Administrative Separation

It has long been speculated that ingestion of legally purchased foods containing poppy seeds could result in a positive urinalysis for morphine or codeine. In 2023, the Department of Defense finally confirmed these suspicions and suspended reporting of codeine results on all urinalyses processed by the DoD.

MJA understands the significant adverse consequences that service members can face due to a positive urinalysis and that innocent ingestions do occur. MJA has fought and won drug abuse cases for service members throughout the world. Contact one of our military defense lawyers today to learn more.

ARTICLE 112a, UCMJ (DRUG ABUSE)

Article 112a, UCMJ, criminalizes the wrongful use, possession, manufacture, distribution, importation into and exportation from the United States, and introduction into a military installation, vessel, vehicle, or aircraft under the control of the armed forces.

To be guilty of violating Article 112a for drug use, the Government must prove two elements:

• That the service member used a controlled substance; and
• The service member’s use was wrongful.

The second element is particularly important. Service members who unknowingly or innocently ingest a controlled substance do not have the mens rea (i.e. criminal intent) to violate the law and are therefore not guilty of “wrongful” drug abuse. This would certainly be the case for service members who innocently ingest a legally purchased food product containing poppy seeds.

POPPY SEED PRODUCTS CAN CAUSE A POSITIVE URINALYSIS

In February 2023, the DoD’s Office of Drug Demand Reduction (ODDR) determined that ingestion of certain legally purchased foods could result in a positive urinalysis for codeine.

While poppy seeds themselves do not produce opiates, the poppy seeds can be contaminated during harvest with morphine and codeine. This is particularly troublesome given that certain varieties of poppy seeds are now believed to have concentrations of codeine than previously reported.

DoD drug testing traditionally excluded poppy seed consumption as a legitimate explanation for a positive urinalysis if the service member’s sample contained concentration of both codeine and morphine together. However, a recent scientific study suggests that ingestion of certain types of poppy seeds can result in a positive urinalysis for codeine only—a result that the DoD previously would have considered wrongful drug use and not the result of an innocent ingestion.

In light of these findings, the ODDR temporarily suspended reporting of codeine results on all urinalyses processed at Department of Defense Forensic Toxicology Drug Testing Laboratories and suspended the destruction of urine specimens previously reported as a codeine positive. The DoD also released a memo warning service members to avoid consuming poppy seed products.

PREVIOUSLY DISCHARGED SERVICE MEMBERS

Service members with a previously reported positive urinalysis for codeine, consistent with poppy seed ingestion, are supposed to be identified and contacted by their respective military branch. According to recent guidance, the services have been directed to take “appropriate remedial actions” in those cases—whatever that means.

Service members who do not want to wait around, however, can always petition their Discharge Review Board or Board for Correction of Military/Naval Records for a discharge upgrade or other potential relief.

WINNING YOUR CASE

It is a misconception that service members cannot fight or challenge a positive urinalysis, which is largely perpetuated by commands who try to convince the service member that they have no hope of winning at a court-martial. This is simply not true. At MJA, we have used many different defenses to convince a jury (memberS panel) that there was reasonable doubt as to the unlawfulness of the drug use, such as good military character, unknowing ingestion, timeline, lack of motive, testing limitations, and urine collection procedures.

Furthermore, many of these defenses can be used in conjunction with each other to make the defense theory of the case that much more compelling to the jury. At MJA, we have fought and won many drug abuse cases for our clients throughout the world. Examples of successful cases include:

• A Lance Corporal (E-3) in the Marine Corps was accused of violating Article 112a of the UCMJ. MJA helped the young Marine refuse NJP and then fight the charges at his administrative hearing where we successfully showed his vaping activity did not violate Article 112a. The administrative hearing concluded there was no misconduct on the part of the LCpl and returned him to full duty status.  
• A Hospital Corpsman Second Class (E-5) in the Navy was notified of nonjudicial punishment for allegedly violating Article 112a after testing positive for amphetamines. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription for Adderall. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career. 
• A Petty Officer First Class (E-6) in the Coast Guard was charged with allegations of alcohol and drug abuse under Article 112a of the UCMJ which led to an administrative hearing. MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the service member regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard. 
• A Corporal (E-4) in the Marine Corps was accused of multiple violations of the UCMJ to include possession of narcotics and steroids in violation of Articles 112a and 92, UCMJ. MJA worked with the Corporal to gather witness statements to show he never used drugs or possessed illegal drugs with the intent to use them. As a result of MJA’s efforts, the Corporal was found not guilty of the allegations at NJP and was allowed to finish his enlistment.
• A Petty Officer Third Class (E-4) in the Navy tested positive for THC following a random urinalysis. The Sailor was notified of NJP where, if convicted, he faced the possibility of reduction in rank, restriction, and administrative separation from the Navy. MJA provided evidence to the command showing that the Sailor had innocently ingested THC infused candy. Based on this evidence, the Commanding Officer found the Sailor not guilty at NJP and did not initiate administrative separation processing.

BEYOND A REASONABLE DOUBT

Although every drug abuse case is different, it is important to know that it is never easy for the prosecution to prove beyond a reasonable doubt that the suspect service member intentionally or knowingly ingested the controlled substance. For instance, in a former Marine Corps case, our client had popped for amphetamines, a Class II Controlled Substance, on a urinalysis. He had never been in trouble with law enforcement or his command; was sick in his quarters for four days leading up to him providing his urine; and, the prosecutions had no theory as to how, when, or where the amphetamine was consumed, or put on any evidence as to whether the service member knowingly ingested the drug. We were not surprised that the jury came back in less than 60 minutes with a not guilty verdict.

Although the military has a zero tolerance policy with drug abuse allegations, the service member should not give up hope, and fall on their sword. At MJA, we give daily consultations to service members who are suspected of unlawful drug use, and a common refrain we hear from these service members is that they have been told there is no hope so accept accountability and maybe the punishment will be less. If you are suspected of drug abuse based off of a positive urinalysis you should always ask yourself whether you can plead guilty to something you know you did not do. If you are not comfortable pleading guilty, then you need to retain the best military drug abuse defense lawyer you can to fight shoulder-to-shoulder with you throughout the process.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you. We have defended service members facing investigation, trial, and discipline for the most serious offenses under the UCMJ, including drug offenses. Call us today at (843) 773-5501 for a free consultation.

