As with any job, your military job is not guaranteed and even though you are under contract, you serve at the will of the government. There are many reasons why you could face separations proceedings from the military and they typically involve either allegations of misconduct or findings of misconduct. Other reasons include medical, family, and even religious reasons.
There are two types of separations given by the armed forces: punitive discharges and administrative discharges. Punitive discharges must be based on a court-martial conviction. Administrative discharges, on the other hand, can be based on a court-martial conviction (if no discharge was awarded), misconduct that was not handled at a court-martial, or for a host of other reasons. Administrative separations break down into two basic areas: voluntary separations and involuntary separations. Our clients are typically concerned with the latter - involuntary (forced) separations - since they can adversely affect your military career and your life after it.
As with a court-martial, you have a right to a civilian defense attorney. Because of the "low level" nature of administrative discharge boards, newly minted JAGs typically "cut their teeth" at being a defense attorney. Unfortunately, this means you are not getting best representation you are entitled to.
Enlisted Personnel: Administrative Discharge Boards
If you are enlisted, you may be entitled to an Administrative Discharge Board depending on your time in service. An Administrative Discharge Board is comprised of three service members (whose required rank depends on your rank). The board is required to make three determinations/recommendations: (1) was there misconduct; (2) if so, should the member be separated; and (3) if so, what characterization of discharge should be recommended (Other Than Honorable, General Under Honorable, Honorable).
The government presents its case to the Board through a "recorder" who is typically a junior JAG, but does not have to be an attorney. The Administrative Discharge Board proceeding is for all intents and purposes, a mini-trial.
At the Board, you are entitled to be represented by an attorney (JAG or civilian or both) and you have a right to present evidence in your favor, either in person testimony or by documentation. While the Military Rules of Evidence generally do not apply, the evidence presented must be "relevant."
Perhaps the biggest "myth" that I hear is that all evidence will be considered by the board and as such, you don't stand a chance. I completely disagree. In my experience, I find that Board members are usually very logical and practical and if the right objection is made and explained, evidence that is irrelevant or too prejudicial will not be considered by the board. In fact, the Board has a duty to only consider relevant evidence.
In addition to your witnesses, you have the right to testify at the Board. The decision to do so is critical and you should seek the advice of an attorney before you do! While the Board proceeding is administrative in nature, it is being recorded and you could incriminate yourself (that is potentially face criminal charges). You have the right to present your testimony orally, or in writing, sworn or unsworn (oath or no oath). How you decide to testify before the Board can detrimentally impact (positively or negatively) the outcome of the Board.
Once the Board is complete, the Board must report its findings and recommendations to the Separation Authority. Depending on the "basis" for separation, the Separation Authority typically abides by the recommendations/findings of the Board.
While we typically represent clients facing involuntary proceedings involving misconduct, we routinely help servicemembers who are seeking separation based on medical, family, or other non-disciplinary issues.
Officers: Boards of Inquiry
Like enlisted personnel, officers can face involuntary separation proceedings for sub-standard performance or misconduct. Before an officer can be separated, he/she must face a Board of Inquiry ("BOI"). The BOI is comprised of 3 senior officers to officer who is the subjection of the BOI. A BOI can be ordered as a result of something that has damaged the reputation of the officer or the military such as an accident or even a run-in with civilian law enforcement authorities. A BOI can also be empaneled if the officer was the subject of an NJP or court-martial.
The BOI must generally make the same determines that an Administrative Discharge Board makes for an enlisted person. They must decide whether the officer has indeed performed under standards or committed misconduct, and if so, whether the officer should be separated and the characterization of discharge that goes with that (Other Than Honorable, General, Honorable). Like a court-martial, the government (through a representative called a "Recorder") presents its case, followed by the defense case. In addition to your military lawyer, you have the right to a civilian lawyer at your expense.
Don't Gamble With Your Career
Despite the "administrative" nature of separations proceedings, the outcome can have serious repercussions on the rest of your life. Joe Casas is an experienced, aggressive attorney with a track record of success who can significantly improve your chances of achieving a positive outcome at your separation proceeding. Contact him today for a free evaluation of your case.