Correction of Military Records or Discharge Review Board. These boards have the authority to correct errors or injustices relating to a discharge or to upgrade a characterization of service, among other powers.

CONTACT MJA TODAY

________________________

Administrative Separations Part II: Fighting a Separation Board
Administrative Separations Part III: Fighting Officer Separations

The post Administrative Separations Part I: Fighting Notification Procedures appeared first on Military Justice Attorneys.