The post Can Poppy Seeds Cause a Positive Drug Test? appeared first on Military Justice Attorneys.

So, you stuck to your guns and refused to get the jab? When everyone else caved to pressure from peers and their command, you stood strong and refused to compromise your convictions. And the military rewarded your courage by discharging you from the service for misconduct and, most likely, with a less than fully honorable discharge. What now?

Fortunately, not all discharge decisions are final. Each service branch has a Discharge Review Board (DRB) and Board for Correction of Military Records (BCMR) established to correct errors and remove injustices from the official military records of service members. These boards can upgrade and correct a veteran’s characterization of service, reenlistment code, and narrative reason for separation, among other things.

MJA has successfully helped veterans upgrade their discharge characterizations of service and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

UNJUST SEPARATIONS

Thousands of service men and women across the military branches have been administratively discharged for refusing to take the COVID-19 vaccine. Many of these veterans had sincerely held religious beliefs against the vaccine and submitted religious accommodation requests but were discharged before federal courts stepped in to protect them against separation. Those veterans were unjustly separated in violation of their due process and constitutional rights. In order to restore those rights, veterans must seek relief from federal court or one of the military’s administrative review boards.  

DISCHARGE REVIEW BOARDS

For veterans simply seeking to upgrade their characterization of service or change the reason they were discharge, the discharge review boards provide a great option.

Pursuant to federal law, each military branch maintains a Discharge Review Board (DRB) which meets regularly to review submissions and hear oral arguments in favor of applicants. Veterans seeking a discharge upgrade may, within 15 years from their military discharge, petition one of the following DRBs:

• Air Force Discharge Review Board (AFDRB)
• Army Discharge Review Board (ADRB)
• Coast Guard Discharge Review Board (CGDRB)
• Naval Discharge Review Board (NDRB)

The DRBs are authorized to reconsider discharges not ordered by sentence of a general court-martial and non-medical in nature; upgrade characterizations of service; issue re-enlistment codes; and restore rank as a matter of propriety and/or equity and fairness.

One of the biggest advantages of the DRB is that an applicant has the right to request a personal appearance in front of the board. The veteran can represent himself at the personal appearance or be represented by counsel.

BOARDS FOR CORRECTION OF MILITARY RECORDS

Another option for veterans seeking relief is the Boards for Correction of Military/Naval Records. Each service branch has a Board for Correction of Military Records established to correct errors and remove injustices from the official military records of service members. Such records may include, but are not limited to, records regarding discharges, reenlistment codes, disciplinary matters, performance evaluations, selection for promotion, advancement, retirement, dates of service, disability ratings, medals, and various bonuses and benefits. The BCMRs include:

• Air Force Board for Correction of Military Records (AFBCMR)
• Army Board for Correction of Military Records (ABCMR)
• Board for Correction of Military Records of the Coast Guard (BCMR)
• Board for Correction of Naval Records (BCNR)

Current and former members of the United States military (including Reserve personnel) may apply for a correction of an error or removal of an injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, next of kin (parent, sibling, or child), or legal representative can apply for the service member. Applicants must first exhaust available administrative avenues of relief before applying to a BCMR.

DISCHARGE APPEAL REVIEW BOARD

If neither the DRB nor BCMR/BCNR provide relief, veterans may be eligible to petition the Department of Defense’s Discharge Appeal Review Board (DARB). The DARB, created in 2021, provides final review of discharge or dismissal characterization upgrade requests when petitioners have exhausted all available administrative remedies. The DARB is the highest administrative level of review for a discharge upgrade request. 

To be eligible, the service member must have been separated on or after December 20, 2019, and has exhausted all available appeals with their service DRB and BCMR/BCNR. The requirement to “exhaust all available appeals” simply means that the petitioner has already requested and been denied relief from their service DRB and BCMR/BCNR before applying to the DARB. The DARB may review both voluntary or involuntary discharges based on:

Enlisted:

• Expiration of service obligation
• Change in service obligations
• Weight control failure
• Convenience of the Government
• Disability
• Defective enlistments and induction
• Unsatisfactory reserve participation
• Secretarial plenary authority
• Entry-level conduct/performance
• Unsatisfactory performance
• Military Department reasons
• Misconduct
• Separation in lieu of court-martial
• Security
• Drug abuse rehabilitation failure
• Alcohol abuse rehabilitation failure

Officer:

• Substandard performance of duty
• Misconduct or moral or professional dereliction
• Retention not clearly consistent with national security interests;
• Sentence by court-martial
• Dropping from the rolls

If the DARB recommends that the petitioner’s characterization of service be upgraded, this recommendation is sent to the Secretary of the Military Department concerned for final action. The Secretary of the Military Department makes the final decision.

CONTACT US TODAY

Not all discharge decisions are final. MJA has successfully helped veterans upgrade their discharge characterization of service and reason for separation and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

**UPDATE – On 10 January 2023, the Secretary of Defense officially rescinded the COVID-19 vaccine for the U.S. military. Check out our January 2023 blog post to see how this affects active duty service members and former service members who were discharged for not taking the COVID-19 vaccine.

The post I was Discharged for Not Taking the COVID-19 Shot: What Now? appeared first on Military Justice Attorneys.

It’s no secret that the military has a zero-tolerance policy when it comes to drug abuse, including the use of marijuana. What service members may not know, however, is that the military prohibits the use of any cannabis or hemp-derived products, even those sold commercially. Service members who test positive for any form of tetrahydrocannabinol (THC) are subject to discipline under the UCMJ and mandatory separation processing.

If you have tested positive for THC or another drug, it is critical that you protect your rights and your military career. MJA has fought and won drug abuse cases for service members across the military branches. Contact one of our military defense lawyers today to learn more.

ARTICLE 112, UCMJ

Article 112a, UCMJ, criminalizes the use, possession, or distribution of a controlled substance. Common controlled substances include opium, heroin, cocaine, amphetamines, LSD, and marijuana, to name a few. A full list of prohibited substances can be found in the Controlled Substances Act (21 U.S.C. § 812).

However, not all products banned by the military are “controlled” substances under federal law.

The military also prohibits the wrongful use of certain natural substances (e.g. fungi), chemicals wrongfully used as inhalants, propellants, and even prescribed or over-the-counter medication if used without a prescription or with the intent to get high. This prohibition includes the use of any cannabidiol (CBD) products (e.g. edibles, oils, creams, drinks, vape cartridges, etc) which are often legal and can be purchased online or at a local gas station.

DELTA-8 THC VERSUS DELTA 9-THC

Historically, the military only tested for delta-9 THC (the controlled substance) during urinalysis testing. In 2021, the Department of Defense (DoD) expanded its urinalysis screening to also test for delta-8 THC (i.e. the commercially available type that is not a prohibited controlled substance).

Delta-8 THC is similar to delta-9 THC and exists naturally in cannabis plants at low levels. Delta-8 THC is still, however, a psychoactive cannabinoid that can cause a user to experience a type of “high”. For this reason, the DoD prohibits  service members from ingesting or otherwise using any product containing delta-8 THC.

Because Delta-8 THC is not a controlled substance under federal law, service members who test positive for Delta-8 THC cannot be charged with violating Article 112a, UCMJ. Instead, service members who test positive for Delta-8 THC may only be charged under Article 92, UCMJ for violating a lawful order. Service members who unknowingly consumed a product containing delta-8 THC may be able to assert a defense of innocent ingestion.

MANDATORY “PROCESSING” FOR SEPARATION

The Department of Defense (DoD) has a zero-tolerance policy on drug abuse. This policy requires that any substantiated incident of drug abuse, including the use of delta 8-THC,  be subject to mandatory processing. Mandatory processing is not the same as mandatory separation. Whether separation will occur depends on numerous factors.

Simple cases of use or possession are generally handled administratively through nonjudicial punishment or summary court-martial. More serious cases may result in criminal charges at court-martial.

Service members with less than 6 years of military service do not rate a separation board. As a result, they can be administratively separated from the military with a general (under honorable conditions) characterization of service through simple notification procedures.

Service members with more than 6 years of military service are entitled to a separation board hearing. For them, mandatory processing can mean either a board hearing or court-martial.

MJA VICTORIES 

MJA has successfully defended service members facing investigation, court-martial, and discipline for Article 112a offenses. Examples of successful cases include: 

• A Lance Corporal (E-3) in the Marine Corps tested positive for cocaine following an all-hands urinalysis. The Marine was notified of involuntary administrative separation and convinced by his command to sign a board waiver, allowing him to receive an Other than Honorable (OTH) characterization of service. MJA was retained days before the Marine’s separation. MJA immediately withdrew the board waiver and requested an extension of time to submit matters in rebuttal. MJA then provided evidence to show that the Marine had not used cocaine and that the urinalysis result was in error. The Marine was retained on active duty and allowed to continue his military service. 
• A Petty Officer First Class (E-6) in the Navy tested positive for cocaine twice following two all-hands urinalyses. The Sailor, who had served in the Navy for almost 18 years, was notified of nonjudicial punishment (NJP) and was facing potential involuntary administrative separation from the Navy. MJA conducted an investigation to uncover evidence favorable to our case and to show that the Sailor innocently ingested cocaine by drinking coca tea from Peru. Scientific studies conclusively link consumption of coca tea with positive drug tests for cocaine. Based on the evidence submitted by MJA, the Sailor was found not guilty at NJP and remained on active duty.
• A pilot in the Air Force was notified of administrative discharge procedures for allegations of drug abuse. While pending separation, the Officer was arrested for DUI and awarded nonjudicial punishment and a letter of reprimand. MJA guided the Officer through the lengthy separation process and submitted extensive written matters in support. After much effort, the Officer was honorably discharged from the Air Force. 
• A Lance Corporal (E-3) in the Marine Corps was accused of violating Article 112a of the UCMJ. MJA helped the young Marine refuse NJP and then fight the charges at his administrative hearing where we successfully showed his vaping activity did not violate Article 112a. The administrative hearing concluded there was no misconduct on the part of the LCpl and returned him to full duty status.  
• A Hospital Corpsman Second Class (E-5) in the Navy was notified of nonjudicial punishment for allegedly violating Article 112a after testing positive for amphetamines. The Corpsman refused NJP and demanded trial by court-martial, explaining to his command that he had a lawful prescription for Adderall. MJA represented the Corpsman at the board hearing and proved that the Sailor did not wrongfully use a controlled substance. The board voted unanimously to find NO BASIS for the alleged drug abuse. The Corpsman was retained on active duty and is excited to continue his military career. 
• A Petty Officer First Class (E-6) in the Coast Guard was charged with allegations of alcohol and drug abuse under Article 112a of the UCMJ which led to an administrative hearing. MJA worked closely with the Petty Officer to make sure he was getting the proper treatment and help with underlying medical issues while also preparing for his administrative hearing. Through MJA’s efforts, the board found in favor of the service member regarding the alcohol abuse, found no misconduct regarding the 112a, and recommended retention in the Coast Guard. 
• A Corporal (E-4) in the Marine Corps was accused of multiple violations of the UCMJ to include possession of narcotics and steroids in violation of Articles 112a and 92, UCMJ. MJA worked with the Corporal to gather witness statements to show he never used drugs or possessed illegal drugs with the intent to use them. As a result of MJA’s efforts, the Corporal was found not guilty of the allegations at NJP and was allowed to finish his enlistment.
• A Petty Officer Third Class (E-4) in the Navy tested positive for THC following a random urinalysis. The Sailor was notified of NJP where, if convicted, he faced the possibility of reduction in rank, restriction, and administrative separation from the Navy. MJA provided evidence to the command showing that the Sailor had innocently ingested THC infused candy. Based on this evidence, the Commanding Officer found the Sailor not guilty at NJP and did not initiate administrative separation processing.

PROTECT YOUR FREEDOM AND YOUR MILITARY CAREER

A positive urinalysis for any form of THC can be enough to destroy a military career. Service members facing drug abuse allegations risk losing their career, healthcare, GI bill, and retirement benefits, if separated. Those who face court-martial risk a federal drug conviction, punitive discharge, and serious confinement time. If you are suspected of drug abuse or have been asked to take a urinalysis, it is critical that you speak with an experienced military defense attorney. Contact our military defense lawyers now to learn more.

The post I Don’t Use Marijuana But Tested Positive for THC: What Happened? appeared first on Military Justice Attorneys.

For those who have served in the military, the DoD’s mandatory COVID-19 vaccination rollout has been exactly what you would expect—a cluster of misinformation and intimidation tactics resulting in service members being harassed and threatened to take the vaccine, discouraged from submitting religious accommodation requests, and berated by leadership if they dare to question the vaccine mandate.

With the deadlines to be fully vaccinated quickly approaching, some service branches have already released guidance on how they intend to punish those who refuse to take the vaccine. These punishments may include, at least for the Navy, relief for cause, administrative reprimands, and mandatory separation processing.

MJA has successfully helped servicemembers fight unjust separation actions. If you have been notified of administrative separation or court-martial for refusing the COVID-19 vaccination and want to fight for your career, contact us today for your free consultation.

DEADLINES FOR THE U.S. MILITARY TO BE FULLY VACCINATED

The military branches have imposed varying deadlines on when service members must be fully vaccinated:

• Air Force: Active-duty Airmen and Guardians must be fully vaccinated by November 2, 2021, while Air National Guard and Air Force Reserve personnel have until December 2, 2021.
• Army: Active-duty Soldiers must be fully vaccinated by December 15, 2021. Reserve and National Guard units must be fully vaccinated by June 30, 2022.
• Navy: Active-duty Sailors must be fully vaccinated against COVID-19 no later than November 28, 2021, and Ready Reserve Navy service members no later than December 28, 2021 (See NAVADMIN 225/21).
• Marine Corps: Active-duty Marines must be fully vaccinated against COVID-19 no later than November 28, 2021, and reservists no later than December 28, 2021 (See MARADMIN 533/21 for the deadlines specific to each vaccine).

A service member is considered “fully vaccinated” two weeks after completing an approved COVID-19 vaccination series.

COVID CONSOLIDATED DISPOSITION AUTHORITY (CCDA)

On October 13, 2021, the Chief of Naval Operations announced in NAVADMIN 225/21 that the Chief of Naval Personnel will serve as the Navy’s COVID Consolidated Disposition Authority (CCDA), the central authority for adjudication of vaccine refusals.

The CCDA will be the designated show cause authority for officers and separation authority for all enlisted Sailors who refuse the COVID-19 vaccine, except those serving in an Entry Level status.

In the Marine Corps, the general court-martial convening authority (typically the first Commanding General in the Marine’s chain of command) will be the initial disposition authority for cases arising from COVID-19 vaccine refusals. Adverse administrative or judicial proceedings may be initiated by Commanders, Commanding Officers, or Officers in Charge when a Marine has refused to take the vaccine.

PUNISHMENT FOR SAILORS REFUSING THE COVID-19 VACCINATION

Sailors, for example, who refuse the COVID-19 vaccination without a pending or approved exemption “shall be processed for administrative separation” per NAVADMIN 225/21. This is an automatic requirement meaning that the Navy WILL try to boot out anyone who refuses to take the vaccine. Administrative processing may be by notification procedures for Sailors with less than 6 years of service or a separation board hearing for Sailors who have served over 6 years.

Under the new rules, a service member “refusing the vaccine” is one who has: “(1) received a lawful order to be fully vaccinated against COVID-19; (2) is not or will not be fully vaccinated on the date required by the order; and (3) does not have a pending or approved exemption request.”

In addition to initiating administrative separation processing, the CCDA retains the authority to remove a refusing Sailor’s professional qualifications including warfare qualifications, additional qualification designations (AQD), Navy Enlisted Classifications (NEC), or sub-specialties, except where the removal authority is otherwise authorized by law or Executive Order.

Local commanders have the authority to temporarily reassign Navy service members who refuse the COVID-19 vaccine based on operational readiness or mission requirements and are prohibited from allowing Sailors who refuse the vaccine to promote, advance, reenlist, or execute orders (except separation orders) until the CCDA has completed disposition of their case.

While most COVID-19 refusals are expected to be handled through administrative separation processing, the Vice Chief of Naval Operations retains the authority to impose nonjudicial punishment (NJP) or court-martial.

UNDERSTANDING THE ADMINISTRATIVE SEPARATION PROCESSING

Officers who refuse the COVID-19 will become the subject of a report of misconduct and WILL BE required to show cause for retention on the basis of Misconduct, Moral or Professional Dereliction, and Substandard Performance. The least favorable characterization of service an officer may receive will be General (under honorable conditions), unless inclusion of another basis for misconduct warrants an Other than Honorable (OTH) separation.

Enlisted Sailors who refuse the vaccine will be notified of administrative separation under MILPERSMAN 1910-142, Commission of a Serious Offense, plus any additional basis known at the time of processing. The least favorable characterization of service will also be General (under honorable conditions), unless the command includes another basis which warrants an OTH.

Enlisted service members who are separated will not be eligible for involuntary separation pay and will be subject to recoupment of any unearned special or incentive pays. Further, while separation processing is pending, Sailors who refuse the vaccine will be withheld promotion/advancement and receive adverse documentation in their military records to include adverse fitness reports and enlisted evaluations.

SENIOR MILITARY LEADERS TO BE PUNISHED FIRST

The Navy has decided that the most effective way to encourage vaccination is to threaten unvaccinated senior leaders with relief and a detachment for cause (DFC) if they do not immediately comply.

NAVADMIN 225/21 states that an “unvaccinated senior leader without a pending or approved exemption calls into question the Navy’s trust and confidence regarding their ability to ensure unit readiness or to maintain good order and discipline.”

According to the same message, however, over 98 percent of active-duty U.S. Navy service members have already completed or initiated a COVID-19 vaccination series. With such a high compliance percentage, it’s difficult to see how a senior leader’s delayed compliance with the vaccine mandate would have any impact on unit readiness.

Regardless, NAVADMIN 225/21 firmly requires that senior leaders “begin vaccination immediately.” Under the new guidance, Commanding Officers must notify senior leaders refusing the vaccine, in writing, that they have five (5) calendar days to initiate corrective action. If the senior leader does not begin a vaccination series or request an exemption within those five days, Commanders MUST relieve the senior leader and initiate detachment for cause.

NAVADMIN 225/21 defines a “Navy senior leader” as a “flag officer or flag officer select; an officer serving as a commander, deputy commander, commanding officer, executive officer, chief of staff, chief staff officer, or officer in charge; or an enlisted member serving as a command master chief, chief of the boat, senior enlisted advisor, or command senior enlisted leader.”

TERMINAL LEAVE EXEMPTION

The only silver-lining to NAVADMIN 225/21 is the “terminal leave” exemption. Thankfully, Navy service members who begin terminal leave on or before the vaccine mandate deadlines are administratively exempted from vaccine requirements.

CONTACT US TODAY

MJA has successfully helped servicemembers fight unjust separation actions. If you have been notified of administrative separation or court-martial for refusing the COVID-19 vaccination and want to fight for your career, contact us today for your free consultation.

The post What Happens to Service Members Who Refuse the COVID-19 Vaccine? appeared first on Military Justice Attorneys.

The Pentagon has announced that COVID-19 vaccinations are now mandatory for Department of Defense Service Members according to a memo recently released by Secretary of Defense Lloyd J. Austin.

With mandatory vaccinations now here, many service members have begun exploring their eligibility for medical or administrative exemption (which includes religious exemptions). If you are concerned about the lawfulness of a mandatory vaccination or believe you may qualify for an exemption, contact one of our military defense lawyers today to learn more about your rights.

WHO DOES THE COVID-19 VACCINE MANDATE APPLY TO?

On 24 August 2021, Secretary of Defense Austin directed that the Secretaries of the Military Departments “immediately begin full vaccination of all members of the Armed Forces under DoD authority . . . who are not fully vaccinated against COVID-19.” This includes all service members “on active duty or in the Ready Reserve, including the National Guard.”

According to the memo, “[s]ervice members are considered fully vaccinated two weeks after completing the second dose of a two-dose COVID-19 vaccine or two weeks after receiving a single dose of a one-dose vaccine.” Notably, service members with previous COVID-19 infection are NOT considered fully vaccinated.

While the Pentagon did not state a specific date by which service members must be fully vaccinated, the memo requires that vaccinations begin “immediately” and that the Secretaries of the Military Departments impose “ambitious timelines for implementation.”

The Department of the Navy (DON) has already announced that all DON active duty service members, who are not already vaccinated or exempted, will have to be vaccinated within 90 days and all Reserve Component service members must be vaccinated with 120 days of the issuance of ALNAV 062/21, released on 30 August 2021.

WHICH COVID-19 VACCINE CAN THE MILITARY MANDATE?

The Secretary of Defense stated that mandatory vaccinations “will only use COVID-19 vaccines that receive full licensure from the Food and Drug Administration (FDA), in accordance with FDA-approved labeling and guidance.” Whether that will be true in practice, however, is yet to be seen.

On 23 August 2021, the FDA approved the first COVID-19 vaccine. The vaccine, previously known as the Pfizer-BioNTech COVID-19 Vaccine, will now be marketed as “COMIRNATY”.

That same day, the FDA reissued a letter of authorization allowing the EUA to “remain in place for the Pfizer-BioNTech COVID-19 vaccine” and “to authorize use of COMIRNATY (COVID-19 Vaccine, mRNA) under this EUA for certain uses that are not included in the approved BLA.” In other words, the FDA will continue to allow the Pfizer-BioNTech vaccine to be administered under an EUA.

With both vaccines potentially available, critics have questioned which vaccine service members will be ordered to take: the Pfizer-BioNTech vaccine or COMIRNATY? This question is particularly troublesome given the FDA’s recent statement there is not enough COMIRNATY available for distribution to the public at large:

Although COMIRNATY (COVID-19 Vaccine, mRNA) is approved to prevent COVID-19 in individuals 16 years of age and older, there is not sufficient approved vaccine available for distribution to this population in its entirety at the time of reissuance of this EUA.

Service members ordered to take a COVID-19 vaccine should confirm that any vaccine they receive has received “full licensure” from the FDA “in accordance with FDA-approved labeling and guidance.” Failure to provide the proper vaccine could create legal issues for the Government if a service member refuses to take an unapproved vaccine.

Despite the clear distinction between the FDA-approved COMIRNATY and the FDA-authorized Pfizer-BioNTech, the Department of Defense has stated that the two vaccines can be used “interchangeably for the purpose of vaccinating Service members” in accordance with the SecDef’s vaccine mandate. This position is based on FDA guidance contained in a Frequently Asked Questions section of their website. The Department of Defense has not explained the FDA’s declaration that the two vaccines are “legally distinct.”

On October 12, 2021, Wisconsin Senator Ron Johnson penned a letter to President Biden, Secretary of Defense Austin, and Joint Chiefs of Staff Chairman Mark Milley questioning whether the DoD’s mandatory COVID-19 vaccinations are in accordance with Secretary Austin’s mandate. Senator Johnson specifically raised concerns about service members being forced to receive vaccinations that are not FDA-approved.

MJA is aware that some service members have already been ordered, in writing, to take the Pfizer-BioNTech vaccine since COMIRNATY is not available.

ARE THERE ANY POTENTIAL EXEMPTIONS FROM MANDATORY VACCINATION?

Even if a mandatory vaccination order is determined to be lawful, some service members may be exempt from taking the vaccination due to medical, administrative, or religious reasons.

Generally, requests for religious exemptions must include the service member’s name, rank, MOS/branch, and a description the religious belief contrary to immunization. Supporting documents, like letters from religious leaders, are optional but may be helpful in assisting commanders in a request.

Service members requesting religious exemption are also required to meet with the unit chaplain to discuss the basis for their religious objections. The chaplain must interview the service member and provided a memorandum addressing the religious basis and sincerity of the service member’s request. The chaplain has the discretion to recommend either approval or disapproval of the exemption request but is not required to make such a recommendation.

Service members must also be counseled by a licensed healthcare provider to ensure they are making an informed decision. This counseling should address, at a minimum: (a) Specific information about the diseases concerned; (b) Specific vaccine information including benefits and risks; and (c) Potential risks of infection incurred by unimmunized individuals.

According to the DoD’s memo, service members who are “actively participating” in COVID-19 clinical trials are exempted from mandatory vaccination until such trial is complete.

CONTACT MJA TODAY

An order from a superior commissioned officer to take the COVID-19 vaccination is likely to be considered a lawful military order, and service members who disobey such orders do so at their own peril.

If you are concerned about the lawfulness of a mandatory vaccination or believe you may qualify for an exemption, contact one of our military defense lawyers today to learn more about your rights.

Editor’s Note: This post was originally published in September 2021 and has been updated to include clarifying information from the Department of Defense.

The post Which COVID-19 Vaccine Can the Military Mandate? appeared first on Military Justice Attorneys.

When an officer is recommended for involuntary separation based on performance, misconduct, or mental or physical ability, the matter is evaluated by an administrative separation board, also known as a “Board of Inquiry”, “Show Cause Board”, “Elimination Board” or “Board of Officers”. A separation board affords the officer the opportunity to fight for retention in the military.

MJA has successfully defended servicemembers from every branch of the military facing administrative separation. If you have been notified of involuntary administrative separation and want to fight for your career, contact us today for your free consultation.

AUTHORITY

Each branch has its own regulations governing officer separations. The most common regulations for active duty officers include:

• Air Force– AFI 36-3207 (Separating Commissioned Officers)
• Army– AR 600-8-24 (Officer Transfer and Discharges)
• Coast Guard– COMDTINST M1000.4 (Military Separations)
• Navy and Marine Corps– SECNAVINST 1920.6D (Administrative Separation of Officers)

These regulations typically require that an officer facing administrative separation be advised of:

• The specification allegations on which the proposed action is based;
• The specific provisions authorizing separation;
• 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. The separation authority may generally not, however, issue a type of discharge or characterization of service less favorable than that recommended by the separation board.

ELIGIBILITY

Officers facing involuntary administrative separation are only entitled to a board hearing when they have more than 6 years of “active commissioned service” or face the possibility of receiving an Other than Honorable (OTH) characterization of service.

Officers with less than 6 years of active commissioned service are considered “probationary officers” do not rate a board hearing. As such, these officers can be separated via “notification procedures” with an Honorable or General (Under Honorable Conditions) discharge.

The requirement of 6 years of “active commissioned service” is particularly critical for officers who were prior enlisted. The officer’s prior enlisted service does not count toward their active commissioned service time.

OFFICER’S RIGHTS

Officers facing involuntary administrative separation are entitled to numerous rights, including the right to:

• Consult with military or civilian counsel;
• Obtain copies of documents that will be sent to the separation authority supporting the proposed separation;
• Have a hearing before an administrative separation board (nonprobationary officers only)
• Present written statements instead of board proceedings;
• Request appointment of a military counsel for representation;
• Retain civilian counsel at no expense to the Government; and to
• Waive the above rights in writing. This includes the right to submit a conditional waiver of the right to have a case heard before an administrative separation board.

A conditional waiver may be submitted when an officer wants to waive his/her right to a hearing before an administrative separation board contingent upon receiving a favorable characterization of service.

For example, an officer who is facing a potential discharge under other than honorable (OTH) conditions could elect to waive his/her separation board contingent upon receiving an honorable discharge. The separation authority may approve or disapprove a conditional waiver.

Officers may also be given the opportunity to voluntary resign or retire, depending on the specifics of their case.

SEPARATION BOARD HEARING PROCEDURES

Separation boards are comprised of at least three members who are typically in the grade of O-5 or above. These members must be unbiased and senior in grade to the officer facing separation.

Officers having the following rights at a hearing, which may be exercised by them or their attorney:

• To appear in person, with or without counsel;
• To submit any written evidence to the board for consideration;
• To request the attendance of witnesses;
• To question any witness who appears before the board;
• The challenge any voting member of the board for cause; and
• To present argument before the board closes the case for deliberation on findings and recommendations.

Officers are not required to testify at the board hearing and may choose to remain silent, given a sworn statement subject to cross examination, or give an unsworn statement.

BOARD FINDINGS AND RECOMMENDATIONS 

After hearing all the evidence, the board will determine whether each allegation in the notice of separation is supported by a preponderance of the evidence. If the basis is satisfied, the board must then determine whether the officer should be separated or retained in the military. If separated, the board must determine the appropriate characterization of service.

Characterization of service will be based upon the quality of an officer’s service, including the reason for separation.

• An Honorable discharge is appropriate when the servicemember 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.
• 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.
• An Other-than-Honorable (OTH) discharge may be issued for when a servicemember’s conduct constitutes a “significant departure” from the conduct expected from a military member.

If a board recommends separation, it may also recommend that the separation be suspended. A recommendation for suspended separation is not binding on the separation authority.

SEPARATION AUTHORITY ACTION

After the board is complete, the case goes to the separation authority for review and action. The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations.

The separation authority’s action will depend on the board’s findings and recommendations. For example, when a board recommends separation for misconduct, the separation authority may direct separation of the servicemember or disapprove the recommendation.

While a separation authority can disapprove a recommendation for separation and direct retention a servicemember, separation authorities are not permitted to direct discharge if a board recommends retention. Neither can a separation authority issue a discharge characterization of less favorable character than that recommended by the board.

APPEALING AN UNJUST SEPARATION

Officers 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

MJA has successfully helped officers 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.

_______________________

Related Posts:

• Administrative Separations Part I: Fighting Notification Procedures
• Administrative Separations Part II: Fighting a Separation Board

The post Administrative Separations Part III: Fighting Officer Separations appeared first on Military Justice Attorneys.

When a command recommends that an enlisted servicemember be involuntarily discharged based on performance, misconduct, or mental or physical ability, the matter is evaluated by an administrative separation board, also known as a “Chapter Board”. A separation board offers the servicemember the opportunity to fight for retention in the military.

MJA has successfully defended servicemembers from every branch of the military facing administrative separation. If you have been notified of an administrative separation hearing / chapter board and want to fight for your career, contact us today for your free consultation.

OVERVIEW

Servicemembers facing involuntary administrative separation are entitled to a separation/chapter board when they have more than 6 years of active duty or face the possibility of receiving an Other than Honorable (OTH) characterization of service.

Servicemembers with less than 6 years of active-duty service do not rate a board hearing and can be separated via “notification procedures” with an Honorable or General (Under Honorable Conditions) discharge.

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 an administrative separation board be advised of:

• The specification allegations on which the proposed action is based;
• The specific provisions authorizing separation;
• 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. The separation authority may generally not, however, issue a type of discharge or characterization of service less favorable than that recommended by the separation board.

SERVICEMEMBERS’ RIGHTS

Servicemembers facing a separation board hearing are entitled to numerous rights, including the right to:

• Consult with military or civilian counsel;
• Obtain copies of documents that will be sent to the separation authority supporting the proposed separation;
• Have a hearing before an administrative separation board;
• Present written statements instead of board proceedings;
• Request appointment of a military counsel for representation;
• Retain civilian counsel at no expense to the Government; and to
• Waive the above rights in writing. This includes the right to submit a conditional waiver of the right to have a case heard before an administrative separation board.

A conditional waiver may be submitted when a servicemember wants to waive his/her right to a hearing before an administrative separation board contingent upon receiving a favorable characterization of service.

For example, a servicemember who is facing a potential discharge under other than honorable (OTH) conditions could elect to waive his/her separation board contingent upon receiving an honorable discharge. The separation authority may approve or disapprove a conditional waiver.

SEPARATION BOARD HEARING

Separation boards are typically comprised of at least three members including both officers and enlisted personnel. These members must be unbiased and senior in rank to the servicemember.

Servicemembers typically having the following rights at a hearing, which may be exercised by them or their attorney:

• To appear in person, with or without counsel;
• To submit any written evidence to the board for consideration;
• To request the attendance of witnesses;
• To question any witness who appears before the board;
• The challenge any voting member of the board for cause; and
• To present argument before the board closes the case for deliberation on findings and recommendations.

Servicemembers are not required to testify at the board hearing and may choose to remain silent, given a sworn statement subject to cross examination, or give an unsworn statement.

BOARD FINDINGS AND RECOMMENDATIONS

After hearing all the evidence, the board will determine whether each allegation in the notice of separation is supported by a preponderance of the evidence. If the basis is satisfied, the board must then determine whether the servicemember should be separated or retained in the military. If separated, the board must determine the appropriate characterization of service.

Characterization of service will be based upon the quality of a servicemember’s service, including the reason for separation.

An Honorable discharge is appropriate when the servicemember 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.

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.

An Other-than-Honorable (OTH) discharge may be issued for when a servicemember’s conduct constitutes a “significant departure” from the conduct expected from a military member.

If a board recommends separation, it may also recommend that the separation be suspended. A recommendation for suspension is not binding on the separation authority.

SEPARATION AUTHORITY ACTION

After the board is complete, the case goes to the separation authority for review and action. The separation authority is the official authorized under the applicable regulations to take final action on specific types of separations.

The separation authority’s action will depend on the board’s findings and recommendations. For example, when a board recommends separation for misconduct, the separation authority may direct separation of the servicemember or disapprove the recommendation.

While a separation authority can disapprove a recommendation for separation and direct retention a servicemember, separation authorities are not permitted to direct discharge if a board recommends retention. Neither can a separation authority issue a discharge characterization of less favorable character than that recommended by the board.

APPEALING AN UNJUST SEPARATION HEARING

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

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.

________________________

Related Posts:

• Administrative Separations Part I: Fighting Notification Procedures
• Administrative Separations Part III: Fighting Officer Separations

The post Administrative Separations Part II: Fighting a Separation Board appeared first on Military Justice Attorneys.

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

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.

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

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.

________________________

Related Posts:

• 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.

Many circumstances can trigger a service member’s discharge from the Armed Forces. While most of the time this will simply be the end of an enlistment contract, there are other situations where a service member’s military career is cut short due to allegations of misconduct or substandard performance of duty.

When this occurs, the military will often refer the case to an administrative separation board (or “chapter” board, as referred to in the Army) to determine whether separation from active duty is warranted and, if so, what characterization of service the military member will receive.

MJA has successfully defended service members facing investigation, administrative separation, and discipline for the most serious offenses under the UCMJ. Our experienced and aggressive attorneys know how to win and will aggressively fight for you. Call us today at (843) 773-5501 for a free consultation.

TYPE OF MILITARY SEPARATION BOARDS

There are a few types of military separation boards depending on the facts and circumstances of the service member in question. If you have been notified by your command that you are the subject of a separation or discharge board, the following should help you understand what to be prepared for:

• Board of Inquiry – A board of inquiry is often used as an alternative to a court-martial for officers who are faced with misconduct or other service related issues. A Board of Inquiry has other names, depending on the Service Branch, such as “Show Cause Hearing”, or Elimination Board. This type of Board may recommend an Other Than Honorable (OTH) Characterization of Service.   
• Administrative Separation Board / Chapter Board – Enlisted members recommended for involuntary discharge with an OTH are also entitled to an administrative separation board. At this hearing, the service member has the opportunity to argue their case against being discharged based on performance, misconduct, mental or physical ability, or other issues. The board may recommend an Other Than Honorable Characterization of Service.
• Withdrawal of Federal Recognition Board (WOFR) – Commissioned and warrant officers serving the Army National Guard may be subject to involuntarily administrative proceedings, similar to a Board of Inquiry, if the area commander determines that sufficient basis exists to initiate action for withdrawal of Federal recognition.
• Discharge Review Boards – Service members who have already been discharged or separated (not including a General Court-Martial punitive discharge) can appeal their separation decision to the Discharge Review Board, or a Military Correction Board.

An administrative separation board is extremely important as it is the service member’s last chance to stay in the military. Thankfully, service members don’t have to face this alone and can be represented by either a military or civilian attorney.

CONDUCT WARRANTING SEPARATION ACTIONS

Almost any type of misconduct or substandard performance of duty can trigger administrative separation processing. Administrative separation boards, however, are typically reserved for conduct which the commander believes warrants an OTH discharge or for service members with more than 6 years of creditable service.

Some of the most common grounds for involuntary separation of a service member include drug or alcohol abuse, sexual harassment, sexual assault, fraternization, failure to obey orders, substandard performance of duty, adultery, or a pattern of minor disciplinary infractions.

Both “serious” and “minor” offenses may be resolved at administrative separation hearings. A “serious offense” is any violation of the UCMJ (or a comparable civilian offense) for which a punitive discharge would be authorized under the UCMJ. “Serious offenses” not taken to court-martial are almost always resolved at administrative separation boards.

For administrative separation to occur for a “minor offense”, the government must often prove a pattern of misconduct consisting of two or more minor disciplinary actions. Your commander will determine what constitutes a minor disciplinary infraction. There needs to be a pattern of misconduct consisting of discreditable involvement with military authorities. Discreditable contact includes violations of the UCMJ, regulation or orders, State penal codes, and/or other military customs and traditions.

ADMINISTRATIVE SEPARATION BOARD PROCESS

If you have been told by your command you are being administratively separated, or are already in receipt of paperwork officially notifying you that administrative separation has been initiated, you need to understand what command action is likely to occur.  

The first and most critical issue is whether or not you are entitled to a board hearing. Service members are entitled to an administrative separation board hearing in two circumstances: (1) if the command is recommending an Other Than Honorable characterization of service; (2) if the service member has 6 or more years of creditable service.

In either of those instances, an administrative separation board must be convened to review the evidence from both the government and the defense. The hearing is an adversarial one, with opening and closing arguments, and cross examination of witnesses.

The board consists of three service members who are senior to the “respondent” (service member facing administrative separation). The board members must decide, by majority vote, whether the government has proven by a preponderance of the evidence that the respondent committed the misconduct.

If the board does substantiate the misconduct, they also need to decide, by the majority, to either separate or retain the service member. If the board votes to separate, then the board must decide the characterization of service (described below).

CHARACTERIZATION OF SERVICE

When you’re put under administrative separation, you’ll be notified in writing. In the written notice, you’ll learn the basis for your separation and the recommended characterization of service. The recommended characterization of service is important because it could potentially impact your ability to avail veterans’ benefits later on.

There are three different characterizations of service that a board can recommend:

• Honorable – An Honorable discharge is awarded when a military member meets the standards of acceptable conduct and performance of duty for military personnel. If the service member reaches the end of their enlistment period or contract there is a strong presumption that the service member served honorably.
• General (Under Honorable Conditions) – a general discharge is appropriate when significant negative aspects of the member’s conduct outweighs positive aspects of their military service. Service members awarded a general discharge are often not allowed to reenlist or enter a different branch of the military service, but may be entitled to certain VA medical benefits given that their service was under “honorable conditions.”
• Other Than Honorable (OTH) – an OTH discharge results from a pattern of behavior or acts that are a significant departure from conduct expected of military members. Service members who received an OTH should expect to lose some or all of their military benefits.

A veteran’s characterization of service is extremely important and has life-long consequences. A service member who receives anything less than a fully-honorable discharge should expect to experience substantial prejudice in the civilian world.

HOW AN EXPERIENCED ATTORNEY CAN HELP

Whenever appearing before any type of military separation board, you have a right to legal representation. Your attorney will dig deep into the command’s case against you to find weakness and unfounded arguments. An experienced military will conduct his/her own investigation to unearth evidence to support the defense theory of the case.  All potential evidence will be evaluated and witnesses called on your behalf at your board. Be sure to have any documents, photographs, or testimony that the command hasn’t included in their separation package, as it could help your case.

Our military separation defense lawyers will also ask hard questions during cross-examination of witnesses to expose facts and raise doubts about the allegations against you, as well as present your military record in a positive light. You should be prepared to make your own statement to the board to help avoid separation from service. You can use this time to set the record straight. Your lawyer will help you prepare before the hearing to present your facts in the most effective manner.

MJA KNOWS HOW TO WIN

Results matter. MJA has a proven track record of success and is committed to providing the highest quality legal representation to its clients. Our attorneys have successfully defended officers and enlisted members facing administrative separation. Here are just a few examples:

• • A Sergeant First Class (E-7) in the United States Army retained MJA to defend against multiple false allegations involving a junior Soldier. After refusing to accept Article 15 punishment, the Soldier was taken to a Chapter Board. During the Board, MJA effectively cross-examined the government’s witnesses, including the alleged victim, exposing numerous inconsistencies in their prior statements and a sinister motive to fabricate among the government witnesses. After 30 minutes of deliberation, the Board members unsubstantiated the allegations of sexual harassment and fraternization and recommended the Soldier’s retention in the United States Army. 
  • A Lieutenant Commander (O-4) in the United States Navy accused of sexual harassment and several other serious violations of the UCMJ hired MJA after being detached for cause (DFC) and offered NJP. The LCDR refused NJP and demanded trial by court-martial. After many delays and months of waiting, the Navy sent the officer to a BOI instead. MJA successfully defended the LCDR against all charges and allegations brought forward as the basis for the DFC and NJP. The BOI found “NO BASIS” for any of the alleged misconduct and retained the LCDR in the Navy. 
  • A Gunnery Sergeant (E-7) in the United States Marine Corps was notified of administrative separation after testing positive on a urinalysis. MJA was retained to defend the Marine. At the board hearing, MJA and detailed defense counsel admitted documentary evidence and testimony that the positive urinalysis was the result of an innocent ingestion. The Board found “NO BASIS” for the alleged drug abuse and retained the Marine on active duty. 
  • A Master Sergeant (E-7) in the United States Air Force was investigated for 15 months by the Air Force Office of Special Investigations (OSI), Family Advocacy Program (FAP), and Child Welfare Services (CWS) for false allegations of sexually assaulting a minor. After a week-long administrative discharge board with eight Government witnesses, the board members found “NO BASIS” for the alleged misconduct and retained the Master Sergeant on active duty.
  • A Specialist (E-4) in United States Army unjustly accused of abusive sexual contact and assault with intent to commit rape hired MJA after being targeted as the subject of a CID investigation. MJA advised and represented the SPC through the investigation and resultant command determination to forgo court-martial. After many delays and months of waiting, the Army sent the Soldier to an administrative separation board instead – an “easier” path for the Government to secure accountability given its lower standard of proof and ability to prosecute with hearsay alone. MJA successfully defended the SPC against all charges and allegations, resulting in the Board finding “NO BASIS” and voting to retain the SPC in the Army. 
  • A Lieutenant Commander (O-4) in the United States Navy was required to show cause for retention in the naval service for alleged misconduct and substandard performance of duty following a state-court conviction for Driving While Intoxicated. At the BOI, MJA submitted extensive written matters in defense and called multiple character witnesses who testified the LCDR should be retained on active duty. The BOI unsubstantiated the allegation of substandard performance of duty and retained the officer in the naval service. 

CONTACT MJA TODAY

When your career, freedom, and future are on the line, you need an experienced law firm in your corner. The skilled and assertive attorneys at Military Justice Attorneys will zealously fight for you.  We have successfully defended service members facing investigation, administrative separation, and discipline for the most serious offenses under the UCMJ and will aggressively fight for you. Call us today at (843) 773-5501 for a free consultation.

The post Military Separation Boards: An Overview appeared first on Military Justice Attorneys.